5–26–09 Tuesday Vol. 74 No. 99 May 26, 2009

Pages 24695–25144

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Contents Federal Register Vol. 74, No. 99

Tuesday, May 26, 2009

Agency for Healthcare Research and Quality See National Oceanic and Atmospheric Administration NOTICES See Patent and Trademark Office Meetings: NOTICES Health Care Policy and Research Special Emphasis Panel, National Environmental Policy Act: 24860, 24863–24864 Proposed Categorical Exclusions, 24782–24785

Agriculture Department Defense Department See Forest Service See Navy Department See Rural Business–Cooperative Service NOTICES Federal Acquisition Regulation (FAR): Arts and Humanities, National Foundation Agency Information Collection Activities; Proposals, See National Foundation on the Arts and the Humanities Submissions, and Approvals, 24854 Meetings: Centers for Disease Control and Prevention Strategic Environmental Research and Development NOTICES Program, Scientific Advisory Board, 24830 Meetings: Veterans’ Advisory Board on Dose Reconstruction, Advisory Committee to the Director; Cancelled, 24864 24830–24831 Healthcare Infection Control Practices Advisory Privacy Act; Systems of Records, 24831–24834 Committee, 24859–24860 National Center for Injury Prevention and Control Initial Review Group; Teleconferences, 24860 Economic Development Administration NOTICES Centers for Medicare & Medicaid Services Petitions by Firms for Determination of Eligibility to Apply NOTICES for Trade Adjustment Assistance, 24822–24823 Medicare and Medicaid Programs: Application by the American Osteopathic Association for Education Department Continued Deeming Authority for Ambulatory PROPOSED RULES Surgical Centers, 24857–24859 Negotiated Rulemaking Committees; Establishment, 24728– Children and Families Administration 24729 NOTICES NOTICES Agency Information Collection Activities; Proposals, Agency Information Collection Activities; Proposals, Submissions, and Approvals, 24834–24835 Submissions, and Approvals, 24856–24857

Coast Guard Employee Benefits Security Administration RULES NOTICES Drawbridge Operation Regulations: Meetings: Shrewsbury River, Highlands, NJ, 24696–24697 Advisory Council on Employee Welfare and Pension Safety Zones: Benefit Plans, 24883 Copper Canyon Clean up; Lake Havasu, AZ, 24701–24703 Sea World May Fireworks; Mission Bay, San Diego, CA, Energy Department 24697–24699 See Federal Energy Regulatory Commission Use of Force Training Flights, San Pablo Bay, CA, 24699– 24701 PROPOSED RULES Environmental Protection Agency Anchorages: RULES New and Revised Anchorages in the Captain of the Port Approval and Promulgation of Air Quality Implementation Portland, Oregon, Area of Responsibility, 24718– Plans: 24722 Maryland; Reasonably Available Control Technology Regulated Navigation Area and Safety Zone: Requirements for Volatile Organic Compounds; Chicago Sanitary and Ship Canal, Romeoville, IL, 24722– Correction, 24703–24705 24728 Pesticide Tolerances: NOTICES Acibenzolar–S–methyl, 24705–24711 Meetings: PROPOSED RULES Lower Mississippi River Waterway Safety Advisory Regulation of Fuels and Fuel Additives: Committee, 24871 Changes to Renewable Fuel Standard Program, 24904– 25143 Commerce Department NOTICES See Economic Development Administration Agency Information Collection Activities; Proposals, See Foreign–Trade Zones Board Submissions, and Approvals, 24850–24851 See Industry and Security Bureau Meetings: See International Trade Administration SFIREG Full Committee, 24851–24852

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Federal Aviation Administration Federal Reserve System RULES NOTICES Communication and Area Navigation Equipment Proposals to Engage in Permissible Nonbanking Activities Operations in Remote Locations and Mountainous or to Acquire Companies that are Engaged in Terrain; Correction, 24695 Permissible Nonbanking Activities, 24853–24854 PROPOSED RULES Airworthiness Directives: Fish and Wildlife Service Boeing Model 707 Airplanes, and Model 720 and 720B NOTICES Series Airplanes, 24715–24718 Final Comprehensive Conservation Plan and Finding of No Boeing Model 747 100, 100B, –100B SUD, 200B, and 300 Significant Impact for Environmental Assessment: Series Airplanes; and Model 747SP and 747SR Series Seney National Wildlife Refuge, Schoolcraft County, MI, Airplanes, 24712–24715 24873 NOTICES Petition for Exemption; Summary of Petition Received, Foreign–Trade Zones Board 24897 NOTICES Grant of Authority For Subzone Status: Grafil, Inc., (Carbon Fiber), Sacramento, CA, 24798 Federal Deposit Insurance Corporation NOTICES Forest Service Agency Information Collection Activities; Proposals, NOTICES Submissions, and Approvals, 24852–24853 Meetings: North Central Idaho Resource Advisory Committee, 24781–24782 Federal Emergency Management Agency Ouachita–Ozark Resource Advisory Committee, 24781 PROPOSED RULES Proposed Flood Elevation Determinations, 24729–24757 General Services Administration NOTICES NOTICES Disaster Declarations: Federal Acquisition Regulation (FAR): Alabama, 24867 Agency Information Collection Activities; Proposals, Florida, 24867 Submissions, and Approvals, 24854 Indiana, 24869 North Dakota, 24866–24867 Health and Human Services Department Oklahoma, 24866, 24868–24869 See Agency for Healthcare Research and Quality Tennessee, 24867–24868 See Centers for Disease Control and Prevention West Virginia, 24868 See Centers for Medicare & Medicaid Services Major Disaster and Related Determinations: See Children and Families Administration Mississippi, 24869–24870 See National Institutes of Health See Substance Abuse and Mental Health Services Administration Federal Energy Regulatory Commission NOTICES PROPOSED RULES HIT Standards Committee Schedule for the Assessment of Smart Grid Policy; Notice of Extension of Time, 24718 HIT Policy Committee Recommendations, 24854–24855 NOTICES Applications: Homeland Security Department Burlington, IA and FFP Iowa 5, LLC, 24835–24836 See Coast Guard Natural Currents Energy Services, LLC, 24836–24837 See Federal Emergency Management Agency Progress Energy Carolinas, Inc, 24835 See U.S. Citizenship and Immigration Services Spearfish, SD, 24838–24839 See U.S. Customs and Border Protection Williston Basin Interstate Pipeline Co., 24837–24838 NOTICES Environmental Impact Statements; Availability, etc.: Public Workshop: ANR Pipeline Co., 24841–24842 Privacy Compliance Fundamentals—PTAs, PIAs, and Downeast LNG, Inc., et al., 24846–24847 SORNs, 24864–24865 ETC Tiger Pipeline, LLC, 24839–24841 Kern River Gas Transmission Co., 24842–24845 Industry and Security Bureau Rockies Express Pipeline LLC, 24845–24846 NOTICES Initial Market–Based Rate Filing: Action Affecting Export Privileges: NGP Blue Mountain I LLC, 24848–24849 Matthew Ayadpoor, 24785–24786 Palmco Power CT, LLC, 24848 Action Affection Export Privileges: Palmco Power NJ, LLC, 24848 Orion Air S.L.; Syrian Pearl Arlines, 24786–24787 Palmco Power PA, LLC, 24849 Final Decision and Order: Pipeline Siting and Stakeholder Involvement Workshop, Micei International, 24788–24796 24849 Meetings: Emerging Technology and Research Advisory Committee, 24819–24820 Federal Motor Carrier Safety Administration NOTICES Interior Department Purpose, Use and Effect of Field Operations Training See Fish and Wildlife Service Manual, 24897–24898 See Land Management Bureau

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See National Park Service National Oceanic and Atmospheric Administration NOTICES PROPOSED RULES Meetings: Fisheries of the Exclusive Economic Zone Off Alaska: California Desert Advisory Council, 24871 Western Alaska Community Development Quota Program, Rockfish Program, Amendment 80 Program, et al., Internal Revenue Service 24762–24768 NOTICES Fisheries of the United States Exclusive Economic Zone Off Low Income Taxpayer Clinic Grant Program; Availability of Alaska: 2010 Grant Application Package, 24901 Fisheries of the Arctic Management Area; Bering Sea Subarea, 24757–24761 International Trade Administration NOTICES NOTICES Advisory Committee on Commercial Remote Sensing; Final Results of the Second New Shipper Review: Nominations Request, 24787 Frozen Warmwater Shrimp from the Socialist Republic of Hydrographic Services Review Panel; Membership Vietnam, 24796–24798 Solicitation, 24798–24799 Preliminary Results of Antidumping Duty Administrative Incidental Takes of Marine Mammals During Specified Review: Activities: Purified Carboxymethylcellulose from the Netherlands, Low–Energy Marine Seismic Survey in the Northeast 24823–24830 Pacific Ocean (July 2009), 24799–24818 Incidental Taking of Marine Mammals: Labor Department Taking of Marine Mammals Incidental to the Explosive See Employee Benefits Security Administration Removal of Offshore Structures in the Gulf of NOTICES Mexico, 24818–24819 Agency Information Collection Activities; Proposals, Meetings: Submissions, and Approvals, 24881–24883 Caribbean Fishery Management Council, 24821–24822 Pacific Fishery Management Council, 24820–24821 Land Management Bureau South Atlantic Fishery Management Council; Correction, NOTICES 24819 Alaska Native Claims Selection, 24872–24873

Legal Services Corporation National Park Service NOTICES NOTICES Meetings; Sunshine Act, 24883 Agency Information Collection Activities; Proposals, Submissions, and Approvals, 24871–24872 National Aeronautics and Space Administration Inventory Completion: NOTICES Field Museum of Natural History, Chicago, IL, 24873– Federal Acquisition Regulation (FAR): 24874, 24879 Agency Information Collection Activities; Proposals, Kalamazoo Valley Museum, Kalamazoo Valley Submissions, and Approvals, 24854 Community College, Kalamazoo, MI, 24878–24879 Meetings: Oregon State University, Department of Anthropology, NASA Advisory Council; Astrophysics Subcommittee, Corvallis, OR, 24876–24878 24883–24884 Paul H. Karshner Memorial Museum, Puyallup, WA, 24876 National Foundation on the Arts and the Humanities U.S. Department of the Interior, National Park Service, NOTICES Fort Vancouver National Historic Site, Vancouver, Meetings: WA, 24874–24875 Arts Advisory Panel, 24884 National Register of Historic Places: Notification of Pending Nominations and Related National Highway Traffic Safety Administration Actions, 24879–24880 NOTICES Weekly Listing of Historic Properties, 24880–24881 Petition for Decision: Nonconforming 2006 Ferrari 599 Passenger Cars Navy Department Manufactured Before September 1, 2006 are Eligible RULES for Importation, 24895–24896 Certifications and Exemptions Under the International Regulations for Preventing Collisions at Sea (1972): National Institutes of Health USS CARL VINSON, 24695–24696 NOTICES Meetings: Center for Scientific Review, 24862 Nuclear Regulatory Commission Eunice Kennedy Shriver National Institute of Child NOTICES Health and Human Development, 24860–24862 Draft Regulatory Guide; Issuance, Availability; Correction, National Cancer institute, 24859 24884 National Cancer Institute, 24861 Environmental Impact Statements; Availability, etc.: National Institute of Environmental Health Sciences, Arizona Public Service Co., Palo Verde Nuclear 24862–24863 Generating Station (Units 1, 2, and 3), 24884–24886 National Institute of Nursing Research, 24861–24863 Renewal of Special Nuclear Material License: National Institute on Aging, 24864 AREVA NP, Inc., Richland, WA, 24886

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Overseas Private Investment Corporation Susquehanna River Basin Commission NOTICES NOTICES Agency Information Collection Activities; Proposals, Projects Approved for Consumptive Uses of Water, 24893– Submissions, and Approvals, 24886–24887 24895

Patent and Trademark Office Thrift Supervision Office NOTICES NOTICES Agency Information Collection Activities; Proposals, Meetings: Submissions, and Approvals, 24787–24788 OTS Mutual Savings Association Advisory Committee, 24901–24902

Rural Business–Cooperative Service Transportation Department NOTICES See Federal Aviation Administration Applications: See Federal Motor Carrier Safety Administration Rural Energy for America Program; Renewable Energy See National Highway Traffic Safety Administration Systems and Energy Efficiency Improvements Grants, See Surface Transportation Board etc., 24769–24781 Treasury Department Securities and Exchange Commission See Internal Revenue Service NOTICES See Thrift Supervision Office Order of Suspension of Trading: NOTICES Nanosignal Corp., Inc. (n/k/a Nano Global, Inc.), et al., Agency Information Collection Activities; Proposals, 24887–24888 Submissions, and Approvals, 24898–249009 Self–Regulatory Organizations; Proposed Rule Changes: Chicago Board Options Exchange, Inc., 24888–24889 U.S. Citizenship and Immigration Services NASDAQ Stock Market LLC, 24889–24890 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 24865 Small Business Administration NOTICES U.S. Customs and Border Protection Agency Information Collection Activities; Proposals, NOTICES Submissions, and Approvals, 24887 Meetings: U.S. Customs and Border Protection Airport and Seaport State Department Inspections User Fee Advisory Committee, 24870 NOTICES Agency Information Collection Activities; Proposals, Veterans Affairs Department Submissions, and Approvals, 24890–24891 NOTICES Review of the Designation: Agency Information Collection Activities; Proposals, Abu Nidal Organization Movement and Palestinian Submissions, and Approvals, 24902 Liberation Front—Abu Abbas Faction and All Designated Aliases as Foreign Terrorist Organizations, 24891 Separate Parts In This Issue State–24, Medical Records, 24891–24893 Part II Substance Abuse and Mental Health Services Environmental Protection Agency, 24904–25143 Administration

NOTICES Reader Aids Agency Information Collection Activities; Proposals, Consult the Reader Aids section at the end of this page for Submissions, and Approvals, 24855–24856 phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws. Surface Transportation Board To subscribe to the Federal Register Table of Contents NOTICES LISTSERV electronic mailing list, go to http:// Petition for Declaratory Order and Abandonment listserv.access.gpo.gov and select Online mailing list Exemption: archives, FEDREGTOC-L, Join or leave the list (or change BNSF Railway Co., Oklahoma County, OK, 24896–24897 settings); then follow the instructions.

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CFR PARTS AFFECTED IN THIS ISSUE

A cumulative list of the parts affected this month can be found in the Reader Aids section at the end of this issue.

14 CFR 91...... 24695 135...... 24695 Proposed Rules: 39 (2 documents) ...... 24712, 24715 18 CFR Proposed Rules: Chapter I...... 24718 32 CFR 706...... 24695 33 CFR 117...... 24696 165 (3 documents) ...... 24697, 24699, 24701 Proposed Rules: 110...... 24718 165...... 24722 34 CFR Proposed Rules: Chapter VI ...... 24728 40 CFR 52...... 24703 180...... 24705 Proposed Rules: 80...... 24904 44 CFR Proposed Rules: 67 (4 documents) ...... 24729, 24738, 24743, 24753 50 CFR Proposed Rules: 679 (2 documents) ...... 24757, 24762 680...... 24762

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Rules and Regulations Federal Register Vol. 74, No. 99

Tuesday, May 26, 2009

This section of the FEDERAL REGISTER Washington, DC 20591; telephone (202) SUPPLEMENTARY INFORMATION: Pursuant contains regulatory documents having general 267–7143, facsimile (202) 267–7971, to the authority granted in 33 U.S.C. applicability and legal effect, most of which e-mail [email protected]. 1605, the Department of the Navy are keyed to and codified in the Code of Correction: In the final rule, amends 32 CFR part 706. Federal Regulations, which is published under published in the Federal Register issue 50 titles pursuant to 44 U.S.C. 1510. The Secretary of the Navy previously of Friday, May 1, 2009 (74 FR 20202), certified that USS Carl Vinson (CVN 70) The Code of Federal Regulations is sold by make the following correction—On page is a vessel of the Navy which, due to its the Superintendent of Documents. Prices of 20202, in the second column, the fifth special construction and purpose, new books are listed in the first FEDERAL line of the heading, ‘‘Amendment Nos. cannot fully comply with 72 COLREGS. REGISTER issue of each week. 91–306 and 135–110’’ is corrected to This amendment provides notice that read ‘‘Amendment Nos. 91–306 and the Deputy Assistant Judge Advocate 135–116.’’ DEPARTMENT OF TRANSPORTATION General (Admiralty and Maritime Law) Issued in Washington, DC, on May 19, of the Navy, under authority delegated Federal Aviation Administration 2009. by the Secretary of the Navy, has Pamela Hamilton-Powell, amended that certification to reflect that 14 CFR Parts 91 and 135 Director, Office of Rulemaking. the forward and aft anchor lights on [FR Doc. E9–12063 Filed 5–22–09; 8:45 am] USS Carl Vinson (CVN 70), previously [Docket No. FAA–2002–14002; Amendment BILLING CODE 4910–13–P certified as not in compliance with 72 Nos. 91–306 and 135–110] COLREGS, now comply with the RIN 2120–AJ46 applicable 72 COLREGS requirements, DEPARTMENT OF DEFENSE to wit: The two forward and the two aft Communication and Area Navigation anchor lights located below the flight Equipment (RNAV) Operations in Department of the Navy deck were removed and replaced by one Remote Locations and Mountainous single forward and one single aft anchor Terrain 32 CFR Part 706 light above the hull and near ship’s fore- AGENCY: Federal Aviation aft centerline, as required by Rules Certifications and Exemptions Under Administration (FAA), DOT. 21(a), 21(e), 30(a)(i), 30(a)(ii) and Annex the International Regulations for 1, Section 2(g). ACTION: Final rule; correction. Preventing Collisions at Sea, 1972 Moreover, it has been determined, in SUMMARY: This document corrects the AGENCY: Department of the Navy, DoD. accordance with 32 CFR parts 296 and amendment number in the final rule ACTION: Final rule. 701, that publication of this amendment published in the Federal Register on for public comment prior to adoption is Friday, May 1, 2009. That final rule SUMMARY: The Department of the Navy impracticable, unnecessary, and amends the regulations to allow the use is amending its certifications and contrary to public interest since it is of the published Obstacle Departure exemptions under the International based on technical findings that the Procedures (ODP) or an alternative Regulations for Preventing Collisions at placement of lights on this vessel in a procedure or route assigned by Air Sea, 1972 (72 COLREGS), to reflect that manner differently from that prescribed Traffic Control (ATC). Also, that final the Deputy Assistant Judge Advocate herein will adversely affect the vessel’s rule amends the requirements to General (Admiralty and Maritime Law) ability to perform its military functions. facilitate compliance and accurately of the Navy has determined that USS List of Subjects in 32 CFR Part 706 reflect operating conditions in areas in Carl Vinson (CVN 70) is a vessel of the which the terrain impedes Navy which, due to its special Marine safety, Navigation (Water), communications. construction and purpose, cannot and Vessels. DATES: This amendment becomes comply fully with certain provisions of ■ For the reasons set forth in the effective June 30, 2009. the 72 COLREGS without interfering preamble, amend part 706 of title 32 of FOR FURTHER INFORMATION CONTACT: For with its special function as a naval ship. The intended effect of this rule is to the Code of Federal Regulations as technical questions concerning this final follows: rule, contact Dennis Mills, Aviation warn mariners in waters where 72 COLREGS apply. Safety Inspector, Air Transportation PART 706—CERTIFICATIONS AND Division, Fight Standards Service, AFS– DATES: This rule is effective May 26, EXEMPTIONS UNDER THE 220, Federal Aviation Administration, 2009 and is applicable beginning May INTERNATIONAL REGULATIONS FOR 800 Independence Avenue, SW., 14, 2009. PREVENTING COLLISIONS AT SEA, Washington, DC 20591; telephone (202) FOR FURTHER INFORMATION CONTACT: 1972 493–4901 facsimile (202) 267–5229, Commander M. Robb Hyde, JAGC, U.S. e-mail [email protected]. For legal Navy, Deputy Assistant Judge Advocate ■ 1. The authority citation for 32 CFR questions concerning this final rule, General (Admiralty and Maritime Law), part 706 continues to read as follows: contact Robert Hawks, General Office of the Judge Advocate General, Authority: 33 U.S.C. 1605. Attorney, Office of the Chief Counsel, Department of the Navy, 1322 Patterson Regulations Division, AGC–240, Federal Ave., SE., Suite 3000, Washington Navy ■ 2. Section 706.2 is amended in Table Aviation Administration, 800 Yard, DC 20374–5066, telephone Two by revising the entry for USS CARL Independence Avenue, SW., number: 202–685–5040. VINSON (CVN 70) to read as follows:

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§ 706.2 Certifications of the Secretary of the Navy under Executive Order 11964 and 33 U.S.C. 1605. * * * * *

Forward AFT an- Side lights, Masthead anchor chor light, Side lights, distance Side lights, lights, dis- light, dis- Forward distance AFT an- distance forward of distance tance to tance anchor below chor light, below forward inboard of Vessel Number stbd of below light, num- flight dk in number of; flight dk in masthead ship’s keel in me- flight dk in ber of; meters; Rule meters; § 2 light in sides in ters; Rule meters; Rule Rule 21(e), 30(a)(ii) (g), Annex meters; meters; 21(a) § 2(K), 30(a)(i) Rule I § 3(b), § 3(b), Annex I 30(a)(ii) Annex I Annex I

******* USS CARL VINSON ...... CVN–70 ... 30.1 ...... 1 ...... 1 0.53 ......

*******

* * * * * material is also available for inspection mitigate the vehicular traffic congestion; Approved: May 14, 2009. or copying at the Docket Management however, the traffic congestion on M. Robb Hyde, Facility (M–30), U.S. Department of weekends in the afternoon continues to Transportation, West Building Ground Commander, JAGC, U.S. Navy Deputy be a major safety concern when Assistant Judge Advocate General (Admiralty Floor, Room W12–140, 1200 New Jersey motorists are exiting the Sandy Hook and Maritime Law) Avenue, SE., Washington, DC 20590, area and the Gateway National [FR Doc. E9–12049 Filed 5–22–09; 8:45 am] between 9 a.m. and 5 p.m., Monday Recreation Park. through Friday, except Federal holidays. BILLING CODE 3810–FF–P As a result, the National Park Service FOR FURTHER INFORMATION CONTACT: If and the New Jersey Department of you have questions on this rule, call Transportation requested a temporary Gary Kassof, Project Officer, First Coast DEPARTMENT OF HOMELAND deviation from the drawbridge operation Guard District; telephone (212) 668– SECURITY 7021. If you have questions on viewing regulations to help facilitate a balance between vehicular traffic and marine Coast Guard the docket, call Renee V. Wright, Program Manager, Docket Operations, traffic during the summer boating season. 33 CFR Part 117 telephone 202–366–9826. SUPPLEMENTARY INFORMATION: The Route Under this temporary deviation, in [Docket No. USCG–2009–0332] 36 Bridge has a vertical clearance in the effect from May 23, 2009 through September 7, 2009, the Route 36 Bridge Drawbridge Operation Regulations; closed position of 35 feet at mean high Shrewsbury River, Highlands, NJ water and 39 feet at mean low water. at mile 1.8, across the Shrewsbury The existing drawbridge operation River, shall operate as follows: AGENCY: Coast Guard, DHS. regulations are listed at 33 CFR Monday through Friday, the draw ACTION: Notice of temporary deviation 117.755(a). The bridge presently opens shall open on signal, from 7 a.m. to 8 from regulations. on the hour and half hour between 7 p.m., on the hour and half hour only. a.m. and 8 p.m. from May 15 through From 8 p.m. to 11 p.m. the draw shall SUMMARY: The Commander, First Coast October 15, and on signal from 8 p.m. open on signal. From 11 p.m. to 7 a.m. Guard District, has issued a temporary to 11 p.m. From 11 p.m. to 7 a.m. the deviation from the regulation governing bridge opens on signal after a four-hour the draw shall open on signal after at the operation of the Route 36 Bridge, advance notice is given. least a four-hour notice is given by across the Shrewsbury River at mile 1.8, The Shrewsbury River is navigated calling the number posted at the bridge. at Highlands, New Jersey. This predominantly by recreational power Saturday, Sunday and holidays, the deviation will allow the bridge to open boats and sail boats of various sizes. draw shall open on signal from 7 a.m. on signal for all marine traffic once an Currently only one lane of vehicular through noon, on the hour and half hour on weekends and holidays from 12 traffic is open northbound on the Route hour. From noon through 8 p.m., the p.m. to 8 p.m. during the boating 36 Bridge due to the Highlands Bridge draw shall open on signal once an hour, season. replacement project. on the hour only. From 8 p.m. to 11 As a result of the vehicular travel lane DATES: p.m. the draw shall open on signal. This deviation is effective from closures traffic congestion has become a May 23, 2009, through September 7, From 11 p.m. to 7 a.m. the draw shall major concern to motorists and local open on signal after at least a four-hour 2009. officials. The nearby Gateway National advance notice is given by calling the ADDRESSES: Documents indicated in this Recreation Area, operated by the number posted at the bridge. preamble as being available in the National Park Service, has been docket are part of docket USCG–2009– particularly impacted on weekends by In accordance with 33 CFR 117.35(e), 0332 and are available Online at traffic delays as a result of the bridge the bridge must return to its regular http://www.regulations.gov, selecting construction and drawbridge openings operating schedule immediately at the the Advanced Docket Search option on for vessel traffic. end of the designated time period. This the right side of the screen, inserting The National Park Service, the New deviation from the operating regulations USCG–2009–0332 in the Docket ID box, Jersey Department of Transportation, is authorized under 33 CFR 117.35. pressing Enter, and then clicking on the and local officials have made various item in the Docket ID column. This adjustments to traffic control to help

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Dated: May 13, 2009. telephone (619) 278–7262. If you have of the Port, or his designated Gary Kassof, questions on viewing the docket, call representative. Renee V. Wright, Program Manager, Bridge Program Manager, First Coast Guard Regulatory Analyses District. Docket Operations, telephone 202–366– [FR Doc. E9–12159 Filed 5–22–09; 8:45 am] 9826. We developed this rule after considering numerous statutes and BILLING CODE 4910–15–P SUPPLEMENTARY INFORMATION: executive orders related to rulemaking. Regulatory Information Below we summarize our analyses DEPARTMENT OF HOMELAND The Coast Guard is issuing this based on 13 of these statutes or SECURITY temporary final rule without prior executive orders. notice and opportunity to comment Regulatory Planning and Review Coast Guard pursuant to authority under section 4(a) This rule is not a significant of the Administrative Procedure Act regulatory action under section 3(f) of 33 CFR Part 165 (APA) (5 U.S.C. 553(b)). This provision Executive Order 12866, Regulatory [Docket No. USCG–2009–0266] authorizes an agency to issue a rule Planning and Review, and does not without prior notice and opportunity to RIN 1625–AA00 require an assessment of potential costs comment when the agency for good and benefits under section 6(a)(3) of that cause finds that those procedures are Safety Zone; Sea World May Order. The Office of Management and ‘‘impracticable, unnecessary, or contrary Fireworks; Mission Bay, San Diego, CA Budget has not reviewed it under that to the public interest.’’ Under 5 U.S.C. AGENCY: Coast Guard, DHS. Order. 553(b)(B), the Coast Guard finds that We expect the economic impact of ACTION: Temporary final rule. good cause exists for not publishing a this rule to be so minimal that a full notice of proposed rulemaking (NPRM) SUMMARY: The Coast Guard is Regulatory Evaluation is unnecessary. with respect to this rule because This determination is based on the size establishing a safety zone, on the immediate action is necessary to ensure navigable waters of Mission Bay in and location of the safety zone. the safety of vessels, spectators, Commercial vessels will not be support of the Sea World May participants, and others in the vicinity Fireworks. This safety zone is necessary hindered by the safety zone. of the marine event on the dates and Recreational vessels will not be allowed to provide for the safety of the times this rule will be in effect and participants, crew, spectators, to transit through the designated safety delay would be contrary to the public zone during the specified times. participating vessels, and other vessels interest. and users of the waterway. Persons and Under 5 U.S.C. 553(d)(3), the Coast Small Entities vessels are prohibited from entering Guard finds that good cause exists for into, transiting through, or anchoring Under the Regulatory Flexibility Act making this rule effective less than 30 within this safety zone unless (5 U.S.C. 601–612), we have considered days after publication in the Federal authorized by the Captain of the Port, or whether this rule would have a Register because delaying the effective his designated representative. significant economic impact on a date would be contrary to the public substantial number of small entities. DATES: This rule is effective from 8 p.m. interest, since immediate action is The term ‘‘small entities’’ comprises on May 30, 2009 through 10 p.m. on needed to ensure the public’s safety. small businesses, not-for-profit May 31, 2009. Background and Purpose organizations that are independently ADDRESSES: Documents indicated in this owned and operated and are not preamble as being available in the Sea World is sponsoring the Sea dominant in their fields, and docket are part of docket USCG–2009– World Spring Nights Fireworks, which governmental jurisdictions with 0266 and are available online by going will include a fireworks presentation populations of less than 50,000. to http://www.regulations.gov, selecting from a barge in Mission Bay. The safety The Coast Guard certifies under 5 the Advanced Docket Search option on zone will be a 600-foot radius around U.S.C. 605(b) that this rule will not have the right side of the screen, inserting the barge in approximate position a significant economic impact on a USCG–2009–0266 in the Docket ID box, 32°46′03″ N, 117°13′11″ W. This substantial number of small entities. pressing Enter, and then clicking on the temporary safety zone is necessary to This rule will not have a significant item in the Docket ID column. They are provide for the safety of the crew, economic impact on a substantial also available for inspection or copying spectators, participants, and other number of small entities for the at two locations: The Docket vessels and users of the waterway. following reasons: Vessel traffic can Management Facility (M–30), U.S. Discussion of Rule pass safely around the safety zone. Department of Transportation, West Before the effective period, the coast Building Ground Floor, Room W12–140, The Coast Guard is establishing a Guard will publish a local notice to 1200 New Jersey Avenue, SE., safety zone that will be enforced from 8 mariners (LNM) and will issue Washington, DC 20590, between 9 a.m. p.m. to 10 p.m. on May 30, 2009 and broadcast notice to mariners (BNM) and 5 p.m., Monday through Friday, May 31, 2009. The limits of the safety alerts via marine channel 16 VHF before except Federal holidays, and the Coast zone will be a 600-foot radius around the safety zone is enforced. Guard Sector San Diego, 2710 N. Harbor the barge in approximate position Drive, San Diego, CA 92101–1064 32°46′03″ N, 117°13′11″ W. The safety Assistance for Small Entities between 8 a.m. and 3 p.m., Monday zone is necessary to provide for the Under section 213(a) of the Small through Friday, except Federal holidays. safety of the crew, spectators, Business Regulatory Enforcement FOR FURTHER INFORMATION CONTACT: If participants, and other vessels and users Fairness Act of 1996 (Pub. L. 104–121), you have questions on this temporary of the waterway. Persons and vessels are we offer to assist small entities in rule, call Petty Officer Shane Jackson, prohibited from entering into, transiting understanding the rule so that they can Waterways Management, U.S. Coast through, or anchoring within this safety better evaluate its effects on them and Guard Sector San Diego, CA at zone unless authorized by the Captain participate in the rulemaking process.

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Small businesses may send comments Protection of Children Management Directive 023–01 and on the actions of Federal employees We have analyzed this rule under Commandant Instruction M16475.lD, who enforce, or otherwise determine Executive Order 13045, Protection of which guide the Coast Guard in compliance with, Federal regulations to Children from Environmental Health complying with the National the Small Business and Agriculture Risks and Safety Risks. This rule is not Environmental Policy Act of 1969 Regulatory Enforcement Ombudsman an economically significant rule and (NEPA) (42 U.S.C. 4321–4370f), and and the Regional Small Business does not create an environmental risk to have concluded this action is one of a Regulatory Fairness Boards. The health or risk to safety that may category of actions which do not Ombudsman evaluates these actions disproportionately affect children. individually or cumulatively have a annually and rates each agency’s significant effect on the human Indian Tribal Governments responsiveness to small business. If you environment. This rule is categorically wish to comment on actions by This rule does not have Tribal excluded, under figure 2–1, paragraph employees of the Coast Guard, call implications under Executive Order (34)(g), of the Instruction. This rule 1–888–REG–FAIR (1–888–734–3247). 13175, Consultation and Coordination involves the establishment of a The Coast Guard will not retaliate with Indian Tribal Governments, temporary safety zone around a against small entities that question or because it does not have a substantial fireworks barge. An environmental complain about this rule or any policy direct effect on one or more Indian analysis checklist and a categorical or action of the Coast Guard. Tribes, on the relationship between the exclusion determination are available in Federal Government and Indian Tribes, the docket where indicated under Collection of Information or on the distribution of power and ADDRESSES. responsibilities between the Federal This rule calls for no new collection Government and Indian Tribes. List of Subjects in 33 CFR Part 165 of information under the Paperwork Harbors, Marine safety, Navigation Reduction Act of 1995 (44 U.S.C. 3501– Energy Effects (water), Reporting and recordkeeping 3520). We have analyzed this rule under requirements, Security measures, Executive Order 13211, Actions Federalism Waterways. Concerning Regulations That ■ For the reasons discussed in the A rule has implications for federalism Significantly Affect Energy Supply, preamble, the Coast Guard amends 33 under Executive Order 13132, Distribution, or Use. We have CFR part 165 as follows: Federalism, if it has a substantial direct determined that it is not a ‘‘significant effect on State or local governments and energy action’’ under that order because PART 165—REGULATED NAVIGATION would either preempt State law or it is not a ‘‘significant regulatory action’’ AREAS AND LIMITED ACCESS AREAS impose a substantial direct cost of under Executive Order 12866 and is not likely to have a significant adverse effect ■ 1. The authority citation for part 165 compliance on them. We have analyzed continues to read as follows: this rule under that Order and have on the supply, distribution, or use of determined that it does not have energy. The Administrator of the Office Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; implications for federalism. of Information and Regulatory Affairs has not designated it as a significant 33 CFR 1.05–1, 6.04–1, 6.04–6, and 160.5; Unfunded Mandates Reform Act energy action. Therefore, it does not Public Law 107–295, 116 Stat. 2064; require a Statement of Energy Effects Department of Homeland Security Delegation No. 0170.1. The Unfunded Mandates Reform Act under Executive Order 13211. of 1995 (2 U.S.C. 1531–1538) requires ■ Technical Standards 2. Add new temporary zone Federal agencies to assess the effects of § 165.T11–186 to read as follows: their discretionary regulatory actions. In The National Technology Transfer particular, the Act addresses actions and Advancement Act (NTTAA) (15 § 165.T11–186 Safety zone; Sea World May that may result in the expenditure by a U.S.C. 272 note) directs agencies to use Fireworks; Mission Bay, San Diego, State, local, or Tribal government, in the voluntary consensus standards in their California. aggregate, or by the private sector of regulatory activities unless the agency (a) Location. The limits of the safety $100,000,000 or more in any one year. provides Congress, through the Office of zone will include a 600 foot radius Though this rule will not result in such Management and Budget, with an around the barge in approximate an expenditure, we do discuss the explanation of why using these position 32°46′03″ N, 117°13′11″ W. effects of this rule elsewhere in this standards would be inconsistent with (b) Enforcement Period. This section preamble. applicable law or otherwise impractical. will be enforced from 8 p.m. to 10 p.m. Voluntary consensus standards are on May 30, 2009 and May 31, 2009. If Taking of Private Property technical standards (e.g., specifications the event concludes prior to the of materials, performance, design, or scheduled termination time, the Captain This rule will not effect a taking of of the Port will cease enforcement of private property or otherwise have operation; test methods; sampling procedures; and related management this safety zone and will announce that taking implications under Executive fact via Broadcast Notice to Mariners. Order 12630, Governmental Actions and systems practices) that are developed or adopted by voluntary consensus (c) Definitions. The following Interference with Constitutionally definition applies to this section: Protected Property Rights. standards bodies. This rule does not use technical designated representative, means any Civil Justice Reform standards. Therefore, we did not commissioned, warrant, and petty consider the use of voluntary consensus officers of the Coast Guard on board This rule meets applicable standards standards. Coast Guard, Coast Guard Auxiliary, in sections 3(a) and 3(b)(2) of Executive and local, State, and Federal law Order 12988, Civil Justice Reform, to Environment enforcement vessels who have been minimize litigation, eliminate We have analyzed this rule under authorized to act on the behalf of the ambiguity, and reduce burden. Department of Homeland Security Captain of the Port.

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(d) Regulations. (1) Entry into, transit docket are part of docket USCG–2009– to the potential hazards posed by the through or anchoring within this safety 0300 and are available online by going exercises. zone is prohibited unless authorized by to http://www.regulations.gov, selecting For the same reasons, the Coast Guard the Captain of the Port of San Diego or the Advanced Docket Search option on also finds under 5 U.S.C. 553(d)(3) that his designated on-scene representative. the right side of the screen, inserting good cause exists for making this rule (2) Mariners requesting permission to USCG–2009–0300 in the Docket ID box, effective less than 30 days after transit through the safety zone may pressing Enter, and then clicking on the publication in the Federal Register. request authorization to do so from the item in the Docket ID column. They are Sector San Diego Command Center. The also available for inspection or copying Background and Purpose Command Center may be contacted on at the Docket Management Facility (M– U.S. Coast Guard Air Station San VHF–FM Channel 16. 30), U.S. Department of Transportation, Francisco will be conducting airborne (3) All persons and vessels shall West Building Ground Floor, Room use of force training flights on May 5, comply with the instructions of the W12–140, 1200 New Jersey Avenue, SE., 8, 19, 22; June 9, 11, 30; July 2, 14, 17, Coast Guard Captain of the Port or the Washington, DC 20590, between 9 a.m. 28, 31; and every Tuesday, Thursday, designated representative. and 5 p.m., Monday through Friday, and Friday from August 1, 2009 to (4) Upon being hailed by U.S. Coast except Federal holidays. Guard patrol personnel by siren, radio, December 31, 2009 in the waters of San FOR FURTHER INFORMATION CONTACT: If Pablo Bay, California. The exercises are flashing light, or other means, the you have questions on this temporary operator of a vessel shall proceed as designed to train and test Coast Guard rule, call or e-mail Lieutenant Junior personnel in the judgment and decision- directed. Grade Simone Mausz U.S. Coast Guard (5) The Coast Guard may be assisted making processes necessary to safely Sector San Francisco; telephone (415) by other Federal, State, or local and effectively employ use of force 399–7442, e-mail, agencies. during homeland security incidents. [email protected]. If you have The training will generally involve the Dated: May 5, 2009. questions on viewing the docket, call use of Coast Guard helicopters to T.H. Farris, Renee V. Wright, Program Manager, intercept fast-moving, evasive small Captain, U.S. Coast Guard, Captain of the Docket Operations, telephone 202–366– boats on the water. The helicopter crews Port San Diego. 9826. will fire weapons at the small boats [FR Doc. E9–12061 Filed 5–22–09; 8:45 am] SUPPLEMENTARY INFORMATION: using blank ammunition and catch bags BILLING CODE 4910–15–P Regulatory Information to ensure that cartridges and other debris do not fall to the water. This We did not publish a notice of safety zone is issued to establish a DEPARTMENT OF HOMELAND proposed rulemaking (NPRM) for this temporary restricted area in San Pablo SECURITY regulation. The Coast Guard is Bay around the training site. establishing this safety zone to conduct Coast Guard mission-essential training directly Discussion of Rule related to military operations and The Coast Guard is establishing a 33 CFR Part 165 national security. Accordingly, based on temporary safety zone in the navigable the military function exception to the [Docket No. USCG–2009–0300] waters of San Pablo Bay, California. Administrative Procedure Act, 5 U.S.C. During the exercises, the safety zone RIN 1625–AA00 553(a)(1), notice and comment applies to the waters, from the surface rulemaking under 5 U.S.C. 553(b) and Safety Zone; Use of Force Training to the seafloor, enclosed within lines an effective date of 30 days after Flights, San Pablo Bay, CA connecting the following points: publication under 5 U.S.C. 553(d) are Beginning at 38°05′11″ N, 122°22′10″ W; AGENCY: Coast Guard, DHS. not required for this rule. thence to 38°03′44″ N, 122°20′12″ W; ACTION: Even if the Coast Guard were required Temporary final rule. thence to 38°00′41″ N, 122°25′28″ W; to comply with the notice and comment thence to 38°01′45″ N, 122°26′38″ W; SUMMARY: The Coast Guard is provisions of the Administrative thence back to 38°05′11″ N, 122°22′10″ establishing a temporary safety zone in Procedure Act, under 5 U.S.C. 553(b)(B), W (NAD 83). the navigable waters of San Pablo Bay, we find that good cause exists for not California for training purposes. This publishing an NPRM. This exercise is The effect of the temporary safety safety zone is established to ensure the necessary to train and qualify Coast zone will be to restrict navigation in the safety of the public and participating Guard personnel in the use of weapons. vicinity of the exercises. Except for crews from potential hazards associated This training is necessary to ensure that persons or vessels authorized by the with fast-moving Coast Guard small Coast Guard personnel are properly Coast Guard Patrol Commander, no boats taking part in the exercises. Blank trained and qualified to conduct person or vessel may enter or remain in ammunition will be used during these military and national security the restricted area. These regulations are exercises. Unauthorized persons or operations to secure ports and intended to keep the public a safe vessels are prohibited from entering waterways. Failure to conduct this distance away from the participating into, transiting through, or remaining in required training at this time will result small boats and to ensure the safety of the safety zone without permission of in a lapse in personnel qualifications transiting vessels. the Captain of the Port San Francisco or and, consequently, impair the ability of Regulatory Analyses his designated representative. Coast Guard personnel to carry out DATES: This safety zone is effective from important national security functions at We developed this rule after May 5, 2009, to December 31, 2009. See any time. It is impracticable, considering numerous statutes and SUPPLEMENTARY INFORMATION section for unnecessary, and contrary to the public executive orders related to rulemaking. dates of actual training events. interest to delay the issuance of this Below we summarize our analyses ADDRESSES: Documents indicated in this rule. Further, any delay in the effective based on 13 of these statutes or preamble as being available in the date of this rule would expose mariners executive orders.

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Regulatory Planning and Review the Small Business and Agriculture does not create an environmental risk to This rule is not a significant Regulatory Enforcement Ombudsman health or risk to safety that may regulatory action under section 3(f) of and the Regional Small Business disproportionately affect children. Regulatory Fairness Boards. The Executive Order 12866, Regulatory Indian Tribal Governments Planning and Review, and does not Ombudsman evaluates these actions annually and rates each agency’s This rule does not have tribal require an assessment of potential costs implications under Executive Order and benefits under section 6(a)(3) of that responsiveness to small business. If you wish to comment on actions by 13175, Consultation and Coordination Order. The Office of Management and with Indian Tribal Governments, Budget has not reviewed it under that employees of the Coast Guard, call 1– 888–REG–FAIR (1–888–734–3247). The because it does not have a substantial Order. direct effect on one or more Indian Although this rule restricts access to Coast Guard will not retaliate against small entities that question or complain tribes, on the relationship between the the waters encompassed by the safety Federal Government and Indian tribes, zone, the effect of this rule will not be about this rule or any policy or action of the Coast Guard. or on the distribution of power and significant because the local waterway responsibilities between the Federal users will be notified via public Collection of Information Government and Indian tribes. Broadcast Notice to Mariners to ensure This rule calls for no new collection the safety zone will result in minimum Energy Effects of information under the Paperwork impact. The entities most likely to be Reduction Act of 1995 (44 U.S.C. 3501– We have analyzed this rule under affected are pleasure craft engaged in 3520). Executive Order 13211, Actions recreational activities. Concerning Regulations That Federalism Small Entities Significantly Affect Energy Supply, A rule has implications for federalism Distribution, or Use. We have Under the Regulatory Flexibility Act under Executive Order 13132, determined that it is not a ‘‘significant (5 U.S.C. 601–612), we have considered Federalism, if it has a substantial direct energy action’’ under that order because whether this rule would have a effect on State or local governments and it is not a ‘‘significant regulatory action’’ significant economic impact on a would either preempt State law or under Executive Order 12866 and is not substantial number of small entities. impose a substantial direct cost of likely to have a significant adverse effect The term ‘‘small entities’’ comprises compliance on them. We have analyzed on the supply, distribution, or use of small businesses, not-for-profit this rule under that Order and have energy. The Administrator of the Office organizations that are independently determined that it does not have of Information and Regulatory Affairs owned and operated and are not implications for federalism. has not designated it as a significant dominant in their fields, and energy action. Therefore, it does not governmental jurisdictions with Unfunded Mandates Reform Act require a Statement of Energy Effects populations of less than 50,000. The Unfunded Mandates Reform Act under Executive Order 13211. The Coast Guard certifies under 5 of 1995 (2 U.S.C. 1531–1538) requires Technical Standards U.S.C. 605(b) that this rule will not have Federal agencies to assess the effects of a significant economic impact on a their discretionary regulatory actions. In The National Technology Transfer substantial number of small entities. particular, the Act addresses actions and Advancement Act (NTTAA) (15 This rule may affect owners and that may result in the expenditure by a U.S.C. 272 note) directs agencies to use operators of pleasure craft engaged in State, local, or tribal government, in the voluntary consensus standards in their recreational activities and sightseeing. aggregate, or by the private sector of regulatory activities unless the agency This rule will not have a significant $100,000,000 or more in any one year. provides Congress, through the Office of economic impact on a substantial Though this rule will not result in such Management and Budget, with an number of small entities for several an expenditure, we do discuss the explanation of why using these reasons: (i) Vessel traffic can pass safely effects of this rule elsewhere in this standards would be inconsistent with around the area; (ii) vessels engaged in preamble. applicable law or otherwise impractical. recreational activities and sightseeing Voluntary consensus standards are have ample space outside of the effected Taking of Private Property technical standards (e.g., specifications portion of San Pablo Bay to engage in This rule will not effect a taking of of materials, performance, design, or these activities; (iii) this rule will private property or otherwise have operation; test methods; sampling encompass only a small portion of the taking implications under Executive procedures; and related management waterway for a limited period of time; Order 12630, Governmental Actions and systems practices) that are developed or and, (iv) the maritime public will be Interference with Constitutionally adopted by voluntary consensus advised in advance of this safety zone Protected Property Rights. standards bodies. via Broadcast Notice to Mariners. This rule does not use technical Civil Justice Reform Assistance for Small Entities standards. Therefore, we did not This rule meets applicable standards consider the use of voluntary consensus Under section 213(a) of the Small in sections 3(a) and 3(b)(2) of Executive standards. Business Regulatory Enforcement Order 12988, Civil Justice Reform, to Environment Fairness Act of 1996 (Pub. L. 104–121), minimize litigation, eliminate we offer to assist small entities in ambiguity, and reduce burden. We have analyzed this rule under understanding the rule so that they can Department of Homeland Security better evaluate its effects on them and Protection of Children Management Directive 0023.1 and participate in the rulemaking process. We have analyzed this rule under Commandant Instruction M16475.lD, Small businesses may send comments Executive Order 13045, Protection of which guide the Coast Guard in on the actions of Federal employees Children from Environmental Health complying with the National who enforce, or otherwise determine Risks and Safety Risks. This rule is not Environmental Policy Act of 1969 compliance with, Federal regulations to an economically significant rule and (NEPA) (42 U.S.C. 4321–4370f), and

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have concluded this action is one of a permitted by the COTP or the COTP’s pressing Enter, and then clicking on the category of actions which do not designated representative. item in the Docket ID column. They are individually or cumulatively have a (3) Vessel operators desiring to enter also available for inspection or copying significant effect on the human or operate within the safety zone must at two locations: The Docket environment. This rule is categorically contact the COTP or the COTP’s Management Facility (M–30), U.S. excluded, under figure 2–1, paragraph representative to obtain permission to Department of Transportation, West (34)(g), of the Instruction, from further do so. Vessel operators given permission Building Ground Floor, Room W12–140, environmental documentation because to enter or operate in the safety zone 1200 New Jersey Avenue, SE., this rule establishes a safety zone. must comply with all directions given to Washington, DC 20590, between 9 a.m. An environmental analysis checklist them by the COTP or the COTP’s and 5 p.m., Monday through Friday, and a categorical exclusion designated representative. Persons and except Federal holidays, and the Coast determination are available in the vessels may request permission to enter Guard Sector San Diego, 2710 N. Harbor docket where indicated under the safety zone by contacting the Patrol Drive, San Diego, CA 92101–1064 ADDRESSES. Commander on VHF–16 or through the between 8 a.m. and 3 p.m., Monday Coast Guard Command Center at through Friday, except Federal holidays List of Subjects in 33 CFR Part 165 telephone (415) 399–3547. between 8 a.m. and 3 p.m., Monday Harbors, Marine safety, Navigation (d) Effective period. This section is through Friday, except Federal holidays. (water), Reporting and recordkeeping effective from 9 a.m. to 11 p.m., each FOR FURTHER INFORMATION CONTACT: If requirements, Security measures, day, May 5, 8, 19, 22; June 9, 11, 30; July you have questions on this temporary Waterways. 2, 14, 17, 28, 31; and every Tuesday, rule, call Petty Officer Shane Jackson, Thursday, and Friday from August 1, ■ For the reasons discussed in the Waterways Management, U.S. Coast 2009 to December 31, 2009. preamble, the Coast Guard amends 33 Guard Sector San Diego, CA at CFR part 165 as follows: Dated: May 1, 2009. telephone (619) 278–7262. If you have P.M. Gugg, questions on viewing the docket, call PART 165—REGULATED NAVIGATION Captain, U.S. Coast Guard, Captain of the Renee V. Wright, Program Manager, AREAS AND LIMITED ACCESS AREAS Port San Francisco. Docket Operations, telephone 202–366– 9826. [FR Doc. E9–12064 Filed 5–22–09; 8:45 am] ■ 1. The authority citation for part 165 SUPPLEMENTARY INFORMATION: continues to read as follows: BILLING CODE 4910–15–P Regulatory Information Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; DEPARTMENT OF HOMELAND The Coast Guard is issuing this 33 CFR 1.05–1, 6.04–1, 6.04–6, and 160.5; SECURITY temporary final rule without prior Pub. L. 107–295, 116 Stat. 2064; Department notice and opportunity to comment of Homeland Security Delegation No. 0170.1. Coast Guard pursuant to authority under section 4(a) of the Administrative Procedure Act ■ 2. Add temporary § 165.T11–194 to 33 CFR Part 165 (APA) (5 U.S.C. 553(b)). This provision read as follows: authorizes an agency to issue a rule [Docket No. USCG–2009–0242] § 165.T11–194 Safety Zone; Coast Guard without prior notice and opportunity to Air Station San Francisco Airborne Use of RIN 1625–AA00 comment when the agency for good Force Judgmental Training Flights. cause finds that those procedures are (a) Location. The following area is a Safety Zone; Copper Canyon Clean Up; ‘‘impracticable, unnecessary, or contrary safety zone: All waters of San Pablo Bay, Lake Havasu, AZ to the public interest.’’ Under 5 U.S.C. 553(b)(B), the Coast Guard finds that California from surface to bottom, AGENCY: Coast Guard, DHS. good cause exists for not publishing a encompassed by lines connecting the ACTION: Temporary final rule. following points: Beginning at 38°05′11″ notice of proposed rulemaking (NPRM) N, 122°22′10″ W; thence to 38°03′44″ N, SUMMARY: The Coast Guard is with respect to this rule because 122°20′12″ W; thence to 38°00′41″ N, establishing a safety zone upon the immediate action is necessary to ensure 122°25′28″ W; thence to 38°01′45″ N, navigable waters of Lake Havasu in the safety of spectators, crew, 122°26′38″ W; thence back to 38°05′11″ support of the Copper Canyon Clean up. participants, and other users and vessels N, 122°22′10″ W (NAD 83). This safety zone is necessary to provide of the waterway in the vicinity of the event on the dates and times this rule (b) Definitions. As used in this for the safety of the participants, crew, will be in effect and delay would be section, ‘‘designated representative’’ spectators, participating vessels, and other vessels and users of the waterway. contrary to the public interest. means a Coast Guard Patrol Under 5 U.S.C. 553(d)(3), the Coast Persons and vessels are prohibited from Commander, including a Coast Guard Guard finds that good cause exists for entering into, transiting through, or coxswain, petty officer, or other officer making this rule effective less than 30 anchoring within this safety zone unless operating a Coast Guard vessel or a days after publication in the Federal authorized by the Captain of the Port, or Federal, State, or local officer assisting Register. Any delay in the effective date his designated representative. the Captain of the Port (COTP) San of this rule would expose the divers to Francisco in the enforcement of the DATES: This rule is effective from 7 a.m. danger from transiting vessels. safety zone. through 11 a.m. on May 26, 2009. (c) Regulations. (1) Under the general ADDRESSES: Documents indicated in this Background and Purpose regulations in § 165.23 of this title, entry preamble as being available in the The Lake Havasu Divers Association into, transiting, or anchoring within this docket are part of docket USCG–2009– is sponsoring the Copper Canyon Clean safety zone is prohibited unless 0242 and are available online by going up, which will involve 40 divers authorized by the COTP or the COTP’s to http://www.regulations.gov, selecting cleaning the river bottom in Lake designated representative. the Advanced Docket Search option on Havasu. The safety zone will be a 500 (2) The safety zone is closed to all the right side of the screen, inserting foot radius around the divers as they vessel traffic, except as may be USCG–2009–0242 in the Docket ID box, move along the river bottom.

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This temporary safety zone is a significant economic impact on a Though this rule will not result in such necessary to prevent vessels from substantial number of small entities. an expenditure, we do discuss the transiting the area and to protect the This rule will not have a significant effects of this rule elsewhere in this divers and equipment from potential economic impact on a substantial preamble. damage and injury. number of small entities for the following reasons: Vessel traffic can Taking of Private Property Discussion of Rule pass safely around the safety zone. This rule will not effect a taking of The Coast Guard is establishing a Before the effective period, the coast private property or otherwise have safety zone that will be enforced from 7 Guard will publish a local notice to taking implications under Executive a.m. to 11 a.m. on May 26, 2009. The mariners (LNM) and will issue Order 12630, Governmental Actions and limits of the safety zone will include all broadcast notice to mariners (BNM) Interference with Constitutionally waters of Copper Canyon extending alerts via marine channel 16 VHF before Protected Property Rights. from the surface to the river bottom, the safety zone is enforced. Civil Justice Reform within 500 feet of the divers. The safety Assistance for Small Entities zone is necessary to provide for the This rule meets applicable standards safety of the crew, spectators, Under section 213(a) of the Small in sections 3(a) and 3(b)(2) of Executive participants, and other vessels and users Business Regulatory Enforcement Order 12988, Civil Justice Reform, to of the waterway. Persons and vessels are Fairness Act of 1996 (Pub. L. 104–121), minimize litigation, eliminate prohibited from entering into, transiting we offer to assist small entities in ambiguity, and reduce burden. understanding the rule so that they can through, or anchoring within this safety Protection of Children zone unless authorized by the Captain better evaluate its effects on them and of the Port, or his designated participate in the rulemaking process. We have analyzed this rule under representative. Small businesses may send comments Executive Order 13045, Protection of on the actions of Federal employees Children from Environmental Health Regulatory Analyses who enforce, or otherwise determine Risks and Safety Risks. This rule is not We developed this rule after compliance with, Federal regulations to an economically significant rule and considering numerous statutes and the Small Business and Agriculture does not create an environmental risk to executive orders related to rulemaking. Regulatory Enforcement Ombudsman health or risk to safety that may Below we summarize our analyses and the Regional Small Business disproportionately affect children. based on 13 of these statutes or Regulatory Fairness Boards. The Indian Tribal Governments executive orders. Ombudsman evaluates these actions annually and rates each agency’s This rule does not have tribal Regulatory Planning and Review responsiveness to small business. If you implications under Executive Order 13175, Consultation and Coordination This rule is not a significant wish to comment on actions by With Indian Tribal Governments, regulatory action under section 3(f) of employees of the Coast Guard, call because it does not have a substantial Executive Order 12866, Regulatory 1–888–REG–FAIR (1–888–734–3247). direct effect on one or more Indian Planning and Review, and does not The Coast Guard will not retaliate tribes, on the relationship between the require an assessment of potential costs against small entities that question or Federal Government and Indian tribes, and benefits under section 6(a)(3) of that complain about this rule or any policy or on the distribution of power and Order. The Office of Management and or action of the Coast Guard. responsibilities between the Federal Budget has not reviewed it under that Collection of Information Government and Indian tribes. Order. This rule calls for no new collection Energy Effects We expect the economic impact of of information under the Paperwork this rule to be so minimal that a full Reduction Act of 1995 (44 U.S.C. 3501– We have analyzed this rule under Regulatory Evaluation is unnecessary. 3520). Executive Order 13211, Actions This determination is based on the size Concerning Regulations that and location of the safety zone. Federalism Significantly Affect Energy Supply, Commercial vessels will not be A rule has implications for federalism Distribution, or Use. We have hindered by the safety zone. under Executive Order 13132, determined that it is not a ‘‘significant Recreational vessels will not be allowed Federalism, if it has a substantial direct energy action’’ under that order because to transit through the designated safety effect on State or local governments and it is not a ‘‘significant regulatory action’’ zone during the specified times. would either preempt State law or under Executive Order 12866 and is not Small Entities impose a substantial direct cost of likely to have a significant adverse effect compliance on them. We have analyzed on the supply, distribution, or use of Under the Regulatory Flexibility Act this rule under that Order and have energy. The Administrator of the Office (5 U.S.C. 601–612), we have considered determined that it does not have of Information and Regulatory Affairs whether this rule would have a implications for federalism. has not designated it as a significant significant economic impact on a energy action. Therefore, it does not Unfunded Mandates Reform Act substantial number of small entities. require a Statement of Energy Effects The term ‘‘small entities’’ comprises The Unfunded Mandates Reform Act under Executive Order 13211. small businesses, not-for-profit of 1995 (2 U.S.C. 1531–1538) requires organizations that are independently Federal agencies to assess the effects of Technical Standards owned and operated and are not their discretionary regulatory actions. In The National Technology Transfer dominant in their fields, and particular, the Act addresses actions and Advancement Act (NTTAA) (15 governmental jurisdictions with that may result in the expenditure by a U.S.C. 272 note) directs agencies to use populations of less than 50,000. State, local, or tribal government, in the voluntary consensus standards in their The Coast Guard certifies under 5 aggregate, or by the private sector of regulatory activities unless the agency U.S.C. 605(b) that this rule will not have $100,000,000 or more in any one year. provides Congress, through the Office of

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Management and Budget, with an Canyon extending from the surface to DATE: Effective Date: May 26, 2009. explanation of why using these the river bottom, within 500 feet of the FOR FURTHER INFORMATION CONTACT: standards would be inconsistent with divers. Jacqueline Lewis, (215) 814–2037, or by applicable law or otherwise impractical. (b) Enforcement Period. This section e-mail at [email protected]. will be enforced from 7 a.m. to 11 a.m. Voluntary consensus standards are SUPPLEMENTARY INFORMATION: on May 26, 2009. If the event concludes technical standards (e.g., specifications Throughout this document wherever prior to the scheduled termination time, of materials, performance, design, or ‘‘we’’ or ‘‘our’’ are used we mean EPA. the Captain of the Port will cease operation; test methods; sampling On March 25, 2009 (74 FR 12556), we enforcement of this safety zone. procedures; and related management published a final rulemaking action systems practices) that are developed or (c) Definitions. The following definition applies to this section: announcing our approval of State adopted by voluntary consensus Implementation Plan (SIP) revisions to standards bodies. Designated representative, means any commissioned, warrant, and petty Maryland regulations (COMAR This rule does not use technical 26.11.19.02G and COMAR 26.11.06.06) standards. Therefore, we did not officers of the Coast Guard on board Coast Guard, Coast Guard Auxiliary, governing VOC RACT. In that consider the use of voluntary consensus document, we provided an incorrect standards. and local, state, and federal law enforcement vessels who have been amendatory instruction on page 12559 Environment authorized to act on the behalf of the regarding the removal of nonexistent We have analyzed this rule under Captain of the Port. tables in paragraphs 52.1072(d) and Department of Homeland Security (d) Regulations. (1) Entry into, transit 52.1073(e). This action corrects the Management Directive 0023–01 and through or anchoring within this safety erroneous amendatory instruction in Commandant Instruction M16475.lD, zone is prohibited unless authorized by part 52 for these paragraphs. which guide the Coast Guard in the Captain of the Port of San Diego or In the Rule document E9–6654 complying with the National his designated on-scene representative. published in the Federal Register on Environmental Policy Act of 1969 (2) All persons and vessels shall March 25, 2009 (74 FR 12556), (NEPA) (42 U.S.C. 4321–4370f), and comply with the instructions of the Amendatory Instruction Numbers 3 and have concluded that this action is one Coast Guard Captain of the Port or the 4 on page 12559, second and third of a category of actions which do not designated representative. columns respectively are revised to read individually or cumulatively have a (3) Upon being hailed by U.S. Coast as follows: significant effect on the human Guard patrol personnel by siren, radio, ‘‘3. In § 52.1072, paragraph (d) is environment. This rule is categorically flashing light, or other means, the removed and reserved. excluded, under figure 2–1, paragraph operator of a vessel shall proceed as 4. In § 52.1073, paragraph (e) is (34)(g), of the Instruction. This rule directed. removed and reserved.’’ involves the establishment of a safety (4) The Coast Guard may be assisted Section 553 of the Administrative zone to provide for the safety of the by other federal, state, or local agencies. Procedure Act, 5 U.S.C. 553(b)(B), participants, crew, spectators, Dated: May 4, 2009. provides that, when an agency for good participating vessels, and other vessels T.H. Farris, cause finds that notice and public procedure are impracticable, and users of the waterway. An Captain, U.S. Coast Guard, Captain of the environmental analysis checklist and a Port San Diego. unnecessary or contrary to the public interest, the agency may issue a rule categorical exclusion determination are [FR Doc. E9–12062 Filed 5–22–09; 8:45 am] available in the docket where indicated without providing notice and an BILLING CODE 4910–15–P opportunity for public comment. We under ADDRESSES. have determined that there is good List of Subjects in 33 CFR Part 165 cause for making today’s rule final ENVIRONMENTAL PROTECTION without prior proposal and opportunity Harbors, Marine safety, Navigation AGENCY (water), Reporting and recordkeeping for comment because this rule is not requirements, Security measures, 40 CFR Part 52 substantive and imposes no regulatory Waterways. requirements, but merely corrects a [EPA–R03–OAR–2009–0058; FRL–8909–5] ■ citation in a previous action. Thus, For the reasons discussed in the notice and public procedure are preamble, the Coast Guard amends 33 Approval and Promulgation of Air unnecessary. We find that this CFR part 165 as follows: Quality Implementation Plans; constitutes good cause under 5 U.S.C. Maryland; Reasonably Available 553(b)(B). PART 165—REGULATED NAVIGATION Control Technology Requirements for AREAS AND LIMITED ACCESS AREAS Volatile Organic Compounds: Statutory and Executive Order Reviews ■ 1. The authority citation for part 165 Correction Under Executive Order (E.O.) 12866 continues to read as follows: AGENCY: Environmental Protection (58 FR 51735, October 4, 1993), this Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Agency (EPA). action is not a ‘‘significant regulatory Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; ACTION: Final rule; correcting action’’ and is therefore not subject to 33 CFR 1.05–1, 6.04–1, 6.04–6, and 160.5; amendment. review by the Office of Management and Pub. L. 107–295, 116 Stat. 2064; Department Budget. For this reason, this action is of Homeland Security Delegation No. 0170.1. SUMMARY: This document corrects errors also not subject to Executive Order ■ 2. Add new temporary zone in the amendatory instructions 13211, ‘‘Actions Concerning Regulations § 165.T11–179 to read as follows: regarding EPA’s action to convert That Significantly Affect Energy Supply, Maryland regulations governing volatile Distribution, or Use’’ (66 FR 28355 (May § 165.T11–179 Safety zone; Copper organic compound (VOC) reasonable 22, 2001)). Because the agency has made Canyon Clean up; Lake Havasu, Arizona available control technology (RACT) a ‘‘good cause’’ finding that this action (a) Location. The limits of the safety from conditional limited approval to is not subject to notice-and-comment zone will include all waters of Copper full approval. requirements under the Administrative

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Procedures Act or any other statute as of environmental justice related issues made such a good cause finding, indicated in the SUPPLEMENTARY as required by Executive Order 12898 including the reasons therefore, and INFORMATION section above, it is not (59 FR 7629, February 16, 1994). In established an effective date of May 26, subject to the regulatory flexibility issuing this rule, EPA has taken the 2009. EPA will submit a report provisions of the Regulatory Flexibility necessary steps to eliminate drafting containing this rule and other required Act (5 U.S.C 601 et seq.), or to sections errors and ambiguity, minimize information to the U.S. Senate, the U.S. 202 and 205 of the Unfunded Mandates potential litigation, and provide a clear House of Representatives, and the Reform Act of 1995 (UMRA) (Pub. L. legal standard for affected conduct, as Comptroller General of the United 104–4). In addition, this action does not required by section 3 of Executive Order States prior to publication of the rule in significantly or uniquely affect small 12988 (61 FR 4729, February 7, 1996). the Federal Register. This correction for governments or impose a significant EPA has complied with Executive Order 40 CFR part 52, subpart V (Maryland) is intergovernmental mandate, as 12630 (53 FR 8859, March 15, 1998) by not a ‘‘major rule’’ as defined by 5 described in sections 203 and 204 of examining the takings implications of U.S.C. 804(2). UMRA. This rule also does not have a the rule in accordance with the List of Subjects in 40 CFR Part 52 substantial direct effect on one or more ‘‘Attorney General’s Supplemental Indian tribes, on the relationship Guidelines for the Evaluation of Risk Environmental protection, Air between the Federal Government and and Avoidance of Unanticipated pollution control, Incorporation by Indian tribes, or on the distribution of Takings’’ issued under the executive reference, Intergovernmental relations, power and responsibilities between the order. This rule does not impose an Ozone, Volatile organic compounds. Federal Government and Indian tribes, information collection burden under the Dated: May 14, 2009. as specified by Executive Order 13175 Paperwork Reduction Act of 1995 (44 William C. Early, (65 FR 67249, November 9, 2000), nor U.S.C. 3501 et seq). Acting Regional Administrator, Region III. will it have substantial direct effects on The Congressional Review Act (5 the States, on the relationship between U.S.C. 801 et seq.), as added by the ■ 40 CFR part 52 is amended as follows: the national government and the States, Small Business Regulatory Enforcement or on the distribution of power and Fairness Act of 1996, generally provides PART 52—[AMENDED] responsibilities among the various that before a rule may take effect, the levels of governments, as specified by agency promulgating the rule must ■ 1. The authority citation for part 52 Executive Order 13132 (64 FR 43255, submit a rule report, which includes a continues to read as follows: August 10, 1999). This rule also is not copy of the rule, to each House of the Authority: 42 U.S.C. 7401 et seq. subject to Executive Order 13045 (62 FR Congress and to the Comptroller General 19885, April 23, 1997), because it of the United States. Section 808 allows Subpart V—Maryland approves a State rule implementing a the issuing agency to make a rule Federal standard. effective sooner than otherwise ■ 2. In § 52.1070, the table in paragraph This technical correction action does provided by the CRA if the agency (c) is amended by revising the entry for not involve technical standards; thus makes a good cause finding that notice COMAR 26.11.19.02G to read as the requirements of section 12(d) of the and public procedure is impracticable, follows: National Technology Transfer and unnecessary or contrary to the public Advancement Act of 1995 (15 U.S.C. interest. This determination must be § 52.1070 Identification of plan. 272 note) do not apply. The rule also supported by a brief statement. 5 U.S.C. * * * * * does not involve special consideration 808(2). As stated previously, EPA had (c) * * *

EPA-APPROVED REGULATIONS IN THE MARYLAND SIP

Code of Maryland administra- tive regulations (COMAR) cita- Title/subject State effective date EPA approval date Additional explanation/cita- tion tion at 40 CFR 52.1100

*******

26.11.19 Volatile Organic Compounds from Specific Processes

26.11.19.02 ...... Applicability, Determining 5/4/98, 12/10/01 3/25/09, 74 FR 12556 ...... (c) (174), (c) (175). On 2/ Compliance, Reporting, and 27/03 (68 FR 9012), General Requirements. EPA approved a revised rule citation with a State effective date of 5/8/95 [(c)(182)(i)(D)].

******

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* * * * * Facility telephone number is (703) 305– provided in 40 CFR part 178. To ensure ■ 3. In § 52.1072, paragraph (d) is 5805. proper receipt by EPA, you must removed and reserved. FOR FURTHER INFORMATION CONTACT: identify docket ID number EPA–HQ– ■ 4. In § 52.1073, paragraph (e) is Susan Stanton, Registration Division OPP–2008–0270 in the subject line on removed and reserved. (7505P), Office of Pesticide Programs, the first page of your submission. All [FR Doc. E9–12139 Filed 5–22–09; 8:45 am] Environmental Protection Agency, 1200 requests must be in writing, and must be BILLING CODE 6560–50–P Pennsylvania Ave., NW., Washington, mailed or delivered to the Hearing Clerk DC 20460–0001; telephone number: as required by 40 CFR part 178 on or (703) 305–5218; e-mail address: before July 27, 2009. ENVIRONMENTAL PROTECTION [email protected]. In addition to filing an objection or AGENCY SUPPLEMENTARY INFORMATION: hearing request with the Hearing Clerk as described in 40 CFR part 178, please 40 CFR Part 180 I. General Information submit a copy of the filing that does not [EPA–HQ–OPP–2008–0270; FRL–8413–7] A. Does this Action Apply to Me? contain any CBI for inclusion in the public docket that is described in Acibenzolar-S-methyl; Pesticide You may be potentially affected by ADDRESSES. Information not marked Tolerances this action if you are an agricultural confidential pursuant to 40 CFR part 2 producer, food manufacturer, or may be disclosed publicly by EPA AGENCY: Environmental Protection pesticide manufacturer. Potentially without prior notice. Submit this copy, Agency (EPA). affected entities may include, but are identified by docket ID number EPA– ACTION: Final rule. not limited to those engaged in the HQ–OPP–2008–0270, by one of the following activities: following methods: SUMMARY: This regulation establishes • Crop production (NAICS code 111). • Federal eRulemaking Portal: http:// tolerances for residues of acibenzolar-S- • Animal production (NAICS code methyl in or on onion, bulb, subgroup www.regulations.gov. Follow the on-line 112). instructions for submitting comments. 3-07A; and vegetable, cucurbit, group 9. • Food manufacturing (NAICS code • Mail: Office of Pesticide Programs It also removes the section 18 time- 311). limited tolerance on onion, bulb which • Pesticide manufacturing (NAICS (OPP) Regulatory Public Docket (7502P), is superseded by the new tolerance on code 32532). Environmental Protection Agency, 1200 onion, bulb, subgroup 3-07A. This listing is not intended to be Pennsylvania Ave., NW., Washington, Interregional Research Project Number 4 exhaustive, but rather to provide a guide DC 20460–0001. • (IR-4) and Syngenta Crop Protection for readers regarding entities likely to be Delivery: OPP Regulatory Public requested these tolerances under the affected by this action. Other types of Docket (7502P), Environmental Federal Food, Drug, and Cosmetic Act entities not listed in this unit could also Protection Agency, Rm. S–4400, One (FFDCA). be affected. The North American Potomac Yard (South Bldg.), 2777 S. Crystal Dr., Arlington, VA. Deliveries DATES: This regulation is effective May Industrial Classification System (NAICS) codes have been provided to are only accepted during the Docket 26, 2009. Objections and requests for Facility’s normal hours of operation hearings must be received on or before assist you and others in determining whether this action might apply to (8:30 a.m. to 4 p.m., Monday through July 27, 2009, and must be filed in Friday, excluding legal holidays). accordance with the instructions certain entities. If you have any questions regarding the applicability of Special arrangements should be made provided in 40 CFR part 178 (see also for deliveries of boxed information. The SUPPLEMENTARY this action to a particular entity, consult Unit I.C. of the Docket Facility telephone number is INFORMATION). the person listed under FOR FURTHER INFORMATION CONTACT. (703) 305–5805. ADDRESSES: EPA has established a II. Petition for Tolerance docket for this action under docket B. How Can I Access Electronic Copies identification (ID) number EPA–HQ– of this Document? In the Federal Register of May 16, OPP–2008–0270. All documents in the In addition to accessing electronically 2008 (73FR 28461) (FRL–8361–6), EPA docket are listed in the docket index available documents at http:// issued a notice pursuant to section available at http://www.regulations.gov. www.regulations.gov, you may access 408(d)(3) of FFDCA, 21 U.S.C. Although listed in the index, some this Federal Register document 346a(d)(3), announcing the filing of a information is not publicly available, electronically through the EPA Internet pesticide petition (PP 8E7337) by e.g., Confidential Business Information under the ‘‘Federal Register’’ listings at Interregional Research Project Number 4 (CBI) or other information whose http://www.epa.gov/fedrgstr. You may (IR-4), 500 College Road East, Suite disclosure is restricted by statute. also access a frequently updated 201W, Princeton, NJ 08540. The petition Certain other material, such as electronic version of EPA’s tolerance requested that 40 CFR 180.561 be copyrighted material, is not placed on regulations at 40 CFR part 180 through amended by establishing a tolerance for the Internet and will be publicly the Government Printing Office’s e-CFR residues of the fungicide acibenzolar-S- available only in hard copy form. cite at http://www.gpoaccess.gov/ecfr. methyl, benzo(1,2,3)thiadiazole-7- Publicly available docket materials are carbothioic acid-S-methyl ester, in or on available in the electronic docket at C. Can I File an Objection or Hearing onion, bulb, subgroup 3-07A at 0.07 http://www.regulations.gov, or, if only Request? parts per million (ppm). That notice available in hard copy, at the OPP Under section 408(g) of FFDCA, 21 referenced a summary of the petition Regulatory Public Docket in Rm. S– U.S.C. 346a, any person may file an prepared on behalf of IR-4 by Syngenta 4400, One Potomac Yard (South Bldg.), objection to any aspect of this regulation Crop Protection, the registrant, which is 2777 S. Crystal Dr., Arlington, VA. The and may also request a hearing on those available to the public in the docket, Docket Facility is open from 8:30 a.m. objections. You must file your objection http://www.regulations.gov. There were to 4 p.m., Monday through Friday, or request a hearing on this regulation no comments received in response to excluding legal holidays. The Docket in accordance with the instructions the notice of filing.

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In the Federal Register of December 3, tolerances for residues of acibenzolar-S- as well as the no-observed-adverse- 2008 (73 FR 73644) (FRL–8386–9), EPA methyl on onion, bulb, subgroup 3-07A effect-level (NOAEL) and the lowest- issued a notice pursuant to section at 0.1 ppm; and vegetable, cucurbit, observed-adverse-effect-level (LOAEL) 408(d)(3) of FFDCA, 21 U.S.C. group 9 at 2.0 ppm. EPA’s assessment of from the toxicity studies can be found 346a(d)(3), announcing the filing of a exposures and risks associated with at http://www.regulations.gov in the pesticide petition (PP 8F7352) by establishing tolerances follows. document Revised Acibenzolar-S- Syngenta Crop Protection, Regulatory methyl Human Health Risk Assessment A. Toxicological Profile Affairs, P.O. Box 18300, Greensboro, NC for Proposed Use of Acibenzolar-S- 27419-8300. The petition requested that EPA has evaluated the available methyl on Cucurbits and Bulb Onions 40 CFR 180.561 be amended by toxicity data and considered its validity, page 34 in docket ID number EPA–HQ– establishing a tolerance for residues of completeness, and reliability as well as OPP–2008–0270. the fungicide acibenzolar-S-methyl, the relationship of the results of the B. Toxicological Endpoints benzo(1,2,3)thiadiazole-7-carbothioic studies to human risk. EPA has also acid-S-methyl ester, in or on vegetable, considered available information For hazards that have a threshold cucurbit, group 9 at 1.0 ppm. That concerning the variability of the below which there is no appreciable notice referenced a summary of the sensitivities of major identifiable risk, a toxicological point of departure petition prepared by Syngenta Crop subgroups of consumers, including (POD) is identified as the basis for Protection, the registrant, which is infants and children. derivation of reference values for risk available to the public in docket ID Acibenzolar-S-methyl showed no assessment. The POD may be defined as number EPA–HQ–OPP–2008–0733 at significant toxicity in a battery of acute the highest dose at which no adverse http://www.regulations.gov. There were toxicity tests but showed considerable effects are observed (the NOAEL) in the no comments received in response to skin-sensitivity. In subchronic and toxicology study identified as the notice of filing. chronic oral studies in rats, dogs and appropriate for use in risk assessment. Based upon review of the data mice, signs of mild regenerative However, if a NOAEL cannot be supporting the petitions, EPA has hemolytic anemia were consistently determined, the lowest dose at which revised the tolerance expression and observed in all three species. Additional adverse effects of concern are identified increased the tolerance level for onion, toxic effects observed in these studies (the LOAEL) or a Benchmark Dose bulb, subgroup 3-07A from 0.07 ppm to included decreases in body weight, (BMD) approach is sometimes used for 0.1 ppm; and for vegetable, cucurbit, body weight gain and/or food risk assessment. Uncertainty/safety group 9 from 1.0 ppm to 2.0 ppm. The consumption. No other significant factors (UFs) are used in conjunction reasons for these changes are explained treatment-related effects of toxicological with the POD to take into account in Unit IV.C. concern were observed in these uncertainties inherent in the subchronic and chronic oral studies. No extrapolation from laboratory animal III. Aggregate Risk Assessment and neurotoxic effects were seen at the data to humans and in the variations in Determination of Safety highest dose tested in a subchronic sensitivity among members of the Section 408(b)(2)(A)(i) of FFDCA neurotoxicity study in rats. In a 28–day human population as well as other allows EPA to establish a tolerance (the dermal toxicity study in rats no unknowns. Safety is assessed for acute legal limit for a pesticide chemical systemic or dermal effects were seen at and chronic dietary risks by comparing residue in or on a food) only if EPA the limit dose. aggregate food and water exposure to determines that the tolerance is ‘‘safe.’’ In developmental toxicity and the pesticide to the acute population Section 408(b)(2)(A)(ii) of FFDCA developmental neurotoxicity (DNT) adjusted dose (aPAD) and chronic defines ‘‘safe’’ to mean that ‘‘there is a studies in rats, treatment-related effects population adjusted dose (cPAD). The reasonable certainty that no harm will (visceral malformations and skeletal aPAD and cPAD are calculated by result from aggregate exposure to the variations; changes in brain dividing the POD by all applicable UFs. pesticide chemical residue, including morphometrics in the cerebellum) were Aggregate short-term, intermediate-term, all anticipated dietary exposures and all observed in fetuses at levels that were and chronic-term risks are evaluated by other exposures for which there is not toxic to the parent, indicating comparing food, water, and residential reliable information.’’ This includes increased sensitivity of rat fetuses exposure to the POD to ensure that the exposure through drinking water and in compared to adults. Increased margin of exposure (MOE) called for by residential settings, but does not include sensitivity was not observed in a the product of all applicable UFs is not occupational exposure. Section developmental toxicity study in rabbits, exceeded. This latter value is referred to 408(b)(2)(C) of FFDCA requires EPA to or in 1-generation and 2-generation as the Level of Concern (LOC). give special consideration to exposure reproduction studies in rats. In a 28–day For non-threshold risks, the Agency of infants and children to the pesticide dermal developmental toxicity study in assumes that any amount of exposure chemical residue in establishing a rats, no maternal or developmental will lead to some degree of risk. Thus, tolerance and to ‘‘ensure that there is a toxicity was observed at dose levels up the Agency estimates risk in terms of the reasonable certainty that no harm will to 500 mg/kg/day, the highest dose level probability of an occurrence of the result to infants and children from tested. adverse effect greater than that expected aggregate exposure to the pesticide Acibenzolar-S-methyl was classified in a lifetime. For more information on chemical residue. . . .’’ by EPA as a ‘‘not likely’’ human the general principles EPA uses in risk Consistent with section 408(b)(2)(D) carcinogen based on the lack of characterization and a complete of FFDCA, and the factors specified in evidence of carcinogenicity in male and description of the risk assessment section 408(b)(2)(D) of FFDCA, EPA has female rats and mice and lack of process, see http://www.epa.gov/ reviewed the available scientific data evidence of genotoxicity in an pesticides/factsheets/riskassess.htm. and other relevant information in acceptable battery of mutagenicity A summary of the toxicological support of this action. EPA has studies. endpoints for acibenzolar-S-methyl used sufficient data to assess the hazards of Specific information on the studies for human risk assessment can be found and to make a determination on received and the nature of the adverse at http://www.regulations.gov in the aggregate exposure for the petitioned-for effects caused by acibenzolar-S-methyl document Revised Acibenzolar-S-

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methyl Human Health Risk Assessment metabolite (CGA-210007) found in the derived from such crop is likely to for Proposed Use of Acibenzolar-S- lettuce metabolism study, was applied contain the pesticide residue. methyl on Cucurbits and Bulb Onions to estimates of acibenzolar-S-methyl • Condition b: The exposure estimate page 21 in docket ID number EPA–HQ– residues to account for all of the does not underestimate exposure for any OPP–2008–0270. residues of concern for dietary risk significant subpopulation group. (including CGA-210007, CGA-323060 • C. Exposure Assessment Condition c: Data are available on and CGA-324041). pesticide use and food consumption in 1. Dietary exposure from food and ii. Chronic exposure. EPA identified a particular area, the exposure estimate feed uses. In evaluating dietary different chronic effects of concern for does not understate exposure for the exposure to acibenzolar-S-methyl, EPA the general population (hemolytic population in such area. considered exposure under the anemia with compensatory response In addition, the Agency must provide petitioned-for tolerances as well as all observed in the chronic dog study) and for periodic evaluation of any estimates existing acibenzolar-S-methyl tolerances for females 13 to 49 years old (changes used. To provide for the periodic in 40 CFR 180.561. EPA assessed dietary in brain morphometrics in the evaluation of the estimate of PCT as exposures from acibenzolar-S-methyl in cerebellum of offspring in the DNT required by FFDCA section 408(b)(2)(F), food as follows: study). The cPAD for the general i. Acute exposure. Quantitative acute EPA may require registrants to submit population has been established at 0.25 data on PCT. dietary exposure and risk assessments mg/kg/day; whereas, the cPAD for are performed for a food-use pesticide, The Agency used PCT information as females 13 to 49 years old is lower follows: if a toxicological study has indicated the (0.082 mg/kg/day), due to the more Broccoli 5%, cabbage 2.5%, possibility of an effect of concern sensitive endpoint on which it is based. cauliflower 5%, celery 1%, lettuce occurring as a result of a 1–day or single In conducting the chronic dietary (head and leaf) 12%, pepper (bell and exposure. EPA identified such an effect exposure assessment EPA used the food non-bell) 5%, spinach 30%, and tomato (changes in brain morphometrics in the consumption data from the USDA 1994– 5%. cerebellum of offspring) in the 1996 and 1998 CSFII. As to residue In most cases, EPA uses available data developmental neurotoxicity study in levels in food, EPA assumed tolerance- from United States Department of rats. This acute endpoint is relevant to level residues (adjusted by a factor of Agriculture/National Agricultural the population subgroup, females 13 to 1.5x to account for all metabolites of Statistics Service (USDA/NASS), 49 years old. No acute endpoint of concern), DEEMTM default processing concern was identified for the general factors and 100 PCT for all proprietary market surveys, and the population or other population commodities. National Pesticide Use Database for the subgroups. iii. Cancer. Based on the lack of chemical/crop combination for the most In estimating acute dietary exposure evidence of carcinogenicity in male and recent 6 years. EPA uses an average PCT of females 13 to 49 years old, EPA used female rats and mice and lack of for chronic dietary risk analysis. The food consumption information from the evidence of genotoxicity in an average PCT figure for each existing use United States Department of Agriculture acceptable battery of mutagenicity is derived by combining available (USDA) 1994–1996 Nationwide studies, EPA classified acibenzolar-S- public and private market survey data Continuing Surveys of Food Intakes by methyl as a ‘‘not likely’’ human for that use, averaging across all Individuals (CSFII). EPA conducted a carcinogen. Therefore, an exposure observations, and rounding to the partially refined, probabilistic acute assessment for evaluating cancer risk is nearest 5%, except for those situations dietary exposure assessment using the not needed for this chemical. in which the average PCT is less than distribution of residues from field trial iv. Anticipated residue and PCT one. In those cases, 1% is used as the data for each food commodity. The information. Section 408(b)(2)(E) of average PCT and 2.5% is used as the probabilistic assessment incorporated FFDCA authorizes EPA to use available maximum PCT. EPA uses a maximum empirical processing factors for some data and information on the anticipated PCT for acute dietary risk analysis. The processed commodities (tomato paste, residue levels of pesticide residues in maximum PCT figure is the highest puree and juice) and DEEMTM default food and the actual levels of pesticide observed maximum value reported processing factors for the remaining residues that have been measured in within the recent 6 years of available processed commodities. Exposure food. If EPA relies on such information, public and private market survey data estimates were further refined using EPA must require pursuant to FFDCA for the existing use and rounded up to maximum percent crop treated (PCT) section 408(f)(1) that data be provided 5 the nearest multiple of 5%. information for most existing uses of years after the tolerance is established, The Agency believes that the three acibenzolar-S-methyl. EPA assumed 100 modified, or left in effect, demonstrating conditions discussed in Unit III.C.1.iv. PCT for the new uses on onions and that the levels in food are not above the have been met. With respect to cucurbits. levels anticipated. For the present Condition a, PCT estimates are derived The acibenzolar residues of concern action, EPA will issue such data call-ins from Federal and private market survey for risk assessment include acibenzolar- as are required by FFDCA section data, which are reliable and have a valid S-methyl, benzo(1,2,3) thiadiazole-7- 408(b)(2)(E) and authorized under basis. The Agency is reasonably certain carbothioic acid-S-methyl ester, FFDCA section 408(f)(1). Data will be that the percentage of the food treated convertible to benzo(1,2,3)thiadiazole-7- required to be submitted no later than is not likely to be an underestimation. carboxylic acid (CGA-210007), 5 years from the date of issuance of As to Conditions b and c, regional expressed as acibenzolar-S-methyl; and these tolerances. consumption information and its 4-hydroxy CGA-210007 (CGA- Section 408(b)(2)(F) of FFDCA states consumption information for significant 323060) and 5-hydroxy CGA-210007 that the Agency may use data on the subpopulations is taken into account (CGA-324041) metabolites. A factor of actual percent of food treated for through EPA’s computer-based model 1.5x, based on the relative abundance of assessing chronic dietary risk only if: for evaluating the exposure of the hydroxy metabolites (CGA-323060 • Condition a: The data used are significant subpopulations including and CGA-324041) and residues reliable and provide a valid basis to several regional groups. Use of this convertible to the carboxylic acid show what percentage of the food consumption information in EPA’s risk

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assessment process ensures that EPA’s 3. From non-dietary exposure. The and review of newly submitted data, the exposure estimate does not understate term ‘‘residential exposure’’ is used in umbilical hernias are no longer exposure for any significant this document to refer to non- considered to be treatment-related. EPA subpopulation group and allows the occupational, non-dietary exposure concluded that the incidence of Agency to be reasonably certain that no (e.g., for lawn and garden pest control, umbilical hernias at 10 milligram/ regional population is exposed to indoor pest control, termiticides, and kilogram/day (mg/kg/day) was not a residue levels higher than those flea and tick control on pets). treatment-related adverse effect because estimated by the Agency. Other than the Acibenzolar-S-methyl is not registered the effect is not dose-related (i.e., it was data available through national food for any specific use patterns that would seen only at the low dose of 10 mg/kg/ consumption surveys, EPA does not result in residential exposure. day); the effect was not seen in dosed have available reliable information on 4. Cumulative effects from substances animals in other studies, including the regional consumption of food to with a common mechanism of toxicity. developmental toxicity studies and which acibenzolar-S-methyl may be Section 408(b)(2)(D)(v) of FFDCA reproduction studies; umbilical hernia applied in a particular area. requires that, when considering whether was observed in the control animals in 2. Dietary exposure from drinking to establish, modify, or revoke a the rat dermal developmental toxicity water. The residues of concern for tolerance, the Agency consider study (1/336 fetuses in 1 of 24 litters); drinking water include acibenzolar-S- ‘‘available information’’ concerning the and the effect is known to occur methyl and residues convertible to cumulative effects of a particular spontaneously in the rat strain used in CGA-210007. The Agency used pesticide’s residues and ‘‘other this study. New studies, including a screening level water exposure models substances that have a common DNT study in rats, a developmental in the dietary exposure analysis and risk mechanism of toxicity.’’ toxicity study in rats and two non- assessment for acibenzolar-S-methyl EPA has not found acibenzolar-S- standard investigative, phase-specific and CGA-210007 in drinking water. methyl to share a common mechanism studies, support the finding that These simulation models take into of toxicity with any other substances, incidence of umbilical hernias is not account data on the physical, chemical, and acibenzolar-S-methyl does not treatment-related. Based on these and fate/transport characteristics of appear to produce a toxic metabolite findings, EPA has reconsidered the acibenzolar-S-methyl. Further produced by other substances. For the FQPA safety factor for acibenzolar-S- information regarding EPA drinking purposes of this tolerance action, methyl. water models used in pesticide therefore, EPA has assumed that 2. Prenatal and postnatal sensitivity. exposure assessment can be found at acibenzolar-S-methyl does not have a The prenatal and postnatal toxicity http://www.epa.gov/oppefed1/models/ common mechanism of toxicity with database for acibenzolar-S-methyl water/index.htm. other substances. For information includes acceptable developmental Based on the Pesticide Root Zone regarding EPA’s efforts to determine toxicity studies in rats (two oral and one Model/Exposure Analysis Modeling which chemicals have a common dermal) and rabbits (one oral); a DNT System (PRZM/EXAMS) and Screening mechanism of toxicity and to evaluate study in the rat; and 1-generation and 2- Concentration in Ground Water (SCI- the cumulative effects of such generation reproduction toxicity studies GROW) models, the estimated drinking chemicals, see EPA’s website at http:// in the rat. water concentrations (EDWCs) of www.epa.gov/pesticides/cumulative. There was no evidence of increased acibenzolar-S-methyl and CGA-210007 susceptibility of fetuses or offspring in D. Safety Factor for Infants and for acute exposures are estimated to be the rat dermal developmental toxicity Children 0.74 and 14.21 parts per billion (ppb), study, the rabbit developmental toxicity respectively, for surface water and 1. In general. Section 408(b)(2)(c) of study or the rat reproduction toxicity 0.000041 and 0.557 ppb, respectively, FFDCA provides that EPA shall apply studies. No maternal or fetal effects for ground water. EDWCs of an additional tenfold (10X) margin of were observed in the dermal acibenzolar-S-methyl and CGA-210007 safety for infants and children in the developmental study at any dose tested. for chronic exposures for non-cancer case of threshold effects to account for In the rabbit developmental study, assessments are estimated to be 0.10 and prenatal and postnatal toxicity and the maternal effects (mortality, clinical 9.48 ppb, respectively, for surface water completeness of the database on toxicity signs, decreased maternal body weight and 0.000041 and 0.557 ppb, and exposure unless EPA determines and food consumption) were seen at a respectively, for ground water. based on reliable data that a different lower dose than fetal effects (marginal Modeled estimates of drinking water margin of safety will be safe for infants increase in vertebral anomalies). In the concentrations were directly entered and children. This additional margin of rat reproduction studies, parental effects into the dietary exposure model. CGA- safety is commonly referred to as the (increased weights and hemosiderosis of 210007 drinking water residues were FQPA safety factor (SF). In applying this the spleen; decreased body weight gain included in the dietary exposure provision, EPA either retains the default and food consumption in females) and assessment as acibenzolar-S-methyl value of 10X, or uses a different offspring effects (reduced pup body equivalents. CGA 210007 residues were additional safety factor when reliable weight gains and lower pup body converted to acibenzolar-S-methyl data available to EPA support the choice weights during lactation) were seen at equivalents based on molecular weight of a different factor. the same dose. (mol. wt. of acibenzolar (210) ÷ mol. wt. In previous risk assessments for In the developmental toxicity and of CGA 210007 (180) x EDWC for CGA acibenzolar-S-methyl the 10X FQPA DNT studies in rats, treatment-related 210007). For acute dietary risk safety factor was retained for increased effects (visceral malformations and assessment, the water concentration quantitative susceptibility (umbilical skeletal variations; and changes in brain value of 17 ppb was used to assess the hernia) observed in a rat developmental morphometrics in the cerebellum) were contribution to drinking water. For toxicity study and the lack of a observed in offspring at levels that were chronic dietary risk assessment, the developmental-neurotoxicity (DNT) not toxic to the parent, indicating water concentration of value 11 ppb was study. A DNT study has now been potential increased quantitative used to assess the contribution to submitted and reviewed by EPA; and, susceptibility of offspring compared to drinking water. based on reevaluation of existing data adults. The developmental no-observed

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adversed-effect level (NOAEL) from the determined that an acute neurotoxicity population group for which an acute DNT study (8.2 mg/kg/day) is the lowest study is not required. There was endpoint of toxicological concern was NOAEL from any study in the evidence of offspring neurotoxicity identified. acibenzolar database and is the POD (changes in brain morphometrics in the 2. Chronic risk. EPA performed two used in both the acute and chronic cerebellum) in the rat DNT study in the different chronic risk assessments – one dietary exposure assessments for absence of maternal toxicity; however, focusing on females 13 to 49 years old females, 13 to 49 years old, the relevant since the NOAEL for these effects is and designed to protect against population subgroup for assessing being used in the acute and chronic risk neurotoxic effects in offspring and the potential developmental effects. Since assessments for females, 13 to 49 years other focusing on chronic effects there is a well-defined NOAEL for these old, there are no residual uncertainties (hemolytic anemia) relevant to all other effects and the NOAEL is being used as with regard to these effects and no need population groups. The more sensitive the POD in the risk assessment, there for additional UFs to account for chronic endpoint was seen as to are no residual uncertainties with regard neurotoxicity. offspring effects rather than other to pre- or postnatal sensitivity. iii. Although there was evidence of chronic effects. Using the exposure 3. Conclusion. EPA has determined increased quantitative susceptibility of assumptions described in this unit for that reliable data show the safety of offspring to acibenzolar-S-methyl in the chronic exposure, EPA has concluded infants and children would be rat developmental toxicity and DNT that for females, 13 to 49 years old, adequately protected if the FQPA SF studies, the Agency did not identify any chronic exposure to acibenzolar-S- were reduced to 1X. That decision is residual uncertainties after establishing methyl from food and water will utilize based on the following findings: toxicity endpoints and traditional UFs 5% of the cPAD addressing offspring i. The toxicity database for to be used in the risk assessment. effects. As to other chronic effects, acibenzolar-S-methyl is complete, iv. There are no residual uncertainties chronic exposure to acibenzolar-S- except for immunotoxicity studies, and identified in the exposure databases. methyl from food and water will utilize EPA has determined that an additional The dietary food exposure assessments 4% of the cPAD for children, 1 to 2 uncertainty factor is not required to were performed using tolerance levels years old, the population group account for potential immunotoxicity. or anticipated residues derived from receiving the greatest exposure. There The reasons for this determination are reliable field trials and screening-level are no residential uses for acibenzolar- explained below: PCT estimates. EPA made conservative S-methyl. EPA began requiring functional (protective) assumptions in the ground 3. Short-term intermediate-term risk. immunotoxicity testing of all food and water and surface water modeling used Short-term and intermediate-term non-food use pesticides on December to assess exposure to acibenzolar-S- aggregate exposures take into account 26, 2007. Since this requirement is methyl in drinking water. Residential short-term and intermediate-term relatively new, these studies are not yet exposure to acibenzolar-S-methyl is not residential exposure plus chronic available for acibenzolar-S-methyl. In expected. These assessments will not exposure to food and water (considered the absence of specific immunotoxicity underestimate the exposure and risks to be a background exposure level). studies, EPA has evaluated the available posed by acibenzolar-S-methyl. Acibenzolar-S-methyl is not registered acibenzolar-S-methyl toxicity data to for any use patterns that would result in determine whether an additional E. Aggregate Risks and Determination of residential exposure. Therefore, the database uncertainty factor is needed to Safety short-term and intermediate-term account for potential immunotoxicity. EPA determines whether acute and aggregate risk is the sum of the risk from There are no indications in the available chronic pesticide exposures are safe by exposure to acibenzolar-S-methyl studies that organs associated with comparing aggregate exposure estimates through food and water and will not be immune function, such as the thymus to the acute population adjusted dose and spleen, are affected by acibenzolar- (aPAD) and chronic population adjusted greater than the chronic aggregate risk. 4. Aggregate cancer risk for U.S. S-methyl. While effects on the spleen dose (cPAD). The aPAD and cPAD population. Acibenzolar is classified as were observed in association with represent the highest safe exposures, a ‘‘not likely’’ human carcinogen and is, hematologic effects, these were taking into account all appropriate SFs. considered to be secondary to the EPA calculates the aPAD and cPAD by therefore, not expected to pose a cancer primary effects on blood hematology. dividing the POD by all applicable UFs. risk. 5. Determination of safety. Based on Effects on the thymus were seen in only For linear cancer risks, EPA calculates these risk assessments, EPA concludes one study in one animal at a high dose the probability of additional cancer (400 mg/kg/day) and were, therefore, cases given the estimated aggregate that there is a reasonable certainty that considered to be spurious. Due to the exposure. Short-term, intermediate- no harm will result to the general lack of evidence of immunotoxicity for term, and chronic-term risks are population, or to infants and children acibenzolar-S-methyl, EPA does not evaluated by comparing the estimated from aggregate exposure to acibenzolar- believe that conducting immunotoxicity aggregate food, water, and residential S-methyl residues. testing will result in a NOAEL less than exposure to the POD to ensure that the IV. Other Considerations the chronic NOAELs of 8.2 mg/kg/day MOE called for by the product of all (females, 13 to 49 years old) or 25 mg/ applicable UFs is not exceeded. A. Analytical Enforcement Methodology kg/day (all other populations) already 1. Acute risk. An acute aggregate risk Adequate enforcement methodology established for acibenzolar-S-methyl, assessment takes into account exposure (High Performance Liquid and an additional factor (UFDB) for estimates from acute dietary Chromatography with Ultraviolet database uncertainties is not needed to consumption of food and drinking Detection (HPLC/UV) Method AG-671A) account for potential immunotoxicity. water. Using the exposure assumptions is available to enforce the tolerance ii. There was no evidence of discussed in this unit for acute expression. The method may be neurotoxicity in the subchronic exposure, the acute dietary exposure requested from: Chief, Analytical neurotoxicity study submitted for from food and water to acibenzolar-S- Chemistry Branch, Environmental acibenzolar-S-methyl. Based on the methyl will occupy 12% of the aPAD for Science Center, 701 Mapes Rd., Ft. results of this study, EPA has females, 13 to 49 years old, the only Meade, MD 20755–5350; telephone

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number: (410) 305–2905; e-mail address: VI. Statutory and Executive Order to this final rule. In addition, this final [email protected]. Reviews rule does not impose any enforceable duty or contain any unfunded mandate B. International Residue Limits This final rule establishes tolerances under section 408(d) of FFDCA in as described under Title II of the No Codex, Mexican or Canadian Unfunded Mandates Reform Act of 1995 maximum residue limits have been response to a petition submitted to the Agency. The Office of Management and (UMRA) (Public Law 104–4). established for acibenzolar-S-methyl on This action does not involve any any commodity. Budget (OMB) has exempted these types of actions from review under Executive technical standards that would require C. Revisions to Petitioned-For Order 12866, entitled Regulatory Agency consideration of voluntary Tolerances Planning and Review (58 FR 51735, consensus standards pursuant to section October 4, 1993). Because this final rule 12(d) of the National Technology The petitioners proposed tolerances Transfer and Advancement Act of 1995 for residues of ‘‘acibenzolar-S-methyl, has been exempted from review under Executive Order 12866, this final rule is (NTTAA), Public Law 104–113, section benzo(1,2,3)thiadiazole-7-carbothioic 12(d) (15 U.S.C. 272 note). acid-S-methyl ester.’’ Since the not subject to Executive Order 13211, analytical method for acibenzolar is a entitled Actions Concerning Regulations VII. Congressional Review Act common-moiety method that converts That Significantly Affect Energy Supply, Distribution, or Use (66 FR 28355, May The Congressional Review Act, 5 all residues containing the U.S.C. 801 et seq., generally provides benzo(1,2,3)thiadiazole-7-carboxylic 22, 2001) or Executive Order 13045, entitled Protection of Children from that before a rule may take effect, the acid (CGA-210007) moiety to CGA- agency promulgating the rule must 210007, EPA has revised the tolerance Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997). submit a rule report to each House of expression to read ‘‘acibenzolar-S- the Congress and to the Comptroller methyl, benzo(1,2,3)thiadiazole-7- This final rule does not contain any information collections subject to OMB General of the United States. EPA will carbothioic acid-S-methyl ester, submit a report containing this rule and including its metabolites and approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et other required information to the U.S. degradates. Senate, the U.S. House of EPA has also increased the tolerance seq., nor does it require any special considerations under Executive Order Representatives, and the Comptroller level for onion, bulb, subgroup 3-07A General of the United States prior to from 0.07 ppm to 0.1 ppm; and for 12898, entitled Federal Actions to Address Environmental Justice in publication of this final rule in the vegetable, cucurbit, group 9 from 1.0 Federal Register. This final rule is not ppm to 2.0 ppm. The residue data Minority Populations and Low-Income Populations (59 FR 7629, February 16, a ‘‘major rule’’ as defined by 5 U.S.C. submitted for onions and previously 804(2). submitted data for tobacco suggest that 1994). drying may tend to concentrate residues Since tolerances and exemptions that List of Subjects in 40 CFR Part 180 are established on the basis of a petition of acibenzolar-S-methyl. To ensure that Environmental protection, under section 408(d) of FFDCA, such as the tolerance level is adequate, EPA has Administrative practice and procedure, the tolerance in this final rule, do not increased the tolerance for onion, bulb, Agricultural commodities, Pesticides require the issuance of a proposed rule, subgroup 3-07A from 0.07 to 0.1 ppm. and pests, Reporting and recordkeeping the requirements of the Regulatory EPA increased the tolerance for requirements. cucurbits from 1.0 to 2.0 ppm based on Flexibility Act (RFA) (5 U.S.C. 601 et the indication of variability within and seq.) do not apply. Dated: May 15, 2009. between the cucurbit vegetable data sets This final rule directly regulates Lois Rossi, (cantaloupe, cucumber and summer growers, food processors, food handlers, Director, Registration Division, Office of squash), as well as the demonstrated and food retailers, not States or tribes, Pesticide Programs. potential for significant increases in nor does this action alter the ■ Therefore, 40 CFR chapter I is acibenzolar-S-methyl residues 0 to 7 relationships or distribution of power amended as follows: days before harvest. and responsibilities established by Congress in the preemption provisions PART 180—[AMENDED] V. Conclusion of section 408(n)(4) of FFDCA. As such, Therefore, tolerances are established the Agency has determined that this ■ 1. The authority citation for part 180 for residues of acibenzolar-S-methyl action will not have a substantial direct continues to read as follows: benzo(1,2,3)thiadiazole-7-carbothioic effect on States or tribal governments, Authority: 21 U.S.C. 321(q), 346a and 371. acid-S-methyl ester, including its on the relationship between the national ■ 2. Section 180.561 is amended by metabolites and degradates, in or on government and the States or tribal revising paragraph (a) and paragraph (b) onion, bulb, subgroup 3-07A at 0.1 ppm; governments, or on the distribution of in the table by removing the entry for and vegetable, cucurbit, group 9 at 2.0 power and responsibilities among the onion, bulb to read as follows: ppm. Compliance with the specified various levels of government or between tolerance levels is to be determined by the Federal Government and Indian § 180.561 Acibenzolar-S-methyl; measuring only those acibenzolar-S- tribes. Thus, the Agency has determined tolerances for residues. methyl residues convertible to that Executive Order 13132, entitled (a) General. (1) Tolerances are benzo(1,2,3)thiadiazole-7-carboxylic Federalism (64 FR 43255, August 10, established for residues of acibenzolar- acid (CGA-210007), expressed as the 1999) and Executive Order 13175, S-methyl, benzo(1,2,3)thiadiazole-7- stoichiometric equivalent of entitled Consultation and Coordination carbothioic acid-S-methyl ester, in or on acibenzolar-S-methyl, in or on the with Indian Tribal Governments (65 FR the following raw agricultural commodity. 67249, November 9, 2000) do not apply commodities:

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Commodity Parts per million

Banana1 ...... 0.1 Spinach ...... 1.0 Tomato, paste ...... 3.0 Vegetable, brassica, leafy, group 5 ...... 1.0 Vegetable, fruiting, group 8 ...... 1.0 Vegetable, leafy, group 4 ...... 0.25 1There are no United States registrations for banana.

(2) Tolerances are established for commodities in the table below. benzo(1,2,3)thiadiazole-7-carboxylic residues of acibenzolar-S-methyl, Compliance with the tolerance levels acid (CGA-210007), expressed as the benzo(1,2,3)thiadiazole-7-carbothioic specified below is to be determined by stoichiometric equivalent of acid-S-methyl ester, including its measuring only those acibenzolar-S- acibenzolar-S-methyl, in or on the metabolites and degradates, in or on the methyl residues convertible to commodity.

Commodity Parts per million

Onion, bulb, subgroup 3–07A ...... 0.1 Vegetable, cucurbit, group 9 ...... 2.0

* * * * * [FR Doc. E9–12142 Filed 5–22–09; 8:45 am] BILLING CODE 6560–50–S

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Proposed Rules Federal Register Vol. 74, No. 99

Tuesday, May 26, 2009

This section of the FEDERAL REGISTER W12–140, 1200 New Jersey Avenue, SE., consider all comments received by the contains notices to the public of the proposed Washington, DC 20590. closing date and may amend this issuance of rules and regulations. The • Hand Delivery: U.S. Department of proposed AD because of those purpose of these notices is to give interested Transportation, Docket Operations, M– comments. persons an opportunity to participate in the 30, West Building Ground Floor, Room rule making prior to the adoption of the final We will post all comments we rules. W12–140, 1200 New Jersey Avenue, SE., receive, without change, to http:// Washington, DC 20590, between 9 a.m. www.regulations.gov, including any and 5 p.m., Monday through Friday, personal information you provide. We DEPARTMENT OF TRANSPORTATION except Federal holidays. will also post a report summarizing each For service information identified in substantive verbal contact we receive Federal Aviation Administration this proposed AD, contact Boeing about this proposed AD. Commercial Airplanes, Attention: Data 14 CFR Part 39 & Services Management, P.O. Box 3707, Discussion MC 2H–65, Seattle, Washington 98124– On September 26, 2005, we issued AD [Docket No. FAA–2009–0477; Directorate 2207; telephone 206–544–5000, 2005–20–30, amendment 39–14327 (70 Identifier 2008–NM–191–AD] extension 1, fax 206–766–5680; e-mail FR 59252, October 12, 2005), for certain RIN 2120–AA64 [email protected]; Internet Boeing Model 747 series airplanes. That https://www.myboeingfleet.com. You AD requires repetitive inspections to Airworthiness Directives; Boeing may review copies of the referenced detect cracks in various areas of the Model 747–100, –100B, –100B SUD, service information at the FAA, fuselage internal structure, and related –200B, and –300 Series Airplanes; and Transport Airplane Directorate, 1601 investigative/corrective actions if Model 747SP and 747SR Series Lind Avenue, SW., Renton, Washington. necessary. That AD resulted from Airplanes For information on the availability of fatigue tests and analysis by Boeing that this material at the FAA, call 425–227– identified areas of the fuselage where AGENCY: Federal Aviation 1221 or 425–227–1152. fatigue cracks can occur. We issued that Administration (FAA), Department of Examining the AD Docket AD to prevent the loss of the structural Transportation (DOT). integrity of the fuselage, which could ACTION: Notice of proposed rulemaking You may examine the AD docket on result in rapid depressurization of the (NPRM). the Internet at http:// airplane. www.regulations.gov; or in person at the SUMMARY: The FAA proposes to Docket Management Facility between 9 Actions Since Existing AD Was Issued supersede an existing airworthiness a.m. and 5 p.m., Monday through Since we issued AD 2005–20–30, directive (AD) that applies to certain Friday, except Federal holidays. The AD Boeing has conducted an additional Boeing Model 747 series airplanes. The docket contains this proposed AD, the analysis that shows that Section 41 existing AD currently requires repetitive regulatory evaluation, any comments fuselage frames in the areas attached to inspections to detect cracks in various received, and other information. The the upper deck floor beams are also areas of the fuselage internal structure, street address for the Docket Office prone to fatigue cracking. Cracking of and related investigative/corrective (telephone 800–647–5527) is in the the frames was found on the fatigue test actions if necessary. This proposed AD ADDRESSES section. Comments will be airplane at about 40,000 total pressure would require additional repetitive available in the AD docket shortly after cycles. As a result, we have determined inspections for cracking of certain receipt. that additional inspections are fuselage structure, and related FOR FURTHER INFORMATION CONTACT: Ivan necessary, as specified in the service investigative/corrective actions if Li, Aerospace Engineer, Airframe information described below. necessary. This proposed AD results Branch, ANM–120S, FAA, Seattle from fatigue tests and analysis by Aircraft Certification Office, 1601 Lind Relevant Service Information Boeing that identified areas of the Avenue, SW., Renton, Washington We have reviewed Boeing Alert fuselage where fatigue cracks can occur. 98057–3356; telephone (425) 917–6437; Service Bulletin 747–53A2349, Revision We are proposing this AD to prevent the fax (425) 917–6590. 3, dated October 2, 2008 (‘‘the service loss of the structural integrity of the SUPPLEMENTARY INFORMATION: bulletin’’). In AD 2005–20–30, we fuselage, which could result in rapid referred to Boeing Alert Service Bulletin depressurization of the airplane. Comments Invited 747–53A2349, Revision 1, dated DATES: We must receive comments on We invite you to send any written October 12, 2000; and Boeing Service this proposed AD by July 10, 2009. relevant data, views, or arguments about Bulletin 747–53A2349, Revision 2, ADDRESSES: You may send comments by this proposed AD. Send your comments dated April 3, 2003; as the appropriate any of the following methods: to an address listed under the sources of service information for doing • Federal eRulemaking Portal: Go to ADDRESSES section. Include ‘‘Docket No. the actions required by that AD. http://www.regulations.gov. Follow the FAA–2009–0477; Directorate Identifier Revision 3 of the service bulletin retains instructions for submitting comments. 2008–NM–191–AD’’ at the beginning of the procedures from Revision 2, revises • Fax: 202–493–2251. your comments. We specifically invite some airplane groups, and adds the • Mail: U.S. Department of comments on the overall regulatory, repetitive inspections listed in the table Transportation, Docket Operations, M– economic, environmental, and energy titled ‘‘New Service Bulletin 30, West Building Ground Floor, Room aspects of this proposed AD. We will Procedures.’’

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NEW SERVICE BULLETIN PROCEDURES

For airplanes identified as Revision 3 of the service bulletin adds procedures for repetitive detailed inspections for cracking of these areas these groups in Revision 3 specified in the service bulletin— of the service bulletin—

Additional inspections in Area 1: Fuselage frames at body stations 260–520 in areas where the upper deck floor 1 through 7 inclusive. beams are attached (Figure 11 of the Accomplishments Instructions of the service bulletin). Additional inspections in Area 6: Fuselage frames at body stations 400–500 in areas above the Main Entry Door 1 6 and 7. cutouts, from the upper chord of the upper deck floor beams to Stringer 8 (Figure 12 of the Accomplishment In- structions of the service bulletin).

The service bulletin specifies that the For this reason, we are proposing this REVISED PARAGRAPH IDENTIFIERS compliance time for the inspections of AD, which would supersede AD 2005– additional areas is before 22,000 total 20–30 and would retain the Requirement in AD Corresponding flight cycles or within 1,000 flight requirements of the existing AD. This 2005–20–30 requirement in this cycles after the date on the service proposed AD would also require proposed AD bulletin, whichever occurs later. The accomplishing the additional actions paragraph (f) ...... paragraph (g). service bulletin also specifies repeating specified in Boeing Alert Service paragraph (g) ...... paragraph (h). the inspections at intervals not to Bulletin 747–53A2349, Revision 3, paragraph (h) ...... paragraph (i). exceed 3,000 flight cycles. The service dated October 2, 2008, described paragraph (i) ...... paragraph (j). bulletin specifies to repair any crack or previously. paragraph (j) ...... paragraph (k). to contact Boeing for repair instructions. paragraph (k) ...... paragraph (l). Accomplishing the actions specified Change to Existing AD in the service information is intended to adequately address the unsafe This proposed AD would retain all Costs of Compliance condition. requirements of AD 2005–20–30. Since AD 2005–20–30 was issued, the AD There are about 209 airplanes of the FAA’s Determination and Requirements format has been revised, and certain affected design in the worldwide fleet. of the Proposed AD paragraphs have been rearranged. As a The following table provides the We have evaluated all pertinent result, the corresponding paragraph estimated costs for U.S. operators to information and identified an unsafe identifiers have changed in this comply with this proposed AD. The condition that is likely to develop on proposed AD, as listed in the following average labor rate is $80 per work hour. other airplanes of the same type design. table:

ESTIMATED COSTS

Cost per Work airplane, per Number of Action hours inspection U.S.-registered Fleet cost cycle airplanes

Inspections (required by AD 2005–20–30) ...... 130 $10,400 69 $717,600 Additional inspections in Area 1 (new proposed action) ...... 6 480 69 33,120 Additional inspections in Area 6 (new proposed action) ...... 1 80 69 5,520

Authority for This Rulemaking products identified in this rulemaking on a substantial number of small entities Title 49 of the United States Code action. under the criteria of the Regulatory specifies the FAA’s authority to issue Regulatory Findings Flexibility Act. rules on aviation safety. Subtitle I, We have determined that this We prepared a regulatory evaluation Section 106, describes the authority of proposed AD would not have federalism of the estimated costs to comply with the FAA Administrator. Subtitle VII, implications under Executive Order this proposed AD and placed it in the Aviation Programs, describes in more 13132. This proposed AD would not AD docket. See the ADDRESSES section detail the scope of the Agency’s have a substantial direct effect on the for a location to examine the regulatory authority. States, on the relationship between the evaluation. We are issuing this rulemaking under national Government and the States, or List of Subjects in 14 CFR Part 39 the authority described in Subtitle VII, on the distribution of power and Part A, Subpart III, Section 44701, responsibilities among the various Air transportation, Aircraft, Aviation ‘‘General requirements.’’ Under that levels of government. safety, Incorporation by reference, section, Congress charges the FAA with For the reasons discussed above, I Safety. promoting safe flight of civil aircraft in certify that the proposed regulation: air commerce by prescribing regulations 1. Is not a ‘‘significant regulatory The Proposed Amendment for practices, methods, and procedures action’’ under Executive Order 12866; the Administrator finds necessary for 2. Is not a ‘‘significant rule’’ under the Accordingly, under the authority safety in air commerce. This regulation DOT Regulatory Policies and Procedures delegated to me by the Administrator, is within the scope of that authority (44 FR 11034, February 26, 1979); and the FAA proposes to amend 14 CFR part because it addresses an unsafe condition 3. Will not have a significant 39 as follows: that is likely to exist or develop on economic impact, positive or negative,

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PART 39—AIRWORTHINESS Service Bulletin 747–53A2349 may be used. specified in paragraphs (j)(4), (j)(5), (j)(6), and DIRECTIVES Continue doing the inspections until the (j)(7) of this AD. Do the inspections in inspections required by paragraph (j) of this accordance with Boeing Service Bulletin 1. The authority citation for part 39 AD are done. 747–53A2349, Revision 2, dated April 3, continues to read as follows: (1) Section 42 upper lobe frames. 2003; or Boeing Alert Service Bulletin 747– (2) Section 46 lower lobe frames. 53A2349, Revision 3, dated October 2, 2008. Authority: 49 U.S.C. 106(g), 40113, 44701. (3) Section 42 lower lobe frames. After the effective date of this AD, only § 39.13 [Amended] (4) Main entry door cutouts. Revision 3 of Boeing Alert Service Bulletin (5) Section 41 body station 260, 340, and 747–53A2349 may be used. Do the 2. The FAA amends § 39.13 by 400 bulkheads. inspections at the applicable time specified removing amendment 39–14327 (70 FR (6) Main entry doors. in paragraph (k) of this AD. Accomplishment 59252, October 12, 2005) and adding the Note 1: For the purposes of this AD, a of these inspections terminates the following new AD: detailed inspection is: ‘‘An intensive requirements of paragraph (g) of this AD. examination of a specific item, installation, (1) Section 42 upper lobe frames. Boeing: Docket No. FAA–2009–0477; (2) Section 46 lower lobe frames. Directorate Identifier 2008-NM–191-AD. or assembly to detect damage, failure, or irregularity. Available lighting is normally (3) Section 42 lower lobe frames. Comments Due Date supplemented with a direct source of good (4) Main entry door cutouts. (5) Nose wheel well bulkheads, sidewall (a) The FAA must receive comments on lighting at an intensity deemed appropriate. panels, and Station (STA) 360 and 380 floor this AD action by July 10, 2009. Inspection aids such as mirror, magnifying lenses, etc., may be necessary. Surface beams. These areas include Section 41 body Affected ADs cleaning and elaborate procedures may be station 260, 340, and 400 bulkheads. (b) This AD supersedes AD 2005–20–30. required.’’ (6) Main entry doors. (7) Main electronics bay access door Applicability (h) Prior to the accumulation of 25,000 cutout. total flight cycles, or within 1,000 flight (k) Do the inspections required by (c) This AD applies to Boeing Model 747– cycles after June 11, 1993, whichever is later, 100, 747–100B, 747–100B SUD, 747–200B, paragraph (j) of this AD at the applicable time unless already done within the last 2,000 specified in paragraph (k)(1), (k)(2), or (k)(3) 747–300, 747SP, and 747SR series airplanes; flight cycles; and thereafter at intervals not to certificated in any category; identified in of this AD. Repeat the inspections thereafter exceed 3,000 flight cycles: Do an internal at intervals not to exceed 3,000 flight cycles. Boeing Service Bulletin 747–53A2349, detailed inspection to detect cracks in the Revision 3, dated October 2, 2008. (1) For airplanes on which the inspections Section 46 upper lobe frames, in accordance required by paragraphs (g)(1), (g)(2), (g)(3), Subject with Boeing Service Bulletin 747–53–2349, (g)(4), and (g)(6) of this AD have been done dated June 27, 1991; Boeing Alert Service before November 16, 2005 (the effective date (d) Air Transport Association (ATA) of Bulletin 747–53A2349, Revision 1, dated America Code 53: Fuselage. of AD 2005–20–30), but the inspections October 12, 2000; Boeing Service Bulletin required by paragraphs (j)(5) and (j)(7) of this Unsafe Condition 747–53A2349, Revision 2, dated April 3, AD have not been done: Within 3,000 flight (e) This AD results from fatigue tests and 2003; or Boeing Alert Service Bulletin 747– cycles since accomplishment of the most analysis by Boeing that identified areas of the 53A2349, Revision 3, dated October 2, 2008. recent inspection required by paragraphs fuselage where fatigue cracks can occur. We After the effective date of this AD, only (g)(1), (g)(2), (g)(3), (g)(4), and (g)(6) of this are issuing this AD to prevent the loss of the Revision 3 of Boeing Alert Service Bulletin AD, except that the inspections specified in structural integrity of the fuselage, which 747–53A2349 may be used. paragraphs (j)(5) and (j)(7) of this AD may be could result in rapid depressurization of the Repair of Cracks Detected During Paragraph done within 3,000 flight cycles since airplane. (g) or (h) Inspections accomplishment of the most recent inspection required by paragraphs (g)(1), (i) Before further flight, repair any cracks Compliance (g)(2), (g)(3), (g)(4), and (g)(6) of this AD, or detected during the inspections done per (f) You are responsible for having the within 1,000 flight cycles after November 16, paragraph (g) or (h) of this AD by doing the actions required by this AD performed within 2005, whichever is later. actions specified in paragraph (i)(1) or (i)(2) the compliance times specified, unless the (2) For airplanes on which the inspections of this AD, as applicable. actions have already been done. required by paragraphs (j)(5) and (j)(7) have (1) Repair in accordance with a method been done before November 16, 2005: Within Restatement of Requirements of AD 2002– approved by the Manager, Seattle Aircraft 3,000 flight cycles since accomplishment of 10–10 Certification Office (ACO), FAA; or using a the most recent inspection required by method approved in accordance with paragraphs (j)(5) and (j)(7) of this AD, or (Excluding Upper Deck Floor Beams) paragraph (p) of this AD. within 1,000 flight cycles after November 16, (2) Repair in accordance with Boeing Repetitive Inspections 2005, whichever is later. Service Bulletin 747–53A2349, Revision 2, (g) Prior to the accumulation of 22,000 total (3) For airplanes on which the inspections dated April 3, 2003; or Boeing Alert Service flight cycles, or within 1,000 flight cycles required by paragraph (g) of this AD have not Bulletin 747–53A2349, Revision 3, dated after June 11, 1993 (the effective date of AD been done before November 16, 2005: Prior October 2, 2008. After the effective date of 93–08–12, amendment 39–8559, which was to the accumulation of 22,000 total flight this AD, only Revision 3 of Boeing Alert superseded by AD 2002–10–10), whichever cycles, or within 1,000 flight cycles after Service Bulletin 747–53A2349 may be used. occurs later, unless accomplished previously November 16, 2005, whichever is later. within the last 2,000 flight cycles; and Where either revision of the service bulletin thereafter at intervals not to exceed 3,000 specifies to contact Boeing for repair Repair of Cracks Detected During Paragraph flight cycles: Perform an internal detailed instructions, repair in accordance with a (j) Inspection inspection to detect cracks in the areas of the method approved by the Manager, Seattle (l) Before further flight, repair any cracking fuselage internal structure specified in ACO; or using a method approved in found during any inspection required by paragraphs (g)(1) through (g)(6) of this AD; in accordance with paragraph (p) of this AD. paragraph (j) of this AD in accordance with accordance with Boeing Service Bulletin Restatement of Requirements of AD 2005– Boeing Service Bulletin 747–53A2349, 747–53–2349, dated June 27, 1991; Boeing 20–30 Revision 2, dated April 3, 2003; or Boeing Alert Service Bulletin 747–53A2349, Alert Service Bulletin 747–53A2349, Revision 1, dated October 12, 2000; Boeing Repetitive Inspections Revision 3, dated October 2, 2008. After the Service Bulletin 747–53A2349, Revision 2, (j) Do an internal detailed inspection to effective date of this AD, only Revision 3 of dated April 3, 2003; or Boeing Alert Service detect cracking in the areas of the fuselage Boeing Alert Service Bulletin 747–53A2349 Bulletin 747–53A2349, Revision 3, dated internal structure specified in paragraphs may be used. Where any revision of the October 2, 2008. After the effective date of (j)(1), (j)(2), and (j)(3) of this AD, and internal service bulletin specifies to contact Boeing this AD, only Revision 3 of Boeing Alert and external detailed inspections of the areas for repair instructions, repair in accordance

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with a method approved by the Manager, in Table 1 of this AD using applicable repetitive inspections at the times specified Seattle ACO; or using a method approved in internal and external detailed inspection in paragraph 1.E., ‘‘Compliance,’’ of the accordance with paragraph (p) of this AD. methods; and repair all cracks, by doing all service bulletin, except as required by New Requirements of This AD the applicable actions in accordance with the paragraph (o) of this AD. Repair all cracks Accomplishment Instructions of Boeing Alert before further flight after detection. Inspections and Repair Service Bulletin 747–53A2349, Revision 3, (m) Do initial and repetitive detailed dated October 2, 2008, except as required by inspections for cracking in the areas specified paragraph (n) of this AD. Do the initial and

TABLE 1—ADDITIONAL INSPECTIONS

For airplanes identified as Inspect the addition portion of area 1 and area 6 as specified in Boeing Alert Service Bulletin 747–53A2349, Revi- these groups in the service sion 3, dated October 2, 2008 (‘‘the service bulletin’’)— bulletin—

In Area 1: Fuselage frames at body stations 260–520 in areas where the upper deck floor beams are attached 1 through 7 inclusive. (Figure 11 of the Accomplishments Instructions of the service bulletin). In Area 6: Fuselage frames at body stations 400–500 in areas above the Main Entry Door 1 cutouts, from the 6 and 7. upper chord of the upper deck floor beams to Stringer 8 (Figure 12 of the Accomplishment Instructions of the service bulletin).

Exceptions to Certain Procedures authorized by the Manager, Seattle ACO, to would require repetitive ultrasonic (n) If any crack is found during any make those findings. For a repair method to inspections to detect any stress inspection required by paragraph (m) of this be approved, the repair must meet the corrosion cracks within the outboard AD, and Boeing Alert Service Bulletin 747– certification basis of the airplane, and the flange of the left and right body terminal 53A2349, Revision 3, dated October 2, 2008, approval must specifically refer to this AD. fittings at STA 820, and related specifies to contact Boeing for appropriate Issued in Renton, Washington, on May 15, investigative and corrective actions if action: Before further flight, repair the crack 2009. necessary. This proposed AD would using a method approved in accordance with Ali Bahrami, the procedures specified in paragraph (p) of also provide for an optional terminating this AD. Manager, Transport Airplane Directorate, action for the repetitive inspections. (o) Where Boeing Alert Service Bulletin Aircraft Certification Service. This proposed AD also adds two 747–53A2349, Revision 3, dated October 2, [FR Doc. E9–12111 Filed 5–22–09; 8:45 am] airplanes to the applicability. This 2008, specifies a compliance time after the BILLING CODE 4910–13–P proposed AD results from reports of date on Boeing Alert Service Bulletin 747– cracks found in the wing to body 53A2349, Revision 3, dated October 2, 2008, terminal fittings during routine this AD requires compliance within the DEPARTMENT OF TRANSPORTATION inspections. We are proposing this AD specified compliance time after the effective to detect and correct cracks and date of this AD. Federal Aviation Administration corrosion in the body terminal fittings Alternative Methods of Compliance above and below the floor, which could (AMOCs) 14 CFR Part 39 cause loss of support for the wing and (p)(1) The Manager, Seattle ACO, FAA, has [Docket No. FAA–2009–0476; Directorate could adversely affect the structural the authority to approve AMOCs for this AD, Identifier 2008–NM–188–AD] integrity of the airplane. if requested using the procedures found in 14 DATES: We must receive comments on CFR 39.19. Send information to Attn: Ivan Li, RIN 2120–AA64 Aerospace Engineer, Airframe Branch, ANM– this proposed AD by July 10, 2009. 120S, FAA, Seattle Aircraft Certification Airworthiness Directives; Boeing ADDRESSES: You may send comments by Office, 1601 Lind Avenue, SW., Renton, Model 707 Airplanes, and Model 720 any of the following methods: Washington 98057–3356; telephone (425) and 720B Series Airplanes • Federal eRulemaking Portal: Go to 917–6437; fax (425) 917–6590. Or, e-mail http://www.regulations.gov. Follow the information to 9-ANM-Seattle-ACO-AMOC- AGENCY: Federal Aviation instructions for submitting comments. [email protected]. Administration (FAA), Department of • Fax: 202–493–2251. (2) To request a different method of Transportation (DOT). • Mail: U.S. Department of compliance or a different compliance time ACTION: Notice of proposed rulemaking Transportation, Docket Operations, M– for this AD, follow the procedures in 14 CFR (NPRM). 30, West Building Ground Floor, Room 39.19. Before using any approved AMOC on W12–140, 1200 New Jersey Avenue, SE., any airplane to which the AMOC applies, SUMMARY: The FAA proposes to Washington, DC 20590. notify your principal maintenance inspector • (PMI) or principal avionics inspector (PAI), supersede an existing airworthiness Hand Delivery: U.S. Department of as appropriate, or lacking a principal directive (AD) that applies to certain Transportation, Docket Operations, M– inspector, your local Flight Standards District Boeing Model 707 airplanes, and Model 30, West Building Ground Floor, Room Office. The AMOC approval letter must 720 and 720B series airplanes. The W12–140, 1200 New Jersey Avenue, SE., specifically reference this AD. existing AD currently requires repetitive Washington, DC 20590, between 9 a.m. (3) AMOCs approved previously in detailed inspections to detect cracks and and 5 p.m., Monday through Friday, accordance with AD 2005–20–30 are corrosion on any existing repairs and at except Federal holidays. approved as AMOCs with the corresponding certain body stations (STA) of the For service information identified in provisions of this AD. visible surfaces of the wing to body this AD, contact Boeing Commercial (4) An AMOC that provides an acceptable level of safety may be used for any repair terminal fittings including the web, Airplanes, Attention: Data & Services required by this AD, if it is approved by an flanges, and ribs; and applicable related Management, P.O. Box 3707, MC 2H–65, Authorized Representative for the Boeing investigative and corrective actions. Seattle, Washington 98124–2207; Commercial Airplanes Delegation Option This proposed AD would retain the telephone 206–544–5000, extension 1; Authorization Organization who has been requirements of the existing AD and fax 206–766–5680; e-mail,

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[email protected]; Internet, closing date and may amend this outboard flange of the left and right https://www.myboeingfleet.com. You proposed AD because of those body terminal fittings at STA 820, and may review copies of the referenced comments. if necessary, related investigative and service information at the FAA, We will post all comments we corrective actions. The related Transport Airplane Directorate, 1601 receive, without change, to http:// investigative action is an inspection to Lind Avenue, SW., Renton, Washington. www.regulations.gov, including any determine whether the modification or For information on the availability of personal information you provide. We repair meets the specifications of Boeing this material at the FAA, call 425–227– will also post a report summarizing each 707/720 Service Bulletin 2912, Revision 1221 or 425–227–1152. substantive verbal contact we receive 1, dated March 13, 1970. The corrective about this proposed AD. action is contacting Boeing for repair Examining the AD Docket instructions. Revision 1 of Boeing 707 You may examine the AD docket on Discussion Alert Service Bulletin A3524 also adds the Internet at http:// On August 6, 2008, we issued AD two airplanes to the effectivity. www.regulations.gov; or in person at the 2008–17–10, amendment 39–15648 (73 Boeing 707 Alert Service Bulletin Docket Management Facility between 9 FR 50703, August 28, 2008), for certain A3524, Revision 1, refers to Boeing 707/ a.m. and 5 p.m., Monday through Boeing Model 707 airplanes, and Model 720 Service Bulletin 2912, Revision 1, Friday, except Federal holidays. The AD 720 and 720B series airplanes. That AD dated March 13, 1970, as an additional docket contains this proposed AD, the requires repetitive detailed inspections source of service information for doing regulatory evaluation, any comments to detect cracks and corrosion on any certain inspections and repairs. received, and other information. The existing repairs and at certain body street address for the Docket Office stations (STA) of the visible surfaces of FAA’s Determination and Requirements (telephone 800–647–5527) is in the the wing to body terminal fittings of the Proposed AD ADDRESSES section. Comments will be including the web, flanges and ribs; and We have evaluated all pertinent available in the AD docket shortly after applicable related investigative and information and identified an unsafe receipt. corrective actions. That AD resulted condition that is likely to develop on FOR FURTHER INFORMATION CONTACT: from reports of cracks found in the wing other airplanes of the same type design. Berhane Alazar, Aerospace Engineer, to body terminal fittings during routine For this reason, we are proposing this Airframe Branch, ANM–120S, FAA, inspections. We issued that AD to detect AD, which would supersede AD 2008– Seattle Aircraft Certification Office, and correct cracks and corrosion in the 17–10 and would retain the 1601 Lind Avenue, SW., Renton, body terminal fittings, which could requirements of the existing AD. This Washington 98057–3356; telephone cause loss of support for the wing and proposed AD would also add, for certain (425) 917–6577; fax (425) 917–6590. could adversely affect the structural airplanes, repetitive ultrasonic SUPPLEMENTARY INFORMATION: integrity of the airplane. inspections to detect any stress corrosion cracks within the outboard Relevant Service Information Comments Invited flange of the left and right body terminal We invite you to send any written We have reviewed Boeing 707 Alert fittings at STA 820, and related relevant data, views, or arguments about Service Bulletin A3524, Revision 1, investigative and corrective actions if this proposed AD. Send your comments dated September 18, 2008. (AD 2008– necessary. This proposed AD would to an address listed under the 17–10 refers to Boeing 707 Special also add two airplanes to the ADDRESSES section. Include ‘‘Docket No. Attention Service Bulletin 3524, dated applicability. FAA–2009–0476; Directorate Identifier July 18, 2007, as the appropriate source 2008–NM–188–AD’’ at the beginning of of service information for accomplishing Costs of Compliance your comments. We specifically invite the required actions in that AD.) There are about 128 airplanes of the comments on the overall regulatory, Revision 1 of this service bulletin adds affected design in the worldwide fleet. economic, environmental, and energy procedures, for certain airplanes, to do The following table provides the aspects of this proposed AD. We will repetitive ultrasonic inspections for estimated costs for U.S. operators to consider all comments received by the stress corrosion cracks within the comply with this proposed AD.

ESTIMATED COSTS

Number of Average U.S.- Action Work hours labor rate Cost per airplane registered Fleet cost per hour airplanes

Inspections (required by 20 ...... $80 $1,600 per inspection 11 ...... $17,600 per inspection AD 2008–17–10). cycle. cycle. Inspections (new proposed 20 to 30, depending on 80 $1,600 to $2,400 per in- Up to 13 ...... Up to $31,200 per inspec- action). group. spection cycle. tion cycle.

Authority for This Rulemaking detail the scope of the Agency’s air commerce by prescribing regulations authority. for practices, methods, and procedures Title 49 of the United States Code We are issuing this rulemaking under the Administrator finds necessary for specifies the FAA’s authority to issue safety in air commerce. This regulation rules on aviation safety. Subtitle I, the authority described in Subtitle VII, Part A, Subpart III, Section 44701, is within the scope of that authority Section 106, describes the authority of ‘‘General requirements.’’ Under that because it addresses an unsafe condition the FAA Administrator. Subtitle VII, section, Congress charges the FAA with that is likely to exist or develop on Aviation Programs, describes in more promoting safe flight of civil aircraft in

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products identified in this rulemaking Model 720 and 720B series airplanes; was done in accordance with Boeing 707/720 action. certificated in any category; as identified in Service Bulletin 2912, Revision 1, dated Boeing 707 Alert Service Bulletin A3524, March 13, 1970: At the later of the times Regulatory Findings Revision 1, dated September 18, 2008. specified in paragraphs (j)(1) and (j)(2) of this We have determined that this AD, do an ultrasonic inspection to detect any Subject stress corrosion cracks within the outboard proposed AD would not have federalism (d) Air Transport Association (ATA) of flange of the left and right body terminal implications under Executive Order America Code 57: Wings. fittings at body station (STA) 820, and all 13132. This proposed AD would not applicable related investigative and have a substantial direct effect on the Unsafe Condition corrective actions, by accomplishing all the States, on the relationship between the (e) This AD results from new findings of actions specified in the Accomplishment national Government and the States, or cracks found in the wing to body terminal Instructions of Boeing 707 Alert Service on the distribution of power and fittings during routine inspections. We are Bulletin A3524, Revision 1, dated September issuing this AD to detect and correct cracks 18, 2008, except as provided by paragraph responsibilities among the various and corrosion in the body terminal fittings (m) of this AD. Repeat the ultrasonic levels of government. above and below the floor, which could inspection thereafter at intervals not to For the reasons discussed above, I cause loss of support for the wing and could exceed 24 months or 2,000 flight cycles, certify that the proposed regulation: adversely affect the structural integrity of the whichever occurs first. Do all applicable 1. Is not a ‘‘significant regulatory airplane. related investigative and corrective actions before further flight. action’’ under Executive Order 12866; Compliance 2. Is not a ‘‘significant rule’’ under the (1) Within 24 months or 2,000 flight cycles DOT Regulatory Policies and Procedures (f) You are responsible for having the after the effective date of this AD, whichever (44 FR 11034, February 26, 1979); and actions required by this AD performed within occurs first. the compliance times specified, unless the (2) Within 24 months or 2,000 flight cycles 3. Will not have a significant actions have already been done. after doing the repair or modification, economic impact, positive or negative, whichever occurs first. on a substantial number of small entities Restatement of Requirements of AD 2008– (k) For Group 3 and 4 airplanes identified under the criteria of the Regulatory 17–10 in Boeing 707 Alert Service Bulletin A3524, Flexibility Act. Inspections and Corrective Actions Revision 1, dated September 18, 2008: Within 2,000 flight cycles or 24 months after We prepared a regulatory evaluation (g) For airplanes identified in Boeing 707 the effective date of this AD, whichever of the estimated costs to comply with Special Attention Service Bulletin 3524, occurs first, do an ultrasonic inspection to this proposed AD and placed it in the dated July 18, 2007: Within 24 months after detect any stress corrosion cracks within the ADDRESSES October 2, 2008 (the effective date of AD AD docket. See the section outboard flange of the left and right body for a location to examine the regulatory 2008–17–10), do detailed inspections and terminal fittings at STA 820, and all evaluation. applicable related investigative and applicable corrective actions, by corrective actions, by accomplishing all the accomplishing all the actions specified in the List of Subjects in 14 CFR Part 39 actions specified in the Accomplishment Accomplishment Instructions of Boeing 707 Air transportation, Aircraft, Aviation Instructions of Boeing 707 Special Attention Alert Service Bulletin A3524, Revision 1, Service Bulletin 3524, dated July 18, 2007; or dated September 18, 2008, except as safety, Incorporation by reference, Boeing 707 Alert Service Bulletin A3524, Safety. provided by paragraph (m) of this AD. Repeat Revision 1, dated September 18, 2008; except the ultrasonic inspection thereafter at The Proposed Amendment as provided by paragraph (h) of this AD. intervals not to exceed 24 months or 2,000 After the effective date of this AD, use only flight cycles, whichever occurs first. Do all Accordingly, under the authority Boeing 707 Alert Service Bulletin A3524, applicable corrective actions before further delegated to me by the Administrator, Revision 1, dated September 18, 2008. Repeat flight. the FAA proposes to amend 14 CFR part the detailed inspections thereafter at (l) For Group 4 airplanes identified in 39 as follows: intervals not to exceed 24 months. Do all Boeing 707 Alert Service Bulletin A3524, applicable related investigative and Revision 1, dated September 18, 2008: PART 39—AIRWORTHINESS corrective actions before further flight. Within 24 months after the effective date of DIRECTIVES (h) If any crack or corrosion is found this AD, do detailed inspections for corrosion during any inspection required by paragraph and cracking of the body terminal fittings at 1. The authority citation for part 39 (g) of this AD, and Boeing 707 Special STA 820, and all applicable related continues to read as follows: Attention Service Bulletin 3524, dated July investigative and corrective actions, by 18, 2007; or Boeing 707 Alert Service Authority: 49 U.S.C. 106(g), 40113, 44701. accomplishing all the actions specified in the Bulletin A3524, Revision 1, dated September Accomplishment Instructions of Boeing 707 18, 2008; specifies to contact Boeing for § 39.13 [Amended] Alert Service Bulletin A3524, Revision 1, appropriate action: Before further flight, 2. The FAA amends § 39.13 by dated September 18, 2008, except as repair the terminal fittings using a method provided by paragraph (m) of this AD. Repeat removing amendment 39–15648 (73 FR approved in accordance with the procedures the detailed inspections thereafter at 50703, August 28, 2008) and adding the specified in paragraph (o) of this AD. intervals not to exceed 24 months. Do all following new AD: No Information Submission applicable related investigative and corrective actions before further flight. Boeing: Docket No. FAA–2009–0476; (i) Although Boeing 707 Special Attention Directorate Identifier 2008–NM–188–AD. Service Bulletin 3524, dated July 18, 2007; Exception to Certain Procedures Comments Due Date and Boeing 707 Alert Service Bulletin A3524, (m) If any crack or corrosion is found Revision 1, dated September 18, 2008; during any inspection required by paragraph (a) The FAA must receive comments on specify to submit information to the this AD action by July 10, 2009. (j), (k), or (l) of this AD, and Boeing 707 Alert manufacturer, this AD does not include that Service Bulletin A3524, Revision 1, dated Affected ADs requirement. September 18, 2008, specifies to contact (b) This AD supersedes AD 2008–17–10. New Requirements of This AD Boeing for appropriate action: Before further flight, repair the terminal fittings using a Applicability Inspections method approved in accordance with the (c) This AD applies to Model 707–100 long (j) For Group 1 and Group 2 airplanes procedures specified in paragraph (o) of this body, –200, –100B long body, and –100B identified in Boeing 707 Alert Service AD. short body series airplanes; Model 707–300, Bulletin A3524, Revision 1, dated September Note 1: Boeing 707 Alert Service Bulletin –300B, –300C, and –400 series airplanes; and 18, 2008, on which a modification or repair A3524, Revision 1, dated September 18,

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2008, refers to Boeing 707/720 Service SUMMARY: On March 19, 2009, the DEPARTMENT OF HOMELAND Bulletin 2912, Revision 1, dated March 13, Federal Energy Regulatory Commission SECURITY 1970, as an additional source of service (Commission) issued a Proposed Policy information for doing certain inspections and Coast Guard repairs. Statement and Action Plan that, among other things, proposed an interim rate Optional Terminating Action policy to encourage the development of 33 CFR Part 110 (n) Replacing a body terminal fitting with smart grid systems. On May 19, 2009, [Docket No. USCG–2008–1232] a fitting made from 7075–T73 material, using the Commission issued a Notice a method approved in accordance with the Requesting Supplemental Comments RIN 1625–AA01 procedures specified in paragraph (o) of this regarding rate recovery for certain smart AD, terminates the repetitive inspections Anchorages; New and Revised required by this AD for that fitting only. grid investments. The Commission is Anchorages in the Captain of the Port extending the date for filing these Alternative Methods of Compliance (AMOCs) Portland, OR, Area of Responsibility supplemental comments. (o)(1) The Manager, Seattle Aircraft AGENCY: Coast Guard, DHS. Certification Office (ACO), FAA, has the DATES: Comments are due June 2, 2009. authority to approve AMOCs for this AD, if ACTION: Notice of proposed rulemaking. requested using the procedures found in 14 FOR FURTHER INFORMATION CONTACT: SUMMARY: CFR 39.19. Send information to ATTN: Ray Palmer (Technical Information), The Coast Guard proposes the establishment of a new anchorage, Berhane Alazar, Aerospace Engineer, Office of Energy Policy and Innovation, Airframe Branch, ANM–120S, FAA, Seattle modification of existing anchorages, and Federal Energy Regulatory Commission, Aircraft Certification Office, 1601 Lind revision of the regulations governing Avenue, SW., Renton, Washington 98057– 888 First Street, NE., Washington, DC anchorages in the Captain of the Port 3356; telephone (425) 917–6577; fax (425) 20426, (202) 502–6569 . Portland, Oregon, area of responsibility. 917–6590; or, e-mail information to 9-ANM- Elizabeth Arnold (Legal Information), These changes are necessary to ensure [email protected]. (2) To request a different method of Office of the General Counsel, Federal sufficient anchorage opportunities in compliance or a different compliance time Energy Regulatory Commission, 888 that area, and to clarify the locations of for this AD, follow the procedures in 14 CFR First Street, NE., Washington, DC 20426, those anchorage opportunities. In 39.19. Before using any approved AMOC on (202) 502–8818. addition, the changes will help prevent any airplane to which the AMOC applies, conflicts with navigable channels and notify your principal maintenance inspector SUPPLEMENTARY INFORMATION: other uses of anchorage waters. (PMI) or principal avionics inspector (PAI), On March 19, 2009, the Federal DATES: Comments and related material as appropriate, or lacking a principal Energy Regulatory Commission inspector, your local Flight Standards District must be received by the Coast Guard on Office. The AMOC approval letter must (Commission) issued a Proposed Policy or before July 27, 2009. Requests for specifically reference this AD. Statement and Action Plan (Proposed public meetings must be received by the (3) An AMOC that provides an acceptable Policy Statement) in the above- Coast Guard on or before June 25, 2009. level of safety may be used for any repair captioned proceeding that, among other ADDRESSES: You may submit comments required by this AD, if it is approved by an things, proposed an interim rate policy Authorized Representative for the Boeing identified by docket number USCG– to encourage the development of Smart 2008–1232 using any one of the Commercial Airplanes Delegation Option 1 Authorization Organization who has been Grid systems. On May 19, 2009, the following methods: authorized by the Manager, Seattle ACO, to Commission issued a notice in this (1) Federal eRulemaking Portal: make those findings. For a repair method to docket seeking supplemental comments http://www.regulations.gov. be approved, the repair must meet the regarding rate recovery for certain grid (2) Fax: 202–493–2251. certification basis of the airplane, and the investments.2 The Commission is (3) Mail: Docket Management Facility approval must specifically refer to this AD. hereby extending the comment deadline (M–30), U.S. Department of Issued in Renton, Washington, on May 15, established in the May 19 Notice. Transportation, West Building Ground 2009. By this instant notice, the date for Floor, Room W12–140, 1200 New Jersey Ali Bahrami, filing supplemental comments is Avenue, SE., Washington, DC 20590– Manager, Transport Airplane Directorate, 0001. extended to and including June 2, 2009. Aircraft Certification Service. (4) Hand Delivery: Same as mail [FR Doc. E9–12112 Filed 5–22–09; 8:45 am] Kimberly D. Bose, address above, between 9 a.m. and 5 BILLING CODE 4910–13–P Secretary. p.m., Monday through Friday, except [FR Doc. E9–12243 Filed 5–22–09; 8:45 am] Federal holidays. The telephone number is 202–366–9329. BILLING CODE 6717–01–P DEPARTMENT OF ENERGY To avoid duplication, please use only one of these four methods. See the Federal Energy Regulatory ‘‘Public Participation and Request for Commission Comments’’ portion of the SUPPLEMENTARY INFORMATION section 18 CFR Chapter I below for instructions on submitting [Docket No. PL09–4–000] comments. 1 Smart Grid Policy, 126 FERC ¶ 61,253 (2009). As FOR FURTHER INFORMATION CONTACT: If Smart Grid Policy; Notice of Extension the Proposed Policy Statement described, Smart you have questions on this proposed of Time Grid advancements will apply digital technologies rule, call or e-mail MST1 Jaime Sayers, to the electric transmission system and enable real- May 21, 2009. time coordination of information from various Waterways Management Branch, Coast AGENCY: Federal Energy Regulatory resources to bring new efficiencies to the grid. Id. Guard Sector Portland, telephone 503– Commission. P 1. 240–9300, e-mail: 2 [email protected]. If you have ACTION: Notice of extension of time. Smart Grid Policy, 127 FERC ¶ 61,139 (2009) (May 19 Notice). questions on viewing or submitting

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material to the docket, call Renee V. right side of the screen, insert USCG– revised to ensure that anchored vessels Wright, Program Manager, Docket 2008–1232 in the Docket ID box, press are clear of the navigable channel and Operations, telephone 202–366–9826. Enter, and then click on the item in the that the anchorage correlates with SUPPLEMENTARY INFORMATION: Docket ID column. You may also visit current NOAA navigational charts. The Public Participation and Request for the Docket Management Facility in Longview Anchorage would be revised Comments Room W12–140 on the ground floor of to move it out of the navigational We encourage you to participate in the Department of Transportation West channel and expand it to account for this rulemaking by submitting Building, 1200 New Jersey Avenue, SE., vessel swing. The Kalama Anchorage comments and related materials. All Washington, DC 20590, between 9 a.m. would be revised to provide additional comments received will be posted and 5 p.m., Monday through Friday, anchoring area and add an additional without change to http:// except Federal holidays. We have an area to accommodate the swing of www.regulations.gov and will include agreement with the Department of vessels. The Woodland Anchorage any personal information you have Transportation to use the Docket would be revised to ensure the provided. Management Facility. anchorage correlates with current NOAA navigational charts. The Henrici Submitting Comments Privacy Act Bar Anchorage would be revised to If you submit a comment, please Anyone can search the electronic move it out of the navigational channel. include the docket number for this form of comments received into any of The Willow Bar Anchorage would be rulemaking (USCG–2008–1232), our dockets by the name of the renamed the Vancouver Lower indicate the specific section of this individual submitting the comment (or Anchorage and revised to consolidate document to which each comment signing the comment, if submitted on the Willow Bar Anchorage and the applies, and provide a reason for each behalf of an association, business, labor anchorage areas off of the Morgan Bar. suggestion or recommendation. You union, etc.). You may review a Privacy The Kelley Point Anchorage would be may submit your comments and Act notice regarding our public dockets revised to ensure the anchorage material online (via http:// in the January 17, 2008, issue of the correlates with current NOAA www.regulations.gov) or by fax, mail, or Federal Register (73 FR 3316). navigational charts. The Hayden Island hand delivery, but please use only one Public Meeting Anchorage would be renamed the Upper of these means. If you submit a Vancouver Anchorage and revised to comment online via http:// We do not now plan to hold a public expand the anchorage and move the www.regulations.gov, it will be meeting. But, you may submit a request anchorage out of the navigational considered received by the Coast Guard for one on or before June 25, 2009 using channel. when you successfully transmit the one of the four methods specified under comment. If you fax, hand deliver, or ADDRESSES. Please explain why you The proposed rule would also create mail your comment, it will be believe a public meeting would be a new anchorage called the Cottonwood considered as having been received by beneficial. If we determine that a public Island Anchorage near Cottonwood the Coast Guard when it is received at meeting would aid this rulemaking, we Island. the Docket Management Facility. We will hold one at a time and place The regulations governing the recommend that you include your name announced by a later notice in the anchorages would be amended to and a mailing address, an e-mail Federal Register. remove provisions that are no longer address, or a telephone number in the Background and Purpose necessary, due to changes in the use of body of your document so that we can the anchorage areas for fishing, and to contact you if we have questions The establishment of a new add a provision to prevent anchoring regarding your submission. anchorage, modification of existing vessels from entangling underground To submit your comment online, go to anchorages, and revision of the cables. http://www.regulations.gov, select the regulations governing anchorages Advanced Docket Search option on the contained in this rule are necessary to Regulatory Analyses right side of the screen, insert ‘‘USCG– ensure sufficient anchorage We developed this proposed rule after 2008–1232’’ in the Docket ID box, press opportunities in the Captain of the Port considering numerous statutes and Enter, and then click on the balloon Portland, Oregon, area of responsibility, executive orders related to rulemaking. shape in the Actions column. If you and ensure that the locations of those Below we summarize our analyses submit your comments by mail or hand opportunities are clear. In addition, the based on 13 of these statutes or delivery, submit them in an unbound changes will help prevent conflicts with executive orders. format, no larger than 81⁄2 by 11 inches, navigable channels and other uses of suitable for copying and electronic anchorage waters. Currently, there are Regulatory Planning and Review filing. If you submit comments by mail insufficient anchorage opportunities in and would like to know that they the Captain of the Port Portland, This proposed rule is not a significant reached the Facility, please enclose a Oregon, area of responsibility, and many regulatory action under section 3(f) of stamped, self-addressed postcard or of them conflict with navigable Executive Order 12866, Regulatory envelope. We will consider all channels and other uses of the Planning and Review, and does not comments and material received during anchorage waters. require an assessment of potential costs the comment period and may change and benefits under section 6(a)(3) of that Discussion of Proposed Rule the rule based on your comments. Order. The Office of Management and The proposed rule would revise the Budget has not reviewed it under that Viewing Comments and Documents following anchorages as noted. The Order. The establishment of a new To view comments, as well as Astoria North Anchorage would be anchorage, modification of existing documents mentioned in this preamble revised to provide additional anchoring anchorages, and revision of the as being available in the docket, go to area and add an additional area to regulations governing anchorages do not http://www.regulations.gov, select the accommodate the swing of vessels. The have any significant costs associated Advanced Docket Search option on the Astoria South Anchorage would be with them.

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Small Entities Federalism Energy Effects Under the Regulatory Flexibility Act A rule has implications for federalism We have analyzed this proposed rule (5 U.S.C. 601–612), we have considered under Executive Order 13132, under Executive Order 13211, Actions whether this proposed rule would have Federalism, if it has a substantial direct Concerning Regulations That a significant economic impact on a effect on State or local governments and Significantly Affect Energy Supply, substantial number of small entities. would either preempt State law or Distribution, or Use. We have The term ‘‘small entities’’ comprises impose a substantial direct cost of determined that it is not a ‘‘significant small businesses, not-for-profit compliance on them. We have analyzed energy action’’ under that order because organizations that are independently this proposed rule under that Order and it is not a ‘‘significant regulatory action’’ owned and operated and are not have determined that it does not have under Executive Order 12866 and is not dominant in their fields, and implications for federalism. likely to have a significant adverse effect governmental jurisdictions with on the supply, distribution, or use of populations of less than 50,000. Unfunded Mandates Reform Act energy. The Administrator of the Office The Coast Guard certifies under 5 The Unfunded Mandates Reform Act of Information and Regulatory Affairs U.S.C. 605(b) that this proposed rule of 1995 (2 U.S.C. 1531–1538) requires has not designated it as a significant would not have a significant economic Federal agencies to assess the effects of energy action. Therefore, it does not impact on a substantial number of small their discretionary regulatory actions. In require a Statement of Energy Effects entities. This proposed rule would affect particular, the Act addresses actions under Executive Order 13211. the following entities, some of which that may result in the expenditure by a Technical Standards might be small entities: The owners or State, local, or tribal government, in the operators of vessels intending to transit aggregate, or by the private sector of The National Technology Transfer or anchor in the Captain of the Port $100,000,000 or more in any one year. and Advancement Act (NTTAA) (15 Portland, Oregon, area of responsibility. Though this proposed rule would not U.S.C. 272 note) directs agencies to use However, the establishment of a new result in such an expenditure, we do voluntary consensus standards in their anchorage, modification of existing discuss the effects of this rule elsewhere regulatory activities unless the agency anchorages, and revision of the in this preamble. provides Congress, through the Office of regulations governing anchorages that Management and Budget, with an would result from this rule would have Taking of Private Property explanation of why using these no economic impact on small entities standards would be inconsistent with This proposed rule would not affect a because anchorages can still be transited applicable law or otherwise impractical. taking of private property or otherwise and used for other maritime activities Voluntary consensus standards are have taking implications under besides anchoring. technical standards (e.g., specifications Executive Order 12630, Governmental If you think that your business, of materials, performance, design, or Actions and Interference with organization, or governmental operation; test methods; sampling Constitutionally Protected Property jurisdiction qualifies as a small entity procedures; and related management Rights. and that this rule would have a systems practices) that are developed or significant economic impact on it, Civil Justice Reform adopted by voluntary consensus please submit a comment (see standards bodies. This proposed rule meets applicable ADDRESSES) explaining why you think it This proposed rule does not use qualifies and how and to what degree standards in sections 3(a) and 3(b)(2) of technical standards. Therefore, we did this rule would economically affect it. Executive Order 12988, Civil Justice not consider the use of voluntary Reform, to minimize litigation, consensus standards. Assistance for Small Entities eliminate ambiguity, and reduce Environment Under section 213(a) of the Small burden. Business Regulatory Enforcement Protection of Children We have analyzed this proposed rule Fairness Act of 1996 (Pub. L. 104–121), under Department of Homeland we want to assist small entities in We have analyzed this proposed rule Security Management Directive 023–01 understanding this proposed rule so that under Executive Order 13045, and Commandant Instruction they can better evaluate its effects on Protection of Children from M16475.lD, which guide the Coast them and participate in the rulemaking. Environmental Health Risks and Safety Guard in complying with the National If the rule would affect your small Risks. This rule is not an economically Environmental Policy Act of 1969 business, organization, or governmental significant rule and would not create an (NEPA) (42 U.S.C. 4321–4370f), and jurisdiction and you have questions environmental risk to health or risk to have made a preliminary determination concerning its provisions or options for safety that might disproportionately that this action is one of a category of compliance, please contact the affect children. actions that do not individually or Waterways Management Branch, Coast Indian Tribal Governments cumulatively have a significant effect on Guard Sector, Portland, Oregon, the human environment. A preliminary telephone 503–240–9300. The Coast This proposed rule does not have environmental analysis checklist Guard will not retaliate against small tribal implications under Executive supporting this determination is entities that question or complain about Order 13175, Consultation and available in the docket where indicated this proposed rule or any policy or Coordination with Indian Tribal under ADDRESSES. This proposed rule action of the Coast Guard. Governments, because it would not have involves the establishment of a new a substantial direct effect on one or anchorage, modification of existing Collection of Information more Indian tribes, on the relationship anchorages, and revision of the This proposed rule would call for no between the Federal Government and regulations governing anchorages in the new collection of information under the Indian tribes, or on the distribution of Captain of the Port Portland, Oregon, Paperwork Reduction Act of 1995 (44 power and responsibilities between the area of responsibility, which are U.S.C. 3501–3520.). Federal Government and Indian tribes. categorically excluded under section

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2.B.2 Figure 2–1, paragraph 34(f), of the of Longview, Washington, at latitude longitude 122°46′49.14″ W; thence Instruction. We seek any comments or 46°06′28.69″ N, longitude 122°57′38.33″ continuing east-southeasterly to latitude information that may lead to the W; thence continuing northwesterly to 45°46′44.95″ N, longitude 122°46′13.23″ discovery of a significant environmental latitude 46°06′41.71″ N, longitude W, thence continuing southeasterly to impact from this proposed rule. 122°58′01.25″ W; thence continuing latitude 45°46′25.67″ N, longitude westerly to latitude 46°07′22.55″ N, 122°46′00.54″ W; thence continuing List of Subjects in 33 CFR Part 110 longitude 122°59′00.81″ W; thence south-southeasterly to latitude Anchorage grounds. continuing westerly to latitude 45°46′02.69″ N, longitude 122°45′50.32″ For the reasons discussed in the 46°07′36.21″ N, longitude 122°59′19.29″ N, longitude 122°45′50.32″ W; thence preamble, the Coast Guard proposes to W; thence continuing southwesterly to continuing southerly to latitude amend 33 CFR part 110 as follows: latitude 46°07′28.44″ N, longitude 45°45′43.66″ N, longitude 122°45′45.33″ 122°59′31.18″ W; thence continuing W; thence continuing southerly to PART 110—ANCHORAGE easterly to latitude 46°07′14.77″ N, latitude 45°45′37.52″ N, longitude REGULATIONS longitude 122°59′12.70″ W; thence 122°45′44.99″ W; thence continuing continuing easterly to latitude westerly to latitude 45°45′37.29″ N, 1. The authority citation for part 110 ° ′ ″ ° ′ ″ ° ′ ″ continues to read as follows: 46 06 42.01 N, longitude 122 58 28.41 longitude 122 45 53.06 W; thence W; thence continuing northeasterly to continuing north-northwesterly to Authority: 33 U.S.C. 471, 1221 through latitude 46°06′34.27″ N, longitude latitude 45°46′15.94″ N, longitude 1236, 2030, 2035, 2071; 33 CFR 1.05–1; 122°58′14.21″ W; thence continuing 122°46′10.25″ W; thence continuing Department of Homeland Security Delegation ° ′ ″ No. 0170.1. northeasterly to latitude 46 06 32.19 N, west-northwesterly to latitude longitude 122°58′08.77″ W; thence 45°47′20.20″ N, longitude 122°46′59.28″ 2. Revise § 110.228 to read as follows: continuing northeasterly to latitude W; thence continuing easterly to the § 110.228 Columbia River, Oregon and 46°06′22.44″ N, longitude 122°57′43.27″ point of beginning. Washington. W; thence continuing northeasterly to (7) Lower Vancouver Anchorage. An (a) Anchorage grounds—(1) Astoria the point of the beginning. area enclosed by a line beginning north- North Anchorage. An area enclosed by (4) Kalama Anchorage. An area to be northeast of Reeder Point at latitude a line beginning northeast of Astoria, enclosed by a line beginning north- 45°43′39.18″ N, longitude 122°45′27.54″ ° ′ ″ Oregon, at latitude 46 12 00.79 N, northwesterly of Sandy Island at W; thence continuing south- ° ′ ″ longitude 123 49 55.40 W; thence latitude 46°01′20.48″ N, longitude southwesterly to latitude 45°41′26.95″ continuing easterly to latitude 122°52′04.32″ W; thence continuing N, longitude 122°46′13.83″ W; thence ° ′ ″ ° ′ ″ 46 12 02.00 N, longitude 123 49 40.09 east-southeasterly to latitude continuing southerly to latitude W; thence continuing east-northeasterly 46°00′57.73″ N, longitude 122°51′35.14″ 45°40′35.72″ N, longitude 122°46′09.98″ ° ′ ″ to latitude 46 13 14.85 N, longitude W; thence continuing east-southeasterly W; thence continuing south- ° ′ ″ 123 46 27.89 W; thence continuing to latitude 46°00′53.95″ N, longitude southeasterly to latitude 45°40′23.95″ N, south-southeasterly to latitude 122°51′30.29″ W; thence continuing longitude 122°46′04.26″ W; thence 46°13′00.56″ N, longitude 123°46′16.65″ southeasterly to latitude 46°00′35.10″ N, continuing west-southwesterly to W; thence continuing southwesterly to longitude 122°51′15.37″ W; thence latitude 45°40′20.68″ N, longitude latitude 46°11′51.79″ N, longitude continuing south-southeasterly to 122°46′16.07″ W; thence continuing 123°49′18.08″ W; thence continuing latitude 45°59′41.48″ N, longitude northwesterly to latitude 45°40′32.85″ west-southwesterly to latitude 122°50′52.40″ W; thence continuing N, longitude 122°46′21.98″ W; thence 46°11′46.27″ N, longitude 123°49′43.48″ southwesterly to latitude 45°59′38.65″ continuing north-northwesterly to W; thence continuing west- N, longitude 122°51′05.97″ W; thence latitude 45°41′01.03″ N, longitude southwesterly to latitude 46°11′44.98″ continuing north-northwesterly to 122°46′26.85″ W; thence continuing N, longitude 123°49′49.44″ W; thence latitude 46°00′36.82″ N, longitude northerly to latitude 45°41′29.07″ N, continuing westerly to latitude 122°51′45.44″ W; thence continuing longitude 12°46′26.15″ W; thence 46°11′44.32″ N, longitude 123°49′58.88″ west-northwesterly to latitude continuing north-northeasterly to W; thence continuing northeasterly to 46°01′24.38″ N, longitude 122°52′21.20″ latitude 45°43′41.27″ N, longitude the point of the beginning. W; thence continuing northeasterly to 122°45′39.87″ W; thence continuing (2) Astoria South Anchorage. An area the beginning. easterly to the point of the beginning. enclosed by a point beginning east- (5) Woodland Anchorage. An area The Vancouver lower anchorage will northeast of Astoria, Oregon, at latitude enclosed by a line beginning northeast then resume slightly further upstream at 46°11′46.95″ N, longitude 123°49′13.04″ of Columbia City, Oregon, at latitude an area north of Kelly point and will be W; thence continuing northeasterly to 45°53′55.31″ N, longitude 122°48′17.35″ enclosed by a line starting at latitude latitude 46°13′02.18″ N, longitude W; thence continuing easterly to 45°40′10.09″ N, longitude 122°45′57.53″ 123°45′54.55″ W; thence continuing to latitude 45°53′57.11″ N, longitude W; thence continuing to southeasterly to easterly to latitude 46°13′05.90″ N, 122°48′02.16″ W; thence continuing latitude 45°39′42.94″ N, longitude longitude 123°45′41.55″ W; thence south-southeasterly to latitude 122°45′44.34″ W; thence continuing continuing southeasterly to latitude 45°53′21.16″ N, longitude 122°47′44.28″ west-southwesterly to latitude 46°12′55.16″ N, longitude 123°45′34.31″ W; thence continuing westerly to 45°39′40.07″ N, longitude 122°45′56.34″ W; thence continuing southwesterly to latitude 45°53′20.16″ N, longitude W; thence continuing northwesterly to latitude 46°12′24.32″ N, longitude 122°48′02.37″ W; thence continuing latitude 45°40′06.75″ N, longitude 123°46′34.70″ W; thence continuing northwesterly to latitude 45°53′41.50″ 122°46′09.30″ W; thence continuing west-southwesterly to latitude N, longitude 12°48′13.53″ W; thence east-northeasterly to the point of the 46°11′37.32″ N, longitude 123°49′03.46″ continuing northerly to the point of beginning. W; thence continuing north- beginning. (8) Kelly Point Anchorage. An area northwesterly to the point of the (6) Henrici Bar Anchorage. An area enclosed by a line beginning northeast beginning. enclosed by a line beginning west- of Kelly Point, Oregon, at latitude (3) Longview Anchorage. An area southwesterly of Bachelor Slough, 45°39′10.32″ N, longitude 122°45′36.45″ enclosed by a line beginning southeast Washington, at latitude 45°47′24.68″ N, W; thence continuing east-southeasterly

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to latitude 45°39′02.10″ N, longitude northwesterly to latitude 46°04′49.89″ DEPARTMENT OF HOMELAND 122°45′21.67″ W; thence continuing N, longitude 122°54′21.57″ W; thence SECURITY east-southeasterly to latitude continuing northwesterly to latitude 45°38′59.15″ N, longitude 122°45′16.38″ 46°05′06.95″ N, longitude 122°54′50.65″ Coast Guard W; thence continuing southwesterly to W; thence continuing northwesterly to latitude 45°38′51.03″ N, longitude latitude 46°05′49.77″ N, longitude 33 CFR Part 165 ° ′ ″ ° ′ ″ 122 45 25.57 W; thence continuing 122 56 8.12 W; thence continuing east- [Docket No. USCG–2008–1247] westerly to latitude 45°38′51.54″ N, northeasterly to the point of the longitude 122°45′26.35″ W; thence beginning. RIN 1625–AA11 continuing northwesterly to latitude ° ′ ″ ° ′ ″ (b) Regulations. (1) All designated Regulated Navigation Area and Safety 45 39 06.27 N, longitude 122 45 40.50 anchorages are intended for the primary W; thence continuing north- Zone, Chicago Sanitary and Ship use of deep-draft vessels over 200 feet Canal, Romeoville, IL northeasterly to the beginning point. in length. (9) Upper Vancouver Anchorage. An AGENCY: (2) If a vessel under 200 feet in length Coast Guard, DHS. area enclosed by a line beginning north- ACTION: Notice of proposed rulemaking. northeast of Hayden Island at latitude is anchored in a designated anchorage, 45°38′43.44″ N, longitude 122°44′39.50″ the master or person in charge of the SUMMARY: The Coast Guard proposes W; thence continuing northeasterly to vessel shall: establishing a regulated navigation area 45°38′26.98″ N, longitude 122°43′25.87″ (i) Ensure that the vessel is anchored and safety zone on the Chicago Sanitary W; thence continuing east-northeasterly so as to minimize conflict with large, and Ship Canal near Romeoville, to latitude 45°38′17.31″ N, longitude deep-draft vessels utilizing or seeking to Illinois. This proposed regulated 122°42′54.69″ W; thence continuing utilize the anchorage; and navigation area and safety zone places easterly to latitude 45°38′12.40″ N, navigational and operational restrictions ° ′ ″ (ii) Move the vessel out of the area if longitude 122 42 43.93 W; thence requested by the master of a large, deep- on all vessels transiting the navigable continuing east-southeasterly to latitude waters located adjacent to and over the ° ′ ″ ° ′ ″ draft vessel seeking to enter or depart 45 37 40.53 N, longitude 122 41 44.08 the area or if directed by the Captain of Army Corps of Engineers electrical W; thence south-southeasterly to dispersal fish barrier system. ° ′ ″ the Port. latitude 45 37 36.11 N, longitude DATES: Comments and related material ° ′ ″ (3) Vessels desiring to anchor in 122 41 48.86 W; thence continuing must either be submitted to our online west-southwesterly to latitude designated anchorages shall contact the ° ′ ″ ° ′ ″ pilot office that manages that anchorage docket via http://www.regulations.gov 45 37 52.20 N, longitude 122 42 19.50 on or before July 27, 2009 or reach the W; thence continuing west- to request an appropriate position to ° ′ ″ anchor. Columbia River Bar Pilots Docket Management Facility by that southwesterly to latitude 45 38 10.75 date. N, longitude 122°43′08.89″ W; thence manage Astoria North Anchorage and continuing southwesterly to latitude Astoria South Anchorage. Columbia ADDRESSES: You may submit comments 45°38′18.79″ N, longitude 122°43′44.83″ River Pilots manage all designated identified by Coast Guard docket W; thence continuing westerly to anchorages upriver from Astoria. number USCG–2008–1247 using any latitude 45°38′41.37″ N, longitude (4) No vessel may occupy a one of the following methods: 122°44′40.44″ W; thence continuing designated anchorage for more than 30 (1) Federal eRulemaking Portal: northeasterly to the point of beginning. consecutive days without permission http://www.regulations.gov. (10) Cottonwood Island Anchorage. from the Captain of the Port. (2) Fax: 202–493–2251. (3) Mail: Docket Management Facility An area enclosed by a line beginning (5) No vessel being layed-up or west-southwest of Longview, WA at (M–30), U.S. Department of ° ′ ″ dismantled or undergoing major Transportation, West Building Ground latitude 46 05 56.88 N, longitude alterations or repairs may occupy a 122°56′53.19″ W; thence continuing Floor, Room W12–140, 1200 New Jersey ° ′ ″ designated anchorage without Avenue, SE., Washington, DC 20590– easterly to latitude 46 05 14.06 N, permission from the Captain of the Port. longitude 122°54′45.71″ W; thence 0001. continuing east-southeasterly to latitude (6) No vessel carrying a Cargo of (4) Hand delivery: Same as mail 46°04′57.12″ N, longitude 122°54′12.41″ Particular Hazard listed in § 126.10 of address above, between 9 a.m. and 5 W; thence continuing southeasterly to this chapter may occupy a designated p.m., Monday through Friday, except latitude 46°04′37.55″ N, longitude anchorage without permission from the Federal holidays. The telephone number 122°53′45.80″ W; thence continuing Captain of the Port. is 202–366–9329. To avoid duplication, please use only southeasterly to latitude 46°04′13.72″ N, (7) No vessel in a condition such that one of these methods. For instructions longitude 122°53′23.66″ W; thence it is likely to sink or otherwise become on submitting comments, see the continuing southeasterly to latitude a hazard to the operation of other ‘‘Public Participation and Request for 46°03′54.94″ N, longitude 122°53′11.81″ vessels shall occupy a designated Comments’’ portion of the W; thence continuing southerly to anchorage except in an emergency, and SUPPLEMENTARY INFORMATION section latitude 46°03′34.96″ N, longitude then only for such periods as may be below. 122°53′03.17″ W; thence continuing authorized by the Captain of the Port. westerly to latitude 46°03′32.06″ W, FOR FURTHER INFORMATION CONTACT: If ° ′ ″ (8) Vessels anchoring in Astoria North longitude 122 53 19.68 N; thence Anchorage should avoid placing their you have questions on this proposed continuing north-northwesterly to anchor in the charted cable area. rule call LT Ann Henkelman, latitude 46°03′50.84″ N, longitude Waterways Management Branch, Ninth 122°53′27.81″ W; thence continuing Dated: May 8, 2009. Coast Guard District, telephone 216– northwesterly to latitude 46°04′08.10″ J.P. Currier, 902–6288. If you have questions on N, longitude 122°53′38.70″ W; thence Rear Admiral, U.S. Coast Guard, Commander, viewing or submitting material to the continuing northwesterly to latitude Thirteenth Coast Guard District. docket, call Renee V. Wright, Program 46°04′29.41″ N, longitude 122°53′58.17″ [FR Doc. E9–12060 Filed 5–22–09; 8:45 am] Manager, Docket Operations, telephone W; thence continuing north- BILLING CODE 4910–15–P 202–366–9826.

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SUPPLEMENTARY INFORMATION: Transportation to use the Docket metal-to-metal contact between two Management Facility. independent barges in the barrier field. Public Participation and Request for In 2006, the Army Corps completed Comments Privacy Act construction of a second barrier, We encourage you to participate in Anyone can search the electronic ‘‘Barrier IIA.’’ Barrier IIA was this rulemaking by submitting form of all comments received into any constructed 800 to 1300 feet comments and related materials. All of our dockets by the name of the downstream of the Barrier I. Barrier IIA comments received will be posted, individual submitting the comment (or is designed to operate continuously at without change, to http:// signing the comment, if submitted on one-volt per inch, and can operate at www.regulations.gov and will include behalf of an association, business, labor higher levels. Because of its design, any personal information you have union, etc.). You may review a Privacy Barrier IIA can generate a more provided. Act notice regarding our public dockets powerful electric field, over a larger area in the January 17, 2008, issue of the within the Chicago Sanitary and Ship Submitting Comments Federal Register (73 FR 3316). Canal, than Barrier I. The potential field strength for Barrier IIA will be up to If you submit a comment, please Public Meeting include the docket number for this four times that of the Barrier I. Barrier We do not now plan to hold a public rulemaking (USCG–2008–1247), IIA was successfully operated for the meeting. But you may submit a request indicate the specific section of this first time, for approximately seven for one to the Docket Management document to which each comment weeks in September and October 2008, Facility at the address under ADDRESSES applies, and provide a reason for each while Barrier I was taken down for explaining why one would be suggestion or recommendation. You maintenance. Construction on a third beneficial. If we determine that one may submit your comments and barrier (Barrier IIB) is planned; Barrier would aid this rulemaking, we will hold material online, or by fax, mail or hand IIB would augment the capabilities of one at a time and place announced by delivery, but please use only one of Barriers I and IIA. a later notice in the Federal Register. these means. We recommend that you The electric current in the water poses a safety risk to commercial and include your name and a mailing Background and Purpose recreational boaters transiting the area. address, an e-mail address, or a phone The Nonindigenous Aquatic Nuisance The Navy Experimental Diving Unit number in the body of your document Prevention and Control Act of 1990, as (NEDU) was tasked with researching so that we can contact you if we have amended by the National Invasive how the electric current from the questions regarding your submission. Species Act of 1996, authorized the barriers would affect a human body if To submit your comment online, go to Army Corps of Engineers (Army Corps) immersed in the water. This http://www.regulations.gov, select the to conduct a demonstration project to comprehensive, independent analysis of Advanced Docket Search option on the identify an environmentally sound Barriers I and IIA, conducted in 2008, at right side of the screen, insert ‘‘USCG– method for preventing and reducing the the one-volt per inch level, found a 2008–1247’’ in the Docket ID box, press dispersal of non-indigenous aquatic serious risk of injury or death to persons Enter, and then click on the balloon nuisance species through the Chicago immersed in the water located adjacent shape in the Actions column. If you Sanitary and Ship Canal. The Army to and over the barrier. The NEDU final submit your comments by mail or hand Corps selected an electric barrier report concluded that the possible delivery, submit them in an unbound because it is a non-toxic deterrent with effects to a human body if immersed in format, no larger than 81⁄2 by 11 inches, a proven history and also does not the water include paralysis of body suitable for copying and electronic overtly interfere with navigation in the muscles, inability to breathe, and filing. If you submit them by mail and canal. ventricular fibrillation. Additionally, would like to know that they reached In April 2002, the Army Corps sparking between barges transiting the the Facility, please enclose a stamped, energized a demonstration electrical barrier (a risk to flammable cargoes) self-addressed postcard or envelope. We dispersal barrier located in the Chicago occurred at the one-volt per inch level. will consider all comments and material Sanitary and Ship Canal approximately Operating Barrier IIA at four-volts per received during the comment period 30 miles from Lake Michigan. The inch (the maximum capacity) presents a and may change the rule based on your demonstration barrier, commonly higher risk; however, there is no data comments. referred to as ‘‘Barrier I,’’ generates a yet to indicate how much higher. Viewing Comments and Documents low-voltage electric field (a maximum of A Safety Work Group facilitated by approximately one-volt per inch) across the Coast Guard and in partnership with To view comments, as well as the canal, which connects the Illinois the Army Corps and industry initially documents mentioned in this preamble River to Lake Michigan. The electric met in February 2008, and focused on as being available in the docket, go to field is created by pulsing low voltage three goals: (1) Education and public http://www.regulations.gov, select the DC current through steel cables secured outreach, (2) keeping people out of the Advanced Docket Search option on the to the bottom of the canal. Barrier I was water, and (3) egress/rescue efforts. right side of the screen, insert USCG– built to block the passage of aquatic Eleven stakeholders have regularly 2008–1247 in the Docket ID box, press nuisance species, such as Asian carp, attended the Safety Work Group. Key Enter, and then click on the item in the and prevent them from moving between partners include the American Docket ID column. You may also visit the Mississippi River basin and Great Waterways Operators; Illinois River the Docket Management Facility in Lakes via the canal. Carriers Association; Army Corps, Room W12–140 on the ground floor of In the spring of 2004, a commercial Chicago District, Coast Guard Marine the Department of Transportation West towboat operator reported an electrical Safety Unit Chicago; Coast Guard Sector Building, 1200 New Jersey Avenue, SE., arc between a wire rope and timberhead Lake Michigan; and the Ninth Coast Washington, DC 20590, between 9 a.m. while making up a tow in the vicinity Guard District. During the past 12 and 5 p.m., Monday through Friday, of the Barrier I. During subsequent months, the Coast Guard has hosted 5 except Federal holidays. We have an Army Corps safety testing in January Safety Work Group meetings with full agreement with the Department of 2005, sparking was observed upon participation from stakeholders. The

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Coast Guard and the Army Corps comments have been received regarding pass (meet or overtake) another vessel developed regulations and safety the TIR. outside of the regulated navigation area; guidelines, with stakeholder input, This notice of proposed rulemaking (3) commercial tows transiting the which addressed the risks and hazards (NPRM) proposes establishment of regulated navigation area must be made associated with operating the barriers at permanent regulations, similar to the up with wire rope to ensure electrical the one-volt per inch level. These regulations contained in the TIR. Like connectivity between all segments of the regulations were published in 33 CFR the TIR, this rule proposes placement of tow; and (4) all up-bound and down- 165.923, 70 FR 76692, Dec. 28, 2005, navigational and operational restrictions bound barge tows that contain one or and in a series of temporary final rules: on all vessels transiting through a more red flag barges must be assisted by 71 FR 4488, Jan. 27, 2006; 71 FR 19648, regulated navigation area located a bow boat until the entire tow is clear Apr. 17, 2006; 73 FR 33337, Jun. 12, adjacent to and over the barriers. of the regulated navigation area. The 2008; 73 FR 37810, Jul. 2, 2008; 73 FR Specifically, the Coast Guard proposes Army Corps has informed the Coast 45875, Aug. 7, 2008; and 73 FR 63633, requiring vessels transiting the regulated Guard that the Army Corps will Oct. 27, 2008. navigation area to adhere to specified continue to contract bow boat assistance The Army Corps notified the Coast operational and navigational for barge tows containing one or more Guard in December 2008, that it requirements. In addition, the Coast red flag barges through the remainder of planned to activate Barrier IIA on a full- Guard will occasionally enforce a safety the current fiscal year (i.e., through time basis starting in middle to late zone, which prohibits the movement of September 30, 2009). The Army Corps January 2009. Due to technical issues, all vessels and persons through the has informed the Coast Guard that it Barrier IIA was not activated until April electrical dispersal barriers during tests will request funds for bow boat 8, 2009. Both Barrier IIA and Barrier I or other periods of time that Barrier IIA assistance in its fiscal year 2010 budget are operating at the same time. is operated at voltages higher than one- request. However, because of the federal Operation of both Barrier I and Barrier volt per inch. budget process, there is currently no IIA at the same time provides a back up To view the TIR, this NPRM, as well way to determine if those funds will be should one barrier cease to operate. as documents mentioned in this appropriated. In the event Army Corps preamble as being available in the The Coast Guard advised the Army funding would cease, operators of tows docket, go to http://www.regulations.gov Corps in December 2008, that it had no containing one or more red flag barges at any time, click on ‘‘Search for objection to the Army Corps activating that need to transit through the Dockets,’’ and enter the docket number Barrier IIA at a maximum strength of regulated navigation area would incur for this rulemaking (USCG–2008–1247) one-volt per inch, which is the the cost of bow boat assistance. in the Docket ID box, and click enter. operating strength of Barrier I. In Operators of tows containing one or You may also visit the Docket more red flag barges must notify the addition, the Coast Guard advised the Management Facility in Room W12–140 Army Corps that it did not object to the bow boat contractor at least two hours on the ground floor of the DOT West prior to the need for assistance. The tow Army Corps’ plans for additional testing Building, 1200 New Jersey Avenue, SE., of Barrier IIA at peak field strength of operator must then remain in contact Washington, DC 20590, between 9 a.m. with the contractor after the initial call up to four-volts per inch. Peak field and 5 p.m., Monday through Friday, for bow boat assistance and advise the strength tests are necessary to evaluate except Federal holidays. contractor of any delays. safety risks to mariners and their vessels Discussion of Proposed Rule Red flag barges are barges certificated when Barrier IIA is operated at a higher to carry, in bulk, any hazardous material voltage. This rule proposes removal of 33 CFR as defined in 46 CFR 150.115. Currently, Based on the commercial significance 165.923 and 33 CFR 165.T09–1247. This 46 CFR 150.115 defines hazardous and successful transit history of the rule proposes establishment of material as: Barrier I by thousands of barges since its permanent regulations, which would (a) A flammable liquid as defined in inception in April 2002, and Barrier IIA place navigational and operational 46 CFR 30.10–22 or a combustible during Fall 2008, the Coast Guard has restrictions on all vessel transits through liquid as defined in 46 CFR 30.10–15; not chosen to close the waterway the navigable waters located adjacent to (b) A material listed in Table 151.05, despite the proven electrical discharge and over the electrical dispersal barriers Table 1 of part 153, or Table 4 of part hazard and additional safety concerns. located on the Chicago Sanitary and 154 of Title 46, CFR; or Tows spanning Barrier IIA and the coal- Ship Canal. The regulated navigation (c) A liquid, liquefied gas, or fired power plant barge loading area just area encompasses all waters of the compressed gas listed in 49 CFR south of the regulated navigation area Chicago Sanitary and Ship Canal 172.101. remain a concern. Accordingly, because located between mile marker 295.0 This rule proposes additional of the safety risks involved, it is (approximately 1.1 miles south of the restrictions and operating requirements imperative that the Coast Guard Romeo Road Bridge) and mile marker on all vessels within a smaller portion implements increased safety measures 297.5 (approximately 1.3 miles of the regulated navigation area, for the operation of both Barriers I and northeast of the Romeo Road Bridge). specifically, the waters between the IIA. The requirements placed on commercial Romeo Road Bridge (approximate mile To mitigate the safety risks created by vessels include: (1) Vessels engaged in marker 296.18) and mile marker 296.7 operation of both barriers, the Coast commercial service, as defined in 46 (aerial pipeline located approximately Guard established a temporary interim U.S.C. 2101(5), may not pass (meet or 0.52 miles north east of Romeo Road rule (TIR) on January 16, 2009, which overtake) in the regulated navigation Bridge). Within this smaller area, this placed navigational and operational area and must make a SECURITE call rule proposes the prohibition of vessel restrictions on all vessels transiting when approaching the regulated loitering, mooring or laying up on the through a regulated navigation area navigation area to announce intentions; right or left descending banks, or located adjacent to and over the barriers. (2) vessels engaged in commercial making or breaking tows on the waters 33 CFR 165.T09–1247, 74 FR 6357, Feb. service must work out passing between the Romeo Road Bridge 9, 2009. The TIR public comment period arrangements prior to entering the (approximate mile marker 296.18) and closed on April 10, 2009. To date, no regulated navigation area and may only mile marker 296.7 (aerial pipeline

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located approximately 0.52 miles north marker 296.7 (aerial pipeline located rulemaking clarify navigation east of Romeo Road Bridge). In addition, approximately 0.52 miles north east of requirements that are normal industry vessels may only enter the waters Romeo Road Bridge), would be enforced practice (e.g., commercial tows using between the Romeo Road Bridge by the Captain of the Port Lake wire ropes) or have been in existence (approximate mile marker 296.18) and Michigan, for such times before, during, since 2002 as a result of the Army mile marker 296.7 (aerial pipeline and after barrier testing as he or she Corps’ development, operation, and located approximately 0.52 miles north deems necessary to protect mariners and maintenance of the electrical fish east of Romeo Road Bridge) for the sole vessels from damage or injury. The barrier. See the ‘‘Background and purpose of transiting to the other side Captain of the Port Lake Michigan Purpose’’ and ‘‘Discussion of Proposed and must maintain headway throughout would cause notice of enforcement or rule’’ sections for additional details on the transit. All vessels and persons are suspension of enforcement of this safety the requirements. prohibited from dredging, laying cable, zone to be made by all appropriate This proposed rule would affect dragging, fishing, conducting salvage means to effect the widest publicity traffic transiting over the electrical fish operations, or any other activity, which among the affected segments of the barrier and surrounding waters. The could disturb the bottom of the canal in public. Such means of notification will Army Corps maintains data about the the area located between the Romeo include, but will not be limited to, commercial vessels using the Lockport Road Bridge (approximate mile marker Broadcast Notice to Mariners and Local Lock and Dam, which provides access to 296.18) and mile marker 296.7 (aerial Notice to Mariners. The Captain of the the proposed regulated navigation area. pipeline located approximately 0.52 Port Lake Michigan would issue a During 2007, the commercial traffic miles north east of Romeo Road Bridge). Broadcast Notice to Mariners notifying through the Lockport Lock consisted of The rule also proposes that all persons the public when enforcement of the 147 towing vessels and 13,411 barges. on open decks of a vessel engaged in safety zone is suspended. In addition, Of those, 100 towing vessels and 2,246 commercial service must wear a Coast Captain of the Port Lake Michigan barges were handling red flag cargo. Guard approved Type I personal maintains a telephone line that is There were 983 lockages involving red flotation device while on the waters manned 24 hours a day, seven days a flag barges in 2007. between the Romeo Road Bridge week. The public may obtain The potential cost associated with this (approximate mile marker 296.18) and information concerning enforcement of proposed rule would be for bow boat mile marker 296.7 (aerial pipeline the safety zone by contacting the assistance. The Army Corps currently located approximately 0.52 miles north Captain of the Port Lake Michigan via covers this cost through contract east of Romeo Road Bridge). All persons the Coast Guard Sector Lake Michigan funding. In the event that such funding on recreational vessels that are Command Center at 414–747–7182. would cease, operators needing to propelled or controlled by machinery, transit the regulated navigation area Regulatory Planning and Review sails, oars, paddles, poles or another with one or more red flag barges would vessel must wear the Coast Guard This proposed rule is not a incur a cost of approximately $850 per approved personal flotation device ‘‘significant regulatory action’’ under one-way transit (i.e., based on current (PFD) that is required to be onboard by section 3(f) of Executive Order 12866, Army Corps funding estimates). 33 CFR Part 175, while on the waters Regulatory Planning and Review, and If bow boat assistance funding were to between the Romeo Road Bridge does not require an assessment of cease, we estimate the undiscounted (approximate mile marker 296.18) and potential costs and benefits under annual recurring cost to industry to be mile marker 296.7 (aerial pipeline section 6(a)(3) of that Order. The Office $835,550 (i.e., 983 potential red flag located approximately 0.52 miles north of Management and Budget has not transits × $850 for bow boat assistance east of Romeo Road Bridge). reviewed it under that Order. fee). Based on this potential annual cost, These restrictions are necessary for Nevertheless, we have prepared a we estimate the total present value 10- safe navigation of the regulated preliminary Regulatory Analysis of year (2010–2019) cost to industry of this navigation area and to ensure the safety potential costs and benefits which is proposed rule to be approximately $5.9 of vessels and their personnel as well as available in the docket where indicated million at a seven percent discount rate the public’s safety due to the electrical under the ADDRESSES section of this and $7.1 million at a three percent discharges noted during safety tests preamble. A summary of the analysis discount rate. conducted by the Army Corps. follows: We expect this proposed rule would Deviation from this rule would be This proposed rule would mitigate mitigate the marine safety risks as a prohibited unless specifically safety risks associated with the result of the permanent operation and authorized by the Commander, Ninth electrical fish barrier system in the maintenance of the electrical fish Coast Guard District, or his designated Chicago Sanitary and Ship Canal near barriers. This rulemaking would also representatives. The Commander, Ninth Romeoville, Illinois. The Army Corps allow commerce to continue through the Coast Guard District, will designate operates and maintains the fish barrier. waters adjacent to or over these barriers. Captain of the Port Lake Michigan and Navigational and operational Small Entities Commanding Officer, Marine Safety restrictions are necessary for all vessels Unit Chicago, as his designated transiting through the navigable waters Under the Regulatory Flexibility Act representatives for the purposes of the located adjacent to and over the barriers (5 U.S.C. 601–612), we have considered proposed regulated navigation area. in order to mitigate safety risks. whether this proposed rule would have A safety zone would be enforced The proposed rule would establish a a significant economic impact on a during tests or other periods of time that permanent regulated navigation area for substantial number of small entities. Barrier IIA is operated at voltages higher navigable waters adjacent to and over The term ‘‘small entities’’ comprises than one volt per inch. This proposed the electrical fish barrier. The small businesses, not-for-profit safety zone, which would encompass all rulemaking would also require certain organizations that are independently the waters of the Chicago Sanitary and provisions while transiting the regulated owned and operated and are not Ship Canal located between mile marker navigation area, including bow boat dominant in their fields, and 296.0 (approximately 958 feet south of assistance for tows with red flag barges. governmental jurisdictions with the Romeo Road Bridge) and mile Other proposed requirements of this populations of less than 50,000.

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An Initial Regulatory Flexibility would either preempt State law or questions concerning the provisions of Analysis (IRFA) discussing the impact impose a substantial direct cost of this proposed rule or options for of this proposed rule on small entities compliance on them. We have analyzed compliance are encouraged to contact is available in the docket where this proposed rule under that Order and the point of contact listed under FOR indicated under the ‘‘Public have determined that it does not have FURTHER INFORMATION CONTACT. Participation and Request for implications for federalism. Energy Effects Comments’’ section of this preamble. From our analysis, we found the Unfunded Mandates Reform Act We have analyzed this rule under proposed rule would affect an estimated The Unfunded Mandates Reform Act Executive order 13211, Actions 23 entities, of which 10 are considered of 1995 (2 U.S.C. 1531–1538) requires Concerning Regulations that small entities according to SBA size Federal agencies to assess the effects of Significantly Affect Energy Supply, standards. If operators incur the direct their discretionary regulatory actions. In Distribution, or Use. We have cost of bow boat assistance, we estimate particular, the Act addresses actions determined that it is not a ‘‘significant five (or fifty percent) of the affected that may result in the expenditure by a energy action’’ under that order because small entities would incur a cost impact State, local, or Tribal government, in the it is not a ‘‘significant regulatory action’’ of less than or equal to one percent of aggregate, or by the private sector of under Executive Order 12866 and is not revenue and eight (or eighty percent) of $100,000,000 or more in any one year. likely to have a significant adverse effect the affected small entities would incur Though this rule would not result in on the supply, distribution, or use of a cost impact of less than or equal to such expenditure, we do discuss the energy. The Administrator of the office three percent of revenue. effects of this rule elsewhere in this of Information and Regulatory Affairs At this time, the Coast Guard certifies preamble. has not designated it as a significant under 5 U.S.C. 605(b) that this proposed energy action. Therefore, it does not Taking of Private Property rule would not have a significant require a statement of Energy Effects economic impact on a substantial This rule will not effect a taking of under Executive Order 13211. private property or otherwise have number of small entities. If you think Technical Standards that your business, organization, or taking implications under Executive governmental jurisdiction qualifies as a Order 12630, Governmental Actions and The National Technology Transfer small entity and that this rule would Interference with Constitutionally and Advancement Act (NTTAA) (15 have a significant economic impact on Protected Property Rights. U.S.C. 272 note) directs agencies to use voluntary consensus standards in their it, please submit a comment to the Civil Justice Reform docket as detailed under ADDRESSES. In regulatory activities unless the agency your comment explain why, how, and to This rule meets applicable standards provides Congress, through the Office of what degree you think this proposed in sections 3(a) and 3(b)(2) of Executive Management and Budget, with an rule would have an economic impact on Order 12988, Civil Justice Reform, to explanation of why using these you. minimize litigation, eliminate standards would be inconsistent with ambiguity, and reduce burden. applicable law or otherwise impractical. Assistance for Small Entities Voluntary consensus standards are Protection of Children Under section 213(a) of the Small technical standards (e.g., specifications Business Regulatory Enforcement We have analyzed this rule under of materials, performance, design, or Fairness Act of 1996 (Pub. L. 104–121), Executive Order 13045, Protection of operation; test methods; sampling we want to assist small entities in Children from Environmental Health procedure; and related management understanding the rule so that they may Risks and Safety Risks. This rule is not system practices) that are developed or better evaluate its effects on them and an economically significant rule and adopted by voluntary consensus participate in the rulemaking. If the rule does not concern an environmental risk standards bodies. would affect your small business, to health or risk to safety that may This proposed rule does not use organization, or governmental disproportionately affect children. technical standards. Therefore, we did not consider the use of voluntary jurisdiction and you have questions Indian Tribal Governments concerning its provisions or options for consensus standards. The Coast Guard recognizes the treaty compliance, please contact LT Ann Environment Henkelman, Waterways Management rights of Native American Tribes. Branch, Ninth Coast Guard District, Moreover, the Coast Guard is committed We have analyzed this proposed rule 1240 East Ninth Street, Cleveland, OH to working with Tribal Governments to under Department of Homeland 44199; 216–902–6288. The Coast Guard implement local policies and to mitigate Security Management Directive 023–01 will not retaliate against small entities tribal concerns. We have determined and Commandant Instruction that question or complain about this that these regulations and fishing rights M16475.lD, which guide the Coast rule or any policy or action of the Coast protection need not be incompatible. Guard in complying with the National Guard. We have also determined that this Environmental Policy Act of 1969 proposed rule does not have tribal (NEPA) (42 U.S.C. 4321–4370f), and Collection of Information implications under Executive Order have made a preliminary determination This proposed rule would call for no 13175, Consultation and Coordination that this action is one of a category of new collection of information under the with Indian Tribal Governments, actions which do not individually or Paperwork Reduction Act of 1995 (44 because it does not have a substantial cumulatively have a significant effect on U.S.C. 3501–3520). direct effect on one or more Indian the human environment. Therefore, this tribes, on the relationship between the rule is categorically excluded, under Federalism Federal Government and Indian tribes, section 2.B.2. Figure 2–1, paragraph A rule has implications for federalism or on the distribution of power and 34(g), of the Instruction and neither an under Executive Order 13132, responsibilities between the Federal environmental assessment nor an Federalism, if it has substantial direct Government and Indian tribes. environmental impact statement is effect on State or local governments and Nevertheless, Indian Tribes that have required. This rule involves the

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establishing, disestablishing, or by the Captain of the Port Lake another vessel must wear the Coast changing regulated navigation areas and Michigan to act on his behalf. Guard approved PFD that is required to security or safety zones. A preliminary Red flag barge means any barge be onboard by 33 CFR Part 175, while ‘‘Environmental Analysis Check List’’ certificated to carry any hazardous on the waters between the Romeo Road supporting this determination is material in bulk. Bridge (approximate mile marker available in the docket where indicated (2) Regulations. (i) The general 296.18) and mile marker 296.7 (aerial under the ‘‘Public Participation and regulations contained in 33 CFR 165.13 pipeline located approximately 0.52 Request for Comments’’ section of this apply. miles north east of Romeo Road Bridge). preamble. We seek any comments or (ii) All up-bound and down-bound (viii) Vessels may not moor or lay up information that may lead to discovery barge tows that contain one or more red on the right or left descending banks of of a significant environmental impact flag barges transiting through the the waters between the Romeo Road from this proposed rule. regulated navigation area must be Bridge (approximate mile marker assisted by a bow boat until the entire 296.18) and mile marker 296.7 (aerial List of Subjects in 33 CFR Part 165 tow is clear of the regulated navigation pipeline located approximately 0.52 Harbors, Marine safety, Navigation area. miles north east of Romeo Road Bridge). (iii) Vessels engaged in commercial (water), Reporting and recordkeeping (ix) Towboats may not make or break service, as defined in 46 U.S.C 2101(5), requirements, Security measures, tows if any portion of the towboat or may not pass (meet or overtake) in the Waterways. tow is located in the waters between the regulated navigation area and must Romeo Road Bridge (approximate mile For the reasons discussed in the make a SECURITE call when preamble, the Coast Guard proposes to approaching the regulated navigation marker 296.18) and mile marker 296.7 amend 33 CFR part 165 as follows: area to announce intentions. Vessels (aerial pipeline located approximately engaged in commercial service must 0.52 miles north east of Romeo Road PART 165—REGULATED NAVIGATION Bridge). AREAS AND LIMITED ACCESS AREAS work out passing arrangements prior to entering the regulated navigation area (3) Compliance. All persons and 1. The authority citation for part 165 and may only pass (meet or overtake) vessels must comply with this section continues to read as follows: another vessel outside of the regulated and any additional instructions or navigation area. orders of the Ninth Coast Guard District Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Commander, or his designated Chapter 3306, 3703 and Chapter 701; 50 (iv) Commercial tows transiting the U.S.C. 191, 195; 33 CFR 1.05–1, 6.04–1, 6.04– regulated navigation area must be made representatives. 6, and 160.5; Pub. L. 107–295, 116 Stat. 2064; up with wire rope to ensure electrical (4) Waiver. For any vessel, the Ninth Department of Homeland Security Delegation connectivity between all segments of the Coast Guard District Commander, or his No. 0170.1. tow. designated representatives, may waive any of the requirements of this section, § 165.923 [Removed] (v) All vessels are prohibited from loitering between the Romeo Road upon finding that operational 2. Remove § 165.923. Bridge (approximate mile marker conditions or other circumstances are 3. Add § 165.924 to read as follows: 296.18) and mile marker 296.7 (aerial such that application of this section is § 165.924 Regulated Navigation Area and pipeline located approximately 0.52 unnecessary or impractical for the Safety Zone, Chicago Sanitary and Ship miles north east of Romeo Road Bridge). purposes of vessel and mariner safety. Canal, Romeoville, IL (vi) Vessels may enter the waters (b) Safety Zone. (1) The following area (a) Regulated Navigation Area. The between the Romeo Road Bridge is a safety zone: All waters of the following is a Regulated Navigation (approximate mile marker 296.18) and Chicago Sanitary and Ship Canal Area: All waters of the Chicago Sanitary mile marker 296.7 (aerial pipeline located between mile marker 296.0 and Ship Canal, Romeoville, IL, located located approximately 0.52 miles north (approximately 958 feet south of the between mile marker 295.0 east of Romeo Road Bridge) for the sole Romeo Road Bridge) and mile marker (approximately 1.1 miles south of the purpose of transiting to the other side 296.7 (aerial pipeline located Romeo Road Bridge) and mile marker and must maintain headway throughout approximately 0.52 miles north east of 297.5 (approximately 1.3 miles the transit. All vessels and persons are Romeo Road Bridge). northeast of the Romeo Road Bridge). prohibited from dredging, laying cable, (2) Notice of enforcement or (1) Definitions. The following dragging, fishing, conducting salvage suspension of enforcement. The Captain definitions apply to this section: operations, or any other activity, which of the Port Lake Michigan will enforce Bow boat means a towing vessel could disturb the bottom of the canal in the safety zone established by this capable of providing positive control of the area located between the Romeo section only upon notice. Captain of the the bow of a tow containing one or more Road Bridge (approximate mile marker Port Lake Michigan will cause notice of barges, while transiting the regulated 296.18) and mile marker 296.7 (aerial the enforcement of this safety zone to be navigation area. The bow boat must be pipeline located approximately 0.52 made by all appropriate means to effect capable of preventing a tow containing miles north east of Romeo Road Bridge). the widest publicity among the affected one or more barges from coming into (vii) All persons on open decks of a segments of the public including contact with the shore and other moored vessel engaged in commercial service publication in the Federal Register as vessels. must wear a Coast Guard approved Type practicable, in accordance with 33 CFR Designated representatives means the I personal flotation device (PFD) while 165.7(a). Such means of notification Captain of the Port Lake Michigan and in the waters between the Romeo Road may also include, but are not limited to, Commanding Officer, Marine Safety Bridge (approximate mile marker Broadcast Notice to Mariners or Local Unit Chicago. 296.18) and mile marker 296.7 (aerial Notice to Mariners. The Captain of the Hazardous material means any pipeline located approximately 0.52 Port Lake Michigan will issue a material as defined in 46 CFR 150.115. miles north east of Romeo Road Bridge). Broadcast Notice to Mariners and Local On-scene representative means any All persons on recreational vessels that Notice to Mariners notifying the public Coast Guard commissioned, warrant or are propelled or controlled by when enforcement of these safety zones petty officer who has been designated machinery, sails, oars, paddles, poles or is suspended.

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(3) Regulations. (i) In accordance with The Department will also be public involvement in the development the general regulations in § 165.23 of conducting forums after each of the of the proposed regulations. After this part, entry into, transiting, or three hearings to discuss (1) how obtaining advice and recommendations anchoring within this safety zone is changes in the Department’s financial from the public, the Secretary uses a prohibited unless authorized by the aid communications and processes negotiated rulemaking process to Captain of the Port Lake Michigan, or (including the Free Application for develop the proposed regulations. his on-scene representative. Federal Student Aid (FAFSA)) could We announce our intent to develop (ii) This safety zone is closed to all improve college planning, preparation proposed regulations by following the vessel traffic, except as may be and access, and (2) how best to leverage negotiated rulemaking procedures in permitted by the Captain of the Port Federal postsecondary programs to section 492 of the HEA. We intend to Lake Michigan or his on-scene foster student educational persistence select participants for the negotiated representative. and degree attainment. rulemaking committees from nominees (iii) The on-scene representative of DATES: The dates, times, and locations of the organizations and groups that the Captain of the Port Lake Michigan of the public hearings are listed under represent the interests significantly may be aboard either a Coast Guard or the SUPPLEMENTARY INFORMATION section affected by the proposed regulations. To Coast Guard Auxiliary vessel. The of this notice. We must receive written the extent possible, we will select, from Captain of the Port Lake Michigan or his comments suggesting issues that should the nominees, individual negotiators on-scene representative may be be considered for action by the who reflect the diversity among program contacted via VHF Channel 16. negotiating committees on or before participants, in accordance with section (4) Vessel operators desiring to enter June 23, 2009. 492(b)(1) of the HEA. or operate within the safety zone shall ADDRESSES: Please send written Regulatory Issues contact the Captain of the Port Lake comments to Wendy Macias, U.S. Michigan or his on-scene representative Department of Education, 1990 K Street, We intend to convene one committee to obtain permission to do so. Vessel NW., Room 8017, Washington, DC to develop proposed regulations operators given permission to enter or 20006, or by fax to Wendy Macias at governing foreign schools, including the operate in the safety zone must comply (202) 502–7874. You may also e-mail implementation of the changes made to with all directions given to them by the your comments to [email protected]. the HEA by the Higher Education Opportunity Act (HEOA), Public Law Captain of the Port Lake Michigan or his FOR FURTHER INFORMATION CONTACT: For on-scene representative. 110–315, that affect foreign schools. information about the public hearings We intend to convene at least one Dated: May 12, 2009. and forums, go to http://www.ed.gov/ other committee to develop proposed D.R. Callahan, policy/highered/reg/hearulemaking/ regulations to maintain or improve Captain, U.S. Coast Guard, Commander, 2009/negreg-summerfall.html or program integrity in the Title IV, HEA Ninth Coast Guard District Acting. contact: Mary Miller, U.S. Department programs, relating to topics such as the [FR Doc. E9–12179 Filed 5–22–09; 8:45 am] of Education, 1990 K Street, NW., Room following: BILLING CODE 4910–15–P 8066, Washington, DC 20006. • Satisfactory academic progress. Telephone: (202) 502–7824. You may • Incentive compensation paid by also e-mail your questions about the institutions to persons or entities public hearings to: [email protected]. DEPARTMENT OF EDUCATION engaged in student recruiting or For information about negotiated admission activities. rulemaking in general, see The • 34 CFR Chapter VI Gainful employment in a Negotiated Rulemaking Process for Title recognized occupation. Negotiated Rulemaking Committees; IV Regulations, Frequently Asked • State authorization as a component Establishment Questions at http://www.ed.gov/policy/ of institutional eligibility. highered/reg/hearulemaking/hea08/neg- • Definition of a credit hour, for AGENCY: Office of Postsecondary reg-faq.html. For further information purposes of determining program Education, Department of Education. about negotiated rulemaking contact: eligibility status, particularly in the ACTION: Establishment of negotiated Wendy Macias, U.S. Department of context of awarding Pell Grants. rulemaking committees; and notice of Education, 1990 K Street, NW., Room • Verification of information public hearings. 8017, Washington, DC 20006. included on student aid applications. Telephone (202) 502–7526. You may • Definition of a high school diploma SUMMARY: We announce our intention to also e-mail your questions about as a condition of receiving Federal establish one or more negotiated negotiated rulemaking to: student aid. rulemaking committees to prepare [email protected]. After a complete review of the public proposed regulations under Title IV of If you use a telecommunications comments presented at the public the Higher Education Act of 1965, as device for the deaf (TDD), call the hearings and from the written amended (HEA). The committees will Federal Relay Service (FRS), toll free, at submissions, we will publish a include representatives of organizations 1–800–877–8339. subsequent notice (or notices) or groups with interests that are Individuals with disabilities can announcing the specific subject areas for significantly affected by the subject obtain this document in an accessible which we intend to establish negotiated matter of the proposed regulations. We format (e.g., braille, large print, rulemaking committees, and a request also announce three public hearings, at audiotape, or computer diskette) by for nominations for individual which interested parties may suggest contacting the person responsible for negotiators for those committees who additional issues that should be information about the public hearings. represent the interests significantly considered for action by the negotiating SUPPLEMENTARY INFORMATION: Section affected by the proposed regulations. committees. In addition, for anyone 492 of the HEA requires that, before unable to attend a public hearing, we publishing any proposed regulations to Public Hearings announce that the Department will implement programs authorized under We will hold three public hearings for accept written comments. Title IV of the HEA, the Secretary obtain interested parties to discuss the agenda

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for the negotiated rulemaking sessions. a forum (e.g., interpreting service, DEPARTMENT OF HOMELAND The public hearings will be held on: assistive listening device, or materials in SECURITY • June 15–16, 2009 at the Community alternative format) should notify the College of Denver. contact person for information about Federal Emergency Management • June 18–19, 2009 at the University hearings listed under FOR FURTHER Agency of Arkansas at Little Rock. INFORMATION CONTACT in this notice in • June 22–23, 2009 at the Community advance of the scheduled hearing date. 44 CFR Part 67 College of Philadelphia. The public hearings will be held from Although we will attempt to meet any [Docket ID FEMA–2008–0020; Internal 9 a.m.–4 p.m., local time. Further request we receive, we may not be able Agency Docket No. FEMA–B–1053] information on the public hearing sites, to make available the requested auxiliary aid or service because of Proposed Flood Elevation including addresses and directions, is Determinations available at http://www.ed.gov/policy/ insufficient time to arrange it. AGENCY: Federal Emergency highered/reg/hearulemaking/2009/ Schedule for Negotiations negreg-summerfall.html. Management Agency, DHS. On the day following each public We anticipate that these committees ACTION: Proposed rule. hearing, the Department will also be will begin negotiations in September SUMMARY: Comments are requested on conducting two forums at the same 2009, with each committee meeting for the proposed Base (1% annual-chance) location as the public hearing, from 9 three sessions of approximately three Flood Elevations (BFEs) and proposed a.m.–1 p.m., local time. These forums days at roughly monthly intervals. The will be conducted concurrently. One BFE modifications for the communities committees will meet in the forum will focus on approaches to the listed in the table below. The purpose Department’s financial aid Washington, DC area. The dates and of this notice is to seek general communications and processes locations of these meetings will be information and comment regarding the (including the FAFSA) that could published in a subsequent notice in the proposed regulatory flood elevations for improve college planning, preparation Federal Register, and will be posted on the reach described by the downstream and access. The other forum will focus the Department’s Web site at: http:// and upstream locations in the table on ways that Federal postsecondary www.ed.gov/policy/highered/reg/ below. The BFEs and modified BFEs are programs could play a stronger role in hearulemaking/2009/negreg- a part of the floodplain management fostering student educational summerfall.html. measures that the community is persistence and degree attainment. required either to adopt or show Electronic Access to This Document While the Department will be inviting evidence of having in effect in order to representatives of students, families, You may view this document, in text qualify or remain qualified for college access professionals, and college or Adobe Portable Document Format participation in the National Flood success practitioners to participate in (PDF), on the Internet at the following Insurance Program (NFIP). In addition, these forums, the forums will be open site: http://www.ed.gov/news/ these elevations, once finalized, will be to the public with opportunities for fedregister. To use PDF you must have used by insurance agents, and others to public comment provided. Adobe Acrobat Reader, which is calculate appropriate flood insurance Individuals desiring to present premium rates for new buildings and available free at this site. If you have comments at the public hearings are the contents in those buildings. encouraged to do so. It is likely that questions about using PDF, call the U.S. Government Printing Office toll free at DATES: Comments are to be submitted each participant choosing to make a on or before August 24, 2009. statement will be limited to five 1–888–293–6498; or in the Washington, DC area at (202) 512–1530. ADDRESSES: The corresponding minutes. Individuals interested in preliminary Flood Insurance Rate Map making oral statements will be able to Note: The official version of this document (FIRM) for the proposed BFEs for each register to make a statement beginning is the document published in the Federal community are available for inspection at 8:30 a.m. on the day of the public Register. Free Internet access to the official at the community’s map repository. The hearing at the Department’s on-site edition of the Federal Register and the Code respective addresses are listed in the registration table on a first-come, first- of Federal Regulations is available on GPO table below. served basis. If additional time slots Access at: http://www.gpoaccess.gov/nara/ You may submit comments, identified remain, individuals may be given index.html. by Docket No. FEMA–B–1053, to additional time to speak. If no time slots William R. Blanton, Jr., Chief, remain, the Department has reserved Program Authority: 20 U.S.C. 1098a. Engineering Management Branch, one additional hour at the end of the Delegation of Authority: The Secretary Mitigation Directorate, Federal day for individuals who were not able of Education has delegated authority to Emergency Management Agency, 500 C to register to speak. The amount of time Daniel T. Madzelan, Director, Street, SW., Washington, DC 20472, available will depend upon the number Forecasting and Policy Analysis for the (202) 646–3151, or (e-mail) of individuals who register to speak. Office of Postsecondary Education, to [email protected]. Speakers may also submit written perform the functions of the Assistant FOR FURTHER INFORMATION CONTACT: comments. In addition, for anyone Secretary for Postsecondary Education. unable to attend a public hearing, the William R. Blanton, Jr., Chief, Department will accept written Dated: May 20, 2009. Engineering Management Branch, comments through June 23, 2009. (See Daniel T. Madzelan, Mitigation Directorate, Federal Emergency Management Agency, 500 C the ADDRESSES section of this notice for Director, Forecasting and Policy Analysis. Street, SW., Washington, DC 20472, submission information.) [FR Doc. E9–12092 Filed 5–22–09; 8:45 am] The public hearing sites are accessible (202) 646–3151 or (e-mail) to individuals with disabilities. BILLING CODE 4000–01–P [email protected]. Individuals needing an auxiliary aid or SUPPLEMENTARY INFORMATION: The service to participate in the hearing or Federal Emergency Management Agency

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(FEMA) proposes to make A letter acknowledging receipt of any under the criteria of section 3(f) of determinations of BFEs and modified comments will not be sent. Executive Order 12866, as amended. BFEs for each community listed below, Administrative Procedure Act Executive Order 13132, Federalism. in accordance with section 110 of the Statement. This matter is not a This proposed rule involves no policies Flood Disaster Protection Act of 1973, rulemaking governed by the that have federalism implications under 42 U.S.C. 4104, and 44 CFR 67.4(a). Administrative Procedure Act (APA), 5 Executive Order 13132. These proposed BFEs and modified U.S.C. 553. FEMA publishes flood Executive Order 12988, Civil Justice BFEs, together with the floodplain elevation determinations for notice and Reform. This proposed rule meets the management criteria required by 44 CFR comment; however, they are governed applicable standards of Executive Order 60.3, are the minimum that are required. by the Flood Disaster Protection Act of 12988. They should not be construed to mean 1973, 42 U.S.C. 4105, and the National List of Subjects in 44 CFR Part 67 that the community must change any Flood Insurance Act of 1968, 42 U.S.C. existing ordinances that are more 4001 et seq., and do not fall under the Administrative practice and stringent in their floodplain APA. procedure, Flood insurance, Reporting management requirements. The and recordkeeping requirements. National Environmental Policy Act. community may at any time enact Accordingly, 44 CFR part 67 is This proposed rule is categorically stricter requirements of its own, or proposed to be amended as follows: excluded from the requirements of 44 pursuant to policies established by other CFR part 10, Environmental Federal, State, or regional entities. PART 67—[AMENDED] Consideration. An environmental These proposed elevations are used to impact assessment has not been 1. The authority citation for part 67 meet the floodplain management prepared. continues to read as follows: requirements of the NFIP and are also used to calculate the appropriate flood Regulatory Flexibility Act. As flood Authority: 42 U.S.C. 4001 et seq.; insurance premium rates for new elevation determinations are not within Reorganization Plan No. 3 of 1978, 3 CFR, the scope of the Regulatory Flexibility 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, buildings built after these elevations are 3 CFR, 1979 Comp., p. 376. made final, and for the contents in these Act, 5 U.S.C. 601–612, a regulatory buildings. flexibility analysis is not required. § 67.4 [Amended] Comments on any aspect of the Flood Executive Order 12866, Regulatory 2. The tables published under the Insurance Study and FIRM, other than Planning and Review. This proposed authority of § 67.4 are proposed to be the proposed BFEs, will be considered. rule is not a significant regulatory action amended as follows:

* Elevation in feet (NGVD) + Elevation in feet (NAVD) # Depth in feet above ground Flooding source(s) Location of referenced elevation ** ∧ Elevation in meters Communities affected (MSL) Effective Modified

Coffee County, Alabama, and Incorporated Areas

Beaverdam Creek ...... Approximately 3,492 feet upstream of confluence of +195 +199 City of Elba. Pea River and Beaverdam Creek. Approximately 6,718 feet upstream of confluence of +203 +204 Pea River and Beaverdam Creek. Pea River ...... Approximately 3,160 feet downstream of the intersec- +191 +192 City of Elba, Unincor- tion of County Road 404 and Reese Avenue. porated Areas of Coffee County. Approximately 13,918 feet upstream of confluence of +205 +206 Pea River and Whitewater Creek. Whitewater Creek ...... Approximately 2,000 feet upstream of State Route +198 +205 City of Elba, Unincor- 203. porated Areas of Coffee County. Approximately 14,458 feet upstream of State Route +205 +206 203. Wilkerson Creek...... From the Coffee County boundary with Geneva None +135 Unincorporated Areas of County. Coffee County. Approximately 2,140 feet upstream of the Coffee None +138 County boundary. Wilson Mill Creek ...... Approximately 390 feet downstream of County Road None +135 Unincorporated Areas of 45. Coffee County. Just downstream of County Road 45 ...... None +137

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ∧ Mean Sea Level, rounded to the nearest 0.1 meter. ** BFEs to be changed include the listed downstream and upstream BFEs, and include BFEs located on the stream reach between the ref- erenced locations above. Please refer to the revised Flood Insurance Rate Map located at the community map repository (see below) for exact locations of all BFEs to be changed.

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* Elevation in feet (NGVD) + Elevation in feet (NAVD) # Depth in feet above ground Flooding source(s) Location of referenced elevation ** ∧ Elevation in meters Communities affected (MSL) Effective Modified

Send comments to William R. Blanton, Jr., Chief, Engineering Management Branch, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472. ADDRESSES City of Elba Maps are available for inspection at 200 Buford Street, Elba, AL 36323. Unincorporated Areas of Coffee County Maps are available for inspection at 1065 East McKinnon Street, New Brockton, AL 36351.

Coconino County, Arizona, and Incorporated Areas

Bow and Arrow Wash ...... Approximately 50 feet downstream of South Lone +6879 +6878 City of Flagstaff. Tree Road. Approximately 1,800 feet upstream of Lake Mary None +6949 Road. Peak View Wash ...... At confluence with Rio de Flag ...... +7111 +7113 City of Flagstaff. Approximately 125 feet upstream of Lois Lane ...... +7121 +7123 Rio de Flag ...... At Rio Rancho Road ...... +6519 +6521 City of Flagstaff, Unincor- porated Areas of Coconino County. Approximately 150 feet downstream of Route 66 ...... None +6758 At Narrows Dam ...... +7086 +7087 Approximately 565 feet downstream of Hidden Hollow +7147 +7148 Road. Schultz Creek ...... Approximately 175 feet upstream of North Fort Valley None +7006 City of Flagstaff, Unincor- Road. porated Areas of Coconino County. Approximately 0.57 mile upstream of Mary Russel None +7140 Way. Schultz Creek Ponding ...... Approximately 50 feet upstream of the confluence None #1 City of Flagstaff, Unincor- with Rio de Flag. porated Areas of Coconino County. Approximately 175 feet upstream of North Fort Valley None #1 Road. Switzer Canyon Wash ...... Approximately 50 feet upstream of the upstream end +6866 +6869 City of Flagstaff, Unincor- of the East Route 66 culvert. porated Areas of Coconino County. Approximately 0.42 mile upstream of Elk Drive ...... +7029 +7030

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ∧ Mean Sea Level, rounded to the nearest 0.1 meter. ** BFEs to be changed include the listed downstream and upstream BFEs, and include BFEs located on the stream reach between the ref- erenced locations above. Please refer to the revised Flood Insurance Rate Map located at the community map repository (see below) for exact locations of all BFEs to be changed. Send comments to William R. Blanton, Jr., Chief, Engineering Management Branch, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472. ADDRESSES City of Flagstaff Maps are available for inspection at Flagstaff City Hall, 211 West Aspen Avenue, Flagstaff, AZ. Unincorporated Areas of Coconino County Maps are available for inspection at the Coconino County Department of Community Development, 2500 North Fort Valley Road, Building 1, Flagstaff, AZ.

Pulaski County, Arkansas, and Incorporated Areas

Bayou Meto...... Approximately 3.48 miles downstream of South- +244 +243 City of Jacksonville, Unin- eastern Avenue. corporated Areas of Pu- laski County. Approximately 3.87 miles downstream of Old Tom +266 +263 Box Road. Just upstream of Davis Ranch Road ...... None +320 Bridge Drive ...... At the confluence of Bayou Meto ...... None +266 Unincorporated Areas of Pulaski County. Approximately 1.35 miles upstream of Bridge Field None +271 Drive.

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* Elevation in feet (NGVD) + Elevation in feet (NAVD) # Depth in feet above ground Flooding source(s) Location of referenced elevation ** ∧ Elevation in meters Communities affected (MSL) Effective Modified

Five Mile Creek ...... At the confluence with Bayou Meto ...... +247 +248 Unincorporated Areas of Pulaski County. Just upstream of Rixie Road ...... +251 +252 Jacks Bayou...... Approximately 1.93 miles downstream of Preters None +277 Unincorporated Areas of Road. Pulaski County. Approximately 1,200 feet upstream of Peters Road .... None +283 Jacks Bayou Tributary 10..... Approximately 1,000 feet downstream of Mercury None +274 Unincorporated Areas of Drive. Pulaski County. Approximately 1,800 feet upstream of Hercules Drive None +279

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ∧ Mean Sea Level, rounded to the nearest 0.1 meter. ** BFEs to be changed include the listed downstream and upstream BFEs, and include BFEs located on the stream reach between the ref- erenced locations above. Please refer to the revised Flood Insurance Rate Map located at the community map repository (see below) for exact locations of all BFEs to be changed. Send comments to William R. Blanton, Jr., Chief, Engineering Management Branch, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472. ADDRESSES City of Jacksonville Maps are available for inspection at One Industrial Drive, Jacksonville, AR 72076. Unincorporated Areas of Pulaski County Maps are available for inspection at 501 West Markham Street, Suite A, Little Rock, AR 72201.

Siskiyou County, California, and Incorporated Areas

Oregon Slough...... Corporate Limits of the City of Montague and None +2503 Unincorporated Areas of Siskiyou Unincorporated. Siskiyou County. Approximately 0.4 mile downstream of Ager Road ..... None +2515 Approximately 325 feet downstream of Ager Road ..... None +2523

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ∧ Mean Sea Level, rounded to the nearest 0.1 meter. ** BFEs to be changed include the listed downstream and upstream BFEs, and include BFEs located on the stream reach between the ref- erenced locations above. Please refer to the revised Flood Insurance Rate Map located at the community map repository (see below) for exact locations of all BFEs to be changed. Send comments to William R. Blanton, Jr., Chief, Engineering Management Branch, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472. ADDRESSES Unincorporated Areas of Siskiyou County Maps are available for inspection at the Siskiyou County Public Health and Community Development Department, 806 South Main Street, Yreka, CA.

Cass County, Illinois, and Incorporated Areas

Illinois River ...... The confluence with Camp Creek (Brown County), +447 +448 City of Beardstown, Unin- approximately 2,185 feet upstream of the Cass/ corporated Areas of Morgan boundary. Cass County. The downstream end of Elm Island (Schuyler Coun- +450 +452 ty), approximately 650 feet upstream of the Cass/ Mason boundary. Illinois River Backwater on The confluence with the Illinois River ...... +449 +451 Unincorporated Areas of the Sangamon River. Cass County. Approximately 12 miles upstream of the confluence None +452 with the Illinois River. Panther Creek ...... Approximately 3,220 feet downstream of State High- None +458 Unincorporated Areas of way 78. Cass County. The Limit of Detailed Study, approximately 3,660 feet None +472 upstream of Main Street. Sangamon River ...... Approximately 285 feet upstream of Old River Road .. None +456 Unincorporated Areas of Cass County, City of Beardstown.

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* Elevation in feet (NGVD) + Elevation in feet (NAVD) # Depth in feet above ground Flooding source(s) Location of referenced elevation ** ∧ Elevation in meters Communities affected (MSL) Effective Modified

Approximately 1,600 feet upstream of State Highway None +461 78.

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ∧ Mean Sea Level, rounded to the nearest 0.1 meter. ** BFEs to be changed include the listed downstream and upstream BFEs, and include BFEs located on the stream reach between the ref- erenced locations above. Please refer to the revised Flood Insurance Rate Map located at the community map repository (see below) for exact locations of all BFEs to be changed. Send comments to William R. Blanton, Jr., Chief, Engineering Management Branch, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472. ADDRESSES City of Beardstown Maps are available for inspection at Beardstown City Hall, 105 West 3rd Street, Beardstown, IL 62618. Unincorporated Areas of Cass County Maps are available for inspection at the Cass County Courthouse, 100 East Springfield Street, Virginia, IL 62691.

Jo Daviess County, Illinois, and Incorporated Areas

Apple River ...... Approximately 2.2 miles upstream of Crazy Hollow None +616 Village of Hanover, Unin- Road. corporated Areas of Jo Daviess County. Approximately 0.78 miles upstream of North Wash- None +622 ington Street. Mississippi River ...... Approximately 559.7 miles upstream of the con- +603 +604 Unincorporated Areas of fluence with the Ohio River (approximately 0.6 Jo Daviess County. miles upstream of West Diggen Hill Road ex- tended). Approximately 572.3 miles upstream of the con- +607 +608 fluence with the Ohio River (approximately 1.5 miles upstream of Sand Ridge Road extended). Mississippi River Backwater The Apple River from the Jo Daviess/Carroll County None +599 Unincorporated Areas of boundary (approximately 0.7 miles upstream of Sa- Jo Daviess County. vanna Army Depot Road in Carroll County). Approximately 1.45 miles upstream of the Jo Daviess/ None +599 Carroll County boundary (approximately 200 feet upstream of West Whitton Road). The Galena River from the confluence with the Mis- +604 +605 sissippi River (approximately 0.1 mile downstream of Railroad Bridge). Approximately 0.86 miles upstream of the confluence +604 +605 with the Mississippi River (approximately 0.76 miles upstream of Railroad Bridge).

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ∧ Mean Sea Level, rounded to the nearest 0.1 meter. ** BFEs to be changed include the listed downstream and upstream BFEs, and include BFEs located on the stream reach between the ref- erenced locations above. Please refer to the revised Flood Insurance Rate Map located at the community map repository (see below) for exact locations of all BFEs to be changed. Send comments to William R. Blanton, Jr., Chief, Engineering Management Branch, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472. ADDRESSES Unincorporated Areas of Jo Daviess County Maps are available for inspection at the Jo Daviess County Courthouse, 330 North Bench Street, Galena, IL 61036. Village of Hanover Maps are available for inspection at the Hanover Village Hall, 207 Jefferson Street, Hanover, IL 61041.

Schuyler County, Illinois, and Incorporated Areas

Illinois River...... Approximately 0.4 miles downstream of the con- +448 +450 Unincorporated Areas of fluence with the La Moine River. Schuyler County, Village of Browning.

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* Elevation in feet (NGVD) + Elevation in feet (NAVD) # Depth in feet above ground Flooding source(s) Location of referenced elevation ** ∧ Elevation in meters Communities affected (MSL) Effective Modified

Approximately 2.55 miles upstream of the confluence +451 +452 with Elm Creek.

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ∧ Mean Sea Level, rounded to the nearest 0.1 meter. ** BFEs to be changed include the listed downstream and upstream BFEs, and include BFEs located on the stream reach between the ref- erenced locations above. Please refer to the revised Flood Insurance Rate Map located at the community map repository (see below) for exact locations of all BFEs to be changed. Send comments to William R. Blanton, Jr., Chief, Engineering Management Branch, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472. ADDRESSES Unincorporated Areas of Schuyler County Maps are available for inspection at the Schuyler County Highway Department, 121 Henninger Drive, Rushville, IL 62681. Village of Browning Maps are available for inspection at the Village Hall 501 Main Street, P.O. 169, Browning, IL 62624.

Worcester County, Massachusetts, and Incorporated Areas

Big Bummet River ...... Just downstream of State Highway 140 ...... +384 +385 Town of Shrewsbury. At the corporate limits of the Town of Shrewsbury +383 +385 with the Town of Grafton. Blackstone River ...... Approximately 1,750 feet downstream of Saint Paul +160 +159 Town of Blackstone, City Street Bridge. of Worcester, Town of Grafton, Town of Millbury, Town of Mill- ville, Town of Northbridge, Town of Sutton, Town of Uxbridge. Approximately 250 feet downstream of Millbury Street +443 +444 Bridge. Cold Spring Brook ...... At its confluence with Blackstone River ...... +326 +323 Town of Sutton. Approximately 150 feet downstream of State Highway +326 +325 122A. Cronin Brook ...... At its confluence with Blackstone River ...... +301 +298 Town of Grafton. Approximately 1,100 feet downstream of Follette +301 +302 Street. Goodridge Brook ...... Approximately 150 feet upstream of State Highway 70 None +258 Town of Clinton. Approximately 250 feet downstream of Parker Road .. None +258 Middle River ...... Approximately 250 feet downstream of Millbury Street +443 +444 City of Worcester. Bridge. Approximately 100 feet downstream of McKeon Road +451 +452 Mill River ...... Approximately 3,900 feet downstream of Colonial None +196 Town of Blackstone. Drive. Approximately 1,300 feet downstream of Colonial None +198 Drive. Mumford River ...... At its confluence with Blackstone River ...... +227 +225 Town of Uxbridge. Approximately 300 feet downstream of Mendon Street +227 +226 Quinsigamond River ...... At its confluence with Blackstone River ...... +295 +293 Town of Grafton. At Pleasant Street Bridge ...... +295 +293 Riverdale Milles Sluice Gates Approximately 600 feet upstream of the confluence +255 +256 Town of Northbridge. and Tail Race. with Blackstone River. Approximately 100 feet upstream of Riverdale Street +258 +259 Singletary Brook ...... At its confluence with Blackstone River ...... +395 +393 Town of Millbury. Approximately 300 feet downstream of Rhodes Street +395 +394 West River ...... At its confluence with Blackstone River ...... +226 +224 Town of Uxbridge. Approximately 200 feet upstream of Henry Street +226 +225 Bridge.

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ∧ Mean Sea Level, rounded to the nearest 0.1 meter.

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* Elevation in feet (NGVD) + Elevation in feet (NAVD) # Depth in feet above ground Flooding source(s) Location of referenced elevation ** ∧ Elevation in meters Communities affected (MSL) Effective Modified

** BFEs to be changed include the listed downstream and upstream BFEs, and include BFEs located on the stream reach between the ref- erenced locations above. Please refer to the revised Flood Insurance Rate Map located at the community map repository (see below) for exact locations of all BFEs to be changed. Send comments to William R. Blanton, Jr., Chief, Engineering Management Branch, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472. ADDRESSES City of Worcester Maps are available for inspection at City Hall, 455 Main Street, Worcester, MA 01608. Town of Blackstone Maps are available for inspection at the Town Hall, 15 Saint Paul Street, Blackstone, MA 01504. Town of Clinton Maps are available for inspection at the Town Hall, 242 Church Street, Clinton, MA 01510. Town of Grafton Maps are available for inspection at the Town Hall, 30 Providence Road, Grafton, MA 01519. Town of Millbury Maps are available for inspection at the Town Hall, 127 Elm Street, Millbury, MA 01527. Town of Millville Maps are available for inspection at the Town Hall, 8 Central Street, Millville, MA 01529. Town of Northbridge Maps are available for inspection at the Town Hall, 7 Main Street, Whitinsville, MA 01588. Town of Shrewsbury Maps are available for inspection at the Town Hall, 100 Maple Avenue, Shrewsbury, MA 01545. Town of Sutton Maps are available for inspection at the Town Hall, 4 Uxbridge Road, Sutton, MA 01590. Town of Uxbridge Maps are available for inspection at the Town Hall, 21 South Main Street, Uxbridge, MA 01569.

Clinton County, Michigan, and Incorporated Areas

Looking Glass River ...... Just upstream of South Chandler Road ...... None +805 Township of Victor, Town- ship of Bath. Approximately 9,000 feet upstream of Babcock Road None +807 Prairie Creek and At confluence with Remey Chandler Drain ...... None +817 Township of DeWitt. Gunderman Lake Drain. Approximately 7,410 feet upstream of West Stoll None +832 Road. Remey Chandler Drain...... Approximately 350 feet downstream of Interstate None +835 City of East Lansing, Highway 69. Township of Bath, Township of De Witt. Approximately 1,140 feet upstream of Coleman Road None +844 Steel and Walbridge Drain .... At confluence with Spaulding Drain ...... None +730 City of St. Johns, Bing- ham. Approximately 600 feet upstream of Glastonbury None +752 Drive.

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ∧ Mean Sea Level, rounded to the nearest 0.1 meter. ** BFEs to be changed include the listed downstream and upstream BFEs, and include BFEs located on the stream reach between the ref- erenced locations above. Please refer to the revised Flood Insurance Rate Map located at the community map repository (see below) for exact locations of all BFEs to be changed. Send comments to William R. Blanton, Jr., Chief, Engineering Management Branch, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472. ADDRESSES Bingham Maps are available for inspection at 1637 South DeWitt Road, St. Johns, MI 48879. City of East Lansing Maps are available for inspection at 410 Abbott Road, East Lansing, MI 48823–3388. City of St. Johns Maps are available for inspection at 100 East State Street, Suite 1100, St. Johns, MI 48879–0477. Township of Bath Maps are available for inspection at 14480 Webster Road, P.O. Box 247, Bath, MI 48808–0247. Township of DeWitt

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* Elevation in feet (NGVD) + Elevation in feet (NAVD) # Depth in feet above ground Flooding source(s) Location of referenced elevation ** ∧ Elevation in meters Communities affected (MSL) Effective Modified

Maps are available for inspection at 1401 West Herbison Road, DeWitt, MI 48820. Township of Victor Maps are available for inspection at 6843 East Alward Road, Laingsburg, MI 48848–9256.

Ransom County, North Dakota, and Incorporated Areas

Sheyenne River ...... Approximately 1,064 feet upstream of Richland Coun- None +990 Unincorporated Areas of ty Line. Ransom County. Approximately 7,465 feet downstream of State High- None +1160 way 46.

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ∧ Mean Sea Level, rounded to the nearest 0.1 meter. ** BFEs to be changed include the listed downstream and upstream BFEs, and include BFEs located on the stream reach between the ref- erenced locations above. Please refer to the revised Flood Insurance Rate Map located at the community map repository (see below) for exact locations of all BFEs to be changed. Send comments to William R. Blanton, Jr., Chief, Engineering Management Branch, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472. ADDRESSES City of Fort Ransom Maps are available for inspection at P.O. Box 17, Fort Ransom, ND 58033. City of Lisbon Maps are available for inspection at P.O. Box 1079, Lisbon, ND 58054. Unincorporated Areas of Ransom County Maps are available for inspection at 204 5th Avenue West, Lisbon, ND 58054–4115.

Cuyahoga County, Ohio, and Incorporated Areas

Anthony Lake Tributary ...... Approximately 425 feet downstream of Anthony Lane +895 +897 City of Parma Heights, City of Parma. Approximately 140 feet upstream of Anthony Lane ..... +895 +902 Big Creek ...... Approximately 300 feet downstream of Ridge Road ... None +679 City of Brooklyn. Approximately 1,100 feet upstream of Ridge Road ..... None +695 Chagrin River ...... Approximately 1⁄2 mile upstream of Rogers Road ...... None +683 Village of Mayfield. Chagrin River ...... Approximately 40 feet upstream of Woodland Road ... None +786 Village of Moreland Hills. Approximately 1,200 feet upstream of Woodland None +789 Road. Approximately 850 feet downstream of Miles Road .... None +851 Approximately 1,200 feet upstream of Miles Road ...... None +860 Countrymans Creek ...... Upstream of Interstate 71 ...... None +721 Village of Linndale. Downstream of Bellaire Road ...... None +727 Cuyahoga River ...... Approximately 40 feet upstream of Brecksville Road .. None +605 City of Garfield Heights. Approximately 700 feet upstream of Brecksville Road None +607 Doan Brook ...... Approximately 160 feet upstream of Martin Luther None +777 City of Cleveland Heights. King Jr. Drive. Approximately 130 feet upstream of West Woodland None +915 Road. Dover Ditch ...... Approximately 150 feet downstream of Harding Drive None +724 City of North Olmsted. Gifford-Avon Ditch ...... Approximately 100 Feet upstream of Naigle Road ...... +622 +629 City of Westlake. Approximately 0.5 mile upstream of Naigle Road ...... +626 +629 Lake Erie ...... Entire Shoreline ...... +589 +576 City of Bay Village, City of Cleveland, City of Lake- wood. Mill Creek...... Approximately 30 feet downstream of McCracken +839 +841 City of Maple Heights. Road. Approximately 390 feet upstream of McCracken Road +840 +841 Plum Creek ...... Mouth at West Branch Rocky River ...... None +710 City of Olmsted Falls. Approximately 70 feet downstream of Sprague Road None +780 Plum Creek ...... Approximately 2,900 feet upstream of Bagley Road ... +758 +764 Unincorporated Areas of Cuyahoga County. Approximately 70 feet downstream of Sprague Road +777 +780 Rocky River ...... Approximately 775 feet downstream of River Road .... None +600 City of Cleveland. Approximately 3,500 feet upstream of River Road ...... None +606 Rocky River ...... Approximately 1,100 feet upstream of Detroit Road .... +581 +580 City of Rocky River. Approximately 1,400 feet downstream of I–90 ...... +594 +595

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* Elevation in feet (NGVD) + Elevation in feet (NAVD) # Depth in feet above ground Flooding source(s) Location of referenced elevation ** ∧ Elevation in meters Communities affected (MSL) Effective Modified

Tinkers Creek Tributary 1 ..... Approximately 0.3 miles upstream of Walton Road ..... None +930 City of Bedford. West Branch Rocky River ..... Approximately 1.1 miles downstream of Water Street None +682 City of Olmsted Falls. At Sprague Road ...... None +753 West Branch Rocky River ..... Approximately 1.1 miles downstream of Water Street +684 +682 Unincorporated Areas of Cuyahoga County. Approximately 1,200 feet downstream of Water Street +695 +693

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ∧ Mean Sea Level, rounded to the nearest 0.1 meter. ** BFEs to be changed include the listed downstream and upstream BFEs, and include BFEs located on the stream reach between the ref- erenced locations above. Please refer to the revised Flood Insurance Rate Map located at the community map repository (see below) for exact locations of all BFEs to be changed. Send comments to William R. Blanton, Jr., Chief, Engineering Management Branch, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472. ADDRESSES City of Bay Village Maps are available for inspection at 350 Dover Center Road, Bay Village, OH 44140. City of Bedford Maps are available for inspection at 165 Center Road, Bedford, OH 44146. City of Brooklyn Maps are available for inspection at 7619 Memphis Avenue, Brooklyn, OH 44144. City of Cleveland Maps are available for inspection at 601 Lakeside Avenue, Cleveland, OH 44144. City of Cleveland Heights Maps are available for inspection at 40 Severance Circle, Cleveland Heights, OH 44118. City of Garfield Heights Maps are available for inspection at 5407 Turney Road, Garfield Heights, OH 44125. City of Lakewood Maps are available for inspection at 12650 Detroit Avenue, Lakewood, OH 44107. City of Maple Heights Maps are available for inspection at 5353 Lee Road, Maple Heights, OH 44137. City of North Olmsted Maps are available for inspection at 5200 Dover Center Road, North Olmsted, OH 44070. City of Olmsted Falls Maps are available for inspection at 26100 Bagley Road, Olmsted Falls, OH 44138. City of Parma Maps are available for inspection at 6611 Ridge Road, Parma, OH 44129. City of Parma Heights Maps are available for inspection at 6281 Pearl Road, Parma Heights, OH 44130. City of Rocky River Maps are available for inspection at 21012 Hilliard Boulevard, Rocky River, OH 44116. City of Westlake Maps are available for inspection at 27700 Hilliard Boulevard, Westlake, OH 44145. Unincorporated Areas of Cuyahoga County Maps are available for inspection at 323 Lakeside Avenue, Suite 400, Cleveland, OH 44113. Village of Linndale Maps are available for inspection at 4016 West 119th Street, Linndale, OH 44135. Village of Mayfield Maps are available for inspection at 6622 Wilson Mills Road, Mayfield, OH 44143. Village of Moreland Hills Maps are available for inspection at 4350 S.O.M. Center Road, Moreland Hills, OH 44022.

Brown County, South Dakota, and Incorporated Areas

James River ...... Approximately 3.8 miles downstream of 147th Street None +1275 Unincorporated Areas of Brown County. Approximately 6,260 feet upstream of 101st Street .... None +1296

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground.

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* Elevation in feet (NGVD) + Elevation in feet (NAVD) # Depth in feet above ground Flooding source(s) Location of referenced elevation ** ∧ Elevation in meters Communities affected (MSL) Effective Modified

∧ Mean Sea Level, rounded to the nearest 0.1 meter. ** BFEs to be changed include the listed downstream and upstream BFEs, and include BFEs located on the stream reach between the ref- erenced locations above. Please refer to the revised Flood Insurance Rate Map located at the community map repository (see below) for exact locations of all BFEs to be changed. Send comments to William R. Blanton, Jr., Chief, Engineering Management Branch, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472. ADDRESSES Unincorporated Areas of Brown County Maps are available for inspection at 25 Market Street, Aberdeen, SD 57401.

Lake County, Tennessee, and Incorporated Areas

Mississippi River ...... From the Dyer/Lake County boundary (River Mile None +281 Unincorporated Areas of 845). Lake County, Town of Tiptonville. Lake County/New Madrid County, Missouri/Fulton None +311 County, Kentucky boundaries (River Mile 907.3).

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ∧ Mean Sea Level, rounded to the nearest 0.1 meter. ** BFEs to be changed include the listed downstream and upstream BFEs, and include BFEs located on the stream reach between the ref- erenced locations above. Please refer to the revised Flood Insurance Rate Map located at the community map repository (see below) for exact locations of all BFEs to be changed. Send comments to William R. Blanton, Jr., Chief, Engineering Management Branch, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472. ADDRESSES Town of Tiptonville Maps are available for inspection at the Town Hall, 130 South Court Street, Tiptonville, TN 38079. Unincorporated Areas of Lake County Maps are available for inspection at the County Courthouse, 229 Church Street, Tiptonville, TN 38079.

(Catalog of Federal Domestic Assistance No. ACTION: Proposed rule. ADDRESSES: The corresponding 97.022, ‘‘Flood Insurance.’’) preliminary Flood Insurance Rate Map Dated: May 13, 2009. SUMMARY: Comments are requested on (FIRM) for the proposed BFEs for each Deborah S. Ingram, the proposed Base (1% annual-chance) community are available for inspection Acting Deputy Assistant Administrator for Flood Elevations (BFEs) and proposed at the community’s map repository. The Mitigation, Mitigation Directorate, BFE modifications for the communities respective addresses are listed in the Department of Homeland Security, Federal listed in the table below. The purpose table below. Emergency Management Agency. of this notice is to seek general You may submit comments, identified [FR Doc. E9–12106 Filed 5–22–09; 8:45 am] information and comment regarding the by Docket No. FEMA–B–1051, to BILLING CODE 9110–12–P proposed regulatory flood elevations for William R. Blanton, Jr., Chief, the reach described by the downstream Engineering Management Branch, and upstream locations in the table Mitigation Directorate, Federal DEPARTMENT OF HOMELAND below. The BFEs and modified BFEs are Emergency Management Agency, 500 C SECURITY a part of the floodplain management Street, SW., Washington, DC 20472, measures that the community is (202) 646–3151, or (e-mail) Federal Emergency Management required either to adopt or show [email protected]. Agency evidence of having in effect in order to FOR FURTHER INFORMATION CONTACT: qualify or remain qualified for William R. Blanton, Jr., Chief, 44 CFR Part 67 participation in the National Flood Engineering Management Branch, Insurance Program (NFIP). In addition, Mitigation Directorate, Federal [Docket ID FEMA–2008–0020; Internal these elevations, once finalized, will be Emergency Management Agency, 500 C Agency Docket No. FEMA–B–1051] used by insurance agents, and others to Street, SW., Washington, DC 20472, calculate appropriate flood insurance Proposed Flood Elevation (202) 646–3151, or (e-mail) premium rates for new buildings and [email protected]. Determinations the contents in those buildings. SUPPLEMENTARY INFORMATION: The AGENCY: Federal Emergency DATES: Comments are to be submitted Federal Emergency Management Agency Management Agency, DHS. on or before August 24, 2009. (FEMA) proposes to make

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determinations of BFEs and modified Comments on any aspect of the Flood Executive Order 12988, Civil Justice BFEs for each community listed below, Insurance Study and FIRM, other than Reform. This proposed rule meets the in accordance with section 110 of the the proposed BFEs, will be considered. applicable standards of Executive Order Flood Disaster Protection Act of 1973, A letter acknowledging receipt of any 12988. 42 U.S.C. 4104, and 44 CFR 67.4(a). comments will not be sent. These proposed BFEs and modified National Environmental Policy Act. List of Subjects in 44 CFR Part 67 BFEs, together with the floodplain This proposed rule is categorically Administrative practice and management criteria required by 44 CFR excluded from the requirements of 44 procedure, Flood insurance, Reporting 60.3, are the minimum that are required. CFR part 10, Environmental and recordkeeping requirements. They should not be construed to mean Consideration. An environmental that the community must change any impact assessment has not been Accordingly, 44 CFR part 67 is existing ordinances that are more prepared. proposed to be amended as follows: stringent in their floodplain Regulatory Flexibility Act. As flood management requirements. The elevation determinations are not within PART 67—[AMENDED] community may at any time enact the scope of the Regulatory Flexibility stricter requirements of its own, or Act, 5 U.S.C. 601–612, a regulatory 1. The authority citation for part 67 pursuant to policies established by other flexibility analysis is not required. continues to read as follows: Federal, State, or regional entities. Executive Order 12866, Regulatory Authority: 42 U.S.C. 4001 et seq.: These proposed elevations are used to Planning and Review. This proposed Reorganization Plan No. 3 of 1978, 3 CFR, meet the floodplain management rule is not a significant regulatory action 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, requirements of the NFIP and are also under the criteria of section 3(f) of 3 CFR, 1979 Comp., p. 376. used to calculate the appropriate flood Executive Order 12866, as amended. § 67.4 [Amended] insurance premium rates for new Executive Order 13132, Federalism. buildings built after these elevations are This proposed rule involves no policies 2. The tables published under the made final, and for the contents in these that have federalism implications under authority of § 67.4 are proposed to be buildings. Executive Order 13132. amended as follows:

* Elevation in feet (NGVD) + Elevation in feet (NAVD) # Depth in feet above ground Flooding source(s) Location of referenced elevation ** ∧ Elevation in meters Communities affected (MSL) Effective Modified

Jefferson County, Alabama, and Incorporated Areas

Dry Creek ...... Approximately 630 feet upstream of Navajo Trail NE +720 +722 City of Center Point. Just upstream of Chalkville Mountain Road ...... None +958 Griffin Brook ...... Approximately 800 feet upstream of Lakeshore Drive +634 +631 City of Homewood. Approximately 90 feet upstream of Montgomery High- None +788 way. Huckleberry Branch ...... Approximately 200 feet downstream of Tyler Road ..... +516 +514 City of Hoover, City of Vestavia Hills. Approximately 1,500 feet upstream of Mountain Oaks +824 +814 Drive. Little Shades Creek (Cahaba Approximately 930 feet upstream of Loch Haven +431 +432 City of Hoover, City of Basin). Drive. Mountain Brook, City of Vestavia Hills. Just upstream of Pipe Line Road ...... +625 +626 Little Shades Creek (Shades Just downstream of Wenonah Oxmoor Road ...... +515 +514 City of Bessemer, City of Creek). Birmingham. Approximately 2.3 miles downstream of Alabama +633 +632 Highway 150. Patton Creek...... Approximately 0.6 miles downstream of Alabama +424 +423 City of Hoover, City of Highway 150. Vestavia Hills. Approximately 310 feet downstream of West Ridge +534 +533 Drive. Pinchgut Creek ...... Approximately 0.7 miles downstream of Watterson +690 +691 City of Birmingham, City of Parkway. Trussville. Approximately 2.0 miles upstream of Gadsden High- +850 +846 way. Turkey Creek ...... Approximately 0.7 miles downstream of Old Bradford +566 +565 City of Center Point, City Road. of Clay, City of Pinson. Approximately 950 feet upstream of Eagle Ridge +880 +885 Drive. Unnamed Creek 10 ...... Approximately 515 feet downstream of Main Street .... +605 +607 City of Center Point, City of Pinson. Approximately 90 feet downstream of Houston Road +671 +667 Unnamed Creek 11 ...... Just upstream of Center Point Road ...... +627 +626 City of Center Point, City of Pinson. Approximately, 1610 feet upstream of Green Crest +690 +692 Drive.

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* Elevation in feet (NGVD) + Elevation in feet (NAVD) # Depth in feet above ground Flooding source(s) Location of referenced elevation ** ∧ Elevation in meters Communities affected (MSL) Effective Modified

Unnamed Creek 9 ...... Just downstream of Alabama Highway 151 ...... +591 +590 City of Center Point. Just downstream of Pinson Heights Road ...... +630 +631 Valley Creek ...... Approximately 0.5 miles downstream of Power Plant None +431 City of Bessemer. Road. Approximately 0.5 miles upstream of Power Plant None +440 Road.

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ∧ Mean Sea Level, rounded to the nearest 0.1 meter. ** BFEs to be changed include the listed downstream and upstream BFEs, and include BFEs located on the stream reach between the ref- erenced locations above. Please refer to the revised Flood Insurance Rate Map located at the community map repository (see below) for exact locations of all BFEs to be changed. Send comments to William R. Blanton, Jr., Chief, Engineering Management Branch, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472. ADDRESSES City of Bessemer Maps are available for inspection at 1800 Third Avenue North, Bessemer, AL 35020. City of Birmingham Maps are available for inspection at 710 20th Street North, Birmingham, AL 35203. City of Center Point Maps are available for inspection at 2209 Center Point Parkway, Center Point, AL 35215. City of Clay Maps are available for inspection at 6757 Old Springville Road, Pinson, AL 35126. City of Homewood Maps are available for inspection at 1903 29th Avenue South, Birmingham, AL 35209. City of Hoover Maps are available for inspection at 100 Municipal Drive, Hoover, AL 35236. City of Mountain Brook Maps are available for inspection at 56 Church Street, Mountain Brook, AL 35213. City of Pinson Maps are available for inspection at 4410 Main Street, Pinson, AL 35126. City of Trussville Maps are available for inspection at 131 Main Street, Trussville, AL 35173. City of Vestavia Hills Maps are available for inspection at 513 Montgomery Highway, Vestavia Hills, AL 35085.

La Plata County, Colorado, and Incorporated Areas

Grimes Creek ...... Approximately 0.5 miles downstream of County Road +7674 +7674 Unincorporated Areas of 501. La Plata County. Approximately 1,400 feet upstream of West Grimes +7779 +7776 Creek Road. Junction Creek ...... Pleasant Drive in Durango ...... +6641 +6659 Unincorporated Areas of La Plata County. Approximately 0.2 miles upstream of National Forest +6994 +6996 Boundary. Los Pinos River...... Approximately 1.2 miles downstream of Highway +6829 +6826 Unincorporated Areas of 160B. La Plata County. Upstream Limit of Detailed Study at Vallecito Res- None +7533 ervoir Dam. Los Pinos River...... Approximately 1,200 feet downstream of Highway +6865 +6863 Town of Bayfield. 160B. Downstream face of Highway 160 Bridge ...... +6891 +6895 Middle Creek ...... Approximately 0.6 miles downstream of County Road +7674 +7674 Unincorporated Areas of 501. La Plata County. West Grimes Creek Road ...... +7718 +7717 Vallecito Creek ...... Approximately 0.5 miles downstream of County Road +7674 +7674 Unincorporated Areas of 501. La Plata County. Vallecito Campground/National Forest Boundary ...... +7922 +7918

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground.

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* Elevation in feet (NGVD) + Elevation in feet (NAVD) # Depth in feet above ground Flooding source(s) Location of referenced elevation ** ∧ Elevation in meters Communities affected (MSL) Effective Modified

∧ Mean Sea Level, rounded to the nearest 0.1 meter. ** BFEs to be changed include the listed downstream and upstream BFEs, and include BFEs located on the stream reach between the ref- erenced locations above. Please refer to the revised Flood Insurance Rate Map located at the community map repository (see below) for exact locations of all BFEs to be changed. Send comments to William R. Blanton, Jr., Chief, Engineering Management Branch, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472. ADDRESSES Town of Bayfield Maps are available for inspection at P.O. Box 80, Bayfield, CO 81122. Unincorporated Areas of La Plata County Maps are available for inspection at 1060 East 2nd Avenue, Durango, CO 81301.

Will County, Illinois, and Incorporated Areas

Des Plaines River ...... Approximately 2,700 feet downstream of McKinley +511 +510 Village of Channahon, City Woods Road (extended). of Joliet, Unincorporated Areas of Will County. Brandon Road Lock and Dam ...... +515 +512 DuPage River ...... At confluence with Des Plaines River ...... +512 +511 Village of Channahon, Un- incorporated Areas of Will County. Approximately 2,700 feet downstream of Bridge +512 +511 Street. Illinois & Michigan Canal The area surrounded in a clockwise direction by Hick- None #3 City of Joliet, Unincor- (backwater from Des ory Creek, Des Plaines River, Interstate 80, and porated Areas of Will Plaines River). 250 feet east of Joliet Street. County. Illinois & Michigan Canal The area surrounded in a clockwise direction by Inter- None #1 City of Joliet. (backwater from Des state 80, Des Plaines River, approximately 900 feet Plaines River). north of Columbia Street, and Eastern Avenue. Jackson Creek ...... At confluence of Jackson Creek and Jackson Branch None +627 Village of Frankfort, Unin- Creek. corporated Areas of Will County. 104th Avenue ...... None +752 Rock Run South ...... At confluence with Des Plaines River ...... +513 +512 City of Joliet. Approximately 2,325 feet downstream of U.S. Route 6 +513 +512

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ∧ Mean Sea Level, rounded to the nearest 0.1 meter. ** BFEs to be changed include the listed downstream and upstream BFEs, and include BFEs located on the stream reach between the ref- erenced locations above. Please refer to the revised Flood Insurance Rate Map located at the community map repository (see below) for exact locations of all BFEs to be changed. Send comments to William R. Blanton, Jr., Chief, Engineering Management Branch, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472. ADDRESSES City of Joliet Maps are available for inspection at City Hall, 150 West Jefferson Street, Joliet, IL 60432. Unincorporated Areas of Will County Maps are available for inspection at the Will County Land Use Department, 58 East Clinton Street, Joliet, IL 60432. Village of Channahon Maps are available for inspection at the Channahon Village Hall, 24555 South Navajo Drive, Channahon, IL 60410. Village of Frankfort Maps are available for inspection at the Frankfort Village Hall, 432 West Nebraska Street, Frankfort, IL 60423.

Jones County, Mississippi, and Incorporated Areas

Tallahala Creek ...... Approximately 800 feet upstream of Luther Hill Road None +219 City of Laurel, Unincor- porated Areas of Jones County. Approximately 1,000 feet upstream of U.S. Highway None +228 84.

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground.

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* Elevation in feet (NGVD) + Elevation in feet (NAVD) # Depth in feet above ground Flooding source(s) Location of referenced elevation ** ∧ Elevation in meters Communities affected (MSL) Effective Modified

∧ Mean Sea Level, rounded to the nearest 0.1 meter. ** BFEs to be changed include the listed downstream and upstream BFEs, and include BFEs located on the stream reach between the ref- erenced locations above. Please refer to the revised Flood Insurance Rate Map located at the community map repository (see below) for exact locations of all BFEs to be changed. Send comments to William R. Blanton, Jr., Chief, Engineering Management Branch, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472. ADDRESSES City of Laurel Maps are available for inspection at the City Clerk’s Office, 401 North 5th Avenue, Laurel, MS 39440. Unincorporated Areas of Jones County Maps are available for inspection at the Jones County Courthouse, 415 North 5th Avenue, Laurel, MS 39440.

Lincoln County, Mississippi, and Incorporated Areas

Stream 2...... Approximately 800 feet downstream of Williams None +444 Lincoln County. Street. Stream 5 ...... Approximately 850 feet downstream of railroad ...... None +464 Lincoln County. Stream 6 ...... Approximately 1,100 feet downstream of North Jack- None +465 Lincoln County. son Street.

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ∧ Mean Sea Level, rounded to the nearest 0.1 meter. ** BFEs to be changed include the listed downstream and upstream BFEs, and include BFEs located on the stream reach between the ref- erenced locations above. Please refer to the revised Flood Insurance Rate Map located at the community map repository (see below) for exact locations of all BFEs to be changed. Send comments to William R. Blanton, Jr., Chief, Engineering Management Branch, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472. ADDRESSES Lincoln County Maps are available for inspection at 300 South 2nd Street, Brookhaven, MS 39601.

Sequatchie County, Tennessee, and Incorporated Areas

Big Brush Creek ...... At the confluence with Sequatchie River ...... None +702 Sequatchie County. Just upstream of Union Road ...... None +784 Little Brush Creek ...... Approximately 0.4 miles downstream of Old Union None +791 Sequatchie County. Road. Approximately 588 feet upstream of Old Union Road None +825 Sequatchie River ...... Just downstream of U.S. Highway 127 ...... None +690 Sequatchie County. Approximately 651 feet upstream of the confluence None +702 with Big Brush Creek.

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ∧ Mean Sea Level, rounded to the nearest 0.1 meter. ** BFEs to be changed include the listed downstream and upstream BFEs, and include BFEs located on the stream reach between the ref- erenced locations above. Please refer to the revised Flood Insurance Rate Map located at the community map repository (see below) for exact locations of all BFEs to be changed. Send comments to William R. Blanton, Jr., Chief, Engineering Management Branch, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472. ADDRESSESS Sequatchie County Maps are available for inspection at the County Courthouse, 307 Cherry Street East, Dunlap, TN 37327.

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(Catalog of Federal Domestic Assistance No. ADDRESSES: The corresponding made final, and for the contents in these 97.022, ‘‘Flood Insurance.’’) preliminary Flood Insurance Rate Map buildings. Dated: May 14, 2009. (FIRM) for the proposed BFEs for each Comments on any aspect of the Flood Deborah S. Ingram, community are available for inspection Insurance Study and FIRM, other than Acting Deputy Assistant Administrator for at the community’s map repository. The the proposed BFEs, will be considered. Mitigation, Mitigation Directorate, respective addresses are listed in the A letter acknowledging receipt of any Department of Homeland Security, Federal table below. comments will not be sent. Emergency Management Agency. You may submit comments, identified National Environmental Policy Act. [FR Doc. E9–12108 Filed 5–22–09; 8:45 am] by Docket No. FEMA–B–1049, to This proposed rule is categorically BILLING CODE 9110–12–P William R. Blanton, Jr., Chief, excluded from the requirements of 44 Engineering Management Branch, CFR part 10, Environmental Mitigation Directorate, Federal Consideration. An environmental DEPARTMENT OF HOMELAND Emergency Management Agency, 500 C impact assessment has not been SECURITY Street, SW., Washington, DC 20472, prepared. Federal Emergency Management (202) 646–3151, or (e-mail) Regulatory Flexibility Act. As flood Agency [email protected]. elevation determinations are not within the scope of the Regulatory Flexibility FOR FURTHER INFORMATION CONTACT: 44 CFR Part 67 Act, 5 U.S.C. 601–612, a regulatory William R. Blanton, Jr., Chief, flexibility analysis is not required. [Docket ID FEMA–2008–0020; Internal Engineering Management Branch, Executive Order 12866, Regulatory Agency Docket No. FEMA–B–1049] Mitigation Directorate, Federal Planning and Review. This proposed Emergency Management Agency, 500 C rule is not a significant regulatory action Proposed Flood Elevation Street, SW., Washington, DC 20472, Determinations under the criteria of section 3(f) of (202) 646–3151, or (e-mail) Executive Order 12866, as amended. [email protected]. AGENCY: Federal Emergency Executive Order 13132, Federalism. Management Agency, DHS. SUPPLEMENTARY INFORMATION: The This proposed rule involves no policies ACTION: Proposed rule. Federal Emergency Management Agency that have federalism implications under Executive Order 13132. SUMMARY: Comments are requested on (FEMA) proposes to make determinations of BFEs and modified Executive Order 12988, Civil Justice the proposed Base (1% annual-chance) Reform. This proposed rule meets the Flood Elevations (BFEs) and proposed BFEs for each community listed below, in accordance with section 110 of the applicable standards of Executive Order BFE modifications for the communities 12988. listed in the table below. The purpose Flood Disaster Protection Act of 1973, of this notice is to seek general 42 U.S.C. 4104, and 44 CFR 67.4(a). List of Subjects in 44 CFR Part 67 information and comment regarding the These proposed BFEs and modified Administrative practice and proposed regulatory flood elevations for BFEs, together with the floodplain procedure, Flood insurance, Reporting the reach described by the downstream management criteria required by 44 CFR and recordkeeping requirements. and upstream locations in the table 60.3, are the minimum that are required. below. The BFEs and modified BFEs are They should not be construed to mean Accordingly, 44 CFR part 67 is a part of the floodplain management that the community must change any proposed to be amended as follows: measures that the community is existing ordinances that are more PART 67—[AMENDED] required either to adopt or show stringent in their floodplain evidence of having in effect in order to management requirements. The 1. The authority citation for part 67 qualify or remain qualified for community may at any time enact continues to read as follows: participation in the National Flood stricter requirements of its own, or Insurance Program (NFIP). In addition, Authority: 42 U.S.C. 4001 et seq.; pursuant to policies established by other Reorganization Plan No. 3 of 1978, 3 CFR, these elevations, once finalized, will be Federal, State, or regional entities. 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, used by insurance agents, and others to These proposed elevations are used to 3 CFR, 1979 Comp., p. 376. calculate appropriate flood insurance meet the floodplain management premium rates for new buildings and requirements of the NFIP and are also § 67.4 [Amended] the contents in those buildings. used to calculate the appropriate flood 2. The tables published under the DATES: Comments are to be submitted insurance premium rates for new authority of § 67.4 are proposed to be on or before August 24, 2009. buildings built after these elevations are amended as follows:

* Elevation in feet (NGVD) + Elevation in feet (NAVD) # Depth in feet above ground Flooding source(s) Location of referenced elevation** ∧ Elevation in meters Communities affected (MSL) Effective Modified

Greene County, Alabama, and Incorporated Areas

Boligee Canal...... Approximately 1,372 feet downstream of County None +117 City of Boligee. Road 81. Approximately 193 feet upstream of County Road 81 None +117 Tombigbee River ...... Approximately 2.97 miles upstream of I–20 ...... None +117 City of Boligee.

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* Elevation in feet (NGVD) + Elevation in feet (NAVD) # Depth in feet above ground Flooding source(s) Location of referenced elevation** ∧ Elevation in meters Communities affected (MSL) Effective Modified

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ∧ Mean Sea Level, rounded to the nearest 0.1 meter. ** BFEs to be changed include the listed downstream and upstream BFEs, and include BFEs located on the stream reach between the ref- erenced locations above. Please refer to the revised Flood Insurance Rate Map located at the community map repository (see below) for exact locations of all BFEs to be changed. Send comments to William R. Blanton, Jr., Chief, Engineering Management Branch, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472. ADDRESSES City of Boligee Maps are available for inspection at 8 City Hall Circle, Boligee, AL 35443.

Mesa County, Colorado, and Incorporated Areas

Gold Star Canyon ...... Just above the confluence with Colorado River ...... None +4518 Unincorporated Areas of Mesa County, City of Grand Junction. Just upstream of South Broadway ...... None +4805 Kannah Creek ...... Just above the confluence with Indian Creek ...... None +4766 Unincorporated Areas of Mesa County. Approximately 320 feet upstream of Upper Kannah None +6093 Creek Road. Kannah Creek Lower Split Just above confluence with Kannah Creek ...... None +4806 Unincorporated Areas of Flow. Mesa County. Just below divergence from Kannah Creek ...... None +4826 Kannah Creek Upper Split Just above confluence with Kannah Creek ...... None +4894 Unincorporated Areas of Flow. Mesa County. Just below divergence from Kannah Creek ...... None +4935 Red Canyon ...... Just above confluence with Colorado River ...... None +4546 Unincorporated Areas of Mesa County, City of Grand Junction. Approximately 5,670 feet above South Camp Road ... None +5020

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ∧ Mean Sea Level, rounded to the nearest 0.1 meter. ** BFEs to be changed include the listed downstream and upstream BFEs, and include BFEs located on the stream reach between the ref- erenced locations above. Please refer to the revised Flood Insurance Rate Map located at the community map repository (see below) for exact locations of all BFEs to be changed. Send comments to William R. Blanton, Jr., Chief, Engineering Management Branch, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472. ADDRESSES City of Grand Junction Maps are available for inspection at 250 North 5th Street, Grand Junction, CO 81501. Unincorporated Areas of Mesa County Maps are available for inspection at 544 Rood Avenue, Grand Junction, CO 81502.

Willow Creek ...... At Confluence with Blue River ...... +8681 +8682 Town of Silverthorne, Un- incorporated Areas of Summit County. Approximately 1,235 feet upstream of Ruby Road ...... +8873 +8874

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ∧ Mean Sea Level, rounded to the nearest 0.1 meter. ** BFEs to be changed include the listed downstream and upstream BFEs, and include BFEs located on the stream reach between the ref- erenced locations above. Please refer to the revised Flood Insurance Rate Map located at the community map repository (see below) for exact locations of all BFEs to be changed. Send comments to William R. Blanton, Jr., Chief, Engineering Management Branch, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472. ADDRESSES Town of Silverthorne Maps are available for inspection at 601 Center Circle, Silverthorne, CO 80493.

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* Elevation in feet (NGVD) + Elevation in feet (NAVD) # Depth in feet above ground Flooding source(s) Location of referenced elevation** ∧ Elevation in meters Communities affected (MSL) Effective Modified

Unincorporated Areas of Summit County Maps are available for inspection at 208 East Lincoln, Breckenridge, CO 80424–0068.

Cobb County, Georgia, and Incorporated Areas

Chattahoochee River ...... Above Morgan Falls Dam ...... +851 +854 Unincorporated Areas of Cobb County. Approximately 1,000 feet downstream from con- +861 +862 fluence of Willeo Creek.

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ∧ Mean Sea Level, rounded to the nearest 0.1 meter. ** BFEs to be changed include the listed downstream and upstream BFEs, and include BFEs located on the stream reach between the ref- erenced locations above. Please refer to the revised Flood Insurance Rate Map located at the community map repository (see below) for exact locations of all BFEs to be changed. Send comments to William R. Blanton, Jr., Chief, Engineering Management Branch, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472. ADDRESSES Unincorporated Areas of Cobb County Maps are available for inspection at 100 Cherokee Street, Marietta, GA 30090.

Fulton County, Georgia, and Incorporated Areas

Autry Mill Creek ...... Backwater from Chattahoochee River ...... *891 *889 City of Johns Creek. Chattahoochee River ...... Upstream of Morgan Falls Dam ...... *857 *854 Unincorporated Areas of Fulton County, City of Johns Creek, City of Roswell, City of Sandy Springs. Just downstream of McGinnis Ferry Road ...... None *907 Johns Creek ...... At confluence with Chattahoochee River ...... *891 *890 City of Johns Creek.

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ∧ Mean Sea Level, rounded to the nearest 0.1 meter. ** BFEs to be changed include the listed downstream and upstream BFEs, and include BFEs located on the stream reach between the ref- erenced locations above. Please refer to the revised Flood Insurance Rate Map located at the community map repository (see below) for exact locations of all BFEs to be changed. Send comments to William R. Blanton, Jr., Chief, Engineering Management Branch, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472. ADDRESSES City of Johns Creek Maps are available for inspection at 1200 Findley Road, Suite 400, Johns Creek, GA 30097. City of Roswell Maps are available for inspection at 38 Hill Street, Roswell, GA 30075. City of Sandy Springs Maps are available for inspection at 7840 Roswell Road, Sandy Springs, GA 30350. Unincorporated Areas of Fulton County Maps are available for inspection at 141 Pryor Street, Suite 10044, Atlanta, GA 30303.

Chattahoochee River ...... Just upstream of McGinnis Ferry Road ...... +911 +908 Unincorporated Areas of Forsyth County. Just downstream of Buford Dam ...... +920 +921 Dick Creek ...... At confluence with Chattahoochee River ...... +913 +909 Unincorporated Areas of Forsyth County. James Creek ...... At confluence with Chattahoochee River ...... +918 +916 Unincorporated Areas of Forsyth County.

* National Geodetic Vertical Datum. # Depth in feet above ground. + North American Vertical Datum. ∧ Mean Sea Level, rounded to the nearest 0.1 meter.

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* Elevation in feet (NGVD) + Elevation in feet (NAVD) # Depth in feet above ground Flooding source(s) Location of referenced elevation** ∧ Elevation in meters Communities affected (MSL) Effective Modified

** BFEs to be changed include the listed downstream and upstream BFEs, and include BFEs located on the stream reach between the ref- erenced locations above. Please refer to the revised Flood Insurance Rate Map located at the community map repository (see below) for exact locations of all BFEs to be changed. Send comments to William R. Blanton, Jr., Chief, Engineering Management Branch, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472. ADDRESSES Unincorporated Areas of Forsyth County Maps are available for inspection at 110 East Main Street, Cumming, GA 30040.

Gwinnett County, Georgia, and Incorporated Areas

Brushy Creek ...... At confluence with Chattahoochee River ...... +909 +906 Unincorporated Areas of Gwinnett County. Chattahoochee River ...... Just above Holcomb Bridge Road ...... +885 +884 City of Sugar Hill, City of Berkeley Lake, City of Duluth, City of Suwanee, Unincorporated Areas of Gwinnett County. Approximately 4,000 feet downstream from Buford +919 +920 Dam. Level Creek ...... At confluence with Chattahoochee River ...... +914 +911 Unincorporated Areas of Gwinnett County. Mill Creek (Stream 6) ...... At confluence with Chattahoochee River ...... +898 +895 City of Berkeley Lake, Un- incorporated Areas of Gwinnett County. Richland Creek ...... At confluence with Chattahoochee River ...... +918 +917 Unincorporated Areas of Gwinnett County. Rogers Creek ...... At confluence with Chattahoochee River ...... +902 +899 City of Duluth, Unincor- porated Areas of Gwinnett County. Stream 1 ...... At confluence with Chattahoochee River ...... +887 +886 Unincorporated Areas of Gwinnett County. Stream 10 ...... At confluence with Chattahoochee River ...... +907 +903 Unincorporated Areas of Gwinnett County. Stream 2 ...... At confluence with Chattahoochee River...... +888 +887 Unincorporated Areas of Gwinnett County. Stream 3 ...... At confluence with Chattahoochee River ...... +891 +889 Unincorporated Areas of Gwinnett County. Stream 4 ...... At confluence with Chattahoochee River ...... +893 +891 Unincorporated Areas of Gwinnett County. Stream 5 ...... At confluence with Chattahoochee River ...... +897 +894 Unincorporated Areas of Gwinnett County. Stream 8 ...... At confluence with Chattahoochee River ...... +900 +897 City of Duluth, Unincor- porated Areas of Gwinnett County. Suwanee Creek ...... At confluence with Chattahoochee River ...... +908 +905 Unincorporated Areas of Gwinnett County. Swilling Creek ...... At confluence with Chattahoochee River ...... +899 +896 City of Duluth, Unincor- porated Areas of Gwinnett County.

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ∧ Mean Sea Level, rounded to the nearest 0.1 meter. ** BFEs to be changed include the listed downstream and upstream BFEs, and include BFEs located on the stream reach between the ref- erenced locations above. Please refer to the revised Flood Insurance Rate Map located at the community map repository (see below) for exact locations of all BFEs to be changed. Send comments to William R. Blanton, Jr., Chief, Engineering Management Branch, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472. ADDRESSES City of Berkeley Lake Maps are available for inspection at 4040 South Berkeley Road, Northwest, Berkeley Lake, GA 30096. City of Duluth Maps are available for inspection at 3167 Main Street, 2nd Floor, Duluth, GA. City of Sugar Hill

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* Elevation in feet (NGVD) + Elevation in feet (NAVD) # Depth in feet above ground Flooding source(s) Location of referenced elevation** ∧ Elevation in meters Communities affected (MSL) Effective Modified

Maps are available for inspection at 4988 West Broad Street, Sugar Hill, GA 30518. City of Suwanee Maps are available for inspection at 373 Highway 23, Suwanee, GA 30024. Unincorporated Areas of Gwinnett County Maps are available for inspection at 75 Langley Drive, Lawrenceville, GA 30045.

Lafourche Parish, Louisiana, and Incorporated Areas

Gulf of Mexico ...... From the west at the Terrebonne Parish border along + 2–12 + 2–18 Unincorporated Areas of the shoreline of the Gulf of Mexico to the south. To Lafourche Parish, City of the east border of Jefferson Parish and St. Charles Raceland, City of Parish and to the northern border of St. James Par- Thibodaux, Town of ish and St. John the Baptist Parish. Golden Meadow, Town of Lockport.

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ∧ Mean Sea Level, rounded to the nearest 0.1 meter. ** BFEs to be changed include the listed downstream and upstream BFEs, and include BFEs located on the stream reach between the ref- erenced locations above. Please refer to the revised Flood Insurance Rate Map located at the community map repository (see below) for exact locations of all BFEs to be changed. Send comments to William R. Blanton, Jr., Chief, Engineering Management Branch, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472. ADDRESSES City of Raceland Maps are available for inspection at P.O. Box 5548, Thibodaux, LA 70302. City of Thibodaux Maps are available for inspection at P.O. Box 5418, Thibodaux, LA 70302. Town of Golden Meadow Maps are available for inspection at P.O. Box 307, Golden Meadow, LA 70357. Town of Lockport Maps are available for inspection at 710 Church Street, Lockport, LA 70374. Unincorporated Areas of Lafourche Parish Maps are available for inspection at 402 Green Street, Thibodaux, LA 70302.

Rolette County, North Dakota, and Incorporated Areas

Ox Creek ...... 501 feet upstream of Belcourt Southern Corporate None +1903 Chippewa Indian Reserva- Limit. tion, Turtle Mountain Band. 27 feet downstream of Belcourt Lake ...... None +2015 Ox Creek Breakout ...... 100 feet upstream of 99th Street NE ...... None +1971 Chippewa Indian Reserva- tion, Turtle Mountain Band. 2,154 feet upstream of 99th Street NE ...... None +1972

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ∧ Mean Sea Level, rounded to the nearest 0.1 meter. ** BFEs to be changed include the listed downstream and upstream BFEs, and include BFEs located on the stream reach between the ref- erenced locations above. Please refer to the revised Flood Insurance Rate Map located at the community map repository (see below) for exact locations of all BFEs to be changed. Send comments to William R. Blanton, Jr., Chief, Engineering Management Branch, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472. ADDRESSES Chippewa Indian Reservation, Turtle Mountain Band Maps are available for inspection at Highway 5 West, Belcourt, ND 58316.

Lucas County, Ohio, and Incorporated Areas

Barnum Ditch ...... Just above the confluence with Tifft Ditch ...... None +617 City of Toledo. Approximately 350 feet downstream of Willis Boule- None +626 vard.

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* Elevation in feet (NGVD) + Elevation in feet (NAVD) # Depth in feet above ground Flooding source(s) Location of referenced elevation** ∧ Elevation in meters Communities affected (MSL) Effective Modified

Blue Creek ...... Approximately 1,100 feet upstream of Finzel Road ..... +641 +640 Village of Whitehouse, Un- incorporated Areas of Lucas County. Downstream side of Fulton Lucas Road ...... None +665 Blystone Ditch ...... Upstream side of Dutch Road ...... +645 +644 Village of Waterville, Unin- corporated Areas of Lucas County. Downstream side of Bluebird Train Railroad ...... None +659 Comstock Ditch ...... Upstream side of Brint Road ...... None +675 Unincorporated Areas of Lucas County. Downstream side of Mitchaw Road ...... None +679 Crane Creek ...... Approximately 0.6 mile downstream of Nissen Road .. None +579 Unincorporated Areas of Lucas County. Approximately 2,000 feet upstream of Ofper Lentz None +584 Road. Deline Ditch ...... At the confluence with Heldman Ditch (East) ...... +601 +606 City of Toledo Downstream side of Hill Avenue ...... +627 +629 Deline Ditch Overflow ...... At the confluence with Deline Ditch ...... None +614 City of Toledo. Just below the divergence from Deline Ditch ...... None +625 Dennis Ditch ...... At the confluence with Heldman Ditch (East) ...... +597 +604 City of Toledo. Approximately 875 feet upstream of South Avenue .... +624 +623 Detwiler Ditch ...... Upstream side of Summit Street ...... None +578 City of Toledo. Approximately 0.56 mile upstream of I–280 ...... None +578 Disher Ditch ...... Upstream side of Rupp Road ...... +641 +640 Village of Whitehouse, Un- incorporated Areas of Lucas County. Downstream side of Berkey Southern Highway ...... None +657 Disher Ditch Overflow ...... At the confluence with Blue Creek ...... None +640 Village of Whitehouse. Downstream side of Heller Road ...... None +653 Duck Creek ...... At mouth at Maumee Bay ...... None +578 City of Oregon, City of To- ledo. Downstream side of Consaul Street ...... None 578 Eisenbraum Ditch ...... Approximately 175 feet downstream of Elsie Avenue +619 +618 City of Toledo. Downstream side of West Alexis Highway ...... +650 +651 Good Ditch ...... South of Angola Road near Holland Park Boulevard .. None +633 Village of Holland. South of Angola Road approximately 60 feet west of None +633 Holland Park Boulevard. Haefner Ditch ...... At the confluence with Hill Ditch ...... +597 +604 City of Toledo, Unincor- porated Areas of Lucas County. Downstream side of I–475 ...... +637 +638 Heldman Ditch (East) ...... Downstream side of Edgevale Road ...... None +594 City of Toledo, Unincor- porated Areas of Lucas County, Village of Ot- tawa Hills. Downstream side of West Bancroft Street ...... +666 +665 Heldman Ditch (West) ...... At the confluence with Prairie Ditch ...... +669 +668 Unincorporated Areas of Lucas County. Downstream side of North Crissey Road ...... +669 +668 Hill Ditch ...... At the confluence with Heldman Ditch (East) ...... +597 +604 City of Toledo, Unincor- porated Areas of Lucas County. Just below the confluence with Smith ...... +640 +639 Jamieson Ditch ...... At the confluence with Silver Creek ...... +592 +595 City of Toledo. Downstream side of Lewis Avenue ...... +601 +600 Ketcham Ditch...... Approximately 700 feet downstream of Jackman +607 +609 City of Toledo. Road. Downstream side of Adella Street ...... +618 +619 Lone Oak Ditch ...... Upstream side of Winslow Road ...... None +644 Village of Whitehouse, Un- incorporated Areas of Lucas County. Approximately 70 feet downstream of Berkey South- None +657 ern Highway. Maumee Bay ...... West of the mouth of Driftmeyer Ditch ...... +579 +578 City of Oregon, City of To- ledo. At the northern boundary of Lucas County ...... +579 +578 Maumee River ...... At mouth at Maumee Bay ...... +579 +578 City of Toledo. Upstream side of Norfolk Southern Railroad ...... +579 +578

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* Elevation in feet (NGVD) + Elevation in feet (NAVD) # Depth in feet above ground Flooding source(s) Location of referenced elevation** ∧ Elevation in meters Communities affected (MSL) Effective Modified

Mayer Ditch ...... Downstream side of I–475 ...... None +636 Unincorporated Areas of Lucas County. Approximately 475 feet downstream of Dorr Street ..... None +639 McPeak Ditch ...... Approximately 100 feet above the confluence with +647 +646 City of Sylvania. Tenmile Creek. Approximately 1,300 feet upstream of Winding Way ... +667 +668 Mud Creek ...... At the confluence with Detwiler Creek ...... None +578 City of Toledo. Downstream side of Hoffman Road ...... None +578 North Branch Ketcham Ditch Downstream side of Douglas Road ...... None +620 City of Toledo. Approximately 650 feet upstream of Secor Road ...... None +631 Ottawa River...... Approximately 0.91 mile downstream of Summit +579 +578 City of Oregon, City of To- Street. ledo. Downstream side of CSX Transportation Railroad ...... +579 +578 Otter Creek ...... Downstream side of Corduroy Road ...... None +578 City of Toledo. At mouth at Maumee Bay ...... +579 +578 Upstream side of CSX Transportation Railroad ...... None +589 Approximately 350 feet upstream of CSX Transpor- None +589 tation Railroad. Upstream side of CSX Transportation Railroad ...... None +590 Approximately 475 feet downstream of Dover Place ... None +590 Peterson Ditch ...... Upstream side of Haughton Drive ...... +613 +614 City of Toledo. Approximately 100 feet upstream of Goddard Road ... +614 +615 Potter Ditch ...... At the confluence with Heldman Ditch (East) ...... +634 +635 City of Toledo, Unincor- porated Areas of Lucas County. Downstream side of Derbyshire Road ...... +634 +635 Schmitz Ditch ...... At the confluence with Tenmile Creek ...... None +694 Village of Berkey. Downstream side of Lathrop Road ...... None +707 Schneider Ditch ...... Just above the confluence with Williams Ditch ...... +619 +621 City of Toledo. Downstream side of Hill Avenue ...... +620 +621 Shantee Creek ...... At the confluence with Silver Creek ...... +582 +583 City of Toledo, Unincor- porated Areas of Lucas County. Approximately 225 feet upstream of Tremainsville +614 +612 Road. Approximately 1,100 feet downstream of Summit +579 +578 Street. Approximately 300 feet downstream of Hagman Road +579 +578 Shantee Creek Overflow Approximately 175 feet upstream of Lewis Avenue .... None +599 City of Toledo. Channel 1. Just below the divergence from Shantee Creek ...... None +611 Shantee Creek Overflow At the confluence with Shantee Creek ...... None +599 City of Toledo. Channel 2. Approximately 100 feet downstream of Jackman None +609 Road. Sharp Ditch ...... Upstream side of Brint Road ...... None +679 Unincorporated Areas of Lucas County. Approximately 1.0 mile upstream of Brint Road ...... None +683 Silver Creek ...... Upstream side of CN North America Railroad ...... +579 +578 Unincorporated Areas of Lucas County, City of Toledo. Approximately 100 feet upstream of Woodview Drive None +639 Smith Ditch South ...... At the confluence with Hill Ditch ...... +640 +639 Unincorporated Areas of Lucas County. Approximately 200 feet upstream of Wimbledon Park +660 +661 Boulevard. South Branch Silver Creek ... At the confluence with Silver Creek ...... None +628 City of Toledo. Approximately 1,150 feet upstream of Rambo Lane ... None +633 Tenmile Creek ...... Upstream side of Herr Road ...... +669 +668 Village of Berkey, Unincor- porated Areas of Lucas County. Downstream side of North Fulton Lucas Road ...... None +708 Tifft Ditch...... Approximately 225 feet upstream of Tremainsville +614 +612 City of Toledo, Unincor- Road. porated Areas of Lucas County. Approximately 300 feet upstream of Talmadge Road +633 +634 Vanderpool Ditch ...... Downstream side of McCord Road ...... +642 +644 Unincorporated Areas of Lucas County.

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* Elevation in feet (NGVD) + Elevation in feet (NAVD) # Depth in feet above ground Flooding source(s) Location of referenced elevation** ∧ Elevation in meters Communities affected (MSL) Effective Modified

Approximately 375 feet downstream of King Road ..... +657 +656 Williams Ditch ...... Upstream side of Norfolk Southern Railroad ...... +613 +614 City of Toledo. Approximately 175 feet downstream of Hill Avenue .... +619 +621 Wing Ditch ...... Just above confluence with Silver Creek ...... None +633 City of Toledo. Approximately 75 feet downstream of Merle Street ..... None +637

*National Geodetic Vertical Datum. +North American Vertical Datum. # Depth in feet above ground. ∧Mean Sea Level, rounded to the nearest 0.1 meter. ** BFEs to be changed include the listed downstream and upstream BFEs, and include BFEs located on the stream reach between the ref- erenced locations above. Please refer to the revised Flood Insurance Rate Map located at the community map repository (see below) for exact locations of all BFEs to be changed. Send comments to William R. Blanton, Jr., Chief, Engineering Management Branch, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472. ADDRESSES City of Oregon Maps are available for inspection at 5330 Seaman Road, Oregon, OH 43616. City of Sylvania Maps are available for inspection at 6730 Monroe Street, Suite 101, Sylvania, OH 43560. City of Toledo Maps are available for inspection at One Government Center, Suite 1600, Toledo, OH 43604. Unincorporated Areas of Lucas County Maps are available for inspection at 1115 South McCord Road, Holland, OH 43528. Village of Berkey Maps are available for inspection at 12360 Sylvania-Metamora Road, Berkey, OH 45304. Village of Holland Maps are available for inspection at 1245 Clarion Avenue, Holland, OH 43528. Village of Ottawa Hills Maps are available for inspection at 2125 Richards Road, Toledo, OH 43606. Village of Waterville Maps are available for inspection at 25 North Second Street, Waterville, OH 43566. Village of Whitehouse Maps are available for inspection at 6925 Providence Street, Whitehouse, OH 43571.

Ottawa County, Oklahoma, and Incorporated Areas

Belmont Run ...... Approximately 1,317 feet upstream of 30th Avenue .... None +803 City of Miami, Town of North Miami, Unincor- porated Areas of Ottawa County. Approximately 1,288 feet upstream of Newman Road None +805 Fairgrounds Branch ...... Approximately 700 feet upstream of E Street ...... None +774 Unincorporated Areas of Ottawa County. Approximately 0.58 miles upstream of E Street ...... None +774 Neosho River ...... Just upstream of E Street ...... None +775 Unincorporated Areas of Ottawa County. Approximately 0.93 miles upstream from State High- None +776 way 69. Warren Branch ...... Approximately 434 feet upstream of Main Street ...... None +869 Town of Peoria, Unincor- porated Areas of Ottawa County. Approximately 1,826 feet upstream of Modoe Street .. None +885 Wyandotte Ditch ...... Approximately 1,320 feet downstream of Main Street +756 +757 Town of Wyandotte. Approximately 904 feet upstream of South 650 Road +780 +789

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ∧ Mean Sea Level, rounded to the nearest 0.1 meter. ** BFEs to be changed include the listed downstream and upstream BFEs, and include BFEs located on the stream reach between the ref- erenced locations above. Please refer to the revised Flood Insurance Rate Map located at the community map repository (see below) for exact locations of all BFEs to be changed. Send comments to William R. Blanton, Jr., Chief, Engineering Management Branch, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472.

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* Elevation in feet (NGVD) + Elevation in feet (NAVD) # Depth in feet above ground Flooding source(s) Location of referenced elevation** ∧ Elevation in meters Communities affected (MSL) Effective Modified

ADDRESSES City of Miami Maps are available for inspection at the Civic Center, 129 5th Street, Northwest, Miami, OK 74354. Town of North Miami Maps are available for inspection at the Ottawa County Courthouse, 102 East Central Avenue, Suite 202, Miami, OK 74354. Town of Peoria Maps are available for inspection at the Ottawa County Courthouse, 102 East Central Avenue, Suite 202, Miami, OK 74354. Town of Wyandotte Maps are available for inspection at City Hall, 14 North Main Street, Wyandotte, OK 74370. Unincorporated Areas of Ottawa County Maps are available for inspection at the Ottawa County Courthouse, 102 East Central Avenue, Suite 202, Miami, OK 74354.

Umatilla County, Oregon, and Incorporated Areas

Iskuupla Creek ...... At confluence with Umatilla River ...... None +1690 Umatilla Indian Reserva- tion. Approximately 1.0 mile upstream from Bingham Road None +1779 Iskuupla Creek left bank split Approximately 3,000 feet west along Bingham Road None +1682 Umatilla Indian Reserva- from Iskuupla Creek. tion. At divergence from Iskuupla Creek ...... None +1707 Meacham Creek ...... At confluence with Umatilla River ...... None +1762 Umatilla Indian Reserva- tion. Just downstream of Meacham Creek Road Bridge None +1819 and Railroad Bridge. Umatilla River ...... Just upstream of State Highway 11 Bridge ...... +1106 +1111 City of Pendleton, Umatilla Indian Reservation, Un- incorporated Areas of Umatilla County. Approximately 700 feet downstream of confluence of None +1908 Ryan Creek. Walla-Walla River ...... At SE 17th Avenue ...... None #1 City of Milton-Freewater, Unincorporated Areas of Umatilla County. At NE 15th Avenue ...... None #1 Wildhorse Creek ...... At Range line 32E/33E ...... None +1142 Unincorporated Areas of Umatilla County. At Township line 2N/3N ...... None +1154

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ∧ Mean Sea Level, rounded to the nearest 0.1 meter. ** BFEs to be changed include the listed downstream and upstream BFEs, and include BFEs located on the stream reach between the ref- erenced locations above. Please refer to the revised Flood Insurance Rate Map located at the community map repository (see below) for exact locations of all BFEs to be changed. Send comments to William R. Blanton, Jr., Chief, Engineering Management Branch, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472. ADDRESSES City of Milton-Freewater Maps are available for inspection at 722 South Main Street, Milton-Freewater, OR 97862. City of Pendleton Maps are available for inspection at 500 Southwest Dorion Avenue, Pendleton, OR 97801. Umatilla Indian Reservation Maps are available for inspection at 73239 Confederated Way, Pendleton, OR 97801. Unincorporated Areas of Umatilla County Maps are available for inspection at 216 Southeast 4th Street, Pendleton, OR 97801.

Spartanburg County, South Carolina, and Incorporated Areas

Jimmies Creek (North) ...... Approximately 125 feet downstream of Tucapau Road None +779 City of Wellford. Approximately 2,190 feet upstream of Tucapau Road None +789 Little Buck Creek...... Approximately 750 feet downstream of Richland None +809 City of Chesnee. Street. Approximately 280 feet upstream of Cherokee Street None +841 Little Buck Creek Tributary 1 Confluence with Little Buck Creek ...... None +815 City of Chesnee.

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* Elevation in feet (NGVD) + Elevation in feet (NAVD) # Depth in feet above ground Flooding source(s) Location of referenced elevation** ∧ Elevation in meters Communities affected (MSL) Effective Modified

Approximately 1,100 feet upstream of the confluence None +851 with Little Buck Creek. Pacolet River Tributary 1...... Approximately 1,350 feet downstream of Church None +731 Town of Cowpens. Street. Approximately 290 feet upstream of Church Street ..... None +765

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ∧ Mean Sea Level, rounded to the nearest 0.1 meter. ** BFEs to be changed include the listed downstream and upstream BFEs, and include BFEs located on the stream reach between the ref- erenced locations above. Please refer to the revised Flood Insurance Rate Map located at the community map repository (see below) for exact locations of all BFEs to be changed. Send comments to William R. Blanton, Jr., Chief, Engineering Management Branch, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472. ADDRESSES City of Chesnee Maps are available for inspection at 201 West Cherokee Street, Chesnee, SC 29323. City of Wellford Maps are available for inspection at 127 Syphrit Road, Wellford, SC 29385. Town of Cowpens Maps are available for inspection at 530 North Main Street, Cowpens, SC 29330.

Sanborn County, South Dakota, and Incorporated Areas

James River ...... Approximately 2,133 feet downstream of 243rd Street None +1226 Unincorporated Areas of Sanborn County. Approximately 1,162 feet upstream of 221st Street .... None +1237

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ∧ Mean Sea Level, rounded to the nearest 0.1 meter. ** BFEs to be changed include the listed downstream and upstream BFEs, and include BFEs located on the stream reach between the ref- erenced locations above. Please refer to the revised Flood Insurance Rate Map located at the community map repository (see below) for exact locations of all BFEs to be changed. Send comments to William R. Blanton, Jr., Chief, Engineering Management Branch, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472. ADDRESSES Unincorporated Areas of Sanborn County Maps are available for inspection at 604 West 6th Street, Woonsocket, SD 57385.

Val Verde County, Texas, and Incorporated Areas

Calveras Creek ...... Confluence with San Felipe Creek ...... None +924 Unincorporated Areas of Val Verde County. Approximately 0.6 miles upstream of Gilberto Road ... None +1015 Cantu Branch ...... Just upstream of Dodson Avenue ...... None +1035 Unincorporated Areas of Val Verde County. Approximately 1,222 feet upstream from Grace Drive None +1046 San Felipe Creek ...... Just upstream of Gilchrist Lane ...... None +911 Unincorporated Areas of Val Verde County. Just upstream of River Road ...... None +929

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ∧ Mean Sea Level, rounded to the nearest 0.1 meter. ** BFEs to be changed include the listed downstream and upstream BFEs, and include BFEs located on the stream reach between the ref- erenced locations above. Please refer to the revised Flood Insurance Rate Map located at the community map repository (see below) for exact locations of all BFEs to be changed. Send comments to William R. Blanton, Jr., Chief, Engineering Management Branch, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472.

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* Elevation in feet (NGVD) + Elevation in feet (NAVD) # Depth in feet above ground Flooding source(s) Location of referenced elevation** ∧ Elevation in meters Communities affected (MSL) Effective Modified

ADDRESSES Unincorporated Areas of Val Verde County Maps are available for inspection at the Del Rio City Hall, 109 West Broadway Street, Del Rio, TX 78840.

(Catalog of Federal Domestic Assistance No. ADDRESSES: The corresponding made final, and for the contents in these 97.022, ‘‘Flood Insurance.’’) preliminary Flood Insurance Rate Map buildings. Dated: May 14, 2009. (FIRM) for the proposed BFEs for each Comments on any aspect of the Flood Deborah S. Ingram, community are available for inspection Insurance Study and FIRM, other than Acting Deputy Assistant Administrator for at the community’s map repository. The the proposed BFEs, will be considered. Mitigation, Mitigation Directorate, respective addresses are listed in the A letter acknowledging receipt of any Department of Homeland Security, Federal table below. comments will not be sent. Emergency Management Agency. You may submit comments, identified National Environmental Policy Act. [FR Doc. E9–12101 Filed 5–22–09; 8:45 am] by Docket No. FEMA–B–1047, to This proposed rule is categorically BILLING CODE 9110–12–P William R. Blanton, Jr., Chief, excluded from the requirements of 44 Engineering Management Branch, CFR part 10, Environmental Mitigation Directorate, Federal Consideration. An environmental DEPARTMENT OF HOMELAND Emergency Management Agency, 500 C impact assessment has not been SECURITY Street, SW., Washington, DC 20472, prepared. Federal Emergency Management (202) 646–3151, or (e-mail) Regulatory Flexibility Act. As flood Agency [email protected]. elevation determinations are not within the scope of the Regulatory Flexibility FOR FURTHER INFORMATION CONTACT: 44 CFR Part 67 Act, 5 U.S.C. 601–612, a regulatory William R. Blanton, Jr., Chief, flexibility analysis is not required. [Docket ID FEMA–2008–0020; Internal Engineering Management Branch, Executive Order 12866, Regulatory Agency Docket No. FEMA–B–1047] Mitigation Directorate, Federal Planning and Review. This proposed Emergency Management Agency, 500 C rule is not a significant regulatory action Proposed Flood Elevation Street, SW., Washington, DC 20472, Determinations under the criteria of section 3(f) of (202) 646–3151, or (e-mail) Executive Order 12866, as amended. AGENCY: Federal Emergency [email protected]. Executive Order 13132, Federalism. Management Agency, DHS. SUPPLEMENTARY INFORMATION: The This proposed rule involves no policies ACTION: Proposed rule. Federal Emergency Management Agency that have federalism implications under Executive Order 13132. SUMMARY: Comments are requested on (FEMA) proposes to make determinations of BFEs and modified Executive Order 12988, Civil Justice the proposed Base (1% annual-chance) Reform. This proposed rule meets the Flood Elevations (BFEs) and proposed BFEs for each community listed below, in accordance with section 110 of the applicable standards of Executive Order BFE modifications for the communities 12988. listed in the table below. The purpose Flood Disaster Protection Act of 1973, of this notice is to seek general 42 U.S.C. 4104, and 44 CFR 67.4(a). List of Subjects in 44 CFR Part 67 information and comment regarding the These proposed BFEs and modified Administrative practice and proposed regulatory flood elevations for BFEs, together with the floodplain procedure, Flood insurance, Reporting the reach described by the downstream management criteria required by 44 CFR and recordkeeping requirements. and upstream locations in the table 60.3, are the minimum that are required. below. The BFEs and modified BFEs are They should not be construed to mean Accordingly, 44 CFR part 67 is a part of the floodplain management that the community must change any proposed to be amended as follows: measures that the community is existing ordinances that are more PART 67—[AMENDED] required either to adopt or show stringent in their floodplain evidence of having in effect in order to management requirements. The 1. The authority citation for part 67 qualify or remain qualified for community may at any time enact continues to read as follows: participation in the National Flood stricter requirements of its own, or Insurance Program (NFIP). In addition, Authority: 42 U.S.C. 4001 et seq.; pursuant to policies established by other Reorganization Plan No. 3 of 1978, 3 CFR, these elevations, once finalized, will be Federal, State, or regional entities. 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, used by insurance agents, and others to These proposed elevations are used to 3 CFR, 1979 Comp., p. 376. calculate appropriate flood insurance meet the floodplain management premium rates for new buildings and requirements of the NFIP and are also § 67.4 [Amended] the contents in those buildings. used to calculate the appropriate flood 2. The tables published under the DATES: Comments are to be submitted insurance premium rates for new authority of § 67.4 are proposed to be on or before August 24, 2009. buildings built after these elevations are amended as follows:

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* Elevation in feet (NGVD) + Elevation in feet (NAVD) # Depth in feet above ground Flooding source(s) Location of referenced elevation ** ∧ Elevation in meters Communities affected (MSL) Effective Modified

Harvey County, Kansas, and Incorporated Areas

Sand Creek ...... Approximately 865 feet upstream of Northeast 24th +1436 +1434 City of North Newton. Street. Approximately 1,590 feet upstream of Northeast 24th +1437 +1435 Street.

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ∧ Mean Sea Level, rounded to the nearest 0.1 meter. ** BFEs to be changed include the listed downstream and upstream BFEs, and include BFEs located on the stream reach between the ref- erenced locations above. Please refer to the revised Flood Insurance Rate Map located at the community map repository (see below) for exact locations of all BFEs to be changed. Send comments to William R. Blanton, Jr., Chief, Engineering Management Branch, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472. ADDRESSES City of North Newton Maps are available for inspection at 2601 North Main Street, North Newton, KS 67117.

Dukes County, Massachusetts, and Incorporated Areas

Atlantic Ocean ...... Along the shoreline of the Atlantic Ocean between +7 +11 Town of Chilmark. Gilberts Cove and Quenames Cove. Atlantic Ocean ...... Along the shoreline of the Atlantic Ocean between None +9 Town of Edgartown. Paqua Pond and Jobs Neck Pond. Atlantic Ocean ...... Along the shoreline of the Atlantic Ocean between None +9 Town of West Tisbury. Long Cove and Homer Road. Vineyard Sound ...... Along the shoreline of Vineyard Sound approximately +8 +9 Town of Aquinnah. 300 feet East of the intersection of Lobsterville Road and West Basin Road. Vineyard Sound ...... Along the shoreline of Vineyard Sound between Farm None +12 Town of Oak Bluffs. Pond and Hamlin Pond. Vineyard Sound ...... Along the shoreline of Vineyard Sound between None +12 Town of Tisbury. Algonquin Avenue to Yacht Club Lane.

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ∧ Mean Sea Level, rounded to the nearest 0.1 meter. ** BFEs to be changed include the listed downstream and upstream BFEs, and include BFEs located on the stream reach between the ref- erenced locations above. Please refer to the revised Flood Insurance Rate Map located at the community map repository (see below) for exact locations of all BFEs to be changed. Send comments to William R. Blanton, Jr., Chief, Engineering Management Branch, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472. ADDRESSES Town of Aquinnah Maps are available for inspection at the Town Hall, 65 State Road, Aquinnah, MA 02535. Town of Chilmark Maps are available for inspection at the Town Hall, 401 Middle Road, Chilmark, MA 02535. Town of Edgartown Maps are available for inspection at the Town Hall, 70 Main Street, Edgartown, MA 02539. Town of Oak Bluffs Maps are available for inspection at the Town Hall, 56 School Street, Oak Bluffs, MA 02557. Town of Tisbury Maps are available for inspection at the Town Hall, 51 Spring Street, Vineyard Haven, MA 02568. Town of West Tisbury Maps are available for inspection at the Town Hall, 1059 State Road, West Tisbury, MA 02575.

Kennebec County, Maine, and Incorporated Areas

China Lake ...... Along the entire shoreline ...... None +199 Town of Albion. China Lake ...... Along the entire shoreline ...... None +199 Town of Vassalboro. Kezar Brook ...... At the mouth of Cobboseecontee Lake ...... None +169 Town of Winthrop.

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* Elevation in feet (NGVD) + Elevation in feet (NAVD) # Depth in feet above ground Flooding source(s) Location of referenced elevation ** ∧ Elevation in meters Communities affected (MSL) Effective Modified

Just downstream of South Road ...... None +169

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ∧ Mean Sea Level, rounded to the nearest 0.1 meter. ** BFEs to be changed include the listed downstream and upstream BFEs, and include BFEs located on the stream reach between the ref- erenced locations above. Please refer to the revised Flood Insurance Rate Map located at the community map repository (see below) for exact locations of all BFEs to be changed. Send comments to William R. Blanton, Jr., Chief, Engineering Management Branch, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472. ADDRESSES Town of Albion Maps are available for inspection at the Town Office, 22 Main Street, Albion, ME 04910. Town of Vassalboro Maps are available for inspection at the Town Hall, 682 Main Street, North Vassalboro, ME 04989. Town of Winthrop Maps are available for inspection at the Town Hall, 17 Highland Avenue, Winthrop, ME 04364.

Pike County, Mississippi, and Incorporated Areas

Tangipahoa River...... Approximately 0.68 miles downstream of Highway None +233 Town of Osyka. 575. Approximately 1,100 feet downstream of Highway 575 None +236

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ∧ Mean Sea Level, rounded to the nearest 0.1 meter. ** BFEs to be changed include the listed downstream and upstream BFEs, and include BFEs located on the stream reach between the ref- erenced locations above. Please refer to the revised Flood Insurance Rate Map located at the community map repository (see below) for exact locations of all BFEs to be changed. Send comments to William R. Blanton, Jr., Chief, Engineering Management Branch, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472. ADDRESSES Town of Osyka Maps are available for inspection at 215 West Liberty Street, Osyka, MS 39648.

Muskingum County, Ohio, and Incorporated Areas

Moxahala Creek ...... Approximately 1,300 feet downstream of Ransbottom None +734 Unincorporated Areas of Road. Muskingum County. Approximately 500 feet downstream of East 1st Street None +735 Muskingum River ...... Approximately 0.4 mile downstream of E Muskingum +714 +718 Village of Dresden. Avenue (State Route 208). At confluence with Wakatomika Creek ...... +716 +720 Muskingum River ...... Approximately 0.6 mile downstream of confluence None +683 Village of Philo. with Salt Creek. Approximately 0.5 mile upstream of confluence with None +685 Salt Creek. Wakatomika Creek ...... Approximately 0.5 mile downstream of Main Street .... +719 +720 Unincorporated Areas of Muskingum County. Approximately 1,400 feet downstream of Frazeysburg +719 +725 Road. Wakatomika Creek ...... Approximately 0.6 mile downstream of Shannon Road None +745 Unincorporated Areas of Muskingum County, Vil- lage of Frazeysburg. Just downstream of Canal Road ...... None +751 Wakatomika Creek ...... Approximately 0.5 mile downstream of Main Street .... None +720 Village of Dresden. Approximately 0.4 mile downstream of Frazeysburg None +725 Road.

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ∧ Mean Sea Level, rounded to the nearest 0.1 meter.

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* Elevation in feet (NGVD) + Elevation in feet (NAVD) # Depth in feet above ground Flooding source(s) Location of referenced elevation ** ∧ Elevation in meters Communities affected (MSL) Effective Modified

** BFEs to be changed include the listed downstream and upstream BFEs, and include BFEs located on the stream reach between the ref- erenced locations above. Please refer to the revised Flood Insurance Rate Map located at the community map repository (see below) for exact locations of all BFEs to be changed. Send comments to William R. Blanton, Jr., Chief, Engineering Management Branch, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472. ADDRESSES Unincorporated Areas of Muskingum County Maps are available for inspection at 401 Main Street, Zanesville, OH 43701. Village of Dresden Maps are available for inspection at 904 Chestnut Street, Dresden, OH 43821. Village of Frazeysburg Maps are available for inspection at 7 West Second Street, Frazeysburg, OH 43822. Village of Philo Maps are available for inspection at 300 Main Street, Philo, OH 43771.

Macon County, Tennessee, and Incorporated Areas

Salt Lick Creek ...... Approximately 1,965 feet upstream of State Highway None +778 Unincorporated Areas of 151. Macon County. Approximately 1,624 feet upstream of State Highway None +778 151.

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ∧ Mean Sea Level, rounded to the nearest 0.1 meter. ** BFEs to be changed include the listed downstream and upstream BFEs, and include BFEs located on the stream reach between the ref- erenced locations above. Please refer to the revised Flood Insurance Rate Map located at the community map repository (see below) for exact locations of all BFEs to be changed. Send comments to William R. Blanton, Jr., Chief, Engineering Management Branch, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472. ADDRESSES Unincorporated Areas of Macon County Maps are available for inspection at 201 County Courthouse, Lafayette, TN 37083.

Ector County, Texas, and Incorporated Areas

Flooding Effects of Eastside Just downstream of the Pacific Union Railroad ...... None +2887 Unincorporated Areas of Channel and its Split Flow. Ector County, City of Odessa. Just downstream of Pueblo Avenue ...... None +2906 Approximately 200 feet upstream of the intersection None +2912 of Custer Avenue and Eastside Channel. Flooding Effects of Just upstream of Grandview Road ...... None +2842 Unincorporated Areas of Monahans Draw. Ector County. Just upstream of South Crane Avenue ...... None +2878 Just upstream of West County Road ...... None +2884 Just upstream of Westcliff Drive ...... None +3009 Just upstream of State Highway 866 ...... None +3043 Flooding effects of Far East At the confluence of East Side Channel ...... None +2857 Unincorporated Areas of Channel and its subsidiary Ector County, City of channels. Odessa. Approximately 450 feet upstream of the intersection None +2899 of Caliche Road. Just upstream of Maple Avenue ...... None +2907 Flooding effects of West Side At the confluence of Monahans Draw ...... None +2896 City of Odessa. Drainage Channel. Just upstream of West 16th Street ...... None +2909

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ∧ Mean Sea Level, rounded to the nearest 0.1 meter. ** BFEs to be changed include the listed downstream and upstream BFEs, and include BFEs located on the stream reach between the ref- erenced locations above. Please refer to the revised Flood Insurance Rate Map located at the community map repository (see below) for exact locations of all BFEs to be changed.

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* Elevation in feet (NGVD) + Elevation in feet (NAVD) # Depth in feet above ground Flooding source(s) Location of referenced elevation ** ∧ Elevation in meters Communities affected (MSL) Effective Modified

Send comments to William R. Blanton, Jr., Chief, Engineering Management Branch, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472. ADDRESSES City of Odessa Maps are available for inspection at 411 West 8th Street, Odessa, TX 79761. Unincorporated Areas of Ector County Maps are available for inspection at 521 North Texas Street, Odessa, TX 79761.

(Catalog of Federal Domestic Assistance No. species occurring in the Arctic Copies of the Arctic FMP, 97.022, ‘‘Flood Insurance.’’) Management Area before the potential Amendment 29 to the Crab FMP, maps Dated: May 14, 2009. onset of unregulated commercial fishing of the action area and essential fish Deborah S. Ingram, in the Arctic Management Area. This habitat, and the Environmental Acting Deputy Assistant Administrator for action is intended to promote the goals Assessment/Regulatory Impact Review/ Mitigation, Mitigation Directorate, and objectives of the Magnuson–Stevens Initial Regulatory Flexibility Analysis Department of Homeland Security, Federal Fishery Conservation and Management (EA/RIR/IRFA) for this action may be Emergency Management Agency. Act, the FMPs, and other applicable obtained from the Alaska Region [FR Doc. E9–12105 Filed 5–22–09; 8:45 am] laws. Comments from the public are address above or from the Alaska Region BILLING CODE 9110–12–P encouraged. website at http:// www.alaskafisheries.noaa.gov. DATES: Written comments on the Arctic FMP and Crab FMP amendment must be FOR FURTHER INFORMATION CONTACT: DEPARTMENT OF COMMERCE received by 1700 hours, A.D.T. on July Melanie Brown, 907–586–7228. 27, 2009. National Oceanic and Atmospheric SUPPLEMENTARY INFORMATION: The Administration ADDRESSES: Send comments to Sue Magnuson–Stevens Fishery Salveson, Assistant Regional Conservation and Management Act 50 CFR Part 679 Administrator, Sustainable Fisheries (Magnuson–Stevens Act) requires that Division, Alaska Region, NMFS, Attn: RIN 0648–AX71 the North Pacific Fishery Management Ellen Sebastian. You may submit Council (Council) submit any FMP or Fisheries of the United States comments, identified for this action by FMP amendment it prepares to NMFS Exclusive Economic Zone Off Alaska; 0648–AX71 (NOA), by any one of the for review and approval, disapproval, or Fisheries of the Arctic Management following methods: partial approval by the Secretary of Area; Bering Sea Subarea • Electronic Submissions: Submit all Commerce (Secretary). The Magnuson– electronic public comments via the Stevens Act also requires that NMFS, AGENCY: National Marine Fisheries Federal eRulemaking Portal http:// upon receiving an FMP or FMP Service (NMFS), National Oceanic and www.regulations.gov. amendment, immediately publish a Atmospheric Administration (NOAA), • Mail: P.O. Box 21668, Juneau, AK notice in the Federal Register that the Commerce. 99802. FMP or FMP amendment is available for ACTION: Availability of a fishery • Hand delivery to the Federal public review and comment. management plan and fishery Building: 709 West 9th Street, Room If approved by the Secretary, the management plan amendment; request 420A, Juneau, AK. for comments. Arctic FMP and Amendment 29 to the • Fax: 907–586–7557. Crab FMP would establish sustainable SUMMARY: The North Pacific Fishery All comments received are a part of management of commercial fishing in Management Council has submitted the the public record and will generally be the Arctic Management Area and Fishery Management Plan for Fish posted to http://www.regulations.gov remove management authority within Resources of the Arctic Management without change. All Personal Identifying the Arctic Management Area from the Area (Arctic FMP) and Amendment 29 Information (e.g., name, address) Crab FMP. The Arctic FMP would to the FMP for Bering Sea/Aleutian voluntarily submitted by the commenter establish a management framework to Islands King and Tanner Crabs (Crab may be publicly accessible. Do not sustainably manage future commercial FMP). The Arctic FMP and Amendment submit Confidential Business fishing in the Arctic Management Area 29 to the Crab FMP, if approved, would Information or otherwise sensitive or and would initially prohibit commercial establish sustainable management of protected information. fishing until new information regarding commercial fishing in the Arctic NMFS will accept anonymous Arctic fish resources allows for Management Area and limit the comments (enter N/A in the required authorization of a sustainable management area of crab species under fields, if you wish to remain commercial fishery in the Arctic the Crab FMP to waters of the U.S. anonymous). Attachments to electronic Management Area. Amendment 29 to Exclusive Economic Zone (EEZ) south comments will be accepted in Microsoft the Crab FMP would ensure consistent of Bering Strait. This action is necessary Word, Excel, WordPerfect, or Adobe management of all crab species in the to establish a management framework portable document file (pdf) formats Arctic Management Area under one for commercial fishing of nearly all fish only. FMP.

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In February 2009, the Council authority for management in the EEZ contained in sections 303(a), 303(b), and recommended the adoption of the Arctic pertains only to vessels registered under 313 of the Magnuson–Stevens Act. The FMP to implement a management the law of the State of Alaska. Thus, conservation and management framework that will protect the fish absent an FMP it is possible that provisions in the Arctic FMP were resources of the Arctic Management unregistered vessels could commercially developed to be consistent with the Area against the potential onset of fish in the Arctic Management Area National Standard guidelines. The unregulated commercial fishing by without any regulatory oversight or following is a summary of the main initially prohibiting commercial fishing management. In light of the potential provisions of the proposed Arctic FMP. adverse effects on the Arctic marine until sufficient information is available With the exception of Pacific halibut to enable sustainable management of environment from unregulated commercial fishing, the Council chose and Pacific salmon, the Arctic FMP such fishing consistent with the would apply to commercial harvests of Magnuson–Stevens Act. Global climate to prevent this from occurring in the future. The proposed Arctic FMP would all fish resources in the waters of the change is reducing the extent of sea ice Arctic Management Area (See Figure 1). in the Arctic Ocean, providing greater eliminate the potential for unregulated commercial fishing in the Arctic The geographic extent of the Arctic access to Arctic marine resources and Management Area would be all marine increased human activity in this Management Area. The proposed Arctic FMP represents a precautionary, waters in the U.S. EEZ of the Chukchi sensitive marine environment of the and Beaufort Seas, from 3 nautical miles U.S. EEZ. ecosystem–based approach to fisheries management in the Arctic Management off the coast of Alaska or its baseline to Under the Magnuson–Stevens Act Area. 200 nautical miles offshore, north of (section 306(a)(3)), the State of Alaska Bering Strait (from Cape Prince of Wales may regulate commercial fishing in the Features of the Arctic FMP to Cape Dezhneva) and westward to the adjacent EEZ waters if no FMP is in The proposed Arctic FMP contains all 1990 U.S./Russia maritime boundary place. No FMP is in place for the Arctic required provisions and appropriate line and eastward to the U.S./Canada Management Area. However, the state discretionary provisions for an FMP maritime boundary.

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This action would not affect non– International Pacific Halibut occurring in the Arctic Management commercial fishing in the Arctic Commission, which does not permit Area are classified as ecosystem Management Area, nor commercial harvest of Pacific halibut in the Arctic component species. harvest of certain species that are Management Area. The proposed Arctic FMP provides managed pursuant to other legal The proposed Arctic FMP establishes the maximum sustainable yield (MSY) authorities. This action would have no two categories of species, target species and optimum yield (OY) for commercial effect on subsistence harvest of marine and ecosystem component species. fishing for each of the target species. resources in the Arctic Management Target species are those that are most MSY is specified for each target species Area. It would also have no effect on the likely to be targeted in a commercial using the MSY control rule described in commercial harvests of Pacific salmon fishery based on potential markets and the proposed Arctic FMP. The OY for or Pacific halibut. The commercial available biomass in the Arctic each target species is determined by harvest of Pacific salmon in the Arctic Management Area. Arctic cod reductions from MSY based on Management Area is managed under the (Boreogadus saida), saffron cod uncertainty, economic considerations, FMP for Salmon Fisheries in the EEZ off (Eleginus gracilis), and snow crab and ecosystem considerations. The the Coast of Alaska, which prohibits (Chionoecetes opilio) are target species MSYs for Arctic cod, saffron cod, and commercial salmon fishing in the Arctic in the proposed Arctic FMP. The snow crab would be reduced by 100 Management Area. Pacific halibut remainder of fish, as defined by Section percent based on economic costs of commercial fishing is managed by the 3 of the Magnuson–Stevens Act, fishing. Uncertainty would reduce the

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MSY for each target species by an practicable; permits inclusion in an commercial fishing for other species, amount ranging from 36 to 61 percent. FMP of management measures to removal of those target species could MSYs for Arctic cod and saffron cod conserve non–target species and surpass OY. Similarly, NMFS shares the also would be reduced based on habitats, considering the variety of Council’s concern that unregulated ecosystem considerations. Arctic cod is ecological factors affecting fishery commercial fishing for ecosystem a keystone species in the Arctic marine populations; and requires consideration component species may affect the Arctic environment, with many higher trophic of ecological factors and protection of marine ecosystem in ways that are level predators (i.e., certain marine the marine ecosystem in setting OY for detrimental to the potential target mammals and seabirds) heavily stocks in the fishery. The National fishery as well as non–target species and dependent on Arctic cod as a principal Standard 1 guidelines (50 CFR their habitats. For example, large–scale prey species. The harvest of saffron cod 600.310(d)(5)(i)) further encourage an removal of biomass of important prey likely would result in very high levels ecosystem–based approach to species for one or more target species, of Arctic cod bycatch (two tons of Arctic management of fisheries, providing the or removal of species that are otherwise cod for each ton of saffron cod); Council and NMFS with broad ecologically connected to one or more therefore, the harvest of saffron cod also discretion to determine whether stocks target species, could adversely affect the likely would result in impacts on Arctic should be classified and included in an target fishery populations. At present, cod and those species that depend on FMP as ecosystem component species the scientific understanding of the Arctic cod as prey. Because of the for a series of reasons, including interdependence and trophic importance of Arctic cod to the Arctic specifying OY and developing relationships between particular species food web, the lack of knowledge of the conservation and management measures in the Arctic marine ecosystem is Arctic cod biomass needed to support for the associated fishery to address rudimentary, relative to other marine both commercial fishing and Arctic other ecosystem issues and to protect ecosystems, as is the knowledge of predators, and the potential high levels their associated role in the ecosystem particular habitats in the region that of bycatch of Arctic cod in a saffron cod with which the fishery interacts. Due to may be important to the continued fishery, the MSYs for Arctic and saffron the lack of commercial fishing in the health of the ecosystem and its various cods are reduced 100 percent based on Arctic, these species are non–target species. In particular, NMFS is ecosystem concerns. species and are not generally retained concerned about the potential adverse Based on these reductions of the for sale or for personal use. Moreover, effects of unregulated commercial MSYs for the target species, the OY for these species are not likely to be fishing for non–target species on Arctic commercial fishing in the Arctic overfished or be subject to overfishing cod, which is found throughout the Management Area for each target in the absence of commercial fishing or Arctic Management Area and is a species is zero. The proposed Arctic conservation and management keystone species that provides a crucial FMP specifies the OY for each target measures. trophic link between the sea ice food species as the lowest amount of catch The Council’s decision to create an web and marine mammals and birds. sufficient to allow for bycatch of Arctic ecosystem component category that These limitations on NMFS’ cod, saffron cod, and snow crab in includes all fish species in the Arctic understanding of ecological processes in subsistence fisheries for other species. Management Area, except the potential the Arctic are compounded by the The Arctic FMP would thus prohibit target species, and to prohibit ongoing climatic changes in the region commercial fishing on target species. commercial fishing for such species and physical changes in the marine With an OY of zero for each target other than salmon and halibut, is based environment. Global climate change is species, no quantity of target species is on ecosystem considerations and is anticipated to continue altering the available for commercial harvest. intended to conserve target and non– Arctic environment in fundamental The commercial harvest of ecosystem target species and their habitats. The ways, and before long may lead to a component species also would be stated management objectives of the seasonally ice–free Arctic Ocean. As a prohibited to prevent the adverse effects Arctic FMP provide a benchmark for result, there is great uncertainty on the Arctic marine ecosystem, NMFS’ evaluation of the Council’s regarding the ways in which current including the target species, that may proposed management measures. These ecological relationships may change, occur from unregulated commercial objectives include a ‘‘Biological irrespective of fishing pressure. fishing on these species. Consistent with Conservation Objective’’ that seeks to Consistent with the Council’s the Council’s stated management policy ensure the long–term viability of fish ecosystem–based management policy, and objectives, the proposed Arctic FMP populations by, among other things, NMFS believes it is appropriate to adopt includes non–target species in the preventing unregulated fishing and management measures that will ecosystem component category to ‘‘incorporating ecosystem–based maximize the resilience of the target ensure that the Arctic marine ecosystem considerations into fishery management species and afford the greatest is adequately protected and out of decisions, as appropriate . . . .’’ NMFS protection to the integrity of the Arctic concern that unregulated commercial believes that the prohibition on ecosystem in the face of a changing fishing for these species could commercial fishing for ecosystem climate. The prohibition on commercial detrimentally affect the target fishery. component species reflects such fishing for ecosystem component The inclusion of all non–target species appropriate ecosystem–based species represents such a management in the Arctic Management Area in the considerations and does not constitute measure. ecosystem component category is required conservation and management Although there is uncertainty as to consistent with the Magnuson–Stevens for purposes of including such species whether commercial fishing for Act which: recognizes the increased in the fishery. ecosystem component species would importance of habitat conservation; calls The OY for each of the three potential diminish target fishery populations to for development of conservation and target fisheries is de minimis, and an unacceptable degree, either due to management measures to avoid sufficient only to support subsistence bycatch of target species or impacts on irreversible or long–term adverse effects fishing. NMFS shares the Council’s the ecosystem, NMFS has determined to the marine environment and to concern that if the target species are that the Council appropriately adopted minimize bycatch to the extent caught as bycatch during unregulated a precautionary approach that proposes

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prohibiting commercial fishing for any commercial fishery is authorized in the the Arctic Management Area. The Arctic species of Arctic fish in the Arctic future, the FMP would be amended to FMP’s conservation and management Management Area. Given the limited incorporate specific accountability measures were designed to address the knowledge of ecological relationships measures and mechanisms to prevent unique Arctic marine environment and and considerable uncertainty regarding overfishing. the paucity of information available for the future, this will ensure that fishing The proposed Arctic FMP includes sustainable fisheries management. does not interfere with important the process and criteria for issuing Because the information available for ecological relationships in the Arctic exempted fishing permits (EFP). EFPs Arctic crab and the marine environment provide exemptions to fishing marine environment and thereby avoids of the Arctic Management Area differs regulations under 50 CFR part 679 to the risk of harm to the potential target from the Bering Sea, the Council species, the broader ecosystem, and the allow commercial fishing in a manner recommended management of crab in habitat of fish species that may not otherwise authorized. These permits otherwise result from unregulated are granted for the purpose of allowing the Arctic Management Area under the commercial fishing for ecosystem studies that provide information useful Arctic FMP. component species. Prohibiting to the management of fisheries and are Public Comments commercial fishing on ecosystem effective for a limited time. More component species is therefore an information regarding EFPs is available NMFS is soliciting public comments ecosystem–based, precautionary from the NMFS Alaska Region website on the proposed Arctic FMP and Crab approach to fish resources management at http://www.alaskafisheries.noaa.gov/ FMP amendment through July 27, 2009. in the Arctic Management Area. NMFS ram/efp.htm. A proposed rule that would implement will from time-to-time review the status Essential fish habitat (EFH) is the Arctic FMP and Crab FMP of ecosystem component species based described for each target species in the amendment will be published in the on the best available scientific proposed Arctic FMP. Once EFH is Federal Register for public comment at information to determine whether or not established, NMFS must be consulted a later date, following NMFS’ evaluation for any federal action that may such species should be classified for pursuant to the Magnuson–Stevens Act. adversely impact EFH (Magnuson– active conservation and management as Public comments on the proposed rule Stevens Act section 305(b)(2)). The species or stocks in the fishery. must be received by the end of the The proposed Arctic FMP includes a proposed EFH description for Arctic cod process and criteria for evaluating a includes the entire Arctic Management comment period on the Arctic FMP and future commercial fishery. The Area. Proposed EFH locations for snow Crab FMP amendment in order to be evaluation process includes the crab and saffron cod are primarily in the considered in the approval/disapproval Council’s review of an analysis of the Chukchi Sea. Descriptions of potential decision on the Arctic FMP and Crab biological information on the potential non–fishing adverse impacts on EFH FMP amendment. All comments target species and potential impacts of and mitigation are appended to the received on the Arctic FMP and Crab commercial fishing on the Arctic marine proposed Arctic FMP. FMP amendment by the end of the environment and on communities. An To assist in the ecosystem approach to comment period, whether specifically FMP amendment would be required to fisheries management, the proposed directed to the FMP or amendment or to authorize a commercial fishery in the Arctic FMP includes habitat the proposed rule, will be considered in Arctic Management Area and to descriptions for several ecosystem the approval/disapproval decision. implement the specific conservation component species. The species Comments received after that date will and management measures for the selected for habitat descriptions not be considered in the approval/ fishery. represent forage species and potential disapproval decision on the Arctic FMP If a commercial fishery is authorized future target species based on Bering or Crab FMP amendment. To be in the Arctic Management Area, the Sea commercial fishing. considered, comments must be The proposed Arctic FMP also proposed Arctic FMP provides the received— not just postmarked or general conservation and management includes the latest information on the otherwise transmitted—by 1700 hours, measures to ensure sustainable fishing Arctic ecosystem and Chukchi and A.D.T. on the last day of the comment and to prevent overfishing of any target Beaufort Seas survey data. This species. Overfishing levels (OFL) and information provides the basis for the period (See DATES and ADDRESSES). acceptable biological catch levels (ABC) MSY and OY specifications and Authority: 16 U.S.C. 1801 et seq. would be established, according to tier informed the Council’s decision to Dated: May 20, 2009. systems, based on the quantity of recommend adoption of the Arctic FMP. information available. The process for Margo Schulze–Haugen, Amendment 29 to the Crab FMP specifying OFLs, ABCs, and total Acting Director, Office of Sustainable allowable catch amounts (TACs) Amendment 29 to the Crab FMP Fisheries, National Marine Fisheries Service. includes the development of a Stock would move the northern boundary of [FR Doc. E9–12151 Filed 5–22–09; 8:45 am] Assessment and Fishery Evaluation the Crab FMP management area to BILLING CODE 3510–22–S report for the Council’s consideration in Bering Strait. The Crab FMP northern recommending OFLs, ABCs, and TACs boundary is currently located at Point to the Secretary. Hope, north of Bering Strait and within The National Standard 1 guidelines the Arctic Management Area (See Figure (74 FR 3178, January 16, 2009) require 1). This change in the Crab FMP accountability measures and northern boundary would allow the mechanisms to prevent overfishing. management of all crab species in the This requirement would be satisfied by Arctic Management Area to be under the the catch and retention restrictions Arctic FMP, and would ensure implemented with the prohibition of consistent application of the commercial fishing initially imposed by conservation and management measures the proposed Arctic FMP. If a in the Arctic FMP to crab throughout

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DEPARTMENT OF COMMERCE ADDRESSES: You may submit comments, Act). Regulations implementing the identified by 0648–AW56, by any one of FMPs appear at 50 CFR part 679 and National Oceanic and Atmospheric the following methods: part 680. General regulations that Administration • Electronic Submissions: Submit all pertain to U.S. fisheries appear at electronic public comments via the subpart H of 50 CFR part 600. 50 CFR Parts 679 and 680 Federal eRulemaking Portal http:// Background [Docket No. 080312430–8503–01] www.regulations.gov. • Fax: 907–586–7557 The Council has adopted and NMFS RIN 0648–AW56 • Mail: P.O. Box 21668, Juneau, AK has implemented five management 99802. programs that allocate quota share and Fisheries of the Exclusive Economic • Hand delivery to the Federal associated harvesting or processing Zone Off Alaska; Western Alaska Building: 709 West 9th Street, Room privileges to qualified entities and allow Community Development Quota 420A, Juneau, AK. for the transfer of these privileges Program, Rockfish Program, All comments received are a part of among qualified entities upon approval Amendment 80 Program; Bering Sea the public record and will generally be by NMFS. The provision for electronic and Aleutian Islands Area Crab posted to http://www.regulations.gov online quota transfers is proposed for Rationalization Program without change. All Personal Identifying four of these programs—the Western AGENCY: National Marine Fisheries Information (for example, name, Alaska Community Development Quota Service (NMFS), National Oceanic and address, etc.) voluntarily submitted by Program (CDQ Program), the Central Atmospheric Administration (NOAA), the commenter may be publicly GOA Rockfish Pilot Program (Rockfish Commerce. accessible. Do not submit Confidential Program), Amendment 80 to the Fishery Business Information or otherwise ACTION: Proposed rule; request for Management Plan for Groundfish of the comments. sensitive or protected information. Bering Sea and Aleutian Islands NMFS will accept anonymous Management Area (Amendment 80 SUMMARY: NMFS proposes regulations to comments (enter N/A in the required Program), and in the Bering Sea and provide harvesting cooperatives, crab fields, if you wish to remain Aleutian Islands Area Crab processing quota share holders, and anonymous). You may submit Rationalization (CR) Program. Each of Western Alaska Community attachments to electronic comments in these programs authorizes transfers of Development Quota (CDQ) groups with Microsoft Word, Excel, WordPerfect, or quota shares under particular the option to make intercooperative Adobe PDF file formats only. circumstances. Depending on the transfers, crab individual processing Copies of the Categorical Exclusion circumstances, the transfers—which are quota transfers, and inter-group (CE), Regulatory Impact Review (RIR), typically leasing arrangements—are transfers through an automated, web- and Initial Regulatory Flexibility between individuals, cooperatives, or based process. To facilitate web-based Analysis (IRFA) prepared for this action various commercial entities. The fifth transfers, NMFS would remove the may be obtained from the NMFS Alaska quota share program, Halibut and requirement for notarized signatures for Region, P.O. Box 21668, Juneau, Alaska Sablefish IFQ, is not proposed to be all crab non-permanent leases of 99802, Attn: Ellen Sebastian, and on the included in online transfers. There are individual fishing quota and individual NMFS Alaska Region website at http:// minimal leasing opportunities for this processor quota and remove alaskafisheries.noaa.gov. program that are conditioned upon unnecessary quota share price-related Written comments regarding the submission of documentation that can questions. The purpose of this action is burden-hour estimates or other aspects only be provided in paper form, such as to reduce paperwork burdens placed on of the collection-of-information medical records. the fishing industry by providing the requirements contained in this rule may Need for Action option of electronic transfer through the be submitted to NMFS at the above Internet. This action would allow address, and by e-mail to Currently, applications for transfers _ cooperatives, processors, and CDQ David [email protected] or by fax to must be submitted to NMFS by mail, groups to shorten response time to 202–395–7285. courier, or fax. The current hard-copy management, market, weather, and FOR FURTHER INFORMATION CONTACT: application transfer process is too slow other fishery and operational conditions Patsy A. Bearden, 907–586–7008. to meet operational and market and to increase harvesting and SUPPLEMENTARY INFORMATION: NMFS demands of fishery participants. The processing efficiency. This action also manages the U.S. groundfish fisheries of efficacy of current system of transfers is proposes a variety of ‘‘housekeeping’’ the Bering Sea and Aleutian Islands in limited by NMFS business hours; but necessary regulatory amendments the Exclusive Economic Zone under the requirements for original application including: removing detailed Fishery Management Plan for documents and notarized signatures; description of applications from Groundfish of the Bering Sea and and the lengths of time needed for regulatory text; removing detailed Aleutian Islands Management Area application submission, approval, and NMFS mail, fax, and delivery addresses (BSAI FMP) and the Fishery receipt of permits. and replacing them with one paragraph Management Plan for Groundfish of the This action would offer an additional stating that the form may be submitted Gulf of Alaska (GOA FMP). The crab electronic option for applicants to in accordance with instructions on the fisheries are managed under the Fishery accomplish certain transfers through form; removing outdated survey-type Management Plan for Bering Sea and automated, online submittals and questions from two applications; Aleutian Islands King and Tanner Crabs automated transfer processing. dividing one application into three (Crab FMP). The BSAI FMP, GOA FMP, Electronic transfer service also would separate applications; revising the and Crab FMP were prepared by the benefit NMFS as it would reduce NMFS Alaska Region web address; and North Pacific Fishery Management existing transfer processing labor needs, correcting cross-references. Council (Council) under the Magnuson- improve data quality, and promote the DATES: Comments must be received no Stevens Fishery Conservation and objectives of the Government Paperwork later than June 10, 2009. Management Act (Magnuson-Stevens Elimination Act.

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This rule standardizes the regulatory NMFS would amend the regulatory temporary annual transfers. NMFS has text that the individuals providing text to enhance its accuracy and determined that the information on information certify that the information usefulness. Paragraph (g) would be reasons for transfers is not helpful or provided is ‘‘true, correct, and complete revised to read ‘‘Application for Inter- informative for management goals. Data to the best of his or her knowledge and Cooperative Transfer of Amendment 80 on permanent quota share transfers are belief.’’ In paragraph 679.5(n)(1), this Cooperative Quota (CQ)’’ because this is more significant socio-economic text is added for the CDQ Program. the only application described in this information and NMFS will continue to Paragraph 679.81(f)(2) is revised for the section. Paragraph (g) would be revised seek this information. Rockfish Program. Paragraph 679.91(g) to remove detailed description of the Paragraphs (h)(1) through (h)(3) is revised for the Amendment 80 application and other information that would be revised by removing the Program. Paragraphs 680.21(f) and may be found on the form and in the detailed description of the electronic 680.41(h) are revised for the CR instructions. Paragraph (g)(1), a general and paper transfer request, because that Program. description of the transfer request, detail is provided on the form and in the With respect to quota transfers, this would be added. Paragraphs (g)(4)(iv) instructions to the form. action would not change any eligibility through (vi) would be redesignated as Other Regulatory Amendments requirements, schedules, or any part of paragraphs (g)(2) through (4), Section 680.5 Recordkeeping and the programs involved other than to respectively. reporting (R&R). Section 680.5 describes provide a web-based option to submit Section 680.41 Transfer of QS, PQS, IFQ recordkeeping and reporting applications and conduct transfers and IPQ requirements for the CR Program. As online. The transfer regulations for each The proposed rule would provide for one of two housekeeping measures, a program would be amended to specify online transfers and add the Alaska cross-reference to the CR crab landing that both paper and online applicants Region website address and location of report would be corrected. certify information supporting the forms. NMFS also proposes to remove The proposed rule would revise transfers. Particular amendments for duplicative text regarding each of the paragraph (g) by removing the each program would be as follows: quota transfer applications. As this descriptions of various methods and Section 679.5(n) Groundfish CDQ change would eliminate text, the addresses for submittal of the RCR fee Fisheries proposed rule would redesignate submission form and by replacing it paragraphs accordingly. The section with text instructing the participants to Paragraph (n) of § 679.5 details the describing notification of approval by refer to the fee form submittal recordkeeping and reporting (R&R) the Regional Administrator would be instructions on the NMFS Alaska requirements for groundfish CDQ revised by simplifying the language and Region website at http:// fisheries, including CDQ and PSQ removing the text specifying that the alaskafisheries.noaa.gov. This would transfers. In addition to adding an applicants would be notified of a simplify and shorten regulatory text. online transfer process, paragraph (n)(1) successful transfer or denial of a transfer Section 680.20 Arbitration System. would be revised by removing the by mail because NMFS would have Section 680.20 describes the CR detailed description of transfer more than one method of notifying Program Arbitration System and applications, because that detail is applicants. requirements to submit arbitration provided on the application and in the Paragraph (h) describes transfer of reports and other arbitration instructions. crab QS/IFQ or PQS/IPQ all in one information to NMFS and related Section 679.81 Rockfish Program application. NMFS proposes to divide- submittal deadlines. The proposed rule Annual Harvester and Processor up the unified application. The would standardize submittal addresses Privileges proposed rule would reorganize and for the CR Program Arbitration System revise paragraph (h) to separate the by placing the complete mailing address Section 679.81(e) describes the single application into three for NMFS into paragraph 680.20(a)(3), applications for the Rockfish Program. applications and revise the heading for by removing NMFS address information Paragraph (e) would be amended to paragraph (h). Using one form to request from paragraphs (d)(3), (d)(4), (e)(5), establish the application for the online information for three different permits (f)(4)(ii)(B), (g)(2)(viii)(C)(2), and (h)(6) transfers. Paragraph (e)(1) would be with different information requirements introductory text, and by adding a cross- amended to update application mailing is overly complicated and confusing. In reference to paragraph (a)(3) to identify and website addresses. view of the proposed changes, the what information must be submitted Section 679.81(f) describes the heading for paragraph 680.41(h) would and by whom. ‘‘Application for Inter-Cooperative be revised to accurately describe this Section 680.21 Crab Harvesting Transfer of Rockfish Cooperative Quota section. Cooperatives. Section 680.21 contains (CQ).’’ Paragraph (f) would be revised by The regulations governing QS/PQS provisions for CR Program harvesting removing duplicative and unnecessary transfers would be revised to allow cooperatives, including transfer description of the transfer request, submittal of legible faxes. Cooperative requirements. The heading for because the information is provided on transfers and transfers of IFQ or IPQ paragraph (f) would be revised to read the application and in the instructions. would be revised to remove ‘‘Application for Transfer of Crab Harvesting Cooperative IFQ’’ to correct Section 679.91 Amendment 80 Program requirements for notary and price data the name of the application. NMFS Annual Harvester Privileges and to allow submittal of legible faxes. In addition, six ‘‘survey type’’ would change the format of paragraph Section 679.91 describes requirements questions asking for background (f) by removing detailed descriptions of for the Amendment 80 Program annual information would be removed from the transfer application and replacing harvester privileges and transfer applications for cooperative transfers that text with information stating that a processes. An online transfer process and transfers of IFQ or IPQ. These complete and timely application must would be added and application mailing questions seek costs associated with be filed with NMFS and that and website addresses would be transfers, prices paid for leasing, and instructions are provided on the form. updated. reasons for the transfer. These are NMFS believes that all participants have

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access to and knowledge of the Stevens Act and any other applicable operational logistics and market applications on the Alaska Region statutes, and that would minimize any changes. Transfer participants will not website. significant adverse economic impact of have to wait for NMFS to approve and Section 680.40 Crab QS, PQS, IFQ, the proposed rule on small entities. complete the transfer and notify them IPQ Issuance. The section heading and The description of the proposed on completion. They can conduct such paragraph heading would be amended action, its purpose, and its legal basis transfers when it is convenient for them to clarify the topic descriptions. The are described in the preamble and are to do so—evenings, weekends, holidays proposed rule would modify the various not repeated here. and other non-business hours. methods and addresses for submittal, so This action would provide This change would create no new that applicants would be directed to the participants in the CDQ Program, costs for NMFS, because the costs of Alaska Region website address for forms Rockfish Program, Amendment 80 implementation have already been and instructions. Program, and CR Program the incurred. To the extent that industry Section 680.44 Cost Recovery. opportunity to submit quota transfer uses this option, administrative costs for Paragraph (a)(4)(iii) would be revised by applications electronically, with the NMFS would also be reduced by removing the detailed submittal potential for processing and approving streamlining the administrative process, addresses for mail, fax, and courier quota transfers electronically, entirely with no appreciable loss of necessary delivery and replacing them with a over the Internet. Program participants data or management capabilities. paragraph stating that the form may be have commented that current transfer Automated checks in the submission submitted in accordance with processes are not flexible or responsive system will monitor applications for instructions on the form. enough to meet the needs of a 24-hour, completeness and consistency with law. The proposed rule would revise the seven-days-a-week, short-term fishery Paper applications would only be NMFS Alaska Region web address to that must continually reorganize required if problems occurred with the http://alaskafisheries.noaa.gov for all allocations to meet operational and electronic transfer attempt or in some information submitted electronically market demands. For example, situations requiring attachments that and for all other uses, including access cooperatives frequently use inter- must be examined by NMFS staff. to application forms and program cooperative leases to maximize the This action also would divide the information in the 50 CFR part 679 and efficient use of vessels and allocations. single form currently used to apply for in the 50 CFR part 680 regulations. The proposed electronic processes transfers of crab QS/IFQ or PQS/IPQ would address the problems of limited Classification into three separate forms governing business hours of NMFS staff; transfers of crab IFQ, crab IPQ, and crab Pursuant to section 305(d) of the requirements for original application QS or PQS. Currently somewhat Magnuson-Stevens Act, the NMFS documents and notarized signatures; different information is collected for Acting Assistant Administrator has and the lengths of time needed for each type of transfer, but only one form determined that this proposed rule is application submission, approval, and is used for the applications. This form consistent with the provisions of the receipt of permits. The proposed is therefore unnecessarily complicated. Magnuson-Stevens Act and other revisions would benefit Program NMFS estimates that this action may applicable law, subject to further participants by reducing the time, directly regulate six small CDQ groups, consideration after public comment. expense, and administrative effort one small rockfish cooperative, no small NMFS prepared an initial regulatory associated with submitting requests to Amendment 80 cooperatives, four small flexibility analysis (IRFA), as required NMFS for approval of quota transfers. crab cooperatives, 18 small crab PQS by section 603 of the Regulatory This action would impact holders, 31 small crab IFQ holders, 13 Flexibility Act (RFA). The IRFA administrative procedures for fisheries small crab IPQ holders, 250 small crab describes the economic impact this management programs within the QS holders, and 25 small crab PQS proposed rule, if adopted, would have Alaska Region. This rule creates a new holders. on small entities. Descriptions of the option for CDQ groups, Rockfish The IRFA did not reveal any Federal action, the reasons it is under Cooperatives, the Amendment 80 rules that duplicate, overlap, or conflict consideration, and its objectives and cooperatives, the Crab Harvesting with the proposed action. legal basis, are contained at the cooperatives, and crab IPQ holders to The alternatives were developed to beginning of this section in the transfer annual allocations of CDQ, CQ, minimize potential adverse economic preamble and in the SUMMARY section of IFQ, or IPQ (as appropriate) among effects on directly regulated entities. the preamble. A summary of the themselves online to make transfers The objectives of this action are to: analysis follows. A copy of this analysis more efficient and faster. Prior to this ♦ Maintain recordkeeping and is available from NMFS (see action these entities submitted transfer reporting requirements for the impacted ADDRESSES). paperwork to NMFS using only the programs that provide the information The IRFA for this proposed action mail, fax, and/or courier. necessary to manage the fisheries and to describes in detail the reasons why this These changes would create no new enforce Federal regulations applicable action is being proposed; describes the costs for industry, because the costs of to the programs. objectives and legal basis for the implementation have already been ♦ Reduce the time, effort, and proposed rule; describes and estimates incurred. In fact, the industry may have documentation involved in the process the number of small entities to which fewer costs. NMFS expects that the of making quota transfers. the proposed rule would apply; participants of those programs will tend ♦ Maintain the overall economic and describes any projected reporting, to participate in online activities social goals and purpose of the recordkeeping, or other compliance because the option is expected to reduce regulated programs. requirements of the proposed rule; their reporting requirements, increase NMFS initially considered an identifies any overlapping, duplicative, operational flexibility, enhance alternative that would have required use or conflicting Federal rules; and potential for collaboration and of the online systems rather than describes any significant alternatives to coordination among transferors and making them optional. NMFS rejected the proposed rule that accomplish the transferees, and provide an augmented this alternative without analysis because stated objectives of the Magnuson- ability to respond in a timely way to NMFS could not be certain that all

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entities in all impacted industry sectors needed, and completing and reviewing (ii) Transfer acceptance. In the case of had the capability of submitting forms the collection-of-information. an online transfer, the transferee group electronically and because some Public comment is sought regarding must accept the transfer. transfers still require attachments that whether these proposed collections-of- (iii) Certification of transferor—(A) must be examined by NMFS staff. The information are necessary for the proper Non-electronic submittal. The preferred alternative reflects the least performance of the functions of the transferor’s designated representative burdensome of management structures agency, including whether the must sign and date the application in terms of directly regulated small information shall have practical utility; certifying that all information is true, entities available, while fully achieving the accuracy of the burden estimate; correct, and complete. the conservation and management ways to enhance the quality, utility, and (B) Electronic submittal. The purposes consistent with applicable clarity of the information to be transferor’s designated representative statutes. collected; and ways to minimize the must submit the application as This proposed rule has been burden of the collection-of-information, indicated on the computer screen. By determined to be not significant for including through the use of automated using the transferor’s NMFS ID, purposes of Executive Order 12866. collection techniques or other forms of password and Transfer Key and This regulation does not impose new information technology. submitting the application, the recordkeeping and reporting Send comments on these or any other designated representative certifies that requirements on the regulated small aspects of the collection-of-information all information is true, correct, and entities. to NMFS Alaska Region at the complete. ADDRESSES above, and e-mail to (iv) Certification of transferee—(A) Collection-of-Information Requirements [email protected], or fax to Non-electronic submittal. The This rule contains collection-of- 202–395–7285. transferee’s designated representative Notwithstanding any other provision information requirements subject to the must sign and date the application of the law, no person is required to Paperwork Reduction Act (PRA) and certifying that all information is true, respond to, nor shall any person be which have been approved by the Office correct, and complete. subject to a penalty for failure to comply of Management and Budget (OMB). (B) Electronic submittal. The with, a collection-of-information subject Public reporting burden estimates per transferee’s designated representative to the requirements of the PRA, unless response for these requirements are must submit the application as that collection-of-information displays a listed by OMB control number. indicated on the computer screen. By currently valid OMB Control Number. OMB Control No. 0648–0269: 30 using the transferee’s NMFS ID, minutes for CDQ or PSQ Transfer List of Subjects in 50 CFR Parts 679 and password and Transfer Key and Request. 680 submitting the application, the OMB Control No. 0648–0565: Two designated representative certifies that Alaska, Fisheries, Recordkeeping and all information is true, correct, and hours for Application to Transfer reporting requirements. Amendment 80 Cooperative Quota. complete. Dated: May 18, 2009. OMB Control No. 0648–0545: Two * * * * * hours for Application for Inter- John Oliver, 3. In § 679.81, add paragraph cooperative Transfer of Rockfish Quota Deputy Assistant Administrator for (e)(1)(iv); and revise paragraphs (e)(2) Operations, National Marine Fisheries and (f) to read as follows: Share. Service. This proposed rule contains For the reasons set out in the § 679.81 Rockfish Program annual collection-of-information requirements preamble, 50 CFR parts 679 and 680 are harvester and processor privileges. subject to review and approval by OMB proposed to be amended as follows: * * * * * under the PRA and which have been (e) * * * submitted to OMB for approval. Public PART 679—FISHERIES OF THE (1) * * * reporting burden estimates per response EXCLUSIVE ECONOMIC ZONE OFF (iv) Electronic: http:// for these requirements are listed by ALASKA alaskafisheries.noaa.gov. OMB control number. (2) Application forms. Application OMB Control No. 0648–0514: Two 1. The authority citation for part 679 forms are available on the NMFS Alaska hours for Application for Transfer of continues to read as follows: Region website at http:// Crab QS, IFQ, and IPQ; this form will Authority: 16 U.S.C. 773 et seq.; 1801 et alaskafisheries.noaa.gov, or by be removed from this collection, and the seq.; 3631 et seq.; Pub. L. 108–447. contacting NMFS at 800–304–4846, following three new forms will be added 2. In § 679.5, revise paragraph (n)(1) to Option 2. read as follows: in its place. Two hours each for: * * * * * Application for Transfer of Crab § 679.5 Recordkeeping and reporting (f) Application for inter-cooperative Individual Fishing Quota, Application (R&R). transfer of cooperative quota (CQ)—(1) for Transfer of Individual Processor * * * * * Completed application. NMFS will Quota, Application for Transfer of Crab (n) * * * process an application for inter- Quota Share and Crab Processor Quota (1) CDQ or PSQ transfer. NMFS will cooperative transfer of cooperative Share, and Application for Transfer of process a request for CDQ or PSQ quota (CQ) provided that a paper or Individual Fishing Quota Between Crab transfer between CDQ groups provided electronic online transfer application is Harvesting Cooperatives; and two and that the requirements of this paragraph completed by the transferor and one half hours for Application for are met. transferee, with all applicable fields Annual Crab Harvester Cooperative IFQ (i) Completed application. A paper or accurately filled-in, and all required Permit. electronic request form must be additional documentation is attached. Public reporting estimates include the completed with all information fields (2) Certification of transferor—(i) time for reviewing instructions, accurately filled in by transferors and Non-electronic submittal. The searching existing data sources, transferees, and all required additional transferor’s designated representative gathering and maintaining the data documentation must be attached. must sign and date the application

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certifying that all information is true, Amendment 80 species CQ use cap Record- correct, and complete. calculations, the total amount of keeping and Person re- Reference (ii) Electronic submittal. The Amendment 80 species CQ held or used reporting re- sponsible transferor’s designated representative by a person is equal to all metric tons port must submit the application as of Amendment 80 species CQ derived * * * * * * * indicated on the computer screen. By from all Amendment 80 QS units on all using the transferor’s NMFS ID, Amendment 80 QS permits held by that (G) CR Crab RCR § 679.5(e) password and Transfer Key and person and assigned to the Amendment Landing submitting the application, the 80 cooperative and all metric tons of Report designated representative certifies that Amendment 80 species CQ assigned to all information is true, correct, and that person by the Amendment 80 * * * * * * * complete. cooperative from approved transfers. (3) Certification of transferee—(i) (4) Amendment 80 QS units. The * * * * * (g) * * * Non-electronic submittal. The amount of Amendment 80 QS units held (1) Applicability. An RCR or the RCR’s transferee’s designated representative by a person, and CQ derived from those authorized representative, who receives must sign and date the application Amendment 80 QS units, is calculated any CR crab pursuant to § 680.44 must certifying that all information is true, using the individual and collective use submit to NMFS online a complete RCR correct, and complete. cap rule established in § 679.92(a). fee form as instructed on the form at (ii) Electronic submittal. The (5) Certification of transferor—(i) NMFS Alaska Region website at http:// transferee’s designated representative Non-electronic submittal. The alaskafisheries.noaa.gov. must submit the application as transferor’s designated representative (2) Due date and submittal. The indicated on the computer screen. By must sign and date the application reporting period of the RCR fee using the transferee’s NMFS ID, certifying that all information is true, submission shall be the crab fishing password and Transfer Key and correct, and complete. year. An RCR must submit any crab cost submitting the application, the (ii) Electronic submittal. The recovery fee liability payment(s) and the designated representative certifies that transferor’s designated representative RCR fee submission form to NMFS all information is true, correct, and must submit the application as online not later than July 31 following complete. indicated on the computer screen. By the crab fishing year in which the CR * * * * * using the transferor’s NMFS ID, crab landings were made. 4. In § 679.91, add paragraph password and Transfer Key and (b)(1)(iv); and revise paragraphs (b)(2) submitting the application, the * * * * * and (g) to read as follows: designated representative certifies that 7. In § 680.20, add paragraph (a)(3); all information is true, correct, and and revise paragraphs (d)(3), (d)(4), § 679.91 Amendment 80 Program annual (e)(5), (f)(4)(ii)(B), (g)(2)(viii)(C)(2), and harvester privileges. complete. (6) Certification of transferee—(i) (h)(6) introductory text to read as * * * * * Non-electronic submittal. The follows: (b) * * * transferee’s designated representative (1) * * * § 680.20 Arbitration System. must sign and date the application (iv) Electronic: http:// (a) * * * alaskafisheries.noaa.gov. certifying that all information is true, (3) Document submittal information. (2) Application forms. Application correct, and complete. Submit documents and reports to NMFS (ii) Electronic submittal. The forms are available on the NMFS Alaska as follows: by mail to the Regional transferee’s designated representative Region website at http:// Administrator, NMFS, P.O. Box 21668, must submit the application as alaskafisheries.noaa.gov, or by Juneau, AK 99802; by courier to NMFS, indicated on the computer screen. By contacting NMFS at 800–304–4846, Room 401, 709 West 9th Street, Juneau, using the transferee’s NMFS ID, Option 2. AK 99801; or by fax to 907–586–7465. password and Transfer Key and * * * * * * * * submitting the application, the (g) Application for inter-cooperative (d) * * * designated representative certifies that transfer of Amendment 80 CQ—(1) (3) An Arbitration Organization, with all information is true, correct, and Completed application. NMFS will members who are QS or PQS holders, complete. process an application for inter- must submit a complete Annual cooperative transfer of Amendment 80 * * * * * Arbitration Organization Report to NMFS in accordance with paragraph cooperative quota (CQ) provided that a PART 680—SHELLFISH FISHERIES OF paper or electronic application is (a)(3) of this section by August 20, 2005, THE EXCLUSIVE ECONOMIC ZONE for the crab fishing year beginning on completed by the transferor and OFF ALASKA transferee, with all applicable fields July 1, 2005, and by May 1 of each accurately filled in, and all required 5. The authority citation for part 680 subsequent year for the crab fishing year additional documentation is attached. continues to read as follows: beginning on July 1 of that year. (2) Amendment 80 species CQ (4) An Arbitration Organization, with Authority: 16 U.S.C. 1862; Pub. L. 109– assignment. Amendment 80 species CQ 241; Pub. L. 109–479. members who are IFQ or IPQ holders, must be assigned to a member of the 6. In § 680.5, revise paragraphs must submit a complete Annual Amendment 80 cooperative receiving (a)(2)(i)(G), (g)(1), and (g)(2) to read as Arbitration Organization Report to the CQ for purposes of use cap follows: NMFS in accordance with paragraph calculations. No member of an (a)(3) of this section by not later than 15 Amendment 80 cooperative may exceed § 680.5 Recordkeeping and reporting days after the issuance of IFQ and IPQ the CQ use cap applicable to that (R&R). for that crab QS fishery. member. (a) * * * (e) * * * (3) Total amount of Amendment 80 (2) * * * (5) Notification to NMFS. Not later species CQ. For purposes of (i) * * * than June 1 for that crab fishing year,

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except as provided in paragraph (e)(6) of all information is true, correct, and PQS, IFQ, or IPQ in any crab QS fishery this section, the Arbitration complete. from August 1 until the date of the Organizations representing the holders (3) Certification of transferee—(i) issuance of IFQ or IPQ for that crab QS of Arbitration QS and PQS in each Non-electronic submittal. The fishery. fishery shall notify NMFS of the persons transferee’s designated representative (2) Notification of application selected as the Market Analyst, Formula must sign and date the application approval or disapproval. Persons Arbitrator, and Contract Arbitrator(s) for certifying that all information is true, submitting any application for approval the fishery in accordance with correct, and complete. under § 680.41 will receive notification paragraph (a)(3) of this section. (ii) Electronic submittal. The of the Regional Administrator’s decision * * * * * transferee’s designated representative to approve or disapprove the (f) * * * must submit the application as application, and if applicable, the (4) * * * indicated on the computer screen. By reason(s) for disapproval. (ii) * * * using the transferee’s NMFS ID, (3) Reasons for disapproval. Reasons (B) NMFS Alaska Region in password and Transfer Key and for disapproval of an application accordance with paragraph (a)(3) of this submitting the application, the include, but are not limited to: section; and designated representative certifies that (i) Lack of U.S. citizenship, where * * * * * all information is true, correct, and U.S. citizenship is required; (g) * * * complete. (ii) Failure to meet minimum (2) * * * (4) Submittal information. Submit requirements for sea time as a member (viii) * * * applications and other documents in of a harvesting crew; (C) * * * this section to NMFS as follows: by mail (iii) An incomplete application, (2) NMFS in accordance with addressed to the Regional including fees and an EDR, if required; paragraph (a)(3) of this section; and Administrator, NMFS, P.O. Box 21668, (iv) An untimely application; or Juneau, AK 99802; by courier to NMFS, * * * * * (v) Fines, civil penalties, or other Room 713, 709 West 9th Street, Juneau, (h) * * * payments due and owing, or (6) Information provided to NMFS. AK 99801; by fax to 907–586–7354; or outstanding permit sanctions resulting The Contract Arbitrator must provide online at http:// from Federal fishery violations. any information, documents, or data alaskafisheries.noaa.gov. (4) QS, PQS, IFQ, or IPQ accounts. (i) (5) Forms. Forms are available on the required under this paragraph to NMFS QS, PQS, IFQ, or IPQ accounts affected NMFS Alaska Region website at http:// in accordance with paragraph (a)(3) of by a transfer approved by the Regional alaskafisheries.noaa.gov, or by this section not later than 30 days prior Administrator will change on the date of contacting NMFS at 800–304–4846, to the end of the crab fishing year for approval. Option 2. which the open negotiation or (ii) For non-electronic submittals, any arbitration applied. The contract with * * * * * necessary IFQ or IPQ permits will be the Contract Arbitrator must specify that 9. In § 680.40, revise the section sent with the notification of approval if the Contract Arbitrator provide NMFS heading, paragraph (f) heading, and the receiver of the IFQ or IPQ permit has with: paragraph (f)(1)(ii) to read as follows: completed an annual application for crab IFQ or IPQ permit for the current * * * * * § 680.40 Crab Quota Share (QS), fishing year as required under § 680.4. 8. In § 680.21, revise paragraph (f) to Processor QS (PQS), Individual Fishing (iii) For electronic submittals, the read as follows: Quota (IFQ), and Individual Processor Quota (IPQ) Issuance. parties to the transfer would access and § 680.21 Crab harvesting cooperatives. print approvals and permits online. * * * * * * * * * * (f) Application for crab QS or PQS. (5) Submittal. Submit applications (f) Application for transfer of crab (1) * * * and other documents to NMFS as harvesting cooperative IFQ—(1) (ii) An application for crab QS or PQS instructed on the application. Forms are Completed application. NMFS will may be submitted to NMFS as available on the NMFS Alaska Region process an application for transfer of instructed on the application. Forms are website at http:// crab harvesting cooperative individual available on the NMFS Alaska Region alaskafisheries.noaa.gov, or by fishing quota (IFQ) provided that a website at http:// contacting NMFS at: 800–304–4846, paper or electronic request form is alaskafisheries.noaa.gov, or by Option 2. completed by the applicant, with all contacting NMFS at 800–304–4846, * * * * * applicable fields accurately filled in, Option 2. (h) Applications for transfer—(1) and all required additional * * * * * Application for transfer of crab IFQ. documentation is attached. 10. In § 680.41, revise paragraphs (b) NMFS will process a request for transfer (2) Certification of transferor—(i) and (h) to read as follows: of crab individual fishing quota (IFQ) Non-electronic submittal. The provided that a paper application is transferor’s designated representative § 680.41 Transfer of QS, PQS, IFQ and IPQ. completed, with all information fields must sign and date the application * * * * * accurately filled in, and all required certifying that all information is true, (b) Transfer applications—(1) additional documentation is attached. correct, and complete. Application. An application is required The transferor’s and the transferee’s (ii) Electronic submittal. The to transfer any amount of QS, PQS, IFQ, designated representatives must sign transferor’s designated representative or IPQ. A transfer application will not and date the application certifying that must submit the application as be approved until the necessary all information is true, correct, and indicated on the computer screen. By eligibility application has been complete. using the transferor’s NMFS ID, submitted and approved by NMFS in (2) Application for transfer of crab password and Transfer Key and accordance with paragraph (c) of this IPQ—(i) Completed application. NMFS submitting the application, the section. The Regional Administrator will process a request for transfer of crab designated representative certifies that will not approve any transfers of QS, individual processor quota (IPQ)

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provided that a paper or electronic transferee’s designated representative transferee’s designated representatives request form is completed, with all must sign and date the application must sign and date the application information fields accurately filled in, certifying that all information is true, certifying that all information is true, and all required additional correct, and complete. correct, and complete. documentation is attached. (B) Electronic submittal. The * * * * * (ii) Certification of transferor—(A) transferee’s designated representative 11. In § 680.44, revise paragraph Non-electronic submittal. The must submit the application as (a)(4)(iii) to read as follows: transferor’s designated representative indicated on the computer screen. By must sign and date the application using the transferee’s NMFS ID, § 680.44 Cost recovery. certifying that all information is true, password and Transfer Key and (a) * * * correct, and complete. submitting the application, the (4) * * * (B) Electronic submittal. The designated representative certifies that (iii) Payment address. Submit transferor’s designated representative all information is true, correct, and payment and related documents as must submit the application as complete. instructed on the fee form; payments indicated on the computer screen. By (3) Application for transfer of crab QS may also be submitted electronically to using the transferor’s NMFS ID, or PQS. NMFS will process a request for NMFS. Forms are available on the password and Transfer Key and transfer of crab quota share (QS) or crab NMFS Alaska Region website at http:// submitting the application, the processor quota share (PQS) provided alaskafisheries.noaa.gov, or by designated representative certifies that that a paper request form is completed contacting NMFS at: 800–304–4846, all information is true, correct, and and notarized, with all information Option 2. complete. fields accurately filled in, and all * * * * * (iii) Certification of transferee—(A) required additional documentation is [FR Doc. E9–12036 Filed 5–22–09; 8:45 am] Non-electronic submittal. The attached. The transferor’s and the BILLING CODE 3510–22–S

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Notices Federal Register Vol. 74, No. 99

Tuesday, May 26, 2009

This section of the FEDERAL REGISTER through July 27, 2009. Comments on the Commonwealth of the Northern Marianas contains documents other than rules or paper work burden must be received by Islands—CNMI (See Hawaii) proposed rules that are applicable to the this date to be assured of consideration. Connecticut (see Massachusetts) public. Notices of hearings and investigations, committee meetings, agency decisions and ADDRESSES: Application materials may Delaware/Maryland rulings, delegations of authority, filing of be obtained by contacting one of Rural Bruce Weaver, USDA Rural Development, petitions and applications and agency Development’s Rural Energy 1221 College Park Drive, Suite 200, Dover, statements of organization and functions are Coordinators or by downloading DE 19904, (302) 857–3626. examples of documents appearing in this [email protected]. section. through http://www.grants.gov. Submit electronic applications at Federated States of Micronesia (See Hawaii) http://www.grants.gov, following the Florida/Virgin Islands DEPARTMENT OF AGRICULTURE instructions found on this Web site. To Joe Mueller, USDA Rural Development, 4440 use Grants.gov, all applicants (unless Rural Business-Cooperative Service NW. 25th Place, Gainesville, FL 32606, the applicant is an individual) must (352) 338–3482. [email protected]. Notice of Solicitation of Applications have a Dun and Bradstreet Data Georgia (NOSA) for Inviting Applications for Universal Numbering System (DUNS) J. Craig Scroggs, USDA Rural Development, Renewable Energy Systems and number, which can be obtained at no 111 E. Spring St., Suite B, Monroe, GA cost via a toll-free request line at 1–866– 30655, Phone 770–267–1413 ext. 113. Energy Efficiency Improvements [email protected]. Grants and Guaranteed Loans and 705–5711 or online at http:// Renewable Energy Feasibility Studies fedgov.dnb.com/webform. Submit Guam (See Hawaii) Grants Under the Rural Energy for completed paper applications to the Hawaii/Guam/Republic of Palau/Federated America Program Rural Development State Office in the States of Micronesia/Republic of the State in which the applicant’s proposed Marshall Islands/American Samoa/ AGENCY: Rural Business-Cooperative project is located. Commonwealth of the Northern Marianas Service, USDA. Rural Development Rural Energy Islands—CNMI ACTION: Notice. Coordinators Tim O’Connell, USDA Rural Development, Federal Building, Room 311, 154 SUMMARY: This notice announces that Note: Telephone numbers listed are not toll-free. Waianuenue Avenue, Hilo, HI 96720, (808) Rural Business-Cooperative Service is 933–8313. [email protected]. accepting applications for fiscal year Alabama Idaho (FY) 2009 to purchase renewable energy Quinton Harris, USDA Rural Development, Brian Buch, USDA Rural Development, 9173 systems and make energy efficiency Sterling Centre, Suite 601, 4121 W. Barnes Drive, Suite A1, Boise, ID 83709, improvements and to conduct feasibility Carmichael Road, Montgomery, AL 36106– (208) 378–5623. [email protected]. studies for renewable energy systems for 3683, (334) 279–3623. Illinois agriculture producers and rural small [email protected]. Molly Hammond, USDA Rural Development, businesses in eligible rural areas. Alaska 2118 West Park Court, Suite A, Champaign, Funding will be available in the form of Dean Stewart, USDA Rural Development, 800 IL 61821, (217) 403–6210. grants and loan guarantees. In addition West Evergreen, Suite 201, Palmer, AK [email protected]. 99645–6539, (907) 761–7722. Indiana to grants and loan guarantees, Jerry Hay, USDA Rural Development, 2411 N. [email protected]. applicants may apply for combination 1250 W., Deputy, IN 47230, (812) 873– loan guarantee and grant funding American Samoa (See Hawaii) 1100. [email protected]. (combination package). Lastly, the Iowa Agency intends to publish a proposed Arizona Teresa Bomhoff, USDA Rural Development, rule that will amend the Rural Energy Alan Watt, USDA Rural Development, 230 873 Federal Building, 210 Walnut Street, for America portion of the Rural North First Avenue, Suite 206, Phoenix, Des Moines, IA 50309, (515) 284–4447. Development Grants regulation, AZ 85003–1706, (602) 280–8769. [email protected]. published October 15, 2008 [73 FR [email protected]. Kansas 61198], at 7 CFR part 5002, for Arkansas David Kramer, USDA Rural Development, 1303 SW First American Place, Suite 100, Tim Smith, USDA Rural Development, 700 feasibility study projects in calendar Topeka, KS 66604–4040, (785) 271–2744. year 2009. West Capitol Avenue, Room 3416, Little [email protected]. DATES: Complete applications under this Rock, AR 72201–3225, (501) 301–3280. Kentucky Notice must be received by the [email protected]. Scott Maas, USDA Rural Development, 771 appropriate USDA Rural Development California Corporate Drive, Suite 200, Lexington, KY State Office no later than 4:30 local time Philip Brown, USDA Rural Development, 430 40503, (859) 224–7435. July 31, 2009. Neither complete nor G Street, #4169, Davis, CA 95616, (530) [email protected]. incomplete applications received after 792–5811. [email protected]. Louisiana this date and time will be considered, Colorado Kevin Boone, USDA Rural Development, 905 April Dahlager, USDA Rural Development, Jefferson Street, Suite 320, Lafayette, LA regardless of the postmark on the 70501, (337) 262–6601, Ext. 133. application. 655 Parfet Street, Room E–100, Lakewood, CO 80215, (720) 544–2909. [email protected]. The comment period for information Maine [email protected]. collection under the Paperwork John F. Sheehan, USDA Rural Development, Reduction Act of 1995 continues 967 Illinois Avenue, Suite 4, P.O. Box 405,

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Bangor, ME 04402–0405, (207) 990–9168. 43215–2418, (614) 255–2424. Morgantown, WV 26505–7500, (304) 284– [email protected]. [email protected]. 4874. [email protected]. Oklahoma Wisconsin Maryland (see Delaware) Jody Harris, USDA Rural Development, 100 Brenda Heinen, USDA Rural Development, Massachusetts/Rhode Island/Connecticut USDA, Suite 108, Stillwater, OK 74074– 4949 Kirschling Court, Stevens Point, WI 2654, (405) 742–1036. 54481, (715) 345–7615, Ext. 139. Charles W. Dubuc, USDA Rural [email protected]. [email protected]. Development, 451 West Street, Suite 2, Oregon Wyoming Amherst, MA 01002, (401) 826–0842 X Don Hollis, USDA Rural Development, 1229 Jon Crabtree, USDA Rural Development, Dick 306. [email protected]. SE Third Street, Suite A, Pendleton, OR Cheney Federal Building, 100 East B Street, Michigan 97801–4198, (541) 278–8049, Ext. 129. Room 1005, P.O. Box 11005, Casper, WY Traci J. Smith, USDA Rural Development, [email protected]. 82602, (307) 233–6719. 3001 Coolidge Road, Suite 200, East Pennsylvania [email protected]. Lansing, MI 48823, (517) 324–5157. Bernard Linn, USDA Rural Development, [email protected]. FOR FURTHER INFORMATION CONTACT: For One Credit Union Place, Suite 330, Minnesota information about this Notice, please Harrisburg, PA 17110–2996, (717) 237– Lisa L. Noty, USDA Rural Development, 1400 contact the USDA Rural Development— 2182. [email protected]. West Main Street, Albert Lea, MN 56007, Energy Division, Program Branch, STOP Puerto Rico (507) 373–7960 Ext. 120. Luis Garcia, USDA Rural Development, IBM 3225, Room 6870, 1400 Independence [email protected]. Building, 654 Munoz Rivera Avenue, Suite Avenue, SW., Washington, DC 20250– Mississippi 601, Hato Rey, PR 00918–6106, (787) 766– 3225. Telephone: (202) 720–1400. G. Gary Jones, USDA Rural Development, 5091, Ext. 251. [email protected]. For assistance on this program, please Federal Building, Suite 831, 100 West contact the applicable Rural Capitol Street, Jackson, MS 39269, (601) Republic of Palau (See Hawaii) 965–5457. [email protected]. Development’s Rural Energy Republic of the Marshall Islands (See Missouri Coordinator, as provided in the Hawaii) Matt Moore, USDA Rural Development, 601 ADDRESSES section of this notice. Business Loop 70 West, Parkade Center, Rhode Island (see Massachusetts) SUPPLEMENTARY INFORMATION: Suite 235, Columbia, MO 65203, (573) 876–9321. [email protected]. South Carolina Paperwork Reduction Act Montana Shannon Legree, USDA Rural Development, In accordance with the Paperwork John Guthmiller, USDA Rural Development, Strom Thurmond Federal Building, 1835 Reduction Act of 1995, Rural 900 Technology Blvd., Unit 1, Suite B, P.O. Assembly Street, Room 1007, Columbia, SC Development will seek OMB approval of Box 850, Bozeman, MT 59771, (406) 585– 29201, (803) 253–3150. the reporting and recordkeeping 2540. [email protected]. [email protected]. Nebraska South Dakota requirements contained in this Notice Debra Yocum, USDA Rural Development, Douglas Roehl, USDA Rural Development, and hereby opens a 60-day public 100 Centennial Mall North, Room 152, Federal Building, Room 210, 200 4th comment period. Federal Building, Lincoln, NE 68508, (402) Street, SW., Huron, SD 57350, (605) 352– The Rural Energy for America 437–5554. [email protected]. 1145. [email protected]. Program, formerly section 9006 under Nevada Tennessee the 2002 Farm Bill, is composed of Herb Shedd, USDA Rural Development, 1390 Will Dodson, USDA Rural Development, several types of grants and guaranteed South Curry Street, Carson City, NV 89703, 3322 West End Avenue, Suite 300, loan programs. These are: Guaranteed (775) 887–1222. [email protected]. Nashville, TN 37203–1084, (615) 783– loans and grants for the development/ 1350. [email protected]. construction of renewable energy New Hampshire (See Vermont) Texas systems and for energy efficiency New Jersey Daniel Torres, USDA Rural Development, Federal Building, Suite 102, 101 South improvement projects; grants for Victoria Fekete, USDA Rural Development, Main Street, Temple, TX 76501, (254) 742– conducting energy audits; grants for 8000 Midlantic Drive, 5th Floor North, 9756. [email protected]. conducting renewable energy Suite 500, Mt. Laurel, NJ 08054, (856) 787– Utah 7752. [email protected]. development assistance; and grants for Roger Koon, USDA Rural Development, New Mexico conducting renewable energy feasibility Wallace F. Bennett Federal Building, 125 Jesse Bopp, USDA Rural Development, 6200 studies. South State Street, Room 4311, Salt Lake Jefferson Street, NE., Room 255, The information collection request for City, UT 84138, (801) 524–4301. Albuquerque, NM 87109, (505) 761–4952. this notice is specifically for renewable [email protected]. [email protected]. Vermont/New Hampshire energy feasibility study grants, which New York Cheryl Ducharme, USDA Rural Development, are newly authorized under REAP. The Thomas Hauryski, USDA Rural Development, 89 Main Street, 3rd Floor, Montpelier, VT information collection burden 415 West Morris Street, Bath, NY 14810, 05602, 802–828–6083. associated with the renewable energy (607) 776–7398 Ext. 132, [email protected]. [email protected]. system and energy efficiency Virginia North Carolina improvement projects are currently Laurette Tucker, USDA Rural Development, David Thigpen, USDA Rural Development, approved under OMB Control Number Culpeper Building, Suite 238, 1606 Santa 4405 Bland Rd. Suite 260, Raleigh, N.C. 0570–0050. The information collection Rosa Road, Richmond, VA 23229, (804) 27609, 919–873–2065. burden associated with the energy audit 287–1594. [email protected]. [email protected]. and renewable energy development North Dakota Virgin Islands (see Florida) assistance grants is under review by Dennis Rodin, USDA Rural Development, Washington OMB. Federal Building, Room 208, 220 East As noted above, this is a new Rosser Avenue, P.O. Box 1737, Bismarck, Mary Traxler, USDA Rural Development, information collection for the renewable ND 58502–1737, (701) 530–2068. 1835 Black Lake Blvd., SW., Suite B, [email protected]. Olympia, WA 98512, (360) 704–7762. energy system feasibility study grant Ohio [email protected]. portion of this Notice. Thus, the burden Randy Monhemius, USDA Rural West Virginia estimates reported in this notice are Development, Federal Building, Room 507, Richard E. Satterfield, USDA Rural associated only with the feasibility 200 North High Street, Columbus, OH Development, 75 High Street, Room 320, study grants, and the Agency is asking

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for comment only on the burden clarity of the information to be Investment Act of 2002 (FSRIA), which estimates for these feasibility study collected; and (d) ways to minimize the establishes the Rural Energy for America grants. Once approved, the Agency burden of the collection of information Program under section 9007 of the 2008 intends to merge and incorporate the on those who are to respond, including Farm Bill. The program is designed to burden for feasibility study grants, through the use of appropriate help agricultural producers and rural reported in this notice, into the burden automated, electronic, mechanical, or small businesses reduce energy costs for the consolidated grant rule other technological collection and consumption and help meet the information collection that is pending techniques or other forms of information Nation’s critical energy needs. The 2008 OMB approval. technology. Comments may be sent to Farm Bill mandates the maximum Title: Renewable Energy Feasibility Cheryl Thompson, Regulations and percentages of funding that USDA Rural Study Grants (part of the Renewable Paperwork Management Branch, Development will provide. Within the Energy for America Program). Support Services Division, U.S. maximum funding amounts specified in Type of Request: New collection. Department of Agriculture, Rural this Notice, funding approved for Abstract: Under this Notice, the Development, STOP 0742, 1400 guaranteed loan only requests and for Agency is providing grants to eligible Independence Ave., SW., Washington, combination guaranteed loan and grant applicants for the provision of DC 20250. All responses to this notice requests will not exceed 75 percent of renewable energy system feasibility will be summarized and included in the eligible project costs, with the grant studies to agricultural producers and request for OMB approval. All portion not to exceed 25 percent of rural small businesses. comments will also become a matter of eligible project costs, whether the grant The collection of information is vital public record. is part of a combination request or is a to the Agency to make wise decisions stand-alone grant. regarding the eligibility of applicants Overview Information B. Statutory Authority. This program and their projects in order to ensure Federal Agency Name. Rural is authorized under Title IX, Section compliance with the provisions of this Business—Cooperative Service. 9001, of the Food, Conservation, and Notice. Applicants seeking a grant will Funding Opportunity Title. Energy Act of 2008 (Pub. L. 110–246). have to submit applications that include Renewable Energy Systems and Energy C. Definition of Terms. The following specific information about the applicant Efficiency Improvements Grants and terms and the terms defined in 7 CFR and the proposed feasibility study (e.g., Guaranteed Loans and Renewable part 4280 are applicable to this Notice. the renewable energy project for which Energy Feasibility Studies Grants under If this Notice and 7 CFR part 4280 both the study will be conducted; matching the Rural Energy for America Program. define the same term, that term shall funds), and the experience of the entity Announcement Type. Initial have the meaning provided in this that will be conducting the feasibility announcement. Notice. study. In sum, this collection of Catalog of Federal Domestic Administrator. The Administrator of information is necessary in order to Assistance (CFDA) Number. This Rural Business—Cooperative Service implement this Program. program is listed in the Catalog of within the Rural Development Mission The following estimates are based on Federal Domestic Assistance under Area of the U.S. Department of the average over the first three years the Number 10.868. Agriculture. program is in place. Dates. All applications must be Departmental regulations. The Estimate of Burden: Public reporting completed and received in the regulations of the Department of burden for this collection of information appropriate United States Department of Agriculture’s Office of Chief Financial is estimated to average 1.4 hours per Agriculture (USDA) State Rural Officer (or successor office) as codified response. Development Office no later than 4:30 in 7 CFR parts 3000 through 3099, Respondents: Agricultural producers p.m. local time July 31, 2009. including but not necessarily limited to and rural small businesses. Applications received after 4:30 p.m. 7 CFR parts 3015 through 3019, 7 CFR Estimated Number of Respondents: local time July 31, 2009, regardless of part 3021, and 7 CFR part 3052, and 354. the application’s postmark, will be successor regulations to these parts. Estimated Number of Responses per returned to the applicant with no action. EEI. Energy efficiency improvement. Respondent: 9.6. Availability of Notice. This Notice is Energy efficiency hydropower Estimated Number of Responses: available on the USDA Rural projects. Projects that improve the 3,395. Development Web site at http:// efficiency of an existing hydropower Estimated Total Annual Burden www.rurdev.usda.gov/rbs/busp/ system, such as replacement equipment. (hours) on Respondents: 4,701. 9006grant.htm. Hydropower. Energy created by use of Copies of this information collection Notice Structure. Submission various types of moving water may be obtained from Cheryl information specific to renewable including, but not limited to, ocean Thompson, Regulations and Paperwork energy system projects and energy movement (tidal, wave, current, or Management Branch, at (202) 692–0043. efficiency improvement projects is thermal changes); diverted run-of-river found in Section IV and submission water; in-stream run-of-river water; in- Comments information specific to renewable conduit water; or geothermally heated Comments are invited on: (a) Whether energy system feasibility study projects surface water. the proposed collection of information is found in Section V. Requirements Public power entity. Is defined using is necessary for the proper performance specified elsewhere in this Notice apply the definition of state utility as defined of the functions of Rural Development, to all projects, unless otherwise stated. in section 217(A)(4) of the Federal including whether the information will Power Act (16 U.S.C. 824q(a)(4)). As of have practical utility; (b) the accuracy of I. Funding Opportunity Description this writing, the definition is a State or Rural Development’s estimate of the A. Purpose. This Notice is issued any political subdivision of a State, or burden of the proposed collection of pursuant to section 9001 of the Food, any agency, authority, or information including the validity of the Conservation, and Energy Act of 2008 instrumentality of any one or more of methodology and assumptions used; (c) (2008 Farm Bill), which amends section the foregoing, or a corporation that is ways to enhance the quality, utility and 9006 of the Farm Security and Rural wholly owned, directly or indirectly, by

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any one or more of the foregoing, II. Funding Information Bradstreet Data Universal Numbering competent to carry on the business of A. Available Funds. The amount of System (DUNS) number, (unless the developing, transmitting, utilizing, or funds available for renewable energy applicant is an individual) which can be distributing power. system feasibility studies in FY 2009 obtained at no cost via a toll-free request Rated power. The amount of energy will be not more than 10 percent of the line at 1–866–705–5711 or online at that can be created at any given time. funds made available under the Rural http://fedgov.dnb.com/webform. Renewable biomass. Energy for America Program. The B. When To Submit (i) Materials, pre-commercial balance of the funds unused for the thinnings, or invasive species from Submit applications to the energy audit and renewable energy appropriate USDA Rural Development National Forest System land and public development assistance grants and the lands (as defined in section 103 of the State Office by July 31, 2009. All feasibility study grants will be available applications must be received at the Federal Land Policy and Management to the renewable energy systems and Act of 1976 (43 U.S.C. 1702)) that: appropriate State Office by 4:30 p.m. energy efficiency improvements projects local time on the deadline date. (A) Are byproducts of preventive under this program in FY 2009. treatments that are removed to reduce B. Number of awards. The number of C. Where To Submit hazardous fuels; to reduce or contain awards will depend on the number of All applications are to be submitted to disease or insect infestation; or to eligible applicants participating in this restore ecosystem health; the Rural Development Rural Energy program. Coordinator in the State in which the (B) would not otherwise be used for C. Grant Funding Limitations. For the higher-value products; and applicant’s proposed project is located. purposes of this Notice, the maximum A list of Rural Development Rural (C) are harvested in accordance with amount of grant assistance to one applicable law and land management Energy Coordinators is provided in the individual or entity will not exceed ADDRESSES section of this Notice. plans and the requirements for old- $750,000 for FY 2009 under the Rural growth maintenance, restoration, and Alternatively, for grant applications, Energy for America Program. The applicants may submit grant management direction of paragraphs Agency will not use less than 20 percent (e)(2), (e)(3), and (e)(4) and large-tree applications to the Agency via the of the funds allocated for grants of Grants.gov Web site. retention of paragraph (f) of subsection $20,000 or less and not more than 10 of section 102 of the Healthy Forests percent of funds for grants to conduct D. How To Submit Restoration Act of 2003 (16 U.S.C. renewable energy system feasibility Applicants may submit applications 6512); or studies. as either hard copy or electronically as (ii) Any organic matter that is D. Types of Instrument. Grant, specified in the following paragraphs. available on a renewable or recurring guaranteed loan, and grant/guaranteed When submitting an application as hard basis from non-Federal land or land loan combinations. Only grants are copy, applicants must submit one belonging to an Indian or Indian tribe available to conduct renewable energy original and one copy of the complete that is held in trust by the United States system feasibility studies. application. or subject to a restriction against (1) Grant applications. Grant alienation imposed by the United States, III. Application Submission Information applications may be submitted either as including: hard copy to the appropriate Rural (A) Renewable plant material, Applicants seeking to participate in Development Rural Energy Coordinator including feed grains; other agricultural this program must submit applications or electronically using the government- commodities; other plants and trees; in accordance with this Notice and 7 wide Grants.gov Web site. Users of and algae; and CFR part 4280, subpart B, as applicable. Grants.gov who download a copy of the (B) Waste material, including crop Applicants must submit complete application package may complete it off residue; other vegetative waste material applications in order to be considered. line and then upload and submit the (including wood waste and wood Note that for the Agency to consider an application via the Grants.gov site, residues); animal waste and byproducts application, the application must including all information typically (including fats, oils, greases, and include all environmental review included on the application, and all manure); and food waste and yard documents with supporting necessary assurances and certifications. waste. documentation in accordance with 7 After electronically submitting an Renewable energy. Energy derived CFR part 1940 subpart G. application through the Web site, the from: A. Where To Obtain Applications applicant will receive an automated (i) A wind, solar, renewable biomass, acknowledgement from Grants.gov that ocean (including tidal, wave, current, Applicants may obtain applications contains a Grants.gov tracking number. and thermal), geothermal or from applicable Rural Development (2) Guaranteed loan applications. hydroelectric source; or Rural Energy Coordinator, as provided Guaranteed loan only applications (i.e., (ii) Hydrogen derived from renewable in the ADDRESSES section of this Notice. those that are not part of a guaranteed biomass or water using wind, solar, In addition, for grant applications, loan/grant combination request) must be ocean (including tidal, wave, current, applicants may access the electronic submitted as hard copy. and thermal), geothermal or grant application for the Rural Energy (3) Guaranteed loan/grant hydroelectric energy sources. for America Program at http:// combination applications. Applications Renewable energy hydropower www.Grants.gov. To locate the for guaranteed loans/grants project. A new energy generation project downloadable application package for (combination applications) must be that uses moving water as the feedstock this program, the applicant must use the submitted as hard copy. equivalent. program’s CFDA Number (i.e., 10.868) RES. Renewable energy system. or FedGrants Funding Opportunity F. Other Submission Requirements and Small hydropower. A hydropower Number, which can be found at http:// Information project for which the rated power of the www.Grants.gov. To use Grants.gov, all (1) Application restrictions. system is 30 megawatts or less. applicants must have a Dun and Applications submitted under this

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Notice are subject to the following (v) The estimated period of time for ‘‘pre-commercial’’ and ‘‘commercial’’ restrictions: the energy savings generated by the are at 7 CFR 4280.103. The Agency’s (i) Applicants can apply for only one activity to equal the cost of the activity; position is that if the system is currently renewable energy system project, one and commercially available only outside the energy efficiency improvement project, (vi) The expected energy efficiency of United States (U.S.), then applicants and one renewable energy system the renewable energy system. must provide authoritative evidence of the foreign operating history, feasibility study project under this G. Hydropower Eligibility Notice. A renewable energy system performance, and reliability in order to application cannot be submitted in For the purposes of this Notice, only address the proven operating history FY2009 if a feasibility study grant hydropower projects with a rated power identified in the definition. application has been submitted in of 30 megawatts or less are eligible. The ‘‘Commercial’’ applicants must provide FY2009 for the same renewable energy Agency refers to these hydropower evidence that professional service system project. sources as ‘‘small hydropower,’’ which providers, trades, large construction (ii) Technical reviews of complete includes hydropower projects equipment providers and labor are applications are conducted on a rolling commonly referred to as ‘‘micro- readily available domestically and basis. Once the technical review of a hydropower’’ and ‘‘mini-hydropower.’’ familiar with installation procedures and practices, and spare parts and complete application has been IV. Program Provisions Specific to service are readily available in the U.S. completed, the applicant will not be Renewable Energy Systems and Energy to properly maintain and operate the allowed to modify or resubmit the Efficiency Improvements application. system. All warranties must be valid in (2) Eligibility considerations. This section of the notice identifies the U.S. Eligibility is limited to projects that what information renewable energy (4) Commercial application have completed the environmental system and energy efficiency demonstration of precommercial review process according to 7 CFR improvement (RES/EEI) applications are technologies. In accordance with the 4280.114(d); demonstrated project to contain, funding limitations, and definition of ‘‘pre-commercial’’ eligibility according to 7 CFR 4280.108; other submission requirements and technology found in 7 CFR 4280.103, except for renewable energy feasibility award information. Except as provided technical and economic potential for studies, demonstrated technical in this Notice, RES/EEI applications are commercial application must be feasibility; and are complete will be to follow the provisions specified in 7 demonstrated to the Agency. In order to eligible for funding consideration. CFR 4280, subpart B. demonstrate the system has emerged through research and development as (3) Grants.gov. When you enter the A. Project Eligibility well as the demonstration process, Grants.gov site, you will find In addition to the project eligibility applicants must provide authoritative information about submitting an requirements specified in § 4280.108, no evidence of the operating history, application electronically through the renewable energy system or energy performance, and reliability past site as well as the hours of operation. efficiency improvement, or portion completion of start-up, shake-down, and USDA Rural Development strongly thereof, can be used for any residential commissioning. Typically, and in line recommends that applicants do not wait purpose, including any residential with financial and operating until the application deadline date to portion of a rural small business, farm, performance evaluation protocol, the begin the application process through ranch, or agricultural facility. However, documented operating history, which Grants.gov. an applicant may apply for funding for may be established domestically or (4) Original signatures. USDA Rural the installation of a second meter or outside the U.S., should provide Development may request that the provide certification in the application performance data for a minimum of 12 applicant provide original signatures on that any excess power generated by the months. The time period will address forms submitted through Grants.gov at a renewable energy system will be sold to the economic and technical later date. the grid and will not be used by the performance potential of the pre- (5) Intergovernmental review. The applicant for residential purposes. commercial technology, as defined in 7 Rural Energy for America Program is CFR 4280.103. Lastly, in accordance subject to the provisions of Executive B. Applications with demonstrating the potential for Order 12372, which requires In addition to the requirements found commercial application, applicants intergovernmental consultation with in 7 CFR part 4280, subpart B, the must provide evidence that professional State and local officials. following also applies to RES/EEI service providers, trades, large (6) Award considerations. For applications submitted under this construction equipment providers, and renewable energy systems and energy Notice. labor are potentially available efficiency improvements, in (1) One funding type applications. domestically and sufficiently familiar determining the amount of a loan Only one type of funding application with installation procedures and guarantee or grant provided, the Agency (grant-only, guaranteed loan-only, or practices, and spare parts and service shall take into consideration the guaranteed loan/grant combination) for are available in the U.S. to properly following six criteria: each project can be submitted. maintain and operate the system. Any (i) The type of renewable energy (2) Environmental information. Each warranties would have to be valid in the system to be purchased; application must include all U.S. (ii) The estimated quantity of energy environmental review documents with (5) Format. To ensure that projects are to be generated by the renewable energy supporting documentation in accurately scored by the Agency, system; accordance with 7 CFR part 1940 applicants are requested to tab and (iii) The expected environmental subpart G. number each evaluation criteria and benefits of the renewable energy system; (3) Foreign technology. As stated in 7 include, in that section, its (iv) The quantity of energy savings CFR 4280.108, projects must be for a corresponding supporting expected to be derived from the activity, pre-commercial or commercially documentation and calculations as demonstrated by an energy audit; available technology. The definition of according to 7 CFR 4280.112.

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(6) Technical report appendices. (4) Combination applications. To A. Existing Regulations Technical reports for hydropower ensure equitable competition and high Applicants submitting applications projects shall conform to Appendix A of quality projects, the grant portion of a for feasibility studies are subject to the this Notice. Technical reports for other combination application must score at provisions of this Notice and to the renewable energy projects shall least 20 points for technical merit. Only grant provisions of 7 CFR part 4280, continue to conform to Appendix A or those combination packages that score a subpart B, as may be modified under B, as applicable, to 7 CFR part 4280, sufficient amount of technical merit this section of this Notice. subpart B. points will be considered for funding. Applicants whose combination B. Specific Requirements for This Notice D. Funding Limitations applications are approved for funding As noted in the previous paragraph, (1) Grant-only applications. For must accept and utilize both the loan the grant provisions of 7 CFR part 4280, renewable energy system grants, the and the grant. subpart B, apply to applicants and their (5) Grant-only applications of $20,000 minimum grant is $2,500 and the applications submitted under this or less. As directed by statute, the maximum is $500,000. For energy Notice except as modified in this Agency will use not less than 20 percent efficiency improvement grants, the section of this Notice. of the funds allocated to the Rural minimum grant is $1,500 and the (1) Applicant eligibility. In order to be Energy for America Program for grants maximum grant is $250,000. eligible for a feasibility study grant of $20,000 or less. The Agency will (2) Loan guarantee-only applications. under this Notice, the applicant must: establish a reserve at the National Office For loan guarantees, the minimum (i) be a rural small business or and States with grant-only requests of guaranteed loan amount is $5,000 and agricultural producer as defined in $20,000 or less may request funds from the maximum amount of a guarantee to § 4280.103, and the reserve. be provided to a borrower is $25 (ii) meet the eligibility criteria of million. The maximum loan guarantee (6) Change of contractor or vendor. After an award has been made, the § 4280.107. for a guaranteed loan in excess of $10 (2) Project eligibility. Feasibility million is 60%. For FY 2009, the recipient of the award can request to change a contractor or vendor if the studies must be for a renewable energy guarantee fee amount is 1 percent of the system that: guaranteed portion of the loan and the technical merit score for the project remains the same or is higher. Prior to (i) is for the purchase, installation, annual renewal fee is 0.250 percent expansion, or other energy-related (one-quarter of one percent) of the changing a contractor or vendor, the recipient must submit to the Agency a improvement of a renewable energy guaranteed portion of the loan. written request providing information system; (3) Guaranteed loan and grant that allows the Agency to rescore the (ii) is located in a rural area; and combination applications. Funding for project’s technical merit. If the Agency (iii) is for technology that is pre- grant and loan combination packages determines that the project achieves the commercial or commercially available, are subject to the funding limitations same or higher technical merit score, the and that is replicable. specified in paragraphs (1) and (2) of recipient may make the change. No (3) Grant funding. The maximum this section. For grant and loan additional funding will be available amount for a feasibility study grant combination packages, the minimum from the Agency if costs for the project under this Notice is $50,000 or 25 grant portion of the combined funding have increased. If the Agency percent of the eligible project cost (as request is $1,500 for energy efficiency determines that the project does not described below) of the study, improvement projects and $2,500 for achieve the same or higher technical whichever is less. The grantee will have renewable energy system projects. All merit score, the change will not be 2 years from the date of the grant grant and loan combination packages approved. agreement to provide the Agency with a will be funded from the same allocation (7) Intergovernmental review. If State complete and acceptable feasibility as loan guarantees. or local governments raise objections to study and to request disbursement of E. Award Process a proposed project under the the funds as described in Section V(12) intergovernmental review process that of this notice. If the grantee does not In addition to the process for are not resolved within 90 days of the submit to the Agency a complete and awarding funding under 7 CFR part Agency’s selection of the application, acceptable feasibility study within this 4280, subpart B, the Agency will make the Agency will rescind the selection 2 year period, the grant is subject to awards using the following and will provide the applicant with a termination by and reimbursement to considerations: written notice to that effect. the Agency according to 7 CFR 3015. (1) Scoring criteria. In addition to the (4) Eligible project costs. Only those criteria specified in § 4280.112(e), the V. Program Provisions for Renewable costs incurred after the application date Agency will award 10 points to grant- Energy Feasibility Study Grants specific to the development of the only applications requesting $20,000 or Under 7 CFR part 4280, subpart B, feasibility study (refer to Appendix B for less. certain renewable energy system project further information on the content of a (2) Technical review. Every RES/EEI applications must include a business feasibility study) will be considered by application will receive a technical level feasibility study (see the Agency in determining the size of review. No RES/EEI application will § 4280.111(b)(8)). Such feasibility the grant. receive more than one technical review. studies are now an eligible purpose (5) Application restrictions. (3) Demonstrated financial need. As under the Rural Energy for America Feasibility study applications: required in §§ 4280.108(a)(5), Program for which a grant may be (i) can only be submitted as a stand- 4280.109(b)(2), and 4280.193(a), the awarded. This section of the Notice alone grant application; applicant for a grant or combination identifies the procedures the Agency (ii) cannot be submitted for a guaranteed loan and grant must will use to process and select such renewable energy system project for demonstrate financial need. Only those feasibility study applications, award which a feasibility study has been packages that demonstrate financial grants, and administer such financial conducted or funded under any Federal need will be considered for funding. assistance. or State program;

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(iii) can be submitted for a Voluntarily providing tax returns is one appeal rights. No further evaluation of modification to an existing renewable means of satisfying this requirement. the application will occur. energy system (e.g., for the expansion The information provided must be (iii) Incomplete applications. If the portion of an existing windmill farm); sufficient for the Agency to make a application is incomplete, the Agency and determination of business size as will return it to the applicant. The (iv) cannot be submitted in FY 2009 defined by SBA. Agency will identify those parts of the for a RES project if an RES application (2) If the applicant is an agricultural application that are incomplete. The for the same renewable energy system is producer, provide the gross market applicant may resubmit the application, submitted in FY 2009 and vice versa. value of the agricultural products, gross as long as it is received prior to the July (6) Applications. An original and one agricultural income, and gross nonfarm 31, 2009, deadline date. complete copy of each application are income of the applicant for the calendar (8) Scoring applications. The Agency required that follow the outline below. year preceding the year in which the will assign a score to each eligible Each application must include a Table application is submitted; and application as follows: of Contents with clear pagination and (G) any Intergovernmental review (i) Energy replacement or generation. chapter identification and the following: comments from the State Single Point of The project can be for either (i) Form SF 424, Application for Contact, or evidence that the State has replacement or generation, but not both. Federal Assistance; elected not to review the program under A maximum of 25 points can be (ii) Form SF–424B, Assurances—Non- Executive Order 12372; and awarded under this section. Construction Programs; (H) A certification that the applicant (A) Energy replacement. 25 points (iii) If an entity, one copy of the has not received any other Federal or will be awarded if proposed project will applicant’s organizational documents; State assistance for a feasibility study offset a portion or all of the applicants and for the subject renewable energy system. energy needs. (iv) A proposed work plan, which (7) Evaluation of applications. (B) Energy generation. 15 points will includes: be awarded if the proposed renewable (A) a brief description of the proposed Feasibility study applications submitted under this Notice will be evaluated by energy system is intended primarily for system the feasibility study will production of energy for sale. evaluate; the applicable Rural Energy Coordinator for eligibility, completeness, and (ii) Commitment of funds for the (B) a description of the feasibility feasibility study. Other federal or state study to be conducted. An acceptable scoring. (i) General review. The Agency will assistance for only the feasibility study feasibility study is outlined in would make the request ineligible. Appendix B to this Notice. Applicants evaluate each application and make a determination as to whether the Appropriate documentation must verify must require those conducting the commitment. A maximum of 10 points feasibility study to consider and applicant is eligible, the proposed grant is for an eligible feasibility study, and can be awarded under this section. document within the feasibility study (A) 10 points—100% of matching the proposed grant complies with all the important environmental factors funds. applicable statutes and regulations. within the planning area and the (B) 7.5 points—75% up to, but not potential environmental impacts of the (A) Applicant eligibility. The Agency including 100% of matching funds. project for which the feasibility study is will first determine whether the entity (C) 5 points—50% up to, but not being conducted, as well as the is eligible to compete for a feasibility including 75% of matching funds. alternatives considered. study grant. Applications for applicants (D) 0 points—less than 50% of (C) the timeframe for completion of determined by the Agency not to be matching funds. the feasibility study; eligible will not be processed further. (iii) Designation as a small (D) the experience of the company/ The Agency will determine applicant agricultural producer/very small individual completing the feasibility eligibility based on the criteria specified business. An applicant will be study, including the number of similar in this section. considered either an agricultural projects the company/individual has (B) Proposal eligibility. After producer or rural small business. No performed, the number of years the determining applicant eligibility, the applicant will be considered as both. company has been performing a similar Agency will review the application to Points will only be awarded under service, and corresponding resumes; determine if the proposal is eligible. either paragraph (iii)(A) or (iii)(B). A (E) the source and amount of other Applications determined by the Agency maximum of 20 points can be awarded project funds needs to be clearly not to be eligible will not be processed under this section. identified. Agency approved written further. The Agency will determine (A) For an Agricultural Producer: documentation/confirmation from any whether the application contains (1) 10 points will be awarded if the third party committing a specific certification by the applicant that the applicant is an agricultural producer amount of such funds is required. applicant has neither sought nor producing agricultural products with a Documentation includes such items as received any other Federal or State gross market value of less than $600,000 bank statements, lender commitment assistance for a feasibility study on the in the preceding year, or letters, and so forth; subject facility. If the application does (2) 20 points will be awarded if the (F) sufficient financial information to not contain such certification, it is an applicant is an agricultural producer allow the Agency to determine the ineligible application and the Agency producing agricultural products with a applicant’s size. All information will stop processing the application. If gross market value of less than $200,000 submitted under this paragraph must be the application contains such in the preceding year. substantiated by authoritative records. certification, the Agency will continue (B) For a Rural Small Business, 20 (1) If the applicant is a rural small processing it. points will be awarded if the applicant business, provide sufficient information (ii) Ineligible applicants and is a very small business, as defined in to determine its total annual receipts applications. If either the applicant or § 4280.103. and number of employees and the same the application is ineligible, the Agency (iv) Experience and qualifications of information for any parent, subsidiary, will inform the applicant in writing of the entity identified to perform the or affiliates at other locations. the decision, reasons therefore, and any feasibility study. A maximum of 15

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points can be awarded under this lower amount. The Agency will notify, Intent to Meet Conditions,’’ to the section. in writing, applicants whose Agency; or if certain conditions cannot (A) 15 points will be awarded if the applications have been selected for be met, the applicant may propose entity has 5 or more years experience in funding. alternate conditions to the Agency. The the field of study for the technology (iii) Disposition of ranked Agency must concur with any changes field being proposed. applications not funded. Based on the proposed to the letter of conditions by (B) 7.5 points will be awarded if the availability of funding, a ranked the applicant before the application will entity has 2 or more years, but less than application may not be funded in the be further processed. 5 years, experience in the field of study fiscal year in which it was submitted. (iii) Grant agreement, forms, and for the technology field being proposed. Such ranked applications will not be certifications. Prior to grant approval, (C) 0 points will be awarded if the carried forward into the next fiscal year the applicant must complete, sign, and entity has less than 2 years experience and the Agency will notify the applicant return a grant agreement, which is in the field of study for the technology in writing. attached to this notice as Appendix C. field being proposed. (10) Actions prior to grant closing. In addition, the following forms and (v) Size of feasibility study grant (i) Environmental. If construction is a certifications must be submitted prior to request. A maximum of 20 points can be component of the study, the appropriate grant approval: awarded under this section. level of environmental assessment must (A) Certification that the feasibility (A) 20 points will be awarded if the be completed prior to the obligation of study grant will be for a renewable feasibility study request is $10,000 or funds. All feasibility study grants made energy system project that is located in less. under this Notice are subject to the a rural area; requirements of subpart G of part 1940 (B) 10 points will be awarded if the (B) Form AD–1047, ‘‘Certification of this title. When construction is not a feasibility study request is more than Regarding Debarment, Suspension, and component of the study, feasibility $10,000 up to $25,000. Other Responsibility Matters—Primary (C) 0 points will be awarded if the studies are considered planning Covered Transactions;’’ feasibility study request is greater than assistance, which are categorically (C) Form AD–1048, ‘‘Certification $25,000. excluded from the environmental Regarding Debarment, Suspension, (vi) Resources to implement project. review process by § 1940.333 of this Ineligibility and Voluntary Exclusion— Considering the technology being title. proposed, the applicant may qualify for (ii) Changes in project cost or scope. Lower Tier Covered Transactions,’’ other local or State Programs to assist in If there is a significant reduction in including certification from any person the construction, or operation of the project cost or changes in project scope, or entity you do business with as a facility. These programs will benefit the the applicant’s funding needs, result of this government assistance that applicant and/or proposed project eligibility, and scoring, as applicable, they are not debarred or suspended from during or after the facility is constructed will be reassessed. Decreases in Agency government assistance; and operational. A maximum of 10 funds will be based on revised project (D) Form AD–1049, ‘‘Certification points can be awarded under this costs and other selection factors; Regarding Drug-Free Workplace section. however, other factors, including Requirements (Grants) Alternative I— (A) 5 points will be awarded if the Agency regulations used at the time of For Grantees Other Than Individuals;’’ applicant has identified local programs. grant approval, will remain the same. (E) Form SF–LLL, ‘‘Disclosure Form (B) 5 points will be awarded if the Obligated grant funds not needed to to Report Lobbying’’ or Exhibit A–1 of applicant has identified State programs. complete the project will be de- RD Instruction 1940–Q, ‘‘Certification (9) Award Process. The Agency will obligated. for Contracts, Grants, and Loans;’’ and use the following process to determine (iii) Evidence of other funds. (F) Form RD 400–4, ‘‘Assurance which grants receive funding under this Applicants expecting funds from other Agreement.’’ Notice. sources for use in completing projects (iv) Grant approval. Form RD 1940–1 (i) Ranking of applications. All scored being partially financed with Agency must be signed by the applicant. applications will be ranked by the funds will present evidence of the (A) The applicant will be sent a copy Agency as soon after the application commitment of these funds from such of the executed Form RD 1940–1, the deadline as possible. All applications other sources. approved scope of work, and a grant that are ranked will be considered for (11) Approval Process. agreement (see Appendix C to this selection for funding. (i) Letter of conditions. The Agency Notice). The grant will be considered (ii) Selection of applications for will notify the approved applicant in closed on the obligation date. funding. Applications will be selected writing, setting out the conditions under (B) The grantee must abide by all based on their rank in accordance with which the grant will be made. The requirements contained in the Grant their scores. If, after the majority of notice will include those matters Agreement, this Notice, and any other applications have been funded, necessary to ensure that the proposed applicable Federal statutes or insufficient funds remain to fund the grant is completed in accordance with regulations. Failure to follow the next highest scoring application, the the terms of the scope of work and requirements may result in termination Agency may elect to fund a lower budget, that grant funds are expended of the grant and adoption of other scoring application. Before this occurs, for the feasibility study, and that the available remedies. the Agency will provide the applicant of applicable requirements prescribed in (12) Fund disbursement. Grant funds the higher scoring application the the relevant Department regulations are will be expended on a pro rata basis opportunity to reduce the amount of its complied with. The Letter of Conditions with matching funds. grant request to the amount of funds will be sent to the applicant. (i) Requests for reimbursement may be available. If the applicant agrees to (ii) Letter of Intent to Meet Conditions. submitted monthly or more frequently if lower its grant request, it must certify Upon reviewing the conditions and authorized to do so by the Agency. that the purposes of the project can be requirements in the letter of conditions, Ordinarily, payment will be made met, and the Agency must determine the the applicant must complete, sign and within 30 days after receipt of a proper project is financially feasible at the return a Form RD 1942–46, ‘‘Letter of request for reimbursement.

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(ii) The grantee shall not request Report must be submitted to the Agency (16) Grant servicing. Grants will be reimbursement for the Federal share of within 90 days after the feasibility study serviced in accordance with amounts withheld from contractors to has been completed. Departmental regulations and 7 CFR ensure satisfactory completion of work (iii) Performance reports. Grantees part 1951, subparts E and O. Grantees until after it makes those payments. must submit to the Agency, in writing, will permit periodic inspection of the (iii) Payment shall be made by semiannual performance reports and a project records and operations by a electronic funds transfer. final performance report. Grantees are to representative of the Agency. All non- (iv) Standard Form 270, ‘‘Request for submit an original of each report to the confidential information resulting from Advance or Reimbursement,’’ or other Agency. the grantee’s activities shall be made format prescribed by the Agency shall (A) Semiannual performance reports. available to the general public on an be used to request grant Each semiannual performance report equal basis. reimbursements. shall describe current progress and (17) Programmatic changes. The (v) For renewable energy system identify any problems, delays, or Grantee shall obtain prior Agency feasibility studies, grant funds will be adverse conditions, if any, which have approval for any change to the scope or disbursed in accordance with the above affected or will affect attainment of objectives of the approved project. through 90 percent of grant overall project objectives or prevent Failure to obtain prior approval of disbursement. The final 10 percent of meeting time frame for completion of changes to the scope of work or budget grant funds will be held by the Agency the feasibility study within two years. may result in suspension, termination, until a feasibility study acceptable to the This disclosure shall be accompanied by and recovery of grant funds. Agency has been submitted. a statement of the action taken or (18) Transfer of obligations. Subject to (13) Deobligation of grant funds. planned to resolve the situation. Agency approval, an obligation of funds Funds remaining after all costs incident (B) Final performance report. A final established for a grantee may be to the project have been paid or transferred to a different (substituted) provided for are subject to deobligation. performance report, which will serve as the last semiannual performance report, grantee provided: (14) Monitoring and reporting project (i) The substituted grantee will be required within 90 days after the performance. (A) is eligible; (i) Monitoring of project. Grantees are feasibility study has been completed. (B) has a close and genuine responsible for ensuring all activities are The final performance report shall relationship with the original grantee; performed within the approved scope of summarize any problems, delays, or and work and that funds are only used for adverse conditions, if any, which have (C) has the authority to receive the approved purposes. Grantees shall affected the project objectives or assistance approved for the original constantly monitor performance to prevented meeting time frames for grantee; and ensure that time schedules are being completion of the feasibility study. The (ii) The type of renewable energy met, projected work by time periods is final performance report should indicate technology and the scope of the project being accomplished, financial resources if the grantee intends to proceed with for which the Agency funds will be used appropriately expended by contractors the construction of the project. remain unchanged. (if applicable), and any other (iv) Final deliverables. Upon (19) Grant closeout and related performance objectives identified in the completion of the feasibility study, the activities. In addition to the scope of work are being achieved. To grantee shall submit the following to the requirements specified in the the extent resources are available, the Agency: Departmental regulations, failure to Agency will monitor grantees to ensure (A) the project feasibility study; and submit satisfactory reports on time that activities are performed in (B) SF–270, ‘‘Request for Advance or under the provisions of the Monitoring accordance with the Agency-approved Reimbursement.’’ and Reporting Project Performance scope of work and to ensure that funds (v) Reports required after feasibility requirements of this Notice may result are expended for approved purposes. study completion. Beginning the first in the suspension or termination of a The Agency’s monitoring of Grantees full year after the feasibility study has grant. The provisions of this section neither relieves the Grantee of its been completed, grantees shall report apply to grants and sub-grants. annually for 2 years on the following: responsibilities to ensure that activities VI. Administrative Information (A) Is the renewable energy system are performed within the scope of work Applicable to This Notice approved by the Agency and that funds project for which the feasibility study are expended for approved purposes was conducted underway? If yes, A. Notifications only nor provides recourse or a defense describe how far along the renewable (1) Eligibility. If an applicant is to the Grantee should the Grantee energy system project is (e.g., financing determined by the Agency to be eligible conduct unapproved activities, engage has been secured, site has been secured, for participation, the Agency will notify in unethical conduct, engage in construction contracts are in place, the applicant in writing. If an applicant activities that are or give the appearance project completed). is determined by the Agency to be of a conflict of interest, or expend funds (B) Is the renewable energy system ineligible, the Agency will notify the for unapproved purposes. project complete? If so, what is the applicant, in writing, as to the reason(s) (ii) Financial status reports. A SF– actual amount of energy being the applicant was rejected. Such 269, ‘‘Financial Status Report,’’ and a produced? applicant will have appeal rights as project performance activity report will (vi) Other reports. The Agency may specified in this Notice. be required of all grantees on a request any additional project and/or (2) Award. Each applicant will be semiannual basis. The grantee will performance data for the project for notified of the Agency’s decision on complete the project within the total which grant funds have been received. their application. sums available to it, including the grant, (15) Financial Management System in accordance with the scope of work and Records. Grantees are required to B. Administrative and National Policy and any necessary modifications thereof maintain a financial management Requirements prepared by grantee and approved by system and records in accordance with (1) Review or appeal rights. A person the Agency. The final Financial Status 7 CFR 3015. may seek a review of an Agency

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decision under this Notice from the VIII. Nondiscrimination Statement the application will be approved. The appropriate Agency official that applicant must submit the original technical USDA prohibits discrimination in all report plus one copy to the Rural oversees the program in question or its programs and activities on the basis appeal to the National Appeals Division Development State Office. Hydropower of race, color, national origin, age, projects with total eligible project costs in accordance with 7 CFR part 11 of this disability, and where applicable, sex, greater than $400,000 require the services of title. If the review or appeal involves a marital status, familial status, parental a licensed professional engineer (PE) or team combination funding request, both the status, religion, sexual orientation, of PEs. Depending on the level of engineering lender and borrower must request the genetic information, political beliefs, required for the specific project or if review or appeal. reprisal, or because all or part of an necessary to ensure public safety, the services of a licensed PE or a team of licensed (2) Notification. If at any time prior to individual’s income is derived from any application approval it is decided that PEs may be required for smaller projects. public assistance program. (Not all (a) Qualifications of project team. The favorable action will not be taken on an prohibited bases apply to all programs.) hydropower project team should consist of a application, the Agency will notify the Persons with disabilities who require system designer, a project manager, an applicant in writing of the decision and alternative means for communication of equipment supplier, a project engineer, a of the reasons why the request was not program information (Braille, large construction contractor, and a system favorably considered. The notification print, audiotape, etc.) should contact operator and maintainer. One individual or will inform applicant officials of their USDA’s TARGET Center at (202) 720– entity may serve more than one role. The rights to informal review, mediation, project team must have demonstrated 2600 (voice and TDD). To file a expertise in hydropower development, and appeal of the decision in complaint of discrimination, write to accordance with 7 CFR part 11 and 7 engineering, installation, and maintenance. USDA, Director, Office of Civil Rights, Authoritative evidence that project team CFR part 1900, subpart B. 1400 Independence Avenue, SW., service providers have the necessary C. Exception Authority Washington, DC 20250–9410, or call professional credentials or relevant (800) 795–3272 (voice), or (202) 720– experience to perform the required services Except as specified in paragraphs (1) 6382 (TDD). ‘‘USDA is an equal must be provided. Authoritative evidence through (3) of this section, the opportunity provider, employer, and that vendors of proprietary components can Administrator may make exceptions to lender.’’ provide necessary equipment and spare parts any requirement or provision of this for the system to operate over its design life Notice, if such exception is in the best IX. Civil Rights Compliance must also be provided. The application must: financial interests of the Federal Requirements (1) Discuss the proposed project delivery method. Such methods include a design, bid, Government and is otherwise not in All grants and guaranteed loans made build where a separate engineering firm may conflict with applicable laws. under this Notice are subject to title VI design the project and prepare a request for (1) Applicant eligibility. No exception of the Civil Rights Act of 1964 and part bids and the successful bidder constructs the to applicant eligibility can be made. 1901, subpart E of this title. project at the applicant’s risk, and a design/ build method, often referred to as turnkey, (2) Project eligibility. No exception to Dated: May 18, 2009. where the applicant establishes the project eligibility can be made. William F. Hagy III, (3) Rural area definition. No specifications for the project and secures the Acting Administrator, Rural Business- exception to the definition of rural area services of a developer who will design and Cooperative Service. build the project at the developer’s risk; can be made. (2) Discuss the hydropower equipment Appendix A—Technical Reports for D. Member or Delegate Clause manufacturers of major components being Hydropower Projects considered in terms of the length of time in No member of or delegate to Congress The technical requirements specified in business and the number of units installed at shall receive any share or part of this this appendix apply to all hydropower the capacity and scale being considered; grant or any benefit that may arise projects. Hydropower projects are those (3) Discuss the project manager, equipment therefrom; but this provision shall not projects that create energy from moving supplier, system designer, project engineer, be construed to bar as a contractor water, including, but not necessarily limited and construction contractor qualifications for under the grant a publicly held to, ocean movement (tidal, wave, current, or engineering, designing, and installing hydropower systems, including any relevant corporation whose ownership might thermal changes); diverted run-of-river water; in-stream run-of-river water; in-conduit certifications by recognized organizations. include a member of Congress. water; or geo-thermally heated surface water. Provide a list of the same or similar projects E. Other USDA Regulations The Technical Report for hydropower designed, installed, or supplied and currently projects must demonstrate that the project operating with references, if available; and Feasibility study grants awarded design, procurement, installation, startup, (4) Describe the system operator’s under this Notice are subject to the operation, and maintenance of the renewable qualifications and experience for servicing, provisions of the Department energy system will operate or perform as operating, and maintaining hydropower regulations, as applicable, which are specified over its design life in a reliable and projects. Provide a list of the same or similar incorporated by reference herein. a cost-effective manner. The Technical projects designed, installed, or supplied and Report must also identify all necessary currently operating with references, if VII. Agency Contacts project agreements, demonstrate that those available. agreements will be in place, and that (b) Agreements, permits, and certifications. Notice Contact. For further necessary project equipment and services are Identify all necessary agreements and permits information about this Notice, please available over the design life. required for the project and the status and contact the USDA Rural Development- All technical information provided must schedule for securing those agreements and Energy Division, Program Branch, STOP follow the format specified in this appendix. permits, including the items specified in 3225, Room 6867, 1400 Independence Supporting information may be submitted in paragraphs (b)(1) through (6). Avenue, SW., Washington, DC 20250– other formats. Design drawings and process (1) Identify zoning and code issues and 3225. Telephone: (202) 720–1400. flowcharts are encouraged as exhibits. A required permits and the anticipated discussion of each topic is not necessary if schedule for meeting those requirements and For assistance on this Notice, please the topic is not applicable to the specific securing those permits. This list should contact one of Rural Development’s project. Questions identified in the Agency’s include all local, state, and federal permits Rural Energy Coordinators, as provided technical review of the project must be required, estimated timeline for each permit in the ADDRESSES section of this Notice. answered to the Agency’s satisfaction before and current status of acquiring each permit.

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(2) Identify land use agreements required emphasis on land use, air quality, water the applicant certifying that equipment for the project and the anticipated schedule quality, habitat fragmentation, visibility, installation will be made in accordance with for securing the agreements and the term of noise, construction, and installation issues. all applicable safety and work rules. those agreements. Identify any unique construction and (i) Operations and maintenance. Identify (3) Identify available component installation issues. the operations and maintenance warranties for the specific project location (e) Project development schedule. Identify requirements of the system necessary for the and size. each significant task, its beginning and end, system to operate as designed over the design (4) For systems planning to interconnect and its relationship to the time needed to life. The application must: with a utility, describe the utility’s system initiate and carry the project through startup (1) Ensure that systems must have at least interconnection requirements, power and shakedown. Provide a detailed a 3-year warranty for equipment. Provide purchase arrangements, or licenses where description of the project timeline, including information regarding turbine warranties and required and the anticipated schedule for resource assessment, system and site design, availability of spare parts; meeting those requirements and obtaining permits and agreements, equipment (2) Describe the routine operations and those agreements. procurement, and system installation from maintenance requirements of the proposed (5) Identify all environmental issues, excavation through startup and shakedown. project, including maintenance schedules for including environmental compliance issues, (f) Project economic assessment. Provide a the mechanical and electrical systems and associated with the project on Form RD study that describes the costs and revenues system monitoring and control requirements; 1940–20, ‘‘Request for Environmental of the proposed project to demonstrate the (3) Provide information that supports Information,’’ and in compliance with 7 CFR financial performance of the proposed expected design life of the system and timing part 1940, subpart G, of this title. (Note: The project. Provide a detailed analysis and of major component replacement or rebuilds; environmental review process, including all description of project costs, including project (4) Provide and discuss the risk required publications must be completed management, resource assessment, project management plan for handling large, prior to approval of any Rural Development design, project permitting, land agreements, potential failures of major components such funding.) The applicant may want to work equipment, site preparation, system as the turbine gearbox or rotor. Include in the with all federal organizations involved with installation, startup and shakedown, discussion, costs and labor associated with the project, to promulgate a single warranties, insurance, financing, professional the operation and maintenance of the system, environmental review document. services, and operations and maintenance and plans for in-sourcing or out-sourcing; (6) Submit a statement certifying that the costs. Provide a detailed description of (5) Describe opportunities for technology project will be installed in accordance with applicable investment incentives, transfer for long-term project operations and applicable local, State, and national codes, productivity incentives, loans, and grants. maintenance by a local entity or owner/ regulations, and permits. Provide a detailed analysis and description of operator; and (c) Resource assessment. Provide adequate annual project revenues, including electricity (6) For owner maintained portions of the and appropriate data to demonstrate the sales, production tax credits, revenues from system, describe any unique knowledge, amount of renewable resource available. green tags, and any other production skills, or abilities needed for service Indicate the quality of the resource, including incentive programs throughout the life of the operations or maintenance. temperature (if applicable), flow, and project. Provide a description of planned (j) Dismantling and disposal of project sustainability of the resource, including a contingency fees or reserve funds to be used components. Describe a plan for dismantling summary of the resource evaluation process for unexpected large component replacement and disposing of project components and and the specifications of the measurement or repairs and for low productivity periods. associated wastes at the end of their useful setup and the date and duration of the In addition, provide other information lives. Describe the budget for and any unique evaluation process and proximity to the necessary to assess the project’s cost concerns associated with the dismantling and proposed site. If less than 1 year of data is effectiveness. disposal of project components and their used, a qualified consultant must provide a (g) Equipment procurement. Demonstrate wastes. detailed analysis of the correlation between that equipment required by the system is Appendix B—Renewable Energy the site data and a nearby, long-term available and can be procured and delivered System Feasibility Study measurement site. within the proposed project development (d) Design and engineering. Provide schedule. Hydropower systems may be Elements in an acceptable feasibility study authoritative evidence that the system will be constructed of components manufactured in include, but are not necessarily limited to, designed and engineered so as to meet its more than one location. Provide a description the following elements: intended purpose, will ensure public safety, of any unique equipment procurement issues • Executive Summary and will comply with applicable laws, such as scheduling and timing of component • Economic Feasibility regulations, agreements, permits, codes, and manufacture and delivery, ordering, • Market Feasibility standards. Projects shall be engineered by a warranties, shipping, receiving, and on-site • Technical Feasibility (including the qualified party. Systems must be engineered storage or inventory. Provide a detailed appropriate technical report) as a complete, integrated system with description of equipment certification. • Financial Feasibility matched components. The engineering must Identify all the major equipment that is • Management Feasibility be comprehensive, including site selection, proprietary and justify how this unique • Qualifications system and component selection, conversion equipment is needed to meet the As noted above, both a technical report for system component and selection, design of requirements of the proposed design. Include the project and an economic analysis of the the local collection grid, interconnection a statement from the applicant certifying that project are required as part of the feasibility equipment selection, and system monitoring ‘‘open and free’’ competition will be used for study. The technical report to be provided equipment. Systems must be constructed by the procurement of project components in a must conform to that required under 7 CFR a qualified party. manner consistent with the requirements of part 4280, as applicable or, if the renewable (1) Provide a concise but complete 7 CFR part 3015 of this title. energy system is a hydropower project, under description of the hydropower project, (h) Equipment installation. Describe fully this notice. The following paragraphs including location of the project, resource the management of and plan for site describe the contents that each of section that characteristics, system specifications, electric development and system installation, the feasibility study must contain, as power system interconnection equipment provide details regarding the scheduling of applicable. and project monitoring equipment. Identify major installation equipment, including Executive Summary. Provide an possible vendors and models of major system cranes, barges or other devices, needed for introduction and overview of the project. In components. Provide the expected system project construction, and provide a the overview, describe the nature and scope energy production on a monthly and annual description of the startup and shakedown of the proposed project, including purpose, basis. specifications and process and the conditions project location, design features, capacity, (2) Describe the project site and address required for startup and shakedown for each and estimated total capital cost. Include a issues such as site access, proximity to the equipment item individually and for the summary of each of the elements of the electrical grid, environmental concerns with system as a whole. Include a statement from feasibility study, including:

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• Economic feasibility determinations. accuracy of these estimates and the program published in the Federal Register, • Market feasibility determinations. assumptions on which these estimates have and other applicable statutory provisions. • Technical feasibility determinations. been based. Any application submitted by the Grantee • Financial feasibility determinations. Discuss all risks related to construction of for this grant, including any attachments or • Management feasibility determinations. the project and regulation and governmental amendments, is incorporated and included as In addition, include a section on action as they affect the technical feasibility part of this Agreement. Any changes to these recommendations for implementation of the of the project. documents or this Agreement must be proposed project. Financial Feasibility. Discuss the reliability approved in writing by the Grantor. Economic Feasibility. Provide information of the financial projections and assumptions In addition to any other rights, the Grantor regarding project site; the availability of on which the financial statements are based may terminate the grant in whole, or in part, trained or trainable labor; and the availability including all sources of project capital both at any time before the date of completion, of infrastructure, including utilities, and rail, private and public, such as Federal funds. whenever it is determined that the Grantee air and road service to the site. Discuss Provide three years (minimum) projected has failed to comply with the conditions of feedstock source management, including Balance Sheets and Income Statements and this Agreement. feedstock collection, pre-treatment, cash flow projections for the life of the (2) Use of Grant Funds transportation, and storage, and provide project. Discuss the ability of the business to estimates of feedstock volumes and costs. achieve the projected income and cash flow. Grantee will use grant funds and leveraged Discuss the proposed project’s potential Provide an assessment of the cost accounting funds only for the purposes and activities impacts on existing manufacturing plants or system. Discuss the availability of short-term specified in the application approved by the other facilities that use similar feedstock if credit or other means to meet seasonable Grantor including the approved budget. the proposed technology is adopted. Provide business costs and the adequacy of raw Budget and approved use of funds are as projected impacts of the proposed project on materials and supplies. Provide a sensitivity further described in the Grantor Letter of resource conservation, public health, and the analysis, including feedstock and energy Conditions and amendments or supplements environment. Provide an overall economic costs. Discuss all risks related to the project, thereto. Any uses not provided for in the impact of the project including any borrower financing plan, the operational approved budget must be approved in additional markets created (e.g., for units, and tax issues. writing by the Grantor. agricultural and forestry products and Management Feasibility. Discuss the (3) Civil Rights Compliance agricultural waste material) and potential for continuity and adequacy of management. rural economic development. Provide Identify borrower and/or management’s Grantee will comply with Executive Order feasibility/plans of project to work with previous experience concerning the receipt of 12898, Title VI of the Civil Rights Act of producer associations or cooperatives federal financial assistance, including 1964, and Section 504 of the Rehabilitation including estimated amount of annual amount of funding, date received, purpose, Act of 1973. This shall include collection and feedstock and biofuel and byproduct dollars and outcome. Discuss all risks related to the maintenance of data on the race, sex, from producer associations and cooperatives. borrower as a company (e.g., borrower is at disability, faith based (if applicable) and Market Feasibility. Provide information on the Development-Stage) and conflicts of national origin of the Grantee’s membership/ the sales organization and management. interest, including appearances of conflicts of ownership and employees. These data must be available to the Grantor in its conduct of Discuss the nature and extent of market and interest. Civil Rights Compliance Reviews, which will market area and provide marketing plans for Qualifications. Provide a resume or be conducted prior to grant closing and 3 sale of projected output, including both the statement of qualifications of the author of years later, unless the final disbursement of principle products and the by-products. the feasibility study, including prior grant funds has occurred prior to that date. Discuss the extent of competition including experience. other similar facilities in the market area. (4) Financial Management Systems Provide projected total supply and projected Appendix C—Grant Agreement for A. Grantee will provide a Financial competitive demand of raw materials. Management System in accordance with 7 Describe the procurement plan, including Renewable Energy System Feasibility Studies CFR part 3015, including but not limited to: projected procurement costs and the form of (1) Records that identify adequately the commitment of raw materials (marketing This GRANT AGREEMENT is a contract for source and application of funds for grant- agreements, etc.). Identify commitments from receipt of grant funds to conduct feasibility supported activities. Those records shall customers or brokers for both the principle studies for renewable energy system projects contain information pertaining to grant products and the by-products. Discuss all under the Rural Energy for America program, awards and authorizations, obligations, risks related to the industry, including Title IX, Section 9001 of the Food, unobligated balances, assets, liabilities, industry status. Conservation, and Energy Act of 2008,’’ (Pub. outlays, and income; Technical Feasibility. The technical L. 110–234) between the Grantee and the (2) Effective control over and feasibility report shall be based upon United States of America acting through accountability for all funds, property, and verifiable data and contain sufficient Rural Development, Department of other assets. Grantees shall adequately information and analysis so that a Agriculture (Grantor). All references herein safeguard all such assets and ensure that they determination may be made on the technical to ‘‘Project’’ refer to renewable energy system are used solely for authorized purposes; feasibility of achieving the levels of income feasibility study project identified in the (3) Accounting records prepared in or production that are projected in the work plan submitted with the application. accordance with generally acceptable financial statements. The Project engineer or Should actual project costs be lower than accounting principles (GAAP) or with architect is considered an independent party projected in the work plan, the final amount principles that are generally required by provided neither the principals of the firm of grant may be adjusted. commercial agriculture lenders and nor any individual of the firm who supported by source documentation; and (1) Assurance Agreement participates in the technical feasibility report (4) Grantee tracking of fund usage and has a financial interest in the project. If no Grantee assures the Grantor that Grantee is records that show matching funds and grant other individual or firm with the expertise in compliance with and will comply in the funds are used in equal proportions. The necessary to make such a determination is course of the Agreement with all applicable Grantee will provide verifiable reasonably available to perform the function, laws, regulations, Executive Orders, and documentation regarding matching funds an individual or firm that is not independent other generally applicable requirements, usage, i.e., bank statements or copies of may be used. including those contained in the funding obligations from the matching Identify any constraints or limitations in Departmental regulations as codified in 7 source. the financial projections and any other CFR parts 3000 through 3099, including but B. Grantee will retain financial records, facility or design-related factors that might not necessarily limited to 7 CFR parts 3015 supporting documents, statistical records, affect the success of the enterprise. Identify and successor regulations to these parts, and all other records pertinent to the grant and estimate project operation and which are incorporated into this Agreement for a period of at least 3 years after development costs and specify the level of by reference, any Notices relating to this completion of grant activities, except that the

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records shall be retained beyond the 3-year (7) Fund Disbursement Determination Act of 2000 (Pub. L. 106– period if audit findings have not been Grant funds will be expended on a pro rata 393). resolved or if directed by the United States. basis with matching funds. The Grantor and the Comptroller General of A. Grantee may submit requests for SUMMARY: This notice is published in the United States, or any of their duly reimbursement monthly or more frequently if accordance with section 10(a)(2) of the authorized representatives, shall have access authorized to do so by the Agency. Federal Advisory Committee Act. to any books, documents, papers, and records Ordinarily, Grantor will make payment Meeting notice is hereby given for the of the Grantee which are pertinent to the within 30 days after receipt of a proper grant for the purpose of making audits, Ouachita-Ozark Resource Advisory request for reimbursement. examinations, excerpts, and transcripts. Committee pursuant to Section 205 of B. Grantee shall not request reimbursement the Secure Rural Schools and (5) Procurement for the Federal share of amounts withheld Community Self Determination Act of Grantee will comply with the applicable from contractors to ensure satisfactory 2000, Public Law 106–393. Topics to be procurement requirements of 7 CFR part completion of work until after it makes those payments. discussed include: general information, 3015 regarding standards of conduct, open proposals, updates on current or and free competition, access to contractor C. Payment shall be made by electronic records, and equal employment opportunity funds transfer. completed Title II projects, and next requirements. D. An SF–270, ‘‘Request for Advance or meeting agenda. Reimbursement,’’ must be completed by the DATES: The meeting will be held on June (6) Monitoring and Reporting Grantee and submitted to the Agency at the 30, 2009, beginning at 6 p.m. and A. After grant approval through project completion of the feasibility study. ending at approximately 9 p.m. completion, the Grantee shall: E. Grantor will disburse grant funds to the ADDRESSES: 1. Constantly monitor performance to Grantee in accordance with the above The meeting will be held at ensure that time schedules are being met and through 90 percent of grant disbursement. the Janet Huckabee Arkansas River projected goals by time periods are being Grantor will hold 10 percent of grant funds Valley Nature Center, 8300 Wells Lake accomplished. until Grantee has submitted a feasibility Road, Barling, Arkansas. 2. Submit semiannual performance reports study acceptable to the Grantor. FOR FURTHER INFORMATION CONTACT: to the Grantor. Each report shall describe (8) Use of Remaining Grant Funds Caroline Mitchell, Committee current progress and identify any problems, Coordinator, USDA, Ouachita National Grant funds not expended within 24 delays, or adverse conditions, if any, which Forest, P.O. Box 1270, Hot Springs, AR have affected or will affect attainment of months from date of this agreement after overall project objectives or prevent meeting being used for eligible grant purposes will be 71902. (501–321–5318). time frame for completion of the feasibility cancelled by the Agency. Prior to the actual SUPPLEMENTARY INFORMATION: The study within two years. This disclosure shall cancellation, the Agency will notify, in meeting is open to the public. be accompanied by a statement of the action writing, the Grantee of the Agency’s intent to Committee discussion is limited to taken or planned to resolve the situation. cancel the remaining funds. Forest Service staff, Committee B. Following completion of the feasibility In witness whereof, Grantee has this day members, and elected officials. study, Grantee shall submit to the Grantor: authorized and caused this Agreement to be However, persons who wish to bring 1. The project feasibility study and SF–270, signed in its name and its corporate seal to ‘‘Request for Advance or Reimbursement,’’ be hereunto affixed and attested by its duly matters to the attention of the when the feasibility study has been authorized officers thereunto, and the Committee may file written statements completed; and Grantor has caused this Agreement to be duly with the Committee staff before or after 2. A final SF–269, ‘‘Financial Status executed in its behalf by: the meeting. Individuals wishing to Report’’ and a final performance report GRANTEE speak or propose agenda items must within 90 days of the completion of the lllllllllllllllllllll send their names and proposals to Bill feasibility study. When submitting the final Name: Pell, DFO, P.O. Box 1270, Hot Springs, SF–269, Grantee must submit sufficient AR 71902. documentation, including invoices, to allow Title: the Grantor to verify that said project was GRANTOR Dated: May 18, 2009. completed within the total sums available to lllllllllllllllllllll Bill Pell, it, including the grant and matching funds, Date Designated Federal Official. in accordance with the work plan and any United States of America Rural Development necessary modifications thereof prepared by [FR Doc. E9–12003 Filed 5–22–09; 8:45 am] By: grantee and approved by the Grantor; and BILLING CODE 3410–52–M lllllllllllllllllllll C. Beginning the first full year after the feasibility study has been completed, Grantee Name: shall report to the Grantor annually for 2 Title: DEPARTMENT OF AGRICULTURE years on the following: lllllllllllllllllllll (1) Is the renewable energy system project Forest Service Date for which the feasibility study was conducted underway as a result of the feasibility [FR Doc. E9–12178 Filed 5–22–09; 8:45 am] Notice of Resource Advisory findings? If yes, describe how far along the BILLING CODE 3410–XY–P Committee Meeting renewable energy system project is (e.g., financing has been secured, site has been AGENCY: North Central Idaho Resource secured, construction contracts are in place, DEPARTMENT OF AGRICULTURE Advisory Committee, Grangeville, project completed). Idaho, USDA, Forest Service. (2) Is the renewable energy system project Forest Service ACTION: Notice of meeting. complete? If so, what is the actual amount of energy being produced? Ouachita-Ozark Resource Advisory SUMMARY: Pursuant to the authorities in D. Other reports. Grantor may request any Committee the Federal Advisory Committee Act additional project and/or performance data (Pub. L. 92–463) and under the Secure for the project for which grant funds have AGENCY: Forest Service, USDA. Rural Schools and Community Self- been received. E. Records access. Grantee shall after ACTION: Meeting notice for the Ouachita- Determination Act of 2000 (Pub. L. 110– project completion allow Grantor access to Ozark Resource Advisory Committee 343) the Nez Perce and Clearwater the records and performance information under Section 205 of the Secure Rural National Forests’ North Central Idaho obtained under the scope of the project. Schools and Community Self Resource Advisory Committee will meet

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Thursday, June 25th, 2009 in Orofino, by mail or hand-delivered to the above- DOC does not currently have any Idaho for a business meeting. The listed address Monday—Friday between Department-wide categorical exclusions meeting is open to the public. the hours of 9:00 a.m. and 4:30 p.m. (CEs). Only two operating units within SUPPLEMENTARY INFORMATION: The Comments may also be sent by DOC have existing CEs—the National business meeting on June 25th will be electronic mail to the following internet Oceanic and Atmospheric held at the Clearwater National Forest address: [email protected]. Administration (NOAA) and the Supervisor’s Office in Orofino, Idaho, FOR FURTHER INFORMATION CONTACT: Economic Development Administration beginning at 10 a.m. (PST). Agenda Written requests for a hard copy of the (EDA)—but they are not available for topic will be discussion and approval of ‘‘Draft Department of Commerce use by other DOC operating units. The potential projects. A public forum will Administrative Record’’ for the need for Department-wide CEs was begin at 3:15 p.m. (PST). proposed categorical exclusions should identified during recent efforts to standardize policy and procedures for FOR FURTHER INFORMATION CONTACT: be submitted to: Steve Kokkinakis, all operating unit grant and cooperative Laura A. Smith, Public Affairs Officer National Oceanic and Atmospheric agreement programs. This notice targets and Designated Federal Officer, at (208) Administration, Office of Program that effort. DOC is requesting public 983–5143. Planning & Integration, SSMC3, Room 15723, 1315 East-West Highway, Silver comment on the following proposed CEs Dated: May 18, 2008. Spring, MD 20910. (as well as the administrative record Thomas K. Reilly, supporting each exclusion) before SUPPLEMENTARY INFORMATION: Forest Supervisor. making them available for use by all of [FR Doc. E9–12038 Filed 5–22–09; 8:45 am] I. National Environmental Policy Act its operating units. BILLING CODE 3410–11–M NEPA requires that Federal agencies II. Development Process for prepare environmental impact Establishing Department-wide CEs statements for major Federal actions that The list of DOC CEs was compiled DEPARTMENT OF COMMERCE may ‘‘significantly affect the quality of through an inter-departmental effort that the human environment.’’ NEPA [Docket No. 090520919–9919–01] included participation from the requirements apply to any federal National Institute of Standards and RIN 0648-XP46 project, decision, or action, including Technology (NIST), National grants that might have a significant Telecommunication and Information National Environmental Policy Act— impact on the quality of the human Administration (NTIA), EDA, NOAA, Proposed Categorical Exclusions environment. NEPA also established the the Office of General Counsel and the Council on Environmental Quality AGENCY: U.S. Department of Commerce. Department’s Energy, Safety and (CEQ), which issued regulations Environment Division. Representatives ACTION: Notice, request for comments. implementing the procedural provisions from these organizations comprised the of NEPA. Among other considerations, SUMMARY: The U.S. Department of review panel responsible for the CEQ regulations require Federal determining appropriate CEs for the Commerce (DOC) publishes this notice agencies to adopt their own to request public comments on DOC. implementing procedures to The CEs have been approved by the proposed categorical exclusions of supplement the Council’s regulations, actions that the agency has determined DOC Office of General Counsel and the and to establish and use ‘‘categorical designated Senior Agency Official for do not individually or cumulatively exclusions’’ to define categories of have a significant effect on the human NEPA. actions that do not individually or Each proposed CE was reviewed and environment and, thus, should be cumulatively have a significant effect on deliberated in concept, coverage, categorically excluded from the the human environment. These applicability, and wording. The review requirement to prepare an particular actions, therefore, do not panel carefully examined the portion of environmental assessment or require preparation of an environmental the administrative record associated environmental impact statement under assessment or environmental impact with each CE to ensure that the the National Environmental Policy Act, statement as required by NEPA. proposed exclusion fulfilled the goal of 42 U.S.C. 4321 et seq. (NEPA). DOC consists of thirteen operating balancing increased administrative DATES: Comments on the proposed list units with diverse and often highly efficiency with avoidance of of categorical exclusions must be technical portfolios that—together— misinterpretations and misapplications received by June 15, 2009 to ensure promote job creation and improved of exclusionary language that could lead consideration. Late comments will be living standards for all Americans by to non-compliance with NEPA considered to the extent practicable. creating an infrastructure that promotes requirements. Having determined that ADDRESSES: The ‘‘Draft Department of economic growth, technological each proposed CE met these objectives, Commerce Administrative Record’’ for competitiveness, and sustainable the review panel ultimately concluded the proposed categorical exclusions is development domestically and abroad that the actions contemplated by these available at: http://www.nepa.noaa.gov/ for all Americans. Among its tasks are: exclusions encompassed activities that procedures.html under ‘‘Draft 1. Provide the information and tools to have no inherent potential for Department of Commerce maximize U.S. competitiveness and significant environmental impacts. Administrative Record for the proposed enable economic growth for American The panel’s conclusions were further categorical exclusions’’. All comments industries, workers, and consumers; 2 supported by the determinations made should be addressed to Office of Foster science and technological by other Federal agencies that had Program Planning and Integration, leadership by protecting intellectual established CEs for activities similar in National Oceanic and Atmospheric property, enhancing technical standards nature, scope and impact to those Administration, Attn.: Steve and advancing measurement science; contemplated by DOC. The review panel Kokkinakis, SSMC3—Room 15723, 1315 and 3. Observe, protect and manage the determined from their experience in or East-West Highway, Silver Spring, Earth’s resources to promote on behalf of other Federal agencies that Maryland 20910. Comments may be sent environmental stewardship. the characteristics of the activities in

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DOC were no different than those (a) The site is in a developed area similar nature, scope, and intensity performed by other Federal agencies. and/or a previously disturbed site, were performed throughout the Federal Accordingly, through a deliberative (b) The structure and proposed use government without significant process, the review panel determined are compatible with applicable Federal, environmental impacts. that the proposed categorical exclusions tribal, state, and local planning and Since new construction or encompassed activities that inherently zoning standards and consistent with improvements on land could involve did not have individual or cumulative federally approved state coastal numerous considerations, the review significant impact on the human management programs, panel took great care to establish environment. (c) The proposed use will not limiting provisions to avoid the Notwithstanding these conclusions, substantially increase the number of potential for significant impacts to the the review panel noted that all projects motor vehicles at the facility or in the human environment. The following involving a major federal action will be area, limiting provisions were established to subject to scoring on the ‘‘Departmental (d) The site and scale of construction both conform to the evidence presented NEPA Checklist’’. Any project that or improvement are consistent with in the administrative record, to clarify obtains a ‘‘YES’’ answer in any category those of existing, adjacent, or nearby meaning of those limiting provisions is not permitted to use the CE and will buildings, and, found in the administrative record, or to be required to prepare an Environmental (e) The construction or improvement add to or modify limitations found in Assessment (EA) or an Environmental will not result in uses that exceed the record based on the experience of Impact Statement (EIS). Moreover, the existing support infrastructure the review panel members to further National Historic Preservation Act capacities (roads, sewer, water, parking, avoid the potential for significant requirements, if appropriate, still apply etc.). impacts to the human environment: to all projects. The use of these CEs does (a) The site is in a developed area DOC is not a major land managing not constitute a release from Section 106 and/or a previously disturbed site, agency in the Federal government. consultation requirements. (b) The structure and proposed use Department activities involving new are compatible with applicable Federal, III. Proposed Department-wide construction or improvements of land tribal, state, and local planning and Categorical Exclusions typically involve single buildings and zoning standards and consistent with supporting infrastructure in a single federally approved state coastal locality. Any potential for A–1 Minor renovations and additions to management programs (pursuant to the environmental impacts would be of a buildings, roads, airfields, grounds, Coastal Zone Management Act); equipment, and other facilities that do small scale and confined to more (c) The proposed use will not not result in a change in the functional localized impacts. substantially increase the number of The review panel identified an use of the real property (e.g. realigning motor vehicles at the facility or in the internal Departmental EA from EDA that interior spaces of an existing building, area; adding a small storage shed to an resulted in a Finding of No Significant (d) The site and scale of construction existing building, retrofitting for energy Impact and legacy categorical or improvement are consistent with conservation, or installing a small exclusions and Findings of No those of existing, adjacent, or nearby antenna on an already existing antenna Significant Impact from the U.S. Coast buildings; and tower that does not cause the total Guard, Federal Emergency Management (e) The construction or improvement height to exceed 200 feet and where the Agency, U.S. Navy, and the U.S. Border will not result in uses that exceed FCC would not require an Patrol. EDA issues construction grants existing support infrastructure environmental assessment or to stimulate economic development. capacities (roads, sewer, water, parking, environmental impact statement for the Both NOAA and the U.S. Coast Guard etc.) installation). manage a large number of facilities in As a result of all of these limitations, sensitive aquatic environments along all the review panel determined that this This categorical exclusion is maritime coasts and several rivers. The categorical exclusion contemplated supported by long-standing categorical National Aeronautics and Space activities that would inherently have no exclusions and administrative records. Administration has a large number of potential for significant impacts to the In particular, the review panel specialty buildings used to help develop human environment. identified the legacy categorical and promote the nation’s space The review panel defined this exclusions and Environmental program. Legacy categorical exclusions categorical exclusion to be sufficiently Assessments from the U.S. Department from the Federal Emergency related to actions that may involve one of Agriculture, Federal Emergency Management Agency include public or more extraordinary circumstances. To Management Agency, Federal Aviation assistance programs that could be ensure that only those actions having Administration, U.S. Coast Guard, the implemented in any part of the United negligible impacts on the human U.S. Air Force, Immigration and States to assist in preparing and environment are contemplated by this Naturalization Services. Further, the recovering from a disaster. Additionally, categorical exclusion, the review panel review panel found that Environmental legacy categorical exclusions from the proposed that a Record of Assessments of a similar nature, scope, U.S. Navy allow minor construction Environmental Consideration be and intensity were performed at EDA, under circumstances identical to those prepared to document the determination NOAA, U.S. Department of Agriculture, proposed under this DOC categorical whether the action is either Federal Law Enforcement Training exclusion. The U.S. Border Patrol appropriately categorically excluded or Center and the U.S. Border Patrol brought a legacy of environmental whether it requires further analysis without significant environmental assessments and findings of no through an EA or EIS process. impacts. significant impact for its land based activities. Based upon this extensive A–3 Software development, data A–2 New construction upon or history of environmental analyses and analysis, or testing, including but not improvement of land where all of the the experience of its members, the limited to computer modeling in following conditions are met: review panel found that actions of a existing facilities.

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Research, development, testing, and A–6 Adding fiber optic cable to A–11 Personnel, fiscal, management, evaluation activities or laboratory transmission structures or burying fiber and administrative activities, such as operations contemplated by this optic cable in existing transmission line recruiting, processing, paying, categorical exclusion are those that rights-of-way. recordkeeping, resource management, would be undertaken within facilities that are operated under stringent This CE is supported by a long- budgeting, personnel actions, and travel. requirements designed to protect the standing categorical exclusion with the quality of the human environment. As Department of Energy and Findings of The actions contemplated by this CE exemplified by documents in the No Significant Impact on Environmental are a variety of administrative activities administrative record, these Assessments prepared for the Bureau of that have no inherent potential for requirements include strict operating Land Management, Vandenberg Air significant environmental impacts. This procedures governing laboratory Force Base, the US Park Service, and the CE is supported by long-standing CEs Tennessee Valley Authority. operations and personnel from the U.S. Coast Guard, U.S. Navy, responsibilities. Because of these Federal Emergency Management controls, these types of laboratory A–7 Acquisition, installation, operation, Agency, U.S. Air Force, U.S. Army, and activities have no potential for and removal of communications the U.S. Department of the Interior. significant environmental impacts. systems, data processing equipment, Further, the Panel found that actions of and similar electronic equipment. Further, the Panel found that actions of a similar nature, scope, and intensity a similar nature, scope, and intensity were performed in laboratories This CE is supported by a legacy were performed throughout the Federal throughout the Federal government. categorical exclusion from the U.S. government without significant This CE is supported by long-standing Department of Energy and Findings of environmental impacts. categorical exclusions and No Significant Impact on several The public is invited to submit administrative records. In particular, the Description Memorandums from the comments on both the ‘‘Draft review panel identified legacy U.S. Department of Energy. Department of Commerce categorical exclusions from Federal Administrative Record’’ for the A–8 Planning activities and classroom- Emergency Management Agency, U.S. proposed CEs, and the CEs listed above. based training and classroom-based Department of Agriculture, U.S. See the ADDRESSES for instructions on Department of Energy, the U.S. exercises using existing conference rooms and training facilities. submitting comments. The ‘‘Draft Department of Interior, and the U.S. Department of Commerce Navy. Additionally, the review panel Administrative Record’’ for the identified EAs that resulted in Findings This CE is supported by a long- proposed CEs is available at http:// of No Significant Impact from NOAA standing categorical exclusion with the www.nepa.noaa.gov/procedures.html and the National Aeronautics and Department of Energy and a Finding of Science Administration. No Significant Impact on an under ‘‘Draft Department of Commerce Environmental Assessment from the Administrative Record for the proposed A–4 Siting/construction/operation of recently completed Programmatic EA categorical exclusions’’. In addition, microwave/radio communication towers for NTIA. hard copies may be obtained by less than 200 feet in height without guy contacting Steve Kokkinakis, as wires on previously disturbed ground. A–9 Purchase of mobile and portable provided above. equipment and infrastructure which is DOC, through NTIA is involved in stored in previously existing structures Paperwork Reduction Act or facilities. issuing grants for siting, construction, This notice requests public comments operation, and maintenance, This CE is supported by a long- on proposed Department-wide CEs and communications systems and similar does not contain collection-of- electronic equipment. These types of standing categorical exclusion with the information requirements subject to the electronic equipment are essential to U.S. Coast Guard and a Finding of No Paperwork Reduction Act (PRA) of 1995 support the nationwide Significant Impact on an EA from the telecommunications network. recently completed Programmatic EA (44 U.S.C. 3501 et seq.). This CE is supported by Findings of for NTIA. Notwithstanding any other provision of No Significant Impact on the recently law, no person is required to, nor shall completed Programmatic EA for NTIA A–10 Siting, construction (or a person be subject to a penalty for and on EAs from the U.S. Department of modification), and operation of support failure to comply with, a collection of Energy. Furthermore, this CE is buildings and support structures information subject to the requirements supported by long-standing categorical (including, but not limited to, trailers of the PRA unless that collection of exclusions from the Federal Emergency and prefabricated buildings) within or information displays a currently valid Management Agency. contiguous to an already developed area OMB control number. (where active utilities and currently A Paperwork package for the used roads are readily accessible). A–5 Retrofit/upgrade existing associated ‘‘Departmental NEPA microwave/radio communication towers Checklist’’ referenced in Section II of that do not require ground disturbance. This CE is supported by a long- standing categorical exclusion with the the Supplementary Information has This CE is supported by the recently U.S. Department of Energy and two been submitted to the Office of completed Programmatic EA for NTIA Memorandum for File for relevant Management and Budget (OMB) for with a Finding of No Significant Impact projects and their supporting review and approval. A Notice of Action and an EA for the National Aeronautics documentation that indicated in the Federal Register at the conclusion and Space Administration, also with a insignificant impacts, also with the U.S. of OMB’s review of the information Finding of No Significant Impact. Department of Energy. collection.

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Dated: May 21, 2009. that requires OFAC authorization. Specifically, Ayadpoor failed to retain Paul N. Doremus, Pursuant to Section 746.7 of the export control documents, including NOAA NEPA Coordinator, Office of Program Regulations, no person may engage in waybills, and/or other pertinent Planning and Integration. the exportation of an item subject to documents in connection with its export [FR Doc. E9–12295 Filed 5–21–09; 4:15 pm] both the Regulations and the Iranian of gauges, described in Charge 3, above. BILLING CODE 3510–12–S Transactions Regulations without In so doing, Ayadpoor committed one authorization from OFAC. No OFAC violation of Section 764.2(i) of the authorization was obtained for the Regulations. DEPARTMENT OF COMMERCE export described herein. In engaging in Whereas, BIS and Ayadpoor have the activity described herein, Ayadpoor entered into a Settlement Agreement Bureau of Industry and Security committed one violation of Section pursuant to Section 766.18(a) of the 764.2(c) of the Regulations. Regulations whereby they agreed to Action Affecting Export Privileges; settle this matter in accordance with the Matthew Ayadpoor In the Matter of: Charge 2 15 CFR 764.2(e)—Acting terms and conditions set forth therein, Matthew Ayadpoor, 9700 Mayview with Knowledge of a Violation and Court, Oklahoma City, OK, 73159; In connection with charge one above, Whereas, I have approved of the terms Respondent; Order Relating To on or about June 4, 2004, Ayadpoor of such Settlement Agreement; It is Matthew Ayadpoor violated the Regulations by ordering the therefore ordered: The Bureau of Industry and Security, export of items subject to the First, Ayadpoor shall be assessed a U.S. Department of Commerce (‘‘BIS’’) Regulations from the United States with civil penalty in the amount of $25,000, has notified Matthew Ayadpoor knowledge that a violation of the the payment of which shall be (‘‘Ayadpoor’’), of its intention to initiate Regulations would occur in connection suspended for a period of one (1) year an administrative proceeding against with the item. Specifically, Ayadpoor from the date of entry of the Order, and Ayadpoor pursuant to Section 766.3 of attempted to export items subject to the thereafter shall be waived, provided that the Export Administration Regulations Regulations and the Iranian during the period of suspension, (the ‘‘Regulations’’),1 and Section 13(c) Transactions Regulations, with Ayadpoor has committed no violation of of the Export Administration Act of knowledge or reason to know that the the Act, or any regulation, order, or 1979, as amended (the ‘‘Act’’),2 through items would be exported to Iran via the license issued thereunder. the issuance of a proposed charging UAE without the required U.S. Second, that for a period of one (1) letter to Ayadpoor that alleged that he Government authorization. Ayadpoor year from the date of entry of the Order, committed four violations of the had knowledge that U.S. products could Ayadpoor, his representatives, assigns Regulations. Specifically, these charges not be sold to sanctioned countries, or agents (‘‘Denied Person’’) may not are: including Iran, a fact he acknowledged participate, directly or indirectly, in any to Office of Export Enforcement (‘‘OEE’’) way in any transaction involving any Charge 1 15 CFR 764.2(c)— special agents. Additionally, Ayadpoor commodity, software or technology Solicitation and Attempt negotiated for the items with persons in (hereinafter collectively referred to as On or about June 2, 2004, Ayadpoor Iran, knowing that the items would be ‘‘item’’) exported or to be exported from engaged in conduct prohibited by the shipped there via the UAE. In so doing, the United States that is subject to the Regulations by attempting to have Ayadpoor committed one violation of Regulations, or in any other activity piston-type differential pressure gauges, Section 764.2(e) of the Regulations. subject to the Regulations, including, which is subject to the Regulations and Charge 3 15 CFR 764.2(g)— but not limited to: classified as EAR99, exported to Iran A. Applying for, obtaining, or using Misrepresentation and Concealment of without the required U.S. Government any license, License Exception, or Facts authorization. Specifically, Ayadpoor export control document; ordered a freight forwarding company to On or about September 8, 2004, B. Carrying on negotiations export the gauges to Iran via the United Ayadpoor made a false and/or concerning, or ordering, buying, Arab Emirates (‘‘UAE’’). Pursuant to misleading statement to OEE special receiving, using, selling, delivering, Section 560.204 of the Iranian agents in the course of an investigation storing, disposing of, forwarding, Transactions Regulations maintained by subject to the Regulations. Specifically, transporting, financing, or otherwise the Department of the Treasury’s Office Ayadpoor told the agents that he had servicing in any way, any transaction of Foreign Assets Control (‘‘OFAC’’), an not participated in any export involving any item exported or to be export to a third country intended for transactions with the UAE company exported from the United States that is transshipment to Iran is a transaction associated with the June 2004 subject to the Regulations, or in any transaction since that transaction. This other activity subject to the Regulations; 1 The Regulations are currently codified in the was a false statement in that on or about or Code of Federal Regulations at 15 CFR Parts 730– August 31, 2004, Ayadpoor ordered that C. Benefitting in any way from any 774 (2009). The violations alleged occurred 2004. a second shipment of gauges be transaction involving any item exported The Regulations governing the allegation at issue are found in the 2004 version of the Code of Federal exported to the same UAE company. In or to be exported from the United States Regulations (15 CFR Parts 730–774 (2004)). The so doing, Ayadpoor committed one that is subject to the Regulations, or in 2009 Regulations govern the procedural aspects of violation of Section 764.2(g) of the any other activity subject to the the case. Regulations. Regulations. 2 50 U.S.C. app. §§ 2401–2420 (2000). Since Third, that no person may, directly or August 21, 2001, has been in lapse and the Charge 4 15 CFR 764.2(i)—Failure To indirectly, do any of the following: President, through Executive Order 13222 of August Comply With Recordkeeping 17, 2001 (3 CFR 2001 Comp. p. 783 (2002)), which A. Export or reexport to or on behalf has been extended by successive Presidential Requirements of the Denied Person any item subject to Notices, the most recent being that of July 23, 2008 On or about September 8, 2004, the Regulations; (73 FR 43603 (July 25, 2008)), continues the Regulations in effect under the International Ayadpoor failed to comply with the B. Take any action that facilitates the Emergency Economic Powers Act (50 U.S.C. 1701– recordkeeping requirements set forth in acquisition or attempted acquisition by 1706 (2000)). Section 762.2 of the Regulations. the Denied Person of the ownership,

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possession, or control of any item DEPARTMENT OF COMMERCE for export or re-export of the U.S.-origin parts subject to the Regulations that has been contained in the aircraft, nor the aircraft or will be exported from the United Bureau of Industry and Security itself. BIS has also produced evidence that the re-exported aircraft bears the livery, States, including financing or other Action Affection Export Privileges: colors and logos of Syrian Pearl Airlines, a support activities related to a Orion Air S.L.; Syrian Pearl Airlines national of Syria, a country group E:1 transaction whereby the Denied Person destination. acquires or attempts to acquire such In the Matter of: Moreover, BIS argues that future violations ownership, possession or control; Orion Air, S.L., Canada Real de Merinas, 7 of the EAR are imminent based on statements by Orion Air to the U.S. Government that C. Take any action to acquire from or Edificio 5, 3’A, Eissenhower Business Center, 28042 Madrid, Spain. Orion Air plans to re-export an additional to facilitate the acquisition or attempted Ad. de las Cortes Valencianas no 37, Esc.A BAE 146–300 aircraft, currently located in acquisition from the Denied Person of Puerta 45 46015 Valencia, Spain. Spain, to Syria and specifically to Syrian any item subject to the Regulations that Syrian Pearl Airlines, Damascus International Pearl Airlines. This information is Airport, Damascus, Syria. Respondents. corroborated by publically available has been exported from the United information in the Syrian press and States; Order Temporarily Denying Export contained in industry data bases. Based on D. Obtain from the Denied Person in Privileges this evidence, including Orion’s recent re- the United States any item subject to the Pursuant to Section 766.24 of the Export export to Syria in violation of the EAR, it is Administration Regulations (‘‘EAR’’),1 the highly likely that this additional aircraft will Regulations with knowledge or reason be re-exported to Syria contrary to U.S. to know that the item will be, or is Bureau of Industry and Security (‘‘BIS’’), U.S. Department of Commerce, through its Office export control laws. intended to be, exported from the of Export Enforcement (‘‘OEE’’), has I find that the evidence presented by BIS United States; or requested that I issue an Order temporarily demonstrates that a violation of the Regulations is imminent in both time and denying, for a period of 180 days, the export E. Engage in any transaction to service degree of likelihood. The conduct in this case privileges under the EAR of: any item subject to the Regulations that is deliberate, significant and likely to occur has been or will be exported from the 1. Orion Air, S.L., Canada Real de Merinas, again absent the issuance of a TDO. As such, United States and which is owned, 7 Edificio 5, 3’A, Eissenhower Business a TDO is needed to give notice to persons Center, 28042 Madrid, Spain and Ad. de possessed or controlled by the Denied and companies in the United States and las Cortes Valencianas no 37, Esc.A abroad that they should cease dealing with Person, or service any item, of whatever Puerta 45 46015 Valencia, Spain. the Respondents in export transactions origin, that is owned, possessed or 2. Syrian Pearl Airlines, Damascus involving items subject to the EAR. Such a controlled by the Denied Person if such International Airport, Damascus, Syria. TDO is consistent with the public interest to service involves the use of any item BIS has presented evidence that on or preclude future violations of the EAR. subject to the Regulations that has been about May 1, 2009, Orion Air re-exported a Accordingly, I find that a TDO naming or will be exported from the United BAE 146–300 aircraft (tail number EC–JVO) Orion Air and Syrian Pearl Airlines is to Syria and specifically to Syrian Pearl necessary, in the public interest, to prevent States. For purposes of this paragraph, Airways without the U.S. Government an imminent violation of the EAR. servicing means installation, authorization required by General Order No. This Order is being issued on an ex parte maintenance, repair, modification or 2 of Supplement 1 to Part 736 of the EAR. basis without a hearing based upon BIS’s testing. This re-export took place after Orion Air had showing of an imminent violation. been directly informed of the export It Is Therefore Ordered: Fourth, that, after notice and licensing requirements by the U.S. First, that, Orion Air, S.L., Canada Real de opportunity for comment as provided in Government, and thus had actual as well as Merinas, 7 Edificio 5, 3’A, Eissenhower Section 766.23 of the Regulations, any constructive notice of those licensing Business Center, 28042 Madrid, Spain, and person, firm, corporation, or business requirements, and occurred despite Ad. de las Cortes Valencianas no 37, Esc.A organization related to Ayadpoor by assurances made by Orion Air that it would Puerta 4546015 Valencia, Spain; and Syrian affiliation, ownership, control, or put the transaction on hold based on the U.S. Pearl Airlines, Damascus International Government’s concerns. Airport, Damascus, Syria. (each a ‘‘Denied position of responsibility in the conduct The aircraft is powered with four U.S.- Person’’ and collectively the ‘‘Denied of trade or related services may also be origin engines and also contains a U.S.-origin Persons’’) may not, directly or indirectly, made subject to the provisions of this auxiliary power unit (‘‘APU’’) and electronic participate in any way in any transaction Order. flight instrumentation system (‘‘EFIS’’), all of involving any commodity, software or which are items subject to the EAR. The technology (hereinafter collectively referred Fifth, that the proposed charging engines and APU are classified as Export to as ‘‘item’’) exported or to be exported from letter, the Settlement Agreement, and Control Classification Number (‘‘ECCN’’) the United States that is subject to the Export this Order shall be made available to the 9A991.d and the EFIS is classified as ECCN Administration Regulations (‘‘EAR’’), or in public. 7A994. Because the aircraft contains greater any other activity subject to the EAR than a 10 percent de minimis of U.S.-origin including, but not limited to: Sixth, that this Order shall be served items, a fact Orion Air acknowledged, the A. Applying for, obtaining, or using any on the Denied Person and on BIS, and aircraft is also subject to the EAR if re- license, license exception, or export control shall be published in the Federal exported to Syria and is classified as ECCN document; Register. 9A991.b. No license was obtained from BIS B. Carrying on negotiations concerning, or ordering, buying, receiving, using, selling, This Order, which constitutes the 1 The EAR is currently codified at 15 CFR Parts delivering, storing, disposing of, forwarding, final agency action in this matter, is 730–774 (2009). The EAR are issued under the transporting, financing, or otherwise effective immediately. Export Administration Act of 1979, as amended (50 servicing in any way, any transaction U.S.C. app. 2401–2420 (2000)) (‘‘EAA’’). Since involving any item exported or to be Entered this 15th day of May, 2009. August 21, 2001, the Act has been in lapse and the exported from the United States that is Kevin Delli-Colli, President, through Executive Order 13222 of August subject to the EAR, or in any other activity 17, 2001 (3 CFR, 2001 Comp. 783 (2002)), which subject to the EAR; or Acting Assistant Secretary of Commerce for has been extended by successive presidential Export Enforcement. notices, the most recent being that of July 23, 2008 C. Benefiting in any way from any transaction involving any item exported or to [FR Doc. E9–12190 Filed 5–22–09; 8:45 am] (73 FR 43603 (July 25, 2008)), has continued the Regulations in effect under the International be exported from the United States that is BILLING CODE 3510–DT–P Emergency Economic Powers Act (50 U.S.C. 1701– subject to the EAR, or in any other activity 1706 (2000)) (‘‘IEEPA’’). subject to the EAR.

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Second, that no person may, directly or Entered this 7th day of May 2009. regions. Nominations are encouraged indirectly, do any of the following: Kevin Delli-Colli, from all interested persons and A. Export or reexport to or on behalf of any Acting Assistant Secretary of Commerce for organizations representing interests Denied Person any item subject to the EAR; Export Enforcement. affected by the U.S. commercial space B. Take any action that facilitates the based remote sensing industry. acquisition or attempted acquisition by any [FR Doc. E9–12046 Filed 5–22–09; 8:45 am] BILLING CODE 3510–DT–P Nominees must possess demonstrable Denied Person of the ownership, possession, expertise in a field related to the spaced or control of any item subject to the EAR that has been or will be exported from the United based commercial remote sensing States, including financing or other support DEPARTMENT OF COMMERCE industry or exploitation of space based activities related to a transaction whereby commercial remotely sensed data and be any Denied Person acquires or attempts to National Oceanic and Atmospheric able to attend committee meetings that acquire such ownership, possession or Administration are held usually two times per year. In control; addition, selected candidates must C. Take any action to acquire from or to Notice Requesting Nominations for the apply for and obtain a security facilitate the acquisition or attempted Advisory Committee on Commercial clearance. Membership is voluntary, acquisition from any Denied Person of any Remote Sensing (ACCRES) and service is without pay. item subject to the EAR that has been Each nomination submission should AGENCY: U.S. Department of Commerce, exported from the United States; include the proposed committee D. Obtain from any Denied Person in the National Oceanic and Atmospheric Administration. member’s name and organizational United States any item subject to the EAR affiliation, a cover letter describing the SUMMARY: with knowledge or reason to know that the The Advisory Committee on nominee’s qualifications and interest in item will be, or is intended to be, exported Commercial Remote Sensing (ACCRES) serving on the Committee, a curriculum from the United States; or was constituted to advise the Secretary vitae or resume of nominee, and no E. Engage in any transaction to service any of Commerce through the Under item subject to the EAR that has been or will more than three supporting letters Secretary of Commerce for Oceans and describing the nominee’s qualifications be exported from the United States and Atmosphere on matters relating to the which is owned, possessed or controlled by and interest in serving on the U.S. commercial remote sensing Committee. Self-nominations are any Denied Person, or service any item, of industry and NOAA’s activities to carry whatever origin, that is owned, possessed or acceptable. The following contact out responsibilities of the Department of controlled by any Denied Person if such information should accompany each service involves the use of any item subject Commerce set forth in the Land Remote submission: The nominee’s name, to the EAR that has been or will be exported Sensing Policy Act of 1992 (15 U.S.C. address, phone number, fax number, from the United States. For purposes of this Secs 5621–5625). The Committee is and e-mail address if available. paragraph, servicing means installation, composed of leaders in the commercial Nominations should be sent to maintenance, repair, modification or testing. space-based remote sensing industry, Director, Commercial Remote Sensing Third, that after notice and opportunity for space-based remote sensing data users, Regulatory Affairs Office, 1335 East comment as provided in section 766.23 of the government (federal, state, local), and West Highway, Room 8260, Silver EAR, any other person, firm, corporation, or academia. The Department of Commerce business organization related to any of the Spring, Maryland 20910. Nominations is seeking up to five highly qualified must be received by June 25, 2009. The Respondents by affiliation, ownership, individuals knowledgeable about the control, or position of responsibility in the full text of the Committee Charter and commercial space-based remote sensing its current membership can be viewed at conduct of trade or related services may also industry and uses of space-based remote be made subject to the provisions of this the Agency’s Web page at http:// sensing data to serve on the Committee. Order. www.accres.noaa.gov/index.html. DATES: Nominations must be Fourth, that this Order does not prohibit FOR FURTHER INFORMATION CONTACT: postmarked on or before June 25, 2009. any export, reexport, or other transaction ACCRES Administration, NOAA subject to the EAR where the only items SUPPLEMENTARY INFORMATION: ACCRES Commercial Remote Sensing Regulatory involved that are subject to the EAR are the was established by the Secretary of Affairs Office, 1335 East West Highway, foreign-produced direct product of U.S.- Commerce (Secretary) on May 21, 2002, Room 8119, Silver Spring, Maryland origin technology. to advise the Secretary through the In accordance with the provisions of 20910; telephone (301) 713–1644, fax Under Secretary of Commerce for (301) 713–0204, e-mail Section 766.24(e) of the EAR, the Oceans and Atmosphere on relating to Respondents may, at any time, appeal this [email protected]. the U.S. commercial remote sensing Order by filing a full written statement in Mary E. Kicza, support of the appeal with the Office of the industry and NOAA’s activities to carry Administrative Law Judge, U.S. Coast Guard out responsibilities of the Department of Assistant Administrator for Satellite and ALJ Docketing Center, 40 South Gay Street, Commerce set forth in the Land Remote Information Services. Baltimore, Maryland 21202–4022. Sensing Policy Act of 1992 (15 U.S.C. [FR Doc. E9–12117 Filed 5–22–09; 8:45 am] In accordance with the provisions of Secs 5621–5625). BILLING CODE 3510–HR–P Section 766.24(d) of the EAR, BIS may seek The Committee meets twice a year. renewal of this Order by filing a written Committee members serve in a request not later than 20 days before the representative capacity for a term of two DEPARTMENT OF COMMERCE expiration date. The Respondents may years and may serve additional terms, if oppose a request to renew this Order by filing reappointed. No more than 15 Patent and Trademark Office a written submission with the Assistant individuals may serve on the Submission for OMB Review; Secretary for Export Enforcement, which Committee. Membership is comprised of must be received not later than seven days Comment Request before the expiration date of the Order. highly qualified individuals A copy of this Order shall be served on the representing the commercial space- The United States Patent and Respondents and shall be published in the based remote sensing industry, space- Trademark Office (USPTO) will submit Federal Register. based remote sensing data users, to the Office of Management and Budget This Order is effective upon issuance and government (Federal, State, local), and (OMB) for clearance the following shall remain in effect for 180 days. academia from a balance of geographical proposal for collection of information

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under the provisions of the Paperwork fax to (202) 395–5167, marked to the (‘‘Montgomery’’) of a BIS order denying Reduction Act (44 U.S.C. Chapter 35). attention of Nicholas A. Fraser. Montgomery’s export privileges under Section 766.25 of the Regulations (the Agency: United States Patent and Susan K. Fawcett, Trademark Office (USPTO). ‘‘Denial Order’’). Specifically, Micei Records Officer, USPTO, Office of the Chief authorized, requested, and/or arranged Title: National Medal of Technology Information Officer, Administrative Management Group. for Montgomery to negotiate for and/or and Innovation Nomination make certain purchases for or on behalf [FR Doc. E9–12290 Filed 5–22–09; 8:45 am] Application. of Micei of items subject to the Form Number(s): None. BILLING CODE 3510–16–P Regulations for export from the United Agency Approval Number: 0651– States to Micei in Macedonia. To further 0060. DEPARTMENT OF COMMERCE facilitate these purchases, Micei also Type of Request: Revision of a contacted Montgomery and provided currently approved collection. Bureau of Industry and Security information on the items to be ordered and their approximate cost, and [08–B IS–0005] Burden: 1,600 hours. identified the vendors from which to Number of Respondents: 40 In the Matter of: Micei International, order them. With Micei’s knowledge responses. Respondent; Final Decision and Order and/or permission, Montgomery Avg. Hours per Response: 40 hours. operated or held himself out as Micei’s This includes time to gather the This matter is before me upon a employee or agent, including indicating necessary information, create the Recommended Decision and Order in an e-mail to a U.S. supplier that documents, and submit the completed (‘‘RDO’’) of an Administrative Law Micei had a U.S. regional office in request to the USPTO. Judge (‘‘ALJ’’), as further described Seattle, Washington, where Montgomery below. was located, and that Micei was Needs and Uses: The public uses the In a charging letter filed on July 1, interested in forming a distributorship National Medal of Technology and 2008, and amended on January 9, 2009, relationship with the supplier. That e- Innovation Nomination Application to the Bureau of Industry and Security mail was copied to Micei’s president recognize through nomination an (‘‘BIS’’) alleged that Respondent Micei and signed by Montgomery with ‘‘Micei individual’s or company’s extraordinary International (‘‘Micei’’) committed Int’l Reg[ional] Off[ice].’’ As part of leadership and innovation in fourteen violations of the Export these actions, Montgomery carried on technological achievement. The Administration Regulations (currently negotiations concerning, ordered, application must be accompanied by at codified at 15 CFR Parts 730–774 (2009) bought, sold and/or financed various least six letters of recommendation or (‘‘Regulations’’)), issued pursuant to the items that were subject to the support from individuals who have Export Administration Act of 1979, as Regulations and were exported or to be first-hand knowledge of the cited amended (50 U.S.C. app. 2401–2420) exported from the United States to achievement(s). (the ‘‘EAA’’ or ‘‘Act’’),1 stemming from Micei in Macedonia, and Montgomery Affected Public: Business or other for- its knowing participation in seven benefitted from these transactions, in profit; not-for-profit institutions. export transactions using an individual violation of the Denial Order. subject to a Denial Order as an Frequency: On occasion. employee or agent to negotiate for and/ The Denial Order is dated September Respondent’s Obligation: Voluntary. or purchase items in the United States 11, 2000, and was published in the OMB Desk Officer: Nicholas A. Fraser, for export from the United States to Federal Register on September 22, 2000 e-mail: Micei in Macedonia. The charges are as (65 FR 57,313). Under the terms of the [email protected] . follows: Denial Order, Montgomery ‘‘may not 1. Since August 21, 2001, the Act has directly or indirectly, participate in any Once submitted, the request will be way in any transaction involving any publically available in electronic format been in lapse, and the President, through Executive Order 13,222 of [item] exported or to be exported from through the Information Collection the United States, that is subject to the Review page at http://www.reginfo.gov. August 17, 2001 (3 CFR, 2001 Comp. 783 (2002)), which has been extended Regulations, or in any other activity Paper copies can be obtained by: by successive Presidential Notices, the subject to the Regulations, including • E-mail: [email protected]. most recent being that of July 23, 2008 [c]arrying on negotiations concerning, or Include ‘‘0651–0060 National Medal of (73 FR 43,603, July 25, 2008), has ordering, buying, receiving, using, Technology and Innovation Nomination continued the Regulations in effect selling, delivering, storing, disposing of, Application copy request’’ in the subject under the International Emergency forwarding, transporting, financing, or line of the message. Economic Powers Act (50 U.S.C. 1701– otherwise servicing in any way, any transaction involving any item exported • Fax: 571–273–0112, marked to the 1707). or to be exported from the United States attention of Susan K. Fawcett. Charges 1–7; 15 CFR 764.2(b): Causing, that is subject to the Regulations, or in • Mail: Susan K. Fawcett, Records Aiding, Abetting, Inducing and/or any other activity subject to the Officer, Office of the Chief Information Permitting a Violation of a Denial Regulations; or * * * [b]enefitting in Officer, Administrative Management Order any way from any transaction involving Group, U.S. Patent and Trademark As described in further detail in the any item exported or to be exported Office, P.O. Box 1450, Alexandria, VA attached schedule of violations, which from the United States that is subject to 22313–1450. is incorporated herein by reference, on the Regulations, or in any other activity Written comments and seven occasions between on or about subject to the Regulations.’’ The Denial recommendations for the proposed July 2, 2003, and on or about October 8, Order is effective until January 22, 2009, information collection should be sent on 2003, Micei caused, aided, abetted, and continued in force at the time of the or before June 25, 2009 to Nicholas A. induced and/or permitted acts aforementioned actions. In so doing, Fraser, OMB Desk Officer, via e-mail at prohibited by the Regulations, namely, Micei committed seven violations of [email protected] or by the violations by Yuri Montgomery Section 764.2(b) of the Regulations.

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Charges 8–14; 15 CFR 764.2(e): Acting Regulations apply extraterritorially. On April 14, 2009, the ALJ issued the with Knowledge of a Violation After briefing on the motion was RDO, denying Respondent’s motion for As described in further detail in the completed, in an order dated December a more definite statement and granting attached schedule of violations, which 22, 2008, the ALJ ruled that a motion to BIS’s motion for a default order. Even is incorporated herein by reference, on dismiss is not provided for in the though the ALJ did not specifically state seven occasions between on or about Regulations, but gave the Respondent that the Regulations provide for the July 2, 2003 and on or about October 8, the benefit of the doubt and reviewed filing of a motion for a more definite 2003, Micei ordered, bought, sold, used the motion as if it were a motion for statement, the Regulations do not, in and/or financed various items subject to summary decision, which is provided fact, provide for such a motion, just as for by Section 766.8 of the Regulations. they do not provide for a motion to the Regulations with knowledge that ALJ Order Denying Motion To Dismiss; dismiss. 15 CFR Part 766; In the Matter violations of an order issued under the RDO at 4–5. The ALJ ruled that the of Yuri Montgomery, ALJ Brudzinski’s Regulations had occurred, was about to motion was without merit and did not Order Denying Respondent’s Motion for occur, or was intended to occur in meet the requirements for summary More Definite Statement at 6 (March 23, connection with the items, namely, the decision under Section 766.8 of the 2009) (‘‘The regulations at 15 CFR Part violations by Yuri Montgomery Regulations, and set a deadline of 766 do not provide for motions for a (‘‘Montgomery’’) of a BIS order denying January 12, 2009 for the Respondent to more definite statement or for hearings Montgomery’s export privileges under file an answer. Id. thereon.’’). Further, the Respondent’s Section 766.25 of the Regulations (the On January 9, 2009, BIS filed an motion was frivolous in that the ‘‘Denial Order’’). Operating as Micei’s amended Charging Letter that was Charging Letter clearly met all of the employee or agent or otherwise for or on served by Federal Express, registered requirements of Section 766.3 of the its behalf during these transactions, mail, fax, and e-mail, which under the Regulations, including setting forth the Montgomery carried on negotiations Regulations extended Respondent’s time essential facts about the alleged concerning, ordered, bought, sold and/ to answer arguably until February 12, violations, referring to the specific or financed various items that were 2009 (pursuant to the delivery by regulatory and other provisions subject to the Regulations and were Federal Express), and certainly no later involved, and giving notice of the exported or to be exported from the than February 19, 2009 (pursuant to the available sanctions. 15 CFR 766.3(a). United States to Micei in Macedonia, registered mail delivery). This The Respondent’s motion for a more and also benefitted from these amendment included limited additional definite statement was, in fact, just transactions, in violation of the Denial allegations concerning the same another vehicle through which Order. The Denial Order is dated transactions, items, and violations as Respondent sought to avoid answering September 11, 2000, and was published alleged in the initial Charging Letter 2. the charges, and instead repeated the in the Federal Register on September 2. The items involved in the arguments put forth in its motion to 22, 2000 (65 FR 57,313). At the time of transactions were as follows: boots in dismiss, which had previously been these actions, Montgomery’s export Charges 1 and 8; firing range clearing denied. The ALJ determined that the privileges were denied by the Denial devices in Charges 2 and 9; boots in Respondent ‘‘ha[d] been given several Order. Micei knew that Montgomery Charges 3 and 10; shoes and remote opportunities to participate in the was subject to the Denial Order because, strobe tubes in Charges 4 and 11; shirts process’’ and contest the charges in this inter alia, on November 6 and 13, 2003, in Charges 5 and 12; a load binder, matter, but had demonstrated ‘‘a pattern Iii Malinkovski, then identified as a vice ratchet strap, binder chain and safety of declining to file an answer.’’ RDO at president of Micei, told BIS Special shackle in Charges 6 and 13; and the 12. Agents that he was aware of the Denial items in order number 25473620/017 in 3. Under the Federal Rules of Civil Order on Montgomery and that Charges 7 and 14. Procedure, Federal courts will only Montgomery was subject to the Denial Respondent did not file anything grant such a motion when the complaint Order until January 2009. In so doing, further until February 23, 2009, when it is ‘‘so vague or ambiguous that a party Micei committed seven violations of filed not an answer, but what it styled cannot reasonably prepare a response.’’ Section 764.2(e) of the Regulations. a motion for a more definite statement. Fed. R. Civ. P. 12(e); Brown v. Aramark BIS filed a motion for a default order on Corp., 591 F. Supp. 2d 68 at 76 n. 5 January 9, 2009; Amended Charging March 24, 2009, arguing that Letter at 1–2 (D.D.C. 2008) (the basis for granting a Respondent had not filed an answer motion for a more definite statement In sum, Charges 1–7 alleged that on within the time provided by the under Rule 12(e) is ‘‘unintelligibility, seven occasions between on or about Regulations (and the ALJ’s Order not mere lack of detail’’). July 2, 2003 and on or about October 8, Denying Motion To Dismiss), and had Pursuant to Section 766.7 of the 2003, Micei caused, aided, abetted and/ waived its right to contest the Regulations, the ALJ found the facts to or induced violations of a BIS denial allegations pursuant to Section 766.7 of be as alleged in the Charging Letter and order in violation of Section 764.2(b); in the Regulations. Although BIS is not concluded that Micei committed seven connection with those same transactions required under Section 766.7 to give violations of 764.2(b) when it caused, and items, Charges 8–14 allege that, in notice of its motion for default order, aided and abetted Montgomery’s violation of Section 764.2(e), Micei BIS served its motion (and opposition to violations of the Denial Order as alleged acted with knowledge that the Respondent’s motion for a more definite in Charges 1–7, and committed seven violations of the denial order had statement) by Federal Express, fax, and violations of 764.2(e) when, as alleged occurred, were about to occur, or were e-mail. in Charges 8–14, it acted with intended to occur. Respondent has not filed an answer to knowledge of those violations of the The Respondent filed a lengthy the amended Charging Letter dated Denial Order. The ALJ also motion to dismiss on September 17, January 9, 2009, and did not file an recommended that Micei be assessed a 2008, which raised several jurisdictional answer to the initial Charging Letter monetary penalty of $126,000 and a challenges, including whether the dated July 1, 2008. It also did not denial of its export privileges for five Regulations were in effect at the time of respond to BIS’s motion for default years, given, inter alia, that Micei the violations and whether the order. deliberately participated in multiple

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export transactions of items from the in effect pursuant to the authority U.S. Department of Commerce within United States to Macedonia involving exercised by the President.’’ Order (30) thirty days from the date of entry violations of a BIS Denial Order, and Denying Motion to Dismiss at 4. of this Order. given its failure to contest the charged Respondent’s arguments challenging Second, pursuant to the Debt violations or meet the deadlines the extraterritorial reach of the FAA and Collection Act of 1982, as amended (31 provided in the Regulations and orders the Regulations may be irrelevant in U.S.C. 370 1–3720E (2000)), the civil issued in this matter. light of the allegations of its substantial penalty owed under this Order accrues The RDO, together with the entire contacts with the United States, interest as more fully described in the record in this case, has been referred to including those contacts carried out attached Notice, and, if payment is not me for final action under § 766.22 of the through Montgomery acting, with made by the due date specified herein, Regulations. I find that the record Micei’s knowledge and permission, as Micei International will be assessed, in supports the ALJ’s findings of fact and Micei’s employee or agent. addition to the full amount of the civil conclusions of law. Nevertheless, to the extent that this penalty and interest, a penalty charge In doing so, I have determined that matter concerns the extraterritorial and administrative charge. the ALJ properly found that the items at application of the FAA and the Third, for a period of five (5) years issue were located in the United States Regulations, the ALJ correctly from the date that this Order is and were exported or (on one occasion) determined that both apply to persons published in the Federal Register, Micei intended to be exported from the United extraterritorial so long as items subject International, Kamnik bb, 1000 Skopje, States to Micei in Macedonia. Findings to the Regulations are involved, and Republic of Macedonia, its successors or of Fact, RDO at 69. The ALJ also regardless of the person’s nationality or assigns, and when acting for or on correctly concluded that the items at locality. RDO at 10; In the Matter of behalf of Micei, its representatives, issue are subject to the Regulations. Mahdi, 68 FR 57406 (Oct. 3, 2003)); agents, officers or employees Conclusions of Law, RDO at 17. accord In the Matter of Petrom GmbH (hereinafter collectively referred to as In the Discussion section of the RDO International Trade, 70 FR 32743 (June ‘‘Denied Person’’) may not participate, (pages 9–16 of the RDO), the ALJ cited 6, 2005) and In the Matter of directly or indirectly, in any way in any to both Sections 734.3(a)(1) (‘‘all items Petrochemical Commercial Co. Ltd., 71 transaction involving any commodity, in the United States’’) and 734.3(a)(2) FR 23983 (May 6, 2005). The software or technology (hereinafter (‘‘all U.S. origin items wherever Respondent is therefore subject to the collectively referred to as ‘‘item’’) located’’). RDO at 9. In that section, the Regulations based on its actions exported or to be exported from the ALJ also subsequently referred to the involving items subject to the United States that is subject to the items as being ‘‘of U.S. origin.’’ RDO at Regulations that at the least were Regulations, or in any other activity 10, 15. I have not determined as part of located in and purchased (or attempted subject to the Regulations, including, this decision whether the items were to be purchased) from the United States but not limited to: manufactured in the United States, and and then exported from the United A. Applying for, obtaining, or using thus were ‘‘of U.S. origin,’’ and such a States to the Respondent. United States any license, License Exception, or determination is not necessary because v. McKeeve, 131 F.3d 1 (1st Cir. 1997) export control document; jurisdiction over the items is established (the First Circuit cited Section B. Carrying on negotiations in this matter under Section 734.3(a)(1), 1702(a)(1) when it rejected an concerning, or ordering, buying, given the location of these items in the extraterritorial challenge to an IEEPA receiving, using, selling, delivering, United States. Indeed, all of the items conspiracy conviction brought by a storing, disposing of, forwarding, were purchased, or attempted to be foreign national in the context of a transporting, financing, or otherwise purchased, in the United States for conspiracy involving foreign nationals servicing in any way, any transaction export from the United States to Micei to export computer equipment to Libya. involving any item exported or to be in Macedonia, as found in the RDO. The computer equipment was stored in exported from the United States that is Thus, my determinations are entirely Massachusetts and therefore subject to the Regulations, or in any consistent with the allegations ‘‘unquestionably subject to the other activity subject to the Regulations; contained in the Charging Letter and the jurisdiction of the United States’’). or findings and conclusions contained in I also find that the penalty C. Benefiting in any way from any the RDO. recommended by the ALJ based upon transaction involving any item exported The jurisdictional challenges raised his review of the entire record is or to be exported from the United States by Respondent have been considered appropriate, given the nature of the that is subject to the Regulations, or in and denied in prior matters, but there is violations, the facts of this case, and the any other activity subject to the value in repeating the central points. importance of deterring future Regulations. The continuation of the operation and unauthorized exports or attempted Fourth, that no person may, directly effectiveness of the FAA and its exports. Micei deliberately participated or indirectly, do any of the following: regulations through the issuance of in multiple export transactions of items A. Export or reexport to or on behalf Executive Orders by the President from the United States to Macedonia of the Denied Person any item subject to constitutes a valid exercise of authority. involving violations of a BIS Denial the Regulations; See Wisconsin Project on Nuclear Arms Order, and its blatant disregard for U.S. B. Take any action that facilitates the Control v. U.S. Dep’t of Commerce, 317 export control laws is further acquisition or attempted acquisition by F.3d 275, 278–79 (D.C. Cir. 2003), and highlighted by its conduct during this the Denied Person of the ownership, Times Publ’g Co. v. U.S. Dep’t of enforcement action. possession, or control of any item Commerce, 235 F.3d 1286, 1290 (11th Based on my review of the entire subject to the Regulations that has been Cir. 2001)). Therefore, as the ALJ stated, record, I affirm the findings of fact and or will be exported from the United ‘‘the laws and regulations underlying conclusions of law in the RDO. States, including financing or other this enforcement action and the Accordingly, it is therefore ordered, support activities related to a corresponding procedural requirements First, that a civil penalty of transaction whereby the Denied Person were in full force on the dates of the $126,000.00 is assessed against Micei acquires or attempts to acquire such charged violations and have remained International, which shall be paid to the ownership, possession or control;

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C. Take any action to acquire from or Recommended Decision and Order Here, BIS alleges that Micei to facilitate the acquisition or attempted Granting Motion for Default. committed fourteen (14) violations of acquisition from the Denied Person of Issued: April 14, 2009. the EAR and seeks a denial of the any item subject to the Regulations that Issued by: Hon. Michael J. Devine. Respondent’s export privileges from the has been exported from the United United States for a period of five (5) I. Summary of Decision States; years as well as assessment of $126,000 D. Obtain from the Denied Person in This case arises from Respondent in civil penalties. the United States any item subject to the Micei International’s (Micei) use of an As discussed infra, Micei filed a Regulations with knowledge or reason individual subject to a Denial Order as Motion to Dismiss the charges and to know that the item will be, or is an employee or agent to negotiate for various briefs and materials in support intended to be, exported from the Respondent Micei and facilitate exports of that motion, including a declaration United States; or from the United States. The charging by Iki Malinkovski. However, Micei has E. Engage in any transaction to service letter identifies Yuri Montgomery not filed an Answer or other appropriate any item subject to the Regulations that (‘‘Montgomery’’), as the individual responsive pleadings in this case. After has been or will be exported from the involved in transactions with Micei the time for an Answer passed, BIS filed United States and which is owned, which violate the terms of a previously a Motion for Default. This Order finds possessed or controlled by the Denied issued Denial Order in connection with that Respondent Micei is in default and Person, or service any item, of whatever his (Montgomery’s) exporting various that the fourteen (14) violations of the origin, that is owned, possessed or goods from the United States to EAA and EAR alleged in the Amended controlled by the Denied Person if such Macedonia in 2003. Micei International, Charging Letter are proven by default. service involves the use of any item Inc. (‘‘Micei’’ or ‘‘Respondent’’), has Finally, this Order recommends subject to the Regulations that has been been charged causing, aiding, or imposing a five (5) year denial of export or will be exported from the United abetting Montgomery to violate the privileges and a $126,000.00 civil States. For purposes of this paragraph, Denial Order and acting with knowledge penalty upon Respondent. servicing means installation, of the violation. The Bureau of Industry II. Background maintenance, repair, modification or Security, United States Department of testing. Commerce (‘‘BIS’’ or ‘‘Bureau’’) has On July 2, 2008, BIS filed a Charging Fifth, that, after notice and alleged that Micei’s conduct in Letter with the Docketing Center opportunity for comment as provided in connection with Montgomery violating alleging that Micei committed fourteen § 766.23 of the Regulations, any person, his Denial Order constitutes fourteen (14) violations of the Export firm, corporation, or business (14) violations of the Export Administration Regulations (‘‘EAR’’) Administration Act of 1979 (‘‘Act’’ or and the Export Administration Act of organization related to the Denied 2 Person by affiliation, ownership, ‘‘EAA’’) and the Export Administration 1979 (‘‘EAA’’). Specifically, BIS alleges that on seven control, or position of responsibility in Regulations (‘‘EAR’’). 50 U.S.C. app. (7) occasions between on or about July the conduct of trade or related services 2401–20 (1991), amended by Public Law 2, 2003, and on or about October 8, may also be made subject to the 106–508, 114 Stat. 2360 (Supp. 2002) 2003, Micei caused, aided, abetted, and/ provisions of the Order. (EAA); 15 CFR Parts 730–74 (1997– or induced an Montgomery to violate a Sixth, that this Order does not 1999) (EAR or Regulations). BIS Order which denied that prohibit any export, reexport, or other Montgomery is not a party to this individual’s export privileges under 15 transaction subject to the Regulations enforcement action against Micei CFR 766.25. These charges involve where the only items involved that are International. alleged illegal exportation of various subject to the Regulations are the The EAA and its underlying goods from the United States to foreign-produced direct product of U.S.- regulations establish a ‘‘system of controlling exports by balancing Macedonia. origin technology. BIS further alleges that these acts national security, foreign policy and Seventh, that the final Decision and created seven (7) additional violations domestic supply needs with the interest Order shall be served on Micei and on of the EAR because Micei committed of encouraging export to enhance * * * BIS and shall be published in the them with knowledge that a violation of the economic well being’’ of the United Federal Register. In addition, the ALJ’s an order issued under the EAR had States. Times Publ’g Co. v. United States Recommended Decision and Order, occurred, was about to occur, or was Dep’t of Commerce, 236 F.3d 1286, 1290 except for the section related to the intended to occur in connection with Recommended Order, shall also be (11th Cir. 2001); see also 50 U.S.C. app. 1 the transactions. published in the Federal Register. 240120. On September 17, 2008, Respondent This Order, which constitutes the through counsel 3 filed Respondent’s final agency action in this matter, is 1 The EAA and all regulations promulgated effective upon publication in the thereunder expired on August 20, 2001. See 50 U.S.C. App. 2419, Three days before its expiration, Courts have held that the continuation of the Federal Register. on August 17, 2001, the President declared the operation and effectiveness of the EAA and its regulations through the issuance of Executive Dated: May 14, 2009. lapse of the EAA constitutes a national emergency. See Exec. Order. No. 13222, reprinted in 3 CFR at Orders by the President constitutes a valid exercise Daniel Hill, 783–784, 2001 comp. (2002). Exercising authority of authority. See Wisconsin Project on Nuclear Acting Under Secretary of Commerce for under the International Emergency Economic Arms Control v. U.S. Dep’t of Commerce, 317 F.3d Industry and Security. Powers Act (‘‘IEEPA’’), 50 U.S.C. 170 1–1706 275, 278–79 (D.C. Cir. 2003); Times Publ’g Co. v. (2002), the President maintained the effectiveness U.S. Dep’t of Commerce, 236 F.3d 1286, 1290 (11th REDACTED COPY of the EAA and its underlying regulations Cir. 2001). throughout the expiration period by issuing Exec. 2 The EAR and EAA are currently in full force and United States of America, Department Order. No. 13222 on August 17, 2001. Id. The effect and have been at all relevant times with of Commerce, Bureau of Industry and effectiveness of the export control laws and respect to this case. See discussion supra n.1 Security. regulations were further extended by successive wherein the history of these laws and regulations Notices issued by the President; the most recent is examined. In the Matter of: MICEI International, being that of July 23, 2008. See Notice: 3 Note that the attorney initially representing Respondent. Continuation of Emergency Regarding Export Respondent requested to withdraw and that the Docket No.: 08–BIS–0005. Control Regulations, 73 FR 43603 (July, 23, 2008). Continued

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Motion to Dismiss and Demand for a jurisdiction to adjudicate the case based Running of the Court’s Scheduling Hearing on the Motion to Dismiss. With on a Federal Civil Procedure process for Order is moot. Likewise any other said filing, Respondent submitted a civil lawsuits that does not apply to Motions pending in this case are moot. Memorandum of Points and Authorities administrative regulation matters. This III. Recommended Findings of Fact in support of its Motion to Dismiss argument was rejected with an wherein Respondent made numerous explanation of BIS’s and the Court’s In light of the Respondent’s failure to arguments and included extensive jurisdiction along with a brief file an answer within the time provided, discussion. After prehearing scheduling restatement of how administrative law the facts alleged in the Amended matters, including various filings, and functions. Charging Letter are found proven. 15 interim Orders which need not be Respondent’s Motion to Dismiss CFR 766.7(a). The facts found proven discussed here, BIS filed its Opposition could have been considered as non include the following: to Respondent’s Motion to Dismiss on responsive and subject to default 1. Micei International is a company of November 25, 2008,4 BIS addressed because it was not in proper form to be Skopje, Macedonia. Respondent’s Motion to Dismiss and the considered either as an Answer to the 2. Micei has a regional office in arguments and authorities contained Charges or as a Motion permitted by the Seattle, WA. therein. On December 16, 2008 regulations. Since Respondent’s Motion 3. The supplier at issue in this case is Respondent submitted its Reply to BIS’s to Dismiss was not sufficient as an a U.S. supplier. Opposition to Respondent’s Motion to Answer, it was considered and analyzed 4. Iki Malinkovski was the vice Dismiss.5 as if it were a Motion for Summary president of Micei at all relevant times. On December 22, 2008, this Court Decision. The Motion was insufficient 5. Yuri Montgomery is an individual issued an Order denying Respondent’s as a Motion for Summary Decision as subject to a BIS Denial Order at all Motion to Dismiss and Demand for well in that it failed to establish that relevant times. Hearing on the Motion to Dismiss. there was no genuine issue of material 6. The Denial Order regarding Yuri Respondent’s demand for a hearing on fact and that based on the facts Montgomery dated September 11, 2000, the Motion to Dismiss was denied Respondent was entitled to judgment as was published in the Federal Register because the Regulations do not provide a matter of law. The Motion was denied on September 22, 2000 (65 FR 57,313), for such a procedural step and because on December 22, 2008 and a Scheduling and has been and continued to be the parties already fully briefed the Order was issued that directed effective until January 22, 2009. Court on the Motion to Dismiss, thus Respondent to file an Answer by 7. Under the terms of the Denial rendering a hearing on the matter January 12, 2009. Order, Montgomery ‘‘may not directly or unnecessary. After extensive briefing by On January 9, 2009, BIS filed a Notice indirectly, participate in any way in any the parties, Respondent’s Motion to of Amended Charging Letter containing transaction involving any [item] Dismiss was similarly denied because limited additional allegations involving exported or to be exported from the the Regulations do not provide for this the same charged violation. The United States, that is subject to the procedural step, it was not sufficient to amendments asserted additional Regulations, or in any other activity be a Motion for Summary Decision, and support for the allegations that subject to the Regulations, including because there was no merit to Respondent conducted itself with [c]arrying on negotiations concerning, or Respondent’s position. At the core of knowledge that a violation of ordering, buying, receiving, using, Respondent’s argument was an assertion Montgomery’s Denial Order would selling, delivering, storing, disposing of, that this Court somehow lacked occur. This amendment was allowed by forwarding, transporting, financing, or rule because Respondent had yet to file otherwise servicing in any way, any company president step in as a non attorney an answer at that time. 15 CFR 766.3(a). transaction involving any item exported representative until replacement counsel could be An Answer to the Amended Charging or to be exported from the United States obtained. As noted in the file, the Respondent’s Letter was due on February 10, 2009 in that is subject to the regulations, or in counsel was not permitted to withdraw until after any other activity subject to the the Motion to Dismiss was resolved. On December keeping with the regulations that 11, 2008, Mr. Vasko Tomanovic filed a Notice of require an Answer within 30 days of regulations; or * * * [b]enefiting in any Appearance of Respondent’s Substitute Counsel. It notice of the amendment to the charges. way from the transaction involving any is unclear whether Mr. Tomanovic is now the sole 15 CFR 766.6(a). item exported or to be exported from the representative or whether the company president On February 23, 2009, Respondent United States that is subject to the who has been serving as a non attorney representative retains any involvement as a filed a Motion for a More Definite Regulations or in any other activity representative. Unless the Court is notified to the Statement and Demand for Hearing. subject to the Regulations.’’ contrary, Mr. Tomanovic and the company This motion repeats much of the 8. On July 2, 2003, Micei authorized, president will be treated as joint representatives in argument asserted in the Motion to requested, and/or arranged for this case. Dismiss that was denied by the Order of Montgomery to negotiate for and/or 4 Note that BIS’s November 25, 2008 filing is a corrected version of a previous filing. For December 22, 2008. purchase 61 pair of Magnum boots simplicity, BIS’s November 25, 2008 filing will be On March 24, 2009, BIS filed a valued at $3,355 for or on behalf of discussed as if it were BIS sole opposition to Motion for Default Order and Micei for export from the United States Respondent’s Motion to Dismiss. Opposition to Respondent’s Motion for to Micei in Macedonia. On the same day 5 A Notice of Filing Corrected Version of Respondent’s Reply Memorandum of Points and a More Definite Statement. BIS sought a and acting through its employee or Authorities in Support of Memorandum to Dismiss civil penalty of $126,000 and a five (5) agent Montgomery, Micei Ordered, was submitted by Vasko Tomanovic on behalf of year denial of export privileges for bought, sold, used and/or financed this Respondent Micei on December 18, 2008. This also Micei. On April 1, 2009, BIS filed a purchase with knowledge that included a declaration in support of the motion by Iki Malinkovski which contains various asserted Motion to Stay Further Running of the Montgomery would be violating his ‘‘facts’’ regarding the Micei company and its Court’s Scheduling Order. As discussed Denial Order. Montgomery participated interaction with his Uncle Yuri Montgomery. Since below, Respondent’s Motion for a More in and benefited from this transaction. the motion was denied and no responsive Answer Definite Statement is denied and BIS’s 9. On July 18, 2003, Micei authorized, or pleading has been filed by Micei, none of the matters asserted in support of the motion will be Motion for Default is granted. This requested, and/or arranged for considered either as admissions or as a basis for Order fully resolves this matter, Montgomery to negotiate for and/or Micei to deny or contest the charged violations. therefore BIS’s Motion to Stay Further purchase 2 firing range clearing devices

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valued at $1,136 for or on behalf of 017 for or on behalf of Micei for export as ‘‘[a]ny article, material, or supply.’’ Micei for export from the United States from the United States to Micei in 15 CFR 772.1. This case involves the to Micei in Macedonia. On the same day Macedonia. On the same day and acting materials noted in the charges as being and acting through its employee or through its employee or agent exported to Macedonia by the action of agent Montgomery, Micei Ordered, Montgomery, Micei Ordered, bought, Micei and its agents or employees, bought, sold, used and/or financed this sold, used and/or financed this including: Boots, firing range clearing purchase with knowledge that purchase with knowledge that devices, shoes, remote strobe tubes, Montgomery would be violating his Montgomery would be violating his shirts, load binders, a ratchet strap, a Denial Order. Montgomery participated Denial Order. Montgomery participated binder chain, a safety shackles, and in and benefited from this transaction. in and benefited from this transaction. other items included in order 10. On August 5, 2003, Micei 15. To further facilitate these #25473620/017. The various goods at authorized, requested, and/or arranged purchases, Micei contacted Montgomery issue in this case are clearly articles, for Montgomery to negotiate for and/or and provided information on the items materials, and supplies and are purchase 10,800 pair of boots with an to be ordered and their approximate therefore commodities, and thus are undetermined value for or on behalf of cost, and identified the vendors from ‘‘items’’ under the regulations. Since Micei for export from the United States which to order them. With Micei’s their supplier was located in the U.S., to Micei in Macedonia. On the same day knowledge and/or permission, they were of U.S. origin and therefore and acting through its employee or Montgomery operated or held himself subject to the EAR, giving BIS regulatory agent Montgomery, Micei Ordered, out as Micei’s employee or agent, authority. bought, sold, used and/or financed this including indicating in an e-mail to a purchase with knowledge that 2. BIS Authority Over Micei and U.S. supplier that Micei had a U.S. Montgomery Montgomery would be violating his regional office in Seattle, Washington, Denial Order. Montgomery participated where Montgomery was located, and At the time in question, the EAR in and benefited from this transaction. that Micei was interested in forming a affirmatively stated that no ‘‘person’’ 11. On August 5, 2003, Micei distributorship relationship with the may engage in a variety of prohibited authorized, requested, and/or arranged supplier. That e-mail was copied to acts. 15 CFR 764.2(b), (e). The EAR for Montgomery to negotiate for and/or Micei’s president and signed by defines a person as a ‘‘natural person, purchase 45 pair of Oxford shoes and 5 Montgomery with ‘‘Micei Int’l including a citizen or national of the remote strobe tubes valued at $2,562 for Reg[ional] Office].’’ United States or of any foreign country; or on behalf of Micei for export from the any firm;* * * and any other United States to Micei in Macedonia. IV. Discussion association or organization whether or not organized for profit.’’ 15 CFR 772.1. On the same day and acting through its A. Application of EAR and EAA to From the plain language of the export employee or agent Montgomery, Micei Respondent and to Montgomery Ordered, bought, sold, used and/or laws and Regulations, it is clear that the financed this purchase with knowledge Throughout this enforcement EAA and EAR were intended to apply that Montgomery would be violating his proceeding, Micei has repeatedly to natural persons and companies Denial Order. Montgomery participated contended that the Bureau lacks extraterritorially, regardless of a in and benefited from this transaction. jurisdiction over Micei and the relevant person’s or company’s nationality or 12. On August 13, 2003, Micei transactions at issue in this case. These locality, so long as items subject to the authorized, requested, and/or arranged arguments are rejected and have been EAR are involved. In the Matter of for Montgomery to negotiate for and/or fully discussed in a previous Order. The Mahdi, 68 FR 57406–02 (Oct. 3, 2003). purchase 150 shirts valued at $1,744 for jurisdictional grounds for this Thus, it is immaterial whether Micei or on behalf of Micei for export from the enforcement action are nevertheless and/or Montgomery are of a foreign United States to Micei in Macedonia. briefly outlined below. county. To hold otherwise would On the same day and acting through its The authority delegated by Congress contravene existing law and regulations, employee or agent Montgomery, Micei to the President of the United States and would completely undermine the Ordered, bought, sold, used and/or under the EAA is extensive. The EAA effectiveness of the EAA and the EAR. financed this purchase with knowledge gives the President authority to regulate Both Micei and Montgomery are persons that Montgomery would be violating his or prohibit the export of goods, subject to the EAR through their actions Denial Order. Montgomery participated technology, and information ‘‘to the in exporting activity, giving BIS in and benefited from this transaction. extent necessary to further the foreign regulatory authority over them. 13. On September 9, 2003, Micei policy of the United States or fulfill its authorized, requested, and/or arranged international obligation.’’ 50 U.S.C. app. B. Default for Montgomery to negotiate for and/or 2405(a)(1). Generally, the Agency has the burden purchase 2 load binders, 1 ratchet strap, of proving the allegations in the 1. BIS Authority Over These Items 1 binder chain, and 1 safety shackle for Charging Letter by reliable, probative, or on behalf of Micei for export from the The instant case involves various and substantial evidence. 5 U.S.C. United States to Micei in Macedonia. goods supplied to Micei through a U.S. 556(d). When the respondent fails to file On the same day and acting through its supplier for shipment abroad to an answer within the time provided, employee or agent Montgomery, Micei Macedonia. Based on the above however, this ‘‘constitutes a waiver of Ordered, bought, sold, used and/or referenced authority, the Regulations the respondent’s right to appear and financed this purchase with knowledge specify that ‘‘all U.S. origin items contest the allegations in the charging that Montgomery would be violating his wherever located’’ are subject to the letter. In such event, the administrative Denial Order. Montgomery participated EAR and are therefore ‘‘items * * * law judge, on BIS’s motion and without in and benefited from this transaction. over which BIS exercises regulatory further notice to the respondent, shall 14. On October 8, 2003, Micei jurisdiction under the EAR.’’ 15 CFR find the facts to be as alleged in the authorized, requested, and/or arranged 734.3(a)(1)–(a)(2). The Regulations charging letter and render an initial or for Montgomery to negotiate for and/or further specify that ‘‘item’’ simply recommended decision containing purchase Items in Order # 25473620/ means ‘‘commodity,’’ which is defined findings of fact and appropriate

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conclusions of law and issue or Respondent’s pattern of declining to 1253, 1258–9 (D.C. Cir. 1993) recommend an order imposing follow the regulatory requirement of (upholding the Department of appropriate sanctions.’’ 15 CFR 766.7(a). filing an Answer in this case. This filing Commerce’s reading of the Regulations In the instant case, BIS filed its was not at all responsive to BIS’s as allowing for strict liability charges); original Charging Letter on July 1, 2008. Amended Charging Letter and did not In the Matter of Kabba & Amir As previously discussed, Respondent admit or deny specifically each separate Investments, Inc., d.b.a. Int’l Freight did not file an Answer as required allegation of the Amended Charging Forwarders, 73 FR 25649, 25652 (May 7, under the Regulations, but instead filed Letter. 15 CFR 766.6(b). Respondent has 2008) (concluding that Section 764.2(b) a Motion to Dismiss on September 17, instead restated the previously rejected is a strict liability offense), aff’d by 2008. This Motion was denied, but in argument that no jurisdiction exists in Under Secretary, 73 FR 25648; see also giving Respondent the benefit of the this case and fell short of satisfying its In the Matter of Petrom GmbH Int’l doubt, this filing was treated as a regulatory requirement to file an Trade, 70 FR 32743, 32754 (June 6, Motion for Summary Decision and Answer to BIS’s Amended Charging 2005). Micei can be found to have Respondent’s time to file an Answer Letter. The Respondent has previously counseled, aided, or abetted was extended to January 12, 2009. Prior been provided with copies of the Montgomery to violate his Denial Order to this deadline on January 9, 2009, BIS procedural regulations and has been by the Agency demonstrating that Micei filed an Amended Charging Letter given several opportunities to participated in the transactions noted in adding limited additional allegations participate in the process provided by Charges 1–7 and that Montgomery was serving the same on Respondents via the regulations to contest these charges. a ‘‘person denied export privileges’’ and courier and facsimile. This amendment Respondent has declined to take subject to a BIS Denial Order. That is, was allowed by rule since Respondent advantage of this opportunity. these charges can be found proven had not yet filed an Answer. 15 CFR On March 24, 2009, BIS filed a against Micei if the actions that 766.3(a). Pursuant to 15 CFR 766,6(a), a Motion for Default Order arguing that Montgomery was taking in connection Respondent must answer ‘‘within 30 Respondent has yet to file an Answer as with Micei would constitute a violation days of notice of any supplement or required under the Regulations. BIS of an active Denial Order. Here, the amendment to a charging letter, unless argued that Respondent’s Answer was Respondent is in default and the facts time is extended under § 766.16 of this actually due on February 9, 2009, but alleged in the charges are deemed part.’’ Since there have been no due not later then February 19, 2009 proven. I find that the alleged conduct extensions given under § 766.16, under any conceivable construction of would violate the Denial Order. Respondent’s Answer to the Amended the Regulations. I agree. On September 22, 2000, Montgomery Charging Letter would have been due on As of the date of this Order (April 14, became a ‘‘person denied export February 9, 2009. 2009) Respondent has still failed to file privileges’’ when BIS issued a Denial Respondent submitted its next filing an Answer (or any other permitted Order against him effective until in this case on February 23, 2009. In responsive pleading under the January 22, 2009. The Denial Order was addition to the fact that this filing was Regulations) to BIS’s Amended Charging published in the Federal Register on submitted 14 days after the due date for Letter. In light of the fact that September 22, 2000 (65 FR 57313) and Respondent to file an Answer, it was not Respondent has still not filed an was in continuous effect from an Answer in form or substance. Answer after being given multiple September 22, 2000 to January 22, 2009 Instead, it was titled Respondent’s opportunities to properly contest this and continued in force at the time of the Motion for a More Definite Statement case within the process provided by the actions alleged in the charges. and Demand for Hearing. In this filing, Regulations, BIS’s Motion is granted and The Amended Charging Letter alleges Respondent again asserted its previous Respondent is held to be in default. As that Montgomery’s Denial Order argument that BIS and the Court lack such, the findings of fact contained in mandates that Montgomery ‘‘may not jurisdiction in this case. Furthermore, this Order are found as alleged in the directly or indirectly, participate in any this filing was not at all responsive to Amended Charging Letter. 15 CFR way in any transaction involving any BIS’s Amended Charging Letter and did 766.7(a). Appropriate conclusions of [item] exported or to be exported from not admit or deny specifically each law and the recommended sanctions the United States, that is subject to the separate allegation of the Amended will be based thereon. Id. Regulations, or in any other activity Charging Letter as required under the subject to the Regulations, including Regulations. 15 CFR 766.6(b). C. Violations of the EAA and EAR [carrying on negotiations concerning, or On March 5, 2009, Respondent made Micei has been charged with seven (7) ordering, buying, receiving, using, three additional filings—Response to counts of counseling, aiding, and selling, delivering, storing, disposing of, BIS’s Request for Admissions by abetting Montgomery to violate a BIS forwarding, transporting, financing, or Respondent Micei International, Denial Order, and with seven (7) counts otherwise servicing in any way, any Response to BIS’s First set of of acting with knowledge of a violation. transaction involving any item exported Interrogatories and Requests for or to be exported from the United States production of Documents by 1. Causing, Aiding or Abetting the that is subject to the regulations, or in Respondent Micei International, and Violation of a Denial Order, 15 CFR any other activity subject to the Response to BIS’s Second set of 764.2(b) regulations; or * * * [b]enefiting in any Interrogators and Requests for ‘‘No person may cause or aid, abet, way from the transaction involving any Production of Documents by counsel, command, induce, procure, or item exported or to be exported from the Respondent Micei International. Similar permit the doing of any act prohibited, United States that is subject to the to Respondent’s previous filing, these or the omission of any act required, by Regulations or in any other activity three filings were submitted well after the EAA, the EAR, or any order, license subject to the Regulations.’’ Respondent’s time to file an Answer to or authorization issued thereunder.’’ 15 As previously discussed, in view of BIS’s Amended Charging Letter and CFR 764.2(b). As with most of the 764.2 Respondent Micei’ s failure to answer cannot be construed to constitute an provisions, 764.2(b) of the Regulations the charges, Micei has waived the right Answer in form or substance. Instead, is a strict liability offense. See 15 CFR to contest the facts as alleged in the these filings amount to a continuation of 764.2; Iran Air v. Kugelman, 996 F.2d Amended Charging Letter in keeping

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with 15 CFR 766.7(a). The Amended subject to the EAR, with knowledge that knowledge of a violation when it Charging Letter clearly alleges that a violation of the EAA, the EAR, or any caused, aided, or abetted Montgomery to Montgomery directly and indirectly order, license or authorization issued violate a standing BIS Denial Order. participated in at least seven (7) thereunder, has occurred, is about to transactions involving items to be occur, or is intended to occur in VI. Recommended Sanction exported from the United States to connection with the item.’’ BIS has proposed a sanction against Macedonia. This occurred when In the Amended Charging Letter, BIS Micei of a five- (5)-year denial of U.S. Montgomery negotiated to be a alleged that Micei had actual and export privileges under 15 CFR purchasing agent for Micei for the boots, constructive knowledge that a violation 764.3(a)(2) and a $126,000.00 civil firing range clearing devices, shoes, of Montgomery’s Denial Order has penalty under 15 CFR 764.3(a)(1). BIS remote strobe tubes, shirts, load binders, occurred, is about to occur, or is argues that this penalty is appropriate a ratchet strap, a binder chain, safety intended to occur in connection with because Micei has deliberately shackles, and other items included in the items and transactions at issue in participated in multiple export order #25473620/017. These goods are this case. Specifically, BIS alleged that transactions of items from the United subject to the Regulations because they shortly after the alleged transactions States to Macedonia involving are items of U.S. origin. The Amended occurred, Micei, through its vice violations of a BIS Denial Order with Charging Letter goes on to allege that president, told BIS special investigators knowledge of the violations. BIS goes on Montgomery participated in and that Micei was aware of Montgomery’s to assert that Micei has demonstrated a benefited from these transactions. Denial Order. BIS goes on to allege that ‘‘severe and blatant disregard for U.S. There is no doubt that the facts Montgomery’s Denial Order was export control laws’’ and that this is alleged in the Amended Charging Letter published in the Federal Register highlighted by Respondent’s conduct are sufficient to show that Montgomery imputing knowledge to Micei that was subject to an active Denial Order Montgomery was a ‘‘person denied during the various phases of this and that his actions constituted a export privileges’’ at all relevant times. Enforcement Action. violation of said Denial Order on each It is therefore clear that the allegations BIS cites several previous export of the seven (7) transactions alleged in are adequate to support the charges that enforcement cases wherein similar the Amended Charging Letter. Clearly Micei acted ‘‘with knowledge’’ that conduct and violations were assessed a then, Micei’s authorizing, requesting, Montgomery was subject to a Denial penalty comparable to that which has and/or arranging Montgomery’s actions Order. In keeping with 15 CFR 766.7(a), been proposed in this case. In the Matter to purchase boots, firing range clearing the facts as alleged are therefore of Suburban Guns (Pty) Ltd., Docket No. devices, shoes, remote strobe tubes, sufficient to prove the seven (7) 05–BIS–02, 70 FR 69,314 (Nov. 15, shirts, load binders, a ratchet strap, a additional violations in connection with 2005). In Suburban Guns, the ALJ found binder chain, safety shackles, and other the negotiations and transactions by that Respondent ordered firearm parts items included in order #25473620/017 Montgomery and Micei at issue in this and accessories from a U.S. supplier and constitute causing, aiding, abetting, case. had them exported from the U.S. to its counseling, commanding, inducing, location in South Africa on two V. Recommended Conclusions of Law procuring, or permitting Montgomery to occasions in violation of a standing violate said Denial Order. Since 1. The boots, firing range clearing Denial Order. The ALJ recommended a knowledge is not a required element for devices, shoes, remote strobe tubes, five- (5)-year denial of export privileges the first seven (7) charges, these facts shirts, load binders, a ratchet strap, a and a civil penalty of $44,000. However, alone are sufficient to find that Micei’s binder chain, safety shackles, and other each case is determined separately actions constitute seven (7) violations of items included in order #25473620/017 based on the individual facts and the EAR as charged. at issue in this case are items subject to circumstances presented. the Regulations, giving BIS regulatory 2. Acting With Knowledge of a Violation While Micei’s conduct in the instant 15 CFR 764.2(e) authority. 2. Both Montgomery and Micei are case is, to some extent, analogous to that BIS has also charged Respondent with ‘‘persons’’ subject to the Regulations, of the respondents in the above seven (7) charges alleging that Micei giving BIS regulatory authority. mentioned cases, the information in the was acting with knowledge of a 3. Micei has failed to file an Answer record could support an assertion that violation with regard to Montgomery’s to BIS’s Amended Charging Letter as the violations are intentional and that violation of his Denial Order. As required by the Regulations and upon could justify a significantly harsher discussed above, Montgomery was BIS’s Motion, Micei is found to be in penalty than that which BIS proposes. subject to an active BIS Denial Order default. Micei has failed to contest for the and that his actions and attempted 4. Because Micei has been found to be charged violation of U.S. export laws actions were in direct contradiction or in default, the facts have been found as and regulations in declining to follow violation of the Denial Order. The alleged in the Amended Charging Letter. the Regulations provided and failing to question then is whether Micei’s actions 5. At all relevant times, Montgomery meet the deadlines provided in the in regard to Montgomery’s violation of was subject to a BIS Denial Order and Regulations and by the Orders issued in the Denial Order were taken ‘‘with violated said Denial Order seven (7) this matter. However, since the record knowledge’’ of a violation. I find that times between on or about July 2, 2003 in this matter is limited because it is they were and that knowledge of a and on or about October 8, 2003. being decided on a default motion, and violation was present. 6. On seven (7) occasions between on Micei has also waived an opportunity to The Regulations mandate that ‘‘[n]o or about July 2, 2003 and on or about present any mitigating evidence it may person may order, buy, remove, conceal, October 8, 2003 Micei caused, aided, or have, I do not recommend increasing store, use, sell, loan, dispose of, transfer, abetted Montgomery to violate a the penalty proposed by BIS. Therefore, transport, finance, forward, or otherwise standing BIS Denial Order. I recommend that BIS’s proposed service, in whole or in part, any item 7. On seven (7) occasions between on penalty of a five- (5)-year denial of exported or to be exported from the or about July 2, 2003 and on or about export privileges and a $126,000 civil United States, or that is otherwise October 8, 2003 Micei acted with penalty are deemed appropriate.

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VII. Recommended Order Industry and Security, Office of Chief receipt of any response(s) in which to Counsel for Industry and Security. submit replies. Any response or reply [REDACTED SECTION] U.S. Department of Commerce, Room must be received within the time [REDACTED SECTION] H–3839, 14th Street & Constitution specified by the Under Secretary. The Recommended Decision and Avenue, NW., Washington, DC 20230. (c) Final decision. Within 30 days Order is being referred to the Under Fax: 202–482–0085. Sent by Facsimile after receipt of the recommended Secretary for review and final action. As and Federal Express. decision and order, the Under Secretary provided by Section 766.17(b)(2) of the Vasko Tomanovic, Counsel for shall issue a written order affirming, EAR, the recommended decision and Respondent, ‘‘Kaminik’’ b.b., 1000 modifying or vacating the recommended order is being served by express mail. Skopje, Republic of Macedonia. Tel: decision and order of the administrative Because the Under Secretary must 389–70–436068. Fax: 41–44–567– law judge. If he/she vacates the review the decision in a short time 1892. Sent by Facsimile and Federal recommended decision and order, the frame, all papers filed with the Under Express. Under Secretary may refer the case back Secretary in response to the ALJ Docketing Center, Attn: Hearing to the administrative law judge for recommended decision and order must Docket Clerk, United States Coast further proceedings. Because of the time be sent by personal delivery, facsimile, Guard, 40 South Gay Street, Rm. 412, limits, the Under Secretary’s review will ordinarily be limited to the written express mail, or other overnight carrier Baltimore, MD 21202. Fax: 410–962– record for decision, including the as provided in Section 766.22(a) of the 1746. Sent by Facsimile and Federal transcript of any hearing, and any EAR. Submissions by the parties must Express. submissions by the parties concerning be filed with the Under Secretary for Mr. Iki Malinkovski, Micei the recommended decision. Export Administration, Bureau of International, Kaminik b.b., 1000 Skopje, Republic of Macedonia. Fax: (d) Delivery. The final decision and Industry and Security, U.S. Department implementing order shall be served on of Commerce, Room H–3898, 14th Street 011–389–2252–2039. Sent by Facsimile and Federal Express. the parties and will be publicly and Constitution Avenue, NW., available in accordance with § 766.20 of Done and dated April 14, 2009. Washington, DC 20230, within 12 days this part. from the date of issuance of this Janice L. Parker, (e) Appeals. The charged party may Recommended Decision and Order. Paralegal Assistant to the appeal the Under Secretary’s written Thereafter, the parties have eight days Administrative Law Judge. order within 15 days to the United from receipt of any response(s) in which Notice to the Parties Regarding States Court of Appeals for the District to submit replies. Review by Under Secretary. of Columbia pursuant to 50 U.S.C. app. Within 30 days after receipt of this Title 15—Commerce and Foreign Trade. 2412(c)(3). Recommended Decision and Order, the Subtitle B—Regulations Relating to [FR Doc. E9–11885 Filed 5–22–09; 8:45 am] Under Secretary shall issue a written Commerce and Foreign Trade. order, affirming, modifying or vacating Chapter VII—Bureau of Industry and BILLING CODE M the recommended decision and order. Security, Department of Commerce. See 15 CFR 766.22(c). Subchapter C—Export Administration DEPARTMENT OF COMMERCE PLEASE TAKE NOTE THAT Regulations. Respondent has one year from the date Part 766—Administrative Enforcement International Trade Administration of entry of this Order to file a petition Proceedings. to vacate this default order. 15 CFR 15 CFR 766.22. A–552–802 766.7(b). Administrative Law Judge in Norfolk, § 766.22 Review by Under Secretary Certain Frozen Warmwater Shrimp from the Socialist Republic of Vietnam: Virginia. (a) Recommended decision. For Final Results of the Second New Done and dated April 14, 2009. proceedings not involving violations Shipper Review Norfolk, VA. relating to part 760 of the EAR, the Hon. Michael J. Devine, administrative law judge shall AGENCY: Import Administration, Administrative Law Judge, U.S. Coast immediately refer the recommended International Trade Administration, Guard. decision and order to the Under Department of Commerce. 6. United States Coast Guard Secretary. Because of the time limits SUMMARY: The Department of Commerce Administrative Law Judges perform provided under the EAA for review by (‘‘Department’’) is conducting a new adjudicatory functions for the Bureau of the Under Secretary, service of the shipper review of BIM Seafood Joint Industry and Security with approval recommended decision and order on the Stock Company (‘‘BIM Seafood’’) and from the Office of Personnel parties, all papers filed by the parties in the antidumping duty order on certain Management pursuant to a response, and the final decision of the frozen warmwater shrimp from the memorandum of understanding between Under Secretary must be by personal Socialist Republic of Vietnam the Coast Guard and the Bureau of delivery, facsimile, express mail or (‘‘Vietnam’’). See Notice of Amended Industry and Security. other overnight carrier. If the Under Final Determination of Sales at Less Secretary cannot act on a recommended Than Fair Value and Antidumping Duty Certificate of Service decision and order for any reason, the Order: Certain Frozen Warmwater I hereby certify that I have served the Under Secretary will designate another Shrimp From the Socialist Republic of foregoing Scheduling Order upon the Department of Commerce official to Vietnam, 70 FR 5152 (February 1, 2005) following parties (or designated receive and act on the recommendation. (‘‘Shrimp Order.’’) We preliminarily representatives) at the address indicated (b) Submissions by parties. Parties found that BIM Seafood did not sell below: shall have 12 days from the date of subject merchandise at less than normal Eric Clark, Attorney-Advisor and Parvin issuance of the recommended decision value (‘‘NV’’) and thus assigned a zero Huda, Senior Counsel, and Joseph and order in which to submit margin for the period of review Jest, Chief of Enforcement and simultaneous responses. Parties (‘‘POR’’), February 1, 2007, through Litigation, Attorneys for Bureau of thereafter shall have eight days from January 31, 2008. See Certain Frozen

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Warmwater Shrimp from the Socialist raw, or otherwise processed in frozen total weight after being dusted, but prior Republic of Vietnam: Preliminary form. to being frozen; and 5) that is subjected Results of the Second New Shipper The frozen warmwater shrimp and to individually quick frozen (‘‘IQF’’) Review, 74 FR 4924 (January 28, 2009) prawn products included in the scope of freezing immediately after application (‘‘Preliminary Results’’). Based upon our the order, regardless of definitions in of the dusting layer. Battered shrimp is analysis of the comments and the Harmonized Tariff Schedule of the a shrimp–based product that, when information received, we made changes United States (‘‘HTSUS’’), are products dusted in accordance with the to the margin calculations for the final which are processed from warmwater definition of dusting above, is coated results. The final margin is listed below shrimp and prawns through freezing with a wet viscous layer containing egg in the section entitled, ‘‘Final Results of and which are sold in any count size. and/or milk, and par–fried. the Review.’’ The products described above may be The products covered by the order are EFFECTIVE DATE: May 26, 2009. processed from any species of currently classified under the following FOR FURTHER INFORMATION CONTACT: warmwater shrimp and prawns. Warmwater shrimp and prawns are HTSUS subheadings: 0306.13.00.03, Emeka Chukwudebe, AD/CVD 0306.13.00.06, 0306.13.00.09, Operations, Office 9, Import generally classified in, but are not 0306.13.00.12, 0306.13.00.15, Administration, International Trade limited to, the Penaeidae family. Some 0306.13.00.18, 0306.13.00.21, Administration, U.S. Department of examples of the farmed and wild– 0306.13.00.24, 0306.13.00.27, Commerce, 14th Street and Constitution caught warmwater species include, but 0306.13.00.40, 1605.20.10.10, and Avenue, NW, Washington DC 20230; are not limited to, whiteleg shrimp telephone: (202) 482–0219. (Penaeus vannemei), banana prawn 1605.20.10.30. These HTSUS (Penaeus merguiensis), fleshy prawn subheadings are provided for SUPPLEMENTARY INFORMATION: (Penaeus chinensis), giant river prawn convenience and for customs purposes Case History (Macrobrachium rosenbergii), giant tiger only and are not dispositive, but rather On January 28, 2009, the Department prawn (Penaeus monodon), redspotted the written description of the scope of published in the Federal Register the shrimp (Penaeus brasiliensis), southern the order is dispositive. brown shrimp (Penaeus subtilis), preliminary results of this second new Analysis of Comments Received shipper review. On February 27, 2009, southern pink shrimp (Penaeus BIM Seafood filed comments regarding notialis), southern rough shrimp All issues raised in the comments by the Department’s Preliminary Results. (Trachypenaeus curvirostris), southern BIM Seafood are addressed in the On March 20, 2009, the Department white shrimp (Penaeus schmitti), blue concurrent Issues and Decision shrimp (Penaeus stylirostris), western issued a revised margin analysis Memorandum (‘‘Issues and Decision white shrimp (Penaeus occidentalis), memorandum to the file. See Memo’’), which is hereby adopted by and Indian white prawn (Penaeus Memorandum to the File, from Emeka this notice. A list of the issues which Chukwudebe, Case Analyst, Office 9, indicus). Frozen shrimp and prawns that are BIM Seafood raised and to which we Import Administration, through Alex respond in the Issues and Decision Villanueva, Program Manager, Office 9, packed with marinade, spices or sauce are included in the scope of the order. Memo is attached to this notice as an regarding ‘‘New Shipper Review of Appendix. The Issues and Decision Certain Frozen Warmwater Shrimp from In addition, food preparations, which are not ‘‘prepared meals,’’ that contain Memo is a public document and is on the Socialist Republic of Vietnam’’ file in the Central Records Unit dated March 20, 2009 (‘‘Revised Margin more than 20 percent by weight of shrimp or prawn are also included in (‘‘CRU’’), Main Commerce Building, Analysis Memo’’). We gave BIM Seafood Room 1117, and is accessible on the an opportunity to comment on the the scope of the order. Excluded from the scope are: 1) Web at http://www.trade.gov/ia. The Revised Margin Analysis Memo. On breaded shrimp and prawns (HTSUS paper copy and electronic version of the March 30, 2009, BIM Seafood filed subheading 1605.20.10.20); 2) shrimp memorandum are identical in content. comments regarding the Department’s and prawns generally classified in the Revised Margin Analysis Memo. No Changes Since the Preliminary Results Pandalidae family and commonly other party filed comments and no party referred to as coldwater shrimp, in any requested a public hearing. On April 15, Based on our analysis of information state of processing; 3) fresh shrimp and 2009, the Department extended the time and comments received regarding our prawns whether shell–on or peeled limit for the completion of the final Preliminary Results and Revised Margin (HTSUS subheadings 0306.23.00.20 and results of this new shipper review by 60 Analysis Memo, we have made 0306.23.00.40); 4) shrimp and prawns in days. See Certain Frozen Warmwater revisions to the margin calculations for prepared meals (HTSUS subheading Shrimp From the Socialist Republic of BIM Seafood. For all changes to the 1605.20.05.10); 5) dried shrimp and Vietnam: Extension of Time Limit for calculations, see the Issues and Decision prawns; 6) canned warmwater shrimp Final Results of the Second New Memo at Comment 1 and 2. and prawns (HTSUS subheading Shipper Review, 74 FR 17453 (April 15, 1605.20.10.40); 7) certain dusted Final Results of the Review 2009). shrimp; and 8) certain battered shrimp. Scope of the Order Dusted shrimp is a shrimp–based The Department has determined that product: 1) that is produced from fresh the final dumping margin for the POR The scope of the order includes is: certain frozen warmwater shrimp and (or thawed–from-frozen) and peeled prawns, whether wild–caught (ocean shrimp; 2) to which a ‘‘dusting’’ layer of CERTAIN FROZEN WARMWATER harvested) or farm–raised (produced by rice or wheat flour of at least 95 percent aquaculture), head–on or head–off, purity has been applied; 3) with the SHRIMP FROM VIETNAM shell–on or peeled, tail–on or tail–off,1 entire surface of the shrimp flesh Weighted–Average deveined or not deveined, cooked or thoroughly and evenly coated with the Manufacturer/Exporter flour; 4) with the non–shrimp content of Margin (Percent) 1 ‘‘Tails’’ in this context means the tail fan, which the end product constituting between BIM Seafood ...... 0.00 includes the telson and the uropods. four and 10 percent of the product’s

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Assessment Rates responsibility concerning the return or at the carbon fiber manufacturing plant Upon issuance of the final results, the destruction of proprietary information of Grafil, Inc., located in Sacramento, Department will determine, and U.S. disclosed under APO in accordance California (FTZ Docket 37–2007, filed 8/ Customs and Border Protection (‘‘CBP’’) with 19 CFR 351.305, which continues 14/2007); shall assess, antidumping duties on all to govern business proprietary Whereas, notice inviting public appropriate entries. The Department information in this segment of the comment has been given in the Federal intends to issue assessment instructions proceeding. Timely written notification Register (72 FR 48612, 8/24/07); and, to CBP 15 days after the date of of the return/destruction of APO Whereas, the Board adopts the publication of the final results of materials or conversion to judicial findings and recommendations of the review. Pursuant to 19 CFR protective order is hereby requested. examiner’s report, and finds that the 351.212(b)(1), we will calculate Failure to comply with the regulations requirements of the FTZ Act and the importer–specific (or customer) ad and terms of an APO is a violation Board’s regulations would be satisfied, valorem duty assessment rates based on which is subject to sanction. and that approval of the application the ratio of the total amount of the We are issuing and publishing this would be in the public interest, if dumping margins calculated for the determination in accordance with approval were subject to the condition examined sales to the total entered sections 751(a)(2)(B) and 777(i) of the listed below; value of those same sales. We will Act, and 19 CFR 351.214(h) and Now, therefore, the Board hereby instruct CBP to assess antidumping 351.221(b)(5). grants authority for subzone status for duties on all appropriate entries covered Dated: May 18, 2009. activity related to the manufacture of by this review if any importer–specific Ronald K. Lorentzen, carbon fiber at the Grafil, Inc., facilities, located in Sacramento, California assessment rate calculated in the final Acting Assistant Secretary for Import results of this review is above de Administration. (Subzone 143D), as described in the minimis. application and Federal Register notice, Appendix - Issues and Decision subject to the FTZ Act and the Board’s Cash–Deposit Requirements Memorandum regulations, including Section 400.28, The following cash deposit Comment 1: International Freight and also subject to the condition that requirements will be effective upon Comment 2: Raw Shrimp Count–Size approval is for an initial period of five publication of these final results of the Conversion years, subject to extension upon review. new shipper review for all shipments of [FR Doc. E9–12152 Filed 5–22–09; 8:45 am] Signed at Washington, DC, this 7th day of subject merchandise by BIM Seafood, BILLING CODE 3510–DS–S May 2009. entered, or withdrawn from warehouse, Ronald K. Lorentzen, for consumption on or after the Acting Assistant Secretary of Commerce for publication date, as provided by section DEPARTMENT OF COMMERCE Import Administration, Alternate Chairman, 751(a)(2)(C) of the Tariff Act of 1930, as Foreign-Trade Zones Board. Foreign-Trade Zones Board amended (‘‘Act’’): (1) for subject Andrew McGilvray, merchandise produced and exported by [Order No. 1620] Executive Secretary. BIM Seafood, the cash deposit rate will [FR Doc. E9–12129 Filed 5–22–09; 8:45 am] be zero; (2) for subject merchandise Grant of Authority for Subzone Status; exported by BIM Seafood, but not Grafil, Inc. (Carbon Fiber), Sacramento, BILLING CODE P manufactured by BIM Seafood, the cash CA deposit rate will continue to be the DEPARTMENT OF COMMERCE Vietnam–wide rate of 25.76 percent; and Pursuant to its authority under the (3) for subject merchandise Foreign-Trade Zones Act of June 18, 1934, as amended (19 U.S.C. 81a–81u), National Oceanic and Atmospheric manufactured by BIM Seafood, but Administration exported by any party other than BIM the Foreign-Trade Zones Board (the Seafood, the cash deposit rate will be Board) adopts the following Order: Hydrographic Services Review Panel; the rate applicable to the exporter. Whereas, the Foreign-Trade Zones Act Membership Solicitation These cash deposit requirements will provides for ‘‘* * * the establishment remain in effect until further notice. * * * of foreign-trade zones in ports of AGENCY: National Ocean Service, entry of the United States, to expedite National Oceanic and Atmospheric Reimbursement of Duties and encourage foreign commerce, and Administration (NOAA), Department of This notice also serves as a final for other purposes,’’ and authorizes the Commerce. reminder to importers of their Foreign-Trade Zones Board to grant to ACTION: Notice of membership responsibility under 19 CFR 351.402(f) qualified corporations the privilege of solicitation for Hydrographic Services to file a certificate regarding the establishing foreign-trade zones in or Review Panel. reimbursement of antidumping duties adjacent to U.S. Customs and Border prior to liquidation of the relevant Protection ports of entry; SUMMARY: This notice responds to the entries during this POR. Failure to Whereas, the Board’s regulations (15 Hydrographic Services Improvement comply with this requirement could CFR part 400) provide for the Act Amendments of 2002, Public Law result in the Department’s presumption establishment of special-purpose 107–372, which requires the Under that reimbursement of antidumping subzones when existing zone facilities Secretary of Commerce for Oceans and duties has occurred and the subsequent cannot serve the specific use involved, Atmosphere to solicit nominations for assessment of doubled antidumping and when the activity results in a membership on the Hydrographic duties. significant public benefit and is in the Services Review Panel (the Panel). This public interest; advisory committee will advise the Administrative Protective Orders Whereas, the Sacramento-Yolo Port Under Secretary on matters related to This notice also serves as a reminder District, grantee of FTZ 143, has made the responsibilities and authorities set to parties subject to administrative application to the Board for authority to forth in section 303 of the Hydrographic protective orders (‘‘APO’’) of their establish special-purpose subzone status Services Improvement Act of 1998, and

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such other appropriate matters as the hydrographic surveying, tides, currents, Dated: May 19, 2009. Under Secretary refers to the Panel for geodetic and geospatial measurements, Captain Steven Barnum, review and advice. marine transportation, port NOAA, Director, Office of Coast Survey, DATES: Re´sume´s should be sent to the administration, vessel pilotage, and National Ocean Service, National Oceanic address, e-mail, or fax specified and coastal or fishery management. An and Atmospheric Administration. must be received by June 26, 2009. individual may not be appointed as a [FR Doc. E9–12066 Filed 5–22–09; 8:45 am] ADDRESSES: Director, Office of Coast voting member of the Panel if the BILLING CODE P Survey, National Ocean Service, NOAA individual is a full-time officer or (N/CS), 1315 East West Highway, Silver employee of the United States. Any Spring, MD 20910, fax: 301–713–4019, voting member of the Panel who is an DEPARTMENT OF COMMERCE e-mail: [email protected]. applicant for, or beneficiary of (as determined by the Under Secretary) any National Oceanic and Atmospheric FOR FURTHER INFORMATION CONTACT: assistance under the Act shall disclose Administration Captain Steven Barnum, NOAA, to the Panel that relationship, and may Director, Office of Coast Survey, RIN 0648–XO71 not vote on any other matter pertaining National Ocean Service (NOS), NOAA to that assistance. (N/CS), 1315 East West Highway, Silver Incidental Takes of Marine Mammals Spring, Maryland 20910; Telephone: Voting members of the Panel serve a During Specified Activities; Low- 301–713–2770, Fax: 301–713–4019; four-year term, except that vacancy Energy Marine Seismic Survey in the e-mail: [email protected]. appointments shall be for the remainder Northeast Pacific Ocean, July 2009 of the unexpired term of the vacancy. SUPPLEMENTARY INFORMATION: Under 33 Members serve at the discretion of the AGENCY: National Marine Fisheries U.S.C. 883a, et seq., NOAA’s National Under Secretary and are subject to Service (NMFS), National Oceanic and Ocean Service (NOS) is responsible for government ethics standards. Any Atmospheric Administration (NOAA), providing nautical charts and related individual appointed to a partial or full Commerce. information for safe navigation. NOS term may be reappointed for one ACTION: Notice; proposed incidental collects and compiles hydrographic, additional full term. A voting member take authorization; request for tidal and current, geodetic, and a variety may serve until his or her successor has comments. of other data in order to fulfill this taken office. The Panel selects one responsibility. The Hydrographic voting member to serve as the Chair and SUMMARY: NMFS has received an Services Review Panel provides advice another to serve as the Vice Chair. The application from the Scripps Institution on topics such as ‘‘NOAA’s Vice Chair acts as Chair in the absence of Oceanography (SIO), a part of the Hydrographic Survey Priorities,’’ or incapacity of the Chair but will not University of California San Diego technologies relating to operations, automatically become the Chair if the (UCSD), for an Incidental Harassment research and development of data Chair resigns. Meetings occur at least Authorization (IHA) to take small pertaining to: twice a year, and at the call of the Chair numbers of marine mammals, by (a) Hydrographic surveying; or upon the request of a majority of the harassment, incidental to conducting a (b) Nautical charting; voting members or of the Under marine seismic survey in the Northeast (c) Water level measurements; Pacific Ocean during July 2009. (d) Current measurements; Secretary. Voting members receive compensation at a rate established by Pursuant to the Marine Mammal (e) Geodetic measurements; and Protection Act (MMPA), NMFS requests (f) Geospatial measurements. the Under Secretary, not to exceed the comments on its proposal to authorize The Panel comprises fifteen voting maximum daily rate payable under SIO to incidentally take, by Level B members appointed by the Under section 5376 of title 5, United States harassment only, small numbers of Secretary in accordance with section Code, when engaged in performing marine mammals during the 105 of Public Law 107–372. Members duties for the Panel. Members are aforementioned activity. are selected on a standardized basis, in reimbursed for actual and reasonable accordance with applicable Department expenses incurred in performing such DATES: Comments and information must of Commerce guidance. The Co-Director duties. be received no later than June 25, 2009. of the Joint Hydrographic Center and Panel members selected to serve on ADDRESSES: Comments on the two other employees of the National the HSRP FACA committee must application should be addressed to Oceanic and Atmospheric complete the following: Michael Payne, Chief, Permits, Administration serve as nonvoting (a) Security Clearance (on-line Conservation and Education Division, members of the Panel. The Director, Background Security Check process and Office of Protected Resources, National Office of Coast Survey, serves as the fingerprinting conducted through Marine Fisheries Service, 1315 East- Designated Federal Official (DFO). This NOAA Workforce Management); West Highway, Silver Spring, MD solicitation is to obtain candidate (b) Confidential Financial Disclosure 20910–3225. The mailbox address for applications for one current voting Report—As an SGE you are required to providing email comments is PR1.0648– vacancy on the Panel, and for five file a Confidential Financial Disclosure [email protected]. Comments sent via e- voting members whose terms expire Report to avoid involvement in a real or mail, including all attachments, must January 1, 2010, and candidates for apparent conflict of interest. You may not exceed a 10–megabyte file size. voting members who might resign at any find the Confidential Financial A copy of the application containing time during 2009. Be advised that some Disclosure Report at the following Web a list of the references used in this voting members whose terms expire site: http://www.usoge.gov/forms/ document may be obtained by writing to January 1, 2010, may be reappointed for form_450.aspx. the address specified above, telephoning another full term if eligible. (c) Certification of Status Statement the contact listed below (see FOR Voting members are individuals who, (certifying statement that as an SGE you FURTHER INFORMATION CONTACT), or by reason of knowledge, experience, or are not an agent of a foreign principal visiting the internet at: http:// training, are especially qualified in one or a lobbyist—document provided by www.nmfs.noaa.gov/pr/permits/ or more disciplines relating to NOAA). incidental.htm.

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Documents cited in this notice may be the close of the comment period, NMFS north of the seismically active zone may viewed, by appointment, during regular must either issue or deny issuance of be locked; others suggest that portion of business hours, at the aforementioned the authorization. the fault is slipping freely. OBSs have address. been deployed for a year, and a seismic Summary of Request FOR FURTHER INFORMATION CONTACT: survey will be used to characterize the On March 9, 2009, NMFS received an Howard Goldstein or Ken Hollingshead, shallow sediment structure around the application from SIO for the taking, by instruments. Also, included in the Office of Protected Resources, NMFS, Level B harassment only, of small 301–713–2289. research is the use of a magnetometer numbers of marine mammals incidental and sub-bottom profiler. SUPPLEMENTARY INFORMATION: to conducting, under cooperative The source vessel, the Wecoma, will Background agreement with the National Science deploy a single low-energy GI airgun as Foundation (NSF), a low-energy marine an energy source (with a discharge Sections 101(a)(5)(A) and (D) of the seismic survey in the Northeast Pacific volume of 45 in3) and a 300 m (984 ft), MMPA (16 U.S.C. 1361 et seq.) direct Ocean. The funding for the survey is 16 channel, towed hydrophone the Secretary of Commerce to allow, provided by the NSF. The proposed streamer. Sixteen OBSs were deployed upon request, the incidental, but not survey will occur in an overall area in July and September 2008. They will intentional, taking of marine mammals between approximately 44° and 45° N. continue to acquire data during this by United States citizens who engage in and 124.5° and 126° W. within the cruise, and will be recovered before a specified activity (other than Exclusive Economic Zone (EEZ) of the returning to port. The energy to the GI commercial fishing) within a specified U.S.A., and is scheduled to occur from airgun is compressed air supplied by geographical region if certain findings July 14–20, 2009. The survey will use a compressors onboard the source vessel. are made and either regulations are single Generator Injector (GI) airgun As the GI airgun is towed along the issued or, if the taking is limited to with a discharge volume of 45 in3. Some survey lines, the receiving systems will harassment, a notice of a proposed minor deviation from these dates is receive the returning acoustic signals. authorization is provided to the public possible, depending on logistics and The seismic program will consist of for review. weather. approximately 21 km (13 mi) of surveys Authorization for incidental taking The proposed survey is virtually over each of the 16 OBSs (see Figure 1 shall be granted if NMFS finds that the identical to one conducted by SIO in of SIO’s application). Water depths at taking will have a negligible impact on 2007 under an IHA issued in September the seismic survey locations rang from the species or stock(s), will not have an 2007 (NMFS 2007). The proposed SIO just less than 100 m (328 ft) to almost unmitigable adverse impact on the 2009 IHA application contains minor 3,000 m (9,842 ft) (see Figure 1 of SIO’s availability of the species or stock(s) for updates to the project description, application). The GI airgun will be subsistence uses, and if the permissible updated marine mammal population operated on a small grid for methods of taking and requirements sizes based on the most recent NMFS approximately two hours at each of the pertaining to the mitigation, monitoring annual stock assessment, an assessment 16 OBS sites. There will be additional and reporting of such takings are set of the relevance of the marine mammal seismic operations associated with forth. NMFS has defined ‘‘negligible density and distribution data contained equipment testing, start-ups, and repeat impact’’ in 50 CFR 216.103 as ’’...an in the SIO 2007 IHA application based coverage of any areas where initial data impact resulting from the specified on cruise reports from the NMFS quality is substandard. activity that cannot be reasonably SWFSC ORCAWHALE 2008 cruise, and All planned geophysical data expected to, and is not reasonably likely updated information on effects of acquisition activities will be conducted to, adversely affect the species or stock airguns on marine mammals (see by SIO with on-board assistance by the through effects on annual rates of Appendix A of SIO’s application). scientists who have proposed the study. recruitment or survival.’’ The Chief Scientist is Dr. Anne Trehu of Description of the Specified Activity Section 101(a)(5)(D) of the MMPA Oregon State University. The vessel will established an expedited process by SIO plans to conduct an ocean bottom be self-contained, and the crew will live which citizens of the United States can seismograph (OBS) deployment and a aboard the vessel for the entire cruise. apply for an authorization to magnetic, bathymetric, and seismic In addition to the seismic operations incidentally take small numbers of survey. The planned survey will involve of the single GI airgun, a 3.5 and 12 kHz marine mammals by harassment. Except one source vessel, the R/V Wecoma sub-bottom profiler will be used with respect to certain activities not (Wecoma), and will occur in the continuously throughout the cruise, and pertinent here, the MMPA defines Northeast Pacific Ocean off the coast of a magnetometer may be run on the ‘‘harassment’’ as: Oregon. transit between OBS locations. any act of pursuit, torment, or annoyance The purpose of the research program which (i) has the potential to injure a marine is to record micro-earthquakes in the Vessel Specifications mammal or marine mammal stock in the wild forearc to determine whether seismicity The Wecoma has a length of 56.4 m [ALevel A harassment@]; or (ii) has the on the plate boundary is characteristic (185 ft), a beam of 10.1 m (33.1 ft), and potential to disturb a marine mammal or of a locked or a freely slipping fault a maximum draft of 5.6 m (18.4 ft). The marine mammal stock in the wild by causing disruption of behavioral patterns, including, plane. Several earthquakes large enough ship is powered by a single 3,000–hp but not limited to, migration, breathing, to be recorded on land-based seismic EMD diesel engine driving a single, nursing, breeding, feeding, or sheltering nets have occurred along this segment controllable-pitch propeller through a [ALevel B harassment@]. in the past several years. The occurrence clutch and reduction gear, and an Section 101(a)(5)(D) establishes a 45– of ‘‘repeating earthquakes’’ (earthquakes electric 350–hp azimuthing bow day time limit for NMFS= review of an with identical waveforms indicating thruster. An operations speed of 11.1 application followed by a 30–day public repeated rupture of almost the same km/hour (6 knots) will be used during notice and comment period on any fault patch) suggests that this region is seismic acquisition. When not towing proposed authorizations for the at a boundary between a freely slipping seismic survey gear, the Wecoma cruises incidental harassment of small numbers and a locked portion of the fault. Some at 22.2 km/hour (12 knots) and has a of marine mammals. Within 45 days of models suggest that the forearc basin maximum speed of 26 km/hour (14

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knots). It has a normal operating range 1997; McCauley et al., 1998, 2000). The percent of maximum, usually less than of approximately 13,300 km. The precise difference between rms and 50 percent. Wecoma will also serve as the platform peak or peak-to-peak values depends on Safety Radii from which vessel-based Marine the frequency content and duration of Mammal Visual Observers (MMVO) will the pulse, among other factors. NMFS has determined that for watch for animals before and during GI However, the rms level is always lower acoustic effects, using acoustic airgun operations. than the peak or peak-to-peak level for thresholds in combination with an airgun-type source. corresponding safety radii is an effective Acoustic Source Specifications Received sound levels have been way to consistently apply measures to Seismic Airguns modeled by L-DEO for a number of avoid or minimize the impacts of an action, and to quantitatively estimate During the proposed survey, the airgun configurations, including one 45 in3 GI airgun, in relation to distance the effects of an action. Thresholds are Wecoma will tow a single GI airgun, used in two ways: (1) to establish a with a volume of 45 in3, and a 300 m from the airgun(s) (see Figure 2 of SIO’s application). The model does not allow mitigation shut-down or power-down long streamer containing hydrophones zone, i.e., if an animal enters an area along predetermined lines. Seismic for bottom interactions, and is most directly applicable to deep water. Based calculated to be ensonified above the pulses will be emitted at intervals of 10 level of an established threshold, a seconds. At a speed of 6 knots (11.1 km/ on modeling, estimates of the maximum distances from the GI airgun where sound source is powered down or shut hour), the 10 second shot spacing down; and (2) to calculate take, in that corresponds to a shot interval of sound levels of 190, 180, and 160 dB re 1 μPa (rms) are predicted to be received a model may be used to calculate the approximately 31 m (101.7 ft). area around the sound source that will in deep (≤1,000 m) water are shown in The generator chamber of the GI be ensonified to that level or above, Table 1 of SIO’s application. Because airgun, the one responsible for then, based on the estimated density of the model results are for a 2.5 m tow introducing the sound pulse into the animals and the distance that the sound 3 3 depth, the distances in Table 1 slightly ocean, is 45 in . The larger (105 in ) source moves, NMFS can estimate the underestimate the distances for the 45 injector chamber injects air into the number of marine mammals that may be in3 GI airgun towed at 4 m depth. previously-generated bubble to maintain ‘‘taken.’’ its shape, and does not introduce more Sub-bottom Profiler As a matter of past practice and based sound into the water. The 45 in3 GI on the best available information at the airgun will be towed 21 m (68.9 ft) Along with the GI airgun operations, time regarding the effects of marine behind the Wecoma at a depth of 4 m one additional acoustical data sound compiled over the past decade, (13.1ft). The sound pressure field of that acquisition system will be operated NMFS has used conservative numerical GI airgun variation at a tow depth of 2.5 throughout the cruise. The ocean floor estimates to approximate where Level A m has been modeled by Lamont-Doherty will be mapped with a Knudsen harassment from acoustic sources Earth Observatory (L-DEO) in relation to Engineering Model 320BR 12 kHz and begins: 180 dB re 1 μPa (rms) level for distance and direction for the GI airgun. 3.5 kHz sub-bottom profiler (SBP). cetaceans and 190 dB re 1 μPa (rms) for As the GI airgun is towed along the Multi-beam sonar will not be used. pinnipeds. A review of the available survey line, the towed hydrophone The Knudsen Engineering Model scientific data using an application of array in the 300 m streamer receives the 320BR SBP is a dual-frequency science-based extrapolation procedures reflected signals and transfers the data transceiver designed to operate at 3.5 (Southall et al., 2007) strongly suggests on the on-board processing system. and/or 12 kHz. It is used to provide data that Level A harassment (as well as Given the relatively short streamer about the sedimentary features that TTS) from single sound exposure length behind the vessel, the turning occur below the sea floor. The energy impulse events may occur at much rate of the vessel while the gear is from the sub-bottom profiler is directed higher levels than the levels previously deployed is much higher than the limit downward via a 12 kHz transducer estimated using very limited data. of five degrees per minute for a seismic (EDO 323B) or a 3.5 kHz array of 16 ORE However, for purposes of this proposed vessel towing a streamer of more typical 137D transducers in a 4x4 arrangement. action, SIO’s application sets forth, and length (much greater than 1 km). Thus, The maximum power output of the NMFS is using, the more conservative the maneuverability of the vessel is not 320BR is 10 kilowatts for the 3.5 kHz 180 and 190 dB re 1 μPa (rms) criteria. limited much during operations. section and 2 kilowatts for the 12 kHz NMFS also considers 160 dB re 1 μPa The root mean square (rms) received section. (rms) as the criterion for estimating the levels that are used as impact criteria for The pulse length for the 3.5 kHz onset of Level B harassment from marine mammals are not directly section of the 320 BR is 0.8–24 ms, acoustic sources like impulse sounds comparable to the peak (pk or 0–pk) or controlled by the system operator in used in the seismic survey. peak-to-peak (pk - pk) values normally regards to water depth and reflectivity Emperical data concerning the 180 used to characterize source levels of of the bottom sediments, and will and 160 dB distances have been airgun arrays. The measurement units usually be 12 or 24 ms in this survey. acquired based on measurements during used to describe airgun sources, peak or The system produces one sound pulse the acoustic verification study peak-to-peak decibels, are always higher and then waits for its return before conducted by L-DEO in the northern than the ‘‘root mean square’’ (rms) transmitting again. Thus, the pulse Gulf of Mexico from May 27 to June 3, decibels referred to in biological interval is directly dependent upon 2003 (Tolstoy et al., 2004). Although the literature. A measured received level of water depth, and in this survey is 4.5– results are limited the data showed that 160 dB re 1 μPa (rms) in the far field 8 seconds. Using the Sonar Equations radii around the airguns where the would typically correspond to a peak and assuming 100 percent efficiency in received level would be 180 dB re 1 μPa measurement of approximately 170 to the system (impractical in real world (rms), the safety criterion applicable to 172 dB, and to a peak-to-peak applications), the source level for the cetaceans (NMFS, 2000), vary with measurement of approximately 176 to 320BR is calculated to be 211 dB re 1 water depth. Similar depth-related 178 dB, as measured for the same pulse Pam. In practical operation, the 3.5 kHz variation is likely in the 190 dB received at the same location (Greene, array is seldom driven at more than 80 distances applicable to pinnipeds.

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Correction factors were developed for Empirical measurements indicated Empirical measurements were not water depths 100–1,000 m and <100 m. that in shallow water (<100 m), the L- conducted for intermediate depths The empirical data indicate that, for DEO model under estimates actual (100–1,000 m). On the expectation that deep water (>1,000 m), the L-DEO levels. In previous L-DEO projects, the results will be intermediate between model tends to overestimate the exclusion zones were typically based on those from shallow and deep water, a received sound levels at a given measured values and ranged from 1.3 to 1.5x correction factor is applied to the distance (Tolstoy et al., 2004). However, 15x higher than the modeled values estimates provided by the model for to be precautionary pending acquisition depending on the size of the airgun deep water situations. This is the same of additional empirical data, it is array and the sound level measured factor that was applied to the model proposed that safety radii during GI (Tolstoy et al., 2004). During the estimates during L-DEO cruises in 2003. airgun operations in deep water will be proposed cruise, similar factors will be The assumed 180 and 190 dB radii in values predicted by L-DEO’s model (see applied to derive appropriate shallow intermediate depth water are 35 m (115 Table 1 below). Therefore, the assumed water radii from the modeled deep 180 and 190 dB radii are 23 m (75.5 ft) water radii for the GI airgun (see Table ft) and 12 m (39.4 ft), respectively (see and 8 m (26 ft) respectively. 1 below). Table 1 below).

TABLE 1. PREDICTED DISTANCES TO WHICH SOUND LEVELS ≥190, 180, AND 160 DB RE 1 μPA MIGHT BE RECEIVED IN SHALLOW (<100 M; 328 FT), INTERMEDIATE (100–1,000 M; 328–3,280 FT), AND DEEP (>1,000 M; 3,280 FT) WATER FROM THE SINGLE 45 IN3 GI AIRGUN USED DURING THE SEISMIC SURVEYS IN THE NORTHEASTERN PACIFIC OCEAN DURING JULY 2009. DISTANCES ARE BASED ON MODEL RESULTS PROVIDED BY L-DEO.

Predicted RMS Distances (m) Source and Volume Tow Depth (m) Water Depth 190 dB 180 dB 160 dB

Single GI airgun 45 in3 4 Deep (>1,000 m) 8 23 220

Intermediate (100– 12 35 330 1,000 m)

Shallow (< 100 m) 95 150 570

Proposed Dates, Duration, and Region Niggol, 1965; Green et al., 1992, 1993; hooded seals, and ribbon seals have of Activity Barlow, 1997, 2003; Mangels and been sighted or stranded on the coast of The Wecoma is scheduled to depart Gerrodette, 1994; Von Saunder and California (see Mead, 1981; Reeves et from Newport, Oregon, on July 14, 2009 Barlow, 1999; Barlow and Taylor, 2001; al., 2002) and presumably passed and to return on July 20, 2009. The GI Buchanan et al., 2001; Calambokidis et through Oregon waters. A vagrant airgun will be used for approximately al., 2004; Calambokidis and Barlow, beluga whale was seen off the coast of two hours at each of 16 OBS locations. 2004). The species include 19 Washington (Reeves et al., 2002). Those The program will consist of odontocetes (toothed cetaceans, such as seven species are not addressed in detail approximately 7 days of seismic dolphins), 7 mysticetes (baleen whales), in the summaries in SIO’s application. acquisition. The exact dates of the 5 pinnipeds, and sea otters. Six of the The six species of marine mammals activities may vary by a few days species that may occur in the project expected to be most common in the because of weather conditions, area are listed under the Endangered deep pelagic or slope waters of the repositioning, streamer operations, and Species Act (ESA) as Endangered, project area, where most of the survey adjustments, GI airgun deployment, or including sperm, humpback, sei, fin, sites are located, include the Pacific the need to repeat some lines if data blue, and North Pacific right whales. white-sided dolphin, northern right quality is substandard. The seismic Another species, the Steller sea lion, is whale dolphin, Risso’s dolphin, short surveys will take place off the Oregon listed as Threatened and may occur in beaked common dolphin, Dall’s coast in the northeastern Pacific Ocean the project area. porpoise, and northern fur seal (Green et (see Figure 1 of SIO’s application). The The study area is located al., 1992, 1993; Buchanan et al., 2001; overall area within which the seismic approximately 25 to 110 km (15.5 to Barlow, 2003; Barlow and Forney, 2007; surveys will occur is located between 68.4 mi) offshore from Oregon over Carretta et al., 2007). The fin whale, approximately 44° and 45° N and 124.5° water depths from just less than 100 m Dall’s porpoise, and the northern and 126° W (see Figure 1 of SIO’s to almost 3,000 m. Two of the 32 elephant seal were the species sighted application). The surveys will take place species, gray whales and sea otters, are most often off Oregon and Washington in water depths just less than 100 m and not expected in the project area because during the ORCAWALE 2008 surveys to almost 3,000 m, entirely within the their occurrence off Oregon is limited to (NMFS, 2008). Exclusive Economic Zone (EEZ) of the very shallow, coastal waters. Three Table 2 below outlines the marine U.S.A. other species, California sea lions, mammal species, their habitat, Steller sea lions, and harbor seals, are abundance, density, and conservation Description of Marine Mammals in the mainly coastal, and would be rare at status in the proposed project area. Proposed Activity Area most at the OBS locations. Information Additional information regarding the A total of 32 marine mammal species on the habitat, abundance, and distribution of these species expected to may occur or have been documented to conservation status of the species that be found in the project area and how the occur in the marine waters off Oregon may occur in the study area are given estimated densities were calculated may and Washington, excluding extralimital in Table 2 (below, see Table 2 of SIO’s be found in SIO’s application. sightings or strandings (Fiscus and application). Vagrant ringed seals, BILLING CODE 3510–22–S

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BILLING CODE 3510–22–C toothed whales, and (less frequently) Among odontocetes, there has been one Potential Effects on Marine Mammals pinnipeds have been shown to react report that sperm whales cease calling behaviorally to airgun pulses under when exposed to pulses from a very Potential Effects of Airguns some conditions, at other times, distant seismic ship (Bowles et al., The effects of sounds from airguns mammals of all three types have shown 1994). However, more recent studies might result in one or more of the no overt reactions. In general, pinnipeds found that sperm whales continued following: tolerance, masking of natural usually seem to be more tolerant of calling in the presence of seismic pulses sounds, behavioral disturbances, exposure to airgun pulses than are (Madsen et al., 2002; Tyack et al., 2003; temporary or permanent hearing cetaceans, with relative responsiveness Smultea et al., 2004; Holst et al., 2006; impairment, and non-auditory physical of baleen and toothed whales being Jochens et al., 2006, 2008). Given the or physiological effects (Richardson et variable. Given the relatively small and small source planned for use during the al., 1995; Gordon et al., 2004; Nowacek low-energy GI airgun source planned for proposed survey, there is even less et al., 2007; Southall et al., 2007). use in this project, mammals are potential for masking of baleen or sperm Permanent hearing impairment, in the expected to be tolerate being closer to whale calls during the present study unlikely event that it occurred, would this source than would be the case for than in most seismic surveys. Masking constitute injury, but temporary a larger airgun source typical of most effects of seismic pulses are expected to threshold shift (TTS) is not an injury seismic surveys. be negligible in the case of the small odontocetes given the intermittent (Southall et al., 2007). With the possible Masking exception of some cases of temporary nature of seismic pulses. Dolphins and threshold shift in harbor seals, it is Obscuring of sounds of interest by porpoises commonly are heard calling unlikely that the project would result in interfering sounds, generally at similar while airguns are operating (Gordon et any cases of temporary or especially frequencies, is known as masking. al., 2004; Smultea et al., 2004; Holst et permanent hearing impairment, or any Masking effects of pulsed sounds (even al., 2005a,b; Potter et al., 2007). Also, significant non-auditory physical or from large arrays of airguns) on marine the sounds important to small physiological effects. mammal calls and other natural sounds odontocetes are predominantly at much are expected to be limited, although higher frequencies than the airgun Tolerance there are few specific data of relevance. sounds, thus further limiting the Numerous studies have shown that Because of the intermittent nature and potential for masking. In general, pulsed sounds from airguns are often low duty cycle of seismic pulses, masking effects of seismic pulses are readily detectable in the water at animals can emit and receive sounds in expected to be minor, given the distances of many kilometers. For a brief the relatively quiet intervals between normally intermittent nature of seismic summary of the characteristics of airgun pulses. However in some situations, pulses. Masking effects on marine pulses, see Appendix A(3) of SIO’s multi-path arrivals and reverberation mammals are discussed further in application. However, it should be cause airgun sound to arrive for much Appendix A (4) of SIO’s application. noted that most of the measurements are or all of the interval between pulses for airguns that would be detectable (Simard et al., 2005; Clark and Gagnon, Disturbance Reactions considerably farther away than the GI 2006), which could mask calls. Some Disturbance includes a variety of airgun planned for use in the present baleen and toothed whales are known to effects, including subtle changes in project. continue calling in the presence of behavior, more conspicuous changes in Several studies have shown that seismic pulses. The airgun sounds are activities, and displacement. Reactions marine mammals at distances more than pulsed, with quiet periods between the to sound, if any, depend on species, a few kilometers from operating seismic pulses, and whale calls often can be state of maturity, experience, current vessels often show no apparent heard between the seismic pulses activity, reproductive state, time of day, response-see Appendix A(5) of SIO’s (Richardson et al., 1986; McDonald et and many other factors. If a marine application. That is often true even in al., 1995; Greene et al., 1999; Nieukirk mammal responds to an underwater cases when the pulsed sounds must be et al., 2004; Smultea et al., 2004; Holst sound by changing its behavior or readily audible to the animals based on et al., 2005a,b, 2006). In the northeast moving a small distance, the response measured received levels and the Pacific Ocean, blue whale calls have may or may not rise to the level of hearing sensitivity of the mammal been recorded during a seismic survey ‘‘harassment,’’ or affect the stock or the group. Although various baleen whales, off Oregon (McDonald et al., 1995). species as a whole. However, if a sound

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source displaces marine mammals from cause obvious avoidance behavior in a 100 to 400 m (328 to 1,312 ft), where the an important feeding or breeding area substantial fraction of the animals maximum received level was 179 dB re for a prolonged period, impacts on exposed. In many areas, seismic pulses 1 μPa (rms). animals or on the stock or species could from large arrays of airguns diminish to Humpback whales on their summer potentially be significant (Lusseau and those levels at distances ranging from feeding grounds in southeast Alaska did Bejder, 2007). Given the many 4.5–14.5 km (2.8–9 mi) from the source. not exhibit persistent avoidance when uncertainties in predicting the quantity A substantial proportion of the baleen exposed to seismic pulses from a 1.64– and types of impacts of noise on marine whales within those distances may L (100 in3) airgun (Malme et al., 1985). mammals, it is common practice to show avoidance or other strong Some humpbacks seemed ‘‘startled’’ at estimate how many mammals are likely disturbance reactions to the airgun received levels of 150–169 dB re 1 μPa to be present within a particular array. Subtle behavioral changes on an approximate rms basis. Malme et distance of industrial activities, or sometimes become evident at somewhat al. (1985) concluded that there was no exposed to a particular level of lower received levels, and studies clear evidence of avoidance, despite the industrial sound. This practice summarized in Appendix A(5) of SIO’s possibility of subtle effects, at received potentially overestimates the numbers application have shown that some levels up to 172 re 1 μPa on an of marine mammals that are affected in species of baleen whales, notably approximate rms basis. some biologically-important manner. bowhead and humpback whales, at Among wintering humpback whales The sound exposure thresholds that times show strong avoidance at received off Angola (n = 52 useable groups), there are used to estimate how many marine levels lower than 160–170 dB re 1 μPa were no significant differences in mammals might be harassed by a (rms). Reaction distances would be encounter rates (sightings/hr) when a 24 3 3 seismic survey are based on behavioral considerably smaller during the airgun array (3,147 in or 5,805 in ) was observations during studies of several proposed project, for which the 160 dB operating vs. silent (Weir, 2008). There species. However, information is lacking radius is predicted to be 220 to 570 m was also no significant difference in the for many species. Detailed studies have (722 to 1,870 ft) (see Table 1 above), as mean CPA distance of the humpback been done on humpback, gray, compared with several km when a large whale sightings when airguns were on bowhead, and on ringed seals. Less array of airguns is operating. vs. off (3,050 m vs. 2,700 m or 10,007 detailed data are available for some vs. 8,858 ft, respectively). Responses of humpback whales to other species of baleen whales, sperm It has been suggested that South seismic surveys have been studied whales, small toothed whales, and sea Atlantic humpback whales wintering off otters, but for many species there are no during migration, on the summer Brazil may be displaced or even strand data on responses to marine seismic feeding grounds, and on Angolan winter upon exposure to seismic surveys (Engel surveys. Most of those studies have breeding grounds; there has also been et al., 2004). The evidence for this was concerned reactions to much larger discussion of effects on the Brazilian circumstantial and subject to alternative airgun sources than planned for use in wintering grounds. McCauley et al. explanations (IAGC, 2004). Also, the the proposed project. Thus, effects are (1998, 2000a) studied the responses of evidence was not consistent with expected to be limited to considerably humpback whales off Western Australia subsequent results from the same area of smaller distances and shorter periods of to a full-scale seismic survey with a 16– Brazil (Parente et al., 2006), or with 3 exposure in the present project than in airgun, 2,678 in array, and to a single results from direct studies of 20 in3 airgun with a source level of 227 humpbacks exposed to seismic surveys most of the previous work concerning μ marine mammal reactions to airguns. dB re 1 Pa m peak-to-peak. McCauley in other areas and seasons. After Baleen Whales – Baleen whales et al. (1998) documented that initial allowance for data from subsequent generally tend to avoid operating avoidance reactions began at 5 to 8 km years, there was ‘‘no observable direct airguns, but avoidance radii are quite (3.1 to 5 mi) from the array, and that correlation’’ between strandings and variable. Whales are often reported to those reactions kept most pods seismic surveys (IWC, 2007b:236). show no overt reactions to pulses from approximately 3 to 4 km (1.9 to 2.5 mi) There are no data on reactions of right large arrays of airguns at distances from the operating seismic boat. whales to seismic surveys, but results beyond a few kilometers, even though McCauley et al. (2000) noted localized from the closely-related bowhead whale the airgun pulses remain well above displacement during migration of 4 to 5 show that their responsiveness can be ambient noise levels out to much longer km (2.5 to 3.1 mi) by traveling pods and quite variable depending on the activity distances. However, as reviewed in 7 to12 km (4.3 to 7.5 mi) by cow-calf (e.g., migrating vs. feeding). Bowhead Appendix A(5) of SIO’s application, pairs. Avoidance distances with respect whales migrating west across the baleen whales exposed to strong noise to the single airgun were smaller (2 km Alaskan Beaufort Sea in autumn, in pulses from airguns often react by (1.2 mi)) but consistent with the results particular, are unusually responsive, deviating from their normal migration from the full array in terms of received with substantial avoidance occurring route and/or interrupting their feeding sound levels. The mean received level out to distances of 20–30 km (12.4–18.6 activities and moving away from the for initial avoidance reactions of an mi) from a medium-sized airgun source sound source. In the case of the approaching airgun was a sound level of at received sound levels of around 120– migrating gray and bowhead whales, the 140 dB re 1 μPa (rms) for humpback 130 dB re 1 μPa (rms) (Miller et al., observed changes in behavior appeared whale pods containing females. The 1999; Richardson et al., 1999; see to be of little or no biological standoff range, i.e., the closest point of Appendix B (5) of L-DEO’s application). consequence to the animals. They approach (CPA) of the whales to the However, more recent research on simply avoided the sound source by airgun, corresponded to a received level bowhead whales (Miller et al., 2005a; displacing their migration route to of 143 dB re 1 μPa (rms). The initial Harris et al., 2007) corroborates earlier varying degrees, but within the natural avoidance response generally occurred evidence that, during the summer boundaries of the migration corridors. at distances of 5 to 8 km (3.1 to 5 mi) feeding season, bowheads are not as Studies of gray, bowhead, and from the airgun array and 2 km (1.2 mi) sensitive to seismic sources. humpback whales have demonstrated from the single airgun. However, some Nonetheless, subtle but statistically that received levels of pulses in the individual humpback whales, especially significant changes in surfacing- 160–170 dB re 1 μPa rms range seem to males, approached within distances of respiration-dive cycles were evident

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upon statistical analysis (Richardson et that these whales were more likely to be 2005; Holst et al., 2006; Stone and al., 1986). In summer, bowheads moving away when seen during airgun Tasker, 2006; Weir, 2008). Some typically begin to show avoidance operations. Similarly, ship-based dolphins seem to be attracted to the reactions at a received level of about monitoring studies of blue, fin, sei, and seismic vessel and floats, and some ride 160–170 dB re 1 μPa (rms) (Richardson minke whales offshore of the bow wave of the seismic vessel even et al., 1986; Ljungblad et al., 1988; Newfoundland (Orphan Basin and when large airgun arrays are firing Miller et al., 2005a). Laurentian Sub-basin) found no more (Moulton and Miller, 2005). Reactions of migrating and feeding than small differences in sighting rates Nonetheless, there have been (but not wintering) gray whales to and swim direction during seismic vs. indications that small toothed whales seismic surveys have been studied. non-seismic periods (Moulton et al., sometimes tend to head away or to Malme et al. (1986, 1988) studied the 2005, 2006a,b). maintain a somewhat greater distance responses of feeding Eastern Pacific gray Data on short-term reactions (or lack from the vessel, when a large array of whales to pulses from a single 100 in3 of reactions) of cetaceans to impulsive airguns is operating than when it is airgun off St. Lawrence Island in the noises do not necessarily provide silent (Stone and Tasker, 2006; Weir, northern Bering Sea. Malme et al. (1986, information about long-term effects. It is 2008). In most cases, the avoidance radii 1988) estimated, based on small sample not known whether impulsive noises for delphinids appear to be small, on the sizes, that 50 percent of feeding gray affect reproductive rate or distribution order of 1 km (0.62 mi) or less, and whales ceased feeding at an average and habitat use in subsequent days or some individuals show no apparent received pressure level of 173 dB re 1 years. However, gray whales continued avoidance. The beluga is a species that μ Pa on an (approximate) rms basis, and to migrate annually along the west coast (at least at times) shows long-distance that 10 percent of feeding whales of North America with substantial avoidance of seismic vessels. Aerial interrupted feeding at received levels of increases in the population over recent surveys during seismic operations in the 163 dB. Those findings were generally years, despite intermittent seismic southeastern Beaufort Sea during consistent with the results of exploration and much ship traffic in summer recorded much lower sighting experiments conducted on larger that area for decades (see Appendix A rates of beluga whales within 10–20 km numbers of gray whales that were in Malme et al., 1984; Richardson et al., (6.2–12.4 mi) compared with 20–30 km migrating along the California coast 1995; Angliss and Outlaw, 2008). The (mi) from an operating airgun array, and (Malme et al., 1984; Malme and Miles, Western Pacific gray whale population observers on seismic boats in that area 1985), and with observations of Western did not seem affected by a seismic rarely see belugas (Miller et al., 2005a; Pacific gray whales feeding off Sakhalin survey in its feeding ground during a Harris et al., 2007). Island, Russia, when a seismic survey prior year (Johnson et al., 2007). Captive bottlenose dolphins and was underway just offshore of their Bowhead whales continued to travel to beluga whales exhibited changes in feeding area (Gailey et al., 2007; the eastern Beaufort Sea each summer, behavior when exposed to strong pulsed Johnson et al., 2007; Yazvenko et al. and their numbers have increased sounds similar in duration to those 2007a,b), along with data on gray notably, despite seismic exploration in typically used in seismic surveys whales off British Columbia (Bain and their summer and autumn range for (Finneran et al., 2000, 2002, 2005; Williams, 2006). Gray whales typically many years (Richardson et al., 1987). In Finneran and Schlundt, 2004). The show no conspicuous responses to any event, brief exposures to sound animals tolerated high received levels of airgun pulses with received levels up to pulses from the proposed airgun source μ 150 to 160 dB re 1 μPa (rms), but are are highly unlikely to result in sound (pk-pk level >200 dB re 1 Pa) increasingly likely to show avoidance as prolonged effects. before exhibiting aversive behaviors. For received levels increase above that Toothed Whales – Little systematic pooled data at 3, 10, and 20 kHz, sound range. information is available about reactions exposure levels during sessions with 25, Various species of Balaenoptera (blue, of toothed whales to noise pulses. Few 50, and 75 percent altered behavior μ 2 sei, fin, Bryde’s, and minke whales) studies similar to the more extensive were 180, 190, and 199 dB re 1 Pa , have occasionally been reported in areas baleen whale/seismic pulse work respectively (Finneran and Schlundt, ensonified by airgun pulses (Stone, summarized above have been reported 2004). 2003; MacLean and Haley, 2004; Stone for toothed whales. However, systematic Results for porpoises depend on and Tasker, 2006). Sightings by studies on sperm whales have been species. Dall’s porpoises seem relatively observers on seismic vessels off the done (Jochens and Biggs, 2003; Tyack et tolerant of airgun operations (MacLean United Kingdom from 1997 to 2000 al., 2003; Jochens et al., 2006; Miller et and Koski, 2005) and, during a survey suggest that, at times of good al., 2006), and there is an increasing with a large airgun array, tolerated sightability, sighting rates for mysticetes amount of information about responses higher noise levels than did harbor (mainly fin and sei whales) were similar of various odontocetes to seismic porpoises and gray whales (Bain and when large arrays of airguns were surveys based on monitoring studies Williams, 2006). However, Dall’s shooting and not shooting (Stone, 2003; (Stone, 2003; Smultea et al., 2004; porpoises do respond to the approach of Stone and Tasker, 2006). However, these Moulton and Miller, 2005; Bain and large airgun arrays by moving away whales tended to exhibit localized Williams, 2006; Holst et al., 2006; Stone (Calambokidis and Osmek, 1998; Bain avoidance, remaining significantly (on and Tasker, 2006; Potter et al., 2007; and Williams, 2006). The limited average) from the airgun array during Weir, 2008). available data suggest that harbor seismic operations compared with non- Seismic operators and MMOs on porpoises show stronger avoidance seismic periods (Stone and Tasker, seismic vessels regularly see dolphins (Stone, 2003; Bain and Williams, 2006; 2006). In a study off Nova Scotia, and other small toothed whales near Stone and Tasker, 2006). This apparent Moulton and Miller (2005) found little operating airgun arrays, but in general difference in responsiveness of these difference in sighting rates (after there seems to be a tendency for most two porpoise species is consistent with accounting for water depth) and initial delphinids to show some avoidance of their relative responsiveness to boat sighting distances of balaenopterid operating seismic vessels (Goold, traffic and some other acoustic sources whales when airguns were operating vs. 1996a,b,c; Calambokidis and Osmek, in general (Richardson et al., 1995; silent. However, there were indications 1998; Stone, 2003; Moulton and Miller, Southall et al. 2007).

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Most studies of sperm whales exposed Hearing Impairment and Other Physical Temporary Threshold Shift – TTS is to airgun sounds indicate that this Effects the mildest form of hearing impairment species shows considerable tolerance of that can occur during exposure to a Temporary or permanent hearing airgun pulses (Stone, 2003; Moulton et strong sound (Kryter, 1985). While impairment is a possibility when marine al., 2005, 2006a; Stone and Tasker, experiencing TTS, the hearing threshold mammals are exposed to very strong 2006; Weir, 2008). In most cases, the rises and a sound must be stronger in sounds, but there has been no specific whales do not show strong avoidance order to be heard. At least in terrestrial documentation of this for marine and continue to call (see Appendix A in mammals, TTS can last from minutes or mammals exposed to sequences of hours to (in cases of strong TTS) days. SIO’s application). However, controlled airgun pulses. exposure experiments in the Gulf of For sound exposures at or somewhat Mexico indicate that foraging effort is NMFS will be developing new noise above the TTS threshold, hearing somewhat altered upon exposure to exposure criteria for marine mammals sensitivity in both terrestrial and marine airgun sounds (Jochens et al., 2006, that take account of the now-available mammals recovers rapidly after scientific data on temporary threshold 2008). In the SWSS study, D-tags exposure to the noise ends. Few data on shift (TTS), the expected offset between (Johnson and Tyack, 2003) were used to sound levels and durations necessary to the TTS and permanent threshold shift elicit mild TTS have been obtained for record the movement and acoustic (PTS) thresholds, differences in the marine mammals, and none of the exposure of eight foraging sperm whales acoustic frequencies to which different published data concern TTS elicited by before, during, and after controlled marine mammal groups are sensitive, exposure to multiple pulses of sound. sound exposures of airgun arrays in the and other relevant factors. Detailed Available data on TTS in marine Gulf of Mexico (Jochens et al., 2008). recommendations for new science-based mammals are summarized in Southall et Whales were exposed to maximum noise exposure criteria were published al. (2007). received sound levels between 111 and in late 2007 (Southall et al., 2007). For toothed whales exposed to single 147 dB re 1 μPa (rms) (131 to 164 dB Several aspects of the planned short pulses, the TTS threshold appears re 1 μPa pk-pk) at ranges of monitoring and mitigation measures for to be, to a first approximation, a approximately 1.4 to 12. 6 km (0.9 to 7.8 this project (see below) are designed to function of the energy content of the mi) from the sound source. Although detect marine mammals occurring near pulse (Finneran et al., 2002, 2005). the tagged whales showed no horizontal the airguns to avoid exposing them to Given the available data, the received avoidance, some whales changed sound pulses that might, at least in level of a single seismic pulse (with no foraging behavior during full array theory, cause hearing impairment. In frequency weighting) might need to be μ 2. exposure (Jochens et al., 2008). addition, many cetaceans and (to a approximately 186 dB re 1 Pa s (i.e., There are almost no specific data on limited degree) pinnipeds are likely to 186 dB SEL or approximately 221–226 the behavioral reactions of beaked show some avoidance of the area where dB pk-pk) in order to produce brief, whales to seismic surveys. However, received levels of airgun sound are high mild TTS. Exposure to several strong seismic pulses that each have received northern bottlenose whales (Hyperodon enough such that hearing impairment μ ampullatus) continued to produce high- could potentially occur. In those cases, levels near 190 dB re 1 Pa (rms) (175– frequency clicks when exposed to sound the avoidance responses of the animals 180 dB SEL) might result in cumulative exposure of approximately 186 dB SEL pulses from distant seismic surveys themselves will reduce or (most likely) and thus slight TTS in a small (Laurinolli and Cochrane, 2005; Simard avoid any possibility of hearing odontocete, assuming the TTS threshold et al., 2005). Most beaked whales tend impairment. is (to a first approximation) a function to avoid approaching vessels of other Non-auditory physical effects may of the total received pulse energy. types (Wursig et al., 1998). They may also occur in marine mammals exposed Levels ≥ 190 dB 1 μPa (rms) are also dive for an extended period when to strong underwater pulsed sound. expected to be restricted to radii no approached by a vessel (Kasuya, 1986), Possible types of non-auditory more than 95 m (312 ft) from the although it is uncertain how much physiological effects or injuries that Wecoma’s GI airgun. For an odontocete longer such dives may be as compared theoretically might occur in mammals closer to the surface, the maximum to dives by undisturbed beaked whales, close to a strong sound source include radius with ≥190 dB 1 μPa (rms) would which also are often quire long (Baird et stress, neurological effects, bubble be smaller. al., 2006; Tyack et al., 2006). In any formation, resonance effects, and other The above TTS information for event, it is likely that these beaked types of organ or tissue damage. It is odontocetes is derived from studies on whales would normally show strong possible that some marine mammal the bottlenose dolphin and beluga. avoidance of an approaching seismic species (i.e., beaked whales) may be There is not published TTS information vessel, but this has not been especially susceptible to injury and/or for other species of cetaceans. However, documented explicitly. stranding when exposed to strong preliminary evidence from harbor pulsed sounds. However, as discussed Odontocete reactions to large arrays of porpoise exposed to airgun sound below, there is no definitive evidence airguns are variable and, at least for suggests that its TTS threshold may that any of these effects occur even for delphinids and Dall’s porpoises, seem to have been lower (Lucke et al., 2007). marine mammals in close proximity to For baleen whales, there are no data, be confined to a smaller radius than has large arrays of airguns. It is especially direct or indirect, on levels or properties been observed for the more responsive unlikely that any effects of these types of sound required to induce TTS. The of the mysticetes, belugas, and harbor would occur during the present project frequencies to which baleen whales are porpoises (Appendix A of SIO’s given the brief duration of exposure of most sensitive are lower than those for application). any given mammal and the proposed odontocetes, and natural background Additional details on the behavioral monitoring and mitigation measures noise levels at those low frequencies reactions (or the lack thereof) by all (see below). The following subsections tend to be higher. As a result, auditory types of marine mammals to seismic discuss in somewhat more detail the thresholds of baleen whales within their vessels can be found in Appendix A(5) possibilities of TTS, PTS, and non- frequency band of best hearing are of SIO’s application. auditory physical effects. believed to be higher (less sensitive)

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than are those of odontocetes at their release effect at the surface. However, TTS threshold for an impulse). best frequencies (Clark and Ellison, bow-riding animals generally dive Additional assumptions had to be made 2004). From this, it is suspected that below the surface intermittently. If they to derive a corresponding estimate for received levels causing TTS onset may did so while bow-riding near airguns, pinnipeds, as the only available data on also be higher in baleen whales. In any they would be exposed to strong sound TTS thresholds in pinnipeds pertain to event, no cases of TTS are expected pulses, possibly repeatedly. If some non-impulse sound. Southall et al. given three considerations: cetaceans did incur TTS through (2007) estimate that the PTS threshold (1) Small size of the GI airgun source; exposure to airgun sounds, this would could be a cumulative Mpw-weighted (2) The strong likelihood that baleen very likely be mild, temporary, and SEL of approximately 186 dB 1 μPa2.s in whales would avoid the approaching reversible. the harbor seal to impulse sound. The airguns (or vessel) before being exposed To avoid the potential for injury, PTS threshold for the California sea lion to levels high enough for TTS to NMFS has determined that cetaceans and northern elephant seal the PTS possibly occur; and and pinnipeds should not be exposed to threshold would probably be higher, (3) The mitigation measures that are pulsed underwater noise at received given the higher TTS thresholds in planned. levels exceeding, respectively, 180 and those species. In pinnipeds, TTS thresholds 190 dB re 1 μPa (rms). As summarized Southall et al. (2007) also note that, associated with exposure to brief pulses above, data that are now available imply regardless of the SEL, there is concern (single or multiple) of underwater sound that TTS is unlikely to occur unless about the possibility of PTS if a cetacean have not been measured. Initial odontocetes (and probably mysticetes as or pinniped receives one or more pulses evidence from prolonged (non-pulse) well) are exposed to airgun pulses with peak pressure exceeding 230 or exposures suggested that some stronger than 180 dB re 1 μPa (rms). 218 dB re 1 μPa (3.2 bar. m, 0–pk), pinnipeds may incur TTS at somewhat Permanent Threshold Shift – When which would only be found within a lower received levels than do small PTS occurs, there is physical damage to few meters of the largest (600–in3) odontocetes exposed for similar the sound receptors in the ear. In severe airguns in the planned airgun array durations (Kastak et al., 1999, 2005; cases, there can be total or partial (Caldwell and Dragoset, 2000). A peak Ketten et al., 2001; Au et al., 2000). The deafness, while in other cases, the pressure of 218 dB re 1 μPa could be TTS threshold for pulsed sounds has animal has an impaired ability to hear received somewhat farther away; to been indirectly estimated as being an sounds in specific frequency ranges estimate that specific distance, one SEL of approximately 171 dB re 1 μPa2.s (Kryter, 1985). would need to apply a model that (Southall et al., 2007), which would be There is no specific evidence that accurately calculates peak pressures in equivalent to a single pulse with exposure to pulses of airgun sound can the near-field around an array of received level approximately 181–186 re cause PTS in any marine mammal, even airguns. 1 μPa (rms), or a series of pulses for with large arrays of airguns. However, Given the higher level of sound which the highest rms values are a few given the possibility that mammals necessary to cause PTS as compared dB lower. Corresponding values for close to an airgun array might incur with TTS, it is considerably less likely California sea lions and northern TTS, there has been further speculation that PTS could occur. Baleen whales elephant seals are likely to be higher about the possibility that some generally avoid the immediate area (Kastak et al., 2005). individuals occurring very close to around operating seismic vessels, as do A marine mammal within a radius of airguns might incur PTS (Richardson et some other marine mammals. The less than 100 m (328 ft) around a typical al., 1995). Single or occasional planned monitoring and mitigation large array of operating airguns might be occurrences of mild TTS are not measures, including visual monitoring exposed to a few seismic pulses with indicative of permanent auditory and shut downs of the airguns when levels of greater than or equal to 205 dB, damage. mammals are seen about to enter or and possibly more pulses if the mammal Relationships between TTS and PTS within the proposed exclusion zone moved with the seismic vessel. (As thresholds have not been studied in (EZ), will further reduce the probability noted above, most cetacean species tend marine mammals, but are assumed to be of exposure of marine mammals to to avoid operating airguns, although not similar to those in humans and other sounds strong enough to induce PTS, all individuals do so.) In addition, terrestrial mammals. PTS might occur at see the section below on Proposed ramping up airgun arrays, which is a received sound level at least several Mitigation and Monitoring. standard operational protocol for large decibels above that inducing mild TTS Non-auditory Physiological Effects – airgun arrays and proposed for this if the animal were exposed to strong Non-auditory physiological effects or action, should allow cetaceans to move sound pulses with rapid rise time (see injuries that theoretically might occur in away form the seismic source and avoid Appendix A(5) of SIO’s application). marine mammals exposed to strong being exposed to the full acoustic Based on data from terrestrial mammals, underwater sound include stress, output of the airgun array. Even with a a precautionary assumption is that the neurological effects, bubble formation, large airgun array, it is unlikely that the PTS threshold for impulse sounds (such resonance effects, and other types of cetaceans would be exposed to airgun as airgun pulses as received close to the organ or tissue damage (Cox et al., 2006; pulses at a sufficiently high level for a source) is at least 6 dB higher than the Southall et al., 2007). Studies examining sufficiently long period to cause more TTS threshold on a peak-pressure basis, such effects are limited. However, than mild TTS, given the relative and probably >6 dB (Southall et al., resonance (Gentry, 2002) and direct movement of the vessel and the marine 2007). On an SEL basis, Southall et al. noise-induced bubble formation (Crum mammal. The potential for TTS is much (2007) estimated that received levels et al., 2005) are not expected in the case lower in this project. With a large array would need to exceed the TTS threshold of an impulsive source like an airgun of airguns, TTS would be most likely in by at least 15 dB for there to be risk of array. If seismic surveys disrupt diving any odontocetes that bow-ride or PTS. Thus, for cetaceans they estimate patterns of deep diving species, this otherwise linger near the airguns. While that the PTS threshold might be an M- might perhaps result in bubble bow-riding, odontocetes would be at or weighted SEL (for the sequence of formation and a form of ‘‘the bends,’’ as above the surface, and thus not exposed received pulses) of approximately 198 speculated to occur in beaked whales to strong pulses given the pressure- dB re 1 μPa2μs (15 dB higher than the exposed to sonar. However, there is no

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specific evidence of this upon exposure (3) A physiological change such as a (Ziphius cavirostris) in the Gulf of to airgun pulses. vestibular response leading to a California, Mexico, when the L-DEO In general, little is known about the behavioral change or stress-induced vessel R/V Maurice Ewing (Ewing) was potential for seismic survey sounds to hemorrahagic diathesis, leading in turn operating a 20–gun, 8,490–in3 array in cause auditory impairment or other to tissue damage; and the general area. The link between the physical effects in marine mammals. (4) Tissue damage directly from sound stranding and the seismic survey was Available data suggest that such effects, exposure, such as through acoustically inconclusive and not based on any if they occur at all, would presumably mediated bubble formation and growth physical evidence (Hogarth, 2002; be limited to short distances from the or acoustic resonance of tissues. Yoder, 2002). Nonetheless, the Gulf of sound source and to activities that As noted in SIO’s application, some of California incident plus the beaked extend over a prolonged period. The these mechanisms are unlikely to apply whale strandings near naval exercises available data do not allow in the case of impulse sounds. However, involving use of mid-frequency sonar identification of a specific exposure there are increasing indications that gas- suggests a need for caution when level above which non-auditory effects bubble disease (analogous to ‘‘the conducting seismic surveys in areas can be expected (Southall et al., 2007), bends’’), induced in super-saturated occupied by beaked whales until more or any meaningful quantitative tissue by a behavioral response to is known about effects of seismic predictions of the numbers (if any) of acoustic exposure, could be pathologic surveys on those species (Hildebrand, marine mammals that might be affected mechanism for the strandings and 2005). in those ways. Marine mammals that mortality of some deep diving cetaceans No injuries of beaked whales are show behavioral avoidance of seismic exposed to sonar. The evidence for this anticipated during the proposed study vessels, including most baleen whales, remains circumstantial and associated because of (1) the high likelihood that some odontocetes, and some pinnipeds, with exposure to naval mid-frequency any beaked whales nearby would avoid are especially unlikely to incur auditory sonar, not seismic surveys (Cox et al., the approaching vessel before being impairment or non-auditory physical 2006; Southall et al., 2007). exposed to high sound levels, (2) the Seismic pulses and mid-frequency effects. Also, the planned mitigation proposed monitoring and mitigation sonar pulses are quite different, and measures, including shut downs of the measures, including avoiding submarine some mechanisms by which sonar airgun, would reduce any such effects canyons, where deep diving species sounds have been hypothesized to affect that might otherwise occur. may congregate, and (3) differences beaked whales are unlikely to apply to between the sound sources operated by airgun pulses. Sounds produced by Strandings and Mortality SIO and those involved in the naval airgun arrays are broadband with most Marine mammals close to underwater exercises associated with strandings. of the energy below 1 kHz. Typical detonations of high explosives can be military mid-frequency sonars operate at Potential Effects of Other Acoustic killed or severely injured, and their frequencies of 2–10 kHz, generally with Devices auditory organs are especially a relatively narrow bandwidth at any Sub-bottom Profiler Signals susceptible to injury (Ketten et al., 1993; one time. A further difference between Ketten, 1995). However, explosives are seismic surveys and naval exercises is A SBP will be operated from the no longer used for marine seismic that naval exercises can involve sound source vessel at all times during the research or commercial seismic surveys, sources on more than one vessel. Thus, planned study. Sounds from the SBP are and have been replaced entirely by it is not appropriate to assume that there very short pulses, occurring for 12 or 24 airguns or related non-explosive pulse is a direct connection between the ms once every 4.5 to 8 seconds. Most of generators. Airgun pulses are less effects of military sonar and seismic the energy in the sound pulses emitted energetic and have slower rise times, surveys on marine mammals. However, by the SBP is at mid frequencies, and there is no specific evidence that evidence that sonar pulses can, in centered at 3.5 kHz. The beamwidth is they can cause injury, death, or special circumstances, lead (at least approximately 80° and is directed stranding even in the case of large indirectly) to physical damage and downward. airgun arrays. However, the association mortality (Balcomb and Claridge, 2001; The SBP on the Wecoma has a of mass strandings of beaked whales NOAA and USN, 2001; Jepson et al., maximum source level of 211 dB re 1 with naval exercises and, in one case, an 2003; Fernandez et al., 2004, 2005a,b; μPam. Thus the received level would be L-DEO seismic survey (Malakoff, 2002; Hildebrand, 2005; Cox et al., 2006) expected to decrease to 180 dB and 160 Cox et al., 2006), has raised the suggests that caution is warranted when dB approximately 35 m (115 ft) and 350 possibility that beaked whales exposed dealing with exposure of marine m (1,148 ft) below the transducer, to strong ‘‘pulsed’’ sounds may be mammals to any high-intensity pulsed respectively, assuming spherical especially susceptible to injury and/or sound. spreading. Corresponding distances in behavioral reactions that can lead to There is no conclusive evidence of the horizontal plane would be stranding (Hildebrand, 2005; Southall et cetacean strandings or deaths at sea as substantially lower, given the al., 2007). Appendix A(5) of SIO’s a result of exposure to seismic surveys, directionality of this source. Kremser et application provides additional details. but a few cases of strandings in the al. (2005) noted that the probability of Specific sound-related processes that general area where a seismic survey was a cetacean swimming through the area lead to strandings and mortality are not ongoing have led to speculation of exposure when a bottom profiler well documented, but may include: concerning a possible link between emits a pulse is small, and if the animal (1) Swimming in avoidance of a seismic surveys and strandings. was in the area, it would have to pass sound into shallow water; Suggestions that there was a link the transducer at close range in order to (2) A change in behavior (such as a between seismic surveys and strandings be subjected to sound levels that could change in diving behavior) that might of humpback whales in Brazil (Engel et cause TTS. contribute to tissue damage, gas bubble al., 2004) was not well founded based Marine mammal communications will formation, hypoxia, cardiac arrhythmia, on available data (IAGC, 2004; IWC, not be masked appreciably by the SBP hypertensive hemorrahage or other 2006). In September 2002, there was a signals given their directionality and the forms of trauma; stranding of two Cuvier’s beaked whales brief period when an individual

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mammal is likely to be within its beam. from the anchor to float to the surface. Northeast Pacific Ocean, including Furthermore, in the case of most These signals will be used very Oregon, resulting in considerable year- odontocetes, the signals do not overlap intermittently. It is unlikely that the to-year variation in the distribution and with the predominant frequencies in the acoustic release signals would have abundance of many marine mammal calls, which would avoid significant effects on marine mammals through species (Forney and Barlow, 1998; masking. masking, disturbance, or hearing Buchanan et al., 2001; Escorza-Trevino, Marine mammal behavioral reactions impairment. Any effects likely would be 2002; Ferrero et al., 2002; Philbrick et to other pulsed sound sources are de minimus given the brief exposure at al., 2003). Thus, for some species the discussed above, and responses to the low levels. densities derived from recent surveys SBP are likely to be similar to those for may not be representative of the Estimated Take by Incidental other pulsed sources if received at the densities that will be encountered Harassment same levels. Therefore, behavioral during the proposed seismic survey. For responses are not expected unless All anticipated takes would be ‘‘takes this IHA application, cruise reports from marine mammals are very close to the by harassment,’’ involving temporary the ORCAWALE 2008 surveys (NMFS, source. changes in behavior. The proposed 2008) were inspected to assess whether The source levels of the SBP are much monitoring and mitigation measures are there were any observable changes from lower than those of the airgun. It is expected to minimize the possibility of the previous surveys of the same area. unlikely that the SBP produces pulse injurious takes. (However, as noted Table 3 of SIO’s application gives the levels strong enough to cause hearing earlier, there is no specific information average and maximum densities for impairment or other physical injuries demonstrating that injurious ‘‘takes’’ each species of cetacean reported off even in an animal that is (briefly) in a would occur even in the absence of the Oregon and Washington, corrected for position near the source. The SBP is planned monitoring and mitigation effort, based on the densities reported usually operated simultaneously with measures.) The sections below describe for the 1996, 2001, and 2005 surveys other higher-power acoustic sources. methods to estimate ‘‘take by (Barlow and Forney, 2007). The Many marine mammals will move away harassment’’, and present estimates of densities from those studies had been in response to the approaching higher- the numbers of marine mammals that corrected, by the original authors, for power sources or the vessel itself before might be affected during the proposed both detectability bias and availability the mammals would be close enough for seismic program. The estimates of ‘‘take bias. Detectability bias is associated there to be any possibility of effects by harassment’’ are based on (1) data with diminishing sightability with from the less intense sounds from the concerning marine mammal densities increasing lateral distance from the SBP. In the case of mammals that do not (numbers per unit area) obtained during trackline. Availability bias refers to the avoid the approaching vessel and its surveys off Oregon and Washington fact that there is <100 percent various sound sources, mitigation during 1996, 2001, and 2005 probability of sighting an animals that is measures that would be applied to (cetaceans), or 1989 to 1990 (pinnipeds) present along the survey trackline. minimize effects of other sources would by NMFS Southwest Fisheries Science Table 3 of SIO’s application also further reduce or eliminate any minor Center (SWFSC), and (2) estimates of the includes mean density information for effects of the SBP. size of the 160 dB isolpeths where takes three of the five pinnipeds species that As stated above, NMFS is assuming could potentially occur from the occur off Oregon and Washington and that Level A harassment onset proposed seismic survey off the coast of mean and maximum densities for one of corresponds to 180 and 190 dB re 1 μPa Oregon in the northeastern Pacific those species, from Bonnell et al. (1992). (rms) for cetaceans and pinnipeds, Ocean. Densities were not calculated for the respectively. The precautionary nature Extensive systematic aircraft and other two species because of the small of these criteria is discussed in ship-based surveys have been number of sightings on systematic Appendix A(5) of SIO’s application, conducted for marine mammals offshore transect surveys. One of those, the including the fact that the minimum of Oregon and Washington (Bonnell et northern elephant seal, was the sound level necessary to cause al., 1992; Green et al., 1992, 1993; dominant seal sighted during the permanent hearing impairment is Barlow 1997, 2003; Barlow and Taylor, ORCAWALE 2008 surveys (29 of 33 higher, by a variable and generally 2001; Calambokidis and Barlow, 2004; pinnipeds sighted off Oregon and unknown amount, than the level that Barlow and Forney in prep.). The most Washington), so it was included at a induces barely-detectable TTS and the comprehensive and recent density data density set at twice that of the northern level associated with the onset of TTS available for cetacean species in slope fur seal, the other species sighted during is often considered to be a level below and offshore waters of Oregon are from the ORCAWALE 2008 surveys. which there is no danger of permanent the 1996, 2001, and 2005 NMFS SWFSC It should be noted that the following damage. NMFS also assumes that ‘‘ORCAWALE’’ or ‘‘CSCAPE’’ ship estimates of ‘‘takes by harassment’’ cetaceans or pinnipeds exposed to surveys as synthesized by Barlow and assume that the surveys will be levels exceeding 160 dB re 1 μPa (rms) Forney (2007). The surveys were undertaken and completed; in fact, the may experience Level B harassment. conducted up to approximately 550 km planned number of line kms has been (342 mi) offshore from June or July to increased by 25 percent to accommodate Possible Effects of Acoustic Release November or December. Systematic, lines that may need to be repeated, Signals offshore, at-sea survey data for equipment testing, etc. As is typical on The acoustic release transponder used pinnipeds are more limited. The most offshore ship surveys, inclement to communicate with the OBSs uses comprehensive such studies are weather, and equipment malfunctions frequencies of 9–13 kHz. Once the OBS reported by Bonnell et al. (1992) based are likely to cause delays and may limit is ready to be retrieved, an acoustic on systematic aerial surveys conducted the number of useful line kms of seismic release transponder interrogates the in 1989–1990. operations that can be undertaken. OBS at a frequency of 9–11 kHz, and a Oceanographic conditions, including Furthermore, any marine mammal response is received at a frequency of 9– occasional El Nino and La Nina events, sightings within or near the designated 13 kHz. The burn wire release is then influence the distribution and numbers safety zones will result in the shut- activated, and the instrument is released of marine mammals present in the down of seismic operations as a

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mitigation measure. Thus, the following marine area that would be within the (because of intersecting lines) were estimates of the numbers of marine 160 dB radius around the operating included only once to determine the mammals potentially exposed to 160 dB airgun array on at least one occasion. area expected to be ensonified. In the are precautionary, and probably The proposed seismic lines do not run proposed survey, there is minimal overestimate the actual numbers of parallel to each other in close proximity, overlap (5 percent for 160 dB), so marine mammals that might be which minimizes the number of times virtually no marine mammal would be involved. These estimates assume that an individual mammal may be exposed ensonified above those thresholds more there will be no weather, equipment, or during the survey. The best estimates in than once. mitigation delays, which is highly this section are based on the averages of Applying the approach described unlikely. the densities from the 1996, 2001, and There is some uncertainty about the above, approximately 208 km2 (80.3 2005 NMFS surveys, and maximum mi2) would be within the 160 dB representativness of the data and the estimates are based on the highest of the isopleth on one or more occasions assumption used in the calculations. three densities. Table 4 of SIO’s during the surveys at all 16 OBS However, the approach used is believed application and Table 2 of this Federal locations. For inshore OBS locations, to be the best available approach. Also, Register notice show the best and approximately 60 km2 (23 mi2) would to provide some allowance for these maximum estimates of the number of be within the 160 dB isopleths; that area uncertainties ‘‘maximum estimates’’ as marine mammals that could potentially was used for calculations for the well as ‘‘best estimates’’ of the numbers be affected during the seismic survey. potentially affected have been derived. The number of different individuals pinniped species that could occur only Best and maximum estimates are based potentially exposed to received levels at those locations. This approach does on the average and maximum estimates ≥160 dB re 1 μPa (rms) was calculated not allow for turnover in the mammal of densities reported primarily by by multiplying: populations in the study area during the Barlow and Forney (2007) and Bonnell • The expected species density, either course of the surveys. That might et al. (1992) described above. The ‘‘mean’’ (i.e., best estimate) or underestimate actual numbers of estimated numbers of potential ‘‘maximum,’’ times; and individuals exposed, although the individuals exposed are presented • The area anticipated to be conservative distances used to calculate below based on the 160 dB re 1 μPa ensonified to that level during GI airgun the area may offset this. In addition, the (rms) Level B harassment criterion for operations. approach assumes that no cetaceans will all cetaceans and pinnipeds. It is The area expected to be ensonified move away or toward the trackline as assumed that a marine mammal exposed was determined by entering the planned the Wecoma approaches, in response to to airgun sounds this strong might survey lines into a MapInfo Geographic increasing sound levels prior to the time change their behavior sufficiently to be Information System (GIS), using the GIS the levels reach 160 dB. Another way of considered ‘‘taken by harassment.’’ to identify the relevant areas by interpreting the estimates that follow in The number of different individuals ‘‘drawing’’ the applicable 160 dB buffer Table 3 (below) is that they represent that may be exposed to GI airgun sounds around each seismic line (depending on the number of individuals that are with received levels ≥160 dB re 1 μPa water and tow depth) and then expected (in the absence of a seismic (rms) on one or more occasions was calculating the total area within the program) to occur in the waters that will estimated by considering the total buffers. Areas where overlap occurred be exposed to ≥160 dB re 1 μPa (rms).

TABLE 3. THE ESTIMATES OF THE POSSIBLE NUMBERS OF MARINE MAMMALS EXPOSED TO SOUND LEVELS GREATER THAN OR EQUAL TO 160 DB DURING SIO’S PROPOSED SEISMIC SURVEY OFF OREGON IN JULY 2009. THE PROPOSED SOUND SOURCE IS A SINGLE GI AIRGUN. RECEIVED LEVELS ARE EXPRESSED IN DB RE 1 μPA (RMS) (AVERAGED OVER PULSE DURATION), CONSISTENT WITH NMFS’ PRACTICE. NOT ALL MARINE MAMMALS WILL CHANGE THEIR BEHAVIOR WHEN EX- POSED TO THESE SOUND LEVELS, BUT SOME MAY ALTER THEIR BEHAVIOR WHEN LEVELS ARE LOWER (SEE TEXT). SEE TABLES 2–4 IN SIO’S APPLICATION FOR FURTHER DETAIL.

# # of Individuals Exposed Approx. % Regional Species of Individuals Exposed (best)1 (max)1 Population (best)2

Mysticetes

Eastern Pacific gray whale (Eschrichtius robustus) 0 0 0

North Pacific right whale (Eubalaena japonica) 0 0 0

Humpback whale (Megaptera novaeangliae) 0 2 0

Minke whale(Balaenoptera acutorostrata) 0 0 0

Sei whale(Balaenoptera borealis) 0 0 0

Fin whale (Balaenoptera physalus) 0 1 0

Blue whale (Balaenoptera musculus) 0 1 0

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TABLE 3. THE ESTIMATES OF THE POSSIBLE NUMBERS OF MARINE MAMMALS EXPOSED TO SOUND LEVELS GREATER THAN OR EQUAL TO 160 DB DURING SIO’S PROPOSED SEISMIC SURVEY OFF OREGON IN JULY 2009. THE PROPOSED SOUND SOURCE IS A SINGLE GI AIRGUN. RECEIVED LEVELS ARE EXPRESSED IN DB RE 1 μPA (RMS) (AVERAGED OVER PULSE DURATION), CONSISTENT WITH NMFS’ PRACTICE. NOT ALL MARINE MAMMALS WILL CHANGE THEIR BEHAVIOR WHEN EX- POSED TO THESE SOUND LEVELS, BUT SOME MAY ALTER THEIR BEHAVIOR WHEN LEVELS ARE LOWER (SEE TEXT). SEE TABLES 2–4 IN SIO’S APPLICATION FOR FURTHER DETAIL.—Continued

# # Species of Individuals Exposed of Individuals Exposed Approx. % Regional (best)1 (max)1 Population (best)2

Odontocetes

Sperm whale (Physeter macrocephalus) 0 8 0

Pygmy sperm whale (Kogia breviceps) 0 1 N.A.

Dwarf sperm whale (Kogia sima) 0 0 0

Cuvier’s beaked whale (Ziphius cavirostris) 0 0 0

Baird’s beaked whale (Berardius bairdii) 0 1 0

Blainville’s beaked whale (Mesoplodon densirostris) 0 0 0

Hubb’s beaked whale(Mesoplodon carlhubbsi) 0 0 0

Stejneger’s beaked whale (Mesoplodon stejnegeri) 0 0 0

Mesoplodon sp. (unidentified) 0 1 0

Offshore bottlenose dolphin (Tursiops truncatus) 0 0 0

Striped dolphin (Stenella coeruleoalba) 0 0 0

Short-beaked common dolphin (Delphinus delphis) 4 9 <0.01

Pacific white-sided dolphin Lagenorhynchus obliquidens) 6 9 0.02

Northern right-whale dolphin (Lissodelphis borealis) 5 7 0.02

Risso’s dolphin (Grampus griseus) 3 4 0.03

False killer whale (Pseudorca crassidens) 0 0 N.A.

Killer whale (Orcinus orca) 0 1 0

Short-finned pilot whale (Globicephala macrorhynchus) 0 0 0 Harbor porpoise (Phocoena phocoena) 0 0 0

Dall’s porpoise (Phocoenoides dalli) 39 65 0.1

Pinnipeds

Northern fur seal (Callorhinus ursinus) 3 26 <0.01

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TABLE 3. THE ESTIMATES OF THE POSSIBLE NUMBERS OF MARINE MAMMALS EXPOSED TO SOUND LEVELS GREATER THAN OR EQUAL TO 160 DB DURING SIO’S PROPOSED SEISMIC SURVEY OFF OREGON IN JULY 2009. THE PROPOSED SOUND SOURCE IS A SINGLE GI AIRGUN. RECEIVED LEVELS ARE EXPRESSED IN DB RE 1 μPA (RMS) (AVERAGED OVER PULSE DURATION), CONSISTENT WITH NMFS’ PRACTICE. NOT ALL MARINE MAMMALS WILL CHANGE THEIR BEHAVIOR WHEN EX- POSED TO THESE SOUND LEVELS, BUT SOME MAY ALTER THEIR BEHAVIOR WHEN LEVELS ARE LOWER (SEE TEXT). SEE TABLES 2–4 IN SIO’S APPLICATION FOR FURTHER DETAIL.—Continued

# # Approx. % Regional Species of Individuals Exposed of Individuals Exposed (best)1 (max)1 Population (best)2

California sea lion (Zalophus californianus) N.A. N.A. N.A.

Steller sea lion (Eumetopias jubatus) 1 N.A. <0.01

Harbor seal (Phoca vitulina richardsi) 1 N.A. <0.01

Northern elephant seal (Mirounga angustirostris) 5 52 <0.01 N.A.—Data not available or species status was not assessed 1 Best estimate and maximum estimate density are from Table 3 of SIO’s application. 2 Regional population size estimates are from Table 2 (above).

Table 4 of SIO’s application shows the elephant seals, and Steller sea lions are Pathological effects involve lethal and best and maximum estimates of the estimated to be the most common temporary or permanent sub-lethal number of exposures and the number of species in the area, with best estimates injury. Physiological effects involve individual marine mammals that of 3 (<0.01 percent), 1 (<0.01 percent), temporary and permanent primary and potentially could be exposed to greater 5 (<0.01 percent), and 1 (<0.01 percent) secondary stress responses, such as than or equal to 160 dB re 1 μPa (rms) exposed to greater or equal to 160 dB re changes in levels of enzymes and during the different legs of the seismic μPa (rms) respectively. Haul-outs of proteins. Behavioral effects refer to survey if no animals move away from California sea lions and harbor seals are temporary and (if they occur) permanent the survey vessel. known to be located in the Newport, changes in exhibited behavior (e.g., The ‘‘best estimate’’ of the number of Oregon area. All of these numbers are startle and avoidance behavior). The individual marine mammals that could considered small relative to the three categories are interrelated in be exposed to seismic sounds with population sizes of the affected species complex ways. For example, it is received levels greater than or equal to or stocks. possible that certain physiological and 160 dB re 1 μPa (rms) (but below Level behavioral changes potentially could Potential Effects on Marine Mammal A harassment thresholds) during the lead to an ultimate pathological effect Habitat survey is shown in Table 4 of SIO’s on individuals (i.e., mortality). application and Table 3 (shown above). The proposed SIO seismic survey will The specific received sound levels at The maximum estimates have been not result in any permanent impact on which permanent adverse effects to fish requested by SIO. The ‘‘best estimate’’ habitats used by marine mammals, or to potentially could occur are little studied total includes 0 baleen whale the food sources they use. The main and largely unknown. Furthermore, the individuals. These estimates were impact issue associated with the available information on the impacts of derived from the best density estimates proposed activity will be temporarily seismic surveys on marine fish is from calculated for these species in the area elevated noise levels and the associated studies of individuals or portions of a (see Table 4 of SIO’s application). In direct effects on marine mammals, as population; there have been no studies addition, 0 sperm whales (0 percent of described above. The following sections at the population scale. Thus, available the regional population) as well as 0 briefly review effects of airguns on fish information provides limited insight on beaked whales (0 percent of the regional and invertebrates, and more details are possible real-world effects at the ocean population). Based on the best included in SIO’s application and EA. or population scale. This makes drawing estimates, most (85.1 percent) of the conclusions about impacts on fish Potential Effects on Fish and marine mammals potentially exposed problematic because ultimately, the are dolphins and porpoises; short- Invertebrates most important aspect of potential beaked common, Pacific white-sided, One reason for the adoption of airguns impacts relates to how exposure to Northern right-whale, Risso’s dolphins as the standard energy source for marine seismic survey sound affects marine fish and Dall’s porpoises are estimated to be seismic surveys is that, unlike populations and their viability, the most common species in the area, explosives, they have not been including their availability to fisheries. with best estimates of 4 (<0.01 percent associated with large-scale fish kills. The following sections provide a of the regional population), 6 (0.02 However, existing information on the general synopsis of available percent), 5 (0.02 percent), 3 (0.03 impacts of seismic surveys on marine information on the effects of exposure to percent), and 39 (0.01 percent) exposed fish populations is very limited (see seismic and other anthropogenic sound to greater or equal to 160 dB re μPa Appendix B of SIO’s application). There as relevant to fish. The information (rms) respectively. The remainder of the are three types of potential effects on comprises results from scientific studies marine mammals that may be fish and invertebrates from exposure to of varying degrees of rigor plus some potentially exposed are pinnipeds; seismic surveys: (1) pathological, (2) anecdotal information. Some of the data Northern fur, harbor, and Northern physiological, and (3) behavioral. sources may have serious shortcomings

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in methods, analysis, interpretation, and (approximately 9 m in the former case stimulus (see Appendix B of SIO’s reproducibility that must be considered and less than 2 m in the latter). Water application). when interpreting their results (see depth sets a lower limit on the lowest Summary of Physical (Pathological Hastings and Popper, 2005). Potential sound frequency that will propagate (the and Physiological) Effects – As adverse effects of the program’s sound ‘‘cutoff frequency’’) at about one-quarter indicated in the preceding general sources on marine fish are then noted. wavelength (Urick, 1983; Rogers and discussion, there is a relative lack of Pathological Effects – The potential Cox, 1988). knowledge about the potential physical for pathological damage to hearing Wardle et al. (2001) suggested that in (pathological and physiological) effects structures in fish depends on the energy water, acute injury and death of of seismic energy on marine fish and level of the received sound and the organisms exposed to seismic energy invertebrates. Available data suggest physiology and hearing capability of the depends primarily on two features of that there may be physical impacts on species in question (see Appendix B of the sound source: (1) the received peak egg, larval, juvenile, and adult stages at SIO’s application). For a given sound to pressure, and (2) the time required for very close range. Considering typical result in hearing loss, the sound must the pressure to rise and decay. source levels associated with exceed, by some specific amount, the Generally, as received pressure commercial seismic arrays, close hearing threshold of the fish for that increases, the period for the pressure to proximity to the source would result in sound (Popper, 2005). The rise and decay decreases, and the exposure to very high energy levels. consequences of temporary or chance of acute pathological effects Whereas egg and larval stages are not permanent hearing loss in individual increases. According to Buchanan et al. able to escape such exposures, juveniles fish on a fish population is unknown; (2004), for the types of seismic airguns and adults most likely would avoid it. however, it likely depends on the and arrays involved with the proposed In the case of eggs and larvae, it is likely number of individuals affected and program, the pathological (mortality) that the numbers adversely affected by whether critical behaviors involving zone for fish and invertebrates would be such exposure would not be that sound (e.g., predator avoidance, prey expected to be within a few meters of different from those succumbing to capture, orientation and navigation, the seismic source. Numerous other natural mortality. Limited data reproduction, etc.) are adversely studies provide examples of no fish regarding physiological impacts on fish affected. mortality upon exposure to seismic and invertebrates indicate that these Little is known about the mechanisms sources (Falk and Lawrence, 1973; impacts are short term and are most and characteristics of damage to fish Holliday et al., 1987; La Bella et al., apparent after exposure at close range. that may be inflicted by exposure to The proposed seismic program for 1996; Santulli et al., 1999; McCauley et seismic survey sounds. Few data have 2009 is predicted to have negligible to al., 2000a,b, 2003; Bjarti, 2002; Hassel et been presented in the peer-reviewed low physical effects on the various stags al., 2003; Popper et al., 2005). scientific literature. As far as we know, of fish and invertebrates for its relatively there are only two valid papers with Some studies have reported, some short duration (approximately 7 days) proper experimental methods, controls, equivocally, that mortality of fish, fish and unique survey lines extent. and careful pathological investigation eggs, or larvae can occur close to Therefore, physical effects of the implicating sounds produced by actual seismic sources (Kostyuchenko, 1973; proposed program on fish and seismic survey airguns with adverse Dalen and Knutsen, 1986; Booman et invertebrates would not be significant. anatomical effects. One such study al., 1996; Dalen et al., 1996). Some of Behavioral Effects – Behavioral effects indicated anatomical damage and the the reports claimed seismic effects from include changes in the distribution, second indicated TTS in fish hearing. treatments quite different from actual migration, mating, and catchability of The anatomical case is McCauley et al. seismic survey sounds or even fish populations. Studies investigating (2003), who found that exposure to reasonable surrogates. Saetre and Ona the possible effects of sound (including airgun sound caused observable (1996) applied a ’worst-case scenario’ seismic survey sound) on fish behavior anatomical damage to the auditory mathematical model to investigate the have been conducted on both uncaged maculae of pink snapper (Pagrus effects of seismic energy on fish eggs and caged individuals (Chapman and auratus). This damage in the ears had and larvae. They concluded that Hawkins, 1969; Pearson et al., 1992; not been repaired in fish sacrificed and mortality rates caused by exposure to Santulli et al., 1999; Wardle et al., 2001; examined almost two months after seismic surveys are so low, as compared Hassel et al., 2003). Typically, in these exposure. On the other hand, Popper et to natural mortality rates, that the studies fish exhibited a sharp ‘‘startle’’ al. (2005) documented only TTS (as impact of seismic surveying on response at the onset of a sound determined by auditory brainstem recruitment to a fish stock must be followed by habituation and a return to response) in two of three fish species regarded as insignificant. normal behavior after the sound ceased. from the Mackenzie River Delta. This Physiological Effects – Physiological The existing body of information on study found that broad whitefish effects refer to cellular and/or the impacts of seismic survey sound on (Coreogonus nasus) that received a biochemical responses of fish to marine invertebrates is very limited. sound exposure level of 177 dB re 1 acoustic stress. Such stress potentially However, there is some unpublished μPa2.s showed no hearing loss. During could affect fish populations by and very limited evidence of the both studies, the repetitive exposure to increasing mortality or reducing potential for adverse effects on sound was greater than would have reproductive success. Primary and invertebrates, thereby justifying further occurred during a typical seismic secondary stress responses of fish after discussion and analysis of this issue. survey. However, the substantial low- exposure to seismic survey sound The three types of potential effects of frequency energy produced by the appear to be temporary in all studies exposure to seismic surveys on marine airgun arrays [less than approximately done to date (Sverdrup et al., 1994; invertebrates are pathological, 400 Hz in the study by McCauley et al. McCauley et al., 2000a, 2000b). The physiological, and behavioral. Based on (2003) and less than approximately 200 periods necessary for the biochemical the physical structure of their sensory Hz in Popper et al. (2005)] likely did not changes to return to normal are variable, organs, marine invertebrates appear to propagate to the fish because the water and depend on numerous aspects of the be specialized to respond to particle in the study areas was very shallow biology of the species and of the sound displacement components of an

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impinging sound field and not to the sound have not resulted in any Subsistence Activities pressure component (Popper et al., significant pathological impacts on the There is no subsistence hunting for 2001; see Appendix C of SIO’s animals. It has been suggested that marine mammals in the waters off of the application). exposure to commercial seismic survey coast of Oregon that implicates MMPA The only information available on the activities has injured giant squid Section 101(a)(5)(D). impacts of seismic surveys on marine (Guerra et al., 2004), but there is no invertebrates involves studies of evidence to support such claims. Proposed Mitigation and Monitoring individuals; there have been no studies Physiological Effects – Physiological Mitigation and monitoring measures at the population scale. Thus, available effects refer mainly to biochemical proposed to be implemented for the information provides limited insight on responses by marine invertebrates to proposed seismic survey have been possible real-world effects at the acoustic stress. Such stress potentially developed and refined during previous regional or ocean scale. The most could affect invertebrate populations by SIO and NSF-funded seismic studies important aspect of potential impacts increasing mortality or reducing and associated environmental concerns how exposure to seismic reproductive success. Any primary and assessments (EAs), IHA applications, survey sound ultimately affects secondary stress responses (i.e., changes and IHAs. The mitigation and invertebrate populations and their in haemolymph levels of enzymes, monitoring measures described herein viability, including availability to proteins, etc.) of crustaceans after represent a combination of procedures fisheries. exposure to seismic survey sounds required by past IHAs for other similar The following sections provide a appear to be temporary (hours to days) synopsis of available information on the projects and on recommended best in studies done to date (J. Payne, DFO, practices in Richardson et al. (1995), effects of exposure to seismic survey pers. comm.). The periods necessary for sound on species of decapod Pierson et al. (1998), and Weir and these biochemical changes to return to Dolman (2007). The measures are crustaceans and cephalopods, the two normal are variable and depend on taxonomic groups of invertebrates on described in detail below. numerous aspects of the biology of the Mitigation measures that will be which most such studies have been species and of the sound stimulus. conducted. The available information is adopted during the proposed survey Behavioral Effects – There is from studies with variable degrees of include: increasing interest in assessing the scientific soundness and from anecdotal (1) Speed or course alteration, information. A more detailed review of possible direct and indirect effects of provided that doing so will not the literature on the effects of seismic seismic and other sounds on compromise operational safety survey sound on invertebrates is invertebrate behavior, particularly in requirements; provided in Appendix C of SIO’s relation to the consequences for (2) GI airgun shut-down procedures; application. fisheries. Change in behavior could and Pathological Effects – In water, lethal potentially affect such aspects as (3) Special procedures for situations and sub-lethal injury to organisms reproductive success, distribution, or species of particular concern, e.g., exposed to seismic survey sound could susceptibility to predation, and emergency shut-down procedures if a depend on at least two features of the catchability by fisheries. Studies North Pacific right whale and sound source: (1) the received peak investigating the possible behavioral minimization of approaches to slopes, if pressure, and (2) the time required for effect of exposure to seismic survey possible, to avoid beaked whale habitat. the pressure to rise and decay. sound on crustaceans and cephalopods Two other common mitigation Generally, as received pressure have been conducted on both uncaged measures, airgun array power-down and increases, the period for the pressure to and caged animals. In some cases, airgun array ramp-up, are not possible rise and decay decreases, and the invertebrates exhibiting startle because only one, low-volume GI airgun chance of acute pathological effects responses (e.g., squid in McCauley et al., will be used for the surveys. The increases. For the single GI gun planned 2000a,b). In other cases, no behavioral thresholds for estimating Level A for the proposed program, the impacts were noted (e.g., crustaceans in harassment take are also used in pathological (mortality) zone for Christian et al., 2003, 2004; DFO, 2004). connection with proposed mitigation. crustaceans and cephalopods is There have been anecdotal reports of Vessel-based Visual Monitoring expected to be within a few meters of reduced catch rates of shrimp shortly the seismic source; however, very few after exposure to seismic surveys; Marine Mammal Visual Observers specific data are available on levels of however, other studies have not (MMVOs) will be based aboard the seismic signals that might damage these observed any significant changes in seismic source vessel and will watch for animals. This premise is based on the shrimp and catch rate (Andriguietto- marine mammals near the vessel during peak pressure and rise/decay time Filho et al., 2005). Any adverse effects daytime airgun operations and during characteristics of seismic airgun arrays on crustacean and cephalopod behavior start-ups of airguns at night. MMVOs currently in use around the world. or fisheries attributable to seismic will also watch for marine mammals Some studies have suggested that survey sound depend on the species in near the seismic vessel for at least 30 seismic survey sound has a limited question and the nature of the fishery minutes prior to the start of airgun pathological impact on early (season, duration, fishing method). operations and after an extended shut- developmental stages of crustaceans Because of the reasons noted above down of the airguns. When feasible (Pearson et al., 1994; Christian et al., and the nature of the proposed MMVOs will also make observations 2003; DFO, 2004). However, the impacts activities, the proposed operations are during daytime periods when the appear to be either temporary or not expected to cause significant seismic system is not operating for insignificant compared to what occurs impacts on habitats that could cause comparison of sighting rates and animal under natural conditions. Controlled significant or long-term consequences behavior with vs. without airgun field experiments on adult crustaceans for individual marine mammals or their operations. Based on MMVO (Christian et al., 2003, 2004; DFO, 2004) populations or stocks. Similarly, any observations, the GI airgun will be shut- and adult cephalopods (McCauley et al., effects to food sources are expected to down (see below) when marine 2000a,b) exposed to seismic survey be negligible. mammals are detected within or about

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to enter a designated EZ that scientific objectives allow, the vessel harassment (as defined in the MMPA). corresponds to the 180 or 190 dB re 1 speed and/or course may be adjusted to They will also provide information μPa (rms) isopleths, depending on minimize the likelihood of the animal needed to order a shutdown of the whether the animal is a cetacean or entering the EZ. Typically, during seismic source when a marine mammal pinniped . The MMVOs will continue to seismic operations, major course and or sea turtles is within or near the EZ. maintain watch to determine when the speed adjustments are often impractical When a sighting is made, the animal(s) are outside the EZ, and airgun when towing long seismic streamers and following information about the sighting operations will not resume until the large source arrays, but are possible in will be recorded: animal has left that EZ. The predicted this case because only one GI airgun and (1) Species, group size, and age/size/ distances for the 180, and 190 dB EZs a short streamer will be used. sex categories (if determinable); are listed according to the water depth Shut-down Procedures – The behavior when first sighted and after in Table 1 above. operating airguns(s) will be shut-down initial sighting; heading (if consistent), During seismic operations off of the if a marine mammal is detected within bearing, and distance from seismic coast of Oregon, at least two MMVOs or approaching the EZ for the single GI vessel; sighting cue; apparent reaction to will be based aboard the Wecoma. airgun source. Following a shut-down, the seismic source or vessel (e.g., none, MMVOs will be appointed by SIO with GI airgun activity will not resume until avoidance, approach, paralleling, etc.); NMFS concurrence. At least one MMVO the marine mammal is outside the EZ and behavioral pace. will monitor the EZ for marine for the full array. The animal will be (2) Time, location, heading, speed, mammals during ongoing daytime GI considered to have cleared the EZ if it: activity of the vessel, sea state, airgun operations and nighttime • Is visually observed to have left the visibility, cloud cover, and sun glare. startups of the airguns. MMVO(s) will EZ; The data listed (time, location, etc.) be on duty in shifts no longer than 4 • Has not been seen within the EZ for will also be recorded at the start and hours duration. The vessel crew will 15 min in the case of species with end of each observation watch, and also be instructed to assist in detecting shorter dive durations - small during a watch whenever there is a marine mammals and implementing odontocetes and pinnipeds; and change in one or more of the variables. mitigation measures (if practical). Before • Has not been seen within the EZ for All observations, as well as the start of the seismic survey the crew 30 min in the case of species with information regarding seismic source will be given additional instruction longer dive durations - mysticetes and shut-down, will be recorded in a regarding how to do so. large odontocetes, including sperm, standardized format. Data accuracy will The Wecoma is a suitable platform for pygmy sperm, dwarf sperm, killer, and be verified by the MMVOs at sea, and marine mammal observations. beaked whales. preliminary reports will be prepared Observing stations will be on the bridge Procedures for Situations or Species wings, with observers’ eyes during the field program and summaries of Particular Concern – Special forwarded to the operating institution’s approximately 6.5 m (21.3 ft) above the mitigation procedures will be used for waterline and a 180 degree view shore facility and to NSF weekly or these species of particular concern as more frequently. MMVO observations outboard from either side, on the follows: whaleback deck in front of the bridge, will provide the following information: (1) The GI airgun will be shut-down (1) The basis for decisions about with observers eyes approximately 7 m if a North Pacific right whale is sighted (23 ft) above the waterline and shutting down airgun arrays. at any distance from the vessel; (2) Information needed to estimate the approximately 200 degrees view (2) To avoid beaked whale habitat, forward, and on the aft control station, number of marine mammals potentially approach to slopes will be minimized, ’taken by harassment.’ These data will with observer’s eyes approximately 5.5 if possible, during the proposed survey. m (18 ft) above the waterline and a be reported to NMFS. Avoidance of airgun operations over or (3) Data on the occurrence, approximately 180 degree view aft that near submarine canyons has become a includes the 40 m (131 ft) (180 dB) distribution, and activities of marine standard mitigation measure, but there mammals in the area where the seismic radius area around the GI airgun. The are none within or near the study area. eyes of the bridge watch will be at a study is conducted. Four of the 16 OBS locations are on the (4) Data on the behavior and height of approximately 6.5 m; MMOs continental slope, but the GI airgun is will repair to the enclosed bridge during movement patterns of marine mammals low volume and it will operate only for any inclement weather. seen at times with and without seismic a short time (approximately 2 hours at During the daytime, the MMVO(s) activity. will scan the area around the vessel each location). A report will be submitted to NMFS SIO and NSF will coordinate the systematically with reticle binoculars within 90 days after the end of the planned marine mammal monitoring (e.g., 7x50), Big-eye binoculars (25x150), cruise. The report will describe the program associated with the seismic optical range finders, and with the operations that were conducted and survey off the coast of Oregon with naked eye. During darkness, night sightings of marine mammals near the applicable U.S. agencies (e.g., NMFS), vision devices will be available, when operations. The report will be submitted and will comply with their required. The MMVOs will be in to NMFS, providing full documentation requirements. wireless communication with ship’s of methods, results, and interpretation officers on the bridge and scientists in Proposed Reporting pertaining to all monitoring. The 90–day the vessel’s operations laboratory, so report will summarize the dates and MMVO Data and Documentation they can advise promptly of the need for locations of seismic operations, and all avoidance maneuvers or GI airgun shut MMVOs will record data to estimate marine mammal sightings (dates, times, down. the numbers of marine mammals locations, activities, associated seismic Speed or Course Alteration – If a exposed to various received sound survey activities). The report will also marine mammal is detected outside the levels and to document apparent include estimates of the amount and EZ but is likely to enter based on its disturbance reactions or lack thereof. nature of potential ‘‘take’’ of marine position and the relative movement of Data will be used to estimate numbers mammals by harassment or in other the vessel and animal, then if safety and of animals potentially ’taken’ by ways.

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All injured or dead marine mammals sound (180 dB) believed to have even a DEPARTMENT OF COMMERCE (regardless of cause) will be reported to minimal chance of causing PTS; National Oceanic and Atmospheric NMFS as soon as practicable. The report (3) The fact that pinnipeds would Administration should include species or description of have to closer than 8 m (26 ft) in deep animal, condition of animal, location, water, 12 m (39 ft) in intermediate RIN 0648–XP28 time first found, observed behaviors (if depths, and 95 m (312 ft) in shallow alive) and photo or video, if available. water when the GI airgun is in use from Incidental Taking of Marine Mammals; Taking of Marine Mammals Incidental Endangered Species Act (ESA) the vessel to be exposed to levels of to the Explosive Removal of Offshore sound (190 dB) believed to have even a Under Section 7 of the ESA, NSF has Structures in the Gulf of Mexico begun consultation with the NMFS, minimal chance of causing PTS; Office of Protected Resources, (4) The fact that marine mammals AGENCY: National Marine Fisheries Endangered Species Division on this would have to be closer than 220 m (ft) Service (NMFS), National Oceanic and proposed seismic survey. NMFS will in deep water, 330 m at intermediate Atmospheric Administration (NOAA), also consult on the issuance of an IHA depths, and 570 m (ft) in shallow water Commerce. under section 101(a)(5)(D) of the MMPA when the GI airgun is in use from the ACTION: Notice; issuance of letters of for this activity. Consultation will be vessel to be exposed to levels of sound authorization. concluded prior to a determination on (160 dB) believed to have even a the issuance of the IHA. SUMMARY: In accordance with the minimal chance at causing TTS; and Marine Mammal Protection Act National Environmental Policy Act (5) The likelihood that marine (MMPA) and implementing regulations, (NEPA) mammal detection ability by trained notification is hereby given that NMFS NSF prepared a draft Environmental observers is high at that short distance has issued one-year Letters of Assessment titled ‘‘Marine Seismic from the vessel, enabling the Authorization (LOA) to take marine Survey in the Northeast Pacific, July implementation of shut-downs to avoid mammals incidental to the explosive 2009.’’ NSF’s draft EA incorporates an injury, serious injury, or mortality. As a removal of offshore oil and gas ‘‘Environmental Assessment (EA) of a result, no take by injury or death is structures (EROS) in the Gulf of Mexico. Planned Low-Energy Marine Seismic anticipated, and the potential for DATES: These authorizations are Survey by the Scripps Institution of temporary or permanent hearing effective from June 1, 2009 through May Oceanography in the Northeast Pacific impairment is very low and will be 31, 2010. Ocean, July 2009’’ prepared by LGL avoided through the incorporation of ADDRESSES: The application and LOAs Limited, Environmental Research the proposed mitigation measures. are available for review by writing to P. Associates, on behalf of NSF and SIO. While the number of marine Michael Payne, Chief, Permits, NMFS will either adopt NSF’s EA or Conservation, and Education Division, mammals potentially incidentally conduct a separate NEPA analysis, as Office of Protected Resources, National harassed will depend on the necessary, prior to making a Marine Fisheries Service, 1315 East- determination on the issuance of the distribution and abundance of marine West Highway, Silver Spring, MD IHA. mammals in the vicinity of the survey 20910–3235 or by telephoning the activity, the number of potential Preliminary Determinations contact listed here (see FOR FURTHER harassment takings is estimated to be INFORMATION CONTACT), or online at: NMFS has preliminarily determined small, less than one percent of any of http://www.nmfs.noaa.gov/pr/permits/ that the impact of conducting the low- the estimated population sizes, and has incidental.htm. Documents cited in this energy marine seismic survey in the been mitigated to the lowest level notice may be viewed, by appointment, Northeast Pacific Ocean may result, at practicable through incorporation of the during regular business hours, at the worst, in a temporary modification in measures mentioned previously in this aforementioned address. behavior (Level B harassment) of small document. numbers of marine mammals. Further, FOR FURTHER INFORMATION CONTACT: this activity is expected to result in a Proposed Authorization Howard Goldstein or Ken Hollingshead, negligible impact on the affected species Office of Protected Resources, NMFS, or stocks. The provision requiring that As a result of these preliminary 301–713–2289. the activity not have an unmitigable determinations, NMFS proposes to issue SUPPLEMENTARY INFORMATION: Section impact on the availability of the affected an IHA to SIO for conducting a low- 101(a)(5)(A) of the MMPA (16 U.S.C. species or stock for subsistence uses is energy marine seismic survey in the 1361 et seq.) directs the NMFS to allow, not implicated for this proposed action. Northeast Pacific Ocean in July, 2009, upon request, the incidental, but not For reasons stated previously in this provided the previously mentioned intentional, taking of small numbers of document, the negligible impact mitigation, monitoring, and reporting marine mammals by United States determination is supported by: requirements are incorporated. citizens who engage in a specified (1) The likelihood that, given activity (other than commercial fishing) Dated: March 19, 2009. sufficient ‘‘notice’’ through relatively within a specified geographical region, slow ship speed, marine mammals are James H. Lecky, if certain findings are made by NMFS expected to move away from a noise Director, Office of Protected Resources, and regulations are issued. Under the source that is annoying prior to its National Marine Fisheries Service. MMPA, the term ‘‘taking’’ means to becoming potentially injurious; [FR Doc. E9–12149 Filed 5–22–09; 8:45 am] harass, hunt, capture, or kill or to (2) The fact that cetaceans would have BILLING CODE 3510–22–S attempt to harass, hunt capture, or kill to be closer than 23 m (75 ft) in deep marine mammals. water, 35 m (115 ft) in intermediate Authorization for incidental taking, in depths, and 150 m (492 ft) in shallow the form of annual LOAs, may be water when the GI airgun is in use from granted by NMFS for periods up to five the vessel to be exposed to levels of years if NMFS finds, after notification

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and opportunity for public comment, DEPARTMENT OF COMMERCE before this Council for discussion, those that the taking will have a negligible issues may not be the subjects of formal impact on the species or stock(s) of National Oceanic and Atmospheric final Council action during this meeting. marine mammals, and will not have an Administration Council action will be restricted to those unmitigable adverse impact on the RIN: 0648–XP32 issues specifically listed in this notice availability of the species or stock(s) for and any issues arising after publication subsistence uses (where relevant). In South Atlantic Fishery Management of this notice that require emergency addition, NMFS must prescribe Council; Public Meetings; Correction action under section 305(c) of the regulations that include permissible Magnuson-Stevens Act, provided the AGENCY: National Marine Fisheries public has been notified of the Council’s methods of taking and other means Service (NMFS), National Oceanic and effecting the least practicable adverse intent to take final action to address the Atmospheric Administration (NOAA), emergency. impact on the species and its habitat Commerce. (i.e., mitigation), and on the availability Except for advertised (scheduled) ACTION: Notice of correction to a public public hearings and public comment, of the species for subsistence uses, meeting notice. paying particular attention to rookeries, the times and sequence specified on this agenda are subject to change. mating rounds, and areas of similar SUMMARY: Update to the South Atlantic significance. The regulations also must Fishery Management Council’s Special Accommodations include requirements pertaining to the (Council) meeting of its Scientific and These meetings are physically monitoring and reporting of such taking. Statistical Committee (SSC). See accessible to people with disabilities. Regulations governing the taking SUPPLEMENTARY INFORMATION for Requests for sign language incidental to EROS were published on additional details. interpretation or other auxiliary aids June 19, 2008 (73 FR 34889), and remain DATES: The meeting will be held June 7– should be directed to the Council office in effect through July 19, 2013. For 12, 2009. See SUPPLEMENTARY (see ADDRESSES) by June 4, 2009. detailed information on this action, INFORMATION for specific dates and Dated: May 19, 2009. please refer to that Federal Register times. (Note that these are the dates for Tracey L. Thompson, notice. The species that applicants may the SAFMC meeting. The SSC meeting take in small numbers during EROS dates are listed below in the Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service. activities are bottlenose dolphins SUPPLEMENTARY INFORMATION.) [FR Doc. E9–12035 Filed 5–22–09; 8:45 am] (Tursiops truncatus), Atlantic spotted ADDRESSES: The Council meeting will be dolphins (Stenella frontalis), held at the Hutchinson Island Marriott, BILLING CODE 3510–22–S pantropical spotted dolphins (Stenella 555 NE Ocean Boulevard, Stuart, FL 34996; telephone: (800) 775–5936 or attenuata), Clymene dolphins (Stenella DEPARTMENT OF COMMERCE clymene), striped dolphins (Stenella (772) 225–3700; fax: (772) 225–0003. coeruleoalba), spinner dolphins Copies of documents are available from Bureau of Industry and Security (Stenella longirostris), rough-toothed Kim Iverson, Public Information Officer, dolphins (Steno bredanensis), Risso’s South Atlantic Fishery Management Emerging Technology and Research dolphins (Grampus griseus), melon- Council, 4055 Faber Place Drive, Suite Advisory Committee; Notice of Open headed whales (Peponocephala electra), 201, North Charleston, SC 29405. Meeting short-finned pilot whales (Globicephala FOR FURTHER INFORMATION CONTACT: Kim Iverson, Public Information Officer; The Emerging Technology and macrorhynchus), and sperm whales Research Advisory Committee (ETRAC) (Physeter macrocephalus). telephone: (843) 571–4366 or toll free at (866) SAFMC–10; fax: (843) 769–4520; will meet on June 11, 2009, 8:30 a.m., Pursuant to these regulations, NMFS email: [email protected]. Room 3884, and on June 12, 2009, 8:30 has issued an LOA to Ridgelake Energy, a.m., Room 3884, at the Herbert C. SUPPLEMENTARY INFORMATION: The Inc., Fairways Offshore Exploration, Hoover Building, 14th Street between original notice published in the Federal Pennsylvania and Constitution Inc., El Paso Exploration & Production Register on May 18, 2008, 74 FR 23173. Avenues, NW., Washington, DC. The Company, L.P. Issuance of the LOAs is The following addition has been added Committee advises the Office of the based on a finding made in the to the agenda of the Scientific and Assistant Secretary for Export preamble to the final rule that the total Statistical Committee meeting. Except Administration on emerging technology taking by these activities (with for the addition, all other previously- and research activities, including those monitoring, mitigation, and reporting published information remains related to deemed exports. measures) will result in no more than a unchanged. negligible impact on the affected species Thursday, June 11 or stock(s) of marine mammals and will 1. Scientific and Statistical Committee: not have an unmitigable adverse impact June 7, 2009, 1:30 p.m. until 5 p.m.; Public Session on subsistence uses. NMFS also finds June 8, 2009, 8:30 a.m. until 5 p.m.; and 1. Welcome and Introduction. that the applicant will meet the June 9, 2009, 8:30 a.m. until 5 p.m. 2. Export Controls. requirements contained in the In addition to agenda items noted in 3. Deemed Exports Data Set. implementing regulations and LOA, a previous Notice, the SSC will also 4. Deemed Export Control including monitoring, mitigation, and review an Independent Report on Red Methodology Model Options. reporting requirements. Snapper in the Southeast Data, 5. Review Status. Dated: March 19, 2009. Assessment, and Review (SEDAR) 15 Friday, June 12 stock assessment. James H. Lecky, Documents regarding these issues are Public Session Director, Office of Protected Resources, available from the Council office (see 1. Deemed Export Control National Marine Fisheries Service. ADDRESSES). Methodology Model Options. [FR Doc. E9–12153 Filed 5–22–09; 8:45 am] Although non-emergency issues not The meeting will be accessible via BILLING CODE 3510–22–S contained in this agenda may come teleconference to 20 participants on a

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first come, first serve basis. To join the matters. The Council will meet as late 8. Preliminary Review of Exempted conference, submit inquiries to Ms. as necessary each day to complete its Fishing Permits for 2010 Yvette Springer at scheduled business. 9. Final Consideration of Inseason [email protected]—no later than ADDRESSES: The meetings will be held at Adjustments (if needed) June 4, 2009. Doubletree Hotel Spokane - City Center, 10. Fishery Management Plan (FMP) A limited number of seats will be 322 North Spokane Falls Court, Amendments 20 and 21-Trawl available for the meeting. Reservations Spokane, WA 99201; telephone: (509) Rationalization and Intersector are not accepted. To the extent that time 455–9600. Allocation - Regulatory Overview and permits, members of the public may Council address: Pacific Fishery Final Action on Miscellaneous present oral statements to the Management Council, 7700 NE Outstanding Issues and FMP Language Committee. The public may submit Ambassador Place, Suite 101, Portland, 11. Fishery Management Plan written statements at any time before or OR 97220. Amendment 20-Trawl Rationalization - after the meeting. However, to facilitate FOR FURTHER INFORMATION CONTACT: Dr. Final Action on Accumulation Limits the distribution of public presentation Donald O. McIsaac, Executive Director, and Divestiture materials to the Committee members, telephone: (866) 806–7204 or (503) 820– 12. Fishery Management Plan the Committee suggests that presenters 2280; or access the Pacific Council Amendment 20-Trawl Rationalization - forward the public presentation website, www.pcouncil.org for the Final Action for Adaptive Management materials prior to the meeting to Ms. current meeting location, proposed Program Springer via e-mail. agenda, and meeting briefing materials. F. Highly Migratory Species For more information, call Yvette Management Springer at (202) 482–2813. SUPPLEMENTARY INFORMATION: The following items are on the Pacific 1. Council Recommendations to Dated: May 20, 2009. Council agenda, but not necessarily in International Regional Fishery Teresa Telesco, this order: Management Organizations Assistant Committee Liaison Officer. A. Call to Order G. Administrative Matters [FR Doc. E9–12172 Filed 5–22–09; 8:45 am] 1. Opening Remarks and 1. Membership Appointments and Council Operating Procedures BILLING CODE 3510–JT–P Introductions 2. Roll Call 2. Fiscal Matters 3. Report of the Executive Director 3. Proposed Rule on Council DEPARTMENT OF COMMERCE 4. Approve Agenda Procedures B. Open Comment Period 4. Approval of Council Meeting National Oceanic and Atmospheric 1. Comments on Non-Agenda Items Minutes Administration C. Habitat 5. Future Council Meeting Agenda RIN: 0648–XP40 1. Current Habitat Issues and Workload Planning D. Pacific Halibut Management H. Coastal Pelagic Species Pacific Fishery Management Council; 1. Proposed Procedures for Estimating Management Public Meetings Pacific Halibut Bycatch in the 1. Pacific Mackerel Management for Groundfish Setline Fisheries 2009–10 AGENCY: National Marine Fisheries E. Groundfish Management 2. Survey Methodology Review and Service, National Oceanic and 1. Groundfish Essential Fish Habitat Exempted Fishing Permit Atmospheric Administration, Modifications Although non-emergency issues not Commerce. 2. Proposed Process and Schedule for contained in this agenda may come ACTION: Notice of public meetings. Developing Biennial (2011–12) Harvest before the Pacific Council for Specifications and Management discussion, those issues may not be the SUMMARY: The Pacific Fishery Measures subject of formal Council action during Management Council (Council) and its 3. Fishery Management Plan this meeting. Council action will be advisory entities will hold public Amendment 22-Open Access Fishery restricted to those issues specifically meetings. Limitation listed in this notice and any issues DATES: The Council and its advisory 4. Fishery management Plan arising after publication of this notice entities will meet June 11–18, 2009. The Amendment 23-Implementing Annual that require emergency action under Council meeting will begin on Saturday, Catch Limit Requirements Section 305(c) of the Magnuson-Stevens June 13, at 8 a.m., reconvening each day 5. National Marine Fisheries Service Fishery Conservation and Management through Thursday, June 18, 2009. All Report Act, provided the public has been meetings are open to the public, except 6. Part I of Stock Assessments for notified of the Council’s intent to take a closed session will be held from 8 a.m. 2011–12 Groundfish Fisheries final action to address the emergency. until 9 a.m. on Saturday, June 13 to 7. Consideration of Inseason The following is a schedule of address litigation and personnel Adjustments ancillary and advisory body meetings: SCHEDULE OF ANCILLARY MEETINGS

Thursday, June 11, 2009 . Scientific and Statistical Committee Groundfish Subcommittee 8 am. Friday, June 12, 2009 . Groundfish Advisory Subpanel 8 am. Groundfish Management Team 8 am. Scientific and Statistical Committee 8 am. Highly Migratory Species Management Team 1 pm. Pacific Council Secretariat 1 pm. Budget Committee 3 pm. Saturday, June 13, 2009 .

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SCHEDULE OF ANCILLARY MEETINGS—Continued

Pacific Council Secretariat 7 am. California State Delegation 7 am. Oregon State Delegation 7 am. Washington State Delegation 7 am. Groundfish Advisory Subpanel 8 am. Groundfish Management Team 8 am. Highly Migratory Advisory Subpanel 8 am. Highly Migratory Management Team 8 am. Scientific and Statistical Committee 8 am. Enforcement Consultants 4:30 pm. Sunday, June 14, 2009 . Scientific and Statistical Committee 8 am. Pacific Council Secretariat 9 am. California State Delegation 9 am. Oregon State Delegation 9 am. Washington State Delegation 9 am. Enforcement Consultants 10 am. Groundfish Advisory Subpanel 10 am. Groundfish Management Team 10 am. Monday, June 15, 2009 . Pacific Council Secretariat 7 am. California State Delegation 7 am. Oregon State Delegation 7 am. Washington State Delegation 7 am. Coastal Pelagic Species Advisory Subpanel 8 am. Coastal Pelagic Species Management Team 8 am. Enforcement Consultants 8 am. Groundfish Advisory Subpanel 8 am. Groundfish Management Team 8 am. Tuesday, June 16, 2009 . Pacific Council Secretariat 7 am. California State Delegation 7 am. Oregon State Delegation 7 am. Washington State Delegation 7 am. Enforcement Consultants 8 am. Groundfish Advisory Subpanel 8 am. Groundfish Management Team 8 am. Wednesday, June 17, 2009 . Pacific Council Secretariat 7 am. California State Delegation 7 am. Oregon State Delegation 7 am. Washington State Delegation 7 am. Enforcement Consultants 8 am. Groundfish Advisory Subpanel 8 am. Groundfish Management Team 8 am. Thursday, June 18, 2009 . Pacific Council Secretariat 7 am. California State Delegation 7 am. Oregon State Delegation 7 am. Washington State Delegation 7 am.

Special Accommodations DEPARTMENT OF COMMERCE DATES: The meetings will be held on June 23–24, 2009. The Council will These meetings are physically National Oceanic and Atmospheric convene on Tuesday, June 23, 2009, accessible to people with disabilities. Administration from 9 a.m. to 5 p.m., and the Requests for sign language Administrative Committee will meet RIN 0648–XP41 interpretation or other auxiliary aids from 5:15 p.m. to 6 p.m. They will should be directed to Ms. Carolyn Porter Caribbean Fishery Management reconvene on Wednesday, June 24, from at (503) 820–2280 at least 5 days prior Council; Public Meetings 9 a.m. to 5 p.m. to the meeting date. ADDRESSES: The meetings will be held at Dated: May 21, 2009. AGENCY: National Marine Fisheries the Carambola Beach Resort and Spa, Tracey L. Thompson, Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), located at Estate Davis Bay, St. Croix, Acting Director, Office of Sustainable Commerce. U.S.V.I. Fisheries, National Marine Fisheries Service. ACTION: Notice of public meetings. [FR Doc. E9–12220 Filed 5–22–09; 8:45 am] FOR FURTHER INFORMATION CONTACT: BILLING CODE 3510–22–S SUMMARY: The Caribbean Fishery Caribbean Fishery Management Council, Management Council (Council) and its 268 Munoz Rivera Avenue, Suite 1108, Administrative Committee will hold San Juan, Puerto Rico 00918–1920, meetings. telephone: (787) 766–5926.

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SUPPLEMENTARY INFORMATION: The The established times for addressing telephone: (787) 766–5926, at least 5 Council will hold its 131st regular items on the agenda may be adjusted as days prior to the meeting date. Council Meeting to discuss the items necessary to accommodate the timely Dated: May 19, 2009. contained in the following agenda: completion of discussion relevant to the Tracey L. Thompson, agenda items. To further accommodate June 23, 2009 - 9 a.m. to 5 p.m. Acting Director, Office of Sustainable discussion and completion of all items Fisheries, National Marine Fisheries Service. •Call to Order on the agenda, the meeting may be [FR Doc. E9–12044 Filed 5–22–09; 8:45 am] •Adoption of Agenda extended from, or completed prior to •Consideration of the 130th Council the date established in this notice. BILLING CODE 3510–22–S Meeting Verbatim Transcription The meetings are open to the public, • Executive Director’s Report and will be conducted in English. • DEPARTMENT OF COMMERCE Bajo de Sico Public Hearings Report Fishers and other interested persons are and Final Action • invited to attend and participate with Economic Development Administration ACLs/AMs Scoping Meetings Report oral or written statements regarding June 23, 2009 - 5:15 p.m. to 6 p.m. agenda issues. Notice of Petitions by Firms for Although non-emergency issues not Determination of Eligibility To Apply •Administrative Committee Meeting contained in this agenda may come for Trade Adjustment Assistance -AP/SSC/HAP Membership before this group for discussion, those -Budget AGENCY: Economic Development -FY 2009 issues may not be subjects for formal action during this meeting. Actions will Administration, Department of - New Grants Rules Commerce. -Budget Petition: 5-years (2010–14) be restricted to those issues specifically -SOPPs Amendment(s) identified in this notice, and any issues ACTION: Notice and opportunity for -Other Business arising after publication of this notice public comment. that require emergency action under June 24, 2009, 9 a.m. to 5 p.m. section 305(c) of the Magnuson-Stevens Pursuant to Section 251 of the Trade •ACLs/AMs Scoping Meetings Report Fishery Conservation and Management Act of 1974 (19 U.S.C. 2341 et seq.), the (Cont.) Act, provided that the public has been Economic Development Administration •Queen Conch Fishery Issues notified of the Council’s intent to take (EDA) has received petitions for -Request for Emergency Action from final action to address the emergency. certification of eligibility to apply for Trade Adjustment Assistance from the DPNR Special Accommodations -Potential Interim Rule Request firms listed below. EDA has initiated •Administrative Committee These meetings are physically separate investigations to determine Recommendations accessible to people with disabilities. whether increased imports into the •Other Business For more information or request for sign United States of articles like or directly -Enforcement and Meeting Attended language interpretation and/other competitive with those produced by by CFMC Members and Staff Reports auxiliary aids, please contact Mr. each firm contributed importantly to the (These reports will be postponed for Miguel A. Rolon, Executive Director, total or partial separation of the firm’s the next meeting in August, if there is Caribbean Fishery Management Council, workers, or threat thereof, and to a no time on June 24, 2009.) 268 Munoz Rivera Avenue, Suite 1108, decrease in sales or production of each •Next Council Meeting San Juan, Puerto Rico 00918–1920; petitioning firm.

LIST OF PETITIONS RECEIVED BY EDA FOR CERTIFICATION OF ELIGIBILITY TO APPLY FOR TRADE ADJUSTMENT [4/1/2009 through 5/8/2009]

Date accepted Firm Address for filing Products

Control Technology Inc. 7608 North Hudson Ave., Oklahoma City, OK 4/8/2009 Static electric converters, power conditioners. 73116. J&M Machining, Inc ...... 313 North Ave., Skowhegan, ME 04976 ...... 4/13/2009 Precision machined components parts for indus- trial machinery. Carving Craft, Inc ...... 120 11th Street, Hickory, NC 28603 ...... 4/14/2009 Carvings, turnings, and moldings. Pank Precision Products 11827 Janke Dr., Northbrook, IL 60062 ...... 4/14/2009 Precision metal components primarily for sus- pension systems. American Window Enter- 200 Conant Street, Pawtucket, RI 02888 ...... 4/21/2009 Windows and doors are custom designed and prises. manufactured from vinyl, wood, metal, and glass on-site. TP Cycle & Engineering, 4 Finance Drive, Danbury, CT 06810 ...... 4/22/2009 Motorcycle engines and related parts. Inc. Oklahoma Interpak En- 2424 North Main, Muskogee, OK 74402 ...... 4/1/2009 Corrugated board, chipboard, paperboard, to be terprise, Inc. used as containers, partitions, and pads. Dufresne Manufacturing 1380 East County Road, E. Vadnais, MN 55110 4/3/2009 Fabricated sheet metal components for medical Co. devices. Evo Inc ...... 8140 SW Nimbus Avenue, Beaverton, OR 97008 4/7/2009 High end portable and non-portable electric and gas cooking appliances and grills. Albany Chicago Com- 8200 100th St., Pleasant Prairie, WI 53158–2207 4/3/2009 A variety of large aluminum castings. pany, LLC. Electro Form Corpora- 128 Bevier, Street Binghamton, NY 13904 ...... 4/8/2009 Precision machined components primarily en- tion. gaged in electromechanical assembly equip- ment. Header Die & Tool, Inc .. 3022 Eastrock Ct., Box, Rockford, IL 61125 ...... 4/14/2009 Steel tooling used in the production of fasteners.

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LIST OF PETITIONS RECEIVED BY EDA FOR CERTIFICATION OF ELIGIBILITY TO APPLY FOR TRADE ADJUSTMENT— Continued [4/1/2009 through 5/8/2009]

Date accepted Firm Address for filing Products

Tottser Tool and Die 1630 Republic Road, Huntington, PA 19006 ...... 5/8/2009 Metal stampings and die sets for the automotive Shop, Inc. industry.

Any party having a substantial (POR) is July 1, 2007, through June 30, initiate and conduct an administrative interest in these proceedings may 2008. review of its sales of subject request a public hearing on the matter. We preliminarily determine that sales merchandise during the POR. Aqualon A written request for a hearing must be of subject merchandise by CP Kelco timely requested that the Department submitted to the Office of Performance have been made at less than normal conduct an administrative review of Evaluation, Room 7009, Economic value (NV). If these preliminary results sales of subject merchandise by Akzo Development Administration, U.S. are adopted in our final results, we will Nobel Functional Chemicals B.V. (Akzo Department of Commerce, Washington, instruct U.S. Customs and Border Nobel) and CP Kelco on July 14, 2008. DC 20230, no later than ten (10) Protection (CBP) to assess antidumping On July 31, 2008, Akzo Nobel timely calendar days following publication of duties on appropriate entries based on requested that the Department conduct this notice. Please follow the procedures the difference between the export price an administrative review of its sales of set forth in Section 315.9 of EDA’s final (EP) or constructed export price (CEP) merchandise covered by the order. On rule (71 FR 56704) for procedures for and NV. Interested parties are invited to August 26, 2008, the Department requesting a public hearing. The Catalog comment on these preliminary results. published in the Federal Register a of Federal Domestic Assistance official EFFECTIVE DATE: May 26, 2009. notice of initiation of this antidumping program number and title of the FOR FURTHER INFORMATION CONTACT: duty administrative review covering program under which these petitions are Patrick Edwards or Brian Davis, AD/ sales, entries and/or shipments of submitted is 11.313, Trade Adjustment CVD Operations, Office 7, Import purified CMC for the period July 1, Assistance. Administration, International Trade 2007, through June 30, 2008, from CP Dated: May 15, 2009. Administration, U.S. Department of Kelco and Akzo Nobel. See Initiation of William P. Kittredge, Commerce, 14th Street and Constitution Antidumping and Countervailing Duty Program Officer for TAA. Avenue, NW, Washington, DC 20230; Administrative Reviews, 73 FR 50308 [FR Doc. E9–12115 Filed 5–22–09; 8:45 am] telephone: (202) 482–8029 or (202) 482– (August 26, 2008). 7924, respectively. BILLING CODE 3510–24–P On September 5, 2008, and September SUPPLEMENTARY INFORMATION: 22, 2008, the Department issued its Background antidumping duty questionnaire to CP DEPARTMENT OF COMMERCE Kelco and Akzo Nobel, respectively. CP On July 11, 2005, the Department Kelco submitted its section A International Trade Administration published the antidumping duty order questionnaire response (AQR) on on purified CMC from the Netherlands. A–421–811 October 7, 2008. Akzo Nobel withdrew See Notice of Antidumping Duty Orders: its request for review on October 9, Purified Carboxymethylcellulose from Purified Carboxymethylcellulose from 2008. Subsequently, petitioner the Netherlands; Preliminary Results Finland, Mexico, the Netherlands, and withdrew its request for review of sales of Antidumping Duty Administrative Sweden, 70 FR 39734 (July 11, 2005) by Akzo Nobel on October 10, 2008. See Review (CMC Order). On July 11, 2008, the 19 CFR 351.213(d)(1). CP Kelco Department published the opportunity submitted both its section B AGENCY: Import Administration, to request an administrative review of, questionnaire response (BQR) and International Trade Administration, inter alia, purified CMC from the section C questionnaire response (CQR) Department of Commerce. Netherlands for the period July 1, 2007, on October 20, 2008, and its section D SUMMARY: In response to a request from through June 30, 2008. See questionnaire response (DQR) on petitioner Aqualon Company, a division Antidumping or Countervailing Duty November 3, 2008. of Hercules Incorporated (Aqualon), a Order, Finding, or Suspended U.S. manufacturer of purified Investigation; Opportunity To Request On November 6, 2008, Aqualon carboxymethylcellulose (CMC), and Administrative Review, 73 FR 39948 provided deficiency comments for CP respondent CP Kelco B.V. (CP Kelco), (July 11, 2008). Kelco’s BQR and CQR relating to, inter the Department of Commerce (the In accordance with 19 CFR alia, data inconsistencies in both the 2 Department) is conducting an 351.213(b)(2), on July 11, 2008, CP home and U.S. markets. administrative review of the Kelco and its U.S. affiliates (CP Kelco On November 12, 2008, the antidumping duty order on purified U.S., Inc. and JM Huber Corporation) Department rescinded the CMC from the Netherlands. This timely requested that the Department administrative review with respect to administrative review covers imports of Akzo Nobel. See Purified subject merchandise produced and from the Netherlands; Preliminary Results of Carboxymethylcellulose from the exported by CP Kelco (formerly known Antidumping Duty Administrative Review, 72 FR Netherlands: Partial Rescission of 44099, 44101 (August 7, 2007), unchanged in the 1 Antidumping Duty Administrative as Noviant B.V.). The period of review final, Purified Carboxymethylcellulose from the Netherlands: Final Results of Antidumping Duty 1 In a prior review, the Department determined Administrative Review, 72 FR 70821, 70822 2 The Department addressed Aqualon’s comments that CP Kelco was the successor-in-interest to (December 13, 2007) (Final Results of First in its December 16, 2008, issuance of its Noviant B.V. See Purified Carboxymethylcellulose Administrative Review). supplemental questionnaire.

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Review, 73 FR 66841 (November 12, Period of Review Report). The Department conducted a 2008). The POR is July 1, 2007, through June verification of CP Kelco’s cost responses On December 16, 2008, the 30, 2008. in Nijmegen, the Netherlands, from Department issued its first sections A– March 16, 2009, through March 21, Scope of the Order C supplemental questionnaire to CP 2009. See Memorandum to the File from Kelco. On January 9, 2009, the The merchandise covered by this Christopher Zimpo, through Neal M. Department issued its first section D order is all purified CMC, sometimes Halper, Director, and Peter Scholl, Lead supplemental questionnaire to CP also referred to as purified sodium CMC, Accountant, regarding ‘‘Verification of Kelco. On January 22, 2009, CP Kelco polyanionic cellulose, or cellulose gum, the Cost Response of CP Kelco B.V. in submitted its sections A–C which is a white to off–white, non– the Antidumping Duty Administrative supplemental questionnaire response toxic, odorless, biodegradable powder, Review of Purified (SQR). On February 2, 2009, CP Kelco comprising sodium CMC that has been Carboxymethylcellulose from the submitted its supplemental section D refined and purified to a minimum Netherlands,’’ dated May 18, 2009 (Cost questionnaire response (SDQR). On assay of 90 percent. Purified CMC does Verification Report). Public versions of these reports are on file in the Central February 4, 2009, the Department issued not include unpurified or crude CMC, Records Unit (CRU) located in room its second sections A–C supplemental CMC Fluidized Polymer Suspensions, 1117 of the main Department of questionnaire to CP Kelco. On February and CMC that is cross–linked through Commerce Building, 14th Street and 9, 2009, Aqualon submitted comments heat treatment. Purified CMC is CMC Constitution Avenue, NW, Washington, on CP Kelco’s February 2, 2009, SDQR. that has undergone one or more DC. On February 11, 2009, CP Kelco purification operations, which, at a submitted its second sections A–C minimum, reduce the remaining salt Date of Sale supplemental questionnaire response and other by–product portion of the (SSQR). product to less than ten percent. The CP Kelco reported the invoice date as merchandise subject to this order is the date of sale for its U.S. sales. The On March 27, 2009, the Department currently classified in the Harmonized Department considers invoice date to be extended the deadline for the Tariff Schedule of the United States at the presumptive date of sale (see 19 CFR preliminary results by 46 days from subheading 3912.31.00. This tariff 351.401(i)). For purposes of this review, April 2, 2009, until May 18, 2009. See classification is provided for we examined whether invoice date or Purified Carboxymethylcellulose from convenience and Customs purposes; another date better represents the date the Netherlands; Extension of Time however, the written description of the on which the material terms of sale were Limit for Preliminary Results of scope of this order is dispositive. established. The Department, in Antidumping Duty Administrative reviewing CP Kelco’s questionnaire Review, 74 FR 14959 (April 2, 2009). Verification responses, found that the material terms Following the release of the As provided in section 782(i) of the of sale are set on the date on which the Department’s sales verification reports, Tariff Act of 1930, as amended (the Act), invoice is issued. CP Kelco reported the Department requested CP Kelco and 19 CFR 351.307, we conducted a that, following the receipt of purchase revise its home market and U.S. sales sales verification of the questionnaire orders, the terms of sale are susceptible databases pursuant to the Department’s responses of CP Kelco from February 23, and subject to changes in price and verification findings and the minor 2009, through February 27, 2009, and quantity until issuance of the sales corrections presented by company CP Kelco’s U.S. sales affiliate, CP Kelco invoice. See SQR at page 12; see also officials at the start of the verifications. U.S., Inc. (CP Kelco US) from March 2, SQR at page 31; see also CEP See Letter to CP Kelco from Angelica L. 2009, through March 4, 2009. We used Verification Report at page 14. Mendoza, Program Manager, regarding standard verification procedures, Furthermore, in reviewing sales Submission of Revised Sales Databases, including on–site inspection of CP documentation during verification, we dated May 5, 2009. CP Kelco submitted Kelco’s production facility in Nijmegen, noted instances where the material its revised sales databases on May 11, the Netherlands. Our verification results terms of sale changed prior to the date 2009. On May 15, 2009, the Department are outlined in the following of invoice (see, e.g., CEP Verification issued an additional supplemental memoranda: (1) Memorandum to the Report at Exhibit 16). Therefore, we questionnaire to CP Kelco requesting File, through Angelica L. Mendoza, preliminarily determine that invoice further cost information for one Program Manager, ‘‘Verification of the date is the appropriate date of sale for particular control number, due May, 20, Home Market and Export Price Sales CP Kelco’s U.S. sales in this 2009 (i.e., after the date of these Responses of CP Kelco, B.V. in the administrative review because it preliminary results). Given that we will Administrative Review of the represents the date upon which the not receive this information until after Antidumping Duty Order on Purified material terms of sale are established. the issuance of these preliminary Carboxymethylcellulose from the This is consistent with the most recently results, we intend to address this issue Netherlands,’’ dated April 30, 2009 completed administrative review of this in our final results. For further detail, (Home Market Verification Report), and order. See Purified see Memorandum to the File through (2) Memorandum to the File, through Carboxymethylcellulose from the Angelica L. Mendoza, Program Manager, Angelica L. Mendoza, Program Manager, Netherlands; Preliminary Results of Office 7, from Patrick Edwards, Senior ‘‘Sales Verification of Sections A–C Antidumping Duty Administrative Case Analyst, titled ‘‘Analysis of Data Questionnaire Responses Submitted by Review, 73 FR 45943, 45944 (August 8, Submitted by CP Kelco B.V. in the CP Kelco B.V. and CP Kelco U.S., Inc. 2008) (Preliminary Results of Second Preliminary Results of the Antidumping in the Antidumping Duty Administrative Review), unchanged at Duty Administrative Review of Purified Administrative Review of Purified the final results, Purified Carboxymethylcellulose (CMC) from the Carboxymethylcellulose from the Carboxymethylcellulose from the Netherlands,’’ dated May 18, 2009, Netherlands: Verification of United Netherlands: Final Results of (Preliminary Analysis Memorandum) at States Affiliate CP Kelco U.S., Inc.,’’ Antidumping Duty Administrative 9. dated April 30, 2009 (CEP Verification Review, 73 FR 75393 (December 11,

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2008) (Final Results of Second Product Comparisons we have accepted CP Kelco’s Administrative Review). In accordance with section 771(16) of classifications. However, for instances where the date the Act, we considered all purified CMC We calculated EP based on prices charged to the first unaffiliated U.S. of shipment preceded the date of produced and sold by the respondent in customer. We used the sale invoice date invoice, we have preliminarily the Netherlands during the POR that fit as the date of sale.3 We based EP on the the description in the ‘‘Scope of Order’’ determined to use the date of shipment packed, delivered prices to unaffiliated section of this notice to be foreign like for those sales. Normally, the purchasers in the United States. We products for purposes of determining Department employs invoice date as the made deductions for movement appropriate product comparisons to date of sale in accordance with 19 CFR expenses in accordance with section U.S. sales. We compared U.S. sales with 351.401(i). However, it is the 772(c)(2)(A) of the Act, which included sales of the foreign like product in the Department’s practice to use shipment foreign inland freight, international home market. Where there were no sales date as the date of sale when shipment freight, marine insurance, U.S. of identical or similar merchandise date precedes invoice date. See Certain brokerage and handling, U.S. inland Cold–Rolled and Corrosion–Resistant made in the ordinary course of trade, we freight offset by freight revenue (see Carbon Steel Flat Products From Korea: made product comparisons using below for further discussion), and U.S. Final Results of Antidumping Duty constructed value (CV). Specifically, in customs duties. As noted below, we are Administrative Reviews, 63 FR 13170, making our comparisons, we used the relying upon adverse facts available 13172–73 (March 18, 1998); see also following methodology. To determine with respect to the reported factoring Stainless Steel Sheet and Strip in Coils the most similar model, we matched the transaction fees incurred by CP Kelco on from the Republic of Korea: Preliminary foreign like product based on the its EP sales. Specifically, we are Results and Partial Rescission of physical characteristics reported by the adjusting the EP using the highest Antidumping Duty Administrative respondent in the following order of reported factoring transaction fee. See importance: (1) grade, (2) viscosity, (3) Review, 71 FR 18074, 18079–80 (April ‘‘Use of Adverse Facts Available’’ degree of substitution, (4) particle size, 10, 2006), unchanged in Stainless Steel section below; see also Preliminary and (5) solution characteristics. If an Sheet and Strip in Coils from the Analysis Memorandum at 9, for further identical home–market model was Republic of Korea; Final Results and details. reported, we made comparisons to Rescission of Antidumping Duty We calculated CEP based on prices weighted–average home market prices charged to the first unaffiliated U.S. Administrative Review in Part, 72 FR that were based on all sales which 4486 (January 31, 2007), and the customer after importation. We used the passed the cost of production (COP) test sale invoice date as the date of sale. We accompanying Issues and Decision of the identical product during the Memorandum at Comments 4 and 5. based CEP on the gross unit price from relevant or contemporary month. See CP Kelco US to its unaffiliated U.S. Similarly, based on our review of CP sections 771(16) and (35); see also customers, making adjustments where Kelco’s questionnaire responses, we 773(b)(1) of the Act. If there were no necessary for billing adjustments. Where preliminarily find that the date of contemporaneous sales of an identical applicable, and pursuant to sections invoice constitutes the date on which model, we identified the most similar 772(c)(2)(A) and (d)(1) of the Act, the the material terms of sale are established home–market model. See section Department made deductions for in the home market (i.e., the 773(b)(1) of the Act. movement expenses (foreign inland Netherlands). See SQR at 12; see also Export Price and Constructed Export freight, international freight, marine Home Market Verification Report at Price insurance, U.S. inland freight offset by pages 23–42; see also Home Market freight revenue (see below for further Verification Exhibit 21. CP Kelco In accordance with section 772 of the discussion), U.S. warehousing, U.S. reported that the terms of sale recorded Act, we calculate either an EP or a CEP, brokerage and handling, and U.S. on purchase orders in the home market depending on the nature of each sale. customs duties). are also subject to change, typically in Section 772(a) of the Act defines EP as In accordance with the recently the form of packing and product grade the price at which the subject completed administrative review of (which can affect price). See CP Kelco’s merchandise is first sold (or agreed to be polyethylene retail carrier bags from the AQR at 30–34. Therefore, we are using sold) by the foreign exporter or producer People’s Republic of China, we capped the invoice date as the date of sale for before the date of importation to an the amount of freight revenue deducted home market sales. For a further unaffiliated purchaser in the United at no greater than the amount of discussion of our date of sale analysis, States, or to an unaffiliated purchaser corresponding movement expenses for for exportation to the United States. see Preliminary Analysis Memorandum CP Kelco’s sales of purified CMC to the Section 772(b) of the Act defines CEP as at 2. United States and in the home market. the price at which the subject See Polyethylene Retail Carrier Bags Fair Value Comparisons merchandise is first sold (or agreed to be from the People’s Republic of China: sold) in the United States before or after Final Results of Antidumping Duty To determine whether sales of the date of importation by or for the Administrative Review, 74 FR 6857, purified CMC from the Netherlands to account of the producer or exporter of 6858 (February 11, 2009) (Bags from the the United States were made at less than such merchandise or by a seller PRC), and the accompanying Issues and fair value, we compared the EP or CEP affiliated with the producer or exporter, Decision Memorandum at Comment 4. to the NV, as described in the ‘‘Export to a purchaser not affiliated with the As the Department explained in Bags Price and Constructed Export Price’’ and producer or exporter. CP Kelco from the PRC, section 772(c)(1) of the ‘‘Normal Value’’ sections of this notice classified two types of sales to the Act provides that the Department shall below. In accordance with section United States: (1) direct sales to end– increase the price used to establish 777A(d)(2) of the Act, we compared the users (i.e., EP sales); and (2) sales via its either export price or constructed export EPs and CEPs of individual U.S. U.S. affiliate, CP Kelco US, to end–users transactions to monthly weighted– and distributors (i.e., CEP sales). For 3 See Preliminary Analysis Memorandum at page average NVs. purposes of these preliminary results, 2 for a further discussion of this issue.

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price in only the following three Rescission of Antidumping Duty product was greater than five percent of instances: (1) when not included in Administrative Review, 73 FR 46584 its aggregate volume of U.S. sales of the such price, the cost of all containers and (August 11, 2008), and accompanying subject merchandise, we determined coverings and all other costs, charges, Issues and Decision Memorandum at that the home market was viable for and expenses incident to placing the Comment 7. According to CP Kelco’s comparison. Therefore, we have based subject merchandise in condition responses, freight revenues are revenues NV on home market sales in the usual packed ready for shipment to the United received from customers for invoice commercial quantities and in the States; (2) the amount of any import items covering transportation expenses, ordinary course of trade. duties imposed by the country of and arise when freight is not included B. Cost of Production (COP) Analysis exportation which have been rebated, or in the selling price under the applicable which have not been collected, by terms of delivery, but when CP Kelco In accordance with section reason of the exportation of the subject arranges and prepays freight for the 773(b)(2)(A)(ii) of the Act, because we merchandise to the United States; and customer. See CP Kelco’s BQR at B–20 determined CP Kelco to have made sales (3) the amount of any countervailing and CP Kelco’s CQR at C–20 through C– below the cost of production in the most duty imposed on the subject 21. Accordingly, CP Kelco incurred recently completed administrative merchandise under subtitle A to offset expenses and realized revenue for this review, the Department requested that an export subsidy. Section 773(a)(6) of activity. Therefore, we have limited the CP Kelco respond to section D of the the Act provides that the Department amount of the freight revenue used to Department’s antidumping duty shall increase the price used to establish offset CP Kelco’s movement expenses to questionnaire, as there were reasonable normal value by the cost of all the amount of movement expenses grounds to believe or suspect that CP containers and coverings and all other incurred on the sale of subject Kelco made home market sales at prices costs, charges, and expenses incident to merchandise or the foreign–like below the cost of producing the placing the subject merchandise in product. For further discussion of our merchandise in the current POR. See condition packed ready for shipment to treatment of freight revenue, see Preliminary Results of Second the United States. Preliminary Analysis Memorandum at Administrative Review, 73 FR at 45946 In addition, 19 CFR 351.401(c) of the 13 and 17. (unchanged in Final Results of Second Department’s regulations directs the In accordance with section 772(d)(1) Administrative Review). Department to use a price in the of the Act, we also deducted, where C. Calculation of Cost of Production calculation of U.S. price and normal applicable, U.S. direct selling expenses, value that is net of any price including credit expenses, U.S. indirect We have preliminarily relied on the adjustments that are reasonably selling expenses, and U.S. inventory COP information provided by CP Kelco. attributable to the subject merchandise carrying costs incurred in the United In accordance with section 773(b)(3) of or the foreign–like product (whichever States and the Netherlands associated the Act, we calculated the weighted– is applicable). The term ‘‘price with economic activities in the United average COP for each model based on adjustment’’ is defined under 19 CFR States. We also deducted CEP profit in the sum of CP Kelco’s material and 351.102(b)(38) as a ‘‘change in the price accordance with section 772(d)(3) of the fabrication costs for the foreign like charged for subject merchandise or the Act. As discussed below, we are relying product, plus amounts for selling, foreign like product, such as discounts, upon adverse facts available with general, and administrative (SG&A) rebates, and post–sale adjustments, that respect to the reported factoring expenses, as well as packing costs. are reflected in the purchaser’s net transaction fees incurred by CP Kelco on D. Test of Home Market Prices outlay.’’ its CEP sales. Specifically, we are In past cases, we have declined to We compared CP Kelco’s weighted– adjusting the CEP using the highest treat freight–related revenues as average COP figures to CP Kelco’s home reported factoring transaction fee. See additions to U.S. price under section market sales prices (net of billing ‘‘Use of Adverse Facts Available’’ 772(c) of the Act or price adjustments adjustments, any applicable movement section below; see also Preliminary under 19 CFR 351.102(b). Rather, we expenses, direct and indirect selling Analysis Memorandum at 9, for further have incorporated these revenues as expenses, and packing) of the foreign details. offsets to movement expenses because like product, as required under section they relate to the transportation of Normal Value 773(b) of the Act, to determine whether subject merchandise or the foreign–like A. Home Market Viability and sales to the home market had been made product. See, e.g., Stainless Steel Wire Comparison Market Selection at prices below COP. On a product– Rod from Sweden: Preliminary Results specific basis, we compared COP to of Antidumping Duty Administrative In order to determine whether there is home market prices, less any applicable Review, 72 FR 51414, 51415 (September a sufficient volume of sales in the home movement charges. 7, 2007) (SSWR Preliminary Results) market to serve as a viable basis for In determining whether to disregard (unchanged in Stainless Steel Wire Rod calculating NV (e.g., whether the home market sales made at prices below from Sweden: Final Results of aggregate volume of home market sales the COP, we examined, in accordance Antidumping Duty Administrative of the foreign like product is equal to or with sections 773(b)(1)(A) and (B) of the Review, 73 FR 12950 (March 11, 2008)). greater than five percent of the aggregate Act, whether such sales were made in Further, our offset practice limits the volume of the subject merchandise sold substantial quantities within an granting of an offset to situations where in the United States), we compared extended period of time, and whether a respondent incurs expenses and respondent’s volume of home market such sales were made at prices which realized revenue for the same type of sales of the foreign like product to the permitted the recovery of all costs activity. See SSWR Preliminary Results, volume of U.S. sales of the subject within a reasonable period of time, in 72 FR at 51415; see also Bags from the merchandise, in accordance with the normal course of trade. PRC, and accompanying Issues and section 773(a)(1) of the Act. Pursuant to Decision Memorandum at Comment 4; section 773(a)(1)(B)(ii)(II) of the Act, E. Results of Cost Test see also Certain Orange Juice from because CP Kelco’s aggregate volume of Pursuant to section 773(b)(2)(C) of the Brazil: Final Results and Partial home market sales of the foreign–like Act, where less than 20 percent of CP

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Kelco’s sales of a given model were at We have not made a deduction from NV from the customer.4 The factoring entity prices less than the COP, we did not for factoring transaction fees incurred by charges a transaction fee to CP Kelco, disregard any below–cost sales of that CP Kelco on certain home market sales, which is discounted from the face value model because these below–cost sales as noted in the ‘‘Use of Adverse Facts of the actual receivable; per the were not made in substantial quantities. Available’’ section below. Department’s prior decisions in this Where 20 percent or more of CP Kelco’s case, CP Kelco reports these transaction home market sales of a given model G. Price–to-Constructed Value fees as factoring expenses. See pages were at prices less than the COP, we Comparisons 30–31 of CP Kelco’s SQR. disregarded the below–cost sales In accordance with section 773(a)(4) During our verification of the pre– because such sales were made: (1) in of the Act, we base NV on CV if we are selected and surprise home market and substantial quantities within the POR unable to find a contemporaneous home U.S. sales, we noted several (i.e., within an extended period of time) market match of identical or similar discrepancies with regard to CP Kelco’s in accordance with sections 773(b)(2)(B) merchandise for the U.S. sale. Section reported transaction fees for factored and (C) of the Act, and (2) at prices 773(e) of the Act provides that CV shall sales. These transaction fees were which would not permit recovery of all be based on the sum of the cost of reported on a percentage and per–unit costs within a reasonable period of time, materials and fabrication employed in basis. Specifically, the factoring in accordance with section 773(b)(2)(D) making the subject merchandise, SG&A transaction fee expressed as a of the Act (i.e., the sales were made at expenses, and profit. We calculated the percentage of gross unit price is prices below the weighted–average per– cost of materials and fabrication for CP reported in field FACTORlPCTH, unit COP for the POR). We used the Kelco based on the methodology where the factoring transaction fee on a remaining sales as the basis for described in the COP section of this per–metric ton basis is reported in field determining NV, if such sales existed, in notice. In accordance with section FACTORlDSTH. For the majority of accordance with section 773(b)(1) of the 773(e)(2)(A) of the Act, we based SG&A the sales traces examined, we found Act. In this instant review, we found expenses and profit on the amounts CP systemic errors in CP Kelco’s sales below the COP and have, as Kelco incurred and realized in calculation and reporting of this described above, disregarded such sales connection with the production and sale expense. from our margin calculations. See of the foreign like product in the Specifically, we discovered that CP Preliminary Analysis Memorandum at ordinary course of trade, for Kelco miscalculated the reported and 8. consumption in the foreign country (i.e., allegedly ‘‘corrected’’ (per the company’s minor corrections F. Price–to-Price Comparisons the Netherlands). Accordingly, for sales of purified CMC for which we could not presentation) factoring transaction fees We calculated NV based on prices to determine the NV based on comparison in several instances where it used total unaffiliated customers or prices to market sales, either because there were invoice price, inclusive of value–added affiliated customers that we determined no useable sales of a comparable tax (VAT) and shipping costs, in its to be at arm’s length. See 19 CFR product or all sales of the comparable factoring calculations. In these 351.403(c). We used the sale invoice products failed the sales–below-cost instances, CP Kelco should have used date as the date of sale. See 19 CFR test, we based NV on CV. the total invoice price less the VAT and 351.401(i). We increased or decreased shipping costs. Moreover, for the U.S. price, as appropriate, for certain billing Use of Adverse Facts Available sales examined, we noted instances adjustments where applicable. We made For the reasons discussed below, we where factoring transaction fees were deductions, where appropriate, for determine that the use of adverse facts unreported, as well as instances in foreign inland freight incurred in the available is appropriate for the which factoring transaction fees were comparison market, pursuant to section preliminary results with respect to reported although the sales were not 773(a)(6)(B) of the Act. Following the 5 factoring transaction fees incurred by CP factored. Therefore, considering all of methodology described in the ‘‘Export the above, the Department is unable to Price and Constructed Export Price’’ Kelco on certain home market and U.S. sales. rely upon CP Kelco’s reporting of section above, where applicable, we factoring transaction fees for certain offset foreign inland freight expenses by A. Use of Facts Available home market and U.S. sales. freight revenue. In addition, when Because CP Kelco has failed to comparing sales of similar merchandise, Section 776(a)(2) of the Act provides that, if an interested party withholds accurately report its factoring we made adjustments for differences in transaction fees to the best of its cost attributable to differences in information requested by the administering authority, fails to provide abilities, the Department must rely on physical characteristics of the facts available. merchandise (e.g., DIFMER) pursuant to such information by the deadlines for section 773(a)(6)(C)(ii) of the Act and 19 submission of the information and in B. Application of Adverse Inference for CFR 351.411. We also made adjustments the form or manner requested, Facts Available for differences in circumstances of sale significantly impedes a proceeding Section 776(b) of the Act provides (COS) in accordance with section under this title, or provides such that, if the Department finds that an 773(a)(6)(C)(iii) of the Act and 19 CFR information but the information cannot 351.410. Specifically, we made COS be verified as provided in section 782(i) 4 In past segments of this proceeding, the adjustments for imputed credit of the Act, the administering authority Department has included the transaction fees expenses. We also made an adjustment, shall use facts otherwise available in relating to the factoring of certain comparison reaching the applicable determination. market and U.S. sales by CP Kelco through an where appropriate, for the CEP offset in affiliated finance company in its dumping margin accordance with section 773(a)(7)(B) of In its SQR, CP Kelco explained that calculations. However, the Department intends to the Act. See ‘‘Level of Trade’’ section factoring is the process by which CP re-examine the appropriateness of including these below. Additionally, we deducted home Kelco sells its accounts receivables to an affiliated transactions in its calculations in affiliated finance company for payment subsequent reviews of this proceeding. market packing costs and added U.S. 5 In some instances, the sale was initially factored packing costs in accordance with of the receivables at a date earlier than but later reversed because the customer paid CP sections 773(a)(6)(A) and (B) of the Act. CP Kelco would have received payment Kelco directly.

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interested party has failed to cooperate Department. Therefore, we find it section 773(a)(7)(A) of the Act. For CEP by not acting to the best of its ability to appropriate to use an inference that is sales, we examine stages in the comply with a request for information, adverse to the company’s interests in marketing process and selling functions the Department may use an inference selecting from among the facts along the chain of distribution between adverse to the interests of that party in otherwise available. the producer and the unaffiliated selecting the facts otherwise available. As adverse facts available, we have customer. We analyze whether different In addition, the Statement of denied an adjustment to price for CP selling activities are performed, and Administrative Action accompanying Kelco’s factoring transaction fees whether any price differences (other the Uruguay Round Agreements Act, incurred on all its home market sales for than those for which other allowances H.R. Rep. 103–316, Vol. 1, 103d Cong. which factoring was reported. As stated are made under the Act) are shown to (1994) (SAA), explains that the above, with regard to CP Kelco’s U.S. be wholly or partly due to a difference Department may employ an adverse sales, we have selected the highest in LOT between the CEP and NV. See inference ‘‘to ensure that the party does reported factoring transaction fee in the 773(a)(7)(A) of the Act. not obtain a more favorable result by company’s U.S. sales database and used Under section 773(a)(7)(A) of the Act, failing to cooperate than if it had that fee as the factoring transaction fee we make an upward or downward cooperated fully.’’ See SAA at 870. It is for all of CP Kelco’s U.S. sales which adjustment to NV for LOT if the the Department’s practice to consider, in were factored. While the discrepancies difference in LOT involves the employing adverse inferences, the were less prevalent with respect to CP performance of different selling extent to which a party may benefit Kelco’s factored U.S. sales, we have activities and is demonstrated to affect from its own lack of cooperation. See, selected the highest reported factoring price comparability, based on a pattern e.g., Id. transaction fee in order to ensure that of consistent price differences between Furthermore, ‘‘affirmative evidence of the company will not obtain a more sales at different LOTs in the country in favorable rate by failing to cooperate bad faith on the part of a respondent is which NV is determined. Finally, if the than had they cooperated fully. not required before the Department may NV LOT is at a more advanced stage of Moreover, because we are relying on the make an adverse inference.’’ See distribution than the LOT of the CEP, company’s own information, there is no Antidumping Duties; Countervailing but the data available do not provide an need to corroborate the chosen facts Duties, Final Rule, 62 FR 27296, 27340 appropriate basis to determine a LOT available under section 776(c) of the (May 19, 1997) (Preamble). We find that, adjustment, we reduce NV by the Act. For a detailed discussion on the by failing to accurately report the amount of indirect selling expenses Department’s application of adverse transaction fees associated with its incurred in the home market on sales of facts available for factored home market factored sales in both the home and U.S. the foreign like product, but by no more sales in its margin calculations, see markets, CP Kelco failed to cooperate to than the amount of the indirect selling the best of its abilities. CP Kelco failed Preliminary Analysis Memorandum at 9. expenses incurred for CEP sales. See to provide accurate, verifiable section 773(a)(7)(B) of the Act (the CEP information with regard to this expense Level of Trade offset provision). and, as such, we are unable to In analyzing differences in selling determine that CP Kelco’s factoring In accordance with section 773(a)(1)(B)(i) of the Act, to the extent functions, we determine whether the transaction fees are either an accurate or practicable, we determine NV based on LOTs identified by the respondent are a reasonable reflection of the company’s sales in the home market at the same meaningful. See Preamble, 62 FR 27296, own sales experience.6 These errors level of trade (LOT) as the EP or CEP 27371. If the claimed LOTs are the were systemic for the vast majority of transaction. The LOT in the home same, we expect that the functions and home market sales traces examined and, market is the LOT of the starting–price activities of the seller should be similar. thus, call into question the accuracy of sales in the home market or, when NV Conversely, if a party claims that LOTs the universe of these reported factoring is based on CV, the LOT of the sales are different for different groups of transaction fees in CP Kelco’s sales from which we derive SG&A expenses sales, the functions and activities of the databases. The Federal Circuit has and profit. See 19 CFR 351.412(b)(2)(c). seller should be dissimilar. See stated that, ‘‘§w§hile the adverse facts With respect to U.S. price for EP Porcelain–on-Steel Cookware from available standard does not require transactions, the LOT is also that of the Mexico: Final Results of Antidumping perfection and recognizes that mistakes starting–price sale, which is usually Duty Administrative Review, 65 FR sometimes occur, it does not condone from the exporter to the importer. Id. 30068 (May 10, 2000), and inattentiveness, carelessness, or For CEP, the LOT is that of the accompanying Issues and Decision inadequate record keeping.’’ See Nippon constructed sale from the exporter to the Memorandum at Comment 6. Steel Corporation v. United States, 337 importer. Id. F.3d 1373, 1382 (Fed. Cir. 2003). The In the present review, CP Kelco did To determine whether home market not claim a LOT adjustment. See CP AFA standard, moreover, assumes that sales are at a different LOT from U.S. because respondents are in control of Kelco’s BQR at page B–18. In order to sales, we examine stages in the determine whether the home market their own information, they are required marketing process and selling functions to take reasonable steps to present sales were at different stages in the along the chain of distribution between marketing process than the U.S. sales, information that reflects its experience the producer and the unaffiliated for reporting purposes before the we reviewed the distribution system in customer. If the home market sales are each market (i.e., the ‘‘chain of at different LOTs, and the difference 7 6 CP Kelco, like all respondents, was provided distribution’’), including selling ample opportunity to report correct and accurate affects price comparability, as information with regard to its factoring transaction manifested in a pattern of consistent 7 The marketing process in the United States and fees in its AQR, BQR, CQR, two supplemental price differences between the sales on comparison market begins with the producer and questionnaire responses (SQR and SSQR), as well which NV is based and home market extends to the sale to the final user or customer. as in its minor corrections presentation during the The chain of distribution involved in the two home market sales verification, which were also sales at the LOT of the export markets may have many or few links, and the found to be incorrect. See Home Market Verification transaction, the Department makes an respondent’s sales occur somewhere along this Report at Section X and VE-1. LOT adjustment in accordance with chain. In performing this evaluation, we considered

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functions, class of customer (customer responses, after these deductions. We provided by CP Kelco on sales to its category), and the level of selling found that CP Kelco provides almost no U.S. affiliate), we preliminarily find that functions for each type of sale. selling functions to its U.S. affiliate in the home market LOT is at a more CP Kelco reported one LOT in the support of the CEP LOT. CP Kelco advanced stage when compared to CEP home market, the Netherlands, with two reported that the only services it sales because CP Kelco provides many channels of distribution to two classes provided for the CEP sales were logistics selling functions in the home market at of customers: (1) direct sales from the for freight, delivery and packing, and a higher level of service (i.e., sales plant to end users, and (2) direct sales very limited customer care and negotiations, customer care, collection, from the plant to distributors. See inventory maintenance. See CP Kelco’s direct sales personnel, technical Section CP Kelco’s BQR at page B–11. AQR at page A–14 through A–26. support, etc.) as compared to selling Based on our review of evidence on the We then examined the selling functions performed for its CEP sales record, we find that home market sales functions performed by CP Kelco on its (i.e., CP Kelco reported that the only to both customer categories and through EP sales in comparison with the selling services it provided for the CEP sales both channels of distribution were functions performed on CEP sales (after were logistics for freight, delivery and substantially similar with respect to deductions). We found that CP Kelco packing, and very limited inventory selling functions and stages of performs an additional layer of selling maintenance and customer care). See CP marketing. CP Kelco performed the functions at a greater frequency on its Kelco’s AQR at page A–26. Thus, we same selling functions for sales in both direct sales to unaffiliated U.S. find that CP Kelco’s home market sales home market channels of distribution, customers which are not performed on are at a more advanced LOT than its including sales negotiations, customer its sales to its affiliate (e.g., sales CEP sales. As there was only one LOT care, credit risk management, logistics, negotiations, credit risk management, in the home market, there were no data inventory maintenance, packing, freight collection, sales promotion, direct sales available to determine the existence of and delivery services, collection, sales personnel, technical support, a pattern of price differences, and we do promotion, and guarantees, etc. See CP guarantees, and discounts). See CP not have any other information that Kelco’s AQR at pages A–14 through A– Kelco’s AQR at page A–26. Because provides an appropriate basis for 26. Each of these selling functions was these additional selling functions are determining a LOT adjustment; identical in the intensity of their significant, we find that CP Kelco’s therefore, we applied a CEP offset to NV provision or only differed minimally, direct sales to unaffiliated U.S. for CEP comparisons. the exception being that CP Kelco customers (EP sales) are at a different To calculate the CEP offset, we provided direct sales personnel and LOT than its CEP sales. deducted the home market indirect technical support to a ‘‘high’’ degree of Next, we compared the home market selling expenses from NV for home frequency to end–users, whereas these and EP sales. CP Kelco’s home market market sales that were compared to U.S. selling functions were provided with a and EP sales were both made to end CEP sales. As such, we limited the home ‘‘moderate’’ frequency to HM users and distributors. In both cases, the market indirect selling expense distributors. See CP Kelco’s AQR at page selling functions performed by CP Kelco deduction by the amount of the indirect A–26. However, after considering all of were almost identical for both markets. selling expenses deducted in calculating the above, we preliminarily find that CP Particularly, in both markets, CP Kelco the CEP as required under section Kelco had only one LOT for its home provided the following services: sales 772(d)(1)(D) of the Act. See section market sales. negotiations, credit risk management, 773(a)(7)(B) of the Act. CP Kelco reported one EP LOT and customer care, logistics, inventory one CEP LOT, each with two separate maintenance, packing, freight/delivery, Currency Conversion channels of distribution in the United collection, sales promotion, direct sales We made foreign currency States. EP sales were made to end users personnel, technical support, guarantees conversions into U.S. dollars in and distributors either from inventory or and discounts. See CP Kelco’s SQR at accordance with section 773A(a) of the made to order, and CEP sales were also page 26. Because the selling functions Act and 19 CFR 351.415 based on made to end users and distributors and and channels of distribution are exchange rates in effect on the dates of were either made from inventory or substantially similar, we preliminarily the U.S. sales, as certified by the Federal made to order. Upon examining CP determine that the home market LOT is Reserve Bank. See Import Kelco’s questionnaire responses, we the same as the EP LOT. It was, Administration website at: http:// preliminarily find that it has two therefore, unnecessary to make a LOT ia.ita.doc.gov/exchange/index.html. channels of distribution. See CP Kelco’s adjustment for comparison of CP Kelco’s AQR at pages A–14 through A–15. See home market and EP prices. Preliminary Results of Review also CP Kelco’s CQR at page C–11. According to section 773(a)(7)(B) of We preliminarily determine that for Therefore, we preliminarily find that CP the Act, a CEP offset is appropriate the period July 1, 2007, through June 30, Kelco has two channels of distribution when the LOT in the home market is at 2008, the following dumping margin for EP sales, and two channels of a more advanced stage than the LOT of exists: distribution for CEP sales. the CEP sales and there is no basis for For CEP sales, we consider only the determining whether the difference in Manufacturer/Exporter Weighted–Average selling activities reflected in the price LOTs between NV and CEP affects price Margin (percent) comparability. CP Kelco reported that it after the deduction of expenses and CEP CP Kelco B.V...... 24.46 profit under section 772(d) of the Act. provided minimal selling functions and services for the CEP LOT and that, See Micron Tech. Inc. v. United States, Disclosure and Public Comment 243 F.3d 1301, 1314–15 (Fed. Cir. 2001). therefore, the home market LOT is more We reviewed the selling functions and advanced than the CEP LOT. Based on Pursuant to 19 CFR 351.224(b) of the services performed by CP Kelco on CEP our analysis of the channels of Department’s regulations, the sales as described in its questionnaire distribution and selling functions Department will disclose to parties to performed by CP Kelco for sales in the the proceeding any calculations CP Kelco’s narrative response to properly determine home market and CEP sales in the U.S. performed in connection with these where in the chain of distribution the sale occurs. market (i.e., sales support and activities preliminary results within five days

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after the date of publication of this produced by companies included in the Dated: May 18, 2009. notice. Pursuant to 19 CFR 351.309(c)(ii) final results of this review for which the Ronald K. Lorentzen, of the Department’s regulations, reviewed companies did not know their Acting Assistant Secretary for Import interested parties may submit written merchandise was destined for the Administration. comments in response to these United States. In such instances, we will [FR Doc. E9–12128 Filed 5–22–09; 8:45 am] preliminary results. Unless extended by instruct CBP to liquidate non–reviewed BILLING CODE 3510–DS–S the Department, case briefs are to be entries at the all–others rate if there is submitted within 30 days after the date no rate for any intermediate company of publication of this notice, and involved in the transaction. For a full DEPARTMENT OF DEFENSE rebuttal briefs, limited to arguments discussion of this clarification, see raised in case briefs, are to be submitted Assessment Policy Notice. Office of the Secretary no later than five days after the time limit for filing case briefs. See 19 CFR Cash Deposit Requirements Strategic Environmental Research and 351.309(c)(1)(ii) and (d)(1). Parties who The following cash deposit Development Program, Scientific submit arguments in this proceeding are requirements will be effective upon Advisory Board requested to submit with the argument: publication of the final results of this AGENCY: Department of Defense. (1) a statement of the issues, (2) a brief administrative review for all shipments ACTION: Notice. summary of the argument, and (3) a of the subject merchandise entered, or table of authorities. See 19 CFR withdrawn from warehouse, for SUMMARY: This Notice is published in 351.309(c)(2). Case and rebuttal briefs consumption on or after the publication accordance with Section 10(a)(2) of the must be served on interested parties in date of the final results of this Federal Advisory Committee Act (Pub. accordance with 19 CFR 351.303(f) of administrative review, as provided by L. 92–463). The topic of the meeting on the Department’s regulations. Executive section 751(a)(2)(c) of the Act: (1) the June 9–10, 2009 is to review new start summaries should be limited to five cash deposit rate for the reviewed and continuing research and pages total, including footnotes. Further, company will be the rate established in development projects requesting we request that parties submitting briefs the final results of review, except if the Strategic Environmental Research and and rebuttal briefs provide the rate is less than 0.50 percent and, Development Program funds in excess Department with a copy of the public therefore, de minimis within the of $1M. This meeting is open to the version of such briefs on diskette. meaning of 19 CFR 351.106(c)(1); (2) for Also, pursuant to 19 CFR 351.310(c) public. Any interested person may previously reviewed or investigated attend, appear before, or file statements of the Department’s regulations, within companies not listed above, the cash 30 days of the date of publication of this with the Scientific Advisory Board at deposit rate will continue to be the the time and in the manner permitted by notice, interested parties may request a company–specific rate published for the public hearing on arguments raised in the Board. most recent period; (3) if the exporter is DATES: Tuesday, June 9, 2009 from 8 the case and rebuttal briefs. Unless the not a firm covered in this review or the Secretary specifies otherwise, the a.m. to 5:15 p.m. and Wednesday, June original less–than-fair–value (LTFV) hearing, if requested, will be held two 10, 2009 from 8:30 a.m. to 12:30 p.m. investigation, but the manufacturer is, days after the date for submission of ADDRESSES: Allen/Mcghee/Page meeting the cash deposit rate will be the rate rebuttal briefs. See 19 CFR room of the Washington Duke Inn, 3001 established for the most recent period 351.310(d)(1). Parties will be notified of Cameron Blvd., Durham, NC 27705. for the manufacturer of the the time and location. FOR FURTHER INFORMATION CONTACT: Mr. The Department will publish the final merchandise; and (4) the cash deposit rate for all other manufacturers or Jonathan Bunger, SERDP Office, 901 results of the administrative review, North Stuart Street, Suite 303, including the results of its analysis of exporters will continue to be the all– others rate of 14.57 percent, which is Arlington, VA or by telephone at (703) issues raised in any case or rebuttal 696–2126. brief, no later than 120 days after the all–others rate established in the publication of the preliminary results, LTFV investigation. See CMC Order. Morgan E. Frazier, unless extended. See section These deposit requirements, when Alternate OSD Federal Register Liaison 751(a)(3)(A) of the Act; 19 CFR imposed, shall remain in effect until Officer, Department of Defense. 351.213(h). further notice. [FR Doc. E9–12041 Filed 5–22–09; 8:45 am] BILLING CODE 5001–06–P Assessment Rates Notification to Importers The Department shall determine, and This notice also serves as a CBP shall assess, antidumping duties on preliminary reminder to importers of DEPARTMENT OF DEFENSE all appropriate entries in accordance their responsibility under 19 CFR with 19 CFR 351.212. The Department 351.402(f)(2) to file a certificate Office of the Secretary intends to issue assessment instructions regarding the reimbursement of Veterans’ Advisory Board on Dose for CP Kelco directly to CBP 15 days antidumping duties prior to liquidation Reconstruction; Meeting after the date of publication of the final of the relevant entries during this results of this administrative review. review period. Failure to comply with AGENCY: Defense Threat Reduction The Department clarified its this requirement could result in the Agency, DoD. Secretary’s presumption that ‘‘automatic assessment’’ regulation on ACTION: Advisory Board Meeting Notice. May 6, 2003 (68 FR 23954). See reimbursement of antidumping duties Antidumping and Countervailing Duty occurred and the subsequent assessment SUMMARY: Under the provisions of the Proceedings: Assessment of of double antidumping duties. Federal Advisory Committee Act of Antidumping Duties, 68 FR 23954 (May This administrative review and notice 1972 (5 U.S.C., Appendix, as amended) 6, 2003) (Assessment Policy Notice). are published in accordance with and the Sunshine in the Government This clarification will apply to entries of sections 751(a)(1) and 777(i)(1) of the Act of 1976 (5 U.S.C. 552b, as amended) subject merchandise during the POR Act. the Defense Threat Reduction Agency

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(DTRA) and the Department of Veterans the VBDR with the exception of a one Reconstruction. Speaking time will be Affairs (VA) announce the following half-hour public comment period in the assigned on a first-come, first-served advisory board meeting of the Veterans’ evening after dinner. basis. The amount of time per speaker Advisory Board on Dose Reconstruction Meeting Accessibility: Pursuant to 5 will be determined by the number of (VBDR). U.S.C. 552b, as amended, and 41 CFR requests received, but is nominally five DATES: Wednesday, June 10, 2009, 8:30 102–3.140 through 102–3.165, and the minutes each. All persons who wish to a.m. to 12 p.m. and from 1:15 p.m. to availability of space, this meeting is speak at the meeting must sign in 9 p.m.. The public is invited to attend. open to the public. Seating is limited by legibly at the registration desk. Public comment sessions are scheduled the size of the meeting room. All Questions from the public will not be from 10:15 a.m. to 10:45 a.m. and from persons must sign in legibly at the considered during this period. Speakers 6:30 p.m. to 7 p.m. registration desk. who wish to expand on their oral ADDRESSES: Hyatt Regency Bethesda Written Statements: Pursuant to 41 statements are invited to submit a Hotel, Old Georgetown Room, One CFR 102–3.105(j) and 102–3.140(c), written statement to the Veterans’ Bethesda Metro Center (7400 Wisconsin interested persons may submit a written Advisory Board on Dose Reconstruction Avenue), Bethesda, MD 20814. statement for consideration by the at 7910 Woodmont Ave., Suite 400, Veterans’ Advisory Board on Dose FOR FURTHER INFORMATION CONTACT: The Bethesda, MD 20814–3095. Reconstruction. Written statements Veterans’ Advisory Board on Dose should be no longer than two type Morgan E. Frazier, Reconstruction Toll Free at 1–866–657– written pages and must address: the Alternate OSD Federal Register Liaison VBDR (8237). Additional information issue, discussion, and recommended Officer, Department of Defense. may be found at http://vbdr.org. course of action. Supporting [FR Doc. E9–12042 Filed 5–22–09; 8:45 am] SUPPLEMENTARY INFORMATION: documentation may also be included as BILLING CODE 5001–06–P Purpose of Meeting: To obtain, review needed to establish the appropriate and evaluate information related to the historical context and to provide any Board mission to provide guidance and necessary background information. DEPARTMENT OF DEFENSE oversight of the dose reconstruction and Individuals submitting a written Office of the Secretary claims compensation programs for statement must submit their statement veterans of U.S.-sponsored atmospheric to the Board at 7910 Woodmont Ave., [Docket ID: DOD–2009–OS–0070] nuclear weapons tests from 1945–1962; Suite 400, Bethesda, MD 20814–3095, at veterans of the 1945–1946 occupation of any point; however, if a written Privacy Act of 1974; System of Hiroshima and Nagasaki, Japan; and statement is not received at least 10 Records veterans who were prisoners of war in calendar days prior to the meeting, AGENCY: Defense Logistics Agency, DoD. those regions at the conclusion of World which is the subject of this notice, then War II. In addition, the advisory board ACTION: Notice to amend 2 systems of it may not be provided to or considered records. will assist the VA and DTRA in by the Veterans’ Advisory Board on communicating with the veterans. Dose Reconstruction until its next open SUMMARY: The Defense Logistics Agency Meeting Agenda: On Wednesday, the meeting. is proposing to amend system of records meeting will open with an introduction The Chairperson will review all notices in its existing inventory of of the Board. The following briefings timely submissions with the Designated record systems subject to the Privacy will be presented: ‘‘Veterans Health Federal Officer, and ensure they are Act of 1974 (5 U.S.C. 552a), as amended. Administration Procedures and the provided to members of the Veterans’ DATES: The proposed action will be Ionizing Radiation Registry’’ by Victoria Advisory Board on Dose Reconstruction effective without further notice on June Cassano, M.D.; ‘‘Veterans before the meeting that is the subject of 25, 2009 unless comments are received Administration Regional Office, Jackson this notice. After reviewing the written which would result in a contrary MS Presentation’’ by Ms. Carol Sullivan; comments, the Chairperson and the determination. ‘‘Update on the NTPR Dose Designated Federal Officer may choose ADDRESSES: Chief Privacy and FOIA Reconstruction Program’’ by Dr. Paul to invite the submitter of the comments Officer, Headquarters Defense Logistics Blake; ‘‘Veterans Communication to orally present their issue during an Agency, ATTN: DGA, 8725 John J. Effort’’ by Mr. Ken Groves, and ‘‘Update open portion of this meeting or at a Kingman Road, Suite 1644, Fort Belvoir, on the VA Radiation Claims future meeting. However, due to the VA 22060–6221. Compensation Program for Veterans and need to review the future of the Board VETNET’’ by Mr. Thomas Pamperin. and the options regarding these issues, FOR FURTHER INFORMATION CONTACT: Mr. The morning session includes one half- oral presentations will not be presented Lewis Oleinick at (703) 767–6194. hour open public comment session. In at this meeting. If responses are needed, SUPPLEMENTARY INFORMATION: The the afternoon, the four subcommittees it will be done by correspondence to the Defense Logistics Agency’s system of established during the inaugural VBDR participant. record notices subject to the Privacy Act session will report on their activities The Chairperson, in consulting with of 1974 (5 U.S.C. 552a), as amended, since September 2008. The the Designated Federal Officer, may, if have been published in the Federal subcommittees are the ‘‘Subcommittee desired, allot a specific amount of time Register and are available from the on DTRA Dose Reconstruction for members of the public to present address above. Procedures,’’ the ‘‘Subcommittee on VA their issues for review and discussion The specific changes to the record Claims Adjudication Procedures,’’ the by the Veterans’ Advisory Board on system being amended are set forth ‘‘Subcommittee on Quality Management Dose Reconstruction. below followed by the notice, as and VA Process Integration with DTRA Public Comments: The June 10, 2009 amended, published in its entirety. The Nuclear Test Personnel Review meeting is open to the public. proposed amendment is not within the Program,’’ and the ‘‘Subcommittee on Approximately two one-half hour purview of subsection (r) of the Privacy Communication and Outreach.’’ The sessions will be reserved for public Act of 1974 (5 U.S.C. 552a), as amended, remainder of the meeting will be comments on issues related to the task which requires the submission of new devoted to a discussion of the future of of the Veterans’ Advisory Board on Dose or altered systems reports.

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Dated: May 18, 2009. Kingman Road, Suite 1644, Fort Belvoir, ROUTINE USES OF RECORDS MAINTAINED IN THE Morgan E. Frazier, VA 22060–6221 or to the Privacy Act SYSTEM, INCLUDING CATEGORIES OF USERS AND THE PURPOSES OF SUCH USES: Alternate OSD Federal Register Liaison Office of the DLA field activity where Officer, Department of Defense. assigned. Official mailing addresses are In addition to those disclosures published as an appendix to DLA’s generally permitted under 5 U.S.C. S180.20 compilation of systems of records 552a(b) of the Privacy Act of 1974, these SYSTEM NAME: notices. records contained therein may Biography File (July 19, 2006, 71 FR Inquiry must contain the subject specifically be disclosed outside the 41007). individual’s full name, current address, DoD as a routine use pursuant to 5 and telephone number.’’ U.S.C. 552a(b)(3) as follows: CHANGES: To Federal, state, and local agency CONTESTING RECORD PROCEDURES: System identifier: officials and/or private sector entities Delete entry and replace with Delete entry and replace with ‘‘The for use as background information for ‘‘S190.24.’’ DLA rules for accessing records, for introductions, briefings, Congressional contesting contents, and appealing * * * * * testimony, and/or meetings. initial agency determinations are The DoD ‘‘Blanket Routine Uses’’ STORAGE: contained in 32 CFR part 323, or may apply to this system of records. Delete entry and replace with be obtained from the Privacy Act Office, ‘‘Records are maintained on electronic Headquarters, Defense Logistics Agency, POLICIES AND PRACTICES FOR STORING, ATTN: DGA, 8725 John J. Kingman RETRIEVING, ACCESSING, RETAINING, AND storage media.’’ DISPOSING OF RECORDS IN THE SYSTEM: * * * * * Road, Suite 1644, Fort Belvoir, VA 22060–6221.’’ STORAGE: SAFEGUARDS: * * * * * Records are maintained on electronic Delete entry and replace with ‘‘No storage media. specific safeguards required. S190.24 RETRIEVABILITY: Biographies are submitted by the subject SYSTEM NAME: Records are retrieved alphabetically individual with the understanding that Biography File. they will be posted to a public facing by last name of individual. DLA Web page.’’ SYSTEM LOCATION: SAFEGUARDS: SYSTEM MANAGER(S) AND ADDRESS: Headquarters, Defense Logistics Agency, Public Affairs Office, 8725 John No specific safeguards required. Delete entry and replace with J. Kingman Road, Stop 2533, Fort Biographies are submitted by the subject ‘‘Director, DLA Public Affairs Office, Belvoir, VA 22060–6221, and the Public individual with the understanding that Headquarters, Defense Logistics Agency, Affairs Offices of the DLA Field they will be posted to a public facing 8725 John J. Kingman Road, Stop 2533, Activities. Official mailing addresses are DLA Web page. Fort Belvoir, VA 22060–6221, and the published as an appendix to DLA’s Heads of the Public Affairs Offices RETENTION AND DISPOSAL: compilation of systems of records Files are destroyed 2 years after within each DLA field activity. Official notices. mailing addresses are published as an retirement, transfer, separation, or death appendix to DLA’s compilation of CATEGORIES OF INDIVIDUALS COVERED BY THE of the person concerned. systems of records notices.’’ SYSTEM: SYSTEM MANAGER(S) AND ADDRESS: Selected civilian and military NOTIFICATION PROCEDURE: personnel currently and formerly Director, DLA Public Affairs Office, Delete entry and replace with assigned to DLA and other persons Headquarters, Defense Logistics Agency, ‘‘Individuals seeking to determine affiliated with DLA and the Department 8725 John J. Kingman Road, Stop 2533, whether information about themselves of Defense (DoD). Fort Belvoir, VA 22060–6221, and the is contained in this system of records Heads of the Public Affairs Offices should address written inquiries to the CATEGORIES OF RECORDS IN THE SYSTEM: within each DLA field activity. Official Privacy Act Office, Headquarters, Biographical information provided by mailing addresses are published as an Defense Logistics Agency, ATTN: DGA, the individual. appendix to DLA’s compilation of 8725 John J. Kingman Road, Suite 1644, systems of records notices. Fort Belvoir, VA 22060–6221 or to the AUTHORITY FOR MAINTENANCE OF THE SYSTEM: NOTIFICATION PROCEDURE: Privacy Act Office of the DLA field 5 U.S.C. 301, Departmental activity where assigned. Official mailing Regulations and 10 U.S.C. 133, Under Individuals seeking to determine addresses are published as an appendix Secretary of Defense for Acquisition, whether information about themselves to DLA’s compilation of systems of Technology, and Logistics. is contained in this system of records records notices. should address written inquiries to the PURPOSE(S): Inquiry must contain the subject Privacy Act Office, Headquarters, individual’s full name, current address, Information is maintained as Defense Logistics Agency, ATTN: DGA, and telephone number.’’ background material for news and 8725 John J. Kingman Road, Suite 1644, feature articles covering activities, Fort Belvoir, VA 22060–6221 or to the RECORD ACCESS PROCEDURES: assignments, retirements, and Privacy Act Office of the DLA field Delete entry and replace with reassignments of key individuals; for activity where assigned. Official mailing ‘‘Individuals seeking access to use in introductions; in the preparation addresses are published as an appendix information about themselves contained of speeches for delivery at change of to DLA’s compilation of systems of in this system of records should address command, retirement, award records notices. written inquiries to the Privacy Act ceremonies, and community relations Inquiry must contain the subject Office, Headquarters, Defense Logistics events; for congressional functions; and individual’s full name, current address, Agency, ATTN: DGA, 8725 John J. for site visits. and telephone number.

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RECORD ACCESS PROCEDURES: require the records for the performance be obtained from the Privacy Act Office, Individuals seeking access to of their official duties. Electronic Headquarters, Defense Logistics Agency, information about themselves contained records are maintained in buildings ATTN: DGA, 8725 John J. Kingman in this system of records should address with controlled or monitored access. Road, Suite 1644, Fort Belvoir, VA written inquiries to the Privacy Act During non-duty hours, records are 22060–6221.’’ Office, Headquarters, Defense Logistics secured in locked or guarded buildings, * * * * * Agency, ATTN: DGA, 8725 John J. locked offices, or guarded cabinets. The Kingman Road, Suite 1644, Fort Belvoir, electronic records systems employ user S190.32 VA 22060–6221 or to the Privacy Act identification and password or smart SYSTEM NAME: Office of the DLA field activity where card technology protocols.’’ assigned. Official mailing addresses are Public Affairs Subscription Mailing published as an appendix to DLA’s SYSTEM MANAGER(S) AND ADDRESS: Lists. compilation of systems of records Delete entry and replace with SYSTEM LOCATION: notices. ‘‘Director, DLA Public Affairs Office, Headquarters, Defense Logistics Inquiry must contain the subject Headquarters, Defense Logistics Agency, Agency, Public Affairs Office, 8725 John individual’s full name, current address, 8725 John J. Kingman Road, Stop 2533, J. Kingman Road, Stop 2533, Fort and telephone number. Fort Belvoir, VA 22060–6221, and the Belvoir, VA 22060–6221, and the Public Heads of the Public Affairs Offices CONTESTING RECORD PROCEDURES: Affairs Offices of the DLA field within each DLA field activity. Official activities. Official mailing addresses are The DLA rules for accessing records, mailing addresses are published as an for contesting contents, and appealing published as an appendix to DLA’s appendix to DLA’s compilation of compilation of systems of records initial agency determinations are systems of records notices.’’ contained in 32 CFR part 323, or may notices. NOTIFICATION PROCEDURE: be obtained from the Privacy Act Office, CATEGORIES OF INDIVIDUALS COVERED BY THE Headquarters, Defense Logistics Agency, Delete entry and replace with SYSTEM: ATTN: DGA, 8725 John J. Kingman ‘‘Individuals seeking to determine Individuals and organizations who Road, Suite 1644, Fort Belvoir, VA whether this system of records contains have registered with DLA Public Affairs 22060–6221. information about themselves should Offices to automatically receive RECORD SOURCE CATEGORIES: address written inquiries to the Privacy magazines, newsletters, periodicals and The individual’s record subject and Act Office, Headquarters, Defense other professional publications. Logistics Agency, ATTN: DGA, 8725 record subject’s employing agency or CATEGORIES OF RECORDS IN THE SYSTEM: organization. John J. Kingman Road, Suite 1644, Fort Belvoir, VA 22060–6221 or to the Records maintained include EXEMPTIONS CLAIMED FOR THE SYSTEM: Privacy Act Office of the particular DLA individual’s name, home or business None. field activity involved. Official mailing telephone number, e-mail and mailing addresses are published as an appendix addresses, customer number, and S180.25 to DLA’s compilation of systems of publication(s) of interest. records notices. SYSTEM NAME: AUTHORITY FOR MAINTENANCE OF THE SYSTEM: Inquiry must contain the subject Public Affairs Subscription Mailing 5 U.S.C. 301, Departmental Lists (August 25, 2006, 71 FR 50398). individual’s full name and current mailing address to permit locating the Regulations, and 10 U.S.C. 133, Under CHANGES: record.’’ Secretary of Defense for Acquisition, Technology, and Logistics. SYSTEM IDENTIFIER: RECORD ACCESS PROCEDURE: Delete entry and replace with PURPOSE(S): Delete entry and replace with ‘‘S190.32.’’ The system is used to produce ‘‘Individuals seeking access to subscription mailing lists for * * * * * information about themselves contained distribution of DLA publications, and to SYSTEM LOCATION in this system of records should address : perform statistical analyses of reader written inquiries to the Privacy Act Delete entry and replace with interest and opinion. ‘‘Headquarters, Defense Logistics Office, Headquarters, Defense Logistics Agency, Public Affairs Office, 8725 John Agency, ATTN: DGA, 8725 John J. ROUTINE USES OF RECORDS MAINTAINED IN THE J. Kingman Road, Stop 2533, Fort Kingman Road, Suite 1644, Fort Belvoir, SYSTEM, INCLUDING CATEGORIES OF USERS AND Belvoir, VA 22060–6221, and the Public VA 22060–6221 or to the Privacy Act THE PURPOSES OF SUCH USES: Affairs Offices of the DLA field Office of the particular DLA field In addition to those disclosures activities. Official mailing addresses are activity involved. Official mailing generally permitted under 5 U.S.C. published as an appendix to DLA’s addresses are published as an appendix 552a(b) of the Privacy Act of 1974, these compilation of systems of records to DLA’s compilation of systems of records contained therein may notices.’’ records notices. specifically be disclosed outside the * * * * * Inquiry must contain the subject DOD as a routine use pursuant to 5 individual’s full name and current U.S.C. 552a(b)(3) as follows: STORAGE: mailing address to permit locating the The DoD ‘‘Blanket Routine Uses’’ Delete entry and replace with record.’’ apply to this system of records. ‘‘Records are maintained on electronic POLICIES AND PRACTICES FOR STORING, storage media.’’ CONTESTING RECORD PROCEDURES: Delete entry and replace with ‘‘The RETRIEVING, ACCESSING, RETAINING, AND * * * * * DISPOSING OF RECORDS IN THE SYSTEM: DLA rules for accessing records, for SAFEGUARDS: contesting contents and appealing STORAGE: Delete entry and replace with ‘‘Access initial agency determinations are Records are maintained on electronic is limited to those individuals who contained in 32 CFR part 323, or may storage media.

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RETRIEVABILITY: CONTESTING RECORD PROCEDURES: collection requests prior to submission Records are retrieved by individual’s The DLA rules for accessing records, of these requests to OMB. Each name and address. for contesting contents and appealing proposed information collection, initial agency determinations are grouped by office, contains the SAFEGUARDS: contained in 32 CFR part 323, or may following: (1) Type of review requested, Access is limited to those individuals be obtained from the Privacy Act Office, e.g. new, revision, extension, existing or who require the records for the Headquarters, Defense Logistics Agency, reinstatement; (2) Title; (3) Summary of performance of their official duties. ATTN: DGA, 8725 John J. Kingman the collection; (4) Description of the Electronic records are maintained in Road, Suite 1644, Fort Belvoir, VA need for, and proposed use of, the buildings with controlled or monitored 22060–6221. information; (5) Respondents and access. During non-duty hours, records frequency of collection; and (6) are secured in locked or guarded RECORD SOURCE CATEGORIES: Reporting and/or Recordkeeping buildings, locked offices, or guarded From the subject individual or the burden. OMB invites public comment. cabinets. The electronic records systems DLA organization publishing the employ user identification and document. Dated: May 19, 2009. password or smart card technology Angela C. Arrington, protocols. EXEMPTIONS CLAIMED FOR SYSTEM: IC Clearance Official, Regulatory Information None. Management Services, Office of Management. RETENTION AND DISPOSAL: [FR Doc. E9–12040 Filed 5–22–09; 8:45 am] Office of Postsecondary Education Records are destroyed when superseded or obsolete. BILLING CODE 5001–06–P Type of Review: Extension. Title: Application for Fulbright-Hays SYSTEM MANAGER(S) AND ADDRESS: Seminars Abroad. Director, DLA Public Affairs Office, DEPARTMENT OF EDUCATION Frequency: Annually. Headquarters, Defense Logistics Agency, Affected Public: Individuals or 8725 John J. Kingman Road, Stop 2533, Submission for OMB Review; household. Fort Belvoir, VA 22060–6221, and the Comment Request Reporting and Recordkeeping Hour Heads of the Public Affairs Offices AGENCY: Department of Education. Burden: within each DLA field activity. Official SUMMARY: The Director, Information Responses: 400. mailing addresses are published as an Collection Clearance Division, Burden Hours: 1,200. appendix to DLA’s compilation of Regulatory Information Management Abstract: Application forms are to be systems of records notices. Services, Office of Management invites used by applicants under the Fulbright- NOTIFICATION PROCEDURE: comments on the submission for OMB Hays Seminars Abroad Program which Individuals seeking to determine review as required by the Paperwork provides opportunities for U.S. whether this system of records contains Reduction Act of 1995. educators to participate in short-term information about themselves should DATES: Interested persons are invited to study seminars abroad in the subject address written inquiries to the Privacy submit comments on or before June 25, areas of the social sciences, social Act Office, Headquarters, Defense 2009. studies and the humanities. The purpose of the program is for educators Logistics Agency, ATTN: DGA, 8725 ADDRESSES: Written comments should to obtain knowledge in these overseas John J. Kingman Road, Suite 1644, Fort be addressed to the Office of seminars that they might not have been Belvoir, VA 22060–6221 or to the Information and Regulatory Affairs, able to obtain otherwise, and produce Privacy Act Office of the particular DLA Attention: Education Desk Officer, that knowledge through a curriculum field activity involved. Official mailing Office of Management and Budget, 725 development project. This curricula will addresses are published as an appendix 17th Street, NW., Room 10222, New be accessible for other teachers in the to DLA’s compilation of systems of Executive Office Building, Washington, public domain and able to be used in records notices. DC 20503, be faxed to (202) 395–5806 or Inquiry must contain the subject their classrooms. send e-mail to This information collection is being individual’s full name and current [email protected]. mailing address to permit locating the submitted under the Streamlined record. SUPPLEMENTARY INFORMATION: Section Clearance Process for Discretionary 3506 of the Paperwork Reduction Act of Grant Information Collections (1894– RECORD ACCESS PROCEDURE: 1995 (44 U.S.C. Chapter 35) requires 0001). Therefore, the 30-day public Individuals seeking access to that the Office of Management and comment period notice will be the only information about themselves contained Budget (OMB) provide interested public comment notice published for in this system of records should address Federal agencies and the public an early this information collection. written inquiries to the Privacy Act opportunity to comment on information Requests for copies of the information Office, Headquarters, Defense Logistics collection requests. OMB may amend or collection submission for OMB review Agency, ATTN: DGA, 8725 John J. waive the requirement for public may be accessed from http:// Kingman Road, Suite 1644, Fort Belvoir, consultation to the extent that public edicsweb.ed.gov, by selecting the VA 22060–6221 or to the Privacy Act participation in the approval process ‘‘Browse Pending Collections’’ link and Office of the particular DLA field would defeat the purpose of the by clicking on link number 4038. When activity involved. Official mailing information collection, violate State or you access the information collection, addresses are published as an appendix Federal law, or substantially interfere click on ‘‘Download Attachments’’ to to DLA’s compilation of systems of with any agency’s ability to perform its view. Written requests for information records notices. statutory obligations. The IC Clearance should be addressed to U.S. Department Inquiry must contain the subject Official, Regulatory Information of Education, 400 Maryland Avenue, individual’s full name and current Management Services, Office of SW., LBJ, Washington, DC 20202–4537. mailing address to permit locating the Management, publishes that notice Requests may also be electronically record. containing proposed information mailed to the Internet address

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[email protected] or faxed to 202– may affect the responsibilities of a comment date for the particular 401–0920. Please specify the complete particular resource agency, it must also application. title of the information collection when serve a copy of the document on that o. Any filings must bear in all capital making your request. resource agency. A copy of any motion letters the title ‘‘COMMENTS’’, Comments regarding burden and/or to intervene must also be served upon ‘‘PROTEST’’, or ‘‘MOTION TO the collection activity requirements each representative of the Applicant INTERVENE’’, as applicable, and the should be electronically mailed to specified in the particular application. Project Number of the particular [email protected]. Individuals who k. Description of Request: Progress application to which the filing refers. use a telecommunications device for the Energy Carolinas, Inc. requests p. Agency Comments: Federal, State, deaf (TDD) may call the Federal Commission authorization to grant and local agencies are invited to file Information Relay Service (FIRS) at 1– Ken’s Landing, LLC permission to comments on the described application. 800–877–8339. expand an existing marina located on A copy of the application may be obtained by agencies directly from the [FR Doc. E9–12074 Filed 5–22–09; 8:45 am] project lands. The expansion would include the removal of 26 boat slips Applicant. If an agency does not file BILLING CODE 4000–01–P (occupying an area of 6,360 square feet) comments within the time specified for and the addition of 40 new boat slips filing comments, it will be presumed to (occupying an area of 17,600 square have no comments. One copy of an DEPARTMENT OF ENERGY feet). Prior to filing of the application, agency’s comments must also be sent to Federal Energy Regulatory Ken’s Landing, LLC consulted with the Applicant’s representatives. Commission appropriate agencies and other entities, q. Comments, protests and including the U.S. Fish and Wildlife interventions may be filed electronically [Project No. 2206–038] Service, North Carolina (NC) Wildlife via the Internet in lieu of paper. See, 18 Resources Commission, NC Department CFR 385.2001(a)(1)(iii) and the Progress Energy Carolinas, Inc.; of Environment and Natural Resources, instructions on the Commission’s Web Notice of Application for Amendment and NC Department of Cultural site at http://www.ferc.gov under the ‘‘e- of License and Soliciting Comments, Resources. Filing’’ link. Motions To Intervene, and Protests l. Locations of the Application: A Kimberly D. Bose, copy of the application is available for May 18, 2009. Secretary. inspection and reproduction at the Take notice that the following [FR Doc. E9–12084 Filed 5–22–09; 8:45 am] hydroelectric application has been filed Commission’s Public Reference Room, BILLING CODE 6717–01–P with the Commission and is available located at 888 First Street, NE., Room for public inspection: 2A, Washington, DC 20426, or by calling a. Application Type: Non-project use (202) 502–8371. This filing may also be DEPARTMENT OF ENERGY of project lands. viewed on the Commission’s Web site at b. Project No.: 2206–038. http://www.ferc.gov using the Federal Energy Regulatory c. Date Filed: April 14, 2009. ‘‘eLibrary’’ link. Enter the docket Commission d. Applicant: Progress Energy number excluding the last three digits in the docket number field to access the [Project No. 13429–000, Project No. 13455– Carolinas, Inc. 000] e. Name of Project: Yadkin-Pee Dee document. You may also register Online Hydroelectric Project. at http://www.ferc.gov/docs-filing/ City of Burlington, IA; FFP Iowa 5, LLC f. Location: The proposed non-project esubscription.asp to be notified via e- Notice of Preliminary Permit use is on Lake Tillery in Stanly County, mail of new filings and issuances Applications Accepted for Filing and North Carolina. related to this or other pending projects. Soliciting Comments, Motions To g. Filed Pursuant to: Federal Power For assistance, call 1–866–208–3372 or Intervene, and Competing Applications Act, 16 U.S.C. 791a–825r. e-mail [email protected], h. Applicant Contact: Larry Mann, for TTY, call (202) 502–8659. A copy is May 15, 2009. Progress Energy Carolinas, Inc., 179 also available for inspection and On April 8, 2009, the City of Tillery Dam Road, Mount Gilead, NC reproduction at the address in item (h) Burlington, Iowa filed an application, 27306, (919) 546–5300. above. pursuant to section 4(f) of the Federal i. FERC Contact: Mark Carter, (202) m. Individuals desiring to be included Power Act (FPA), proposing to study the 502–6554, [email protected]. on the Commission’s mailing list should feasibility of the City of Burlington j. Deadline for Filing Comments, so indicate by writing to the Secretary Hydroelectric Project (Burlington Motions to Intervene, and Protests: June of the Commission. Project) No. 13429, to be located on the 18, 2009. n. Comments, Protests, or Motions to Mississippi River, in Des Moines All documents (original and eight Intervene: Anyone may submit County, Iowa and Henderson County, copies) should be filed with: Secretary, comments, a protest, or a motion to Illinois. On April 29, 2009, FFP Iowa 5, Federal Energy Regulatory Commission, intervene in accordance with the LLC filed an application, pursuant to 888 First Street, NE., Washington, DC requirements of Rules of Practice and the FPA, proposing to study the 20426. Procedure, 18 CFR 385.210, .211, .214. feasibility of the Mississippi River Lock The Commission’s Rules of Practice In determining the appropriate action to and Dam No. 18 Water Power Project and Procedure require all interveners take, the Commission will consider all (L&D 18 Project) No. 13455, to be filing documents with the Commission protests or other comments filed, but located on the Mississippi River, in Des to serve a copy of that document on only those who file a motion to Moines County, Iowa. each person whose name appears on the intervene in accordance with the The proposed Burlington and L&D 18 official service list for the project. Commission’s Rules may become a projects would be located at the existing Further, if an intervener files comments party to the proceeding. Any comments, U.S. Army Corps of Engineers (Corps) or documents with the Commission protests, or motions to intervene must Lock and Dam No. 18 comprised of: (1) relating to the merits of an issue that be received on or before the specified A 1,350-foot-long dam with 14 taintor

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gates and 3 roller gates and a 600-foot- For assistance, call toll-free 1–866–208– monitoring plans. All comments should long lock; and (2) a 12,152-acre reservoir 3372. be sent to the address above in with a normal pool elevation of 529.5 paragraph h. In addition, all comments feet mean sea level. Kimberly D. Bose, (original and eight copies) must be filed The proposed Burlington Project Secretary. with the Commission at the following would consist of: (1) Thirty submersible [FR Doc. E9–12081 Filed 5–22–09; 8:45 am] address: Kimberly D. Bose, Secretary, 500-kilowatt turbine generating units BILLING CODE 6717–01–P Federal Energy Regulatory Commission, with total installed capacity of 15 888 First Street, NE., Washington, DC megawatts (MW); (2) a 1-mile-long, 12.5- 20426. All filings with the Commission kilovolt (kV) transmission line; and (3) DEPARTMENT OF ENERGY must include on the first page, the appurtenant facilities. The project project name (Angoon Tidal Power Pilot Federal Energy Regulatory would have an estimated average annual Project) and number (P–12731–002), Commission generation of 76,831 megawatts-hours and bear the heading ‘‘Comments on the (MWh), which would be sold to Alliant [Project No. 12731–002] proposed Angoon Tidal Power Pilot Energy. The project would be located Project.’’ Any individual or entity along the western half of the Corps dam. Natural Currents Energy Services, interested in submitting comments on Applicant Contact: Mr. Doug Worden, LLC; Notice of Intent To File License the pre-filing materials must do so by City Manager, City of Burlington, Iowa, Application, Filing of Draft Application, July 14, 2009. 400 Washington Street, Burlington, Iowa Request for Waivers of Integrated Comments may be filed electronically 52601, (319) 753–8120. Licensing Process Regulations via the Internet in lieu of paper. The The proposed L&D 18 Project would Necessary for Expedited Processing of Commission strongly encourages consist of: (1) Twenty six Very Low a Hydrokinetic Pilot Project License electronic filings. See 18 CFR Head generating units and 100 Application, and Soliciting Comments 385.2001(a)(1)(iii) and the instructions hydrokinetic generating units with a on the Commission’s Web site (http:// total installed capacity of 24.5 MW; (2) May 15, 2009. www.ferc.gov) under the ‘‘e-filing’’ link. a 5.68-mile-long, 69-kV transmission a. Type of Filing: Notice of Intent to l. With this notice, we are approving line; and (3) appurtenant facilities. The File a License Application for an Natural Currents’ request to be project would have an estimated average Original License for a Hydrokinetic Pilot designated as the non-Federal annual generation of 119,500 MWh, Project. representative for section 7 of the which would be sold to Alliant Energy. b. Project No.: 12731–002. Endangered Species Act (ESA) and its The project would be located in the c. Date Filed: May 15, 2009. request to initiate consultation under middle of the Mississippi River just d. Submitted By: Natural Currents section 106 of the National Historic downstream of the Corps dam. Energy Services, LLC. Preservation Act; and recommending Applicant Contact: Mr. Daniel R. e. Name of Project: Angoon Tidal that it begin informal consultation with: Irvin, Free Flow Power Corporation, 33 Power Pilot Project. (a) The U.S. Fish and Wildlife Service Commercial Street, Gloucester, MA f. Location: In Kootznahoo Inlet on and the National Marine Fisheries 01930, phone (978) 252–7631. the western shore of Admiralty Island, Service as required by section 7 of ESA; FERC Contact: Patrick Murphy, (202) near the City of Angoon in the Skagway- and (b) the Alaska State Historic 502–8755. Hoonah-Angoon Census Area of Preservation Officer, as required by Deadline for filing comments, motions southeastern Alaska. section 106, National Historical to intervene, competing applications g. Filed Pursuant to: 18 CFR 5.3 of the Preservation Act, and the implementing (without notices of intent), or notices of Commission’s regulations. regulations of the Advisory Council on intent to file competing applications: 60 h. Applicant Contact: Roger Bason, Historic Preservation at 36 CFR 800.2. days from the issuance of this notice. President, Natural Currents Energy m. This notice does not constitute the Comments, motions to intervene, Services, 24 Roxanne Blvd., Highland, Commission’s approval of Natural notices of intent, and competing NY 12528; (845) 691–4008; Currents’ request to use the Pilot Project applications may be filed electronically [email protected]. Licensing Procedures. Upon its review via the Internet. See 18 CFR i. FERC Contact: Steve Hocking (502) of the project’s overall characteristics 385.2001(a)(1)(iii) and the instructions 552–8753. relative to the pilot project criteria, the on the Commission’s Web site under the j. Natural Currents Energy Services, draft license application contents, and ‘‘e-Filing’’ link. If unable to be filed LLC (Natural Currents) has filed with any comments filed, the Commission electronically, documents may be paper- the Commission: (1) A notice of intent will determine whether there is filed. To paper-file, an original and eight (NOI) to file an application for an adequate information to conclude the copies should be mailed to: Kimberly D. original license for a hydrokinetic pilot pre-filing process. Bose, Secretary, Federal Energy project and a draft license application n. The proposed Angoon Tidal Power Regulatory Commission, 888 First with monitoring plans; (2) a proposed Pilot Project would consist of eight (8) Street, NE., Washington, DC 20426. For schedule; (3) a request to be designated 25-kw Red Hawk Tidal Turbines, with more information on how to submit as the non-Federal representative for a combined maximum output of 200 kW these types of filings please go to the section 7 of the Endangered Species Act for the pilot project. Initially, the Commission’s Web site located at consultation; and (4) a request to be turbines would be mounted on portable http://www.ferc.gov/filing- designated as the non-Federal anchored barges to test different comments.asp. More information about representative for section 106 positions within the site for the best this project can be viewed or printed on consultation under the National Historic turbine performance. Following the the ‘‘eLibrary’’ link of Commission’s Preservation Act (collectively the pre- location of the desired development Web site at filing materials). site, tidal turbines will be mounted on http://www.ferc.gov/docs-filing/ k. With this notice, we are soliciting constructed docks or piers secured to elibrary.asp. Enter the docket number comments on the pre-filing materials the solid, scoured, subsurface bedrock. (P–13429 or 13455) in the docket listed in paragraph j above, including The transmission intertie is to be number field to access the document. the draft license application and determined. The estimated annual

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generation of the project would be link. Enter the docket number, p. Pre-filing process schedule. The 525,600 kilowatt-hours excluding the last three digits in the pre-filing process will be conducted o. A copy of the draft license docket number field to access the pursuant to the following tentative application and all pre-filing materials document. For assistance, contact FERC schedule. Revisions to the schedule are available for review at the Online Support at below may be made based on staff’s Commission in the Public Reference [email protected] or toll review of the draft application and any Room or may be viewed on the free at 1–866–208–3676, of for TTY, comments received. Commission’s Web site (http:// (202) 502–8659. www.ferc.gov), using the ‘‘eLibrary’’

Milestone Date

Comments on pre-filing materials due ...... July 14, 2009. Issuance of meeting notice (if needed) ...... July 29, 2009. Public meeting/technical conference (if needed) ...... August 28, 2009. Issuance of notice concluding pre-filing process and ILP waiver request determination August 13, 2009 (if no meeting is needed). September 14, 2009 (if meeting is needed).

q. Register online at http://ferc.gov/ directed to Keith A. Tiggelaar, Director Commission and will receive copies of esubscribenow.htm to be notified via e- of Regulatory Affairs for Williston all documents filed by the applicant and mail of new filing and issuances related Basin, 1250 West Century Avenue, by all other parties. A party must submit to this or other pending projects. For Bismarck, North Dakota 58503, by 14 copies of filings made with the assistance, contact FERC Online phone at (701) 530–1560 or by e-mail at Commission and must mail a copy to Support. [email protected]. the applicant and to every other party in the proceeding. Only parties to the Kimberly D. Bose, Pursuant to section 157.9 of the Commission’s rules, 18 CFR 157.9, proceeding can ask for court review of Secretary. within 90 days of this Notice the Commission orders in the proceeding. [FR Doc. E9–12080 Filed 5–22–09; 8:45 am] Commission staff will either: complete However, a person does not have to BILLING CODE 6717–01–P its environmental assessment (EA) and intervene in order to have comments place it into the Commission’s public considered. The second way to participate is by filing with the DEPARTMENT OF ENERGY record (eLibrary) for this proceeding, or issue a Notice of Schedule for Secretary of the Commission, as soon as Federal Energy Regulatory Environmental Review. If a Notice of possible, an original and two copies of Commission Schedule for Environmental Review is comments in support of or in opposition issued, it will indicate, among other to this project. The Commission will [Docket Nos. CP09–409–000] milestones, the anticipated date for the consider these comments in determining the appropriate action to be Williston Basin Interstate Pipeline Commission staff’s issuance of the final taken, but the filing of a comment alone Company; Notice of Application environmental impact statement (FEIS) or EA for this proposal. The filing of the will not serve to make the filer a party May 15, 2009. EA in the Commission’s public record to the proceeding. The Commission’s Take notice that on May 12, 2009, for this proceeding or the issuance of a rules require that persons filing Williston Basin Interstate Pipeline Notice of Schedule for Environmental comments in opposition to the project Company (Williston Basin), P.O. Box Review will serve to notify federal and provide copies of their protests only to 5601, Bismarck North Dakota 58506– state agencies of the timing for the the party or parties directly involved in 5601, filed in Docket Number CP09– completion of all necessary reviews, and the protest. 409–000, pursuant to section 7(c) of the the subsequent need to complete all Persons who wish to comment only Natural Gas Act (NGA), an application federal authorizations within 90 days of on the environmental review of this for authority to acquire certain gas the date of issuance of the Commission project should submit an original and volumes to replenish lost cushion gas in staff’s FEIS or EA. two copies of their comments to the its Elk Basin Storage Reservoir located There are two ways to become Secretary of the Commission. in Park County, Wyoming and Carbon involved in the Commission’s review of Environmental commenters will be County, Montana. This filing is this project. First, any person wishing to placed on the Commission’s available for review at the Commission obtain legal status by becoming a party environmental mailing list, will receive in the Public Reference Room or may be to the proceedings for this project copies of the environmental documents, viewed on the Commission’s Web site at should, on or before the below listed and will be notified of meetings http://www.ferc.gov using the comment date, file with the Federal associated with the Commission’s ‘‘eLibrary’’ link. Enter the docket Energy Regulatory Commission, 888 environmental review process. number excluding the last three digits in First Street, NE., Washington, DC 20426, Environmental commenters will not be the docket number field to access the a motion to intervene in accordance required to serve copies of filed document. For assistance, please contact with the requirements of the documents on all other parties. FERC Online Support at Commission’s Rules of Practice and However, the non-party commenters [email protected] or toll Procedure (18 CFR 385.214 or 385.211) will not receive copies of all documents free at (866) 208–3676, or for TTY, and the Regulations under the NGA (18 filed by other parties or issued by the contact (202) 502–8659. CFR 157.10). A person obtaining party Commission (except for the mailing of Any questions regarding this status will be placed on the service list environmental documents issued by the Application or Petition should be maintained by the Secretary of the Commission) and will not have the right

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to seek court review of the All documents (original and eight inspection and reproduction at the Commission’s final order. copies) should be filed with: Kimberly address in item h above. Motions to intervene, protests and D. Bose, Secretary, Federal Energy All filings must (1) bear in all capital comments may be filed electronically Regulatory Commission, 888 First letters the title ‘‘COMMENTS,’’ ‘‘REPLY via the Internet in lieu of paper; see, 18 Street, NE., Washington, DC 20426. COMMENTS,’’ CFR 385.2001(a)(1)(iii) and the The Commission’s Rules of Practice ‘‘RECOMMENDATIONS,’’ ‘‘TERMS instructions on the Commission’s Web require all intervenors filing documents AND CONDITIONS,’’ or site under the ‘‘e-Filing’’ link. The with the Commission to serve a copy of ‘‘PRESCRIPTIONS;’’ (2) set forth in the Commission strongly encourages that document on each person on the heading the name of the applicant and electronic filings. official service list for the project. the project number of the application to Comment Date: May 29, 2009. Further, if an intervenor files comments which the filing responds; (3) furnish or documents with the Commission Kimberly D. Bose, the name, address, and telephone relating to the merits of an issue that Secretary. number of the person submitting the may affect the responsibilities of a filing; and (4) otherwise comply with [FR Doc. E9–12078 Filed 5–22–09; 8:45 am] particular resource agency, they must the requirements of 18 CFR 385.2001 BILLING CODE 6717–01–P also serve a copy of the document on through 385.2005. All comments, that resource agency. recommendations, terms and conditions Comments, recommendations, terms DEPARTMENT OF ENERGY or prescriptions must set forth their and conditions, and prescriptions may evidentiary basis and otherwise comply Federal Energy Regulatory be filed electronically via the Internet in with the requirements of 18 CFR 4.34(b). Commission lieu of paper. The Commission strongly Agencies may obtain copies of the encourages electronic filings. See 18 application directly from the applicant. [Project No. 12775–001] CFR 385.2001(a)(1)(iii) and the Each filing must be accompanied by instructions on the Commission’s Web City of Spearfish, South Dakota; Notice proof of service on all persons listed on site (http://www.ferc.gov/docs-filing/ the service list prepared by the of Application Ready for ferconline.asp) under the ‘‘e-filing’’ link. Environmental Analysis and Soliciting Commission in this proceeding, in For a simpler method of submitting text accordance with 18 CFR 4.34(b) and Comments, Recommendations, Terms only comments, click on ‘‘Quick and Conditions, and Prescriptions 385.2010. Comment.’’ You may also register online at May 18, 2009. k. This application has been accepted http://www.ferc.gov/docs-filing/ Take notice that the following and is now ready for environmental esubscription.asp to be notified via e- hydroelectric application has been filed analysis. mail of new filings and issuances l. The existing Spearfish Project with the Commission and is available related to this or other pending projects. consists of: (1) A 130-foot-long gravity for public inspection. For assistance, contact FERC Online dam with an effective height of 4 feet; a. Type of Application: Major Project. Support. b. Project No.: 12775–001. (2) a 0.32-acre reservoir; (3) a gatehouse next to the dam that contains four 2- n. Public notice of the filing of the c. Date Filed: September 10, 2008. initial development application, which d. Applicant: City of Spearfish, South foot-high, 4-foot-wide steel intake gates; (4) a 4.5-mile-long, 6.5-foot-wide, 9-foot- has already been given, established the Dakota. due date for filing competing e. Name of Project: Spearfish high concrete-lined aqueduct; (5) a applications or notices of intent. Under Hydroelectric Project. forebay pond; (6) two 1,200-foot-long, the Commission’s regulations, any f. Location: On Spearfish Creek in 48-inch diameter, wood stave pipelines; competing development application Lawrence County, South Dakota. The (7) four 36-inch-diameter, 54-foot-high must be filed in response to and in project occupies about 57.3 acres of standpipe surge towers; (8) two 5,250- compliance with public notice of the United States lands within the Black foot-long, 30- to 34-inch diameter steel initial development application. No Hills National Forest administered by penstocks; (9) a reinforced concrete competing applications or notices of the U.S. Forest Service. powerhouse containing two Pelton intent may be filed in response to this g. Filed Pursuant to: Federal Power turbines and two 2,000-kilowatt (kW) notice. Act 16 U.S.C. 791 (a)–825(r). generators; and (10) appurtenant h. Applicant Contact: Ms. Cheryl facilities. o. A license applicant must file no Johnson, Public Works Administrator, m. A copy of the application is later than 60 days following the date of City of Spearfish, 625 Fifth Street, available for review at the Commission issuance of this notice: (1) A copy of the Spearfish, SD 57783; (605) 642–1333; or in the Public Reference Room or may be water quality certification; (2) a copy of e-mail at [email protected]. viewed on the Commission’s Web site at the request for certification, including i. FERC Contact: Steve Hocking at http://www.ferc.gov using the proof of the date on which the certifying (202) 502–8753 or ‘‘eLibrary’’ link. Enter the docket agency received the request; or (3) [email protected]. number excluding the last three digits in evidence of waiver of water quality j. Deadline for filing comments, the docket number field to access the certification. recommendations, terms and document. For assistance, contact FERC p. Procedural Schedule: The conditions, and prescriptions is 60 days Online Support at application will be processed according from the issuance of this notice; reply [email protected] or toll- to the following revised Hydro comments are due 105 days from the free at (866) 208–3676, or for TTY, (202) Licensing Schedule. Revisions to the issuance date of this notice. 502–8659. A copy is also available for schedule will be made as appropriate.

Milestone Target date

All stakeholders: recommendations, terms, and conditions due ...... July 17, 2009. All stakeholders: reply comments due ...... August 31, 2009.

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Milestone Target date

FERC issues draft environmental assess (EA) ...... November 3, 2009. All stakeholders: draft EA comments due ...... December 3, 2009. All stakeholders: modified terms and conditions due ...... February 1, 2010. FERC issues final EA ...... March 30, 2010.

Kimberly D. Bose, Commission) is in the process of upon the anticipated level of impacts. Secretary. preparing an environmental assessment Please note that the scoping period for [FR Doc. E9–12088 Filed 5–22–09; 8:45 am] (EA) that will discuss the environmental this project will close on June 29, 2009. BILLING CODE 6717–01–P impacts that could result from the Comments may be submitted in construction and operation of the Tiger written or verbal form. Further details Pipeline Project. The project is planned DEPARTMENT OF ENERGY on how to submit written comments are by ETC Tiger Pipeline, LLC (ETC Tiger) provided in the Public Participation to transport natural gas from the section of this notice. In lieu of or in Federal Energy Regulatory Haynesville and Barnett Shale addition to sending written comments, Commission production areas to markets in the the Commission Staff invites you to [Docket No. PF09–9–000] Midwest, Northeast, and Southeast. attend the public scoping meetings ETC Tiger Pipeline, LLC; Notice of This Notice of Intent (NOI) initiates scheduled as follows. Intent To Prepare an Environmental the scoping process that will be used to Assessment for the Proposed Tiger gather input from the public and Pipeline Project, Request for interested agencies on the project. Your Comments on Environmental Issues input will help determine which issues and Notice of Public Scoping Meetings will be evaluated in the EA. The staff will also use the scoping process to May 15, 2009. determine whether preparation of an The staff of the Federal Energy environmental impact statement (EIS) is Regulatory Commission (FERC or more appropriate for this project based

Date and time Location

Monday, June 8, 2009, 7 p.m. (CDT) ...... Delhi Civic Center, 232 Denver Street, Delhi, Louisiana 71232. Tuesday, June 9, 2009, 7 p.m. (CDT) ...... Jackson Parish Community Center, 182 Industrial Drive, Jonesboro, Louisiana 71251. Thursday, June 11, 2009, 7 p.m. (CDT) ...... Texas Country Music Hall of Fame, 300 West Panola Street, Carthage, Texas 75633.

Interested groups and individuals are newspapers. We 1 encourage guides.asp). This fact sheet addresses a encouraged to attend the meetings and government representatives to notify number of typically asked questions, to present comments on the their constituents of this planned including the use of eminent domain environmental issues they believe project and encourage them to comment and how to participate in FERC’s should be addressed in the EA. A on their areas of concern. proceedings. If you are a landowner receiving this transcript of the meetings will be Summary of the Proposed Project generated so that your comments will be notice, you may be contacted by an ETC accurately recorded. Tiger representative about the ETC Tiger has announced its proposal acquisition of an easement to construct, The FERC will be the lead Federal to construct and operate a new natural operate, and maintain the proposed gas pipeline and associated structures agency in the preparation of an EA or facilities. ETC Tiger would seek to with a flow capacity of 2.0 billion cubic EIS that will satisfy the requirements of negotiate a mutually acceptable feet per day (Bcf/d). The project would the National Environmental Policy Act agreement. However, if the project is consist of an approximate 174-mile, 42- (NEPA) and will be used by the FERC approved by the FERC, that approval inch-diameter pipeline running from the to consider the environmental impacts conveys with it the right of eminent Carthage Hub in Panola County, Texas that could result if the Commission domain. Therefore, if easement to the Perryville Hub in Richland issues ETC Tiger a Certificate of Public negotiations fail to produce an Parish, Louisiana. ETC Tiger states that Convenience and Necessity (Certificate) agreement, ETC Tiger could initiate the Tiger Pipeline would transport under Section 7 of the Natural Gas Act. condemnation proceedings in natural gas from the growing accordance with State law. Haynesville Shale production area to This NOI is being sent to Federal, A fact sheet prepared by the FERC Midwest, Northeast, and Southeast State, and local government agencies; entitled ‘‘An Interstate Natural Gas markets through seven interconnects elected officials; affected landowners; Facility on My Land? What Do I Need with other major interstate natural gas environmental and public interest To Know?’’ is available for viewing on pipelines and one bi-directional groups; Indian Tribes and regional the FERC Internet Web site (http:// interconnect with an existing intrastate Native American organizations; www.ferc.gov/for-citizens/citizen- commentors and other interested pipeline at the Carthage Hub. In addition, the Tiger Pipeline would parties; and local libraries and 1 ‘‘We,’’ ‘‘us,’’ and ‘‘our’’ refer to the environmental staff of the FERC’s Office of Energy transport gas from the Barnett shale Projects. production area through its

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interconnection with Houston Pipe Line public may have about proposals. This Commission. To ensure your comments Company (Houston Pipe Line). The process is referred to as ‘‘scoping.’’ The are considered, please carefully follow Project would provide a critical link main goal of the scoping process is to the instructions in the Public between natural gas production in the focus the analysis in the EA on the Participation section below. Haynesville and adjacent Barnett shales important environmental issues. By this With this NOI, we are asking Federal, and existing pipeline infrastructure in NOI, the Commission staff requests State, and local agencies with the region. public comments on the scope of the jurisdiction and/or special expertise The Project is designed with a issues to address in the EA. All with respect to environmental issues to capacity of up to 1.0 Bcf/d from the comments received will be considered formally cooperate with us in the Carthage Hub to Louisiana State during the preparation of the EA. State preparation of the EA. These agencies Highway 789 and up to 2.0 Bcf/d from and local government representatives may choose to participate once they Louisiana State Highway 789 to the end are encouraged to notify their have evaluated the proposal relative to of the pipeline. More specifically, ETC constituents of this proposed action and their responsibilities. Additional Tiger proposes the following facilities: encourage them to comment on their agencies that would like to request • 174 miles of 42-inch-diameter areas of concern. cooperating agency status should follow natural gas pipeline in Panola County, In the EA we will discuss impacts that the instructions for filing comments Texas; and Caddo, De Soto, Red River, could occur as a result of the provided under the Public Participation Bienville, Jackson, Ouachita, and construction and operation of the section of this NOI. Richland Parishes, Louisiana; proposed Project under these general Currently Identified Environmental • Four mainline compressor stations headings: with approximately 113,000 combined • Geology and soils; Issues horsepower (hp) in Panola County, • Land use; We have already identified issues that Texas; and Red River Parish, Bienville • Water resources, fisheries, and we think deserve attention based on a Parish, and Jackson Parish, Louisiana; wetlands; preliminary review of the proposed • Ancillary facilities, including • Cultural resources; facilities and our previous experience interconnects and pig 2 launchers and • Vegetation and wildlife; with similar projects in the region. This • receivers; Air quality and noise; • preliminary list of issues, which is • Receipt and delivery meter stations: Endangered and threatened species; presented below, may be revised based 15 receipt meters, 7 delivery meters, and and • on your comments and our continuing one bidirectional meter. Public safety. analyses specific to the Tiger Pipeline We will also evaluate possible A location map depicting the Project. proposed pipeline and compressor alternatives to the proposed Project or • Potential effects on prime farmland stations is attached to this NOI as portions of the Project, and make soils and soils with a high potential for Appendix 1.3 recommendations on how to avoid, compaction. minimize, or mitigate impacts on the • Potential effects on waterbodies Land Requirements for Construction various resource areas. designated under Federal and/or State As currently estimated by ETC Tiger, Although no formal application has programs, including the Sabine River, construction of the Tiger Pipeline been filed, we have already initiated our Saline Bayou, and Black Lake Bayou. Project would require about 3,407 acres NEPA review under the Commission’s • Potential impacts to waterbird of land, including pipeline, Pre-Filing Process. The purpose of the nesting areas along major river aboveground facilities, appurtenant Pre-Filing Process is to encourage early crossings. facilities, pipe storage and contractor involvement of interested stakeholders • Potential impacts to wetland yards, and access roads. Following and to identify and resolve issues before reserve program (WRP) and construction, about 1,588 acres would an application is filed with the FERC. conservation reserve program (CRP) be used for operation of the project As part of our Pre-Filing Process review, parcels of land. facilities. The areas disturbed during we have begun to contact some Federal • Potential effects on Federally and construction but not required for and State agencies to discuss their State-listed species, including interior operation would generally be allowed to involvement in the scoping process and least tern, red cockaded woodpecker, revert to pre-construction use and the preparation of the EA. In addition, Louisiana black bear, pallid sturgeon, condition. representatives from the FERC Earth fruit, and Louisiana pine snake. participated in public open houses • Potential impacts to existing land The EA Process sponsored by ETC Tiger in the project uses, including agricultural and forested NEPA requires the Commission to area in April 2009 to explain the lands. take into account the environmental environmental review process to • Potential visual effects of the impacts that could result from an action interested stakeholders. aboveground facilities on surrounding whenever it considers the issuance of a Our independent analysis of the areas. Certificate. NEPA also requires us to issues will be in the EA. Depending on • Alternative alignments for the discover and address concerns the the comments received during the pipeline route and alternative sites for scoping process, the EA may be the compressor stations. 2 A pig is an internal tool that can be used to published and mailed to Federal, State, • Assessment of the effect of the clean and dry a pipeline and/or to inspect it for and local agencies; public interest proposed project when combined with damage or corrosion. groups; interested individuals; affected other past, present, or reasonably 3 The appendices referenced in this notice are not being printed in the Federal Register. Copies can landowners; newspapers; libraries; and foreseeable future actions in the project be obtained from the Commission’s Web site at the the Commission’s official service list for area. ‘‘eLibrary’’ link, from the Commission’s Public this proceeding. A comment period will We usually limit the allowed Reference Room, or by calling (202) 502–8371. For be allotted for review following construction right-of-way to a default instructions on connecting to ‘‘eLibrary’’, refer to the end of this notice. Copies of the appendices publication of the EA. We will consider width of 75 feet or that described in the were sent to all those receiving this notice in the all comments on the EA before we make Certificate application, unless modified mail. our recommendations to the by a Certificate condition. Both of the

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recently constructed large diameter (42- computer’s hard drive. You will attach [email protected]. The inch) natural gas pipelines in the that file as your submission. New ‘‘eLibrary’’ link on the FERC Web site proposed project area utilized a nominal eFiling users must first create an also provides access to the texts of 100-foot-wide construction right-of-way account by clicking on ‘‘Sign up’’ or formal documents issued by the width in uplands and 75-foot-wide ‘‘eRegister.’’ You will be asked to select Commission, such as orders, notices, construction right-of-way in wetlands the type of filing you are making. A and rule makings. with additional temporary workspace, comment on a particular project is In addition, FERC now offers a free as required for specific construction considered a ‘‘Comment on a Filing;’’ or service called ‘‘eSubscription’’ that requirements or techniques. ETC Tiger (3) You may file your comments via allows you to keep track of all formal has proposed a range of right-of-way mail to the Commission by sending an issuances and submittals in specific widths: 125 to 150 feet in uplands, original and two copies of your letter to: dockets. This can reduce the amount of depending on land use; and 75 to 125 Kimberly D. Bose, Secretary, Federal time you spend researching proceedings feet in wetlands, depending on cover Energy Regulatory Commission, 888 by automatically providing you with type and length of wetland crossing. We First St., NE., Room 1A, Washington, DC notification of these filings, document will be evaluating ETC Tiger’s proposed 20426. summaries, and direct links to the construction right-of-way width Label one copy of the comments for documents. To register for this service, configurations and justification and the attention of Gas Branch 1, PJ–11.2. go to http://www.ferc.gov/ encourage your comments on this issue. Becoming an Intervenor esubscribenow.htm. A complete summary of the proposed Public meetings or site visits will be right-of-way widths can be found in Once ETC Tiger formally files its posted on the Commission’s calendar Appendix 1C of ETC Tiger’s draft application with the Commission you located at http://www.ferc.gov/ resource report 1 which can be obtained may want to become an ‘‘intervenor,’’ EventCalendar/EventsList.aspx along on the Commission’s Web site through which is an official party to the with other related information. the ‘‘eLibrary’’ link. proceeding. Intervenors play a more Finally, ETC Tiger has established a formal role in the process and are able Public Participation Web site for this project at http:// to file briefs, appear at hearings, and be www.tigerpipeline.com. The Web site You can make a difference by heard by the courts if they choose to includes a project overview, timeline, providing us with your specific appeal the Commission’s final ruling. safety and environmental information, comments or concerns about the Tiger An intervenor formally participates in a and answers to frequently asked Pipeline Project. Your comments should Commission proceeding by filing a questions. You can also request focus on the potential environmental request to intervene. Instructions for additional information by e-mailing or effects, reasonable alternatives, and becoming an intervenor are included in writing ETC Tiger directly: measures to avoid or lessen the User’s Guide under the ‘‘eFiling’’ environmental impacts. The more link on the Commission’s Web site. Mr. Joey Mahmoud, ETC Tiger Pipeline, specific your comments, the more useful Please note that you may not request LLC, 711 Louisiana Street, Houston, they will be. To ensure that your intervenor status at this time. You must Texas 77002–2716, comments are timely and properly wait until a formal application is filed [email protected], recorded, please send in your comments with the Commission. 281–714–2042. so that they will be received in R. Leon Banta, ETC Tiger Pipeline, LLC, Washington, DC on or before June 29, Environmental Mailing List 4300 Youree Drive, Building #1, 2009. Everyone who responds to this notice Shreveport, LA 71105, For your convenience, there are three or provides comments throughout the [email protected], 318– methods you can use to submit your EA process will be retained on the 841–0266. written comments to the Commission. mailing list. If you do not want to send Kimberly D. Bose, In all instances please reference the comments at this time but want to stay Secretary. project’s Docket Number PF09–9–000 informed and receive a copy of the EA, [FR Doc. E9–12075 Filed 5–22–09; 8:45 am] with your submission. The Commission you must return the Mailing List encourages electronic filing of Retention Form (Appendix 2). If you do BILLING CODE 6717–01–P comments and has dedicated eFiling not send comments or return the expert staff available to assist you at Mailing List Retention Form asking to DEPARTMENT OF ENERGY 202–502–8258 or [email protected]. remain on the mailing list, you will be (1) You may file your comments taken off the mailing list. Federal Energy Regulatory electronically by using the Quick Commission Comment feature, which is located on Additional Information Additional information about the the Commission’s Internet Web site at [Docket No. CP08–465–000] http://www.ferc.gov under the link to project is available from the Documents and Filings. A Quick Commission’s Office of External Affairs ANR Pipeline Company; Notice of Comment is an easy method for at 1–866–208–FERC (3372), or on the Availability of the Environmental interested persons to submit text-only FERC’s Web site (http://www.ferc.gov) Assessment for the Proposed comments on a project; using the ‘‘eLibrary’’ link. Click on the Wisconsin 2009 Expansion Project (2) You may file your comments ‘‘eLibrary’’ link, select ‘‘General electronically by using the eFiling Search’’, and enter the project docket May 15, 2009. feature, which is located on the number, excluding the last three digits The staff of the Federal Energy Commission’s Internet Web site at (i.e., PF09–9) in the ‘‘Docket Number’’ Regulatory Commission (FERC or http://www.ferc.gov under the link to field. Be sure you have selected an Commission) has prepared an Documents and Filings. eFiling involves appropriate date range. For assistance environmental assessment (EA) of the preparing your submission in the same with ‘‘eLibrary’’, the ‘‘eLibrary’’ helpline Wisconsin 2009 Expansion Project manner as you would if filing on paper, can be reached at 1–866–208–3676, TTY proposed by ANR Pipeline Company and then saving the file on your (202) 502–8659, or by e-mail at (ANR) in the above-referenced docket.

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The EA was prepared to satisfy the avoid or lessen environmental impacts. are included in the User’s Guide under requirements of the National The more specific your comments, the the ‘‘e-filing’’ link on the Commission’s Environmental Policy Act (NEPA). The more useful they will be. To ensure that Web site (http://www.ferc.gov). FERC staff concludes that approval of your comments are timely and properly Affected landowners and parties with the proposed project, with appropriate recorded, please send in your comments environmental concerns may be granted mitigating measures, would not so that they will be received in intervenor status upon showing good constitute a major Federal action Washington, DC on or before June 15, cause by stating that they have a clear significantly affecting the quality of the 2009. and direct interest in this proceeding human environment. For your convenience, there are three which would not be adequately The FERC is the lead agency for the methods in which you can use to submit represented by any other parties. You do preparation of the EA. The United States your comments to the Commission. In not need intervenor status to have your Environmental Protection Agency is a all instances please reference the project comments considered. cooperating agency for the development docket number (CP08–465–000) with Additional information about the of the EA. A cooperating agency has your submission. The Commission project is available from the jurisdiction by law or special expertise encourages electronic filing of Commission’s Office of External Affairs, with respect to the proposed action and comments and has dedicated eFiling at 1–866–208–FERC (3372) or on the participates in the NEPA analysis. expert staff available to assist you at FERC Internet website (www.ferc.gov) The EA assesses the potential 202–502–8258 or [email protected]. using the eLibrary link. Click on the environmental effects of the (1) You may file your comments eLibrary link, click on ‘‘General Search’’ construction and operation of the electronically by using the Quick and enter the docket number excluding proposed Wisconsin 2009 Expansion Comment feature, which is located on the last three digits in the Docket Project that includes the following the Commission’s Internet Web site at Number field (i.e., CP08–465). Be sure facilities in Wisconsin: http://www.ferc.gov under the link to you have selected an appropriate date • Construction of about 8.9 miles of Documents and Filings. A Quick range. For assistance, please contact 30-inch-diameter pipeline loop Comment is an easy method for FERC Online Support at (Janesville Loop) in Rock County; interested persons to submit text-only [email protected] or toll free • Relocation of an existing pig comments on a project; at 1–866–208–3676, or for TTY, contact receiver and appurtenances to the (2) You may file your comments (202) 502–8659. The eLibrary link also existing Janesville Compressor Station electronically by using the eFiling provides access to the texts of formal in Rock County; documents issued by the Commission, • feature, which is located on the Installation of a new control valve Commission’s internet Web site at such as orders, notices, and at the existing Marshfield Compressor http://www.ferc.gov under the link to rulemakings. Station in Wood County, and Fairwater Documents and Filings. eFiling involves In addition, the Commission now Meter Station in Columbia County; and preparing your submission in the same offers a free service called eSubscription • Upgrading the existing Marshfield, manner as you would if filing on paper, which allows you to keep track of all North Wausau, and Randolph Meter and then saving the file on your formal issuances and submittals in Stations in Wood, Marathon, and computer’s hard drive. You will attach specific dockets. This can reduce the Columbia Counties, respectively. that file as your submission. New amount of time you spend researching According to ANR, the purpose of the proceedings by automatically providing project is to accommodate the growing eFiling users must first create an account by clicking on ‘‘Sign up’’ or you with notification of these filings, demand for natural gas on ANR’s system document summaries and direct links to and provide about 97,880,000 ‘‘eRegister’’. You will be asked to select the type of filing you are making. A the documents. Go to http:// dekatherms per day of incremental firm www.ferc.gov/esubscribenow.htm. capacity. comment on a particular project is The EA has been placed in the public considered a ‘‘Comment on a Filing;’’ or Kimberly D. Bose, (3) You may file your comments via files of the FERC. A limited number of Secretary. copies of the EA are available for mail to the Commission by sending an original and two copies of your letter to: [FR Doc. E9–12077 Filed 5–22–09; 8:45 am] distribution and public inspection at: BILLING CODE 6717–01–P Federal Energy Regulatory Commission, Kimberly D. Bose, Secretary, Federal Public Reference Room, 888 First Street, Energy Regulatory Commission, 888 First St., NE., Room 1A, Washington, DC NE., Room 2A, Washington, DC 20426, DEPARTMENT OF ENERGY (202) 502–8371. 20426; Copies of the EA have been mailed to Label one copy of the comments for the Federal Energy Regulatory federal, state, and local agencies, public attention of Gas Branch 3, PJ11.3. Mail Commission your comments promptly, so that they interest groups, interested individuals, [Docket No. PF09–7–000] newspapers and libraries in the project will be received in Washington, DC on area, and parties to this proceeding. Any or before June 15, 2009. Kern River Gas Transmission person wishing to comment on the EA Comments will be considered by the Company; Notice of Intent To Prepare may do so. To ensure consideration Commission but will not serve to make an Environmental Impact Statement for prior to a Commission decision on the the commentor a party to the the Apex Expansion Project, Request proposal, it is important that we receive proceeding. Any person seeking to for Comments on Environmental your comments before the date specified become a party to the proceeding must Issues, and Notice of Joint Public below. file a motion to intervene pursuant to Scoping Meetings You can make a difference by Rule 214 of the Commission’s Rules of providing us with your specific Practice and Procedures (18 CFR May 15, 2009. comments or concerns about the project. 385.214). Only intervenors have the The staff of the Federal Energy Your comments should focus on the right to seek rehearing of the Regulatory Commission (FERC or potential environmental effects, Commission’s decision. Further Commission), the U.S. Department of reasonable alternatives, and measures to instructions for becoming an intervenor Interior, Bureau of Land Management

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(BLM), the U.S. Forest Service (FS), and convenience and necessity. The project which issues need to be evaluated in the Bureau of Reclamation (Reclamation) would involve Kern River Gas EIS. Please note that the scoping period will prepare an environmental impact Transmission Company’s (Kern River) will close on June 15, 2009. statement (EIS) that will discuss the planned construction and operation of a Comments may be submitted in environmental impacts that could result new natural gas pipeline in Morgan, written or verbal form. Further details from the construction and operation of Davis, and Salt Lake Counties, Utah. on how to submit written comments are the Apex Expansion Project. The FERC This Notice of Intent (NOI) announces is the lead federal agency for the the opening of the scoping process used provided in the Public Participation preparation of the EIS, and the EIS will to gather input from the public and section of this notice. In lieu of or in be used by the Commission in its interested agencies on the project. Your addition to sending written comments, decision making process to determine input will help the Commission staff we invite you to attend the public whether the project is in the public and cooperating agencies determine scoping meetings scheduled as follows.

Date and time Location

June 9, 2009 7 p.m. local time ...... Bountiful High School Auditorium, 695 S. Orchard Dr., Bountiful, UT 84010. June 10, 2009 7 p.m. local time ...... Morgan County Courthouse Auditorium, 48 West Young Street, Mor- gan, UT 84050.

Interested groups and individuals are the FERC Internet Web site (http:// follow the planned route through the FS encouraged to attend the meetings and www.ferc.gov). This fact sheet addresses Ward Canyon utility corridor to to present comments on the a number of typically asked questions, Bountiful City where it would turn environmental issues they believe including the use of eminent domain south onto Bountiful Boulevard for should be addressed in the EIS. A and how to participate in the approximately 6 miles before rejoining transcript of the meeting will be Commission’s proceedings. the existing Kern River pipeline, generated so that your comments will be thereafter following the planned route. Summary of the Proposed Project accurately recorded. This notice is being sent to the Kern River has announced its plans to Land Requirements for Construction Commission’s current environmental construct and operate approximately 29 Construction of the Apex Expansion mailing list for this project, which miles of new 36-inch-diameter natural Project would require about 356 acres of includes: affected landowners; federal, gas pipeline loop 2 in Morgan, Davis, land for the pipeline. Following state, and local government and Salt Lake Counties, Utah (known as construction, about 178 acres would be representatives and agencies; elected the Wasatch Loop). The planned Apex used for the operation of the pipeline. officials; environmental and public Expansion Project would also include: The construction and operation of the • interest groups; Native American tribes; Construction of a new compressor Milford Compressor Station would other interested parties in this station in Beaver County, Utah (Milford require 30 acres on BLM land, and the Compressor Station); upgrades and replacement activities at proceeding; and local libraries and • newspapers. We 1 encourage state and Replacement of a compressor unit the existing compressor stations would local government representatives to at the Fillmore Compressor Station in require 20 acres on land already owned/ notify their constituents of the planned Millard County, Utah; and leased by Kern River (The Dry Lake • Additional compression at the project and encourage them to comment Compressor Station is also on land following existing compressor stations, on their areas of concern. owned by the BLM). The area disturbed If you are a landowner receiving this totaling 78,000 horsepower: during construction but not required for • Coyote Creek Compressor Station in notice, you may be contacted by a operation would generally be allowed to Uinta County, Wyoming; revert to pre-construction condition. pipeline company representative about • Elberta Compressor Station in Utah the acquisition of an easement to The planned Wasatch Loop, some of County, Utah; and which crosses land under the construct, operate, and maintain the • Dry Lake Compressor Station in planned facilities. The pipeline jurisdiction of the FS in the Uinta- Clark County, Nevada. Wasatch-Cache National Forest, would company would seek to negotiate a Location maps depicting the planned mutually acceptable agreement. be located within and directly adjacent facilities are attached to this NOI as to the existing Kern River right-of-way. However, if the project is approved by 3 Appendix 1. Kern River plans to align the loop with the Commission, that approval conveys Kern River is also considering an a typical offset of 35 feet from the with it the right of eminent domain. alternative pipeline route which would Therefore, if easement negotiations fail existing pipeline to the extent practicable. The planned modifications to produce an agreement, the pipeline 2 A loop is a segment of pipeline that is usually company could initiate condemnation installed adjacent to an existing pipeline and to the four existing compressor stations proceedings in accordance with state connected to it at both ends. The loop allows more would occur within the existing fence gas to be moved through the system. line of those facilities. law. 3 The appendices referenced in this notice are not A fact sheet prepared by the FERC being printed in the Federal Register. Copies of all The EIS Process entitled ‘‘An Interstate Natural Gas appendices are available on the Commission’s Facility On My Land? What Do I Need website at the ‘‘eLibrary’’ link or from the The National Environmental Policy To Know?’’ is available for viewing on Commission’s Public Reference Room, 888 First Act (NEPA) requires the Commission to Street, NE., Washington, DC 20426, or call (202) take into account the environmental 502–8371. For instructions on connecting to impacts that could result from an action 1 ‘‘We’’, ‘‘us’’, and ‘‘our’’ refer to the eLibrary refer to the last page of this notice. Copies environmental staff of the Office of Energy Projects of the appendices were sent to all those receiving whenever it considers the issuance of a (OEP). this notice in the mail. Certificate of Public Convenience and

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Necessity. NEPA also requires us to BLM for all federal lands crossed by the • Impacts of the pipeline on cultural discover and address concerns the Project. resources, including paleontological public may have about proposals. This Our independent analysis of the resources and historic trails; • process is referred to as ‘‘scoping.’’ The issues will be included in a draft EIS. Impacts of the pipeline on main goal of the scoping process is to recreation and scenic resources; and The draft EIS will be mailed to federal, • focus the analysis in the EIS on the state, and local government agencies; Possible disturbance to residents important environmental issues. By this elected officials; affected landowners; and impacts to the viewshed from NOI, the Commission staff requests environmental and public interest construction activities on the alternative public comments on the scope of the groups; Indian tribes and regional route along Bountiful Boulevard. issues to address in the EIS. All Native American organizations; Public Participation comments received will be considered commentors; other interested parties; during the preparation of the EIS. You can make a difference by local libraries and newspapers; and the providing us with your specific In the EIS we will discuss impacts FERC’s official service list for this that could occur as a result of the comments or concerns about the Apex proceeding. A 45-day comment period Expansion Project. Your comments construction and operation of the will be allotted for review of the draft planned project under these general should focus on the potential EIS and the proposed plan amendment. environmental effects, reasonable headings: We will consider all timely comments • Geology and soils; alternatives, and measures to avoid or • on the draft EIS and revise the lessen environmental impacts. The more Land use; document, as necessary, before issuing a • Water resources, fisheries, and specific your comments, the more useful final EIS. To ensure that your comments wetlands; they will be. To ensure that your • Cultural resources; are considered, please carefully follow comments are timely and properly • Vegetation and wildlife; the instructions in the Public recorded, please send in your comments • Air quality and noise; Participation section of this NOI. so that they will be received in • Endangered and threatened species; With this NOI, we are asking any Washington, DC on or before June 15, and other federal, state, and local agencies 2009. • Public safety. with jurisdiction and/or special For your convenience, there are three We will also evaluate possible expertise with respect to environmental methods you can use to submit your alternatives to the planned project or issues to formally cooperate with us in written comments to the Commission. portions of the project, and make the preparation of the EIS. These In all instances please reference the recommendations on how to lessen or agencies may choose to participate once project docket number PF09–7–000 with avoid impacts on the various resource they have evaluated the proposal your submission. The Commission areas. relative to their responsibilities. encourages electronic filing of Although no formal application has Additional agencies that would like to comments and has dedicated eFiling been filed, we have already initiated our request cooperating agency status expert staff available to assist you at NEPA review under the Commission’s should follow the instructions for filing 202–502–8258 [email protected]. Pre-Filing Process. The purpose of the comments provided under the Public (1) You may file your comments Pre-Filing Process is to encourage early Participation section of this NOI. electronically by using the Quick involvement of interested stakeholders Currently, the BLM, FS, and Comment feature, which is located on and to identify and resolve issues before Reclamation have expressed their the Commission’s Internet Web site at an application is filed with the FERC. intention to participate as cooperating http://www.ferc.gov under the link to As part of our Pre-Filing Process review, agencies in the preparation of the EIS to Documents and Filings. A Quick we have begun to contact some federal satisfy their NEPA responsibilities for Comment is an easy method for and state agencies to discuss their the portion of the Project on Federal interested persons to submit text-only involvement in the scoping process and lands. comments on a project; the preparation of the EIS. In addition, (2) You may file your comments representatives from the FERC Currently Identified Environmental electronically by using the eFiling participated in public open houses Issues feature, which is located on the sponsored by Kern River in the project We have already identified several Commission’s Internet Web site at area in March 2009, to explain the issues that we think deserve attention http://www.ferc.gov under the link to environmental review process to based on a preliminary review of the Documents and Filings. eFiling involves interested stakeholders. planned facilities, comments made to us preparing your submission in the same The planned Milford Compressor at Kern River’s open houses, manner as you would if filing on paper, Station and associated access road and preliminary consultations with other and then saving the file on your the Dry Lake Compressor Station would agencies, and the environmental computer’s hard drive. You will attach be located on federal lands for which information provided by Kern River. that file as your submission. New the BLM has jurisdiction and/or special This preliminary list of issues may be eFiling users must first create an expertise with respect to environmental changed based on your comments and account by clicking on ‘‘Sign up’’ or issues/impacts. The planned Wasatch our analysis: ‘‘eRegister.’’ You will be asked to select Loop would cross federal lands under the type of filing you are making. A • Disturbance to residents along FS jurisdiction in the Uinta-Wasatch- comment on a particular project is pipeline construction route, including Cache National Forest for which the FS considered a ‘‘Comment on a Filing;’’ or would require a plan amendment to the noise and aesthetics; (3) You may file your comments via 2003 Forest Plan. The planned route • Impacts to the viewshed from mail to the Commission by sending an and the alternative route along construction activities and placement of original and two copies of your letter to: Bountiful Boulevard would also cross aboveground facilities; Kimberly D. Bose, Secretary, Federal federal lands under Reclamation • Potential for geological hazards, Energy Regulatory Commission, 888 jurisdiction. Kern River would seek a including seismic activity, to have First St., NE., Room 1A, Washington, DC right-of-way grant amendment from the impacts on the pipeline; 20426.

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Label one copy of the comments for amount of time you spend researching construction and operation of the the attention of Gas Branch 1, PJ–11.1. proceedings by automatically providing proposed Meeker to Cheyenne you with notification of these filings, Expansion Project. The purpose of the Becoming an Intervenor document summaries and direct links to project is to increase the capacity of the Once Kern River formally files its the documents. Go to http:// REX–Entrega Pipeline between the application with the Commission, you www.ferc.gov/esubscribenow.htm. Meeker Hub (Rio-Blanco County, may want to become an ‘‘intervenor,’’ Public meetings or site visits will be Colorado), the Wamsutter Hub which is an official party to the posted on the Commission’s calendar (Sweetwater County, Wyoming), and the proceeding. Intervenors play a more located at http://www.ferc.gov/ Cheyenne Hub (Weld County, Colorado) formal role in the process and are able EventCalendar/EventsList.aspx along by 200,000 dekatherms per day. to file briefs, appear at hearings, and be with other related information. The EA has been placed in the public heard by the courts if they choose to Finally, to request additional files of the FERC. A limited number of appeal the Commission’s final ruling. information on the project or to provide copies of the EA are available for An intervenor formally participates in a comments directly to the project distribution and public inspection at: Commission proceeding by filing a sponsor, you can contact Kern River Federal Energy Regulatory Commission, request to intervene. Instructions for directly by calling toll free at 1–888– Public Reference Room, 888 First Street, becoming an intervenor are included in 222–1897. Also, Kern River has NE., Room 2A, Washington, DC 20426. the User’s Guide under the ‘‘eFiling’’ established an Internet Web site at Copies of the EA have been mailed to link on the Commission’s Web site. http://www.kernrivergas.com, click on federal, state, and local agencies; Please note that you may not request the ‘‘Expansion Projects’’ tab. The Web newspapers and libraries in the project intervenor status at this time; you must site includes a description of the area; parties to this proceeding; and wait until the formal application for the Project, an overview map of the planned those who have expressed an interest in Project is filed with the Commission. facilities, and links to related this project by returning the Mailing List Form attached to the March 10, 2009 Environmental Mailing List documents. Kern River will update the Web site as the environmental review of Notice of Intent to Prepare an An effort is being made to send this its project proceeds. Environmental Assessment for the notice to all individuals, organizations, Proposed Meeker to Cheyenne and government entities interested in Kimberly D. Bose, Expansion Project and Request for and/or potentially affected by the Secretary. Comments on Environmental Issues. planned project. This includes all [FR Doc. E9–12082 Filed 5–22–09; 8:45 am] Any person wishing to comment on landowners who are potential right-of- BILLING CODE 6717–01–P the EA may do so. To ensure way grantors, whose property may be consideration prior to a Commission used temporarily for project purposes, decision on the proposal, it is important or who own homes within certain DEPARTMENT OF ENERGY that we receive your comments as distances (defined in the Commission’s specified below. Please carefully follow regulations) of aboveground facilities. Federal Energy Regulatory these instructions below to ensure that If you do not want to send comments Commission your comments are received in time and at this time but still want to remain on [Docket No. CP09–58–000] properly recorded. our mailing list, please return the You can make a difference by Information Request (Appendix 2). If Rockies Express Pipeline LLC; Notice providing us with your specific you do not return the Information of Availability of the Environmental comments or concerns about the Meeker Request, you will be taken off the Assessment for the Proposed Meeker to Cheyenne Expansion Project. Your mailing list. to Cheyenne Expansion Project comments should focus on the potential environmental effects, reasonable Availability of Additional Information May 18, 2009. alternatives, and measures to avoid or Additional information about the The staff of the Federal Energy lessen environmental impacts. The more project is available from the Regulatory Commission (FERC or specific your comments, the more useful Commission’s Office of External Affairs, Commission) has prepared the they will be. To ensure that your at 1–866–208–FERC or on the FERC environmental assessment (EA) on the comments are timely and properly Internet Web site (http://www.ferc.gov) natural gas facilities proposed by recorded, please send in your comments using the eLibrary link. Click on the Rockies Express Pipeline LLC (REX) in so that they will be received in eLibrary link, click on ‘‘General Search’’ the above-referenced docket. REX’s Washington, DC on or before June 17, and enter the docket number excluding proposal (the Meeker to Cheyenne 2009. the last three digits in the Docket Expansion Project) would add one For your convenience, there are three Number field. Be sure you have selected additional compressor unit to both the methods in which you can use to submit an appropriate date range. For Big Hole and Arlington Compressor your comments to the Commission. In assistance, please contact FERC Online Stations in Moffat County, Colorado and all instances please reference the project Support at [email protected] Carbon County, Wyoming, respectively. docket number CP09–58–000 with your or toll free at 1–866–208–3676, or for The EA was prepared to satisfy the submission. The Commission TTY, contact (202) 502–8659. The requirements of the National encourages electronic filing of eLibrary link also provides access to the Environmental Policy Act of 1969. The comments and has dedicated eFiling texts of formal documents issued by the staff concludes that approval of the expert staff available to assist you at Commission, such as orders, notices, proposed project, with appropriate 202–502–8258 [email protected]. and rulemakings. mitigating measures, would not (1) You may file your comments In addition, the Commission now constitute a major federal action electronically by using the Quick offers a free service called eSubscription significantly affecting the quality of the Comment feature, which is located on which allows you to keep track of all human environment. the Commission’s Internet Web site formal issuances and submittals in The EA assesses the potential athttp://www.ferc.gov under the link to specific dockets. This can reduce the environmental effects of the Documents and Filings. A Quick

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Comment is an easy method for (202) 502–8659. The eLibrary link on construction and operation of the interested persons to submit text-only the FERC Internet Web site also Downeast LNG Project would result in comments on a project; provides access to the texts of formal some adverse environmental impacts. (2) You may file your comments documents issued by the Commission, However, most of these impacts would electronically by using the eFiling such as orders, notices, and be reduced to less-than-significant feature, which is located on the rulemakings. levels with the implementation of Commission’s Internet Web site at In addition, the Commission offers a Downeast’s proposed mitigation http://www.ferc.gov under the link to free service called eSubscription which measures and the additional measures Documents and Filings. eFiling involves allows you to keep track of all formal we recommend in the EIS. preparing your submission in the same issuances and submittals in specific The Project would establish a LNG manner as you would if filing on paper, dockets. This can reduce the amount of marine terminal in New England and then saving the file on your time you spend researching proceedings capable of unloading cargo from LNG computer’s hard drive. You will attach by automatically providing you with vessels, storing up to 320,000 cubic that file as your submission. New notifications of these filings, document meters of LNG in specially designed eFiling users must first create an summaries and direct links to the tanks, vaporizing the LNG back into account by clicking on ‘‘Sign up’’ or documents. Go to http://www.ferc.gov/ natural gas, and providing an average ‘‘eRegister.’’ You will be asked to select esubscribenow.htm. sendout of 500 million cubic feet of the type of filing you are making. A natural gas per day to the New England comment on a particular project is Kimberly D. Bose, region’s interstate pipeline grid. considered a ‘‘Comment on a Filing;’’ or Secretary. Downeast’s proposed 29.8-mile-long (3) You may file your comments via [FR Doc. E9–12089 Filed 5–22–09; 8:45 am] pipeline would transport natural gas mail to the Commission by sending an BILLING CODE 6717–01–P from the LNG terminal to an original and two copies of your letter to: interconnect point with Maritimes and Kimberly D. Bose, Secretary, Federal Northeast Pipeline’s L.L.C. (M&NE) Energy Regulatory Commission, 888 DEPARTMENT OF ENERGY existing pipeline system near the town First Street, NE., Room 1A, Washington, Federal Energy Regulatory of Baileyville, Maine. Downeast states DC 20426. Commission that the Project would provide an Label one copy of the comments for additional supply source of natural gas the attention of the Gas Branch 1, PJ– [Docket No. CP07–52–000; Docket Nos. to meet increasing demand and increase 11.1 CP07–53–000, CP07–53–001] the reliability of the interstate gas Comments will be considered by the delivery system in New England. Commission but will not serve to make Downeast LNG, Inc. and Downeast The draft EIS addresses the potential the commentor a party to the Pipeline, LLC.; Notice of Availability of environmental effects of construction proceeding. Any person seeking to the Draft Environmental Impact and operation of the following facilities become a party to the proceeding must Statement for the Proposed Downeast proposed by Downeast: file a motion to intervene pursuant to LNG Project • A new marine terminal that would Rule 214 of the Commission’s Rules of May 15, 2009. include a 3,862-foot-long pier with a Practice and Procedures (18 CFR The staff of the Federal Energy single berth and vessel mooring system, 385.214).1 Only intervenors have the Regulatory Commission (Commission or intended to handle LNG vessels ranging right to seek rehearing of the FERC) has prepared this draft from 70,000 to 165,000 cubic meters in Commission’s decisions. Environmental Impact Statement (EIS) capacity, with future expansion Affected landowners and parties with to address Downeast LNG, Inc.’s and capabilities to handle vessels with environmental concerns may be granted Downeast Pipeline, LLC.’s (hereafter 220,000 cubic meters of cargo capacity; intervenor status upon showing good • two full-containment LNG storage collectively referred to as Downeast) cause by stating that they have a clear tanks, each with a nominal usable proposed liquefied natural gas (LNG) and direct interest in this proceeding storage capacity of 160,000 cubic terminal, natural gas pipeline, and which would not be adequately meters; associated facilities in the above- represented by any other parties. You do • LNG vaporization and processing referenced docket. The Downeast LNG not need intervenor status to have your equipment; Project (Project) would be located in comments considered. • piping, ancillary buildings, safety Additional information about the Washington County, Maine. systems, and other support facilities; project is available from the The draft EIS was prepared to satisfy • a 29.8-mile-long, 30-inch-diameter Commission’s Office of External Affairs the requirements of the National underground natural gas pipeline; at 1–866–208–FERC or on the FERC Environmental Policy Act (NEPA). The • natural gas metering facilities Internet Web site (http://www.ferc.gov) U.S. Coast Guard; U.S. Army Corps of located at the LNG terminal site; and using the eLibrary link. Click on the Engineers; National Oceanic and • various ancillary facilities including eLibrary link, then on ‘‘General Search’’ Atmospheric Administration, National pigging 1 facilities and three mainline and enter the docket number excluding Marine Fisheries Service; U.S. block valves. the last three digits in the docket Environmental Protection Agency; and The Project would also include the number field (i.e., CP09–58). Be sure the Maine Department of Environmental transit of LNG vessels through both you have selected an appropriate date Protection are cooperating agencies for United States and Canadian waters to range. For assistance, please contact the development of this EIS. A and from the LNG terminal in FERC Online Support at cooperating agency has jurisdiction by Robbinston, Maine. The intended vessel [email protected] or toll free law or special expertise with respect to transit routes include the waters of the at 1–866–208–3676, or for TTY, contact potential environmental impacts Gulf of Maine, Bay of Fundy, Grand associated with the proposal and is Manan Channel, Head Harbor Passage, 1 Interventions may also be filed electronically via involved in the NEPA analysis. the Internet in lieu of paper. See the previous Based on the analysis included in the 1 A ‘‘pig’’ is a tool for cleaning and inspecting the discussion of filing comments electronically. EIS, the FERC staff concludes inside of a pipeline.

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Friar Roads, Western Passage, and comments and has dedicated eFiling agencies but will not serve to make the Passamaquoddy Bay. The draft EIS also expert staff available to assist you at commentor a party to the proceeding. includes information regarding potential (202) 502–8258 or [email protected]. Any person seeking to become a party modifications and expansions of the (1) You may file your comments to the proceeding must file a motion to M&NE pipeline system to transport the electronically by using the Quick intervene pursuant to Rule 214 of the natural gas volumes that would be Comment feature, which is located on Commission’s Rules of Practice and supplied by the Downeast sendout the Commission’s internet Web site at Procedure (Title 18 CFR 385.214). Only pipeline. http://www.ferc.gov under the link to intervenors have the right to seek The draft EIS has been placed in the Documents and Filings. A Quick rehearing of the Commission’s decision. public files of the FERC and is available Comment is an easy method for Further instructions for becoming an for distribution and public inspection interested persons to submit text-only intervenor are included in the User’s at: Federal Regulatory Energy comments on a project; Commission, Public Reference Room, (2) You may file your comments Guide under the ‘‘e-filing’’ link on the 888 First St., NE., Room 2A, electronically by using the eFiling Commission’s Web site (http:// Washington, DC 20426, (202) 502–8371. feature, which is located on the www.ferc.gov). You do not need Only volume 1 of the draft EIS, Commission’s Internet Web site at intervenor status to have your containing text of the analysis, was http://www.ferc.gov under the link to comments considered. printed in hard copy. Volume 2, Documents and Filings. eFiling involves Additional information about the containing additional appendices, was preparing your submission in the same Project is available from the produced as .pdf files on a compact disk manner as you would if filing on paper, Commission’s Office of External Affairs (CD) that can be read by a computer and then saving the file on your at 1–866–208–FERC (3372). The with a CD-ROM drive. A limited computer’s hard drive. You will attach administrative public record for this number of hard copies and CDs of the that file as your submission. New proceeding to date is on the FERC draft EIS are available from the FERC’s eFiling users must first create an Internet Web site (http://www.ferc.gov). Public Reference Room, identified account by clicking on ‘‘Sign up’’ or Click on the eLibrary link, click on above. This draft EIS is also available for ‘‘eRegister.’’ You will be asked to select public viewing on the FERC’s Internet ‘‘General Search,’’ and enter the docket the type of filing you are making. A number excluding the last three digits in Web site at http://www.ferc.gov, via the comment on a particular project is the Docket Number field (i.e., CP07–52). eLibrary link, and at project area considered a ‘‘Comment on a Filing;’’ or libraries listed in Appendix A of the (3) You may file your comments via Be sure you have selected an draft EIS. mail to the Commission by sending an appropriate date range. For assistance, Copies of the document have been original and two copies of your letter to: please contact FERC Online Support at mailed to Federal, State, and local Kimberly D. Bose, Secretary, Federal [email protected] or toll government agencies; elected officials; Energy Regulatory Commission, 888 free at 1–866–208–3676, or for TTY, Native American tribes and regional First St., NE., Room 1A, Washington, DC contact (202) 502–8659. The eLibrary organizations; local libraries and 20426. link on the FERC Internet Web site also newspapers; intervenors in the FERC’s Label one copy of the comments for provides access to the texts of formal proceeding; and other interested parties the attention of Gas Branch 3, PJ–11.3. documents issued by the Commission, (i.e., individuals and groups who Mail your comments promptly, so that such as orders, notices, and provided scoping comments or asked to they will be received in Washington, DC rulemakings. remain on the mailing list). All parties on or before July 6, 2009. In addition, the Commission now on the mailing list were sent a CD of the In addition to or in lieu of sending offers a free service called eSubscription draft EIS. A hard copy was also mailed written comments, we invite you to to those who specifically requested one. attend the public comment meeting we that allows you to keep track of all will conduct in the Project area. The formal issuances and submittals in Comment Procedures and Public specific dockets. This can reduce the Meetings meeting will begin at 7 p.m. (EST), and is scheduled as follows: amount of time you spend researching Any person wishing to comment on Date: Tuesday, June 16, 2009. proceedings by automatically providing the draft EIS is encouraged to do so. Location: Robbinston Grade School you with notification of these filings, Your comments should focus on the Cafeteria 904 U.S. Route 1 Robbinston, document summaries, and direct links potential environmental effects, Maine (207) 454–3694. to the documents. To register for this reasonable alternatives, and measures to This public meeting will be posted on service, go to the eSubscription link on avoid or lessen environmental impacts. the FERC’s calendar located at http:// the FERC Internet Web site (http:// The more specific your comments, the www.ferc.gov/EventCalendar/ www.ferc.gov/docs-filing/ more useful they will be. To ensure EventsList.aspx. Interested groups and esubscription.asp). consideration prior to a Commission individuals are encouraged to attend decision on the proposal, it is important and present written or oral comments Kimberly D. Bose, that your comments be received before on the draft EIS. Transcripts of the Secretary. July 6, 2009. Please carefully follow the meetings will be prepared. [FR Doc. E9–12076 Filed 5–22–09; 8:45 am] instructions below so that your After the comments are reviewed, any BILLING CODE 6717–01–P comments are properly recorded. significant new issues are investigated, For your convenience, there are three and necessary modifications are made to methods you can use to submit your the draft EIS, a final EIS will be comments to the Commission. In all published and distributed. The final EIS instances, please reference the Project will contain our responses to timely Docket Numbers CP07–52–000, CP07– comments filed on the draft EIS that are 53–000, and CP07–53–001 with your related to environmental issues. submission. The Commission Comments will be considered by the encourages electronic filing of Commission and the cooperating

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DEPARTMENT OF ENERGY [email protected] or call clicking on the appropriate link in the (866) 208–3676 (toll free). For TTY, call above list. They are also available for Federal Energy Regulatory (202) 502–8659. review in the Commission’s Public Commission Reference Room in Washington, DC. Kimberly D. Bose, [Docket No. ER09–1132–000] There is an eSubscription link on the Secretary. Web site that enables subscribers to Palmco Power NJ, LLC; Supplemental [FR Doc. E9–12086 Filed 5–22–09; 8:45 am] receive e-mail notification when a Notice That Initial Market-Based Rate BILLING CODE 6717–01–P document is added to a subscribed Filing Includes Request for Blanket docket(s). For assistance with any FERC Section 204 Authorization Online service, please e-mail DEPARTMENT OF ENERGY [email protected] or call May 18, 2009. Federal Energy Regulatory (866) 208–3676 (toll free). For TTY, call This is a supplemental notice in the (202) 502–8659. above-referenced proceeding, of Palmco Commission Power NJ, LLC’s application for market- [Docket No. ER09–1131–000] Kimberly D. Bose, based rate authority, with an Secretary. accompanying rate schedule, noting that Palmco Power CT, LLC; Supplemental [FR Doc. E9–12085 Filed 5–22–09; 8:45 am] such application includes a request for Notice That Initial Market-Based Rate BILLING CODE 6717–01–P blanket authorization, under 18 CFR Filing Includes Request for Blanket Part 34, of future issuances of securities Section 204 Authorization and assumptions of liability. DEPARTMENT OF ENERGY Any person desiring to intervene or to May 18, 2009. protest should file with the Federal This is a supplemental notice in the Federal Energy Regulatory Energy Regulatory Commission, 888 above-referenced proceeding, of Palmco Commission Power CT, LLC’s application for market- First Street, NE., Washington, DC 20426, [Docket No. ER09–1117–000] in accordance with Rules 211 and 214 based rate authority, with an of the Commission’s Rules of Practice accompanying rate schedule, noting that NGP Blue Mountain I LLC; and Procedure (18 CFR 385.211 and such application includes a request for Supplemental Notice That Initial 385.214). Anyone filing a motion to blanket authorization, under 18 CFR Market-Based Rate Filing Includes intervene or protest must serve a copy Part 34, of future issuances of securities Request for Blanket Section 204 of that document on the applicant. and assumptions of liability. Authorization Notice is hereby given that the Any person desiring to intervene or to deadline for filing protests with regard protest should file with the Federal May 15, 2009. to the applicant’s request for blanket Energy Regulatory Commission, 888 This is a supplemental notice in the authorization, under 18 CFR Part 34, of First Street, NE., Washington, DC 20426, above-referenced proceeding of NGP future issuances of securities and in accordance with Rules 211 and 214 Blue Mountain I LLC’s application for assumptions of liability is June 8, 2009. of the Commission’s Rules of Practice market-based rate authority, with an The Commission encourages and Procedure (18 CFR 385.211 and accompanying rate tariff, noting that electronic submission of protests and § 385.214). Anyone filing a motion to such application includes a request for interventions in lieu of paper, using the intervene or protest must serve a copy blanket authorization, under 18 CFR FERC Online links at http:// of that document on the applicant. part 34, of future issuances of securities www.ferc.gov. To facilitate electronic Notice is hereby given that the and assumptions of liability. service, persons with Internet access deadline for filing protests with regard Any person desiring to intervene or to who will eFile a document and/or be to the applicant’s request for blanket protest should file with the Federal listed as a contact for an intervenor authorization, under 18 CFR Part 34, of Energy Regulatory Commission, 888 must create and validate an future issuances of securities and First Street, NE., Washington, DC 20426, eRegistration account using the assumptions of liability is June 8, 2009. in accordance with Rules 211 and 214 eRegistration link. Select the eFiling The Commission encourages of the Commission’s Rules of Practice link to log on and submit the electronic submission of protests and and Procedure (18 CFR 385.211 and intervention or protests. interventions in lieu of paper, using the 385.214). Anyone filing a motion to Persons unable to file electronically FERC Online links at http:// intervene or protest must serve a copy should submit an original and 14 copies www.ferc.gov. To facilitate electronic of that document on the Applicant. of the intervention or protest to the service, persons with Internet access Notice is hereby given that the Federal Energy Regulatory Commission, who will eFile a document and/or be deadline for filing protests with regard 888 First St., NE., Washington, DC listed as a contact for an intervenor to the applicant’s request for blanket 20426. must create and validate an authorization, under 18 CFR part 34, of The filings in the above-referenced eRegistration account using the future issuances of securities and proceeding(s) are accessible in the eRegistration link. Select the eFiling assumptions of liability, is June 4, 2009. Commission’s eLibrary system by link to log on and submit the The Commission encourages clicking on the appropriate link in the intervention or protests. electronic submission of protests and above list. They are also available for Persons unable to file electronically interventions in lieu of paper, using the review in the Commission’s Public should submit an original and 14 copies FERC Online links at http:// Reference Room in Washington, DC. of the intervention or protest to the www.ferc.gov. To facilitate electronic There is an eSubscription link on the Federal Energy Regulatory Commission, service, persons with Internet access Web site that enables subscribers to 888 First St., NE., Washington, DC who will eFile a document and/or be receive e-mail notification when a 20426. listed as a contact for an intervenor document is added to a subscribed The filings in the above-referenced must create and validate an docket(s). For assistance with any FERC proceeding(s) are accessible in the eRegistration account using the Online service, please e-mail Commission’s eLibrary system by eRegistration link. Select the eFiling

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link to log on and submit the The Commission encourages outreach experts from the industry and intervention or protests. electronic submission of protests and FERC staff will provide perspectives on Persons unable to file electronically interventions in lieu of paper, using the innovative approaches to stakeholder should submit an original and 14 copies FERC Online links at http:// outreach and the importance of outreach of the intervention or protest to the www.ferc.gov. To facilitate electronic efforts in the siting process. Federal Energy Regulatory Commission, service, persons with Internet access The workshop will be held at the 888 First St., NE., Washington, DC who will eFile a document and/or be Commission’s Headquarters, 888 First 20426. listed as a contact for an intervenor St., NE., Washington, DC 20426 in the The filings in the above-referenced must create and validate an proceeding are accessible in the eRegistration account using the Commission Meeting Room from 1 p.m. Commission’s eLibrary system by eRegistration link. Select the eFiling until 4:15 p.m. EST. All interested clicking on the appropriate link in the link to log on and submit the parties may attend. The workshop will above list. They are also available for intervention or protests. not be transcribed, and telephone review in the Commission’s Public Persons unable to file electronically participation will not be available. Reference Room in Washington, DC. should submit an original and 14 copies Commission workshops and There is an eSubscription link on the of the intervention or protest to the conferences are accessible under section Web site that enables subscribers to Federal Energy Regulatory Commission, 508 of the Rehabilitation Act of 1973. receive e-mail notification when a 888 First St., NE., Washington, DC For accessibility accommodations document is added to a subscribed 20426. please send an e-mail to docket(s). For assistance with any FERC The filings in the above-referenced [email protected] or call toll free 1– Online service, please e-mail proceeding(s) are accessible in the 866–208–3372 (voice) or 202–208–8659 Commission’s eLibrary system by [email protected]. or call (TTY), or send a FAX to 202–208–2106 clicking on the appropriate link in the (866) 208–3676 (toll free). For TTY, call with the required accommodations. (202) 502–8659. above list. They are also available for review in the Commission’s Public The agenda for the siting workshop is Kimberly D. Bose, Reference Room in Washington, DC. attached. For additional information Secretary. There is an eSubscription link on the concerning this event, please contact [FR Doc. E9–12079 Filed 5–22–09; 8:45 am] Web site that enables subscribers to Lauren O’Donnell at 202–502–8325 or BILLING CODE 6717–01–P receive e-mail notification when a Berne Mosley at 202–502–8625. document is added to a subscribed docket(s). For assistance with any FERC Kimberly D. Bose, DEPARTMENT OF ENERGY Online service, please e-mail Secretary. [email protected]. or call Federal Energy Regulatory Pipeline Siting and Stakeholder (866) 208–3676 (toll free). For TTY, call Commission Involvement Workshop Agenda (202) 502–8659. Kimberly D. Bose, 1 p.m. Welcome and Opening [Docket No. ER09–1133–000] Remarks. Secretary. Palmco Power PA, LLC; Supplemental [FR Doc. E9–12087 Filed 5–22–09; 8:45 am] 1:15 p.m. Case Study of CenterPoint Notice That Initial Market-Based Rate BILLING CODE 6717–01–P Energy’s Carthage to Perryville Filing Includes Request for Blanket Pipeline Project. Section 204 Authorization Debbie Ristig, Vice President, DEPARTMENT OF ENERGY May 18, 2009. Engineering and Compliance, This is a supplemental notice in the Federal Energy Regulatory CenterPoint Energy. above-referenced proceeding, of Palmco Commission 2:15 p.m. Break. Power PA, LLC’s application for market- [Docket No. AD09–6–000] 2:30 p.m. Stakeholder Outreach Panel based rate authority, with an Discussion. accompanying rate schedule, noting that Pipeline Siting and Stakeholder Julee Stephenson, Director, Regulatory such application includes a request for Involvement Workshop; Notice of blanket authorization, under 18 CFR and Government Affairs, NiSource Pipeline Siting and Stakeholder Gas Transmission & Storage. part 34, of future issuances of securities Involvement Workshop and assumptions of liability. Cindy Ivey, Manager, Public Outreach, Any person desiring to intervene or to May 15, 2009. Transcontinental Gas Pipeline. protest should file with the Federal On June 1, 2009, the Federal Energy Susan Waller, Vice President, Energy Regulatory Commission, 888 Regulatory Commission (FERC or Stakeholder Outreach, Spectra First Street, NE., Washington, DC 20426, Commission) will hold a workshop, Energy Transmission. in accordance with Rules 211 and 214 hosted by Commissioner Philip Moeller, of the Commission’s Rules of Practice on natural gas pipeline siting. The Douglas Sipe, Outreach Coordinator, and Procedure (18 CFR 385.211 and workshop will focus on the importance Federal Energy Regulatory 385.214). Anyone filing a motion to of pipeline companies working Commission. intervene or protest must serve a copy collaboratively with affected 3:45 p.m. Questions and Closing of that document on the Applicant. stakeholders throughout the Remarks. Notice is hereby given that the environmental review and certification 4:15 p.m. Adjourn. deadline for filing protests with regard process to successfully site new to the applicant’s request for blanket pipeline infrastructure. A case study of [FR Doc. E9–12083 Filed 5–22–09; 8:45 am] authorization, under 18 CFR part 34, of a recent major pipeline project will be BILLING CODE 6717–01–P future issuances of securities and presented by the pipeline company assumptions of liability is June 8, 2009. representatives. In addition, a panel of

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ENVIRONMENTAL PROTECTION proposed collection of information, by testing new tools before they are AGENCY including the validity of the launched. methodology and assumptions used; The Regulations.gov ‘feedback [EPA–HQ–OEI–2009–0328, FRL–8909–4] (iii) Enhance the quality, utility, and exchange’ Web site will provide the Agency Information Collection clarity of the information to be public with a preview of new Activities; Proposed Collection; collected; and technologies considered for Comment Request; Regulations.gov (iv) Minimize the burden of the Regulations.gov. It will also enable the Information Collection; OMB Control collection of information on those who public to provide feedback on these No. 2025–0008, EPA ICR No. 2357.02 are to respond, including through the technologies. Technologies considered use of appropriate automated electronic, for the Regulations.gov ‘feedback AGENCY: Environmental Protection mechanical, or other technological exchange’ include: User Profiles; Agency (EPA). collection techniques or other forms of Comment Threads and Wikis; Ratings, ACTION: Notice. information technology, e.g., permitting Polls, and Tagging; an interactive electronic submission of responses. In Educational Tool; and an Information SUMMARY: In compliance with the particular, EPA is requesting comments Export capability. These technologies Paperwork Reduction Act (PRA) (44 from very small businesses (those that will be deployed iteratively, with U.S.C. 3501 et seq.), this document employ less than 25) on examples of components deployed upon the site’s announces that EPA is planning to specific additional efforts that EPA release in May 2009 and during submit a request to replace an could make to reduce the paperwork subsequent upgrades to the Web site. emergency Information Collection burden for very small businesses User profiles enable the public to Request (ICR) to the Office of affected by this collection. register on the site and pre-load Management and Budget (OMB). This submitter information for later use as emergency ICR was approved by OMB What Should I Consider When I well as save their own personalized on May 18, 2009. Before submitting this Prepare My Comments for EPA? searches, RSS feeds, and e-mail alerts ICR to OMB for review and approval, You may find the following without the use of persistent cookies. EPA is soliciting comments on specific suggestions helpful for preparing your Comment Threads allow the public to aspects of the proposed information comments. enter into virtual conversations with collection as described below. 1. Explain your views as clearly as one another about a topic. Wikis enable DATES: Comments must be submitted on possible and provide specific examples. the public to collaboratively develop or before July 27, 2009. 2. Describe any assumptions that you and modify narrative descriptions about ADDRESSES: Submit your comments, used. a topic. Ratings and Polls allow the referencing Docket ID No. EPA–HQ– 3. Provide copies of any technical public to indicate a preference for a OEI–2009–0328, to (1) EPA online using information and/or data you used that topic or issue via the selection of stars www.regulations.gov (our preferred support your views. or thumbs up/thumbs down icons method), by e-mail to 4. If you estimate potential burden or which graphically provide an at-a- [email protected], by mail to: costs, explain how you arrived at the glance indication of public sentiment EPA Docket Center, Environmental estimate that you provide. and can simplify navigation. Tagging Protection Agency, mail code 28221T, 5. Offer alternative ways to improve provides the public with the ability to 1200 Pennsylvania Ave., NW., the collection activity. tag or label information they or someone Washington, DC 20460, or by hand 6. Make sure to submit your else has posted to the site to ease delivery: EPA Docket Center, EPA West comments by the deadline identified navigation and to promote the formation Bldg, Room 3334, 1301 Constitution under DATES. of common interest categories. The Ave. NW., Washington, DC 20460. Such 7. To ensure proper receipt by EPA, Educational Tool will inform the public deliveries are only accepted during the be sure to identify the ICR title on the about the Federal rulemaking process Docket’s normal hours of operation. first page of your response. You may through interactive text and images. The FOR FURTHER INFORMATION CONTACT: also provide the Federal Register Data Export capability enables the Shanita Brackett, OEI/OIC/CStD at the citation. public to download and review the contents of a rulemaking docket as well Environmental Protection Agency, 1200 What Information Collection Activity or as mix and match such information with Pennsylvania Ave., NW., (MC 2822–T), ICR Does this Apply To? Washington, DC 20460; telephone other information in a new way (also number (202) 566–1008; fax Title: Regulations.gov Information known as a ‘‘mash-up’’). The number(202) 566–1611: e-mail address: Collection. Regulations.gov ‘‘feedback exchange’’ [email protected]. OMB Control Number: 2025–0008. will rely on feedback from Government, Abstract: In response to the SUPPLEMENTARY INFORMATION: Industry, Academia and Citizenry to Presidential memorandum, the improve Regulations.gov as time goes What Information Is EPA Particularly eRulemaking Program will launch the on. Interested in? Regulations.gov ‘feedback exchange’ Burden Statement: The annual public Pursuant to section 3506(c)(2)(A) of Web site in May 2009. This interactive reporting and recordkeeping burden for the PRA, EPA specifically solicits Web site will showcase new this collection of information is comments and information to enable it technologies being considered for estimated to average 35 hours per year. to: Regulations.gov. The ‘feedback Burden means the total time, effort, or (i) Evaluate whether the proposed exchange’ will serve as a learning financial resources expended by persons collection of information is necessary laboratory for open government, to generate, maintain, retain, or disclose for the proper performance of the enabling the public to provide input on or provide information to or for a functions of the Agency, including the Regulations.gov interface, build a Federal agency. This includes the time whether the information will have community of practice on the Federal needed to review instructions; develop, practical utility; regulatory development process, and acquire, install, and utilize technology (ii) Evaluate the accuracy of the ensure that the eRulemaking Program and systems for the purposes of Agency’s estimate of the burden of the can efficiently manage federal resources collecting, validating, and verifying

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information, processing and for the meeting and sets forth the Potomac Yard (South Bldg.), 2777 S. maintaining information, and disclosing tentative agenda topics. Crystal Dr., Arlington, VA. The hours of and providing information; adjust the DATES: The meeting will be held on operation of this Docket Facility are existing ways to comply with any Monday, June 22, 2009 from 8:30 a.m. from 8:30 a.m. to 4 p.m., Monday previously applicable instructions and to 5:00 p.m. and 8:30 a.m to 12 noon on through Friday, excluding legal requirements which have subsequently Tuesday June 23, 2009 holidays. The Docket Facility telephone changed; train personnel to be able to To request accommodation of a number is (703) 305–5805. respond to a collection of information; disability, please contact the person 2. Electronic access. You may access search data sources; complete and listed under FOR FURTHER INFORMATON this Federal Register document review the collection of information; CONTACT, preferably at least 10 days electronically through the EPA Internet and transmit or otherwise disclose the prior to the meeting, to give EPA as under the ‘‘Federal Register’’ listings at information. much time as possible to process your http://www.epa.gov/fedrgstr. The ICR provides a detailed request. II. Background explanation of the Agency’s estimate, ADDRESSES: The open meeting will be which is only briefly summarized here: held at EPA. One Potomac Yard (South Topics may include but are not Affected Entities: Anyone that Bldg.) 2777 Crystal Dr., Arlington VA. limited to: chooses to visit Regulations.gov. 1st and 4th Floor South Conference 1. Regional Reports and Issue Papers Estimated Total Number of Potential Room. 2. TPPC Report Respondents: 1,000. 3 AAPSE Report Estimated Total Number of Potential FOR FURTHER INFORMATION CONTACT: Ron 4. 24C Discussion Responses: 7,000. Kendall, Field and External Affairs 5. Acetochlor label changes Frequency of Response: Occasionally. Division (7506P), Office of Pesticide 6. Chemigation - pdate and Discussion Estimated Total Annual Burden Programs, Environmental Protection 7. NPDES - latest activity update and Hours: 35 hours. Agency, 1200 Pennsylvania Ave., NW., discussion Estimated Total Annual Capital and Washington, DC 20460–0001; telephone 8. Endangered Species Protection Operations and Maintenance Costs: $ 0. number: (703 305–5561 fax number: Program - recent happenings and label (703) 308–1850; e-mail address: language What Is the Next Step in the Process for [email protected]. or Grier Stayton, 9. Indemnification Statements on This ICR? SFIREG Executive Secretary, P.O. Box Section 3 labels EPA will consider the comments 466, Milford DE 19963; telephone 10. Strychnine and its classification received and amend the ICR as number (302) 422–8152; fax (302) 422– status appropriate. The final ICR package will 2435; e-mail address: grierstaytonaapco- 11. PPDC Update then be submitted to OMB for review [email protected]. 12. FIFRA Strategic Plan - State and approval pursuant to 5 CFR SUPPLEMENTARY INFORMATION: Volunteers 1320.12. At that time, EPA will issue I. General Information 13. Boiler plate language - another Federal Register notice groundwater and other statements pursuant to 5 CFR 1320.5(a)(1)(iv) to A. Does this Action Apply to Me? 14. EQIWC Update announce the submission of the ICR to You may be potentially affected by 15. POM Update OMB and the opportunity to submit this action if you are interested in 16. Total Release Foggers - Update additional comments to OMB. If you SFIREG information exchange 17. EUP Guidelines for States have any questions about this ICR or the relationship with EPA regarding 18. Drift Language Improvement approval process, please contact the important issues related to human 19. Investigative Field Notes Policy FOR FURTHER person listed under health, environmental exposure to 20. Web Distributed Labels INFORMATION CONTACT. pesticides, and insight into EPA’s 21. Green Labeling Dated: May 19, 2009. decision-making process. You are 22. Discussion on the 2011–2013 John Moses, invited and encouraged to attend the state/tribal grant guidance, potential Director, Collection Strategies Division. meetings and participate as appropriate. focus areas, process, etc. 23. Bed Bug Forum - results/action [FR Doc. E9–12132 Filed 5–22–09; 8:45 am] Potentially affected entities may items BILLING CODE 6560–50–P include, but are not limited to: Those persons who are or may be 24. Atrazine Water Quality Criteria - required to conduct testing of chemical May SAP ENVIRONMENTAL PROTECTION substances under the Federal Food, III. How Can I Request to Participate in AGENCY Drug and Cosmetics Act (FFDCA), or the this Meeting? Federal Insecticide, Fungicide, and [EPA–HQ–OPP–2009–0008; FRL–8414–4] Rodenticide Act (FIFRA). This meeting is open for the public to attend. You may also submit a request SFIREG Full Committee Meeting B. How Can I Get Copies of this to participate in this meeting to the Document and Other Related FOR FURTHER AGENCY: Environmental Protection person listed under Information? Agency (EPA). INFORMATION CONTACT. Do not submit any information in your request that is ACTION: Notice. 1. Docket. EPA has established a docket for this action under docket ID considered CBI. Requests to participate SUMMARY: The Association of American number EPA–HQ–OPP–2008–0143. in the meeting, identified by docket ID Pesticide Control Officials (AAPCO)/ Publicly available docket materials are number EPA–HQ–OPP–2009–0008, State FIFRA Issues Research and available either in the electronic docket must be received on or before June 16, Evaluation Group (SFIREG) will hold a at http://www.regulations.gov, or, if only 2009 Federal Register. 2–day meeting, beginning on June 22, available in hard copy, at the Office of 2009 and ending June 23, 2009. This Pesticide Programs (OPP) Regulatory List of Subjects notice announces the location and times Public Docket in Rm. S–4400, One Environmental protection.

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Dated: May 18, 2009. Form Number: FDIC 6710/07. Frequency of Response: On occasion. W. R. Diamond, Frequency of Response: On occasion. Affected Public: Insured state Director, Field and External Affairs Division Affected Public: Insured depository nonmember banks. [FR Doc. E9–12141 Filed 5–22–09; 8:45 am] institutions. Estimated Number of Respondents: Estimated Number of Respondents: 20. BILLING CODE 6560–50–S 14. Estimated Time per Response: 8 Estimated Time per Response: 16 hours. hours. Total Annual Burden: 160 hours. FEDERAL DEPOSIT INSURANCE Total Annual Burden: 224 hours. General Description of Collection: CORPORATION General Description of Collection: With certain exceptions, section 24 of the FDI Act (12 U.S.C. 1831a) limits the Agency Information Collection Section 19 of the Federal Deposit Insurance Act (FDI), 12 U.S.C. 1829, direct equity investments of state Activities: Proposed Collection chartered banks to equity investments Renewals; Comment Request requires the FDIC’s consent prior to any participation in the affairs of an insured that are permissible for national banks. AGENCY: Federal Deposit Insurance depository institution by a person who In addition, the statute prohibits an Corporation (FDIC). has been convicted of crimes involving insured state bank from directly ACTION: Notice and request for comment. dishonesty or breach of trust. To obtain engaging as principal in any activity that consent, an insured depository that is not permissible for a national SUMMARY: The FDIC, as part of its institution must submit an application bank or indirectly through a subsidiary continuing effort to reduce paperwork to the FDIC for approval on Form FDIC in an activity that is not permissible for and respondent burden, invites the 6710/07. a subsidiary of a national bank unless general public and other Federal 2. Title: Procedures for Monitoring the bank meets its minimum capital agencies to take this opportunity to Bank Protection Act Compliance. requirements and the FDIC determines comment on continuing information OMB Number: 3064–0095. that the activity does not pose collections, as required by the Form Numbers: None. significant risk to the Deposit Insurance Paperwork Reduction Act of 1995 (44 Frequency of Response: On occasion. Fund. The FDIC can make such a U.S.C. chapter 35). Currently, the FDIC Affected Public: Insured state determination for exception by is soliciting comments on renewal of nonmember banks. regulation or by order. The FDIC’s five information collections described Estimated Number of Respondents: implementing regulation for section 24 below. 5,110. is 12 CFR part 362. It details the Estimated Time per Response: 0.5 activities that insured state nonmember DATES: Comments must be submitted on hours. banks or their subsidiaries may engage or before July 27, 2009. Total Annual Burden: 2,555 hours. in, under certain criteria and conditions, ADDRESSES: Interested parties are General Description of Collection: The and identifies the information that invited to submit written comments to Bank Protection Act of 1968 (12 U.S.C. banks must furnish to the FDIC in order the FDIC by any of the following 1881–1884) requires each Federal to obtain the FDIC’s approval or non- methods: supervisory agency to promulgate rules objection. • http://www.FDIC.gov/regulations/ establishing minimum standards for 4. Title: Mutual-to-Stock Conversions laws/federal/notices.html. of State Savings Banks. • security devices and procedures to E-mail: [email protected]. discourage financial crime and to assist OMB Number: 3064–0117. Include the name of the collection in the in the identification of persons who Form Numbers: None. subject line of the message. Frequency of Response: On occasion. • commit such crimes. To avoid the Mail: Leneta G. Gregorie (202–898– necessity of constantly updating a Affected Public: Insured State 3719), Counsel, Room F–1064, Federal technology-based regulation, the FDIC chartered savings banks that are not Deposit Insurance Corporation, 550 17th takes a flexible approach to members of the Federal Reserve System Street, NW., Washington, DC 20429. implementing this statute. It requires proposing to convert from mutual to • Hand Delivery: Comments may be each insured nonmember bank to stock form of ownership. hand-delivered to the guard station at Estimated Number of Respondents: designate a security officer who will the rear of the 17th Street Building 10. administer a written security program. (located on F Street), on business days Estimated Time per Response: 50 The security program shall: (1) Establish between 7 a.m. and 5 p.m. hours. procedures for opening and closing for All comments should refer to the Total Annual Burden: 500 hours. business and for safekeeping valuables; relevant OMB control number. A copy General Description of Collection: (2) establish procedures that will assist of the comments may also be submitted Sections 303.161 and 333.4 of Title 12 in identifying persons committing to the OMB desk officer for the FDIC: of the Code of Federal Regulations crimes against the bank; (3) provide for Office of Information and Regulatory require State savings banks that are not initial and periodic training of Affairs, Office of Management and members of the Federal Reserve System employees in their responsibilities Budget, New Executive Office Building, to file with the FDIC a notice of intent under the security program; and (4) Washington, DC 20503. to convert to stock form and to provide provide for selecting, testing, operating FOR FURTHER INFORMATION CONTACT: copies of documents filed with State and maintaining security devices as and Federal banking and/or securities Leneta Gregorie, at the FDIC address prescribed in the regulation. In addition, above. regulators in connection with the the FDIC requires the security officer to proposed conversion. SUPPLEMENTARY INFORMATION: Proposal report at least annually to the bank’s 5. Title: Privacy of Consumer to renew the following currently board of directors on the effectiveness of Financial Information. approved collections of information: the security program. OMB Number: 3064–0136. 1. Title: Application Pursuant to 3. Title: Activities and Investments of Form Numbers: None. Section 19 of the Federal Deposit Insured State Banks. Frequency of Response: On occasion. Insurance Act. OMB Number: 3064–0111. Affected Public: Insured State OMB Number: 3064–0018. Form Numbers: None. nonmember banks.

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Estimated Number of Respondents: request for OMB review and renewal of regulation is also designed to ensure Initial notice, 208; annual notice and the collections of information described that insured State nonmember banks change in terms 5,138; opt-out notice, below: maintain adequate records and controls 873. DATES: Comments must be submitted on with respect to the securities Estimated Average Time per or before June 25, 2009. transactions they effect. Response: Initial notice, 80 hours; ADDRESSES: Interested parties are 2. Title: Certification of Compliance annual notice and change in terms, 8 invited to submit written comments to with Mandatory Bars to Employment. hours; opt-out notice, 8 hours. FDIC by any of the following methods. OMB Number: 3064–0121. Estimated Number of Responses: All comments should refer to the name Form Number: FDIC 7300/06. 328,600. of the collection as well as the OMB Frequency of Response: On occasion. Total Annual Burden: 64,728 hours. Affected Public: Business or other General Description of Collection: The control number(s): • Web site: http://www.FDIC.gov/ financial institutions. elements of this collection are required Estimated Number of Respondents: under section 504 of the Gramm-Leach- regulations/laws/federal/notices.html. • E-mail: [email protected]. 600. Bliley Act, Public Law l06–102. The Include the name of the collection in the Estimated Time per Response: 10 collection mandates notice requirements subject line of the message. minutes. and restrictions on a financial • Mail: Herbert J. Messite, Counsel, Total Annual Burden: 99.96 hours. institution’s ability to disclose 202.898.6834, Legal Division, Federal General Description of Collection: nonpublic personal information about Deposit Insurance Corporation, 550 17th Prior to an offer of employment, job consumers to nonaffiliated third parties. Street, NW., Washington, DC 20429. applicants to the FDIC must sign a Request for Comment • Hand Delivery: Comments may be certification that they have not been convicted of a felony or been in other Comments are invited on: (a) Whether hand-delivered to the guard station at circumstances that prohibit person from the collection of information is the rear of the 550 17th Street Building becoming employed by or providing necessary for the proper performance of (located on F Street), on business days services to FDIC. the FDIC’s functions, including whether between 7 a.m. and 5 p.m. the information has practical utility; (b) Public Inspection: All comments Request for Comment the accuracy of the estimates of the received will be posted without change to http://www.fdic.gov/regulations/laws/ Comments are invited on: (a) Whether burden of the information collection, the collections of information are including the validity of the federal/propose.html including any personal information provided. necessary for the proper performance of methodology and assumptions used; (c) the FDIC’s functions, including whether ways to enhance the quality, utility, and Comments may be inspected at the FDIC Public Information Center, Room E– the information has practical utility; (b) clarity of the information to be the accuracy of the estimates of the collected; and (d) ways to minimize the 1002, 3501 Fairfax Drive, Arlington, VA 22226, between 9 a.m. and 5 p.m. on burden of the information collections, burden of the information collection on including the validity of the respondents, including through the use business days. Comments may also be submitted to methodology and assumptions used; (c) of automated collection techniques or ways to enhance the quality, utility, and other forms of information technology. the OMB desk officer for the FDIC: Office of Information and Regulatory clarity of the information to be All comments will become a matter of collected; and (d) ways to minimize the public record. Affairs, Office of Management and Budget, New Executive Office Building, burden of the information collection on Dated at Washington, DC, this 19th day of Room 10235, 727 17th Street, NW., respondents, including through the use May, 2009. Washington, DC 20503. of automated collection techniques or Federal Deposit Insurance Corporation. FOR FURTHER INFORMATION CONTACT: other forms of information technology. Robert E. Feldman, Herbert J. Messite at the address All comments will become a matter of Executive Secretary. identified above. public record. [FR Doc. E9–12043 Filed 5–22–09; 8:45 am] SUPPLEMENTARY INFORMATION: Proposal Dated at Washington, DC, this 19th day of BILLING CODE 6714–01–P to renew the following currently May, 2009. approved collections of information: Federal Deposit Insurance Corporation. 1. Title: Recordkeeping and Robert E. Feldman, FEDERAL DEPOSIT INSURANCE Confirmation Requirements for Executive Secretary. CORPORATION Securities Transactions. [FR Doc. E9–12045 Filed 5–22–09; 8:45 am] OMB Number: 3064–0028. Agency Information Collection BILLING CODE 6714–01–P Frequency of Response: On occasion. Activities: Submission for OMB Affected Public: Business or other Review; Comment Request financial institutions. FEDERAL RESERVE SYSTEM AGENCY: Federal Deposit Insurance Estimated Number of Respondents: Corporation (FDIC). 4470. Notice of Proposals to Engage in ACTION: Notice of information Estimated Time per Response: 27.91 Permissible Nonbanking Activities or collections to be submitted to OMB for hours. to Acquire Companies that are review and approval under the Total Annual Burden: 124,758 hours. Engaged in Permissible Nonbanking Paperwork reduction Act of 1995. General Description of Collection: The Activities information collection requirements are SUMMARY: In accordance with contained in 12 CFR part 344. The The companies listed in this notice requirements of the Paperwork regulation’s purpose is to ensure that have given notice under section 4 of the reduction Act of 1995 (44 U.S.C. chapter purchasers of securities in transactions Bank Holding Company Act (12 U.S.C. 35), the FDIC hereby gives notice that it affected by insured state nonmember 1843) (BHC Act) and Regulation Y (12 plans to submit to the Office of banks are provided with adequate CFR Part 225) to engage de novo, or to Management and Budget (OMB) a records concerning the transactions. The acquire or control voting securities or

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assets of a company, including the U.S.C. Chapter 35), the Federal the clause. The Accident Prevention companies listed below, that engages Acquisition Regulation (FAR), Plan, for projects that are hazardous or either directly or through a subsidiary or Regulatory Secretariat will be of long duration, is analyzed by the other company, in a nonbanking activity submitting to the Office of Management contracting officer along with the that is listed in § 225.28 of Regulation Y and Budget (OMB) a request to review agency safety representatives to (12 CFR 225.28) or that the Board has and approve a reinstatement of a determine if the proposed plan will determined by Order to be closely previously approved information meet the requirements of safety related to banking and permissible for collection requirement concerning regulations and applicable statutes. The bank holding companies. Unless Accident Prevention Plans and Accident Prevention Plan is placed in otherwise noted, these activities will be Recordkeeping. the official contract file by the conducted throughout the United States. Public comments are particularly contracting officer for reference. Each notice is available for inspection invited on: Whether this collection of at the Federal Reserve Bank indicated. information is necessary; whether it will B. Annual Reporting Burden The notice also will be available for have practical utility; whether our Respondents: 2,106. inspection at the offices of the Board of estimate of the public burden of this Responses per Respondent: 2. Governors. Interested persons may collection of information is accurate, Annual Responses: 4,212. express their views in writing on the and based on valid assumptions and Hours per Response: 2. question whether the proposal complies methodology; ways to enhance the Total Burden Hours: 8,424. with the standards of section 4 of the quality, utility, and clarity of the Obtaining Copies of Proposals: BHC Act. Additional information on all information to be collected; and ways in Requesters may obtain a copy of the bank holding companies may be which we can minimize the burden of information collection documents from obtained from the National Information the collection of information on those the General Services Administration, Center website at www.ffiec.gov/nic/. who are to respond, through the use of Regulatory Secretariat (VPR), Room Unless otherwise noted, comments appropriate technological collection 4041, 1800 F Street, NW., Washington, regarding the applications must be techniques or other forms of information DC 20405, telephone (202) 501–4755. received at the Reserve Bank indicated technology. Please cite OMB Control No. 9000–0060, or the offices of the Board of Governors DATES: Submit comments on or before Accident Prevention Plans and not later than June 9, 2009. July 27, 2009. Recordkeeping, in all correspondence. A. Federal Reserve Bank of Chicago (Colette A. Fried, Assistant Vice ADDRESSES: Submit comments regarding Dated: May 19, 2009. President) 230 South LaSalle Street, this burden estimate or any other aspect Edward Loeb, Chicago, Illinois 60690–1414: of this collection of information, Acting Director, Office of Acquisition Policy. 1. West Suburban Bancorp, Inc., including suggestions for reducing this [FR Doc. E9–12071 Filed 5–22–09; 8:45 am] burden, to: General Services Lombard, Illinois; to engage de novo in BILLING CODE 6820–EP–P extending credit and servicing loans, Administration, Regulatory Secretariat pursuant to section 225.28(b)(1) of (VPR), 1800 F Street, NW., Room 4041, Regulation Y. Washington, DC 20405. Please cite OMB Control No. 9000–0060, Accident DEPARTMENT OF HEALTH AND Board of Governors of the Federal Reserve HUMAN SERVICES System, May 20, 2009. Prevention Plans and Recordkeeping, in all correspondence. Robert deV. Frierson, HIT Standards Committee Schedule for FOR FURTHER INFORMATION CONTACT: Deputy Secretary of the Board. Mr. the Assessment of HIT Policy Ernest Woodson, Procurement Analyst, [FR Doc. E9–12110 Filed 5–22–09; 8:45 am] Committee Recommendations Contract Policy Division, GSA, BILLING CODE 6210–01–S telephone (202) 501–3775. AGENCY: Office of the National SUPPLEMENTARY INFORMATION: Coordinator for Health Information Technology (ONC), HHS. DEPARTMENT OF DEFENSE A. Purpose ACTION: Notice. GENERAL SERVICES The FAR clause at 52.236–13, SUMMARY: Section 3003(b)(3) of the ADMINISTRATION Accident Prevention requires Federal construction contractors to keep records American Recovery and Reinvestment Act of 2009 mandates that the HIT NATIONAL AERONAUTICS AND of accidents incident to work performed Standards Committee develop a SPACE ADMINISTRATION under the contract that result in death, traumatic injury, occupational disease schedule for the assessment of policy [OMB Control No. 9000–0060] or damage to property, materials, recommendations developed by the HIT supplies or equipment. Records of Policy Committee and publish it in the Federal Acquisition Regulation; personal inquiries are required by Federal Register. This notice fulfills the Information Collection; Accident OSHA (OMB Control No. 1220–0029). requirements of Section 3003(b)(3) and Prevention Plans and Recordkeeping The records maintained by the shall be updated at least annually. AGENCY: Department of Defense (DOD), contractor are used to evaluate In anticipation of receiving General Services Administration (GSA), compliance and may be used in recommendations originally developed and National Aeronautics and Space workmen’s compensation cases. The by the HIT Policy Committee, the Administration (NASA). FAR requires records of damage to Standards Committee has created three ACTION: Notice of request for property, materials, supplies or (3) workgroups or subcommittees to reinstatement of an information equipment to provide background analyze the areas of clinical quality, collection requirement regarding an information when claims are brought clinical operations, and privacy and existing OMB clearance. against the Government. security. If the contract involves work of a long HIT Standards Committee Schedule SUMMARY: Under the provisions of the duration, the contractor must submit a for the Assessment of HIT Policy Paperwork Reduction Act of 1995 (44 written proposed plan for implementing Committee Recommendations:

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The National Coordinator will Dated: May 18, 2009. all substance abuse treatment facilities establish priority areas based in part of David Blumenthal, known to SAMHSA. The N–SSATS is recommendations received from the HIT National Coordinator for Health Information an annual survey of all substance abuse Policy Committee regarding health Technology, Office of the National treatment facilities listed in the I–SATS. information technology standards, Coordinator for Health Information The TEDS is a compilation of client- implementation specifications, and/or Technology. level admission data and discharge data certification criteria. Once the HIT [FR Doc. E9–12175 Filed 5–20–09; 4:15 pm] submitted by States on clients treated in Standards Committee is informed of BILLING CODE 4150–45–P facilities that receive State funds. those priority areas, it will: Together, the three DASIS components provide information on the location, (A) Direct the appropriate DEPARTMENT OF HEALTH AND scope and characteristics of all known subcommittee to develop a report for the HUMAN SERVICES drug and alcohol treatment facilities in HIT Standards Committee, to the extent the United States, the number of possible, within 90 days, which will Substance Abuse and Mental Health persons in treatment, and the include among other items the Services Administration characteristics of clients receiving following: Agency Information Collection services at publicly-funded facilities. (1) An assessment of what standards, Activities: Proposed Collection; This information is needed to assess the implementation specifications, and Comment Request nature and extent of these resources, to certification criteria are currently identify gaps in services, to provide a available to meet the priority area; In compliance with Section database for treatment referrals, and to (2) an assessment of where gaps exist 3506(c)(2)(A) of the Paperwork assess demographic and substance- (i.e., no standard is available or Reduction Act of 1995 concerning related trends in treatment. In addition, harmonization is required because more opportunity for public comment on several National Outcome Measures than one standard exists) and identify proposed collections of information, the (NOMS) data elements are collected in potential organizations that have the Substance Abuse and Mental Health TEDS to assess the performance of the capability to address those gaps; and Services Administration (SAMHSA) Substance Abuse Prevention and will publish periodic summaries of Treatment (SAPT) Block Grant. (3) a timeline, which will also account proposed projects. To request more The request for OMB approval will for NIST testing where appropriate, for information on the proposed projects or include a request to conduct the 2010 the HIT Standards Committee to issue to obtain a copy of the information through 2012 N–SSATS and Mini–N– recommendation(s) to the National collection plans, call the SAMHSA SSATS. The Mini–N–SSATS is a Coordinator. Reports Clearance Officer on (240) 276– procedure for collecting services data (B) Upon receipt of a subcommittee 1243. from newly identified facilities between report, the HIT Standards Committee Comments are invited on: (a) Whether main cycles of the survey and will be will: the proposed collections of information used to improve the listing of treatment (1) accept the timeline provided by are necessary for the proper facilities in the on-line treatment facility the subcommittee, and if necessary, performance of the functions of the Locator. The N–SSATS questionnaire is revise it; and agency, including whether the expected to remain unchanged except information shall have practical utility; for minor modifications to wording. If (2) assign subcommittee(s) to conduct (b) the accuracy of the agency’s estimate there is a need for substantial revision research and solicit testimony, where of the burden of the proposed collection to the N–SSATS questionnaire during appropriate, and issue of information; (c) ways to enhance the the period of this clearance, a recommendations to the full committee, quality, utility, and clarity of the supplemental request for clearance will in a timely manner. information to be collected; and (d) be submitted. (C) Advise the National Coordinator, ways to minimize the burden of the The OMB request will also include consistent with the accepted timeline in collection of information on the collection of TEDS data, including (B)(1) and after NIST testing, where respondents, including through the use the addition of two new NOMS data appropriate, on standards, of automated collection techniques or elements to the TEDS client-level implementation specifications, and/or other forms of information technology. record. To the extent that states already certification criteria, for the National collect the elements from their Proposed Project: Drug and Alcohol Coordinator’s review and possible treatment providers, the following Services Information System (DASIS)— endorsement to the Secretary of Health elements will be included in the TEDS (OMB No. 0930–0106)—Revision and Human Services. data collection: Frequency of attendance The DASIS consists of three related at self-help programs in past 30 days at FOR FURTHER INFORMATION CONTACT: data systems: The Inventory of admission; and frequency of attendance ONC/HHS, Judith Sparrow, (202) 205– Substance Abuse Treatment Services (I– at self-help programs in past 30 days at 4528. SATS ); the National Survey of discharge. No significant changes are Authority: The American Recovery and Substance Abuse Treatment Services expected in the other DASIS activities. Reinvestment Act of 2009 (Pub. L. 111–5), (N–SSATS), and the Treatment Episode Estimated annual burden for the section 3003. Data Set (TEDS). The I–SATS includes DASIS activities is shown below:

Responses Type of respondent and activity Number of per Hours per Total burden respondents respondent response hours

STATES

TEDS Admission Data ...... 52 4 6 1,248 TEDS Discharge Data ...... 52 4 8 1,664

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Responses Type of respondent and activity Number of per Hours per Total burden respondents respondent response hours

TEDS Discharge Crosswalks ...... 5 1 10 50 I–SATS Update 1 ...... 56 70 .08 314

State Subtotal ...... 56 ...... 3,276

FACILITIES

I–SATS Update 2 ...... 200 1 .08 16 N–SSATS questionnaire ...... 17,000 1 .67 11,390 Augmentation screener ...... 1,000 1 .08 80 Mini–N–SSATS ...... 2,000 1 .42 840

Facility Subtotal ...... 20,200 ...... 12,326

TOTAL ...... 20,256 ...... 15,602 1 States forward to SAMHSA information on newly licensed/approved facilities and on changes in facility name, address, status, etc. This is submitted electronically by nearly all States. 2 Facilities forward to SAMHSA information on new facilities and on changes to existing facilities. This is submitted by e-mail by nearly all facilities.

Send comments to Summer King, and report this information is found in of the product presented with this SAMHSA Reports Clearance Officer, the Personal Responsibility and Work submittal. Room 7–1044, One Choke Cherry Road, Opportunity Reconciliation Act of 1996 The American Recovery and Rockville, MD 20857 AND e-mail her a (PRWORA), Public Law 104–193. Tribal Reinvestment Act (ARRA) of 2009, copy at [email protected]. entities with approved Tribal plans for Public Law 111–5 has authorized Written comments should be received implementation of the TANF program emergency TANF funds to be awarded within 60 days of this notice. are required by Section 412(h) of the to States, Tribes, and Territories who Dated: May 14, 2009. Social Security Act to report financial meet certain eligibility requirements Elaine Parry, data. Form ACF–196T provides for the written in the legislation. TANF Policy collection of data regarding Federal Announcement TANF–ACF–PA–2009– Director, Office of Program Services. expenditures. Failure to collect this data 01 provides additional guidance on [FR Doc. E9–12122 Filed 5–22–09; 8:45 am] would seriously compromise the eligibility requirements. Recipients of BILLING CODE 4162–20–P Administration for Children and ARRA funds are to report spending and Families’ (ACF) ability to monitor performance data to Federal agencies expenditures. This information is also DEPARTMENT OF HEALTH AND quarterly for posting on the public Web used to estimate outlays and may be HUMAN SERVICES site, ‘‘Recovery.gov.’’ Federal agencies used to prepare ACF budget are required to collect ARRA Administration for Children and submissions to Congress. Financial expenditures data and the data must be Families management of the program would be clearly distinguishable from the regular seriously compromised if the TANF (non-ARRA) funds. Therefore, in Proposed Information Collection expenditure data were not collected. order to meet this data collection Activity; Comment Request 45 CFR part 286 subpart E requires requirement, the ACF–196T has been the strictest controls on funding modified with the addition of two line Proposed Projects requirements, which necessities review items and a column to report ARRA Title: Tribal TANF Financial Report of documentation in support of Tribal expenditures. The collection and (ACF–196T). expenditures for reimbursement. posting of this data is to allow the OMB No.: 0970–0345. Comments received from previous public to see where their tax dollars are Description: Tribes use Form ACF– efforts to implement a similar Tribal spent. 196T to report expenditures for the TANF report Form ACF–196T were Respondents: All Tribal TANF Tribal TANF grant. Authority to collect used to guide ACF in the development Agencies.

ANNUAL BURDEN ESTIMATES

Number of Average Instrument Number of responses per burden hours Total burden respondents respondent per Response hours

ACF–196T ...... 56 4 8 1,792

Estimated Total Annual Burden Families is soliciting public comment to the Administration for Children and Hours: 1,792. on the specific aspects of the Families, Office of Administration, In compliance with the requirements information collection described above. Office of Information Services, 370 of Section 506(c)(2)(A) of the Paperwork Copies of the proposed collection of L’Enfant Promenade, SW., Washington, Reduction Act of 1995, the information can be obtained and DC 20447, Attn: ACF Reports Clearance Administration for Children and comments may be forwarded by writing Officer. E-mail address:

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[email protected]. All requests Dated: May 20, 2009. application form eligible for use by should be identified by the title of the Janean Chambers, grant applicants to submit project information collection. Reports Clearance Officer. information in response to ACF program The Department specifically requests [FR Doc. E9–12104 Filed 5–22–09; 8:45 am] announcements. ACF would use this information, along with other OMB- comments on: (a) Whether the proposed BILLING CODE 4184–01–P approved information collections, to collection of information is necessary evaluate and rank applicants and for the proper performance of the DEPARTMENT OF HEALTH AND protect the integrity of the grantee functions of the agency, including HUMAN SERVICES selection process. All ACF discretionary whether the information shall have grant programs would be eligible but not practical utility; (b) the accuracy of the Administration for Children and required to use this application form. agency’s estimate of the burden of the Families The application consists of general proposed collection of information; (c) information and instructions; the the quality, utility, and clarity of the Proposed Information Collection Standard Form 424 series that requests information to be collected; and (d) Activity; Comment Request basic information, budget information ways to minimize the burden of the Proposed Projects and assurances; the Project Description collection of information on requesting the applicant to describe how respondents, including through the use Title: ACF Uniform Project these objectives will be achieved; along of automated collection techniques or Description. with assurances and certifications. other forms of information technology. OMB No.: 0970–0139. Guidance for the content of information Consideration will be given to Description: The Administration for requested in the Project Description is comments and suggestions submitted Children and Families (ACF) has more found in OMB Circular A–102 and 45 within 60 days of this publication. than 40 discretionary grant programs. CFR Part 74. The proposed information collection Respondents: Applicants for ACF form would be a uniform discretionary Discretionary Grant Programs.

ANNUAL BURDEN ESTIMATES

Number of Average Instrument Number of responses per burden hours Total burden respondents respondent per response hours

UPD ...... 11,588 1 40 463,520

Estimated Total Annual Burden respondents, including through the use continued recognition as a national Hours: 463,520. of automated collection techniques or accrediting organization for ambulatory In compliance with the requirements other forms of information technology. surgical centers (ASCs) that wish to of Section 506(c)(2)(A) of the Paperwork Consideration will be given to participate in the Medicare or Medicaid Reduction Act of 1995, the comments and suggestions submitted programs. The statute requires that we Administration for Children and within 60 days of this publication. publish, within 60 days of receipt of an Families is soliciting public comment Dated: May 20, 2009. organization’s complete application, a on the specific aspects of the notice identifying the national Janean Chambers, information collection described above. accrediting body making the request, Copies of the proposed collection of Reports Clearance Officer. describing the nature of the request, and information can be obtained and [FR Doc. E9–12093 Filed 5–22–09; 8:45 am] providing at least a 30-day public comments may be forwarded by writing BILLING CODE 4184–01–P comment period. to the Administration for Children and DATES: To be assured consideration, Families, Office of Administration, comments must be received at one of DEPARTMENT OF HEALTH AND Office of Information Services, 370 the addresses provided below, no later HUMAN SERVICES L’Enfant Promenade, SW., Washington, than 5 p.m. on June 25, 2009. DC 20447, Attn: ACF Reports Clearance Centers for Medicare and Medicaid ADDRESSES: In commenting, please refer Officer. E-mail address: Services to file code CMS–2487–PN. Because of [email protected]. All requests staff and resource limitations, we cannot should be identified by the title of the [CMS–2487–PN] accept comments by facsimile (FAX) information collection. Medicare and Medicaid Programs; transmission. The Department specifically requests You may submit comments in one of Application by the American comments on: (a) Whether the proposed four ways (please choose only one of the Osteopathic Association for Continued collection of information is necessary ways listed): for the proper performance of the Deeming Authority for Ambulatory 1. Electronically. You may submit functions of the agency, including Surgical Centers electronic comments on this regulation whether the information shall have AGENCY: Centers for Medicare & to http://www.regulations.gov. Follow practical utility; (b) the accuracy of the Medicaid Services, HHS. the instructions under the ‘‘More Search agency’s estimate of the burden of the ACTION: Proposed notice. Options’’ tab. proposed collection of information; (c) 2. By regular mail. You may mail the quality, utility, and clarity of the SUMMARY: This proposed notice written comments to the following information to be collected; and (d) acknowledges the receipt of a deeming address ONLY: Centers for Medicare & ways to minimize the burden of the application from the American Medicaid Services, Department of collection of information on Osteopathic Association (AOA) for Health and Human Services, Attention:

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CMS–2487–PN, P.O. Box 8010, www.regulations.gov. Follow the search exceed Medicare requirements, any Baltimore, MD 21244–8010. instructions on that Web site to view provider entity accredited by the Please allow sufficient time for mailed public comments. national accrediting body’s approved comments to be received before the Comments received timely will also program would be deemed to meet the close of the comment period. be available for public inspection as Medicare conditions. A national 3. By express or overnight mail. You they are received, generally beginning accrediting organization applying for may send written comments to the approximately 3 weeks after publication deeming authority under part 488, following address ONLY: Centers for of a document, at the headquarters of subpart A, must provide us with Medicare & Medicaid Services, the Centers for Medicare & Medicaid reasonable assurance that the Department of Health and Human Services, 7500 Security Boulevard, accrediting organization requires the Services, Attention: CMS–2487–PN, Baltimore, Maryland 21244, Monday accredited provider entities to meet Mail Stop C4–26–05, 7500 Security through Friday of each week from 8:30 requirements that are at least as Boulevard, Baltimore, MD 21244–1850. a.m. to 4 p.m. To schedule an stringent as the Medicare conditions. 4. By hand or courier. If you prefer, appointment to view public comments, Our regulations concerning the you may deliver (by hand or courier) phone 1–800–743–3951. reapproval of accrediting organizations your written comments before the close I. Background are set forth at § 488.4 and § 488.8(d)(3). of the comment period to either of the The regulations at § 488.8(d)(3) require following addresses: Under the Medicare program, eligible accrediting organizations to reapply for a. For delivery in Washington, DC— beneficiaries may receive covered continued deeming authority every 6 Centers for Medicare & Medicaid services from an ambulatory surgical years or sooner as determined by us. center (ASC) provided certain Services, Department of Health and II. Approval of Deeming Organizations Human Services, Room 445–G, Hubert requirements are met. Section H. Humphrey Building, 200 1832(a)(2)(F)(i) of the Social Security Section 1865(a)(2) of the Act and our Independence Avenue, SW., Act (the Act) establishes distinct criteria regulations at § 488.8(a) require that our Washington, DC 20201. for facilities seeking designation as an findings concerning review and (Because access to the interior of the ASC. Regulations concerning provider reapproval of a national accrediting Hubert H. Humphrey Building is not agreements are at 42 CFR part 489 and organization’s requirements consider, readily available to persons without those pertaining to activities relating to among other factors, the applying Federal government identification, the survey and certification of facilities accrediting organization’s: requirements commenters are encouraged to leave are at 42 CFR part 488. The regulations for accreditation; survey procedures; their comments in the CMS drop slots at 42 CFR part 416 specify the resources for conducting required located in the main lobby of the conditions that an ASC must meet in surveys; capacity to furnish information order to participate in the Medicare building. A stamp-in clock is available for use in enforcement activities; program, the scope of covered services, for persons wishing to retain a proof of monitoring procedures for provider and the conditions for Medicare filing by stamping in and retaining an entities found not in compliance with payment for ASCs. extra copy of the comments being filed.) the conditions or requirements; and Generally, in order to enter into a b. For delivery in Baltimore, MD— ability to provide us with the necessary provider agreement with the Medicare Centers for Medicare & Medicaid data for validation. program, an ASC must first be certified Services, Department of Health and Section 1865(a)(3)(A) of the Act by a State survey agency as complying Human Services, 7500 Security further requires that we publish, within with the conditions or requirements set Boulevard, Baltimore, MD 21244–1850. 60 days of receipt of an organization’s forth in part 416 of our regulations. If you intend to deliver your complete application, a notice Thereafter, the ASC is subject to regular comments to the Baltimore address, identifying the national accrediting surveys by a State survey agency to please call telephone number (410) 786– body making the request, describing the determine whether it continues to meet 9994 in advance to schedule your nature of the request, and providing at these requirements. There is an arrival with one of our staff members. least a 30-day public comment period. alternative, however, to surveys by State Comments mailed to the addresses We have 210 days from the receipt of a agencies. complete application to publish notice indicated as appropriate for hand or Section 1865(a)(1) of the Act (as courier delivery may be delayed and of approval or denial of the application. redesignated under section 125 of the The purpose of this proposed notice received after the comment period. Medicare Improvements for Patients and For information on viewing public is to inform the public of AOA’s request Providers Act of 2008 (MIPPA) (Pub. L. comments, see the beginning of the for continued deeming authority for 110–275)) provides that, if a provider ASCs. This notice also solicits public SUPPLEMENTARY INFORMATION section. entity demonstrates through comment on whether AOA’s FOR FURTHER INFORMATION CONTACT: accreditation by an approved national requirements meet or exceed the Cindy Melanson, (410) 786–0310. accrediting organization that all Medicare conditions for coverage (CfC) Patricia Chmielewski, (410) 786–6899. applicable Medicare conditions are met for ASCs. SUPPLEMENTARY INFORMATION: or exceeded, we will deem those Inspection of Public Comments: All provider entities as having met the III. Evaluation of Deeming Authority comments received before the close of requirements. (We note that section 125 Request the comment period are available for of MIPPA redesignated subsections (b) AOA submitted all the necessary viewing by the public, including any through (e) of subsection 1865 of the Act materials to enable us to make a personally identifiable or confidential as (a) through (d) respectively.) determination concerning its request for business information that is included in Accreditation by an accrediting reapproval as a deeming organization a comment. We post all comments organization is voluntary and is not for ASCs. This application was received before the close of the required for Medicare participation. determined to be complete on April 6, comment period on the following Web If an accrediting organization is 2009. Under Section 1865(a)(2) of the site as soon as possible after they have recognized by the Secretary as having Act and our regulations at § 488.8 been received: http:// standards for accreditation that meet or (Federal review of accrediting

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organizations), our review and able to acknowledge or respond to them Cancer Control, National Institutes of Health, evaluation of AOA will be conducted in individually. We will consider all HHS) accordance with, but not necessarily comments we receive by the date and Dated: May 18, 2009. limited to, the following factors: time specified in the DATES section of Jennifer Spaeth, • The equivalency of AOA’s this preamble, and, when we proceed standards for an ASC as compared with Director, Office of Federal Advisory with a subsequent document, we will Committee Policy. CMS’ ASC conditions for coverage. respond to the comments in the [FR Doc. E9–12201 Filed 5–22–09; 8:45 am] • AOA’s survey process to determine preamble to that document. the following: BILLING CODE 4140–01–P (Catalog of Federal Domestic Assistance —The composition of the survey team, Program No. 93.778, Medical Assistance surveyor qualifications, and the Program; No. 93.773 Medicare—Hospital DEPARTMENT OF HEALTH AND ability of the organization to provide Insurance Program; and No. 93.774, HUMAN SERVICES continuing surveyor training. Medicare—Supplementary Medical Insurance Program) —The comparability of AOA’s processes Centers for Disease Control and to those of State agencies, including Dated: April 30, 2009. Prevention survey frequency, and the ability to Charlene Frizzera, investigate and respond appropriately Acting Administrator, Centers for Medicare Healthcare Infection Control Practices to complaints against accredited & Medicaid Services. Advisory Committee, (HICPAC) facilities. [FR Doc. E9–12109 Filed 5–22–09; 8:45 am] —AOA’s processes and procedures for BILLING CODE 4120–01–P In accordance with section 10(a) (2) of monitoring ASCs found out of the Federal Advisory Committee Act compliance with AOA’s program (Pub. L. 92–463), the Centers for Disease requirements. These monitoring DEPARTMENT OF HEALTH AND Control and Prevention (CDC) procedures are used only when AOA HUMAN SERVICES announces the following meeting for the identifies noncompliance. If aforementioned committee: noncompliance is identified through National Institutes of Health validation reviews, the State survey Times and Dates: 9 a.m.–5 p.m., June 15, agency monitors corrections as National Cancer Institute; Notice of 2009. 9 a.m.–12 p.m., June 16, 2009. Place: CDC, Tom Harkin Global specified at § 488.7(d). Closed Meeting —AOA’s capacity to report deficiencies Communications Center (Building 19), Pursuant to section 10(d) of the Auditorium B3, 1600 Clifton Road, Atlanta, to the surveyed facilities and respond Federal Advisory Committee Act, as Georgia 30333. to the facility’s plan of correction in amended (5 U.S.C. App.), notice is Status: Open to the public, limited only by a timely manner. hereby given of the following meeting. the space available. —AOA’s capacity to provide us with The meeting will be closed to the Purpose: The Committee is charged with electronic data and reports necessary public in accordance with the providing advice and guidance to the for effective validation and provisions set forth in sections Secretary, the Assistant Secretary for Health, assessment of the organization’s 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., the Director, CDC, and the Director, National survey process. as amended. The grant applications and Center for Preparedness, Detection, and —The adequacy of AOA’s staff and the discussions could disclose Control of Infectious Diseases (NCPDCID), other resources, and its financial confidential trade secrets or commercial regarding: (1) The practice of hospital viability. property such as patentable material, infection control; (2) strategies for —AOA’s capacity to adequately fund and personal information concerning surveillance, prevention, and control of required surveys. infections (e.g., nosocomial infections), individuals associated with the grant —AOA’s policies with respect to antimicrobial resistance, and related events applications, the disclosure of which whether surveys are announced or in settings where healthcare is provided; and unannounced, to assure that surveys would constitute a clearly unwarranted (3) periodic updating of guidelines and other are unannounced. invasion of personal privacy. policy statements regarding prevention of —AOA’s agreement to provide us with Name of Committee: National Cancer healthcare-associated infections and a copy of the most current Institute Initial Review Group, Subcommittee healthcare-related conditions. accreditation survey together with any H—Clinical Groups. Matters to be Discussed: The agenda will other information related to the Date: July 20–21, 2009. include a follow up discussion of Health and Time: 8 a.m. to 8 p.m. Human Services Healthcare-Associated survey as we may require (including Agenda: To review and evaluate grant corrective action plans). Infections (HAI) elimination plan, Norovirus applications. Guideline, and Healthcare Personnel IV. Collection of Information Place: Bethesda Marriott, 5151 Pooks Hill Infection Control Guideline. Road, Bethesda, MD 20814. Agenda items are subject to change as Requirements Contact Person: Timothy C. Meeker, MD, This document does not impose PhD, Scientific Review Officer, Resources priorities dictate. information collection and and Training Review Branch, Division of Contact Person for More Information: Wendy Vance, Committee Management recordkeeping requirements. Extramural Activities, National Cancer Institute, 6116 Executive Boulevard, Room Specialist, Division of Healthcare Quality Consequently, it need not be reviewed Promotion, NCPDCID, CDC, l600 Clifton by the Office of Management and 8103, Bethesda, MD 20892. (301) 594–1279. [email protected]. Road, NE., Mailstop A–07, Atlanta, Georgia Budget under the authority of the 30333 Telephone (404) 639–2891. Paperwork Reduction Act of 1995 (44 (Catalogue of Federal Domestic Assistance Program Nos. 93.392, Cancer Construction; The Director, Management Analysis and U.S.C. 35). 93.393, Cancer Cause and Prevention Services Office, has been delegated the V. Response to Comments Research; 93.394, Cancer Detection and authority to sign Federal Register notices Diagnosis Research; 93.395, Cancer pertaining to announcements of meetings and Because of the large number of public Treatment Research; 93.396, Cancer Biology other committee management activities, for comments we normally receive on Research; 93.397, Cancer Centers Support; both CDC and the Agency for Toxic Federal Register documents, we are not 93.398, Cancer Research Manpower; 93.399, Substances and Disease Registry.

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Dated: May 18, 2009. pertaining to announcements of meetings and Committee Management Officer, Office of Elaine L. Baker, other committee management activities for Extramural Research, Education and Priority Director, Management Analysis and Services both CDC and the Agency for Toxic Populations, AHRQ, 540 Gaither Road, Room Office, Centers for Disease Control and Substances and Disease Registry. 2038, Rockville, Maryland 20850, Telephone Prevention (CDC). Dated: May 18, 2009. (301) 427–1554. [FR Doc. E9–12119 Filed 5–22–09; 8:45 am] Elaine L. Baker, Agenda items for this meeting are subject BILLING CODE 4163–18–P Director, Management Analysis and Services to change as priorities dictate. Office, Centers for Disease Control and Dated: May 15, 2009. Prevention. Carolyn M. Clancy, DEPARTMENT OF HEALTH AND [FR Doc. E9–12120 Filed 5–22–09; 8:45 am] Director. HUMAN SERVICES BILLING CODE 4163–18–P [FR Doc. E9–12068 Filed 5–22–09; 8:45 am] Centers for Disease Control and BILLING CODE 4160–90–M Prevention DEPARTMENT OF HEALTH AND HUMAN SERVICES National Center for Injury Prevention DEPARTMENT OF HEALTH AND and Control Initial Review Group, Agency for Healthcare Research and HUMAN SERVICES (NCIPC IRG) Quality In accordance with section 10(a)(2) of National Institutes of Health the Federal Advisory Committee Act Notice of Meeting Eunice Kennedy Shriver National (Pub. L. 92–463), the Centers for Disease In accordance with section 10(d) of Control and Prevention (CDC) announce Institute of Child Health & Human the Federal Advisory Committee Act (5 the following teleconference meetings: Development; Notice of Closed U.S.C., Appendix 2), announcement is Meeting Times and Dates: made of a Health Care Policy and 12:30 p.m.–12:45 p.m., June 22, 2009 (Open). Research Special Emphasis Panel (SEP) Pursuant to section 10(d) of the 12:45 p.m.–7 p.m., June 22, 2009 (Closed). meeting. Federal Advisory Committee Act, as 9 a.m.–9:15 a.m., June 23, 2009 (Open). A Special Emphasis Panel is a group amended (5 U.S.C. App.), notice is 9:15 a.m.–5 p.m., June 23, 2009 (Closed). of experts in fields related to health care hereby given of the following meeting. 9 a.m.–9:15 a.m., June 24, 2009 (Open). research who are invited by the Agency 9:15 a.m.–5 p.m., June 24, 2009 (Closed). for Healthcare Research and Quality The meeting will be closed to the 9 a.m.–9:15 a.m., June 25, 2009 (Open). (AHRQ), and agree to be available, to public in accordance with the 9:15 a.m.–5 p.m., June 25, 2009 (Closed). provisions set forth in sections Place: Teleconference, Toll Free: 877–468– conduct on an as needed basis, 4185, Participant Pass Code: 3772769. scientific reviews of applications for 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Status: Portions of the meeting will be AHRQ support. Individual members of as amended. The contract proposals and closed to the public in accordance with the Panel do not attend regularly- the discussions could disclose provisions set forth in Section 552b(c)(4) and scheduled meetings and do not serve for confidential trade secrets or commercial (6), Title 5, U.S.C., and the Determination of fixed terms or a long period of time. property such as patentable material, the Director, Management Analysis and Rather, they are asked to participate in and personal information concerning Services Office, CDC, pursuant to Section 10(d) of Public Law 92–463. particular review meetings which individuals associated with the contract Purpose: This group is charged with require their type of expertise. proposals, the disclosure of which providing advice and guidance to the Substantial segments of the upcoming would constitute a clearly unwarranted Secretary, Department of Health and Human SEP meeting listed below will be closed invasion of personal privacy. Services, and the Director, CDC, concerning to the public in accordance with the the scientific and technical merit of grant and Federal Advisory Committee Act, Name of Committee: National Institute of cooperative agreement applications received section 10(d) of 5 U.S.C., Appendix 2 Child Health and Human Development Special Emphasis Panel; Pediatric Functional from academic institutions and other public and 5 U.S.C. 552b(c)(6). Grant Neuroimaging Research Network. and private profit and nonprofit applications for the Accelerating organizations, including State and local Date: June 26, 2009. Development of Methods for the Study government agencies, to conduct specific Time: 8 a.m. to 4 p.m. of Complex Patients (R21) applications injury research that focuses on prevention Agenda: To review and evaluate contract and control. are to be reviewed and discussed at this proposals Matters To Be Discussed: The meetings meeting. These discussions are likely to Place: Hyatt Regency Bethesda, One will include the review, discussion, and reveal personal information concerning Bethesda Metro Center, 7400 Wisconsin evaluation of applications submitted in individuals associated with the response to Fiscal Year 2009 Requests for Avenue, Bethesda, MD 20814. applications. This information is Contact Person: Sathasiva B. Kandasamy, Applications related to the following exempt from mandatory disclosure individual research announcement: RFA– PhD, Scientific Review Administrator, EH–09–001 Climate Change: Environmental under the above-cited statutes. Division of Scientific Review, National Impact on Human Health (U01). SEP Meeting on: Accelerating Development Institute of Child Health and Human Agenda items are subject to change as of Methods for the Study of Complex Patients Development, 6100 Executive Boulevard, priorities dictate. (R21). Room 5B01, Bethesda, MD 20892–9304, (301) Date: June 23, 2009 (Open on June 23 from CONTACT PERSON FOR MORE INFORMATION: 435–6680, [email protected]. Rick Waxweiler, Ph.D., Director, Extramural 1 p.m. to 1:15 p.m. and closed for the Research Program Office, National Center for remainder of the meeting). (Catalogue of Federal Domestic Assistance Injury Prevention & Control and Executive Place: Agency for Healthcare Research and Program Nos. 93.864, Population Research; Secretary, NCIPC IRG, CDC, 4770 Buford Quality, John Eisenberg Building, Conference 93.865, Research for Mothers and Children; Highway, N.E., M/S F–62, Atlanta, Georgia Center, Rockville, Maryland 20850. 93.929, Center for Medical Rehabilitation 30341, Telephone 770–488-4850. Contact Person: Anyone wishing to obtain Research; 93.209, Contraception and The Director, Management Analysis and a roster of members, agenda or minutes of the Infertility Loan Repayment Program, National Services Office has been delegated the nonconfidential portions of this meeting Institutes of Health, HHS) authority to sign Federal Register notices should contact Mrs. Bonnie Campbell,

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Dated: May 19, 2009. DEPARTMENT OF HEALTH AND Dated: May 19, 2009. Jennifer Spaeth, HUMAN SERVICES Jennifer Spaeth, Director, Office of Federal Advisory Director, Office of Federal Advisory Committee Policy. National Institutes of Health Committee Policy. [FR Doc. E9–12232 Filed 5–22–09; 8:45 am] [FR Doc. E9–12239 Filed 5–22–09; 8:45 am] National Cancer Institute; Notice of BILLING CODE 4140–01–P BILLING CODE 4140–01–P Closed Meeting

Pursuant to section 10(d) of the DEPARTMENT OF HEALTH AND DEPARTMENT OF HEALTH AND Federal Advisory Committee Act, as HUMAN SERVICES HUMAN SERVICES amended (5 U.S.C. App.), notice is hereby given of a meeting of the Board National Institutes of Health National Institutes of Health of Scientific Counselors for Clinical Sciences and Epidemiology National National Institute of Nursing Research; Eunice Kennedy Shriver National Cancer Institute. Notice of Closed Meetings Institute of Child Health & Human Development; Notice of Closed The meeting will be closed to the Pursuant to section 10(d) of the Meeting public as indicated below in accordance Federal Advisory Committee Act, as with the provisions set forth in section amended (5 U.S.C. App.), notice is Pursuant to section 10(d) of the 552b(c)(6), Title 5 U.S.C., as amended hereby given of the following meetings. Federal Advisory Committee Act, as for the review, discussion, and The meetings will be closed to the amended (5 U.S.C. App.), notice is evaluation of individual intramural public in accordance with the programs and projects conducted by the hereby given of the following meeting. provisions set forth in sections National Cancer Institute, including 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., The meeting will be closed to the consideration of personnel as amended. The grant applications and public in accordance with the qualifications and performance, and the the discussions could disclose provisions set forth in sections competence of individual investigators, confidential trade secrets or commercial 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., the disclosure of which would property such as patentable material, as amended. The grant applications and constitute a clearly unwarranted and personal information concerning the discussions could disclose invasion of personal privacy. individuals associated with the grant confidential trade secrets or commercial Name of Committee: Board of Scientific applications, the disclosure of which property such as patentable material, Counselors for Clinical Sciences and would constitute a clearly unwarranted and personal information concerning Epidemiology National Cancer Institute. invasion of personal privacy. individuals associated with the grant Date: July 14, 2009. Name of Committee: National Institute of applications, the disclosure of which Time: 9 a.m. to 4:30 p.m. Nursing Research Special Emphasis Panel. would constitute a clearly unwarranted Agenda: To review and evaluate personal NINR Core Center Grants and Predoctoral qualifications and performance, and invasion of personal privacy. Individual National Research Service competence of individual investigators. Awards. Name of Committee: National Institute of Place: National Institutes of Health, Date: June 19, 2009. Child Health and Human Development Initial National Cancer Institute, 9000 Rockville Time: 10 a.m. to 2 p.m. Review Group, Reproduction, Andrology, Pike, Building 31, Conference Room 10, Agenda: To review and evaluate grant and Gynecology Subcommittee. Bethesda, MD 20892. applications. Contact Person: Brian E. Wojcik, PhD, Date: June 22, 2009. Place: Bethesda Marriott Suites, 6711 Senior Review Administrator, Institute Democracy Boulevard, Bethesda, MD 20817. Time: 8 a.m. to 6 p.m. Review Office, Office of the Director, Agenda: To review and evaluate grant Contact Person: Weiqun Li, MD, Scientific National Cancer Institute, 6116 Executive Review Administrator, National Institute of applications. Boulevard, Room 2201, Bethesda, MD 20892, Nursing Research, National Institutes of Place: Hyatt Regency Bethesda, One (301) 496–7628, [email protected]. Health, 6701 Democracy Blvd., Ste. 710, Bethesda Metro Center, 7400 Wisconsin In the interest of security, NIH has Bethesda, MD 20892. (301) 594–5966. Avenue, Bethesda, MD 20814. instituted stringent procedures for entrance [email protected]. onto the NIH campus. All visitor vehicles, Contact Person: Dennis Leszczynski, PhD, Name of Committee: National Institute of including taxicabs, hotel, and airport shuttles Scientific Review Administrator, Division of Nursing Research Special Emphasis Panel. Scientific Review, National Institute of Child will be inspected before being allowed on Research Program Projects Review. Health and Human Development, NIH, 6100 campus. Visitors will be asked to show one Date: June 24, 2009. form of identification (for example, a Executive Boulevard, Room 5B01, Bethesda, Time: 8 a.m. to 6 p.m. government-issued photo ID, driver’s license, Agenda: To review and evaluate grant MD 20892, (301) 435–2717. or passport) and to state the purpose of their [email protected]. applications. visit. Place: Bethesda Marriott, 5151 Pooks Hill (Catalogue of Federal Domestic Assistance Information is also available on the Road, Bethesda, MD 20814. Program Nos. 93.864, Population Research; Institute’s/Center’s home page: Contact Person: Mario Rinaudo, MD, 93.865, Research for Mothers and Children; deainfo.nci.nih.gov/advisory/bsc.htm, where Scientific Review Administrator, Office of 93.929, Center for Medical Rehabilitation an agenda and any additional information for Review, National Inst of Nursing Research, Research; 93.209, Contraception and the meeting will be posted when available. National Institutes of Health, 6701 Infertility Loan Repayment Program, National (Catalogue of Federal Domestic Assistance Democracy Blvd (DEM 1), Suite 710, Institutes of Health, HHS) Program Nos. 93.392, Cancer Construction; Bethesda, MD 20892. 301–594–5973. 93.393, Cancer Cause and Prevention [email protected]. Dated: May 19, 2009. Research; 93.394, Cancer Detection and Any interested person may file written Jennifer Spaeth, Diagnosis Research; 93.395, Cancer comments with the committee by forwarding Director, Office of Federal Advisory Treatment Research; 93.396, Cancer Biology the statement to the Contact Person listed on Research; 93.397, Cancer Centers Support; Committee Policy. this notice. The statement should include the 93.398, Cancer Research Manpower; 93.399, name, address, telephone number and when [FR Doc. E9–12236 Filed 5–22–09; 8:45 am] Cancer Control, National Institutes of Health, applicable, the business or professional BILLING CODE 4140–01–P HHS) affiliation of the interested person.

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(Catalogue of Federal Domestic Assistance DEPARTMENT OF HEALTH AND National Institutes of Health, 6701 Program Nos. 93.361, Nursing Research, HUMAN SERVICES Rockledge Drive, Bethesda, MD, 20892 National Institutes of Health, HHS) which was published in the Federal Dated: May 19, 2009. National Institutes of Health Register on April 21, 2009, 74 FR 18242–18243. Jennifer Spaeth, Eunice Kennedy Shriver National Director, Office of Federal Advisory The starting time of the meeting on Institute of Child Health & Human June 1, 2009 has been changed to 1:30 Committee Policy. Development; Notice of Closed [FR Doc. E9–12229 Filed 5–22–09; 8:45 am] p.m. until adjournment. The meeting Meeting date and location remains the same. The BILLING CODE 4140–01–P Pursuant to section 10(d) of the meeting is closed to the public. Federal Advisory Committee Act, as Dated: May 18, 2009. DEPARTMENT OF HEALTH AND amended (5 U.S.C. App.), notice is Jennifer Spaeth, HUMAN SERVICES hereby given of the following meeting. Director, Office of Federal Advisory The meeting will be closed to the Committee Policy. National Institutes of Health public in accordance with the [FR Doc. E9–12227 Filed 5–22–09; 8:45 am] provisions set forth in sections BILLING CODE 4140–01–P Eunice Kennedy Shriver National 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Institute of Child Health & Human as amended. The grant applications and Development; Notice of Closed the discussions could disclose DEPARTMENT OF HEALTH AND Meeting confidential trade secrets or commercial HUMAN SERVICES property such as patentable material, Pursuant to section 10(d) of the and personal information concerning National Institutes of Health Federal Advisory Committee Act, as individuals associated with the grant amended (5 U.S.C. App.), notice is applications, the disclosure of which National Institute of Environmental hereby given of the following meeting. would constitute a clearly unwarranted Health Sciences; Notice of Meeting The meeting will be closed to the invasion of personal privacy. Pursuant to section 10(d) of the public in accordance with the Name of Committee: National Institute of Federal Advisory Committee Act, as provisions set forth in sections Child Health and Human Development Initial amended (5 U.S.C. App.), notice is 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Review Group; Biobehavioral and Behavioral hereby given of a meeting of the Board as amended. The contract proposals and Sciences Subcommittee. Date: June 23–24, 2009. of Scientific Counselors, NIEHS. the discussions could disclose The meeting will be open to the confidential trade secrets or commercial Time: 9 a.m. to 5 p.m. Agenda: To review and evaluate grant public as indicated below, with property such as patentable material, applications. attendance limited to space available. and personal information concerning Place: Embassy Suites Washington, DC, Individuals who plan to attend and individuals associated with the contract 1250 22nd Street, NW., Washington, DC need special assistance, such as sign proposals, the disclosure of which 20037. language interpretation or other would constitute a clearly unwarranted Contact Person: Marita R. Hopmann, PhD, reasonable accommodations, should invasion of personal privacy. Scientific Review Administrator, Division of Scientific Review, National Institute of Child notify the Contact Person listed below Name of Committee: National Institute of Health, and Human Development, NIH, 6100 in advance of the meeting. Child Health and Human Development Executive Boulevard, Room 5B01, Bethesda, The meeting will be closed to the Special Emphasis Panel, Brain and Tissue MD 20892, (301) 435–6911, public as indicated below in accordance Bank Repository. [email protected]. with the provisions set forth in section Date: June 24, 2009. (Catalogue of Federal Domestic Assistance 552b(c)(6), Title 5 U.S.C., as amended Time: 1 p.m. to 5 p.m. Program Nos. 93.864, Population Research; for the review, discussion, and Agenda: To review and evaluate contract 93.865, Research for Mothers and Children; evaluation of individual other proposals. 93.929, Center for Medical Rehabilitation Place: National Institutes of Health, 6100 conducted by the National Institute of Research; 93.209, Contraception and Environmental Health Sciences, Executive Boulevard, Room 5B01, Rockville, Infertility Loan Repayment Program, National MD 20852 (Telephone Conference Call). Institutes of Health, HHS) including consideration of personnel Contact Person: Sathasiva B. Kandasamy, qualifications and performance, and the Dated: May 19, 2009. PhD, Scientific Review Administrator, competence of individual investigators, Division Of Scientific Review, National Jennifer Spaeth, the disclosure of which would Institute of Child Health and Human Director, Office of Federal Advisory constitute a clearly unwarranted Development, 6100 Executive Boulevard, Committee Policy. invasion of personal privacy. Room 5B01, Bethesda, MD 20892–9304, (301) [FR Doc. E9–12223 Filed 5–22–09; 8:45 am] 435–6680. [email protected]. Name of Committee: Board of Scientific BILLING CODE 4140–01–P Counselors, NIEHS. (Catalogue of Federal Domestic Assistance Date: June 14–16, 2009. Program Nos. 93.864, Population Research; Closed: June 14, 2009, 7 p.m. to 10 p.m. 93.865, Research for Mothers and Children; DEPARTMENT OF HEALTH AND Agenda: To review and evaluate 93.929, Center for Medical Rehabilitation HUMAN SERVICES programmatic and personnel issues. Research; 93.209, Contraception and Place: Doubletree Guest Suites, 2515 Infertility Loan Repayment Program, National National Institutes of Health Meridian Parkway, Research Triangle Park, Institutes of Health, HHS) NC 27713. Dated: May 19, 2009. Center for Scientific Review; Amended Closed: June 15, 2009, 8 a.m. to 9 a.m. Jennifer Spaeth, Notice of Meeting Agenda: To review and evaluate programmatic and personnel issues. Director, Office of Federal Advisory Notice is hereby given of a change in Place: Nat. Inst. of Environmental Health Committee Policy. the meeting of the Center for Scientific Sciences, 111 T. W. Alexander Drive, [FR Doc. E9–12224 Filed 5–22–09; 8:45 am] Review Special Emphasis Panel, June 1, Executive Conference Room, Research BILLING CODE 4140–01–P 2009, 8 a.m. to June 1, 2009, 6 p.m., Triangle Park, NC 27709.

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Open: June 15, 2009, 9 a.m. to 12:15 p.m. Institutes of Health, P.O. Box 12233, Dated: May 19, 2009. Agenda: An overview of the organization Research Triangle Park, NC 27709. (919) 541– Jennifer Spaeth, and research in the Epidemiology Branch. 4899. [email protected]. Director, Office of Federal Advisory Place: Nat. Inst. of Environmental Health Any interested person may file written Committee Policy. Sciences, Building 101, Rodbell Auditorium, comments with the committee by forwarding 111 T. W. Alexander Drive, Conference the statement to the Contact Person listed on [FR Doc. E9–12240 Filed 5–22–09; 8:45 am] Rooms 101 A, B, and C, Research Triangle this notice. The statement should include the BILLING CODE 4140–01–P Park, NC 27709. name, address, telephone number and when Closed: June 15, 2009, 12:50 p.m. to 1:35 aplicable, the business or professional p.m. affiliation of the interested person. DEPARTMENT OF HEALTH AND Agenda: To review and evaluate (Catalogue of Federal Domestic Assistance HUMAN SERVICES programmatic and personnel issues. Program Nos. 93.115, Biometry and Risk Place: Nat. Inst. of Environmental Health Estimation—Health Risks from Agency for Healthcare Research and Sciences, 111 T. W. Alexander Drive, Environmental Exposures; 93.142, NIEHS Quality Executive Conference Room, Research Hazardous Waste Worker Health and Safety Triangle Park, NC 27709. Training; 93.143, NIEHS Superfund Notice of Meeting Closed: June 15, 2009, 1:35 p.m. to 4:40 Hazardous Substances—Basic Research and p.m. Education; 93.894, Resources and Manpower In accordance with section 10(d) of Agenda: To review and evaluate Development in the Environmental Health the Federal Advisory Committee Act (5 programmatic and personnel issues. Sciences; 93.113, Biological Response to Place: Nat. Inst. of Environmental Health U.S.C., Appendix 2), announcement is Environmental Health Hazards; 93.114, made of a Health Care Policy and Sciences, Building 101, Rodbell Auditorium, Applied Toxicological Research and Testing, 111 T. W. Alexander Drive, Research National Institutes of Health, HHS) Research Special Emphasis Panel (SEP) Triangle Park, NC 27709. meeting. Dated: May 19, 2009. Closed: June 15, 2009, 4:40 p.m. to 5:10 A Special Emphasis Panel is a group p.m. Jennifer Spaeth, of experts in fields related to health care Agenda: To review and evaluate Director, Office of Federal Advisory research who are invited by the Agency programmatic and personnel issues. Committee Policy. for Healthcare Research and Quality Place: Nat. Inst. of Environmental Health [FR Doc. E9–12241 Filed 5–22–09; 8:45 am] Sciences, 111 T. W. Alexander Drive, (AHRQ), and agree to be available, to Executive Conference Room, Research BILLING CODE 4140–01–P conduct on an as needed basis, Triangle Park, NC 27709. scientific reviews of applications for Closed: June 15, 2009, 7:30 p.m. to AHRQ support. Individual members of Adjournment. DEPARTMENT OF HEALTH AND the Panel do not attend regularly- Agenda: To review and evaluate HUMAN SERVICES scheduled meetings and do not serve for programmatic and personnel issues. National Institutes of Health fixed terms or a long period of time. Place: Doubletree Guest Suites, 2515 Rather, they are asked to participate in Meridian Parkway, Research Triangle Park, NC 27713. National Institute of Nursing Research; particular review meetings which Open: June 16, 2009, 8:30 a.m. to 11:25 Notice of Closed Meeting require their type of expertise. a.m. Substantial segments of the upcoming Agenda: Scientific Presentations. Pursuant to section 10(d) of the SEP meeting listed below will be closed Place: Nat. Inst. of Environmental Health Federal Advisory Committee Act, as to the public in accordance with the Sciences, Building 101, Rodbell Auditorium, amended (5 U.S.C. App.), notice is Federal Advisory Committee Act, 111 T. W. Alexander Drive, Conference hereby given of the following meeting. section 10(d) of 5 U.S.C., Appendix 2 Rooms 101 A, B, and C, Research Triangle The meeting will be closed to the and 5 U.S.C. 552b(c)(6). Grant Park, NC 27709. public in accordance with the applications for the Limited Closed: June 16, 2009, 11:25 a.m. to 11:55 provisions set forth in sections Competition Review RFA HS 08–004 a.m. 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., (R18) are to be reviewed and discussed Agenda: To review and evaluate as amended. The grant applications and programmatic and personnel issues. at this meeting. These discussions are the discussions could disclose Place: Nat. Inst. of Environmental Health likely to reveal personal information confidential trade secrets or commercial Sciences, 111 T. W. Alexander Drive, concerning individuals associated with property such as patentable material, Executive Conference Room, Research the applications. This information is and personal information concerning Triangle Park, NC 27709. exempt from mandatory disclosure Closed: June 16, 2009, 12:45 p.m. to 2:15 individuals associated with the grant under the above-cited statutes. p.m. applications, the disclosure of which Agenda: To review and evaluate would constitute a clearly unwarranted SEP Meeting on: Limited Competition programmatic and personnel issues. invasion of personal privacy. Review RFA HS 08–004 (R18) Place: Nat. Inst. of Environmental Health Date: June 23, 2009 (Open on June 23 from Sciences, 111 T. W. Alexander Drive, Name of Committee: National Institute of 8 a.m. to 8:15 a.m. and closed for the Executive Conference Room, Research Nursing Research Initial Review Group. remainder of the meeting) Triangle Park, NC 27709. Date: June 18–19, 2009. Place: Agency for Healthcare Research and Closed: June 16, 2009, 2:15 p.m. to Time: 8 a.m. to 10 a.m. Quality, John Eisenberg Building, Conference Adjournment. Agenda: To review and evaluate grant Center, Rockville, Maryland 20850. Agenda: To review and evaluate applications. Contact Person: Anyone wishing to obtain programmatic and personnel issues. Place: Bethesda Marriott Suites, 6711 a roster of members, agenda or minutes of the Place: Nat. Inst. of Environmental Health Democracy Boulevard, Bethesda, MD 20817. non confidential portions of this meeting Sciences, Building 101, Rodbell Auditorium, Contact Person: Weiqun Li, MD, Scientific should contact Mrs. Bonnie Campbell, 111 T. W. Alexander Drive, Conference Review Officer, National Institute of Nursing Committee Management Officer, Office of Rooms 101 A, B, and C, Research Triangle Research, National Institutes of Health, 6701 Extramural Research, Education and Priority Park, NC 27709. Democracy Blvd., Ste. 710, Bethesda, MD Populations, AHRQ, 540 Gaither Road, Room Contact Person: Perry J Blackshear, PhD, 20892, (301) 594–5966, [email protected]. 2038, Rockville, Maryland 20850, Telephone MD, Acting Scientific Director, Division of (Catalogue of Federal Domestic Assistance (301) 427–1554. Intramural Research, National Inst. of Program Nos. 93.361, Nursing Research, Agenda items for this meeting are subject Environmental Health Sciences, National National Institutes of Health, HHS) to change as priorities dictate.

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Dated: May 15, 2009. Dated: May 15, 2009. DEPARTMENT OF HEALTH AND Carol M. Clancy, Carol M. Clancy, HUMAN SERVICES Director. Director. Centers for Disease Control and [FR Doc. E9–12069 Filed 5–22–09; 8:45 am] [FR Doc. E9–12067 Filed 5–22–09; 8:45 am] Prevention BILLING CODE 4160–90–M BILLING CODE 4160–90–M Advisory Committee to the Director, Centers for Disease Control and DEPARTMENT OF HEALTH AND DEPARTMENT OF HEALTH AND Prevention (ACD, CDC) HUMAN SERVICES HUMAN SERVICES Notice of Cancellation: This notice Agency for Healthcare Research and National Institutes of Health was published in the Federal Register Quality on May 19, 2009, Volume 74, Number National Institute on Aging; Notice of 95, pages 23422–23423. The meeting Notice of Meeting Closed Meeting previously scheduled to convene on In accordance with section 10(d) of June 4, 2009, has been cancelled. the Federal Advisory Committee Act (5 Pursuant to section 10(d) of the Contact Person for More Information: U.S.C., Appendix 2), announcement is Federal Advisory Committee Act, as Brad Perkins, M.D., M.B.A., Executive made of a Health Care Policy and amended (5 U.S.C. App.), notice is Officer, Advisory Committee to the Research Special Emphasis Panel (SEP) hereby given of the following meeting. Director, CDC, 1600 Clifton Road, NE., M/S D–14, Atlanta, Georgia 30333. meeting. The meeting will be closed to the Telephone 404/639–7000. A Special Emphasis Panel is a group public in accordance with the of experts in fields related to health care The Director, Management Analysis provisions set forth in sections research who are invited by the Agency and Services Office, has been delegated 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., for Healthcare Research and Quality the authority to sign Federal Register (AHRQ), and agree to be available, to as amended. The grant applications and notices pertaining to announcements of conduct on an as needed basis, the discussions could disclose meetings and other committee scientific reviews of applications for confidential trade secrets or commercial management activities, for both CDC AHRQ support. Individual members of property such as patentable material, and the Agency for Toxic Substances the Panel do not attend regularly- and personal information concerning and Disease Registry. scheduled meetings and do not serve for individuals associated with the grant Dated: May 19, 2009. applications, the disclosure of which fixed terms or a long period of time. Elaine L. Baker, would constitute a clearly unwarranted Rather, they are asked to participate in Director, Management Analysis and Services particular review meetings which invasion of personal privacy. Office, Centers for Disease Control and require their type of expertise. Name of Committee: National Institute on Prevention. Substantial segments of the upcoming Aging Special Emphasis Panel, ARRA [FR Doc. E9–12123 Filed 5–22–09; 8:45 am] SEP meeting listed below will be closed REVISION I. BILLING CODE 4163–18–P to the public in accordance with the Date: June 5, 2009. Federal Advisory Committee Act, Time: 2 p.m. to 5 p.m. section 10(d) of 5 U.S.C., Appendix 2 Agenda: To review and evaluate grant DEPARTMENT OF HOMELAND and 5 U.S.C. 552b(c)(6). Grant applications. SECURITY applications for the AHRQ Research Place: Hyatt Regency Bethesda, One Infrastructure Program: Phase II Limited Bethesda Metro Center, 7400 Wisconsin Office of the Secretary Competition (R24) applications are to be Avenue, Bethesda, MD 20814. reviewed and discussed at this meeting. Contact Person: Bita Nakhai, PhD, Public Workshop: Privacy Compliance These discussions are likely to reveal Scientific Review Officer, Scientific Review Fundamentals—PTAs, PIAs, and personal information concerning Branch, National Institute on Aging, Gateway SORNs individuals associated with the Bldg., 2C212, 7201 Wisconsin Avenue, AGENCY: applications. This information is Bethesda, MD 20814. 301–402–7701. Privacy Office, DHS. exempt from mandatory disclosure [email protected]. ACTION: Notice announcing public under the above-cited statutes. This notice is being published less than 15 workshop. days prior to the meeting due to the timing SEP Meeting on: AHRQ Research SUMMARY: The Department of Homeland Infrastructure Program Phase H Limited limitations imposed by the review and Security Privacy Office will host a Competition (R24). funding cycle. public workshop, ‘‘Privacy Compliance Date: June 9, 2009. (Open on June 9 from (Catalogue of Federal Domestic Assistance Fundamentals—PTAs, PIAs, and 11 a.m. to 11:15 a.m. and closed for the Program Nos. 93.866, Aging Research; remainder of the meeting.) SORNs.’’ 93.701, ARRA Related Biomedical Research Place: Agency for Healthcare Research and and Research Support Awards., National DATES: The workshop will be held on Quality, John Eisenberg Building, Conference June 10, 2009, from 9 a.m. to 4:30 p.m. Center, Rockville, Maryland 20850. Institutes of Health, HHS) ADDRESSES: The workshop will be held Contact Person: Anyone wishing to obtain Dated: May 15, 2009. a roster of members, agenda or minutes of the in the auditorium at the DHS Offices at non-confidential portions of this meeting Jennifer Spaeth, the GSA Regional Headquarters should contact Mrs. Bonnie Campbell, Director, Office of Federal Advisory Building located at 7th and D Streets, Committee Management Officer, Office of Committee Policy. SW., Washington, DC, 20024. Extramural Research, Education and Priority [FR Doc. E9–12200 Filed 5–22–09; 8:45 am] FOR FURTHER INFORMATION CONTACT: Populations, AHRQ, 540 Gaither Road, Room 2038, Rockville, Maryland 20850, Telephone BILLING CODE 4140–01–P Tamara Baker, Privacy Office, (301) 427–1554. Department of Homeland Security, Agenda items for this meeting are subject Washington, DC 20528; by telephone to change as priorities dictate. 703–235–0780; by facsimile 703–235–

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0442; or by e-mail at DEPARTMENT OF HOMELAND (2) Evaluate the accuracy of the [email protected]. SECURITY agency’s estimate of the burden of the proposed collection of information, SUPPLEMENTARY INFORMATION: The U.S. Citizenship and Immigration including the validity of the Department of Homeland Security Services methodology and assumptions used; (DHS) Privacy Office is holding a public workshop that will provide in-depth Agency Information Collection (3) Enhance the quality, utility, and training on the privacy compliance Activities: Form I–90, Revision of a clarity of the information to be process at DHS, and specifically how to Currently Approved Information collected; and write privacy impact assessments (PIAs) Collection; Comment Request (4) Minimize the burden of the collection of information on those who and systems of records notices (SORNs). ACTION: 30-Day notice of information A case study will be used to illustrate collection under review: Form I–90, are to respond, including through the a step-by-step approach to researching, Application To Replace Permanent use of appropriate automated, preparing, and writing these documents. Resident Card; OMB Control No.: 1615– electronic, mechanical, or other The workshop will highlight Official 0082. technological collection techniques or Guidance for the Privacy Impact other forms of information technology, Assessments and Systems of Records The Department of Homeland e.g., permitting electronic submission of Notices. Security, U.S. Citizenship and responses. Immigration Services (USCIS) has The workshop is open to the public submitted the following information Overview of This Information Collection and there is no fee for attendance. collection request to the Office of Registration and Security: In order to Management and Budget (OMB) for (1) Type of Information Collection: facilitate security requirements of the review and clearance in accordance Revision to an existing information GSA facility, attendees must register in with the Paperwork Reduction Act of collection. advance for this workshop. Registration 1995. The information collection was (2) Title of the Form/Collection: closes at 9 a.m., Monday, June 8, 2009. previously published in the Federal Application to Replace Permanent To register, please send an e-mail to Register on January 26, 2009, at 74 FR Resident Card. 4446, allowing for a 60-day public [email protected], with the (3) Agency form number, if any, and comment period. USCIS did not receive name of the workshop (‘‘Privacy the applicable component of the Compliance Fundamentals—PTAs, any comments. The purpose of this notice is to allow Department of Homeland Security PIAs, and SORNs’’) in the subject line, sponsoring the collection: Form I–90. and your full name and organizational an additional 30 days for public comments. Comments are encouraged U.S. Citizenship and Immigration affiliation in the body of the e-mail. and will be accepted until June 25, Services. Alternatively, you may call 703–235– 2009. This process is conducted in 0780 to register and to provide the (4) Affected public who will be asked accordance with 5 CFR 1320.10. or required to respond, as well as brief Privacy Office with your full name and Written comments and/or suggestions organizational affiliation. abstract: Primary: Individuals or regarding the item(s) contained in this households. This form will be used by All attendees who are employed by a notice, especially regarding the USCIS to determine eligibility to replace estimated public burden and associated federal agency will be required to show a Lawful Permanent Resident Card. their federal agency employee photo response time, should be directed to the identification badge to enter the Department of Homeland Security (5) An estimate of the total number of building. Attendees who do not possess (DHS), and to the Office of Information respondents and the amount of time a federal agency employee photo and Regulatory Affairs, Office of estimated for an average respondent to identification badge will need to show Management and Budget (OMB), USCIS respond: 410,799 responses at 55 (.916) a form of government-issued photo Desk Officer. Comments may be minutes per response. submitted to: USCIS, Chief, Regulatory identification, such as a driver’s license, (6) An estimate of the total public Products Division, Clearance Office, 111 in order to verify their previously burden (in hours) associated with the Massachusetts Avenue, NW., collection: 376,292 annual burden provided registration information. This Washington, DC 20529–2210. hours. is a security requirement of the facility. Comments may also be submitted to The Privacy Office will only use your DHS via facsimile to 202–272–8352 or If you need a copy of the information name for the security purposes of this via e-mail at [email protected], and to the collection instrument, please visit the specific workshop and to contact you in OMB USCIS Desk Officer via facsimile Web site at: http://www.regulations.gov/ the event of a change to the workshop. at 202–395–6974 or via e-mail at fdmspublic/component/main. [email protected]. Special Assistance: Persons with We may also be contacted at: USCIS, When submitting comments by e-mail Regulatory Products Division, 111 disabilities who require special please make sure to add OMB Control Massachusetts Avenue, NW., assistance should indicate this in their Number 1615–0082 in the subject box. Washington, DC 20529–2210, telephone admittance request and are encouraged Written comments and suggestions from to identify anticipated special needs as the public and affected agencies should number 202–272–8377. early as possible. address one or more of the following Dated: May 20, 2009. Mary Ellen Callahan, four points: Stephen Tarragon, (1) Evaluate whether the proposed Chief Privacy Officer, Department of Deputy Chief, Regulatory Products Division, collection of information is necessary U.S. Citizenship and Immigration Services, Homeland Security. for the proper performance of the [FR Doc. E9–12189 Filed 5–22–09; 8:45 am] Department of Homeland Security. functions of the agency, including [FR Doc. E9–12121 Filed 5–22–09; 8:45 am] BILLING CODE 9110–9L–P whether the information will have practical utility; BILLING CODE 9111–97–P

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DEPARTMENT OF HOMELAND DEPARTMENT OF HOMELAND DEPARTMENT OF HOMELAND SECURITY SECURITY SECURITY

Federal Emergency Management Federal Emergency Management Federal Emergency Management Agency Agency Agency

[Internal Agency Docket No. FEMA–1829– [Docket ID FEMA–2008–0018; Internal [Internal Agency Docket No. FEMA–1829– DR; Docket ID FEMA–2008–0018] Agency Docket No. FEMA–1823–DR] DR; Docket ID FEMA–2008–0018]

North Dakota; Amendment No. 5 to Oklahoma; Amendment No. 2 to Notice North Dakota; Amendment No. 4 to Notice of a Major Disaster Declaration of a Major Disaster Declaration Notice of a Major Disaster Declaration

AGENCY: Federal Emergency AGENCY: Federal Emergency AGENCY: Federal Emergency Management Agency, DHS. Management Agency, DHS. Management Agency, DHS. ACTION: Notice. ACTION: Notice. ACTION: Notice.

SUMMARY: This notice amends the notice SUMMARY: This notice amends the notice SUMMARY: This notice amends the notice of a major disaster declaration for the of a major disaster declaration for the of a major disaster declaration for the State of North Dakota (FEMA–1829– State of Oklahoma (FEMA–1823–DR), State of North Dakota (FEMA–1829– DR), dated March 24, 2009, and related dated February 17, 2009, and related DR), dated March 24, 2009, and related determinations. determinations. determinations. DATES: Effective Date: May 15, 2009. DATES: Effective Date: May 18, 2009. DATES: Effective Date: May 13, 2009. FOR FURTHER INFORMATION CONTACT: FOR FURTHER INFORMATION CONTACT: FOR FURTHER INFORMATION CONTACT: Peggy Miller, Disaster Assistance Peggy Miller, Disaster Assistance Peggy Miller, Disaster Assistance Directorate, Federal Emergency Directorate, Federal Emergency Directorate, Federal Emergency Management Agency, 500 C Street, SW., Management Agency, 500 C Street, SW., Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646–3886. Washington, DC 20472, (202) 646–3886. Washington, DC 20472, (202) 646–3886. SUPPLEMENTARY INFORMATION: The notice SUPPLEMENTARY INFORMATION: The SUPPLEMENTARY INFORMATION: The notice of a major disaster declaration for the Federal Emergency Management Agency of a major disaster declaration for the State of North Dakota is hereby (FEMA) hereby gives notice that State of North Dakota is hereby amended to include the following areas amended to include the following areas pursuant to the authority vested in the among those areas determined to have among those areas determined to have Administrator, under Executive Order been adversely affected by the event been adversely affected by the event 12148, as amended, Kenneth R. declared a major disaster by the declared a major disaster by the Tingman of FEMA is appointed to act as the Federal Coordinating Officer for this President in his declaration of March President in his declaration of March 24, 2009. 24, 2009. disaster. The Turtle Mountain Band of Chippewa Benson, Cavalier, Eddy, McLean, Pembina, This action terminates the Indian Reservation for Individual Assistance Rolette, and Wells Counties for Individual appointment of Douglas G. Mayne as and Public Assistance. Assistance (already designated for Public Federal Coordinating Officer for this Ramsey County for Individual Assistance Assistance). disaster. (already designated for Public Assistance). The following Catalog of Federal Domestic (The following Catalog of Federal Domestic Rolette and Sheridan Counties for Public Assistance Numbers (CFDA) are to be used Assistance Numbers (CFDA) are to be used Assistance. for reporting and drawing funds: 97.030, for reporting and drawing funds: 97.030, Billings County for Public Assistance Community Disaster Loans; 97.031, Cora Community Disaster Loans; 97.031, Cora [Categories A and C–G] (already designated Brown Fund; 97.032, Crisis Counseling; Brown Fund; 97.032, Crisis Counseling; for Individual Assistance and emergency 97.033, Disaster Legal Services; 97.034, 97.033, Disaster Legal Services; 97.034, protective measures [Category B], including Disaster Unemployment Assistance (DUA); Disaster Unemployment Assistance (DUA); direct Federal assistance, under the Public 97.046, Fire Management Assistance Grant; 97.046, Fire Management Assistance Grant; Assistance program). 97.048, Disaster Housing Assistance to 97.048, Disaster Housing Assistance to The following Catalog of Federal Domestic Individuals and Households In Presidentially Individuals and Households in Presidentially Assistance Numbers (CFDA) are to be used Declared Disaster Areas; 97.049, Declared Disaster Areas; 97.049, for reporting and drawing funds: 97.030, Presidentially Declared Disaster Assistance— Presidentially Declared Disaster Assistance— Community Disaster Loans; 97.031, Cora Disaster Housing Operations for Individuals Disaster Housing Operations for Individuals Brown Fund; 97.032, Crisis Counseling; and Households; 97.050, Presidentially and Households; 97.050, Presidentially 97.033, Disaster Legal Services; 97.034, Declared Disaster Assistance to Individuals Declared Disaster Assistance to Individuals Disaster Unemployment Assistance (DUA); and Households—Other Needs; 97.036, and Households—Other Needs; 97.036, 97.046, Fire Management Assistance Grant; Disaster Grants—Public Assistance Disaster Grants—Public Assistance 97.048, Disaster Housing Assistance to (Presidentially Declared Disasters); 97.039, (Presidentially Declared Disasters); 97.039, Individuals and Households in Presidentially Hazard Mitigation Grant. Hazard Mitigation Grant.) Declared Disaster Areas; 97.049, Presidentially Declared Disaster Assistance— Nancy Ward, W. Craig Fugate, Disaster Housing Operations for Individuals Acting Administrator, Federal Emergency Administrator, Federal Emergency Management Agency. and Households; 97.050 Presidentially Management Agency. Declared Disaster Assistance to Individuals [FR Doc. E9–12166 Filed 5–22–09; 8:45 am] [FR Doc. E9–12177 Filed 5–22–09; 8:45 am] and Households—Other Needs; 97.036, BILLING CODE 9111–23–P BILLING CODE 9111–23–P Disaster Grants—Public Assistance

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(Presidentially Declared Disasters); 97.039, (Presidentially Declared Disasters); 97.039, Needs Assistance under Section 408 of the Hazard Mitigation Grant. Hazard Mitigation Grant. Stafford Act is later warranted, Federal funding under that program will also be Nancy Ward, Nancy Ward, limited to 75 percent of the total eligible Acting Administrator, Federal Emergency Acting Administrator, Federal Emergency costs. Management Agency. Management Agency. Further, you are authorized to make [FR Doc. E9–12174 Filed 5–22–09; 8:45 am] [FR Doc. E9–12173 Filed 5–22–09; 8:45 am] changes to this declaration to the extent BILLING CODE 9111–23–P BILLING CODE 9111–23–P allowable under the Stafford Act. The Federal Emergency Management Agency (FEMA) hereby gives notice that DEPARTMENT OF HOMELAND DEPARTMENT OF HOMELAND Albert Lewis, of FEMA is appointed to SECURITY SECURITY act as the Federal Coordinating Officer for this major disaster. Federal Emergency Management Federal Emergency Management The following areas of the State of Agency Agency Alabama have been designated as [Internal Agency Docket No. FEMA–1836– adversely affected by this major disaster: [Docket ID FEMA–2008–0018; Internal DR; Docket ID FEMA–2008–0018] Agency Docket No. FEMA–1831–DR] Cullman, DeKalb, Jackson, Jefferson, and Marshall Counties for Public Assistance. Alabama; Major Disaster and Related All counties within the State of Alabama Florida; Amendment No. 5 to Notice of Determinations a Major Disaster Declaration are eligible to apply for assistance under the Hazard Mitigation Grant Program. AGENCY: Federal Emergency AGENCY: Federal Emergency Management Agency, DHS. The following Catalog of Federal Domestic Management Agency, DHS. Assistance Numbers (CFDA) are to be used ACTION: Notice. for reporting and drawing funds: 97.030, ACTION: Notice. Community Disaster Loans; 97.031, Cora SUMMARY: This is a notice of the Brown Fund; 97.032, Crisis Counseling; Presidential declaration of a major SUMMARY: This notice amends the notice 97.033, Disaster Legal Services; 97.034, disaster for the State of Alabama of a major disaster declaration for the Disaster Unemployment Assistance (DUA); (FEMA–1836–DR), dated May 8, 2009, 97.046, Fire Management Assistance Grant; State of Florida (FEMA–1831–DR), and related determinations. 97.048, Disaster Housing Assistance to dated April 21, 2009, and related Individuals and Households in Presidentially DATES: Effective Date: May 8, 2009. determinations. Declared Disaster Areas; 97.049, FOR FURTHER INFORMATION CONTACT: Presidentially Declared Disaster Assistance— DATES: Effective Date: May 11, 2009. Peggy Miller, Disaster Assistance Disaster Housing Operations for Individuals FOR FURTHER INFORMATION CONTACT: Directorate, Federal Emergency and Households; 97.050, Presidentially Peggy Miller, Disaster Assistance Management Agency, 500 C Street, SW., Declared Disaster Assistance to Individuals Directorate, Federal Emergency Washington, DC 20472, (202) 646–3886. and Households—Other Needs; 97.036, Disaster Grants—Public Assistance SUPPLEMENTARY INFORMATION: Management Agency, 500 C Street, SW., Notice is (Presidentially Declared Disasters); 97.039, Washington, DC 20472, (202) 646–3886. hereby given that, in a letter dated May Hazard Mitigation Grant. 8, 2009, the President issued a major SUPPLEMENTARY INFORMATION: The notice disaster declaration under the authority Nancy Ward, of a major disaster declaration for the of the Robert T. Stafford Disaster Relief Acting Administrator, Federal Emergency State of Florida is hereby amended to and Emergency Assistance Act, 42 Management Agency. include the following areas among those U.S.C. 5121–5207 (the Stafford Act), as [FR Doc. E9–12164 Filed 5–22–09; 8:45 am] areas determined to have been adversely follows: BILLING CODE 9111–23–P affected by the event declared a major disaster by the President in his I have determined that the damage in declaration of April 21, 2009. certain areas of the State of Alabama resulting from severe storms, flooding, DEPARTMENT OF HOMELAND Leon and Wakulla Counties for Individual tornadoes, and straight-line winds during the SECURITY Assistance (already designated for Public period of April 10–13, 2009, is of sufficient Assistance). severity and magnitude to warrant a major Federal Emergency Management Levy County for Individual Assistance. disaster declaration under the Robert T. Agency Dixie, Gilchrist, Lafayette, and Suwannee Stafford Disaster Relief and Emergency [Docket ID FEMA–2008–0018; Internal Counties for Public Assistance (already Assistance Act, 42 U.S.C. 5121–5207 (the Agency Docket No. FEMA–1839–DR] designated for Individual Assistance). ‘‘Stafford Act’’). Therefore, I declare that such The following Catalog of Federal Domestic a major disaster exists in the State of Tennessee; Major Disaster and Related Assistance Numbers (CFDA) are to be used Alabama. for reporting and drawing funds: 97.030, In order to provide Federal assistance, you Determinations Community Disaster Loans; 97.031, Cora are hereby authorized to allocate from funds AGENCY: Federal Emergency Brown Fund; 97.032, Crisis Counseling; available for these purposes such amounts as Management Agency, DHS. 97.033, Disaster Legal Services; 97.034, you find necessary for Federal disaster Disaster Unemployment Assistance (DUA); assistance and administrative expenses. ACTION: Notice. 97.046, Fire Management Assistance Grant; You are authorized to provide Public 97.048, Disaster Housing Assistance to Assistance in the designated areas, Hazard SUMMARY: This is a notice of the Individuals and Households in Presidentially Mitigation throughout the State, and any Presidential declaration of a major Declared Disaster Areas; 97.049, other forms of assistance under the Stafford disaster for the State of Tennessee Presidentially Declared Disaster Assistance— Act that you deem appropriate. Consistent (FEMA–1839–DR), dated May 15, 2009, Disaster Housing Operations for Individuals with the requirement that Federal assistance and related determinations. and Households; 97.050 Presidentially is supplemental, any Federal funds provided DATES: Declared Disaster Assistance to Individuals under the Stafford Act for Public Assistance Effective Date: May 15, 2009. and Households—Other Needs; 97.036, and Hazard Mitigation will be limited to 75 FOR FURTHER INFORMATION CONTACT: Disaster Grants—Public Assistance percent of the total eligible costs. If Other Peggy Miller, Disaster Assistance

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Directorate, Federal Emergency Declared Disaster Assistance to Individuals Hazard Mitigation, and Other Needs Management Agency, 500 C Street, SW., and Households—Other Needs; 97.036, Assistance will be limited to 75 percent of Washington, DC 20472, (202) 646–3886. Disaster Grants—Public Assistance the total eligible costs. (Presidentially Declared Disasters); 97.039, Further, you are authorized to make SUPPLEMENTARY INFORMATION: Notice is Hazard Mitigation Grant. changes to this declaration to the extent hereby given that, in a letter dated May allowable under the Stafford Act. 15, 2009, the President issued a major Nancy Ward, disaster declaration under the authority Acting Administrator, Federal Emergency The time period prescribed for the of the Robert T. Stafford Disaster Relief Management Agency. implementation of section 310(a), and Emergency Assistance Act, 42 [FR Doc. E9–12160 Filed 5–22–09; 8:45 am] Priority to Certain Applications for Public Facility and Public Housing U.S.C. 5121–5207 (the Stafford Act), as BILLING CODE 9110–23–P follows: Assistance, 42 U.S.C. 5153, shall be for a period not to exceed six months after I have determined that the damage in DEPARTMENT OF HOMELAND the date of this declaration. certain areas of the State of Tennessee The Federal Emergency Management resulting from severe storms, tornadoes, and SECURITY flooding on April 10, 2009, is of sufficient Agency (FEMA) hereby gives notice that severity and magnitude to warrant a major Federal Emergency Management Edward H. Smith, of FEMA is appointed disaster declaration under the Robert T. Agency to act as the Federal Coordinating Stafford Disaster Relief and Emergency Officer for this major disaster. [Internal Agency Docket No. FEMA–1838– Assistance Act, 42 U.S.C. 5121–5207 (the The following areas of the State of DR; Docket ID FEMA–2008–0018] ‘‘Stafford Act’’). Therefore, I declare that such West Virginia have been designated as a major disaster exists in the State of West Virginia; Major Disaster and adversely affected by this major disaster: Tennessee. In order to provide Federal assistance, you Related Determinations Mingo and Wyoming Counties for are hereby authorized to allocate from funds Individual Assistance and Public Assistance. AGENCY: Federal Emergency available for these purposes such amounts as All counties within the State of West you find necessary for Federal disaster Management Agency, DHS. Virginia are eligible to apply for assistance assistance and administrative expenses. ACTION: Notice. under the Hazard Mitigation Grant Program. You are authorized to provide Public The following Catalog of Federal Domestic Assistance in the designated areas, Hazard SUMMARY: This is a notice of the Assistance Numbers (CFDA) are to be used Mitigation throughout the State, and any Presidential declaration of a major for reporting and drawing funds: 97.030, other forms of assistance under the Stafford disaster for the State of West Virginia Community Disaster Loans; 97.031, Cora Act that you deem appropriate. Consistent (FEMA–1838–DR), dated May 15, 2009, Brown Fund; 97.032, Crisis Counseling; with the requirement that Federal assistance and related determinations. 97.033, Disaster Legal Services; 97.034, is supplemental, any Federal funds provided Disaster Unemployment Assistance (DUA); under the Stafford Act for Public Assistance DATES: Effective Date: May 15, 2009. 97.046, Fire Management Assistance Grant; and Hazard Mitigation will be limited to 75 FOR FURTHER INFORMATION CONTACT: 97.048, Disaster Housing Assistance to percent of the total eligible costs. If Other Peggy Miller, Disaster Assistance Individuals and Households in Presidentially Needs Assistance under Section 408 of the Directorate, Federal Emergency Declared Disaster Areas; 97.049, Stafford Act is later requested and warranted, Management Agency, 500 C Street, SW., Presidentially Declared Disaster Assistance— Federal funding under that program will also Washington, DC 20472, (202) 646–3886. Disaster Housing Operations for Individuals be limited to 75 percent of the total eligible and Households; 97.050, Presidentially costs. SUPPLEMENTARY INFORMATION: Notice is Declared Disaster Assistance to Individuals Further, you are authorized to make hereby given that, in a letter dated May and Households—Other Needs; 97.036, changes to this declaration to the extent 15, 2009, the President issued a major Disaster Grants—Public Assistance allowable under the Stafford Act. disaster declaration under the authority (Presidentially Declared Disasters); 97.039, Hazard Mitigation Grant. The Federal Emergency Management of the Robert T. Stafford Disaster Relief Agency (FEMA) hereby gives notice that and Emergency Assistance Act, 42 Nancy Ward, Terry L. Quarles of FEMA is appointed U.S.C. 5121–5207 (the Stafford Act), as Acting Administrator, Federal Emergency to act as the Federal Coordinating follows: Management Agency. Officer for this major disaster. I have determined that the damage in [FR Doc. E9–12161 Filed 5–22–09; 8:45 am] The following areas of the State of certain areas of the State of West Virginia BILLING CODE 9111–23–P Tennessee have been designated as resulting from severe storms, flooding, adversely affected by this major disaster: mudslides, and landslides beginning on May 3, 2009, and continuing, is of sufficient DEPARTMENT OF HOMELAND Benton, McMinn, Rutherford, and severity and magnitude to warrant a major Sequatchie Counties for Public Assistance. disaster declaration under the Robert T. SECURITY All counties within the State of Tennessee Stafford Disaster Relief and Emergency are eligible to apply for assistance under the Assistance Act, 42 U.S.C. 5121–5207 (the Federal Emergency Management Hazard Mitigation Grant Program. ‘‘Stafford Act’’). Therefore, I declare that such Agency The following Catalog of Federal Domestic a major disaster exists in the State of West [Docket ID FEMA–2008–0018; Internal Assistance Numbers (CFDA) are to be used Virginia. Agency Docket No. FEMA–1820–DR] for reporting and drawing funds: 97.030, In order to provide Federal assistance, you Community Disaster Loans; 97.031, Cora are hereby authorized to allocate from funds Oklahoma; Amendment No. 2 to Notice Brown Fund; 97.032, Crisis Counseling; available for these purposes such amounts as 97.033, Disaster Legal Services; 97.034, you find necessary for Federal disaster of a Major Disaster Declaration Disaster Unemployment Assistance (DUA); assistance and administrative expenses. AGENCY: Federal Emergency 97.046, Fire Management Assistance Grant; You are authorized to provide Individual Management Agency, DHS. 97.048, Disaster Housing Assistance to Assistance and Public Assistance in the Individuals and Households in Presidentially designated areas and Hazard Mitigation ACTION: Notice. Declared Disaster Areas; 97.049, throughout the State. Consistent with the Presidentially Declared Disaster Assistance— requirement that Federal assistance is SUMMARY: This notice amends the notice Disaster Housing Operations for Individuals supplemental, any Federal funds provided of a major disaster declaration for the and Households; 97.050, Presidentially under the Stafford Act for Public Assistance, State of Oklahoma (FEMA–1820–DR),

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dated February 15, 2009, and related FOR FURTHER INFORMATION CONTACT: 12, 2009, the President issued a major determinations. Peggy Miller, Disaster Assistance disaster declaration under the authority DATES: Effective Date: May 18, 2009. Directorate, Federal Emergency of the Robert T. Stafford Disaster Relief Management Agency, 500 C Street, SW., and Emergency Assistance Act, 42 FOR FURTHER INFORMATION CONTACT: Washington, DC 20472, (202) 646–3886. U.S.C. 5121–5207 (the Stafford Act), as Peggy Miller, Disaster Assistance SUPPLEMENTARY INFORMATION: follows: Directorate, Federal Emergency The notice Management Agency, 500 C Street, SW., of a major disaster declaration for the I have determined that the damage in certain Washington, DC 20472, (202) 646–3886. State of Indiana is hereby amended to areas of the State of Mississippi resulting include the following areas among those from severe storms, flooding, and tornadoes SUPPLEMENTARY INFORMATION: The areas determined to have been adversely during the period of March 25–28, 2009, is Federal Emergency Management Agency affected by the event declared a major of sufficient severity and magnitude to (FEMA) hereby gives notice that disaster by the President in his warrant a major disaster declaration under the Robert T. Stafford Disaster Relief and pursuant to the authority vested in the declaration of April 22, 2009. Administrator, under Executive Order Emergency Assistance Act, 42 U.S.C. 5121– Daviess, Lawrence, and St. Joseph 5207 (‘‘the Stafford Act’’). Therefore, I 12148, as amended, Kenneth R. Counties for Individual Assistance. Tingman of FEMA is appointed to act as declare that such a major disaster exists in (The following Catalog of Federal Domestic the State of Mississippi. the Federal Coordinating Officer for this In order to provide Federal assistance, you disaster. Assistance Numbers (CFDA) are to be used for reporting and drawing funds: 97.030, are hereby authorized to allocate from funds This action terminates the Community Disaster Loans; 97.031, Cora available for these purposes such amounts as appointment of Douglas G. Mayne as Brown Fund; 97.032, Crisis Counseling; you find necessary for Federal disaster Federal Coordinating Officer for this 97.033, Disaster Legal Services; 97.034, assistance and administrative expenses. disaster. Disaster Unemployment Assistance (DUA); You are authorized to provide Public Assistance in the designated areas, Hazard The following Catalog of Federal Domestic 97.046, Fire Management Assistance Grant; 97.048, Disaster Housing Assistance to Mitigation throughout the State, and any Assistance (CFDA) Numbers are to be used other forms of assistance under the Stafford for reporting and drawing funds: 97.030, Individuals and Households in Presidentially Declared Disaster Areas; 97.049, Act that you deem appropriate. Consistent Community Disaster Loans; 97.031, Cora with the requirement that Federal assistance Brown Fund; 97.032, Crisis Counseling; Presidentially Declared Disaster Assistance— Disaster Housing Operations for Individuals is supplemental, any Federal funds provided 97.033, Disaster Legal Services; 97.034, under the Stafford Act for Public Assistance Disaster Unemployment Assistance (DUA); and Households; 97.050 Presidentially Declared Disaster Assistance to Individuals and Hazard Mitigation will be limited to 75 97.046, Fire Management Assistance Grant; percent of the total eligible costs. If Other 97.048, Disaster Housing Assistance to and Households—Other Needs; 97.036, Disaster Grants—Public Assistance Needs Assistance under Section 408 of the Individuals and Households in Presidentially Stafford Act is later requested and warranted, Declared Disaster Areas; 97.049, (Presidentially Declared Disasters); 97.039, Hazard Mitigation Grant.) Federal funding under that program will also Presidentially Declared Disaster Assistance— be limited to 75 percent of the total eligible Disaster Housing Operations for Individuals Nancy Ward, costs. and Households; 97.050, Presidentially Acting Administrator, Federal Emergency Further, you are authorized to make Declared Disaster Assistance to Individuals Management Agency. changes to this declaration to the extent and Households—Other Needs; 97.036, allowable under the Stafford Act. Disaster Grants—Public Assistance [FR Doc. E9–12158 Filed 5–22–09; 8:45 am] (Presidentially Declared Disasters); 97.039, BILLING CODE 9111–23–P The Federal Emergency Management Hazard Mitigation Grant. Agency (FEMA) hereby gives notice that Donald L. Keldsen, of FEMA, is W. Craig Fugate, DEPARTMENT OF HOMELAND appointed to act as the Federal Administrator, Federal Emergency SECURITY Coordinating Officer for this major Management Agency. disaster. [FR Doc. E9–12162 Filed 5–22–09; 8:45 am] Federal Emergency Management The following areas of the State of BILLING CODE 9111–23–P Agency Mississippi have been designated as [Docket ID FEMA–2008–0018; Internal adversely affected by this major disaster: Agency Docket No. FEMA–1837–DR] DEPARTMENT OF HOMELAND Amite, Greene, Jackson, Lawrence, SECURITY Lincoln, Simpson, Stone, Walthall, Wayne, Mississippi; Major Disaster and and Wilkinson Counties for Public Related Determinations Federal Emergency Management Assistance. All counties within the State of Mississippi Agency AGENCY: Federal Emergency are eligible to apply for assistance under the Management Agency, DHS. Hazard Mitigation Grant Program. [Internal Agency Docket No. FEMA–1832– ACTION: Notice. The following Catalog of Federal Domestic DR; Docket ID FEMA–2008–0018] Assistance Numbers (CFDA) are to be used SUMMARY: This is a notice of the for reporting and drawing funds: 97.030, Indiana; Amendment No. 1 to Notice of Presidential declaration of a major Community Disaster Loans; 97.031, Cora a Major Disaster Declaration disaster for the State of Mississippi Brown Fund; 97.032, Crisis Counseling; 97.033, Disaster Legal Services; 97.034, AGENCY: Federal Emergency (FEMA–1837–DR), dated May 12, 2009, and related determinations. Disaster Unemployment Assistance (DUA); Management Agency, DHS. 97.046, Fire Management Assistance Grant; ACTION: Notice. DATES: Effective Date: May 12, 2009. 97.048, Disaster Housing Assistance to FOR FURTHER INFORMATION CONTACT: Individuals and Households in Presidentially SUMMARY: This notice amends the notice Peggy Miller, Disaster Assistance Declared Disaster Areas; 97.049, of a major disaster declaration for the Directorate, Federal Emergency Presidentially Declared Disaster Assistance— State of Indiana (FEMA–1832–DR), Management Agency, 500 C Street, SW., Disaster Housing Operations for Individuals and Households; 97.050, Presidentially dated April 22, 2009, and related Washington, DC 20472, (202) 646–3886. determinations. Declared Disaster Assistance to Individuals SUPPLEMENTARY INFORMATION: Notice is and Households—Other Needs; 97.036, DATES: Effective Date: May 13, 2009. hereby given that, in a letter dated May Disaster Grants—Public Assistance

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(Presidentially Declared Disasters); 97.039, including any personal information Tentative Agenda Hazard Mitigation Grant. provided. 1. Introduction of Committee Nancy Ward, Docket: For access to the docket to members and CBP Personnel. Acting Administrator, Federal Emergency read background documents or 2. Report of activities since last Management Agency. comments received by the Airport and meeting held on March 5, 2008. [FR Doc. E9–12176 Filed 5–22–09; 8:45 am] Seaport Inspections User Fee Advisory 3. Update on the proposal to BILLING CODE 9111–23–P Committee, go to http:// consolidate customs and immigration www.regulations.gov. user fees. DEPARTMENT OF HOMELAND FOR FURTHER INFORMATION CONTACT: Mrs. 4. Discussion of Model Ports next SECURITY Jean Brown, Office of Finance, U.S. steps. Customs and Border Protection, 1300 5. Discussion of the ESTA U.S. Customs and Border Protection Pennsylvania Ave, NW., Suite 4.5A, requirement compliance and possible [Docket No. USCBP–2009–0014] Washington, DC 20229; e-mail: date for enforcement. [email protected]; telephone: (202) 6. Overview and discussion of CBP’s Notice of Meeting of the U.S. Customs 344–1910; facsimile: (202) 344–1818. FY10 budget. and Border Protection Airport and SUPPLEMENTARY INFORMATION: Pursuant 7. Discussion of the impact of the Seaport Inspections User Fee Advisory decline in international air passengers Committee to the Federal Advisory Committee Act (5 U.S.C., App.), the Department of on user fee collections and CBP staffing AGENCY: U.S. Customs and Border Homeland Security (DHS) hereby levels. Protection, Department of Homeland announces the meeting of the U.S. 8. Discussion of the Global Entry Security (DHS). Customs and Border Protection (CBP) implementation, public outreach, and ACTION: Notice of Federal Advisory Airport and Seaport Inspections User additional foreign partners. Committee meeting. Fee Advisory Committee (hereinafter, 9. Agree on consensus ‘‘Advisory Committee’’). This Advisory recommendations on the issues SUMMARY: The U.S. Customs and Border Committee was established pursuant to discussed. Protection (CBP) Airport and Seaport section 286(k) of the Immigration and 10. Discussion of Committee Inspections User Fee Advisory Nationality Act (INA), codified at title 8 administrative issues and scheduling of Committee (Advisory Committee) will U.S.C. 1356(k), which references the next meeting. meet in open session. The meeting will Federal Advisory Committee Act (5 11. Adjourn. be open to the public. U.S.C., App. et seq.). With the merger of DATES: Wednesday, June 10, 2009, from the Immigration and Naturalization Procedural 12 p.m. to 4 p.m. Please note that the Service into DHS, the Advisory This meeting is open to the public. meeting may close early if the Committee’s responsibilities were Please note that the meeting may close committee has completed all business. transferred from the Attorney General to early if all business is finished. Public ADDRESSES: The meeting will be held at the Commissioner of CBP pursuant to participation in the deliberations is Continental Room C, Ronald Reagan section 1512(d) of the Homeland welcome; however, please note that Building, 1300 Pennsylvania Ave, NW., Security Act of 2002. The Advisory matters outside of the scope of this Washington, DC. Written material, Committee held its first meeting under committee will not be discussed. comments, requests to make oral the direction of CBP on October 22, All visitors to the Ronald Reagan presentations, and requests to have a 2003 (see 68 FR 56301, September 30, Building will have to show a picture ID copy of your material distributed to 2003). Among other things, the in order to be admitted into the each member of the committee prior to Advisory Committee advises DHS via building. Since seating is limited, all the meeting must be submitted to the the Commissioner of CBP on issues persons attending this event must contact person listed below by Friday, related to the performance of airport and provide notice, preferably by close of May 29, 2009. Comments must be seaport inspections involving business on Friday, May 29, 2009, to identified by USCBP–2009–0014 and agriculture, customs, or immigration Mrs. Jean Brown, Office of Finance, U.S. may be submitted by one of the based concerns. This advice includes, Customs and Border Protection, 1300 following methods: but is not limited to issues such as the Pennsylvania Avenue, NW., Suite 4.5A, • Federal eRulemaking Portal: http:// time period during which such services Washington, DC 20229; e-mail: www.regulations.gov. Follow the should be performed and the proper [email protected]; telephone: (202) instructions for submitting comments. 344–1910; facsimile: (202) 344–1818. • number and deployment of inspection E-mail: [email protected]. officers. Additionally, this advice Include the docket number in the Information on Services for Individuals includes the level and the With Disabilities subject line of the message. appropriateness of the following fees • Facsimile: (202) 344–1818. assessed for CBP services: the For information on facilities or • Mail: Mrs. Jean Brown, Office of immigration user fee pursuant to 8 services for individuals with disabilities Finance, U.S. Customs and Border U.S.C. 1356(d), the customs inspection or to request special assistance at the Protection, 1300 Pennsylvania Avenue, user fee pursuant to 19 U.S.C. 58c(a)(5), meeting, contact Mrs. Jean Brown as NW., Suite 4.5A, Washington, DC soon as possible. 20229. and the agriculture inspection user fee Instructions: All submissions received pursuant to 21 U.S.C 136a. Dated: May 18, 2009. must include the words ‘‘Department of The seventh meeting of the Advisory Elaine Killoran, Homeland Security’’ and the docket Committee will be held at the date, time Acting Assistant Commissioner, Office of number for this action. Comments and location specified above. A Finance, U.S. Customs and Border Protection. received will be posted without tentative agenda for the meeting is set [FR Doc. E9–12053 Filed 5–22–09; 8:45 am] alteration at http://www.regulations.gov, forth below. BILLING CODE 9111–14–P

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DEPARTMENT OF HOMELAND Procedural being developed. Once finalized, the SECURITY This meeting is open to the public. meeting agenda will be posted on the Please note that the meeting may close BLM California State Web site at http: Coast Guard early if all business is finished. At the //www.blm.gov/ca/news/rac.html. Chair’s discretion, members of the SUPPLEMENTARY INFORMATION: All Desert [Docket No. USCG–2009–0193] public may make oral presentations District Advisory Council meetings are during the meeting. If you would like to open to the public. Public comment for Lower Mississippi River Waterway make an oral presentation at a meeting, items not on the agenda will be Safety Advisory Committee please notify the DFO no later than May scheduled at the beginning of the meeting Saturday morning. Time for AGENCY: Coast Guard, DHS. 28, 2009. Written material for distribution at a meeting should reach public comment may be made available ACTION: Notice of meeting. the Coast Guard no later than May 28, by the Council Chairman during the 2009. If you would like a copy of your presentation of various agenda items, SUMMARY: The Lower Mississippi River and is scheduled at the end of the Waterway Safety Advisory Committee material distributed to each member of the committee in advance of a meeting, meeting for topics not on the agenda. will meet in New Orleans to discuss While the Saturday meeting is various issues relating to navigational please submit 25 copies to the DFO no later than May 28, 2009. tentatively scheduled from 8 a.m. to 4 safety on the Lower Mississippi River p.m., the meeting could conclude prior and related waterways. This meeting Information on Services for Individuals to 4 p.m. should the Council conclude will be open to the public. With Disabilities its presentations and discussions. DATES: The Committee will meet on For information on facilities or Therefore, members of the public Tuesday, June 2nd, 2009 from 9 a.m. to services for individuals with disabilities interested in a particular agenda item or 12 p.m. This meeting may close early if or to request special assistance at the discussion should schedule their arrival all business is finished. Written material meeting, contact the DFO as soon as accordingly. and requests to make oral presentations possible. Written comments may be filed in should reach the Coast Guard on or advance of the meeting for the Dated: April 29, 2009. before May 28, 2009. Requests to have California Desert District Advisory a copy of your material distributed to J.R. Whitehead, Council, c/o Bureau of Land each member of the committee should Rear Admiral, U.S. Coast Guard, Commander, Management, External Affairs, 22835 reach the Coast Guard on or before May 8th Coast Guard District. Calle San Juan de Los Lagos, Moreno 28, 2009. [FR Doc. E9–12163 Filed 5–22–09; 8:45 am] Valley, California 92553. Written BILLING CODE 4910–15–P comments also are accepted at the time ADDRESSES: The Committee will meet at of the meeting and, if copies are the New Orleans Yacht Club, 403 North provided to the recorder, will be Roadway, West End, New Orleans, LA incorporated into the minutes. 70124. Send written material and DEPARTMENT OF THE INTERIOR FOR FURTHER INFORMATION CONTACT: requests to make oral presentations to [LLCAD00000 L19900000.AL 0000] Sector Commander, Designated Federal David Briery, BLM California Desert Officer (DFO) of Lower Mississippi Meeting of the California Desert District External Affairs, (951) 697– River Waterway Safety Advisory Advisory Council 5220. Committee, USCG Sector New Orleans, May 15, 2009. AGENCY: Bureau of Land Management, ATTN: Waterways Management, 1615 Interior. Steven J. Borchard, Poydras St., New Orleans, LA 70112. District Manager. ACTION: Notice of public meeting. FOR FURTHER INFORMATION CONTACT: [FR Doc. E9–12118 Filed 5–22–09; 8:45 am] CWO3 David Chapman, Assistant to SUMMARY: Notice is hereby given, in BILLING CODE P DFO of Lower Mississippi River accordance with Public Laws 92–463 Waterway Safety Advisory Committee, and 94–579, that the California Desert telephone 504–565–5103. District Advisory Council to the Bureau DEPARTMENT OF THE INTERIOR of Land Management, U.S. Department SUPPLEMENTARY INFORMATION: Notice of National Park Service this meeting is given under the Federal of the Interior, will participate in a field Advisory Committee Act, 5 U.S.C. App. tour of BLM-administered public lands 60-Day Notice of Intention To Request (Pub. L. 92–463). on Friday, June 19, 2009 from 8 a.m. to Clearance of Collection of Information; 4 p.m., and meet in formal session on Opportunity for Public Comment Agenda of Meeting Saturday, June 20 from 8 a.m. to 4 p.m., The agenda for the June 2, 2009 at the Hampton Inn & Suites, 2710 AGENCY: Department of the Interior, Committee meeting is as follows: Lenwood Road, Barstow, CA 92311. National Park Service. (1) Introduction of committee The Council and interested members ACTION: Notice and request for members. of the public will depart for the field comments. tour at 8:30 a.m. from the lobby of the (2) Opening Remarks. Hampton Inn & Suites. Members of the SUMMARY: Under the provisions of the (3) Approval of the February 5, 2009 public are welcome to participate in the Paperwork Reduction Act of 1995 and 5 minutes. tour but should plan on providing their CFR Part 1320, Reporting and Record (4) Old Business. own transportation, lunch, and Keeping Requirements, the National (a) Captain of the Port status report. beverage. Park Service (NPS) invites public (b) VTS update report. Agenda topics for the formal session comments on an extension of a (c) Subcommittee/Working Groups will include updates by Council currently approved information update reports. members and reports from the BLM collection (OMB #1024–0064). (5) New Business District Manager and five field office DATES: Public comments on this (6) Adjournment managers. Additional agenda topics are Information Collection Request (ICR)

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will be accepted on or before July 27, from the adverse impacts associated ACTION: Notice of decision approving 2009. with mineral development in park lands for conveyance. boundaries. The regulations require ADDRESSES: Send comments to: Edward SUMMARY: As required by 43 CFR O. Kassman, Jr., Regulatory Specialist, operators to submit specific technical information describing their future 2650.7(d), notice is hereby given that an Planning, Evaluation & Permits Branch, appealable decision approving the Geologic Resources Division, National development plans including steps to mitigate the impacts of operations. NPS surface estate for conveyance pursuant Park Service, P.O. Box 25287, to the Alaska Native Claims Settlement Lakewood, Colorado 80225; or via fax at uses the information to evaluate proposed operations, ensure that all Act will be issued to Isanotski (303) 987–6792; or via e-mail at Corporation. The lands are in the [email protected]. The necessary mitigation measures are employed to protect park resources and vicinity of False Pass, Alaska, and are information collection may be viewed located in: on-line at: http://www2.nature.nps.gov/ values, and ensure compliance with all geology/mining/9a_text.htm and http:// applicable laws and regulations. Seward Meridian, Alaska www2.nature.nps.gov/geology/ Description of respondents: One- T. 62 S., R. 92 W., oil_and_gas/9b_text.htm. All responses fourth medium to large publicly owned Secs. 31 and 32. to the Notice will be summarized and companies and three-fourth private Containing approximately 432 acres. included in the request for the Office of entities. T. 63 S., R. 92 W., Management and Budget (OMB) Estimated average number of Secs. 4, 5, and 6; Secs. 9, 10, and 15; Secs. approval. All comments will become a respondents: 24 per year. 16, 22, and 27. matter of public record. Estimated average number of Containing approximately 3,313 acres. To Request a Draft of Proposed responses: 24 per year. T. 62 S., R. 93 W., Collection of Information Contact: Frequency of Response: 1 per Secs. 35 and 36. Edward O. Kassman, Jr., Regulatory respondent. Containing approximately 383 acres. Specialist, Planning, Evaluation & Estimated average time burden per T. 63 S., R. 93 W., Secs. 1, 9, and 10; Secs. 15 and 16. Permits Branch, Geologic Resources respondent: 176 hours. Division, National Park Service, P.O. Estimated total annual reporting Containing approximately 2,998 acres. burden: 4,224 hours. T. 60 S., R. 94 W., Box 25287, Lakewood, Colorado 80225; Secs. 14 to 17, inclusive. (303) 969–2146, fax (303) 987–6792, or Comments are invited on: (1) The practical utility of the information being Containing approximately 2,236 acres. via e-mail at T. 62 S., R. 94 W., [email protected]. You are gathered; (2) the accuracy of the burden hour estimate; (3) ways to enhance the Secs. 4 to 9, inclusive. entitled to a copy of the entire ICR Containing approximately 3,794 acres. package free of charge. quality, utility, and clarity of the information being collected; and (4) Aggregating approximately 13,156 acres. SUPPLEMENTARY INFORMATION: ways to minimize the burden to These lands lie entirely within the Title: NPS/Minerals Management boundaries of the Aleutian Islands Program/Mining Claims and Non- respondents, including use of automated information collection National Wildlife Refuge, withdrawn by Federal Oil and Gas Rights—36 CFR Executive Order 1733, now known as Part 9, Subpart A and Subpart B, techniques or other forms of information technology. Before including your the Alaska Maritime National Wildlife respectively. Refuge. The subsurface estate will be Form(s): None address, phone number, e-mail address, or other personal identifying reserved to the United States in the OMB Control Number: 1024–0064. conveyance to Isanotski Corporation. Expiration Date: 02/28/2010 information in your comment, you Notice of the decision will also be Type of Request: Extension of a should be aware that your entire published four times in the Anchorage currently approved collection of comment—including your personal Daily News. information identifying information—may be made Description of Need: The NPS publicly available at any time. While DATES: The time limits for filing an regulates mineral development activities you can ask us in your comment to appeal are: inside park boundaries on mining withhold your personal identifying 1. Any party claiming a property claims and on non-Federal oil and gas information from public review, we interest which is adversely affected by rights under regulations codified at 36 cannot guarantee that we will be able to the decision shall have until June 25, CFR Part 9, Subpart A (‘‘9A do so. 2009 to file an appeal. regulations’’), and 36 CFR Part 9, Dated: May 18, 2009. 2. Parties receiving service of the decision by certified mail shall have 30 Subpart B (‘‘9B Regulations’’), Cartina Miller, respectively. The NPS promulgated both days from the date of receipt to file an NPS Information Collection Clearance appeal. sets of regulations in the late 1970s. In Officer. the case of mining claims, the NPS Parties who do not file an appeal in [FR Doc. E9–12070 Filed 5–22–09; 8:45 am] accordance with the requirements of 43 promulgated the 9A regulations BILLING CODE 4310–52–P pursuant to congressional authority CFR Part 4, Subpart E, shall be deemed granted under the Mining in the Parks to have waived their rights. Act of 1976, 16 U.S.C. 1901 et seq., and DEPARTMENT OF THE INTERIOR ADDRESSES: A copy of the decision may individual park enabling statutes. For be obtained from: Bureau of Land non-Federal oil and gas rights, the NPS Bureau of Land Management Management, Alaska State Office, 222 regulates development activities West Seventh Avenue, #13, Anchorage, pursuant to authority under the NPS [AA–6665–C, AA–6665–A2; AK–964–1410– Alaska 99513–7504. KC–P] Organic Act of 1916, 16 U.S.C. 1 et seq., FOR FURTHER INFORMATION CONTACT: The and individual enabling statutes. As Alaska Native Claims Selection Bureau of Land Management by phone directed by Congress, the NPS at 907–271–5960, or by e-mail at developed the regulations in order to AGENCY: Bureau of Land Management, [email protected]. Persons protect park resources and visitor values Interior. who use a telecommunication device

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(TTD) may call the Federal Information draft CCP and EA to the public, consistent with sound principles of fish Relay Service (FIRS) at 1–800–877– announcing and requesting comments and wildlife management, conservation, 8330, 24 hours a day, seven days a in a notice of availability on September legal mandates, and Service policies. In week, to contact the Bureau of Land 3, 2008 (73 FR 51506). addition to outlining broad management Management. Seney NWR was established in 1935 direction for conserving wildlife and by Executive Order under the Migratory their habitats, the CCP identifies Michael Bilancione, Bird Conservation Act for the protection wildlife-dependent recreational Land Transfer Resolution Specialist, and production of migratory birds and opportunities available to the public, Land Transfer Adjudication I. other wildlife. The Refuge encompasses including opportunities for hunting, [FR Doc. E9–12052 Filed 5–22–09; 8:45 am] approximately 95,238 acres; 25,150 fishing, wildlife observation and BILLING CODE 4310–JA–P acres comprise the Seney Wilderness photography, and environmental Area in which is contained the education and interpretation. Strangmoor Bog National Natural We will review and update the CCP DEPARTMENT OF THE INTERIOR Landmark. The Refuge is also at least every 15 years in accordance responsible for the 33-acre Whitefish with the National Wildlife Refuge Fish and Wildlife Service Point Unit, a former Coast Guard Station System Administration Act of 1966, as [FWS–R3–R–2009–N0023; 30136–1265– at Whitefish Point, in Chippewa County. amended by the National Wildlife 0000–S3] The Draft CCP/EA was released for Refuge System Improvement Act of public review September 3, 2008; the 1997, and the National Environmental Seney National Wildlife Refuge, comment period lasted 35 days ending Policy Act of 1969 (42 U.S.C. 4321– Schoolcraft County, MI October 8, 2008. During the comment 4370d). period the Refuge hosted an open house AGENCY: Fish and Wildlife Service, event. By the conclusion of the Dated: March 12, 2009. Interior. comment period we received 14 written Charles M. Wooley, ACTION: Notice of availability: Final responses from organizations and Acting Regional Director, U.S. Fish and Comprehensive Conservation Plan and individuals. In response to these Wildlife Service, Fort Snelling, Minnesota. Finding of No Significant Impact for comments we made a number of minor [FR Doc. E9–12116 Filed 5–22–09; 8:45 am] Environmental Assessment. edits to the final document. BILLING CODE 4310–55–P SUMMARY: We, the U.S. Fish and Selected Alternative Wildlife Service (Service), announce the After considering the comments DEPARTMENT OF THE INTERIOR availability of the Final Comprehensive received, we have selected Alternative 2 Conservation Plan (CCP) and Finding of (Management Gradients) for National Park Service No Significant Impact (FONSI) for the implementation. Under the selected Environmental Assessment (EA) for Notice of Inventory Completion: Field alternative the Refuge will strive to Seney National Wildlife Refuge (NWR). Museum of Natural History, Chicago, IL manage its forests and water to allow Goals and objectives in the CCP describe unfettered succession to take place. AGENCY: National Park Service, Interior. how the agency intends to manage the Dynamic events such as windstorms, refuge over the next 15 years. ACTION: Notice. insect and tree disease outbreaks, and ADDRESSES: Copies of the Final CCP and flooding and wildfire will play a more Notice is here given in accordance FONSI/EA may be viewed at the Seney substantial role in shaping habitats. with the Native American Graves National Wildlife Refuge Headquarters The major focus of the Refuge for the Protection and Repatriation Act or at public libraries near the refuge. next 15 years will be on increasing (NAGPRA), 25 U.S.C. 3003, of the You may access and download a copy biodiversity and regional resource completion of an inventory of human via the Planning Web site at http:// conservation priority species habitat. remains in the possession of the Field www.fws.gov/midwest/Planning/Seney, The Refuge will be segmented into four Museum of Natural History, Chicago, IL. or you may obtain a copy on compact general units with a management The human remains were removed from disk by contacting: U.S. Fish and strategy tied to each unit. The units Aliulik Peninsula, Kodiak Island, AK. Wildlife Service, Division of would follow a general gradient of This notice is published as part of the Conservation Planning, Bishop Henry management from low intensity National Park Service’s administrative Whipple Federal Building, 1 Federal (wilderness) to higher manipulation responsibilities under NAGPRA, 25 Drive, Fort Snelling, MN 55111 (1–800– (managed impoundments and visitor U.S.C. 3003 (d)(3). The determinations 247–1247, extension 5429), or Seney use). The Refuge will also seek to in this notice are the sole responsibility National Wildlife Refuge, 1674 Refuge increase wildlife-dependent public use of the museum, institution, or Federal Entrance Road, Seney, MI 49883 (906– opportunities. agency that has control of the Native 586–9851). A limited number of American human remains. The National hardcopies will be available for Background Park Service is not responsible for the distribution at the Refuge Headquarters. The National Wildlife Refuge System determinations in this notice. FOR FURTHER INFORMATION CONTACT: Greg Administration Act of 1966, as amended A detailed assessment of the human McClellan (906–586–9851). by the National Wildlife Refuge System remains was made by Field Museum of SUPPLEMENTARY INFORMATION: Improvement Act of 1997 (16 U.S.C. Natural History professional staff in 668dd–668ee et seq.), requires the consultation with professional staff of Introduction Service to develop a CCP for each the Alutiiq Museum and Archaeological With this notice, we complete the National Wildlife Refuge. The purpose Repository, Kodiak, AK, on behalf of CCP process for Seney NWR, which we in developing a CCP is to provide refuge Akhiok-Kaguyak, Inc.; Kaguyak Village; began by publishing a notice of intent managers with a 15-year strategy for Koniag, Inc.; and Native Village of on April 21, 2006 (71 FR 20722). For achieving refuge purposes and Akhiok. more information about the initial contributing toward the mission of the In 1950, human remains representing process, see that notice. We released the National Wildlife Refuge System, a minimum of one individual were

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removed from the the Alitak Bay side of DEPARTMENT OF THE INTERIOR represent the physical remains of one the Aliulik Peninsula, Kodiak Island, individual of Native American ancestry. AK, by Arthur Freeman, who donated National Park Service Officials of the Field Museum of Natural them to the Field Museum of Natural History also have determined that, History in 1983 (Field Museum of Notice of Inventory Completion: Field pursuant to 25 U.S.C. 3001 (2), there is Natural History accession number 3566, Museum of Natural History, Chicago, IL a relationship of shared group identity catalog number 242601). No known AGENCY: National Park Service, Interior. that can be reasonably traced between individual was identified. No associated the Native American human remains ACTION: Notice. funerary objects are present. and Koniag, Inc. and Native Village of The human remains have been Notice is here given in accordance Larsen Bay. identified as Native American based on with the Native American Graves Representatives of any other Indian specific cultural and geographic Protection and Repatriation Act tribe that believes itself to be culturally attributions in Field Museum of Natural (NAGPRA), 25 U.S.C. 3003, of the affiliated with the human remains History records. The records identify the completion of an inventory of human should contact Helen Robbins, human remains as ‘‘probably Koniag, remains in the possession of the Field Repatriation Director, Field Museum of Eskimo’’ from the ‘‘Alitak Bay side of Museum of Natural History, Chicago, IL. Natural History, 1400 South Lake Shore Aliulik Peninsula (154W 56’ 50’’N), The human remains were removed from Drive, Chicago, IL 60605–2496, Kodiak, Alaska.’’ Koniag Eskimo - a Uyak Bay, Kodiak Island, AK. telephone (312) 665–7317, before June term used by anthropologists to refer to This notice is published as part of the 25, 2009. Repatriation of the human both the late prehistoric and historic National Park Service’s administrative remains to Koniag, Inc. and Native Native peoples of the Kodiak region - responsibilities under NAGPRA, 25 Village of Larsen Bay may proceed after are the ancestors of the contemporary U.S.C. 3003 (d)(3). The determinations that date if no additional claimants Kodiak Alutiiq people. Specifically, the in this notice are the sole responsibility come forward. human remains are from an area of the of the museum, institution, or Federal The Field Museum of Natural History Kodiak archipelago traditionally used agency that has control of the Native is responsible for notifying Koniag, Inc. by shareholders and citizens of Akhiok- American human remains. The National and Native Village of Larsen Bay that Kaguyak, Inc.; Kaguyak Village; Koniag, Park Service is not responsible for the this notice has been published. Inc.; and Native Village of Akhiok. determinations in this notice. Dated: May 6, 2009 Officials of the Field Museum of A detailed assessment of the human Sherry Hutt, Natural History have determined that, remains was made by Field Museum of Manager, National NAGPRA Program. pursuant to 25 U.S.C. 3001 (9–10), the Natural History professional staff in [FR Doc. E9–12288 Filed 5–22–09; 8:45 am] human remains described above consultation with professional staff of BILLING CODE 4312–50–S represent the physical remains of one the Alutiiq Museum and Archaeological individual of Native American ancestry. Repository, Kodiak, AK, on behalf of Officials of the Field Museum of Natural Koniag, Inc. and Native Village of DEPARTMENT OF THE INTERIOR History also have determined that, Larsen Bay. pursuant to 25 U.S.C. 3001 (2), there is In 1967, human remains representing National Park Service a relationship of shared group identity a minimum of one individual were that can be reasonably traced between removed from the vicinity of Uyak Bay, Notice of Inventory Completion: U.S. the Native American human remains Kodiak Island, AK, by Kenneth G. Department of the Interior, National and Akhiok-Kaguyak, Inc.; Kaguyak McQuin, who donated them to the Field Park Service, Fort Vancouver National Village; Koniag, Inc.; and Native Village Museum of Natural History that same Historic Site, Vancouver, WA of Akhiok. year (Field Museum of Natural History AGENCY: National Park Service, Interior. accession number 2983, catalog number Representatives of any other Indian ACTION: Notice. tribe that believes itself to be culturally 193459). No known individual was affiliated with the human remains identified. No associated funerary Notice is here given in accordance should contact Helen Robbins, objects are present. with the Native American Graves Repatriation Director, Field Museum of The human remains have been Protection and Repatriation Act Natural History, 1400 South Lake Shore identified as Native American based on (NAGPRA), 25 U.S.C. 3003, of the Drive, Chicago, IL 60605–2496, specific cultural and geographic completion of an inventory of human telephone (312) 665–7317, before June attributions in Field Museum of Natural remains in the possession and control of 25, 2009. Repatriation of the human History records. The records identify the the U.S. Department of the Interior, remains to Akhiok-Kaguyak, Inc.; human remains as ‘‘Koniag Eskimo’’ National Park Service, Fort Vancouver Kaguyak Village; Koniag, Inc.; and from ‘‘Uyak Bay, Kodiak Island, National Historic Site, Vancouver, WA. Native Village of Akhiok may proceed Alaska.’’ Koniag Eskimo - a term used The human remains were removed from after that date if no additional claimants by anthropologists to refer to both the Clark County, WA. come forward. late prehistoric and historic Native This notice is published as part of the The Field Museum of Natural History peoples of the Kodiak region - are the National Park Service’s administrative is responsible for notifying Akhiok- ancestors of the contemporary Kodiak responsibilities under NAGPRA, 25 Kaguyak, Inc.; Kaguyak Village; Koniag, Alutiiq people. Specifically, the human U.S.C. 3003 (d)(3). The determinations Inc.; and Native Village of Akhiok that remains are from an area of the Kodiak in this notice are the sole responsibility this notice has been published. archipelago traditionally used by of the superintendent, Fort Vancouver shareholders and citizens of Koniag, Inc. National Historic Site. Dated: May 6, 2009 and Native Village of Larsen Bay. A detailed assessment of the human Sherry Hutt, Officials of the Field Museum of remains was made by Fort Vancouver Manager, National NAGPRA Program. Natural History have determined that, National Historic Site professional staff [FR Doc. E9–12289 Filed 5–22–09; 8:45 am] pursuant to 25 U.S.C. 3001 (9–10), the in consultation with representatives of BILLING CODE 4312–50–S human remains described above the Confederated Tribes and Bands of

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the Yakama Nation, Washington; Historic Site requested that the Review Completion in the Federal Register. Confederated Tribes of the Chehalis Committee recommend disposition of This notice fulfills that requirement. Reservation, Washington; Confederated the 11 culturally unidentifiable human Representatives of any other Indian Tribes of the Grand Ronde Community remains to the Vancouver Inter-Tribal tribe that believes itself to be culturally of Oregon; Confederated Tribes of the Consortium on behalf of the following affiliated with the human remains Siletz Reservation, Oregon; signatories: Clatsop-Nehalem should contact Tracy Fortmann, Confederated Tribes of the Umatilla Confederated Tribes; Confederated superintendent, Fort Vancouver Indian Reservation, Oregon; Tribes and Bands of the Yakama Nation, National Historic Site, 612 E. Reserve Confederated Tribes of the Warm Washington; Confederated Tribes of the St., Vancouver, WA 98661–3897, Springs Reservation of Oregon; Cowlitz Chehalis Reservation, Washington; telephone (360) 816–6205, before June Indian Tribe, Washington; Muckleshoot Confederated Tribes of the Grand Ronde 25, 2009. Disposition of the human Indian Tribe of the Muckleshoot Community of Oregon; Confederated remains to the Vancouver Inter-Tribal Reservation, Washington; Nisqually Tribes of the Siletz Reservation, Oregon; Consortium on behalf of the Clatsop- Indian Tribe of the Nisqually Confederated Tribes of the Umatilla Nehalem Confederated Tribes; Reservation, Washington; Snoqualmie Indian Reservation, Oregon; Confederated Tribes and Bands of the Tribe, Washington; Spokane Tribe of the Confederated Tribes of the Warm Yakama Nation, Washington; Spokane Reservation, Washington; Springs Reservation of Oregon; Cowlitz Confederated Tribes of the Chehalis Stillaguamish Tribe of Washington; and Indian Tribe, Washington; Muckleshoot Reservation, Washington; Confederated three non-Federally recognized Indian Indian Tribe of the Muckleshoot Tribes of the Grand Ronde Community groups – Clatsop-Nehalem Confederated Reservation, Washington; Nisqually of Oregon; Confederated Tribes of the Tribes, Snoqualmoo Tribe, and Siletz Reservation, Oregon; Wanapum Band. Indian Tribe of the Nisqually Confederated Tribes of the Umatilla In the 1950s, human remains Reservation, Washington; Snoqualmie Indian Reservation, Oregon; representing a minimum of nine Tribe, Washington; Snoqualmoo Tribe; individuals were removed from the I–5 Spokane Tribe of the Spokane Confederated Tribes of the Warm corridor in Clark County, WA. The Reservation, Washington; Stillaguamish Springs Reservation of Oregon; Cowlitz human remains were displaced by I–5 Tribe of Washington; and Wanapum Indian Tribe, Washington; Muckleshoot construction and donated to Fort Band. All have historical connections to Indian Tribe of the Muckleshoot Vancouver National Historic Site. No present-day Vancouver, WA, and have Reservation, Washington; Nisqually known individuals were identified. No requested the human remains through Indian Tribe of the Nisqually associated funerary objects are present. the Vancouver Inter-Tribal Consortium. Reservation, Washington; Snoqualmie In 1977, human remains representing The Review Committee considered the Tribe, Washington; Snoqualmoo Tribe; a minimum of two individuals were proposal at its October 11–12, 2008 Spokane Tribe of the Spokane removed from the village area of Fort meeting and recommended disposition Reservation, Washington; Stillaguamish Vancouver in Clark County, WA, during of the human remains to the Vancouver Tribe of Washington; and Wanapum archeological excavations in preparation Inter-Tribal Consortium on behalf of the Band may proceed after that date if no for planned modifications to State Route Clatsop-Nehalem Confederated Tribes; additional claimants come forward. 14. No known individuals were Confederated Tribes and Bands of the Fort Vancouver National Historic Site identified. No associated funerary Yakama Nation, Washington; is responsible for notifying the objects are present. Confederated Tribes of the Chehalis Confederated Tribes and Bands of the The age of the human remains is Reservation, Washington; Confederated Yakama Nation, Washington; unknown and no other information is Tribes of the Grand Ronde Community Confederated Tribes of the Chehalis available about either of the sites from of Oregon; Confederated Tribes of the Reservation, Washington; Confederated which they were removed. The available Siletz Reservation, Oregon; Tribes of the Grand Ronde Community evidence is insufficient to identify an Confederated Tribes of the Umatilla of Oregon; Confederated Tribes of the earlier group and therefore it is not Indian Reservation, Oregon; Siletz Reservation, Oregon; possible to make a determination of Confederated Tribes of the Warm Confederated Tribes of the Umatilla cultural affiliation. Springs Reservation of Oregon; Cowlitz Indian Reservation, Oregon; Officials of Fort Vancouver National Indian Tribe, Washington; Muckleshoot Confederated Tribes of the Warm Historic Site have determined that, Indian Tribe of the Muckleshoot Springs Reservation of Oregon; Cowlitz pursuant to 25 U.S.C. 3001 (9–10), the Reservation, Washington; Nisqually Indian Tribe, Washington; Muckleshoot human remains described above Indian Tribe of the Nisqually Indian Tribe of the Muckleshoot represent the physical remains of 11 Reservation, Washington; Snoqualmie Reservation, Washington; Nisqually individuals of Native American Tribe, Washington; Snoqualmoo Tribe; Indian Tribe of the Nisqually ancestry. Officials of Fort Vancouver Spokane Tribe of the Spokane Reservation, Washington; Snoqualmie National Historic Site also have Reservation, Washington; Stillaguamish Tribe, Washington; Spokane Tribe of the determined that, pursuant to 25 U.S.C. Tribe of Washington; and Wanapum Spokane Reservation, Washington; 3001 (2), a relationship of shared group Band. Stillaguamish Tribe of Washington; and identity cannot reasonably be traced three non-Federally recognized Indian between the Native American human An April 3, 2009 letter on behalf of groups – Clatsop-Nehalem Confederated remains and any present-day Indian the Secretary of the Interior from the Tribes, Snoqualmoo Tribe, and tribe. Designated Federal Official transmitted Wanapum Band that this notice has The Native American Graves the authorization for the park to effect been published. Protection and Repatriation Review disposition of the physical remains of Committee (Review Committee) is the culturally unidentifiable individuals Dated: May 5, 2009. responsible for recommending specific to the Vancouver Inter-Tribal Sherry Hutt, actions for disposition of culturally Consortium on behalf of the 15 Indian Manager, National NAGPRA Program. unidentifiable human remains. In tribes listed above contingent on the [FR Doc. E9–12282 Filed 5–22–09; 8:45 am] August 2008, Fort Vancouver National publication of a Notice of Inventory BILLING CODE 4312–50–S

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DEPARTMENT OF THE INTERIOR indicated they would not claim the should contact Dr. Jay Reifel, Assistant human remains because they consider Superintendent, Paul H. Karshner National Park Service Decatur Island to be outside of their Memorial Museum, telephone (253) usual and accustomed places. Both the 840–8971, or Ms. Beth Bestrom, Notice of Inventory Completion: Paul Samish Indian Nation and Swinomish Museum Curator, Paul H. Karshner H. Karshner Memorial Museum, Indian Tribal Community have Memorial Museum, telephone (253) Puyallup, WA submitted claims to the Paul H. 841–8748, 309 4th St. NE, Puyallup, WA AGENCY: National Park Service, Interior. Karshner Memorial Museum for human 98372, before June 25, 2009. remains from Decatur Island, and each Repatriation of the human remains to ACTION: Notice. tribe provided evidence regarding the Samish Indian Nation, Washington Notice is here given in accordance aboriginal use of Decatur Island. During may proceed after that date if no with the Native American Graves the consultation process, representatives additional claimants come forward. Protection and Repatriation Act of the Swinomish Indian Tribal The Paul H. Karshner Memorial (NAGPRA), 25 U.S.C. 3003, of the Community stated that they consider Museum is responsible for notifying the completion of an inventory of human Decatur Island to have been used Lummi Tribe of the Lummi Reservation, remains in the possession of Paul H. primarily by the aboriginal Samish, to Washington; Samish Indian Nation, Karshner Memorial Museum, Puyallup, which the Swinomish Indian Tribal Washington; Swinomish Indian Tribal WA. The human remains were removed Community is an adjudicated legal Community of the Swinomish from Decatur Island, San Juan County, successor in interest (United States v. Reservation, Washington; and Tulalip WA. Washington, 459 F. Supp. 1020, 1039 Tribes of the Tulalip Reservation, This notice is published as part of the (W.D. Wa. 1978)). During the Washington that this notice has been National Park Service’s administrative consultation process, representatives of published. the Samish Indian Nation stated that responsibilities under NAGPRA, 25 Dated: April 28, 2009. they consider Decatur Island to be U.S.C. 3003 (d)(3). The determinations Sherry Hutt, in this notice are the sole responsibility within their traditional territory and provided evidence that other human Manager, National NAGPRA Program. of the museum, institution, or Federal remains from Decatur Island have been [FR Doc. E9–12281 Filed 5–22–09; 8:45 am] agency that has control of the Native repatriated to the Samish Indian Nation. BILLING CODE 4312–50–S American human remains. The National Following consultation between the Park Service is not responsible for the Swinomish Indian Tribal Community determinations in this notice. and Samish Indian Nation, the DEPARTMENT OF THE INTERIOR A detailed assessment of the human Swinomish Indian Tribal Community remains was made by Paul H. Karshner National Park Service provided the museum with a written Memorial Museum professional staff in statement withdrawing their claim for consultation with representatives of the Notice of Inventory Completion: the human remains from Decatur Island. Lummi Tribe of the Lummi Reservation, Oregon State University, Department With the voluntarily withdrawal of the of Anthropology, Corvallis, OR Washington; Samish Indian Nation, claim for repatriation of the human Washington; Swinomish Indian Tribal remains by Swinomish Indian Tribal AGENCY: National Park Service, Interior. Community of the Swinomish Community, officials of the Paul H. ACTION: Notice. Reservation, Washington; and Tulalip Karshner Memorial Museum have Tribes of the Tulalip Reservation, determined that there is a Notice is here given in accordance Washington. preponderance of evidence in favor of with the Native American Graves In or prior to 1930, human remains the Samish Indian Nation’s claim for Protection and Repatriation Act representing a minimum of one repatriation. Both the Swinomish Indian (NAGPRA), 25 U.S.C. 3003, of the individual were removed from Decatur Tribal Community and Samish Indian completion of an inventory of human Island in San Juan County, WA. The Nation have agreed to work remains in the control of Oregon State human remains were donated to the cooperatively with respect to reburial of University, Department of museum by its founder, Dr. Warner M. the human remains after the repatriation Anthropology, Corvallis, OR. The Karshner, in 1930 (Catalog #1–362, is complete. human remains were removed from Accn. #1930.01). No known individual Officials of the Paul H. Karshner Fisher Mounds, Will County, IL. was identified. No associated funerary Memorial Museum have determined This notice is published as part of the objects are present. that, pursuant to 25 U.S.C. 3001 (9–10), National Park Service’s administrative The human remains are listed in the the human remains described above responsibilities under NAGPRA, 25 museum inventory as being from represent the physical remains of one U.S.C. 3003 (d)(3). The determinations Decatur Island and described as ‘‘one individual of Native American ancestry. in this notice are the sole responsibility flattened Indian skull’’ (museum Officials of the Paul H. Karshner of the museum, institution, or Federal inventory notebook). Further, a direct Memorial Museum also have agency that has control of the Native label on the cranium states ‘‘Decatur determined that, pursuant to 25 U.S.C. American human remains. The National Island, Puget Sound’’ as the place of 3001 (2), there is a relationship of Park Service is not responsible for the origin. Based on these records, the shared group identity that can be determinations in this notice. human remains have been determined reasonably traced between the Native A detailed assessment of the human by the museum to be Native American. American human remains and the remains was made by Oregon State Decatur Island is located within the Samish Indian Nation, Washington and University, Department of Anthropology San Juan Islands, an archipelago that is Swinomish Indian Tribal Community of professional staff in consultation with known to have been utilized by the the Swinomish Reservation, representatives of the Ho-Chunk Nation aboriginal Lummi, Samish, and Washington. of Wisconsin and the Iowa Tribe of Swinomish tribes or bands. During the Representatives of any other Indian Kansas and Nebraska. The Cheyenne consultation process with the Lummi tribe that believes itself to be culturally River Sioux Tribe of the Cheyenne River Tribe, representatives of the Lummi affiliated with the human remains Reservation, South Dakota; Citizen

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Potawatomi Nation, Oklahoma; According to George Langford, Sr., who Fox Nation of Missouri in Kansas and Delaware Nation, Oklahoma; Forest also excavated the area, the burials from Nebraska; Sac & Fox Nation of County Potawatomi Community, the small east mound most likely date Oklahoma; Shawnee Tribe, Oklahoma; Wisconsin; Hannahville Indian to the late 18th century. and Winnebago Tribe of Nebraska. Community, Michigan; Iowa Tribe of Native tribes in Illinois belonged to Officials of the Oregon State Oklahoma; Kickapoo Tribe of Indians of the Algonquian linguistic family. Tribes University, Department of Anthropology the Kickapoo Reservation in Kansas; inhabiting northeast Illinois included have determined that, pursuant to 25 Kickapoo Tribe of Oklahoma; Oglala the Miami, Mascouten and Illinois. U.S.C. 3001 (9–10), the human remains Sioux Tribe of the Pine Ridge During the latter half of the 1700s, the described above represent the physical Reservation, South Dakota; Otoe- Winnebago and Shawnee lived in the remains of one individual of Native Missouria Tribe of Indians, Oklahoma; area. Early 18th century migrations and American ancestry. Officials of the Peoria Tribe of Indians of Oklahoma; forced relocation from the east brought Oregon State University, Department of Pokagon Band of Potawatomi Indians, the Sauk, Fox, Kickapoo and Anthropology also have determined Michigan and Indiana; Prairie Band of Potawatomi into the area. The that, pursuant to 25 U.S.C. 3001 (2), Potawatomi Nation, Kansas; Sac & Fox Mascouten became part of the Kickapoo there is a relationship of shared group Tribe of the Mississippi in Iowa; Sac & after 1800. In 1854, tribes associated identity that can be reasonably traced Fox Nation of Missouri in Kansas and with the Miami and the Illinois became between the Native American human Nebraska; and Winnebago Tribe of associated with the Confederated Peoria, remains and the Citizen Potawatomi Nebraska were notified, but did not and by 1873 they became known as the Nation of Oklahoma; Forest County participate in consultation on the United Peoria and Miamis. Later Potawatomi Community of Wisconsin; human remains described in this notice. periods, the Miami tribe associated with Hannahville Indian Community, On an unknown date, human remains the Potawatomi, Shawnee, and Michigan; Ho-Chunk Nation of representing a minimum of one Delaware. Therefore, the tribes that Wisconsin; Iowa Tribe of Kansas and individual were removed from Fisher occupied Illinois at the close of the 18th Nebraska; Iowa Tribe of Oklahoma; Mounds, Will County, IL, by an century are the Mascouten, Miami, Kickapoo Tribe of Indians of the unknown individual. In 1976, the Illinois, Sauk, Fox, Kickapoo, Shawnee, Kickapoo Reservation in Kansas; human remains were donated to the Potawatomi, and Winnebago. Kickapoo Tribe of Oklahoma; Miami Department of Anthropology by the son The Ho-Chunk Nation of Wisconsin; Tribe of Oklahoma; Otoe-Missouria of Georg Karl Neumann. Dr. Neumann Iowa Tribe of Kansas and Nebraska; Tribe of Indians of Oklahoma; Peoria worked as a physical anthropologist for Otoe-Missouria Tribe of Indians, Tribe of Indians of Oklahoma; Pokagon Indiana State University, Terre Haute, Oklahoma; and Winnebago Tribe of Band of Potawatomi Indians of IN. No known individual was identified. Nebraska have provided both written Michigan and Indiana; Prairie Band of No associated funerary objects are and oral history for their traditional Potawatomi Nation of Kansas; Sac & Fox present. occupation of Midwest areas east of the Tribe of the Mississippi in Iowa; Sac & Museum records indicate that the Mississippi and have demonstrated land Fox Nation of Missouri in Kansas and human remains are identified as ‘‘3EM.’’ claims in Illinois. In addition, published Nebraska; Sac & Fox Nation of According to the culturally works cite the Ho-Chunk Nation of Oklahoma; Shawnee Tribe, Oklahoma; unidentifiable (CUI) database of the Wisconsin; Iowa Tribe of Kansas and and Winnebago Tribe of Nebraska. National NAGPRA Program in the CUI Nebraska; Iowa Tribe of Oklahoma; Representatives of any other Indian inventory for Indiana State University, Otoe-Missouria Tribe of Indians, tribe that believes itself to be culturally ‘‘3EM’’ is used to identify human Oklahoma; and the Winnebago Tribe of affiliated with the human remains remains from the Fisher Mound group Nebraska, as having had villages in should contact Dr. David McMurray, in Will County, IL (East Mound). Dr. Illinois characterized by mound- Oregon State University, Department of Neumann’s notes identify the human building cultural practices. Anthropology, 238 Waldo Hall, remains as 3EM108. Officials at the Based on the preponderance of the Corvallis, OR 97331, telephone (541) University of Oregon, Department of evidence, including the primary body of 737–4515, before June 25, 2009. Anthropology reasonably believe that, Dr. Neumann’s work in Illinois, Repatriation of the human remains to based on these records, the individual is collection records, and oral history, the Ho-Chunk Nation of Wisconsin and most likely from the Fisher Mounds site. officials of the Oregon State University the Iowa Tribe of Kansas and Nebraska The Fisher Mounds are located in Department of Anthropology reasonably may proceed after that date if no northeastern Illinois, 60 miles believe that the descendants of these additional claimants come forward. southwest of Chicago, on the south bank Mascouten, Miami, Illinois, Sauk, Fox, The Oregon State University, of the Des Plaines River, approximately Kickapoo, Shawnee, Potawatomi, and Department of Anthropology is one mile north of the confluence of the Winnebago are members of the Citizen responsible for notifying the Cheyenne Des Plaines and Kankakee Rivers. Potawatomi Nation of Oklahoma; Forest River Sioux Tribe of the Cheyenne River Formerly, the Fisher Mounds were part County Potawatomi Community of Reservation, South Dakota; Citizen of the Cornelius Estate, also known as Wisconsin; Hannahville Indian Potawatomi Nation, Oklahoma; the Dan Fisher Farm. Excavation at the Community, Michigan; Ho-Chunk Delaware Nation, Oklahoma; Forest Fisher Farm took place during the early Nation of Wisconsin; Iowa Tribe of County Potawatomi Community, 20th century. The site comprises a large Kansas and Nebraska; Iowa Tribe of Wisconsin; Hannahville Indian village with numerous house floors and Oklahoma; Kickapoo Tribe of Indians of Community, Michigan; Ho-Chunk pits, as well as 12 mounds. Several the Kickapoo Reservation in Kansas; Nation of Wisconsin; Iowa Tribe of mounds were found to contain burials Kickapoo Tribe of Oklahoma; Otoe- Kansas and Nebraska; Iowa Tribe of of Native Americans along with native Missouria Tribe of Indians of Oklahoma; Oklahoma; Kickapoo Tribe of Indians of artifacts. Thousands of human remains Peoria Tribe of Indians of Oklahoma; the Kickapoo Reservation in Kansas; and items were unearthed from the Pokagon Band of Potawatomi Indians of Kickapoo Tribe of Oklahoma; Miami multiple layers of burials within the Michigan and Indiana; Prairie Band of Tribe of Oklahoma; Oglala Sioux Tribe mounds, with each layer constituting a Potawatomi Nation of Kansas; Sac & Fox of the Pine Ridge Reservation, South different occupational period. Tribe of the Mississippi in Iowa; Sac & Dakota; Otoe-Missouria Tribe of Indians,

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Oklahoma; Peoria Tribe of Indians of Prior to 1946, human remains The Native American Graves Oklahoma; Pokagon Band of representing a minimum of one Protection and Repatriation Review Potawatomi Indians, Michigan and individual were removed as a surface Committee (Review Committee) is Indiana; Prairie Band of Potawatomi find from an unidentified site in the responsible for recommending specific Nation, Kansas; Sac & Fox Tribe of the area of Detroit, Wayne County, MI, by actions for disposition of culturally Mississippi in Iowa; Sac & Fox Nation amateur collector Leo J. Dickey. Mr. unidentifiable human remains. In of Missouri in Kansas and Nebraska; Sac Dickey donated the human remains to October 2008, the Kalamazoo Valley & Fox Nation of Oklahoma; Shawnee the Kalamazoo Museum (today the Museum requested that the Review Tribe, Oklahoma; and Winnebago Tribe Kalamazoo Valley Museum) in 1951. No Committee recommend disposition of of Nebraska that this notice has been known individual was identified. No three culturally unidentifiable human published. associated funerary objects are present. remains to the Bay Mills Indian The limited information provided by Dated: May 11, 2009 Community, Michigan; Grand Traverse the donor for the human remains has Band of Ottawa and Chippewa Indians, Sherry Hutt, been determined by museum officials to Michigan; Keweenaw Bay Indian Manager, National NAGPRA Program. be insufficient to reasonably associate Community, Michigan; Lac Vieux Desert [FR Doc. E9–12256 Filed 5–22–09; 8:45 am] them to any present-day Indian tribe. Band of Lake Superior Chippewa BILLING CODE 4312–50–S Therefore, officials of the Kalamazoo Indians, Michigan; Little Traverse Bay Valley Museum have determined the Bands of Odawa Indians, Michigan; Native American human remains are Pokagon Band of Potawatomi Indians, DEPARTMENT OF THE INTERIOR culturally unidentifiable. Michigan and Indiana; Saginaw At an unknown date, human remains Chippewa Indian Tribe of Michigan; National Park Service representing two individuals were and Sault Ste. Marie Tribe of Chippewa Notice of Inventory Completion: removed from an unidentified mound Indians of Michigan, as the aboriginal builder site (or sites) in Michigan. In Kalamazoo Valley Museum, Kalamazoo occupants of Michigan. 1946, during an inventory of the Valley Community College, Kalamazoo, The Review Committee considered Kalamazoo Museum collection, the MI the proposal at its October 11–12, 2008 human remains were found uncataloged meeting and recommended disposition AGENCY: National Park Service, Interior. in the collection. They were identified of the human remains to the Bay Mills as Native American ancestry based on Indian Community, Michigan; Grand ACTION: Notice. handwritten labels affixed to the Traverse Band of Ottawa and Chippewa Notice is here given in accordance foreheads of the skulls reading Indians, Michigan; Keweenaw Bay with the Native American Graves ‘‘Moundbuilder.’’ A thorough search of Indian Community, Michigan; Lac museum records did not reveal the Protection and Repatriation Act Vieux Desert Band of Lake Superior donor of the human remains or the date (NAGPRA), 25 U.S.C. 3003, of the Chippewa Indians, Michigan; Little they arrived at the museum. The human completion of an inventory of human Traverse Bay Bands of Odawa Indians, remains were subsequently cataloged remains in the possession of the Michigan; Pokagon Band of Potawatomi into the collection as Native American Kalamazoo Valley Museum, Kalamazoo Indians, Michigan and Indiana; Saginaw human remains of Michigan mound Valley Community College, Kalamazoo, Chippewa Indian Tribe of Michigan; builder ancestry. No known individuals MI. The human remains were most and Sault Ste. Marie Tribe of Chippewa were identified. No associated funerary Indians of Michigan. An April 3, 2009 likely removed from Wayne County and objects are present. letter on behalf of the Secretary of unidentified mound builder settlements In June 2008, two anthropology Interior from the Designated Federal in Michigan. professors from Western Michigan Officer, transmitted the authorization This notice is published as part of the University examined the human for the Kalamazoo Valley Museum to National Park Service’s administrative remains and determined that they were effect disposition of the human remains responsibilities under NAGPRA, 25 consistent with Native American to the eight Indian tribes listed above U.S.C. 3003 (d)(3). The determinations morphology. However, given the contingent on the publication of a in this notice are the sole responsibility circumstances of the acquisition of the Notice of Inventory Completion in the of the museum, institution, or Federal human remains, the museum staff has Federal Register. This notice fulfills agency that has control of the Native concluded that there is insufficient that requirement. American human remains. The National information to reasonably associate Representatives of any other Indian Park Service is not responsible for the them to any present-day Indian tribe. tribe that believes itself to be culturally determinations in this notice. Therefore, officials of the Kalamazoo affiliated with the human remains A detailed assessment of the human Valley Museum have determined that should contact Paula L. Metzner, remains was made by the Kalamazoo the Native American human remains are Kalamazoo Valley Museum, P.O. Box Valley Museum professional staff in culturally unidentifiable. 4070, Kalamazoo, MI 49003–4070, consultation with representatives of the Officials of the Kalamazoo Valley telephone (269) 373–7958, before June Bay Mills Indian Community, Michigan; Museum have determined that, 25, 2009. Disposition of the human Grand Traverse Band of Ottawa and pursuant to 25 U.S.C. 3001 (9–10), the remains to the Bay Mills Indian Chippewa Indians, Michigan; human remains described above Community, Michigan; Grand Traverse Keweenaw Bay Indian Community, represent the physical remains of three Band of Ottawa and Chippewa Indians, Michigan; Lac Vieux Desert Band of individuals of Native American Michigan; Keweenaw Bay Indian Lake Superior Chippewa Indians, ancestry. Officials of the Kalamazoo Community, Michigan; Lac Vieux Desert Michigan; Little Traverse Bay Bands of Valley Museum also have determined Band of Lake Superior Chippewa Odawa Indians, Michigan; Pokagon that, pursuant to 25 U.S.C. 3001 (2), a Indians, Michigan; Little Traverse Bay Band of Potawatomi Indians, Michigan shared group relationship cannot be Bands of Odawa Indians, Michigan; and Indiana; Saginaw Chippewa Indian reasonably traced between the Native Pokagon Band of Potawatomi Indians, Tribe of Michigan; and Sault Ste. Marie American human remains and any Michigan and Indiana; Saginaw Tribe of Chippewa Indians of Michigan. present-day Indian tribe. Chippewa Indian Tribe of Michigan;

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and Sault Ste. Marie Tribe of Chippewa number 407, catalog number 41471). No DEPARTMENT OF THE INTERIOR Indians of Michigan may proceed after known individual was identified. No that date if no additional claimants associated funerary objects are present. National Park Service come forward. The human remains have been The Kalamazoo Valley Museum is National Register of Historic Places; identified as Native American based on responsible for notifying the Bay Mills Notification of Pending Nominations specific cultural and geographic Indian Community, Michigan; Grand and Related Actions Traverse Band of Ottawa and Chippewa attributions in Field Museum of Natural Indians, Michigan; Keweenaw Bay History records. The records identify the Nominations for the following Indian Community, Michigan; Lac human remains as ‘‘Eskimo’’ from an properties being considered for listing Vieux Desert Band of Lake Superior ‘‘ancient dwelling at Karluk, Kodiak Isl., or related actions in the National Chippewa Indians, Michigan; Little Alaska.’’ The term ‘‘Eskimo’’ is used by Register were received by the National Traverse Bay Bands of Odawa Indians, anthropologists to refer to both the Park Service before May 9, 2009. Michigan; Pokagon Band of Potawatomi prehistoric and historic Native peoples Pursuant to section 60.13 of 36 CFR part Indians, Michigan and Indiana; Saginaw of the Kodiak region, who are the 60, written comments concerning the Chippewa Indian Tribe of Michigan; ancestors of the present-day Alutiiq significance of these properties under and Sault Ste. Marie Tribe of Chippewa people. Specifically, the human remains the National Register criteria for Indians of Michigan that this notice has are from an area of the Kodiak evaluation may be forwarded by United States Postal Service, to the National been published. archipelago traditionally used by Register of Historic Places, National shareholders and citizens of Koniag, Dated: May 11, 2009. Park Service, 1849 C St., NW., 2280, Inc.; Native Village of Karluk; and Sherry Hutt, Washington, DC 20240; by all other Manager, National NAGPRA Program. Native Village of Larsen Bay. carriers, National Register of Historic [FR Doc. E9–12252 Filed 5–22–09; 8:45 am] Officials of the Field Museum of Places, National Park Service,1201 Eye BILLING CODE 4312–50–S Natural History have determined that, St. NW., 8th floor, Washington, DC pursuant to 25 U.S.C. 3001 (9–10), the 20005; or by fax, 202–371–6447. Written human remains described above or faxed comments should be submitted DEPARTMENT OF THE INTERIOR represent the physical remains of one by June 10, 2009. individual of Native American ancestry. J. Paul Loether, National Park Service Officials of the Field Museum of Natural Chief, National Register of Historic Places/ Notice of Inventory Completion: Field History also have determined that, National Historic Landmarks Program. Museum of Natural History, Chicago, IL pursuant to 25 U.S.C. 3001 (2), there is a relationship of shared group identity CONNECTICUT AGENCY: National Park Service, Interior. that can be reasonably traced between New Haven County ACTION: Notice. the Native American human remains Christ Church New Haven, 70 Broadway, and Koniag, Inc.; Native Village of New Haven, 09000420. Notice is here given in accordance Karluk; and Native Village of Larsen with the Native American Graves INDIANA Bay. Protection and Repatriation Act Boone County (NAGPRA), 25 U.S.C. 3003, of the Representatives of any other Indian tribe that believes itself to be culturally Traders Point Eagle Creek Rural Historic completion of an inventory of human District, (Eagle Township and Pike remains in the possession of the Field affiliated with the human remains Township, Indiana MPS) Roughly between Museum of Natural History, Chicago, IL. should contact Helen Robbins, I–865, I–465 and Lafayette Rd., The human remains were removed from Repatriation Director, Field Museum of Indianapolis, 09000433. Karluk, Kodiak Island, AK. Natural History, 1400 South Lake Shore Traders Point Rural Historic District, (Eagle This notice is published as part of the Drive, Chicago, IL 60605–2496, Township and Pike Township, Indiana National Park Service’s administrative telephone (312) 665–7317, before June MPS) Roughly bounded by IN 334, I–865, responsibilities under NAGPRA, 25 Old Hunt Club Rd. & CR 850 E., Zionsville, 25, 2009. Repatriation of the human 09000421. U.S.C. 3003 (d)(3). The determinations remains to Koniag, Inc.; Native Village in this notice are the sole responsibility of Karluk; and Native Village of Larsen Clinton County of the museum, institution, or Federal Bay may proceed after that date if no South Frankfort Historic District, Roughly agency that has control of the Native additional claimants come forward. between Walnut St., Prairie Creek, American human remains. The National Meredith and Columbia Sts., Frankfort, Park Service is not responsible for the The Field Museum of Natural History 09000422. is responsible for notifying Koniag, Inc., determinations in this notice. Franklin County A detailed assessment of the human Native Village of Karluk, and Native remains was made by Field Museum of Village of Larsen Bay that this notice Turrell, Salmon, Farmstead, 3051 Snow Hill Natural History professional staff in has been published. Rd., West Harrison, 09000423. Hancock County consultation with professional staff of Dated: May 6, 2009 the Alutiiq Museum and Archaeological Sherry Hutt, Lincoln Park School, (Indiana’s Public Repository, Kodiak, AK, on behalf of Common and High Schools MPS) 600 W. Koniag, Inc.; Native Village of Karluk; Manager, National NAGPRA Program. N. St., Greenfield, 09000424. [FR Doc. E9–12291 Filed 5–22–09; 8:45 am] and Native Village of Larsen Bay. Hendricks County In 1893, employees of the Field BILLING CODE 4312–50–S Museum of Natural History purchased Adams, Ora, House, 301–303 E. Main St., Danville, 09000425. human remains representing one individual from Ward’s Natural Science Huntington County Establishment, Rochester, NY (Field Chenoweth-Coulter Farm, 7067 S. Etna Rd., Museum of Natural History accession LaFontaine, 09000426.

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Lake County Hamilton County DEPARTMENT OF THE INTERIOR American Sheet and Tin Mill Apartment Hotel Metropole, 609 Walnut St., Cincinnati, Building, (Concrete in Steel City: The 09000443. National Park Service Edison Concept Houses of Gary Indiana MS) 633 W. 4th Ave., Gary, 09000427. Lawrence County National Register of Historic Places; Jackson-Monroe Terraces Historic District, Selby Shoe Company Building, 1603 S. 3rd Weekly Listing of Historic Properties (Concrete in Steel City: The Edison St., Ironton, 09000444. Pursuant to (36 CFR 60.13(b,c)) and Concept Houses of Gary Indiana MS) 404– (36 CFR 63.5), this notice, through 423 Jackson St. and 408–426 Monroe St., SOUTH DAKOTA publication of the information included Gary, 09000428. Davison County Monroe Terrace Historic District, (Concrete herein, is to apprise the public as well in Steel City: The Edison Concept Houses Hill, W.S., House, 520 E. 6th Ave., Mitchell, as governmental agencies, associations of Gary Indiana MS) 304–318 Monroe St., 09000445. and all other organizations and Gary, 09000429. Fall River County individuals interested in historic Polk Street Terraces Historic District, preservation, of the properties added to, (Concrete in Steel City: The Edison State Soldiers Home Barn, 2500 Minnekahta or determined eligible for listing in, the Concept Houses of Gary Indiana MS) 404– Ave., Hot Springs, 09000446. National Register of Historic Places from 422 and 437–455 Polk St., Gary, 09000430. Hughes County April 6, to April 10, 2009. For further information, please Marion County Pierre Masonic Lodge, 201 W. Capitol Ave., contact Edson Beall via: United States Pierre, 09000447. Gibson Company Building, 433–447 N. Postal Service mail, at the National Capitol Ave., Indianapolis, 09000431. Lincoln County HCS Motor Car Company, 1402 N. Capitol Register of Historic Places, 2280, Ave., Indianapolis, 09000432. Hudson Boy Scout Cabin, 416 Wheelock, National Park Service, 1849 C St., NW., Traders Point Eagle Creek Rural Historic Hudson, 09000448. Washington, DC 20240; in person (by District, (Eagle Township and Pike appointment), 1201 Eye St., NW., 8th Perkins County Township, Indiana MPS) Roughly between floor, Washington, DC 20005; by fax, I–865, I–465 and Lafayette Rd., Central Perkins County Stockyard and 202–371–2229; by phone, 202–354– Indianapolis, 09000433. Weighing Station, 1.5 mi. W. of Bison on 2255; or by e-mail, SD 20, Bison, 09000449. _ Switzerland County Edson [email protected]. Switzerland County Courthouse, 212 W. TEXAS Dated: May 19, 2009. J. Paul Loether, Main St., Vevay, 09000435. El Paso County Chief, National Register of Historic Places/ Vanderburgh County Mesa Pump Plant, 4901 Fred Wilson Ave., El National Historic Landmarks Program. USS LST 325 (tank landing ship), 840 LST Paso, 09000450. Dr., Evansville, 09000434. KEY: State, County, Property Name, Address/ Fayette County Boundary, City, Vicinity, Reference MASSACHUSETTS Sengelmann Hall and City Meat Market Number, Action, Date, Multiple Name Arizona, Coconino County, Ice House, The, Essex County Building, 527 and 529–533 N. Main St., 201 E. Birch Ave., Flagstaff, 09000174, Schulenburg, 09000451. Merrimack Associates Building, 25 Locust Listed, 4/08/09 St., Haverhill, 09000436. VIRGINIA California, Los Angeles County, Frank, Richard and Mary Alice, House, 919 La Middlesex County Charlottesville Independent city Loma Rd., Pasadena, 09000175, Listed, 4/ Franklin School, 7 Stedman Rd., Lexington, Fifeville and Tonsler Neighborhoods Historic 10/09 (Cultural Resources of the Recent 09000437. District, Bounded by Cherry Ave, to the S., Past, City of Pasadena) California, Los Angeles County, Marguerita Plymouth County the railway to the N., 4rth St., SW to the E., and Spring St., to the W., Lane Historic District, Marguerita La. off South Middleborough Historic District, South Morengo Ave., Pasadena, 09000177, Charlottesville, 09000452/ Locust, Spruce, and Wareham Sts., Listed, 4/10/09 Middleborough, 09000438. WISCONSIN California, Los Angeles County, Mello, Clarence and Mary, House, 541 Fremont MISSOURI Buffalo County Dr., Pasadena, 09000178, Listed, 4/10/09 Cape Girardeau County Harmonia Hall, S2119 Co. Hwy. E., (Cultural Resources of the Recent Past, City of Pasadena) Vasterling, Julius, Building, (Cape Girardeau, Waumandee, 09000453. California, Los Angeles County, Norton, John, Missouri MPS) 633–637 Broadway, Cape WYOMING House, 820 Burleigh Dr., Pasadena, Girardeau, 09000439. 09000179, Listed, 4/10/09 (Cultural Natrona County Jackson County Resources of the Recent Past, City of Hotel Otten, (Working Class Hotels at 19th Odd Fellows Building, 136 S. Wolcott St., Pasadena) California, Los Angeles County, Pacific and Main Streets, Kansas City, Missouri Casper, 09000455. Electric Building, 610 S. Main St., Los MPS) 2018–2020 Main St., Kansas City, Sublette County Angeles, 09000180, Listed, 4/09/09 09000440. Sommers Ranch Headquarters Historic California, Los Angeles County, Pike, Robert St. Louis Independent city District, 734 Co. Rd. 23–110, Pinedale, and Barbara, House, 512 Glen Ct., Liggett & Myers Historic District, Roughly 09000454. Pasadena, 09000181, Listed, 4/10/09 (Cultural Resources of the Recent Past, City bounded by Vandeventer, Park, Thurman [FR Doc. E9–12073 Filed 5–22–09; 8:45 am] of Pasadena) and Lafayette Aves., St. Louis, 09000441. BILLING CODE P California, Placer County, Carnegie Library, OHIO 557 Lincoln St., Roseville, 09000199, Listed, 4/10/09 Franklin County Florida, Sarasota County, Downtown Born Capital Brewery Bottling Works, 570 S. Sarasota Historic District, Bound by 1st St., Front St., Columbus, 09000442. Orange Ave., State St., Gulf Stream Ave.

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and N. Pineapple Ave., Sarasota, 09000183, Interested parties are encouraged to prevailing mining conditions. For Listed, 4/09/09 send comments to the Office of additional information, see related Georgia, Newton County, Brick Store, US 278 Information and Regulatory Affairs, notice published at Vol. 74 FR 10779 on at Little River Rd./Social Circle Rd., Attn: OMB Desk Officer for the March 12, 2009. Covington vicinity, 09000186, Listed, 4/09/ 09 Department of Labor—Mine Safety and Agency: Mine Safety and Health Georgia, Walker County, Chickamauga Coal Health Administration (MSHA), Office Administration. and Iron Company Coke Ovens, GA 341, of Management and Budget, 725 17th Type of Review: Extension without Chickamauga, 09000188, Listed, 4/09/09 Street, NW., Room 10235, Washington, change of currently approved collection. Kansas, Dickinson County, Eliason Barn, 147 DC 20503, Telephone: 202–395–4816/ Title of Collection: Notification of KS 4, Gypsum, 09000189, Listed, 4/08/09 Fax: 202–395–6974 (these are not toll- Methane Detected in Mine Atmosphere. (Agriculture-Related Resources of Kansas) free numbers), E-mail: OMB Control Number: 1219–0103. Kansas, Ellis County, Mermis, J.A., House, [email protected] within 1401 Ash St., Hays, 09000190, Listed, 4/ Form Number: N/A. 08/09 30 days from the date of this publication Estimated Number of Respondents: 8. Kansas, Montgomery County, Brown Barn, in the Federal Register. In order to Estimated Total Annual Burden 5879 Co. Rd. 4300, Independence, ensure the appropriate consideration, Hours: 36. 09000191, Listed, 4/08/09 (Agriculture- comments should reference the Estimated Total Annual Cost Burden Related Resources of Kansas) applicable OMB Control Number (see (does not include hourly wage costs): $0. Kansas, Ness County, Thornburg Barn, Co. below). Affected Public: Business or other for Rd. A, 1.5 mi. W. of D Rd., Utica, The OMB is particularly interested in profits (mines). 09000192, Listed, 4/08/09 (Agriculture- comments which: Description: Methane is a flammable Related Resources of Kansas) • Evaluate whether the proposed Kansas, Pottawatomie County, Teske gas found in underground mining that Farmstead, 20795 Major Jenkins Rd., collection of information is necessary presence can reduce the oxygen content Onaga, 09000193, Listed, 4/08/09 for the proper performance of the when mixed with air, and consequently (Agriculture-Related Resources of Kansas) functions of the agency, including can act as an asphyxiant when present Kansas, Republic County, Shimanek Barn, whether the information will have in large quantities. To help prevent 1806 220 Rd., Munden, 09000194, Listed, practical utility; accidents or injuries, MSHA requires • 4/08/09 (Agriculture-Related Resources of Evaluate the accuracy of the operators of underground metal and Kansas) agency’s estimate of the burden of the Kansas, Sheridan County, Shafer Barn, Co. nonmetal mines to notify MSHA of any proposed collection of information, change in methane conditions, e.g., an Rd. 50S, 1.5 mi. W. of Co. Rd. 80E, Hoxie, including the validity of the 09000195, Listed, 4/08/09 (Agriculture- outburst, a blowout, methane ignition, methodology and assumptions used; Related Resources of Kansas) • or methane occurrence of 0.25% or Wisconsin, Columbia County, Goeres Park, Enhance the quality, utility, and more. For additional information, see 101 Fair St., Lodi, 09000197, Listed, 4/09/ clarity of the information to be related notice published at Vol. 74 FR 09 collected; and 9831 on March 6, 2009. Wisconsin, Columbia County, Lodi School • Minimize the burden of the Hillside Improvement Site, Corner St., collection of information on those who Agency: Mine Safety and Health bounded by Pleasant St. and Columbus St., are to respond, including through the Administration. Lodi, 09000198, Listed, 4/09/09 use of appropriate automated, Type of Review: Extension without change of currently approved collection. [FR Doc. E9–12072 Filed 5–22–09; 8:45 am] electronic, mechanical, or other Title of Collection: Safety Standards BILLING CODE P technological collection techniques or other forms of information technology, for Roof Bolts in Metal and Nonmetal e.g., permitting electronic submission of Mines and Underground Coal Mines. OMB Control Number: 1219–0121. DEPARTMENT OF LABOR responses. Agency: Mine Safety and Health Form Number: N/A. Estimated Number of Respondents: Office of the Secretary Administration. Type of Review: Extension without 833. Submission for OMB Review: change of currently approved collection. Estimated Total Annual Burden Comment Request Title of Collection: Roof Control Plans. Hours: 165. OMB Control Number: 1219–0004. Estimated Total Annual Cost Burden May 20, 2009. Form Number: N/A. (does not include hourly wage costs): $0. The Department of Labor (DOL) Estimated Number of Respondents: Affected Public: Business or other for hereby announces the submission of the 613. profits (mines). following public information collection Estimated Total Annual Burden Description: Falls of roofs, faces, ribs, requests (ICR) to the Office of Hours: 12,813. and highwalls in surface mines, Management and Budget (OMB) for Estimated Total Annual Cost Burden historically, have been among the review and approval in accordance with (does not include hourly wage costs): leading cause of injuries and deaths in the Paperwork Reduction Act of 1995 $7,020. mines. Therefore, in order to protect the (Pub. L. 104–13, 44 U.S.C. chapter 35). Affected Public: Business or other for safety of miners, mine operators are A copy of each ICR, with applicable profits (mines). required to obtain certification from the supporting documentation; including Description: In order to prevent manufacturers that roof and rock bolts among other things a description of the occupational injuries resulting from and accessories are manufactured and likely respondents, proposed frequency falls of roofs, faces, and ribs, which are tested in accordance with the applicable of response, and estimated total burden a leading cause of injuries and death in American Society for Testing and may be obtained from the RegInfo.gov underground coal mines, all Materials (ASTM) specifications and Web site at http://www.reginfo.gov/ underground coal mine operators are make that certification available to an public/do/PRAMain or by contacting required to develop and submit roof authorized representative of the Darrin King on 202–693–4129 (this is control plans to MSHA for evaluation Secretary. For additional information, not a toll-free number)/e-mail: and approval. These plans are evaluated see related notice published at Vol. 74 [email protected]. to determine if they are adequate for FR 9292 on March 3, 2009.

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Agency: Mine Safety and Health not a toll-free number)/e-mail: operator and mine rescue team is Administration. [email protected]. Interested prepared for a mine emergency. The Type of Review: Extension without parties are encouraged to send records show that the mine rescue team change of currently approved collection. comments to the Office of Information equipment has been examined and Title of Collection: Health Standards and Regulatory Affairs, Attn: OMB Desk tested and is in good working order. The for Diesel Particulates (Underground Officer for the Department of Labor— training records show that the mine Metal and Nonmetal Mines). Mine Safety and Health Administration rescue team members and the OMB Control Number: 1219–0135. (MSHA), Office of Management and responsible persons at the mine are Form Number: N/A. Budget, Room 10235, Washington, DC competent to respond to a mine Estimated Number of Respondents: 20503, Telephone: 202–395–7316/Fax: emergency involving a fire, an 173. 202–395–6974 (these are not toll-free explosion, or a gas or water inundation. Estimated Total Annual Burden numbers), e-mail: OIRA_submission@ The records greatly assist those who use Hours: 3,331. omb.eop.gov. Comments and questions them in making decisions that will Estimated Total Annual Cost Burden about the ICR listed below should be ultimately affect the safety of all persons (does not include hourly wage costs): received no later than the requested working underground. $176,363. These information collection Affected Public: Business or other for OMB approval date. An additional opportunity to comment on this ICR requirements help assure that properly profits (mines). trained mine rescue teams are readily Description: This collection pertains will also be provided when DOL seeks approval under standard PRA clearance available to save endangered miners in to safety requirements and safety life-threatening situations. In addition, standards for the maintenance and use procedures pursuant to 5 CFR 1320.12, ‘‘Clearance of collections of information the training requirements in this of diesel equipment in underground information collection will help assure metal and nonmetal mines to protect in current rules.’’ The OMB is particularly interested in the safety of the mine rescue team itself. miners. The Diesel Particulate Matter Why are we requesting Emergency (DPM) rule establishes a permissible comments which: • Evaluate whether the proposed Processing? The Mine Improvement and exposure limit to total carbon, which is collection of information is necessary New Emergency Response Act of 2006 a surrogate for measuring a miner’s for the proper performance of the became effective on June 15, 2006 exposure to DPM. The information functions of the agency, including (MINER Act). The goal of the MINER collected is provided to the MSHA whether the information will have Act is ‘‘to improve the safety of mines inspector and used by the agency to practical utility; and mining.’’ To accomplish this goal, monitor the mine operator’s compliance • Evaluate the accuracy of the the MINER Act includes provisions to with the health standard. For additional agency’s estimate of the burden of the improve mine emergency response time, information, see related notice proposed collection of information, improve mine rescue team effectiveness, published at Vol. 74 FR 11973 on March including the validity of the and increase the quantity and quality of 20, 2009. methodology and assumptions used; mine rescue team training. Darrin A. King, • Enhance the quality, utility, and Section 4 of the MINER Act required MSHA to publish regulations on mine Departmental Clearance Officer. clarity of the information to be rescue teams. Because the mine rescue [FR Doc. E9–12127 Filed 5–22–09; 8:45 am] collected; and • Minimize the burden of the team provisions contained in Section 4 BILLING CODE 4510–43–P collection of information on those who of the MINER Act apply only to are to respond, including through the underground coal mines, this rule will affect those mines and the mine rescue DEPARTMENT OF LABOR use of appropriate automated, electronic, mechanical, or other teams that cover them. Office of the Secretary technological collection techniques or MSHA published a final rule revising other forms of information technology, the Agency’s requirements for mine Submission for OMB Emergency e.g., permitting electronic submissions rescue teams for underground coal Review: Comment Request of responses. mines on February 8, 2008. The United Agency: Mine Safety and Health Mine Workers of America challenged May 20, 2009. Administration. the final rule in the U.S. Court of The Department of Labor has Title of Collection: Mine Rescue Appeals for the District of Columbia submitted the following information Teams for Underground Coal Mine Circuit. On February 10, 2009, the Court collection request (ICR), utilizing Operators. vacated the rule’s provisions allowing emergency review procedures, to the OMB Control Number: 1219–0144. mine-site and state-sponsored teams to Office of Management and Budget Affected Public: Underground coal train at small mines annually and State (OMB) for review and clearance in mines. employees who are members of State- accordance with the Paperwork Total Estimated Number of sponsored teams to substitute certain Reduction Act of 1995 (Pub. L. 104–13, Respondents: 653. job duties for participation in one of two 44 U.S.C. Chapter 35) and 5 CFR Total Estimated Annual Burden mine rescue contests required annually. 1320.13. OMB approval has been Hours: 1,550. The Court also vacated MSHA’s requested by June 19, 2009. A copy of Total Net Estimated Annual Costs conclusion in the preamble that State this ICR, with applicable supporting Burden (other than hourly wage costs): employees who are members of State- documentation; including among other $653. sponsored teams may participate in a things a description of the likely Description: The respondents for this mine rescue contest by serving as respondents, proposed frequency of collection of information are judges. See Int’l Union, United Mine response, and estimated total burden underground coal mine operators. The Workers of Am. v. Dep’t of Labor, 554 may be obtained from the RegInfo.gov records will be used by coal mine F.3d 150 (D.C. Cir. 2009). Web site at http://www.reginfo.gov/ operators, supervisors, and employees, Consistent with the Court’s decision, public/do/PRAMain or by contacting and State and Federal mine inspectors MSHA is revising the existing rule to Darrin King on 202–693–4129 (this is to provide assurance that each mine require mine-site and State-sponsored

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teams to train at small mines Signed at Washington, DC this 20th day of Dated: May 15, 2009. semiannually and State employees who May, 2009. Victor M. Fortuno, are members of State-sponsored teams Michael L. Davis, Vice President for Legal Affairs, General to participate in two mine rescue Deputy Assistant Secretary, Employee Counsel & Corporate Secretary. contests annually. An emergency review Benefits Security Administration. [FR Doc. E9–12297 Filed 5–21–09; 4:15 pm] is necessary in order to obtain approval [FR Doc. E9–12114 Filed 5–22–09; 8:45 am] BILLING CODE 7050–01–P of the changes implemented by the BILLING CODE 4510–29–P aforementioned final rule which is being promulgated for reasons stated NATIONAL AERONAUTICS AND above and is effective upon publication. LEGAL SERVICES CORPORATION SPACE ADMINISTRATION Darrin A. King, Sunshine Act Meeting of the Board of [Notice (09–043)] Departmental Clearance Officer. Directors; Amended Notice; Participant NASA Advisory Council; Science [FR Doc. E9–12278 Filed 5–22–09; 8:45 am] Dial-In Number Added to Notice BILLING CODE 4510–43–P Committee; Astrophysics NOTICE: The Legal Services Corporation Subcommittee; Meeting (LSC) is announcing an amendment to AGENCY: National Aeronautics and DEPARTMENT OF LABOR the notice of the Board of Directors Space Administration. meeting scheduled for Tuesday, May 26, ACTION: Employee Benefits Security 2009 via conference call. The Board of Notice of meeting. Administration Directors meeting was announced in the SUMMARY: The National Aeronautics and Federal Register issue dated May 20, 145th Meeting of the Advisory Council Space Administration (NASA) 2009, 74 FR 23748. The sole amendment on Employee Welfare and Pension announces a meeting of the to the notice is to add the Participant Benefit Plans; Notice of Meeting Astrophysics Subcommittee of the Dial-In Number. Other than adding the NASA Advisory Council (NAC). This Pursuant to the authority contained in Participant Dial-In Number there is no Subcommittee reports to the Science Section 512 of the Employee Retirement other change to the announcement cited Committee of the NAC. The Meeting Income Security Act of 1974 (ERISA), 29 above. will be held for the purpose of soliciting U.S.C. 1142, the 145th open meeting of TIME AND DATE: The Board of Directors from the scientific community and other the full Advisory Council on Employee of the Legal Services Corporation will persons scientific and technical Welfare and Pension Benefit Plans will meet on May 26, 2009 via conference information relevant to program be held on June 11, 2009. call. The meeting will begin at 11 a.m. planning. (EDT), and continue until conclusion of The session will take place in Room DATES: the Board’s agenda. Tuesday, June 16, 2009, 10 a.m. S–2508, U.S. Department of Labor, 200 to 5 p.m. and Wednesday, June 17, LOCATION: Constitution Avenue NW., Washington, 3333 K Street, NW., 2009, 10 a.m. to 4 p.m. Eastern Daylight DC 20210. The purpose of the open Washington, DC 20007, 3rd Floor Time. meeting, which will run from 1:30 p.m. Conference Room. ADDRESSES: NASA Headquarters, 300 E to approximately 4:30 p.m., is to swear STATUS OF MEETING: Open. Directors will Street, SW., Room 3H46, Washington, in the new members, introduce the participate by telephone conference in DC 20546. Council Chair and Vice Chair, receive such a manner as to enable interested an update from the Employee Benefits members of the public to hear and FOR FURTHER INFORMATION CONTACT: Ms. Security Administration, and determine identify all persons participating in the Marian Norris, Science Mission the topics to be addressed by the meeting. Members of the public may Directorate, NASA Headquarters, Council in 2009. observe the meeting by joining Washington, DC 20546, (202) 358–4452, fax (202) 358–4118, or Organizations or members of the participating staff at the location [email protected]. public wishing to submit a written indicated above or calling 1–800–247– statement may do so by submitting 25 9979 (Conference ID# 99970441). SUPPLEMENTARY INFORMATION: The copies on or before June 4, 2009 to Larry MATTERS TO BE CONSIDERED meeting will be open to the public up Good, Executive Secretary, ERISA 1. Approval of the agenda. to the capacity of the room. The agenda Advisory Council, U.S. Department of 2. Consider and act on Board of for the meeting includes the following Labor, Suite N–5623, 200 Constitution Directors’ response to the Inspector topics: Avenue, NW., Washington, DC 20210. General’s Semiannual Report to —Astrophysics Division Overview and Statements may also be submitted Congress for the period of October 1, Fiscal Year 2010 Budget Request electronically to [email protected]. 2008 through March 31, 2009. —James Webb Space Telescope Update Statements received on or before June 4, 3. Consider and act on other business. —Stratospheric Observatory for Infrared 2009 will be included in the record of 4. Public comment. Astronomy Update the meeting. Individuals or CONTACT PERSON FOR INFORMATION: —Hubble Space Telescope Post-Shuttle representatives of organizations wishing Katherine Ward, Executive Assistant to Mission 4 Update to address the Advisory Council should the Vice President for Legal Affairs, at —Update on Recommendation Items forward their requests to the Executive (202) 295–1500. from Previous Astrophysics Secretary or telephone (202) 693–8668. SPECIAL NEEDS: Upon request, meeting Subcommittee Meeting Oral presentations will be limited to ten notices will be made available in It is imperative that the meeting be minutes, time permitting, but an alternate formats to accommodate visual held on these dates to accommodate the extended statement may be submitted and hearing impairments. Individuals scheduling priorities of the key for the record. Individuals with who have a disability and need an participants. Attendees will be disabilities who need special accommodation to attend the meeting requested to sign a register and to accommodations should contact Larry may notify Katherine Ward, at (202) comply with NASA security Good by June 4 at the address indicated. 295–1500. requirements, including the

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presentation of a valid picture ID, before Further information with reference to For the Nuclear Regulatory Commission. receiving an access badge. Foreign these meetings can be obtained from Ms. R. A. Jervey, nationals attending this meeting will be Kathy Plowitz-Worden, Office of Acting Chief, Regulatory Guide Development required to provide a copy of their Guidelines & Panel Operations, National Branch, Division of Engineering, Office of passport, visa, or green card in addition Endowment for the Arts, Washington, Nuclear Regulatory Research. to providing the following information DC 20506, or call 202/682–5691. [FR Doc. E9–12102 Filed 5–22–09; 8:45 am] no less than 7 working days prior to the BILLING CODE 7590–01–P meeting: Full name; gender; date/place Dated: May 21, 2009. of birth; citizenship; visa/green card Kathy Plowitz-Worden, information (number, type, expiration Panel Coordinator, Panel Operations, NUCLEAR REGULATORY date); passport information (number, National Endowment for the Arts. COMMISSION country, expiration date); employer/ [FR Doc. E9–12294 Filed 5–22–09; 8:45 am] [Docket Nos. 50–528, 50–529, 50–530; NRC– affiliation information (name of BILLING CODE 7537–01–P institution, address, country, 2009–0012] telephone); title/position of attendee. To Arizona Public Service Company; expedite admittance, attendees with Notice of Intent To Prepare an U.S. citizenship can provide identifying NUCLEAR REGULATORY Environmental Impact Statement and information 3 working days in advance COMMISSION Conduct Scoping Process for Palo by contacting Marian Norris via e-mail Verde Nuclear Generating Station, at [email protected] or by telephone at (202) 358–4452. [NRC–2008–0122] Units 1, 2, and 3 Dated: May 18, 2009. Draft Regulatory Guide: Issuance, Arizona Public Service Company P. Diane Rausch, availability; correction (APS) has submitted an application for Advisory Committee Management Officer, renewal of Facility Operating License National Aeronautics and Space AGENCY: Nuclear Regulatory Nos. NPF–41, NPF–51, and NPF–74 for Administration. Commission. an additional 20 years of operation at [FR Doc. E9–12133 Filed 5–22–09; 8:45 am] the Palo Verde Nuclear Generating ACTION: Draft Regulatory Guide: BILLING CODE 7510–13–P Station, Units 1, 2, and 3 (Palo Verde). Issuance, availability; correction. Palo Verde is located in Maricopa County, Arizona, approximately 26 NATIONAL FOUNDATION ON THE SUMMARY: This document corrects a miles west of the Phoenix city limits. ARTS AND THE HUMANITIES notice appearing in the Federal Register The current operating licenses for on May 18, 2009 (74 FR 23220), Palo Verde expire on June 1, 2025, April National Endowment for the Arts; Arts concerning the issuance of Draft 24, 2026, and November 25, 2027, for Advisory Panel Regulatory Guide 1237. This action is Units 1, 2, and 3, respectively. The Pursuant to Section 10(a)(2) of the necessary to correct the spelling of the application for renewal, dated December Federal Advisory Committee Act (Pub. contact’s first name, e-mail address and 11, 2008, and supplemented by letter L. 92–463), as amended, notice is hereby the comment receipt date. dated April 14, 2009, was submitted pursuant to Title 10 of the Code of given that one meeting of the Arts FOR FURTHER INFORMATION CONTACT: Federal Regulations (10 CFR) Part 54. A Advisory Panel to the National Council Stephen F. LaVie, U.S. Nuclear on the Arts will be held by notice of receipt and availability of the Regulatory Commission, Washington, application, which included the teleconference from the Nancy Hanks DC 20555–0001, telephone (301) 415– Center, 1100 Pennsylvania Avenue, environmental report (ER), was 1081 or e-mail to [email protected]. NW., Washington, DC, 20506. This published in the Federal Register on meeting, originally announced for May SUPPLEMENTARY INFORMATION: On page January 21, 2009 (74 FR 3655). A notice 22, 2009, had to be rescheduled on an 23220, in the third column, under FOR of acceptance for docketing of the emergency basis to review applications FURTHER INFORMATION CONTACT, the application and opportunity for hearing for funding under the American spelling of the first name of the contact regarding renewal of the facility Recovery and Reinvestment Act of 2009 is changed from ‘‘Steven’’ to read operating license was published in the Federal Register on May 15, 2009 (74 as follows (ending time is approximate): ‘‘Stephen.’’ The e-mail address is FR 22978). The purpose of this notice is Learning in the Arts for Children and changed from ‘‘[email protected]’’ to inform the public that the U.S. Youth (application review): May 28, to read ‘‘[email protected].’’ 2009. This meeting, from 10 a.m. to Nuclear Regulatory Commission (NRC) 12:30 p.m., will be closed. On page 23221, in the first column, will be preparing an environmental The closed portions of meetings are third full paragraph, the spelling of the impact statement (EIS) related to the for the purpose of Panel review, first name of the contact is changed review of the license renewal discussion, evaluation, and from ‘‘Steven’’ to read ‘‘Stephen.’’ The application and to provide the public an recommendations on financial e-mail address is changed from opportunity to participate in the assistance under the National ‘‘[email protected]’’ to read environmental scoping process, as Foundation on the Arts and the ‘‘[email protected].’’ defined in 10 CFR 51.29. In addition, as Humanities Act of 1965, as amended, On page 23221, in the first column, outlined in 36 CFR 800.8, ‘‘Coordination with the National Environmental Policy including information given in fourth full paragraph, the comment confidence to the agency. In accordance Act,’’ the NRC plans to coordinate receipt date is changed from with the determination of the Chairman compliance with Section 106 of the ‘‘September 1, 2009’’ to read ‘‘August 3, of February 28, 2008, these sessions will National Historic Preservation Act in be closed to the public pursuant to 2009.’’ meeting the requirements of the subsection (c)(6) of section 552b of Title Dated at Rockville, Maryland, this 18th day National Environmental Policy Act of 5, United States Code. of May, 2009. 1969 (NEPA).

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In accordance with 10 CFR 51.53(c) significant issues to be analyzed in necessary, and will be held at the and 10 CFR 54.23, APS submitted the depth. Estrella Mountain Community College, ER as part of the application. The ER c. Identify and eliminate from 3000 North Dysart Road, Avondale, was prepared pursuant to 10 CFR Part detailed study those issues that are Arizona 85392. Both meetings will be 51 and is publicly available at the NRC peripheral or that are not significant. transcribed and will include: (1) An Public Document Room (PDR), located d. Identify any environmental overview by the NRC staff of the NEPA at One White Flint North, 11555 assessments and other ElSs that are environmental review process, the Rockville Pike, Rockville, Maryland being or will be prepared that are proposed scope of the supplement to the 20852, or from the NRC’s Agencywide related to, but are not part of, the scope GEIS, and the proposed review Documents Access and Management of the supplement to the GEIS being schedule; and (2) the opportunity for System (ADAMS). The ADAMS Public considered. interested government agencies, Electronic Reading Room is accessible at e. Identify other environmental organizations, and individuals to submit http://adamswebsearch.nrc.gov/ review and consultation requirements comments or suggestions on the dologin.htm. The ADAMS accession related to the proposed action. environmental issues or the proposed number for the ER is ML083510615 (pp. f. Indicate the relationship between scope of the supplement to the GEIS. 371–794) and the supplement is the timing of the preparation of the Additionally, the NRC staff will host ML091130221. Persons who do not have environmental analyses and the informal discussions one hour prior to access to ADAMS or who encounter Commission’s tentative planning and the start of each session at the same problems in accessing the documents decision-making schedule. location. No formal comments on the located in ADAMS, should contact the g. Identify any cooperating agencies proposed scope of the supplement to the NRC’s PDR reference staff by telephone and, as appropriate, allocate GEIS will be accepted during the at 1–800–397–4209, or 301–415–4737, assignments for preparation and informal discussions. To be considered, or by e-mail at [email protected]. schedules for completing the comments must be provided either at The ER may also be viewed on the supplement to the GEIS to the NRC and the transcribed public meetings or in Internet at http://www.nrc.gov/reactors/ any cooperating agencies. writing, as discussed below. Persons operating/licensing/renewal/ h. Describe how the supplement to may register to attend or present oral applications/palo-verde.html. In the GEIS will be prepared, and include comments at the meetings on the scope addition, the ER is available for public any contractor assistance to be used. of the NEPA review by contacting the inspection near the Palo Verde site at The NRC invites the following entities NRC Project Manager, Lisa Regner, by the Litchfield Park Branch Library, 101 to participate in scoping: telephone at 1–800–368–5642, a. The applicant, APS. West Wigwam Boulevard, Litchfield extension 1906 or by e-mail at b. Any Federal agency that has Park, Arizona 85340. [email protected] no later than June jurisdiction by law or special expertise 18, 2009. Members of the public may This notice advises the public that the with respect to any environmental also register to speak at the meeting NRC intends to gather the information impact involved, or that is authorized to within 15 minutes of the start of each necessary to prepare a plant-specific develop and enforce relevant session. Individual oral comments may supplement to the Commission’s environmental standards. ‘‘Generic Environmental Impact c. Affected State and local be limited by the time available, Statement (GEIS) for License Renewal of government agencies, including those depending on the number of persons Nuclear Plants,’’ (NUREG–1437), related authorized to develop and enforce who register. Members of the public to the review of the application for relevant environmental standards. who have not registered may also have renewal of the Palo Verde operating d. Any affected Indian tribe. an opportunity to speak, if time permits. license for an additional 20 years. e. Any person who requests or has Public comments will be considered in Possible alternatives to the proposed requested an opportunity to participate the scoping process for the supplement action (license renewal) include no in the scoping process. to the GEIS. Ms. Regner will need to be action and reasonable alternative energy f. Any person who has petitioned or contacted no later than June 18, 2009, if sources. The NRC is required by 10 CFR intends to petition for leave to special equipment or accommodations 51.95 to prepare a supplement to the intervene. are needed to attend or present GEIS in connection with the renewal of In accordance with 10 CFR 51.26, the information at the public meeting, so an operating license. This notice is scoping process for an EIS may include that the NRC staff can determine being published in accordance with a public scoping meeting to help whether the request can be NEPA and the NRC’s regulations found identify significant issues related to a accommodated. in 10 CFR Part 51. proposed activity and to determine the Members of the public may send The NRC will first conduct a scoping scope of issues to be addressed in an written comments on the environmental process for the supplement to the GEIS EIS. The NRC has decided to hold scope of the Palo Verde license renewal and, as soon as practicable thereafter, public meetings for the Palo Verde review to: Chief, Rulemaking and will prepare a draft supplement to the license renewal supplement to the GEIS. Directives Branch, Division of GEIS for public comment. Participation The scoping meetings will be held on Administrative Services, Office of in the scoping process by members of June 25, 2009, and there will be two Administration, Mailstop TWB 5B–01M, the public and local, State, Tribal, and sessions to accommodate interested U.S. Nuclear Regulatory Commission, Federal government agencies is parties. The first session will convene at Washington, DC 20555–0001, and encouraged. The scoping process for the 2 p.m. and will continue until 5 p.m., should cite the publication date and supplement to the GEIS will be used to as necessary, and will be held at the page number of this Federal Register accomplish the following: Tonopah Valley High School, 38201 notice. To be considered in the scoping a. Define the proposed action which West Indian School Road, Tonopah, process, written comments should be is to be the subject of the supplement to Arizona 85354. The second session will postmarked by July 27, 2009. Electronic the GEIS. convene at 7 p.m. with a repeat of the comments may be sent by e-mail to the b. Determine the scope of the overview portions of the meeting and NRC at [email protected], and supplement to the GEIS and identify the will continue until 10 p.m., as should be sent no later than July 27,

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2009, to be considered in the scoping Safeguards, U.S. Nuclear Regulatory (2) December 13, 2006, Supplement to process. Comments will be available Commission, Rockville, MD 20852. License Renewal Application: electronically and accessible through Telephone: (301) 492–3111; Fax ML063530128. ADAMS at http:// number: (301) 492–3363; E-mail: (3) December 10, 2008, Revised adamswebsearch.nrc.gov/dologin.htm. [email protected]. License Renewal Application: Participation in the scoping process ML090400202. SUPPLEMENTARY INFORMATION: for the supplement to the GEIS does not (4) SER in Support of License entitle participants to become parties to I. Introduction Renewal Application (Public Version): the proceeding to which the supplement ML090760702. By letter dated October 24, 2006, to the GEIS relates. Matters related to (5) Special Nuclear Materials License AREVA NP, Inc. (AREVA) requested the participation in any hearing are outside No. SNM–1227 (Public Version): renewal of Special Nuclear Material the scope of matters to be discussed at ML090680579. License No. SNM–1227. Pursuant to this public meeting. If you do not have access to ADAMS, Title 10 of the Code of Federal At the conclusion of the scoping or if there are problems in accessing the Regulations (10 CFR), Section 2.106, the process, the NRC will prepare a concise documents located in ADAMS, contact U.S. Nuclear Regulatory Commission summary of the determination and the NRC Public Document Room (PDR) (NRC) is providing notice that Special conclusions reached, including the Reference staff at 1–800–397–4209, 301– Nuclear Material License No. SNM– significant issues identified, and will 415–4737 or by e-mail to 1227, which authorizes AREVA to send a copy of the summary to each [email protected]. participant in the scoping process. The possess and process enriched uranium up to a maximum of five weight percent These documents may also be viewed summary will also be available for electronically on the public computers inspection in ADAMS at http:// uranium-235, for the manufacture of fuel assemblies for commercial nuclear located at the NRC’s Public Document adamswebsearch.nrc.gov/dologin.htm. Room (PDR), O–1 F21, One White Flint The staff will then prepare and issue for power plants (both pressurized water reactors and boiling water reactors) at its North, 11555 Rockville Pike, Rockville, comment the draft supplement to the MD 20852. The PDR reproduction GEIS, which will be the subject of fuel fabrication facility in Richland, Washington, has been renewed for a contractor will copy documents for a separate notices and separate public fee. meetings. Copies will be available for period of 40 years. AREVA’s request for public inspection at the above- the proposed renewed license was Dated at Rockville, MD this 18th day of mentioned addresses, and one copy per previously noticed, and an opportunity May, 2009. request will be provided free of charge. to request a hearing provided, in the For the Nuclear Regulatory Commission. After receipt and consideration of the Federal Register on March 15, 2007 (72 Peter J. Habighorst, comments, the NRC will prepare a final FR 12202). A Notice of Availability of Chief, Fuel Manufacturing Branch, Division supplement to the GEIS, which will also Environmental Assessment and Finding of Fuel Cycle Safety and Safeguards, Office be available for public inspection. of No Significant Impact has been of Nuclear Material Safety and Safeguards. Information about the proposed noticed in the Federal Register on April [FR Doc. E9–12096 Filed 5–22–09; 8:45 am] action, the supplement to the GEIS, and 3, 2009 (74 FR 15312). BILLING CODE 7590–01–P the scoping process may be obtained This license complies with the from Ms. Regner at the aforementioned standards and requirements of the telephone number or e-mail address. Atomic Energy Act of 1954, as amended, and NRC’s rules and regulations as set OVERSEAS PRIVATE INVESTMENT Dated at Rockville, Maryland, this 18th day CORPORATION of May, 2009. forth in 10 CFR Chapter 1. Accordingly, this license was renewed on April 24, For the Nuclear Regulatory Commission. Second Notice: Federal Register; 2009, and is effective immediately. David J. Wrona, Submission for OMB Review Chief, Projects Branch 2, Division of License II. Further Information Renewal, Office of Nuclear Reactor AGENCY: Overseas Private Investment Regulation. The NRC has prepared a Safety Corporation (OPIC). Evaluation Report (SER) that documents [FR Doc. E9–12098 Filed 5–22–09; 8:45 am] ACTION: Request for comments. the information that was reviewed and BILLING CODE 7590–01–P the NRC’s conclusion. In accordance SUMMARY: Under the provision of the with 10 CFR 2.390 of the NRC’s ‘‘Rules Paperwork Reduction Act (44 U.S.C. NUCLEAR REGULATORY of Practice,’’ details with respect to this Chapter 35), agencies are required to COMMISSION action, including the SER and publish a Notice in the Federal Register accompanying documentation included notifying the public, that the Agency is [Docket No. 70–1257; NRC–2009–0147] in the license package, are available revising an information collection electronically at the NRC’s Electronic Notice of Renewal of Special Nuclear request for OMB review, approval, and Reading Room at http://www.nrc.gov/ Material License No. SNM–1227 request public review and comment on reading-rm/adams.html. From this site, [AREVA NP, Inc., Richland, WA] the submission. Comments are being you can access the NRC’s Agencywide solicited on the need for the AGENCY: Nuclear Regulatory Document Access and Management information; the accuracy of the Commission. System (ADAMS), which provides text Agency’s burden estimate; the quality, ACTION: Notice of renewal of license. and image files of NRC’s public practical utility and clarity of the documents. The ADAMS accession information to be collected; and ways to FOR FURTHER INFORMATION CONTACT: numbers for the documents related to minimize the reporting burden, Rafael L. Rodriguez, Project Manager, this notice are: including automated collection Fuel Manufacturing Branch, Division of (1) October 24, 2006, License Renewal techniques by using other forms of Fuel Cycle Safety and Safeguards, Office Application and Environmental Report: technology. The proposed form under of Nuclear Material Safety and ML063110082. review is summarized below.

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DATES: Comments must be received SMALL BUSINESS ADMINISTRATION Description of Respondents: SBIC within 30 calendar days of publication Investment Companies. of this Notice. Data Collection Available for Public Form Number: 860. Comments and Recommendations Annual Responses: 1,500. ADDRESSES: Copies of the subject form Annual Burden: 750. and the request for review prepared for ACTION: Notice and request for ADDRESSES: Send all comments submission to OMB may be obtained comments. from the Agency submitting officer. regarding whether this information Comments on the form should be SUMMARY: In accordance with the collection is necessary for the proper submitted to the Agency Submitting Paperwork Reduction Act of 1995, this performance of the function of the Officer. notice announces the Small Business agency, whether the burden estimates Administration’s intentions to request are accurate, and if there are ways to FOR FURTHER INFORMATION CONTACT: approval on a new and/or currently minimize the estimated burden and OPIC Agency Submitting Officer: Essie approved information collection. enhance the quality of the collection, to S. Bryant, Records Management Officer, Rachel Newman Karton, Program DATES: Submit comments on or before Overseas Private Investment July 27, 2009. Analyst, Office of Small Business Corporation, 1100 New York Avenue, Development Centers, Small Business ADDRESSES: NW., Washington, DC 20527; 202–336– Send all comments Administration, 409 3rd Street, 6th 8563. regarding whether these information Floor, Washington, DC 20416. collections are necessary for the proper OMB Contact: Office of Information FOR FURTHER INFORMATION CONTACT performance of the function of the : and Regulatory Affairs, U.S. Office of agency, whether the burden estimates Rachel Newman Karton, Program Information and Regulator Affairs, are accurate, and if there are ways to Analyst, Office of Small Business Office of Management and Budget, minimize the estimated burden and Development Centers, 202–619–1816, Attention: Ms. Wendy Liberante, 725 enhance the quality of the collection, to [email protected], Curtis B. Rich, 17th Street, Room 10102, NW., Carol Fendler, Systems Accountant, Management Analyst, 202–205–7030, Washington, DC 20503; (202) 395–3647. Office of Investment, Small Business [email protected]. Summary Form Under Review Administration, 409 3rd Street, 6th SUPPLEMENTARY INFORMATION: Floor, Washington, DC 20416. This form is used to measure the Type of Request: Reinstatement, with FOR FURTHER INFORMATION CONTACT: quality and impact of counseling changes, of a previously approved Carol Fendler, Systems Accountant, provided by SBA’s resource partner the collection for which approval is Office of Investments, 202–205–7559, Small Business Development Centers expiring. [email protected], Curtis B. Rich, (SBDCs). The SBDC State Director and Title: Sponsor Disclosure Report. Management Analyst, 202–205–7030, the Project Officer reviews the forms to Form Number: OPIC–129. [email protected]. determine if the client received satisfactory counseling services. Frequency of Use: Once per major SUPPLEMENTARY INFORMATION: This form Title: ‘‘SBA Counseling Evaluation.’’ sponsor, per project. is used by SBA examiners to obtain Description of Respondents: Small Type of Respondents: Business or information about financing provided Business Clients. other institutions. by small business investment Form Number: 1419. Standard Industrial Classification companies (SBICs). This information Annual Responses: 15,000. Codes: All. which is collected directly from the Annual Burden: 2,550. Description of Affected Public: U.S. financial small businesses, provides independent confirmation of Jacqueline White, Companies sponsoring projects Chief, Administrative Information Branch. overseas. information respond to SBA by SBICs, as additional information not reported [FR Doc. E9–12134 Filed 5–22–09; 8:45 am] Reporting Hours: 5 hours per project. by SBICs. BILLING CODE 8025–01–P Number of Responses: 300 per year. Title: ‘‘Request for Information Federal Cost: $66,000 per year. Concerning Portfolio Financing.’’ Authority for Information Collection: Description of Respondents: SBIC SECURITIES AND EXCHANGE Sections 231, 234(b), and (c) of the Investment Companies. COMMISSION Form Number: 857. Foreign Assistance Act of 1961, as [File No. 500–1] amended. Annual Responses: 2,160. Annual Burden: 2,160. Abstract (Needs and Uses): The OPIC In the Matter of Nanosignal Corp., Inc. 129 form is the principal document SUPPLEMENTARY INFORMATION: (n/k/a Nano Global, Inc.), National used by OPIC to determine the This form is used by SBA examiners Micronetics, Inc., NetVoice investor’s and project’s eligibility, assess to obtain information about assets of Technologies Corp., Network Access the environmental impact and Small Business investment companies Solutions Corp., Network Plus Corp., developmental effects of the project, (SBICs) that are held in accounts at The New Anaconda Co., New York measure the economic effects for the financial institutions, and about SBIC Regional Rail Corp., NewCom United States and the host country borrowings from financial institutions. International, Inc. (n/k/a Sino Express economy, and collect information for This information, which is collected Travel Ltd.), NewKidCo International, underwriting analysis. directly from the financial institutions, Inc., NexGen Vision, Inc., and Noel provides independent confirmation of Group, Inc.; Order of Suspension of Dated: May 19, 2009. asset and liability figures reported to Trading Genevieve Stubbs, SBA by SBICs as well as supplemental Senior Administrative & FOIA Counsel, information used to evaluate regulatory May 21, 2009. Department of Legal Affairs. compliance and financial condition. It appears to the Securities and [FR Doc. E9–12097 Filed 5–22–09; 8:45 am] Title: ‘‘Financial Institution Exchange Commission that there is a BILLING CODE M Confirmation Form.’’ lack of current and accurate information

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concerning the securities of Nanosignal It appears to the Securities and the Exchange’s Office of the Secretary Corp., Inc. (n/k/a Nano Global, Inc.) Exchange Commission that there is a and at the Commission’s Public because it has not filed any periodic lack of current and accurate information Reference Room. reports since the period ended concerning the securities of Noel Group, II. Self-Regulatory Organization’s September 30, 2004. Inc. because it has not filed any periodic Statement of the Purpose of, and It appears to the Securities and reports since the period ended June 30, Exchange Commission that there is a 1999. Statutory Basis for, the Proposed Rule lack of current and accurate information The Commission is of the opinion that Change concerning the securities of National the public interest and the protection of In its filing with the Commission, Micronetics, Inc. because it has not filed investors require a suspension of trading CBOE included statements concerning any periodic reports since the period in the securities of the above-listed the purpose of and basis for the ended March 31, 2000. companies. proposed rule change and discussed any It appears to the Securities and Therefore, it is ordered, pursuant to comments it received on the proposed Exchange Commission that there is a Section 12(k) of the Securities Exchange rule change. The text of these statements lack of current and accurate information Act of 1934, that trading in the may be examined at the places specified concerning the securities of NetVoice securities of the above-listed companies in Item IV below. CBOE has prepared Technologies Corp. because it has not is suspended for the period from 9:30 summaries, set forth in sections A, B, filed any periodic reports since the a.m. EDT on May 21, 2009, through and C below, of the most significant period ended June 30, 2001. 11:59 p.m. EDT on June 4, 2009. parts of such statements. It appears to the Securities and By the Commission. A. Self-Regulatory Organization’s Exchange Commission that there is a Jill M. Peterson, lack of current and accurate information Statement of the Purpose of, and Assistant Secretary. concerning the securities of Network Statutory Basis for, the Proposed Rule Access Solutions Corp. because it has [FR Doc. E9–12253 Filed 5–21–09; 4:15 pm] Change not filed any periodic reports since the BILLING CODE 8010–01–P 1. Purpose period ended March 31, 2002. CBOE assesses dues with respect to It appears to the Securities and SECURITIES AND EXCHANGE every membership (unless a member is Exchange Commission that there is a COMMISSION assessed the Hybrid Electronic Quoting lack of current and accurate information Fee, in which case the member does not concerning the securities of Network [Release No. 34–59935; File No. SR–CBOE– pay member dues).4 Under Rule 3.17(c), Plus Corp. because it has not filed any 2009–028] the membership lease agreement periodic reports since the period ended between a lessor member and a lessee September 30, 2001. Self-Regulatory Organizations; It appears to the Securities and Chicago Board Options Exchange, member designates who is responsible Exchange Commission that there is a Incorporated; Notice of Filing of for Exchange dues, fees and other lack of current and accurate information Proposed Rule Change Relating to charges. Typically, leases provide that concerning the securities of The New Rebating Member Dues for Certain the lessee is responsible for dues and Anaconda Co. because it has not filed Members therefore lessors do not pay dues. Under the lessor compensation any periodic reports since the period May 18, 2009. component of the Interim Trading ended December 31, 2000. Pursuant to Section 19(b)(1) 1 of the It appears to the Securities and Permit (‘‘ITP’’) program, the Exchange Securities Exchange Act of 1934 (the compensates a lessor for an ‘‘open Exchange Commission that there is a ‘‘Act’’) 2 and Rule 19b–4 thereunder,3 lack of current and accurate information lease’’ while the ITP program is active notice is hereby given that, on May 6, and ITPs are outstanding.5 The goal of concerning the securities of New York 2009, Chicago Board Options Exchange, Regional Rail Corp. because it has not this component of the ITP program is to Incorporated (‘‘CBOE’’ or the put such a lessor in a similar position filed any periodic reports since the ‘‘Exchange’’) filed with the Securities period ended September 30, 2005. as if the lessor’s membership was and Exchange Commission (the leased. This goal would be frustrated if It appears to the Securities and ‘‘Commission’’) the proposed rule Exchange Commission that there is a the lessor is charged dues because the change as described in Items I, II, and lessor would be subject to an obligation lack of current and accurate information III below, which Items have been concerning the securities of NewCom the lessor would not otherwise be prepared by CBOE. The Commission is subject to if the lessor’s membership International, Inc. (n/k/a Sino Express publishing this notice to solicit Travel Ltd.) because it has not filed any was leased. comments on the proposed rule change Consistent with this goal, the periodic reports since the period ended from interested persons. September 30, 2003. Exchange will waive member dues for a It appears to the Securities and I. Self-Regulatory Organization’s lessor member for any month in which Exchange Commission that there is a Statement of the Terms of Substance of the lessor receives a payment from the lack of current and accurate information the Proposed Rule Change Exchange for an open lease under the ITP program. This waiver became concerning the securities of NewKidCo Chicago Board Options Exchange, effective on May 1, 2009, pursuant to a International, Inc. because it has not Incorporated (‘‘CBOE’’ or ‘‘Exchange’’) filed any periodic reports since the proposes to amend its Fees Schedule to 4 period ended December 31, 2001. Member dues are $450 per month. See CBOE rebate member dues for certain Fees Schedule, Section 10. It appears to the Securities and members. The text of the proposed rule 5 The ITP program is a program pursuant to which Exchange Commission that there is a change is available on the Exchange’s the Exchange has the authority to issue up to 50 lack of current and accurate information Web site (http://www.cboe.org/legal), at ITPs. The ITP program is governed by CBOE Rule concerning the securities of NexGen 3.27. The lessor compensation component of the ITP program is described in CBOE Rule 3.27(d). An Vision, Inc. because it has not filed any 1 15 U.S.C. 78s(b)(1). ‘‘open lease’’ is defined in Rule 3.27(d) as a periodic reports since the period ended 2 15 U.S.C. 78a. transferable Exchange membership available for June 30, 2003. 3 17 CFR 240.19b–4. lease.

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previous rule change that was filed by (B) Institute proceedings to determine For the Commission, by the Division of the Exchange for immediate whether the proposed rule change Trading and Markets, pursuant to delegated effectiveness.6 The Exchange now should be disapproved. authority.10 proposes to rebate dues to any lessor Florence E. Harmon, IV. Solicitation of Comments member who received such a payment Deputy Secretary. from the Exchange during the period Interested persons are invited to [FR Doc. E9–12090 Filed 5–22–09; 8:45 am] 7 August 1, 2008, through April 30, 2009. submit written data, views, and BILLING CODE 8010–01–P 2. Statutory Basis arguments concerning the foregoing, including whether the proposed rule The Exchange believes the proposed change is consistent with the Act. SECURITIES AND EXCHANGE rule change is consistent with Section Comments may be submitted by any of COMMISSION 6(b) of the Securities Exchange Act of the following methods: 1934 (‘‘Act’’),8 in general, and furthers [Release No. 59933; File No. SR–NASDAQ– the objectives of Section 6(b)(4) 9 of the Electronic Comments 2009–028] Act in particular, in that it is designed • Use the Commission’s Internet to provide for the equitable allocation of Self-Regulatory Organizations; The comment form (http://www.sec.gov/ NASDAQ Stock Market LLC; Order reasonable dues, fees, and other charges rules/sro.shtml); or among its members and other persons Approving Proposed Rule Change to • Send an e-mail to rule- using its facilities. The Exchange Reduce Fees for NASDAQ Basic Data [email protected]. Please include File believes the proposed rebate of member Feeds Number SR–CBOE–2009–028 on the dues is equitable and reasonable in that subject line. May 15, 2009. it would help the Exchange place a lessor member who received Paper Comments I. Introduction compensation from the Exchange for an • Send paper comments in triplicate On March 27, 2009, The NASDAQ open lease under the ITP program prior Stock Market LLC (‘‘NASDAQ’’ or to May 1, 2009, in a similar position as to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, ‘‘Exchange’’) filed with the Securities if the lessor’s membership had been and Exchange Commission leased, consistent with Exchange Rule 100 F Street, NE., Washington, DC 20549–1090. (‘‘Commission’’), pursuant to Section 3.27(d). 19(b)(1) of the Securities Exchange Act All submissions should refer to File 1 B. Self-Regulatory Organization’s of 1934 (‘‘Act’’) and Rule 19b–4 Number SR–CBOE–2009–028. This file 2 Statement on Burden on Competition thereunder, a proposed rule change to number should be included on the reduce the fees for NASDAQ Basic, a CBOE does not believe that the subject line if e-mail is used. To help the real time data feed combining both proposed rule change will impose any Commission process and review your NASDAQ’s Best Bid and Offer burden on competition that is not comments more efficiently, please use (‘‘QBBO’’) and the NASDAQ Last Sale. necessary or appropriate in furtherance only one method. The Commission will The proposed rule change was of purposes of the Act. post all comments on the Commission’s published for comment in the Federal Internet Web site (http://www.sec.gov/ 3 C. Self-Regulatory Organization’s Register on April 14, 2009. The rules/sro.shtml). Copies of the Statement on Comments on the Commission received no comment submission, all subsequent Proposed Rule Change Received From letters on the proposal. This order amendments, all written statements Members, Participants, or Others approves the proposed rule change. with respect to the proposed rule No written comments were solicited change that are filed with the II. Description of the Proposal or received with respect to the proposed Commission, and all written NASDAQ Basic is a ‘‘Level 1’’ data rule change. communications relating to the product containing quotation III. Date of Effectiveness of the proposed rule change between the information from the NASDAQ Market Proposed Rule Change and Timing for Commission and any person, other than Center and last sale data from the Commission Action those that may be withheld from the NASDAQ Market Center. NASDAQ public in accordance with the Basic was approved on March 16, 2009,4 Within 35 days of the date of provisions of 5 U.S.C. 552, will be as a pilot program and includes fees for publication of this notice in the Federal available for inspection and copying in usage and distribution of the data. Register or within such longer period (i) the Commission’s Public Reference NASDAQ Basic is available in three as the Commission may designate up to Room, 100 F Street, NE., Washington, forms, NASDAQ Basic for NASDAQ, 90 days of such date if it finds such DC 20549, on official business days NASDAQ Basic for NYSE, and longer period to be appropriate and between the hours of 10 a.m. and 3 p.m. NASDAQ Basic for Alternext. NASDAQ publishes its reasons for so finding or Copies of the filing will also be available Basic is designed to meet the needs of (ii) as to which the self-regulatory for inspection and copying at the current and prospective subscribers that organization consents, the Commission principal office of the self-regulatory do not need or are unwilling to pay for will: organization. All comments received the consolidated data provided by the (A) By order approve such proposed will be posted without change; the consolidated Level 1 products. rule change, or Commission does not edit personal identifying information from 10 17 CFR 200.30–3(a)(12). 6 See SR–CBOE–2009–027. submissions. You should submit only 1 15 U.S.C. 78s(b)(1). 7 The ITP program was approved by the information that you wish to make 2 17 CFR 240.19b–4. Commission on July 17, 2008. See Securities available publicly. All submissions 3 See Securities Exchange Act Release No. 59712 Exchange Act Release No. 58178 (July 17, 2008), 73 should refer to File Number SR–CBOE– (April 6, 2009), 74 FR 17273. FR 42634 (July 22, 2008). 4 See Securities Exchange Act Release No. 59582 8 15 U.S.C. 78f(b). 2009–028 and should be submitted on (March 16, 2009) 74 FR 12423 (March 24, 2009) 9 15 U.S.C. 78f(b)(4). or before June 16, 2009. (SR–NASDAQ–2008–102) (‘‘Pilot Approval Order’’).

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NASDAQ assesses a monthly fee for perfect the mechanism of a free and fairly, and reasonably in setting the distributors of NASDAQ Basic in open market and a national market terms of its proposal. addition to applicable monthly per user system and, in general, to protect Because NASDAQ was subject to fees. Currently, each Distributor of investors and the public interest, and significant competitive forces in setting NASDAQ Basic for NASDAQ-listed not be designed to permit unfair the terms of the proposal, the stocks currently pays a monthly fee of discrimination between customers, Commission will approve the proposal $1,500 for either internal or external issuers, brokers, or dealers. in the absence of a substantial distribution, each Distributor of The Commission also finds that the countervailing basis to find that its NASDAQ Basic for NYSE-listed stocks proposed rule change is consistent with terms nevertheless fail to meet an pays a monthly fee of $250 for internal the provisions of Section 6(b)(8) of the applicable requirement of the Act or the distribution or $625 for external Act,8 which requires that the rules of an rules thereunder. An analysis of the distribution, and each Distributor of exchange not impose any burden on proposal does not provide such a basis. NASDAQ Basic for Alternext-listed competition not necessary or IV. Conclusion stocks pays a monthly fee of $250 for appropriate in furtherance of the internal distribution or $625 for external purposes of the Act. Finally, the It is therefore ordered, pursuant to 13 distribution. In addition, each Commission finds that the proposed Section 19(b)(2) of the Act, that the Distributor that receives Direct Access rule change is consistent with Rule proposed rule change (SR–NASDAQ– to the NASDAQ Basic pays a monthly 603(a) of Regulation NMS,9 adopted 2009–028), be, and it hereby is, fee of $2,000 for NASDAQ-listed stocks, under Section 11A(c)(1) of the Act, approved. $1,000 for NYSE-listed stocks, and which requires an exclusive processor For the Commission, by the Division of $1,000 for Alternext-listed stocks. that distributes information with respect Trading and Markets, pursuant to delegated NASDAQ proposes to reduce the to quotations for or transactions in an authority.14 distribution fees for NASDAQ Basic. NMS stock to do so on terms that are Florence E. Harmon, First, NASDAQ proposes to make all fair and reasonable and that are not Deputy Secretary. three feeds available for a single unreasonably discriminatory.10 [FR Doc. E9–12143 Filed 5–22–09; 8:45 am] monthly Distributor Fee of $1,500, This proposal would reduce the BILLING CODE 8010–01–P rather than add separate fees for NYSE- distribution fees for NASDAQ Basic by and Alternext-listed securities. Second, charging a single monthly Distributor NASDAQ proposes to eliminate the fee Fee of $1,500 for all three NASDAQ for Direct Access to NASDAQ Basic, DEPARTMENT OF STATE Basic feeds, eliminating the fee for currently set forth in Rule 7047(b). Direct Access to NASDAQ Basic, and [Public Notice: 6632] Finally, NASDAQ proposes to credit providing a credit to each Distributor of each Distributor of NASDAQ Basic up to Title: 60-Day Notice of Proposed NASDAQ Basic up to $1,500 per month $1,500 per month based upon that Information Collection: Form DS–3097, based upon that Distributor’s monthly Distributor’s monthly usage fees. For Exchange Visitor Program Annual usage fees. The Commission has example, a Distributor that reports Report, and OMB Control Number reviewed the proposal using the $1,500 or more of monthly usage of 1405–0151 approach set forth in the NYSE Arca NASDAQ Basic will pay no net Order for non-core market data fees.11 Distributor Fee, whereas a Distributor ACTION: Notice of request for public that reports $1,000 of monthly usage The Commission recently found that comments. will pay a net of $500 for the Distributor NASDAQ was subject to competitive SUMMARY: The Department of State is Fee. forces in setting fees for NASAQ Basic in the Pilot Approval Order.12 There are seeking Office of Management and III. Discussion and Commission a variety of alternative sources of Budget (OMB) approval for the Findings information that impose significant information collection described below. The Commission finds that the competitive pressures on NASDAQ in The purpose of this notice is to allow 60 proposed rule change is consistent with setting the terms for distributing days for public comment in the Federal the requirements of the Act and the NASDAQ Basic. The Commission Register preceding submission to OMB. rules and regulations thereunder believes that the availability of those We are conducting this process in applicable to a national securities alternatives, as well as NASDAQ’s accordance with the Paperwork 5 compelling need to attract order flow, Reduction Act of 1995. exchange. In particular, it is consistent • with Section 6(b)(4) of the Act,6 which imposed significant competitive Title of Information Collection: requires that the rules of a national pressure on NASDAQ to act equitably, Exchange Visitor Program Annual securities exchange provide for the Report. • OMB Control Number: 1405–0151. equitable allocation of reasonable dues, 8 15 U.S.C. 78f(b)(6). • Type of Request: Revision of a fees, and other charges among its 9 17 CFR 242.603(a). 10 Currently Approved Collection. members and issuers and other parties NASDAQ is an exclusive processor of NASDAQ Basic under Section 3(a)(22)(B) of the • Originating Office: Bureau of using its facilities, and Section 6(b)(5) of Act, 15 U.S.C. 78c(a)(22)(B), which defines an 7 Educational and Cultural Affairs, Office the Act, which requires, among other exclusive processor as, among other things, an of Private Sector Exchange, ECA/EC. things, that the rules of a national exchange that distributes information with respect • Form Number: Form DS–3097. securities exchange be designed to to quotations or transactions on an exclusive basis • Respondents: Designated J–1 promote just and equitable principles of on its own behalf. 11 See Securities Exchange Act Release No. 59039 program sponsors. trade, to remove impediments to and (December 2, 2008), 73 FR 74770 (December 9, • Estimated Number of Respondents: 2008) (SR–NYSEArca–2006–21) (‘‘NYSE Arca 1,460. 5 In approving this proposed rule change, the Order’’). In the NYSE Arca Order, the Commission • Estimated Number of Responses: Commission has considered the proposed rule’s describes the competitive factors that apply to non- impact on efficiency, competition, and capital core market data products. The Commission hereby 1,460 annually. formation. See 15 U.S.C. 78c(f). incorporates by reference the data and analysis from 6 15 U.S.C. 78f(b)(4). the NYSE Arca Order into this order. 13 15 U.S.C. 78s(b)(2). 7 15 U.S.C. 78f(b)(5). 12 See Pilot Approval Order, supra note 4. 14 17 CFR 200.30–3(a)(12).

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• Average Hours Per Response: 1 activities in which exchange visitors Dated: May 13 2009. hour. were engaged and an evaluation of James B. Steinberg, • Total Estimated Burden: 1,460 program effectiveness. Program Deputy Secretary of State, Department of hours. sponsors include government agencies, State. • Frequency: Annually. academic institutions, and private sector [FR Doc. E9–12145 Filed 5–22–09; 8:45 am] • Obligation to Respond: Mandatory. not-for-profit and for-profit entities. BILLING CODE 4710–10–P DATES: The Department will accept Methodology comments from the public up to 60 days from May 26, 2009. Annual reports are completed through DEPARTMENT OF STATE the Student and Exchange Visitor ADDRESSES: You may submit comments [Public Notice 6631] by any of the following methods: Information System (SEVIS) and then • E-mail: [email protected]. You printed and signed by a sponsor official, State–24, Medical Records must include the DS form number and and sent to the Department by mail or RIN in the subject line of your message. fax. The Department is currently SUMMARY: Notice is hereby given that • Mail (paper, disk, or CD–ROM working with the Department of the Department of State proposes to submissions): U.S. Department of State, Homeland Security to expand SEVIS alter an existing system of records, Office of Exchange Coordination and functions and enable the collection of Medical Records, State–24, pursuant to Designation, SA–44, 301 4th Street, electronic signatures. Annual reports the provisions of the Privacy Act of SW., Room 734, Washington, DC 20547. will be submitted to the Department 1974, as amended (5 U.S.C. 552a) and • Fax: 202–203–5087. electronically as soon as the mechanism Office of Management and Budget Persons with access to the Internet for doing so is approved and in place. Circular No. A–130, Appendix I. The Department’s report was filed with the may also view this notice and provide Dated: May 14, 2009. Office of Management and Budget on comments by going to the Stanley S. Colvin, regulations.gov Web site at: http:// May 18, 2009. Deputy Assistant Secretary for Private Sector It is proposed that the current system www.regulations.gov/index.cfm. You Exchange, Bureau of Educational and must include the DS form number, will retain the name ‘‘Medical Records.’’ Cultural Exchange, Department of State. It is also proposed that due to the information collection title, and OMB [FR Doc. E9–12147 Filed 5–22–09; 8:45 am] control number in any correspondence. expanded scope of the current system, BILLING CODE 4710–05–P the altered system description will FOR FURTHER INFORMATION CONTACT: include revisions and/or additions to Direct requests for additional the following sections: Categories of information regarding the collection DEPARTMENT OF STATE Individuals Covered by the Systems, listed in this notice, including requests Categories of Records in the System, for copies of the proposed information [Public Notice 6633] Purpose, Safeguards and Retrievability. collection and supporting documents, to In the Matter of the Review of the Any persons interested in Stanley S. Colvin, Deputy Assistant Designation of Abu Nidal Organization commenting on the altered system of Secretary, Office of Private Sector Movement (ANO) and Palestinian records may do so by submitting Exchange, U.S. Department of State, Liberation Front—Abu Abbas Faction comments in writing to Margaret P. SA–44, 301 4th Street, SW., Room 734, (PLF) and All Designated Aliases, as Grafeld, Director; Office of Information Washington, DC 20547; or e-mail at Foreign Terrorist Organizations Programs and Services; A/GIS/IPS; [email protected]. Pursuant to Section 219 of the Department of State, SA–2; 515 22nd SUPPLEMENTARY INFORMATION: Immigration and Nationality Act, as Street, Washington, DC 20522–8001. We are soliciting public comments to Amended This system of records will be effective permit the Department to: 40 days from the date of publication, • Evaluate whether the proposed Based upon a review of the unless we receive comments that will information collection is necessary for Administrative Record assembled in result in a contrary determination. the proper performance of our this matter pursuant to Section The altered system description, functions. 219(a)(4)(C) of the Immigration and ‘‘Medical Records, State–24,’’ will read • Evaluate the accuracy of our Nationality Act, as amended (8 U.S.C. as set forth below. 1189(a)(4)(C)) (‘‘INA’’), and in estimate of the burden of the proposed Dated: May 18, 2009. collection, including the validity of the consultation with the Attorney General Steven J. Rodriguez, methodology and assumptions used. and the Secretary of the Treasury, I • Enhance the quality, utility, and conclude that the circumstances that Deputy Assistant Secretary of Operations, were the basis for the 2003 re- Bureau of Administration, Department of clarity of the information to be State. collected. designation of the aforementioned • Minimize the reporting burden on organizations as foreign terrorist STATE–24 those who are to respond, including the organizations have not changed in such SYSTEM NAME: use of automated collection techniques a manner as to warrant revocation of the or other forms of technology. designation and that the national Medical Records. security of the United States does not SYSTEM LOCATION: Abstract of Proposed Collection warrant a revocation of the designations. Department of State, Office of Medical Annual reports from designated Therefore, I hereby determine that the Services, 2401 E Street, NW., program sponsors assist the Department designations of the aforementioned Washington, DC 20522, and Health in oversight and administration of the J– organizations as foreign terrorist Units at Overseas Posts. 1 visa program. The reports provide organizations, pursuant to Section 219 statistical data on the number of of the INA (8 U.S.C. 1189), shall be CATEGORIES OF INDIVIDUALS COVERED BY THE exchange participants an organization maintained. SYSTEM: sponsored per category of exchange. The This determination shall be published U.S. Government employees, family reports also provide a summary of the in the Federal Register. members, and any other individuals

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eligible to participate in the health care —To a parent, guardian or other depends upon the disclosure would be program of the U.S. Department of State person acting in loco parentis with adversely affected by waiting until the as authorized by either section 904 of respect to the subject of the information; individual is able to agree to the the Foreign Service Act of 1980 (22 —To a health oversight agency or disclosure; U.S.C. 4084) or other legal authority. public health authority authorized by —In the course of any judicial or law to investigate or otherwise oversee administrative proceeding in response CATEGORIES OF RECORDS IN THE SYSTEM: the relevant conduct or conditions of to an order of a court or administrative Includes name, social security the Department of State’s medical tribunal; number, date of birth, address to program, or for such oversight activities —To a law enforcement official (1) As include email and phone number; as audits; civil, administrative, or required by law or in compliance with reports of medical examinations and criminal proceedings or actions; a court order or court-ordered warrant, related documents; reports of treatments inspections; licensure or disciplinary or a subpoena or summons issued by a and other health services rendered to actions; judicial officer, or a grand jury individuals; narrative summaries of —To a public health authority subpoena, or an administrative request, hospital treatments; personal medical (domestic or foreign) that is authorized including an administrative subpoena or histories; reports of on-the-job injuries by law to collect or receive protected summons; (2) in response to a request or illnesses; and reports on medical health information for the purpose of for the purposes of identifying or evacuation, and/or any other types of preventing or controlling disease, locating a suspect, fugitive, material individually identifiable health injury, or disability, including, but not witness or missing person; in response information generated or used in the limited to, the reporting of disease, to a request for such information about course of conducting ‘‘health care injury, vital events such as birth or an individual who is or is suspected to operations’’ as this term is defined at 45 death, and the conduct of public health be a victim of a crime; (3) where it is CFR 164.501. This system includes surveillance, public health believed that in good faith that such records that contain ‘‘protected health investigations, and public health information constitutes evidence of information’’ as this term is defined at interventions; criminal conduct; or (4) in response to 45 CFR 164.501, and accordingly, does —To the U.S. Department of Health an emergency, where it is believed such not include records maintained by the and Human Services (HHS), when disclosure is necessary to alert law Department of State and/or other required by the Secretary of HHS in enforcement to the commission and employers in their capacity as order to investigate or determine nature of a crime, the location of such employers. This system also includes compliance with the HIPAA; crime or of the victim(s) of such crime, certain records maintained as part of the —To a public health authority or and the identity, description and Department’s Employee Assistance other appropriate government authority location of the perpetrator of such Program pursuant to 5 CFR Part 792. (domestic or foreign) authorized by law crime; to receive reports of child abuse or —As necessary in order to prevent or AUTHORITY FOR MAINTENANCE OF THE SYSTEM: neglect; lessen a serious and imminent threat to 22 U.S.C. 4084, 42 U.S.C. 290dd–1, —To a person subject to the the health or safety of a person or the Public Law 99–570 §§ 7361–7362; 5 CFR jurisdiction of the Food and Drug public, to a person or persons Part 792. Administration (FDA) with respect to an reasonably able to prevent or lessen the PURPOSE: FDA-regulated product or activity for threat, including the target of the threat; which that person has responsibility, for —To authorized federal officials for The information contained in these the purpose of activities related to the the conduct of lawful intelligence, records is used to administer the quality, safety or effectiveness of such counter-intelligence, and other national Department of State’s medical program. FDA-regulated product or activity; security activities authorized by the These records are utilized and reviewed —To a person who may have been National Security Act (50 U.S.C. 401, et by medical and administrative exposed to a communicable disease or seq.) and implementing authority (e.g., personnel of the Office of Medical may otherwise be at risk of contracting Executive Order 12333); Services (MED) in providing health care or spreading a disease or condition, to —To authorized federal officials for to the individuals eligible to participate the extent MED is authorized by law to the provision of protective services to in the health care program. notify such person as necessary in the the President or other persons ROUTINE USES OF RECORDS MAINTAINED IN THE conduct of a public health intervention authorized by 18 U.S.C. 3056, or to SYSTEM, INCLUDING CATEGORIES OF USERS AND or investigation; foreign heads of state or other persons THE PURPOSES OF SUCH USES: —To a government authority authorized by 22 U.S.C. 2709(a)(3), or Routine use of information from these (domestic or foreign), including a social for the conduct of investigations files includes any use permitted by the service or protective services agency, authorized by 18 U.S.C. 871 and 879. Health Insurance Portability and authorized by law to receive reports of —To make medical suitability Accountability Act (HIPAA) Privacy abuse, neglect or domestic violence, (1) determinations and disclose whether or Rule at 45 CFR Part 164 for which no To the extent such a disclosure is not an individual is determined to be authorization or opportunity to agree or required by law; (2) where in the medically suitable to the officials in the object is required by the subject of the exercise of professional judgment, the Department of State who need access to information. Specifically, we may disclosure is necessary to prevent such information (1) For the purposes of disclose the information: serious harm to the individual or other a national security clearance conducted —To a ‘‘business associate,’’ as that potential victims; or (3) where, if the pursuant to Executive Orders 10450 and term is defined at 45 CFR 160.103; to subject of the information is 12698; (2) as necessary to determine another health care provider; or to a incapacitated, a law enforcement, or worldwide availability, suitability for group health plan or health insurance other public official authorized to particular assignments, suitability for issuer or Health Maintenance receive the report, represents that the mandatory service abroad under Organization for purposes of carrying information sought is not intended to be sections 101(a)(4) and 504 of the Foreign out treatment, payment or health care used against the individual and that an Service Act; or (3) for a family to operations; immediate enforcement activity that accompany a Foreign Service member

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abroad, consistent with section 101(b)(5) restricted areas, access to which is SUSQUEHANNA RIVER BASIN and 904 of the Foreign Service Act. limited to authorized personnel. Access COMMISSION —To a correctional institution or a to computerized files is password- law enforcement official having lawful protected and under the direct Notice of Projects Approved for custody of an individual, if the supervision of the system manager. The Consumptive Uses of Water correctional institution or law system manager has the capability of enforcement official represents that AGENCY: Susquehanna River Basin printing audit trails of access from the Commission. such information is necessary for the computer media, thereby permitting ACTION: Notice of approved projects. provision of health care to such regular and ad hoc monitoring of individual, the health and safety of computer usage. SUMMARY: This notice lists the projects other individuals or others at the approved by rule by the Susquehanna correctional institution, or the When it is determined that a user no River Basin Commission during the administration and maintenance of the longer needs access, the user accounted period set forth in DATES. safety, security, and good order of the is disabled. DATES: January 1, 2009, through April correctional institution; Retention and disposal: —To appropriate domestic or foreign 30, 2009. government officials (including but not Records are retired or destroyed in ADDRESSES: Susquehanna River Basin limited to the U.S. Department of accordance with published schedules of Commission, 1721 North Front Street, Labor), as authorized by and to the the Department of State. More specific Harrisburg, PA 17102–2391. extent necessary to comply with laws information may be obtained by writing FOR FURTHER INFORMATION CONTACT: relating to workers’ compensation or the Director of Medical Records, Office Richard A. Cairo, General Counsel, other similar programs, established by of Medical Services, 2401 E Street, NW., telephone: (717) 238–0423, ext. 306; fax: law, that provide benefits for work- Washington, DC 20522. (717) 238–2436; e-mail: [email protected] related injuries or illnesses without or Stephanie L. Richardson, Secretary to regard to fault. System manager(s) and address: the Commission, telephone: (717) 238– Policies and practices for storing, Executive Officer, Medical Services, 0423, ext. 304; fax: (717) 238–2436; e- retrieving, accessing, retaining, and Room 2270, Department of State, 2401 mail: [email protected]. Regular disposing of records in the system: E Street, NW., Washington, DC 20522. mail inquiries may be sent to the above address. Storage: Notification procedure: SUPPLEMENTARY INFORMATION: This Records are stored in hard copy and notice lists the projects, described Individuals who have cause to believe computer media. below, receiving approval for the that the Office of Medical Services consumptive use of water pursuant to Retrievability: might have records pertaining to them the Commission’s approval by rule By individual name and date of birth. should write to Medical Records, Office process set forth in 18 CFR 806.22(e) of Medical Services, Department of Safeguards: and 18 CFR 806.22(f) for the time period State, 2401 E Street NW., Washington, specified above: All users are given information DC 20522. The individual must include: system security awareness training, Name; date and place of birth; current Approvals Issued including the procedures for handling mailing address and zip code; signature; Sensitive but Unclassified and Approvals By Rule Issued Under 18 CFR the agency served by the medical 806.22(e) personally identifiable information. program with which the individual was Annual refresher training is mandatory. or is an employee or a dependent, and 1. Church & Dwight Co., Inc., Arm Before being granted access to Medical the approximate dates of such and Hammer, ABR20081205, Jackson Records, a user must first be granted employment or dependency. Township, York County, PA, access to the Department of State Consumptive Use of Up to 0.420 mgd, computer system. Record access procedures: Approval Date: January 14, 2009. Remote access to the Department of 2. ADM Cocoa, ADM Cocoa— State network from non-Department Individuals who wish to gain access Hazleton, PA, ABR20090302, Hazle owned systems is only authorized to or amend records pertaining to them Township, Luzerne County, PA, through a Department approved access should write to the Director of Medical Consumptive Use of Up to 0.160 mgd, program. Remote access to the network Records (Address above). Approval Date: March 24, 2009. is configured with the Office of Contesting record procedures: Management and Budget Memorandum Approvals By Rule Issued Under 18 CFR M–07–16 security requirements of two (See Record access procedure, above). 806.22(f) factor authentication and time out 1. Alta Operating Company, LLC, function. Record source categories: Webster #1, ABR20090401, Franklin All Department of State employees Information contained in these Township, Susquehanna County, PA, and contractors with authorized access records comes from the individual; Consumptive Use of Up to 0.990 mgd, have undergone a thorough background hospitals; clinics; private physicians; Approval Date: April 6, 2009. security investigation. Access to the employers; and medical professionals 2. Alta Operating Company, LLC, Department of State, its annexes and employed by the Department of State. Holbrook #1, ABR20090402, posts overseas is controlled by security Bridgewater Township, Susquehanna guards and admission is limited to those System exempted from certain County, PA, Consumptive Use of Up to individuals possessing a valid provisions under the Privacy Act: 0.999 mgd, Approval Date: April 6, identification card or individuals under 2009. proper escort. All records containing None. 3. Alta Operating Company, LLC, Medical Records information are [FR Doc. E9–12146 Filed 5–22–09; 8:45 am] Turner #1, ABR20090403, Liberty maintained in secured file cabinets in BILLING CODE 4710–24–P Township, Susquehanna County, PA,

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Consumptive Use of Up to 0.999 mgd, 16. Anadarko E&P Company, LP, Franklin Township, Lycoming County, Approval Date: April 6, 2009. Larry’s Creek F&G #3H, ABR20090416, PA, Consumptive Use of Up to 1.600 4. Alta Operating Company, LLC, Cummings Township, Lycoming mgd, Approval Date: April 6, 2009. Fiondi #1, ABR20090404, Middletown County, PA, Consumptive Use of Up to 30. EXCO–North Coast Energy, Inc., Township, Susquehanna County, PA, 5.000 mgd, Approval Date: April 6, Snyder Unit #1, ABR20090430, Franklin Consumptive Use of Up to 0.999 mgd, 2009. Township, Lycoming County, PA, Approval Date: April 6, 2009. 17. Carrizo Oil & Gas, Inc., Cowfer #1, Consumptive Use of Up to 1.600 mgd, 5. Anadarko E&P Company, LP, COP ABR20090417, Rush Township, Centre Approval Date: April 6, 2009. Tract 653 (1000), ABR20090405, Beech County, PA, Consumptive Use of Up to 31. EXCO–North Coast Energy, Inc., Creek Township, Clinton County, PA, 0.999 mgd, Approval Date: April 6, Litke (14H, 15H, 16H), ABR20090431, Consumptive Use of Up to 1.680 mgd, 2009. Burnside Township, Centre County, PA, Approval Date: April 6, 2009. 18. Eastern American Energy Consumptive Use of Up to 5.000 mgd, 6. Anadarko E&P Company, LP, COP Corporation, Whitetail Gun & Rod Club Approval Date: April 6, 2009. Tract 231 (1000), ABR20090406, Boggs #1, ABR20090418, Goshen Township, 32. Seneca Resources Corporation, Township, Centre County, PA, Clearfield County, PA, Consumptive DCNR 595 1V, ABR20090432, Bloss Consumptive Use of Up to 1.680 mgd, Use of Up to 0.900 mgd, Approval Date: Township, Tioga County, PA, Approval Date: April 6, 2009. April 6, 2009. Consumptive Use of Up to 0.099 mgd, 7. Anadarko E&P Company, LP, 19. EOG Resources, Inc., Houseknecht Approval Date: April 6, 2009. Larry’s Creek F&G #1, ABR20090407, #2H, ABR20090419, Springfield 33. Seneca Resources Corporation, Cummings Township, Lycoming Township, Bradford County, PA, Wilcox (TEOG 1), ABR20090433, County, PA, Consumptive Use of Up to Consumptive Use of Up to 0.490 mgd, Covington Township, Tioga County, PA, 1.680 mgd, Approval Date: April 6, Approval Date: April 6, 2009. Consumptive Use of Up to 0.099 mgd, 2009. 20. EOG Resources, Inc., Houseknecht Approval Date: April 6, 2009. 8. Anadarko E&P Company, LP, COP C 1V, ABR20090420, Springfield 34. Seneca Resources Corporation, Tract 285 (1000), ABR20090408, Grugan Township, Bradford County, PA, Hemenway (TSRC 1), ABR20090434, Township, Clinton County, PA, Consumptive Use of Up to 0.099 mgd, Charleston County, Tioga County, PA, Consumptive Use of Up to 1.680 mgd, Approval Date: April 6, 2009. Consumptive Use of Up to 0.099 mgd, Approval Date: April 6, 2009. 21. EOG Resources, Inc., Ward M 1H, Approval Date: April 6, 2009. 35. Seneca Resources Corporation, 9. Anadarko E&P Company, LP, Penn ABR20090421, Springfield Township, DCNR 293, ABR20090435, Cummings State Forest Tract 289 #1, Bradford County, PA, Consumptive Use Township, Lycoming County, PA, ABR20090409, McHenry Township, of Up to 0.490 mgd, Approval Date: Consumptive Use of Up to 0.099 mgd, Lycoming County, PA, Consumptive April 6, 2009. 22. EOG Resources, Inc., Houseknecht Approval Date: April 6, 2009. Use of Up to 1.680 mgd, Approval Date: 3H, ABR20090422, Springfield 36. Seneca Resources Corporation, April 6, 2009. Township, Bradford County, PA, DCNR 100 1V, ABR20090436, Lewis 10. Anadarko E&P Company, LP, COP Consumptive Use of Up to 0.490 mgd, Township, Lycoming County, PA, Tract 289 #1000H and #1001H, Approval Date: April 6, 2009. Consumptive Use of Up to 0.099 mgd, ABR20090410, McHenry Township, 23. EOG Resources, Inc., Houseknecht Approval Date: April 6, 2009. Lycoming County, PA, Consumptive 1H, ABR20090423, Springfield 37. Southwestern Energy Production Use of Up to 5.000 mgd, Approval Date: Township, Bradford County, PA, Co., Greenzweig [1 (706575)], April 6, 2009. Consumptive Use of Up to 0.499 mgd, ABR20090437, Herrick Township, 11. Anadarko E&P Company, LP, Approval Date: April 6, 2009. Bradford County, PA, Consumptive Use Larry’s Creek F&G #2H, ABR20090411, 24. EOG Resources, Inc., PHC 3H, of Up to 1.750 mgd, Approval Date: Cummings Township, Lycoming ABR20090424, Lawrence Township, April 6, 2009. County, PA, Consumptive Use of Up to Clearfield County, PA, Consumptive 38. Southwestern Energy Production 5.000 mgd, Approval Date: April 6, Use of Up to 0.499 mgd, Approval Date: Co., Range No. (1 and 1H), 2009. April 6, 2009. ABR20090438, New Milford Township, 12. Anadarko E&P Company, LP, COP 25. EXCO–North Coast Energy, Inc., Susquehanna County, PA, Consumptive Tract 231 #1001H and #1002H, Litke (1H and 2H), ABR20090425, Use of Up to 1.750 mgd, Approval Date: ABR20090412, Snow Shoe Township, Burnside Township, Centre County, PA, April 6, 2009. Centre County, PA, Consumptive Use of Consumptive Use of Up to 2.000 mgd, 39. Southwestern Energy Production Up to 5.000 mgd, Approval Date: April Approval Date: April 6, 2009. Co., Price No. 1 Vertical and Horizontal, 6, 2009. 26. EXCO–North Coast Energy, Inc., ABR20090439, Lenox Township, 13. Anadarko E&P Company, LP, COP Litke (7H and 8H), ABR20090426, Susquehanna River, PA, Consumptive Tract 285 #1001H and #1002H, Burnside Township, Centre County, PA, Use of Up to 1.750 mgd, Approval Date: ABR20090413, Grugan Township, Consumptive Use of Up to 2.000 mgd, April 6, 2009. Clinton County, PA, Consumptive Use Approval Date: April 6, 2009. 40. Anadarko E&P Company, LP, COP of Up to 5.000 mgd, Approval Date: 27. EXCO–North Coast Energy, Inc., Tract 259 #1001H, ABR20090440, April 6, 2009. Sterling Run Club #4, ABR20090427, Burnside Township, Centre County, PA, 14. Anadarko E&P Company, LP, COP Burnside Township, Centre County, PA, Consumptive Use of Up to 5.000 mgd, Tract 653 #1001H, ABR20090414, Beech Consumptive Use of Up to 1.000 mgd, Approval Date: April 27, 2009. Creek Township, Clinton County, PA, Approval Date: April 6, 2009. 41. Anadarko E&P Company, LP, COP Consumptive Use of Up to 5.000 mgd, 28. EXCO–North Coast Energy, Inc., Tract 259 #1002H, ABR20090441, Approval Date: April 6, 2009. Sterling Run Club #5, ABR20090428, Burnside Township, Centre County, PA, 15. Anadarko E&P Company, LP, COP Burnside Township, Centre County, PA, Consumptive Use of Up to 5.000 mgd, Tract 653 #1002H, ABR20090415, Beech Consumptive Use of Up to 1.000 mgd, Approval Date: April 27, 2009. Creek Township, Clinton County, PA, Approval Date: April 6, 2009. 42. Anadarko E&P Company, LP, R. Consumptive Use of Up to 5.000 mgd, 29. EXCO–North Coast Energy, Inc., Carlin #1H, ABR20090442, Snow Shoe Approval Date: April 6, 2009. Derrick Unit #1, ABR20090429, Township, Centre County, PA,

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Consumptive Use of Up to 5.000 mgd, DATES: The closing date for comments (4) After entering that information, Approval Date: April 27, 2009. on the petition is June 25, 2009. click on ‘‘submit.’’ 43. Anadarko E&P Company, LP, R. ADDRESSES: Comments should refer to (5) The next page contains docket Carlin #2H and #3H, ABR20090443, the docket and notice numbers above summary information for the docket you Snow Shoe Township, Centre County, and be submitted by any of the selected. Click on the comments you PA, Consumptive Use of Up to 5.000 following methods: wish to see. You may download the mgd, Approval Date: April 27, 2009. • Federal eRulemaking Portal: Go to comments. Please note that even after 44. Anadarko E&P Company, LP, COP http://www.regulations.gov. Follow the the comment closing date, we will Tract 252 #1000H, ABR20090444, online instructions for submitting continue to file relevant information in Grugan Township, Clinton County, PA, comments. the Docket as it becomes available. Consumptive Use of Up to 5.000 mgd, • Mail: Docket Management Facility: Further, some people may submit late Approval Date: April 27, 2009. U.S. Department of Transportation, 1200 comments. Accordingly, we recommend 45. Anadarko E&P Company, LP, COP New Jersey Avenue, SE., West Building that you periodically search the Docket Tract 252 #1001H and #1002H, Ground Floor, Room W12–140, for new material. ABR20090445, Grugan Township, Washington, DC 20590–0001. FOR FURTHER INFORMATION CONTACT: Clinton County, PA, Consumptive Use • Hand Delivery or Courier: West Coleman Sachs, Office of Vehicle Safety of Up to 5.000 mgd, Approval Date: Building Ground Floor, Room W12–140, Compliance, NHTSA (202–366–3151). April 27, 2009. 1200 New Jersey Avenue, SE., between SUPPLEMENTARY INFORMATION: Authority: Public Law 91–575, 84 Stat. 9 a.m. and 5 p.m. ET, Monday through Background 1509 et seq., 18 CFR Parts 806, 807, and 808. Friday, except Federal holidays. Under 49 U.S.C. 30141(a)(1)(A), a Dated: May 6, 2009. • Fax: 202–493–2251. motor vehicle that was not originally Thomas W. Beauduy, Instructions: Comments must be written in the English language, and be manufactured to conform to all Deputy Director. applicable FMVSS shall be refused [FR Doc. E9–12047 Filed 5–22–09; 8:45 am] no greater than 15 pages in length, although there is no limit to the length admission into the United States unless BILLING CODE 7040–01–P of necessary attachments to the NHTSA has decided that the motor comments. If comments are submitted vehicle is substantially similar to a in hard copy form, please ensure that motor vehicle originally manufactured for importation into and sale in the DEPARTMENT OF TRANSPORTATION two copies are provided. If you wish to United States, certified under 49 U.S.C. receive confirmation that your National Highway Traffic Safety 30115, and of the same model year as comments were received, please enclose Administration the model of the motor vehicle to be a stamped, self-addressed postcard with compared, and is capable of being [Docket No. NHTSA–2009–0094] the comments. Note that all comments readily altered to conform to all received will be posted without change Notice of Receipt of Petition for applicable FMVSS. to http://www.regulations.gov, including Petitions for eligibility decisions may Decision That Nonconforming 2006 any personal information provided. Ferrari 599 Passenger Cars be submitted by either manufacturers or Please see the Privacy Act heading importers who have registered with Manufactured Before September 1, below. 2006 Are Eligible for Importation NHTSA pursuant to 49 CFR Part 592. As Privacy Act: Anyone is able to search specified in 49 CFR 593.7, NHTSA AGENCY: National Highway Traffic the electronic form of all comments publishes notice in the Federal Register Safety Administration, DOT. received into any of our dockets by the of each petition that it receives, and ACTION: Notice of receipt of petition for name of the individual submitting the affords interested persons an decision that nonconforming 2006 comment (or signing the comment, if opportunity to comment on the petition. Ferrari 599 passenger cars manufactured submitted on behalf of an association, At the close of the comment period, before September 1, 2006 are eligible for business, labor union, etc.). You may NHTSA decides, on the basis of the importation. review DOT’s complete Privacy Act petition and any comments that it has Statement in the Federal Register received, whether the vehicle is eligible SUMMARY: This document announces published on April 11, 2000 (65 FR for importation. The agency then receipt by the National Highway Traffic 19477–78) or you may visit http:// publishes this decision in the Federal Safety Administration (NHTSA) of a DocketInfo.dot.gov. Register. petition for a decision that 2006 Ferrari How to Read Comments Submitted to Wallace Environmental Testing 599 passenger cars manufactured before the Docket: You may read the comments Laboratories, Inc. (WETL) of Houston, September 1, 2006 that were not received by Docket Management at the TX (Registered Importer 90–005) has originally manufactured to comply with address and times given above. You may petitioned NHTSA to decide whether all applicable Federal motor vehicle also see the comments on the Internet. nonconforming 2006 Ferrari 599 safety standards (FMVSS) are eligible To read the comments on the Internet, passenger cars manufactured before for importation into the United States take the following steps: September 1, 2006 are eligible for because (1) they are substantially (1) Go to the Federal Docket importation into the United States. The similar to vehicles that were originally Management System (FDMS) Web page vehicles which WETL believes are manufactured for sale in the United http://www.regulations.gov. substantially similar are 2006 Ferrari States and that were certified by their (2) On that page, click on ‘‘Advanced 599 passenger cars manufactured before manufacturer as complying with the Docket Search.’’ September 1, 2006 that were safety standards (the U.S.-certified (3) On the next page select manufactured for sale in the United version of the 2006 Ferrari 599 ‘‘NATIONAL HIGHWAY TRAFFIC States and certified by their passenger cars manufactured before SAFETY ADMINISTRATION’’ from the manufacturer as conforming to all September 1, 2006,) and (2) they are drop-down menu in the Agency field applicable FMVSS. capable of being readily altered to and enter the Docket ID number shown The petitioner claims that it compared conform to the standards. at the heading of this document. non-U.S. certified 2006 Ferrari 599

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passenger cars manufactured before placard on all vehicles not already so Authority: 49 U.S.C. 30141(a)(1)(A) and September 1, 2006 to their U.S.-certified equipped. (b)(1); 49 CFR 593.8; delegations of authority counterparts, and found the vehicles to Standard No. 111 Rearview Mirrors: at 49 CFR 1.50 and 501.8. be substantially similar with respect to Inspection of all vehicles and Issued on: May 19, 2009. compliance with most FMVSS. installation of a U.S.-model passenger Harry Thompson, WETL submitted information with its side rearview mirror, or inscription of Acting Director, Office of Vehicle Safety petition intended to demonstrate that the required warning statement on the Compliance. non-U.S. certified 2006 Ferrari 599 face of that mirror on all vehicles not [FR Doc. E9–12154 Filed 5–22–09; 8:45 am] passenger cars manufactured before already so equipped. BILLING CODE 4910–59–P September 1, 2006, as originally Standard No. 114 Theft Protection: manufactured, conform to many FMVSS Inspection of all vehicles and in the same manner as their U.S. installation of a supplemental key DEPARTMENT OF TRANSPORTATION certified counterparts, or are capable of warning buzzer, or installation of U.S.- being readily altered to conform to those version software on all vehicles not Surface Transportation Board standards. already so equipped. Standard No. 208 Occupant Crash [STB Finance Docket No. 35164; STB Specifically, the petitioner claims that Docket No. AB–6 (Sub-No. 430X)] non-U.S. certified 2006 Ferrari 599 Protection: Inspection of all vehicles passenger cars manufactured before and replacement of any non U.S.-model BNSF Railway Company-Petition for September 1, 2006 are identical to their seat belts, air bag control units, air bags, Declaratory Order; BNSF Railway U.S. certified counterparts with respect and sensors with U.S.-model Company—Abandonment Exemption— to compliance with Standard Nos. 102 components on vehicles that are not in Oklahoma County, OK Transmission Shift Lever Sequence, already so equipped; and (b) installation Starter Interlock, and Transmission of U.S.-version software to ensure that AGENCY: Surface Transportation Board, Braking Effect, 103 Windshield the seat belt warning system meets the DOT. Defrosting and Defogging Systems, 104 requirements of this standard. ACTION: Notice of board action. Windshield Wiping and Washing The petitioner states that the crash SUMMARY: The Surface Transportation Systems, 106 Brake Hoses, 109 New protection system used in these vehicles Board (Board) hereby gives notice that, Pneumatic Tires, 113 Hood Latch consists of dual front airbags, knee on its own motion, it granted BNSF System, 116 Motor Vehicle Brake Fluids, bolsters, and combination lap and Railway Company (BNSF) exemptions 118 Power-Operated Window, Partition, shoulder belts at the front outboard under 49 U.S.C. 10502 from the and Roof Panel Systems, 124 seating positions. The seat belt systems provisions of 49 U.S.C. 10903 (filing and Accelerator Control Systems, 135 are described as being self-tensioning, procedure for application to abandon or Passenger Car Brake Systems, 201 and capable of being released by means discontinue service), 49 U.S.C. 10904 Occupant Protection in Interior Impact, of a single red push-button. Standard No. 209 Seat Belt (offers of financial assistance to avoid 202 Head Restraints, 204 Steering Assemblies: Inspection of all vehicles abandonment and discontinuance), and Control Rearward Displacement, 205 and replacement of any non U.S.-model 49 U.S.C. 10905 (offering abandoned rail Glazing Materials, 206 Door Locks and seat belts with U.S.-certified model seat properties for sale for public purposes) Door Retention Components, 207 belts. for a segment of track on the Chickasha Seating Systems, 212 Windshield Standard No. 210 Seat Belt Assembly Line in Oklahoma City, OK, between Mounting, 214 Side Impact Protection, Anchorages: Inspection of all vehicles milepost 541.69 and milepost 540.15 216 Roof Crush Resistance, 219 and replacement of any non U.S.-model (the middle segment). The Board took Windshield Zone Intrusion, 302 seat belts anchorage components with this action in a decision served earlier Flammability of Interior Materials, and U.S.-model components. in which it also found that a BNSF 401 Interior Trunk Release. Standard No. 225 Child Restraint eastern segment project was a relocation In addition, the petitioner claims that Anchorage Systems: Installation of U.S.- that did not require prior agency the vehicles comply with the Bumper model child restraint systems. authorization. Standard found in 49 CFR Part 581. Standard No. 301 Fuel System The petitioner also contends that the Integrity: Inspection of all vehicles and FOR FURTHER INFORMATION CONTACT: vehicles are capable of being readily replacement of any non U.S.-model fuel Joseph Dettmar, (202) 245–0395. altered to meet the following standards, system components with U.S.-model [Assistance for the hearing impaired is in the manner indicated: components. available through the Federal Standard No. 101 Controls and The petitioner additionally states that Information Relay Service (FIRS) at: Displays: Inspection of all vehicles and a vehicle identification plate must be (800) 877–8339.] installation of a U.S.-model instrument affixed to the vehicles near the left SUPPLEMENTARY INFORMATION: By cluster with associated hardware and windshield post to meet the petition filed on July 15, 2008, BNSF software, or modification of the existing requirements of 49 CFR Part 565. asked the Board to issue a declaratory instrument cluster to meet the All comments received before the order finding that what it characterized requirements of this standard on close of business on the closing date as two track relocation projects in vehicles not already so equipped. indicated above will be considered, and Oklahoma City, OK did not require Standard No. 108 Lamps, Reflective will be available for examination in the Board approval. Devices and Associated Equipment: docket at the above addresses both The Board granted the requested Inspection of all vehicles and before and after that date. To the extent declaratory relief as to the eastern installation, on vehicles that are not possible, comments filed after the segment. On the middle segment, Board already so equipped, of U.S.-model closing date will also be considered. concluded that the evidence before it in components to meet the requirements of Notice of final action on the petition the two related dockets had provided this standard. will be published in the Federal ample support for authorizing Standard No. 110 Tire Selection and Register pursuant to the authority abandonment of that segment. The Rims: Installation of a tire information indicated below. evidence indicates that: the three

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existing shippers on adjoining segments ACTION: Notice of petition for exemption of Rulemaking, Federal Aviation will continue to receive local service; all received. Administration, 800 Independence overhead service can be rerouted; no Avenue, SW., Washington, DC 20591. one has requested local service on the SUMMARY: This notice contains a This notice is published pursuant to middle segment in over 10 years; and summary of a petition seeking relief 14 CFR 11.85. there is no indication of any need for from specified requirements of 14 CFR. The purpose of this notice is to improve Issued in Washington, DC, on May 20, service on the middle segment in the 2009. the public’s awareness of, and future. Finally, because any traffic that Pamela Hamilton-Powell, might need to move over the middle participation in, this aspect of FAA’s Director, Office of Rulemaking. segment could move over a refurbished regulatory activities. Neither publication BNSF Line (the Packingtown Lead), the of this notice nor the inclusion or Petition for Exemption public convenience and necessity does omission of information in the summary is intended to affect the legal status of Docket No.: FAA–2009–0250. not require BNSF to keep the middle Petitioner: Ameristar Air Cargo, Inc. segment in the national rail system. the petition or its final disposition. Section of 14 CFR Affected: 14 CFR Accordingly, the Board on its own DATES: Comments on this petition must 121.434(h)(3). motion granted BNSF an exemption identify the petition docket number Description of Relief Sought: from the provisions of 49 U.S.C. 10903 involved and must be received on or Ameristar Air Cargo, Inc. (Ameristar), for the middle segment. before June 15, 2009. has petitioned the Federal Aviation In seeking a declaratory order, BNSF ADDRESSES: You may send comments also asked the Board for an expedited Administration to permit a pilot that identified by Docket Number FAA– meets certain conditions outlined in its decision so that the relocation project to 2009–0250 using any of the following facilitate the construction of the I–40 petition, but not the requirements of 14 methods: CFR 121.434(g), to serve as a pilot in an highway could go forward. The Board, • Government-wide rulemaking Web on its own motion, exempted the airplane for which the pilot has newly site: Go to http://www.regulations.gov qualified. Additionally, Ameristar abandonment of the middle segment and follow the instructions for sending from the statutory offer of financial wishes to operate under such an your comments electronically. exemption outside the United States, assistance (OFA) program so that the • Mail: Send comments to the Docket specifically: Canada, Mexico, Central highway project may proceed and Management Facility; U.S. Department because applying the OFA provisions America, South America, and the of Transportation (DOT), 1200 New Caribbean nations or areas of operations under 49 U.S.C. 10904 is not necessary Jersey Avenue, SE., West Building to carry out the rail transportation authorized in its operations Ground Floor, Room W12–140, specifications. policy. Washington, DC 20590. Lastly, the Board granted an • Fax: Fax comments to the Docket [FR Doc. E9–12091 Filed 5–22–09; 8:45 am] exemption on its own motion from the Management Facility at 202–493–2251. BILLING CODE 4910–13–P public use provisions under 49 U.S.C. • Hand Delivery: Bring comments to 10905. BNSF has already agreed to make the Docket Management Facility in the right-of-way available to Oklahoma Room W12–140 of the West Building DEPARTMENT OF TRANSPORTATION Department of Transportation (ODOT) Ground Floor at 1200 New Jersey for public use, i.e., the construction of Federal Motor Carrier Safety I–40. Therefore, the purpose sought to Avenue, SE., Washington, DC, between Administration be achieved by section 10905—to 9 a.m. and 5 p.m., Monday through provide an opportunity to public bodies Friday, except Federal holidays. Purpose, Use and Effect of Field to negotiate for the acquisition of Privacy: We will post all comments Operations Training Manual. abandoned rail properties—has already we receive, without change, to http:// www.regulations.gov, including any AGENCY: Federal Motor Carrier Safety been fulfilled by the agreement reached Administration (FMCSA), DOT. between BNSF and ODOT. personal information you provide. This action will not significantly Using the search function of our docket ACTION: Notice of Interpretation of affect either the quality of the human Web site, anyone can find and read the Internal Agency Document. environment or the conservation of comments received into any of our SUMMARY: The purpose of this notice is energy resources. dockets, including the name of the individual sending the comment (or to restate and confirm the Agency’s Decided: May 19, 2009. signing the comment for an association, policy regarding the purpose, use and By the Board, Acting Chairman Mulvey, business, labor union, etc.). You may effect of the paper and electronic and Vice Chairman Nottingham. review DOT’s complete Privacy Act versions of FMCSA’s Field Operations Andrea Pope-Matheson, Statement in the Federal Register Training Manual (FOTM and eFOTM). Clearance Clerk. published on April 11, 2000 (65 FR DATES: Effective Date: This [FR Doc. E9–12099 Filed 5–22–09; 8:45 am] 19477–78). interpretation restates policy already in BILLING CODE 4915–01–P Docket: To read background effect. documents or comments received, go to FOR FURTHER INFORMATION CONTACT: http://www.regulations.gov at any time DEPARTMENT OF TRANSPORTATION Peter Snyder, Trial Attorney, Office of or to the Docket Management Facility in the Chief Counsel, Enforcement Federal Aviation Administration Room W12–140 of the West Building Division, 19900 Governors Drive, Suite Ground Floor at 1200 New Jersey 210, Olympia Fields, IL 60461, [Summary Notice No. PE–2009–15] Avenue, SE., Washington, DC, between telephone (708) 283–3515; or Genevieve 9 a.m. and 5 p.m., Monday through Sapir, Attorney-Advisor, Office of the Petition for Exemption; Summary of Friday, except Federal holidays. Petition Received Chief Counsel, Regulatory Affairs FOR FURTHER INFORMATION CONTACT: Division, 1200 New Jersey Avenue, SE., AGENCY: Federal Aviation Laverne Brunache (202) 267–3133 or Washington, DC 20590, telephone (202) Administration (FAA), DOT. Tyneka Thomas (202) 267–7626, Office 366–7056.

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Background adoption of the manual. American Public Law 104–13 on or after the date The Motor Carrier Safety Trucking Ass’ns, Inc. v. DOT, 166 F.3d of publication of this notice. Copies of Improvement Act of 1999 (MCSIA) 374 (DC Cir. 1999). the submission(s) may be obtained by calling the Treasury Bureau Clearance established the Federal Motor Carrier Current Policy Safety Administration (‘‘FMCSA’’) as a Officer listed. Comments regarding this new operating administration within the The Agency continues to regard the information collection should be Department of Transportation, effective FOTM and eFOTM as internal addressed to the OMB reviewer listed January 1, 2000 (Pub. L. 106–159, 113 enforcement guidance; the guidance and to the Treasury Department Stat. 1748, December 9, 1999). does not alter underlying substantive Clearance Officer, Department of the Continuing the practice first established legal requirements and does not provide Treasury, Room 11000, 1750 by FMCSA’s predecessors, the Office of an independent basis for enforcement. Pennsylvania Avenue, NW., Motor Carriers and the Office of Motor The investigatory procedures set forth in Washington, DC 20220. Carrier Safety, both within the Federal the eFOTM, and whether and to what DATES: Written comments should be Highway Administration, FMCSA issues extent Agency employees follow them, received on or before June 25, 2009 to guidance to its Field Service Centers are not relevant in determining whether be assured of consideration. and State Division Offices, in the form Federal motor carrier statutes or regulations have been violated or the Financial Crimes Enforcement Network of the Field Operations Training Manual (FinCEN) (FOTM). Volume III (Enforcement: appropriate penalty to be assessed for General Functions of an Investigator) of such violations. If an employee fails to OMB Number: 1506–0005. the first FOTM, which was issued by the comply with investigative, inspection, Type of Review: Revision. Form: FinCEN 103. new operating administration in January audit or other guidelines, the Agency Title: Currency Transaction Report by 2000, states: ‘‘This chapter has been will address that departure from Casinos. prepared to assist the Investigator in the recommended procedures internally, on a case-by-case basis, and may consider Description: Casinos and card clubs performance of investigative work. The file Form 103 for currency transactions intent is to present investigative disciplinary action, training or other appropriate measures. However, the in excess of $10,000 a day pursuant to procedures which can be used while 31 U.S.C. 5313(a) and 31 CFR conducting all types of investigations.’’ Agency hereby provides public notice that it will not consider an FMCSA or 103.22(a)(2). The form is used by This guidance is now stored and criminal investigators, and taxation and distributed in electronic format in the State employee’s failure to follow the FOTM or eFOTM guidance as a defense regulatory enforcement authorities, eFOTM, which is periodically updated during the course of investigations as new policies are adopted in response to penalties or violations assessed against drivers or motor carriers. An involving financial crimes. to legislation and new program Respondents: Businesses or other for- initiatives. A redacted version of the FMCSA or State employee’s failure to follow the FOTM or eFOTM guidance profits. eFOTM is available in the FMCSA Estimated Total Reporting Burden: Electronic Reading Room at: http:// will not excuse violations of the Federal Motor Carrier Safety Regulations, 230,000 hours. www.fmcsa.dot.gov/foia/ OMB Number: 1506–0014. electronicreadingroom.htm. FMCSA Federal Motor Carrier Commercial Regulations, or the Hazardous Materials Type of Review: Extension . redacted certain information from the Form: FINCEN–105. eFOTM available at this Web site in Regulations by any person, including motor carriers and drivers, nor will it Title: Report of International accordance with the Freedom of Transportation of Currency or Monetary Information Act. provide grounds for reducing civil penalties. See In the Matter of J. Line, Instruments. The eFOTM is, and has been, best Description: FinCEN, and the characterized as internal enforcement Inc., dba J-Line Transp., Docket No. FMCSA–2008–1087 (Administrative Department of Homeland Security guidelines, a ‘‘best practices’’ guide for (DHS) and the DHS Bureaus, are the Agency’s Safety Investigators and Law Judge’s Order Denying Cross- Motions for Final Order) (Jan. 13, 2009); required under 31 U.S.C. 5316(a) to other enforcement staff. It is intended to collect information regarding mailing, provide guidance to assist with the Swift Transp. Co., Inc., Docket No. FMCSA–2004–17248–63 (Order shipment, or transportation of currency sound exercise of discretion in or monetary instruments of more than conducting investigations, compliance Respecting Field Operations Training Manual) (Jan. 12, 2007). $10,000 in value into or out of the reviews, roadside inspections and safety United States audits. The United States Court of Issued on: May 19, 2009. Respondents: Individuals or Appeals for the District of Columbia Rose A. McMurray, Households Circuit recognized that the FOTM does Acting Deputy Administrator. Estimated Total Reporting Burden: not impose new substantive burdens, in [FR Doc. E9–12136 Filed 5–22–09; 8:45 am] 140,000 hours. the sense that it neither requires nor BILLING CODE 4910–EX–P OMB Number: 1506–0033. prohibits any particular actions on the Type of Review: Extension. part of motor carriers. Aulenback, Inc. v. Title: Customer Identification Federal Highway Admin., 103 F.3d 156, DEPARTMENT OF THE TREASURY Programs for Mutual Funds. 169 (DC Cir. 1997). Instead, ‘‘the Manual Description: Mutual Funds are simply provides guidance for [FMCSA Submission for OMB Review; required to establish and maintain staff] seeking to identify motor carrier Comment Request customer identification programs. A operations that pose a potential danger copy of the written program must be to public safety.’’ Id. The District of May 18, 2009 maintained for five years. See 31 CFR Columbia Circuit has also held that The Department of the Treasury will 103.131. since the FOTM is not a legislative rule, submit the following public information Respondents: Businesses or other for- section 553 of the Administrative collection requirement(s) to OMB for profits. Procedure Act did not require notice review and clearance under the Estimated Total Reporting Burden: and comment rulemaking to precede Paperwork Reduction Act of 1995, 266,700 hours.

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OMB Number: 1506–0026. DATES: Written comments should be and Budget, Room 10235, New Type of Review: Extension. received on or before June 25, 2009 to Executive Office Building, Washington, Title: Customer identification be assured of consideration. DC 20503. programs for banks, savings associations, credit unions, and certain Internal Revenue Service (IRS) Celina Elphage, non-federally regulated banks. OMB Number: 1545–1806. Treasury PRA Clearance Officer. Description: Banks, savings Type of Review: Revision. [FR Doc. E9–12131 Filed 5–22–09; 8:45 am] associations, credit unions, and certain Form: 8883. BILLING CODE 4830–01–P non-federally regulated banks are Title: Asset Allocation Statement required to develop and maintain Under 338. customer identification programs. See Description: Form 8883 is used to DEPARTMENT OF THE TREASURY 31 CFR 103.121. report information regarding Respondents: Businesses or other for- transactions involving the deemed sale Submission for OMB Review; profits. of corporate assets under section 338. Comment Request Estimated Total Reporting Burden: Respondents: Businesses or other for- May 19, 2009. 242,660 hours. profits. The Department of the Treasury will OMB Number: 1506–0006. Estimated Total Burden Hours: 4,881 submit the following public information Type of Review: Revision. hours. collection requirement(s) to OMB for Form: 102. OMB Number: 1545–1536. Title: Suspicious Activity Report by review and clearance under the Type of Review: Extension. Paperwork Reduction Act of 1995, Casinos and Card Clubs. Title: Guidance Regarding Charitable Public Law 104–13 on or after the date Description: Under 31 CFR 103.21, the Remainder Trusts and Special Valuation of publication of this notice. Copies of Treasury is requiring casinos and card Rules for Transfer of Interests in Trusts the submission(s) may be obtained by clubs with annual gaming revenue of REG–209823–96 (Final). calling the Treasury Bureau Clearance more than $1,000,000 to report Description: The recordkeeping Officer listed. Comments regarding this suspicious activities. requirement in the regulation provides information collection should be Respondents: Businesses or other for- taxpayers with an alternative method for addressed to the OMB reviewer listed profits. complying with Congressional intent and to the Treasury Department Estimated Total Reporting Burden: regarding charitable remainder trusts. Clearance Officer, Department of the 33,600 hours. The recordkeeping alternative may be Treasury, Room 11000, 1750 Clearance Officer: Russell Stephenson less burdensome for taxpayers. Pennsylvania Avenue, NW., (202) 354–6012, Department of the Respondents: Businesses or other for- Washington, DC 20220. Treasury, Financial Crimes Enforcement profits. Dates: Written comments should be Network, P.O. Box 39, Vienna, VA Estimated Total Burden Hours: 75 received on or before June 25, 2009 to 22183. hours. be assured of consideration. OMB Reviewer: Shagufta Ahmed, OMB Number: 1545–0132. (202) 395–7873, Office of Management Type of Review: Extension. Financial Crimes Enforcement Network and Budget, Room 10235, New Form: 1120–X. (FinCEN) Executive Office Building, Washington, Title: Amended U.S. Corporation DC 20503. OMB Number: 1506–0022. Income Tax Return. Type of Review: Revision. Celina Elphage, Description: Domestic corporations Title: Customer Identification Treasury PRA Clearance Officer. use Form 1120X to correct a previously Programs for Futures Commission filed Form 1120 or 1120A. The data is [FR Doc. E9–12125 Filed 5–22–09; 8:45 am] Merchants and Introducing Brokers. used to determine if the correct tax BILLING CODE 4810–02–P Description: Futures commission liability has been reported. merchants and introducing brokers are Respondents: Businesses or other for- required to develop and maintain a DEPARTMENT OF THE TREASURY profits. customer identification program. A copy Estimated Total Burden Hours: of the program must be maintained for Submission for OMB Review; 300,582 hours. five years. See 31 CFR 103.123. Comment Request OMB Number: 1545–1965. Respondents: Businesses or other for- Type of Review: Extension. profits. May 18, 2009. Title: REG–133446–03 (Final) Estimated Total Reporting Burden: The Department of the Treasury will Guidance on Passive Foreign Company 307,065 hours. submit the following public information (PFIC) Purging Elections. OMB Number: 1506–0034. collection requirement(s) to OMB for Description: The IRS needs the Type of Review: Extension. review and clearance under the information to substantiate the Title: Customer Identification Paperwork Reduction Act of 1995, taxpayer’s computation of the taxpayer’s Programs for Broker-Dealers. Public Law 104–13 on or after the date share of the PFIC’s post-1986 earning Description: Broker-dealers are of publication of this notice. Copies of and profits. required to establish and maintain a the submission(s) may be obtained by Respondents: Individuals or customer identification program. A copy calling the Treasury Bureau Clearance Households. of the program must be maintained for Officer listed. Comments regarding this Estimated Total Burden Hours: 250 five years. See 31 CFR 103.122. information collection should be hours. Respondents: Businesses or other for- addressed to the OMB reviewer listed Clearance Officer: R. Joseph Durbala profits. and to the Treasury Department (202) 622–3634, Internal Revenue Estimated Total Reporting Burden: Clearance Officer, Department of the Service, Room 6516, 1111 Constitution 630,896 hours. Treasury, Room 11000, and 1750 Avenue, NW., Washington, DC 20224. Clearance Officer: Russell Stephenson Pennsylvania Avenue, NW., OMB Reviewer: Shagufta Ahmed, (202) 354–6012, Department of the Washington, DC 20220. (202) 395–7873, Office of Management Treasury, Financial Crimes Enforcement

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Network, P.O. Box 39, Vienna, VA Title: Entity Classification Election. mergers, consolidations, spinoffs, or 22183. Description: An eligible entity that transfers of plan assets or liabilities to OMB Reviewer: Shagufta Ahmed (202) chooses not to be classified under the another plan. Employers are required to 395–7873, Office of Management and default rules or that wishes to change its notify IRS of separate lines of business Budget, Room 10235, New Executive current classification must file Form for their deferred compensation plans. Office Building, Washington, DC 20503. 8832 to elect a classification. Form 5310–A is used to make these Respondents: Businesses or other for- notifications. Celina Elphage, profits. Respondents: Businesses or other for- Treasury PRA Clearance Officer. Estimated Total Burden Hours: 23,200 profits. [FR Doc. E9–12126 Filed 5–22–09; 8:45 am] hours. Estimated Total Burden Hours: BILLING CODE 4810–02–P OMB Number: 1545–1434. 158,800 hours. Type of Review: Extension. OMB Number: 1545–1540. Title: CO–26–96 (Final) Regulations Type of Review: Extension. DEPARTMENT OF THE TREASURY Under Section 382 of the Internal Title: REG–125071–06 (Final) Revenue Code of 1986; Application of Reporting Requirements for Widely Submission for OMB Review; Section 382 in Short Taxable Years and Held Fixed Investment Trusts (TD 9308) Comment Request With Respect to Controlled Groups. (previously TD 9279). Description: Section 382 limits the May 19, 2009. Description: The regulations clarify amount of income that can be offset by the reporting requirements of trustees The Department of the Treasury will loss carryovers after an ownership submit the following public information and middlemen involved with widely change. These regulations provide rules held fixed investment trusts. collection requirement(s) to OMB for for applying section 382 in the case of review and clearance under the Respondents: Businesses or other for- short taxable years and with respect to profits. Paperwork Reduction Act of 1995, controlled groups. Public Law 104–13 on or after the date Estimated Total Burden Hours: 2,400 Respondents: Businesses or other for- hours. of publication of this notice. Copies of profits. the submission(s) may be obtained by OMB Number: 1545–1673. Estimated Total Burden Hours: 875 Type of Review: Extension. calling the Treasury Bureau Clearance hours. Title: Revenue Procedure 2008–50 Officer listed. Comments regarding this OMB Number: 1545–1380. Employee Plans Compliance Resolution information collection should be Type of Review: Extension. System (previously RP 2006–27). addressed to the OMB reviewer listed Title: IA–17–90 (Final) Reporting Description: The information and to the Treasury Department Requirements for Recipients of Points requested in Revenue Procedure 2008– Clearance Officer, Department of the paid on residential mortgages. 50 is required to enable the Internal Treasury, Room 11000, 1750 Description: To encourage compliance Revenue Service to make Pennsylvania Avenue, NW., with the tax laws relating to the determinations on the issuance of Washington, DC 20220. mortgage interest deduction, the various types of closing agreements and regulations require the reporting on DATES: Written comments should be compliance statements. The issuance of Form 1098 of points paid on residential received on or before June 25, 2009 to the agreements and statements allows mortgage. Only businesses that receive be assured of consideration. individual plans to maintain their tax- mortgage interest in the course of a trade qualified status. As a result, the Internal Revenue Service (IRS) or business are affected by this reporting favorable tax treatment of the benefits of OMB Number: 1545–1822. requirement. Respondents: Businesses or other for- the eligible employees is retained. Type of Review: Extension. Respondents: Businesses or other for- Title: Revenue Procedure 2003–11, profits. Estimated Total Burden Hours: profits. Offshore Voluntary Compliance Estimated Total Burden Hours: 76,222 Initiative. 283,056 hours. OMB Number: 1545–1241. hours. Description: Revenue Procedure OMB Number: 1545–1979. 2003–11 describes the Offshore Type of Review: Extension. Title: PS–92–90 (Final) Special Type of Review: Extension. Voluntary Compliance Initiative, which Valuation Rules. Form: 8908. is directed at taxpayers that have under- Description: Section 2701 of the Title: Energy Efficient New Home reported their tax liability through Internal Revenue Code allows various Credit. financial arrangements outside the elections by family members who make Description: Contractors will use United States that rely on the use of gifts of common stock or partnership Form 8908 to claim the new energy credit, debit, or charge cards (offshore interests and retain senior interest. The efficient home credit for homes credit cards) or foreign banks, financial elections affect the value of the gifted substantially completed after August 8, institutions, corporations, partnership, interests and the retained interests. 2005 and sold for use as personal trusts, or other entities (offshore Respondents: Individuals or residences after January 1, 2006. financial arrangements). Taxpayers that Households. Respondents: Businesses or other for- participate in the initiative and provide Estimated Total Burden Hours: 496 profits. the information and material that their hours. Estimated Total Burden Hours: participation requires can avoid certain OMB Number: 1545–1225. 512,820 hours. penalties. Type of Review: Extension. OMB Number: 1545–1952. Respondents: Individuals or Form: 5310–A. Type of Review: Extension. Households. Title: Notice of Plan Merger or Title: Automatic Consent for Eligible Estimated Total Burden Hours: Consolidation, Spinoff, or Transfer of Educational Institution to Change 100,000 hours. Plan Assets or Liabilities; Notice of Reporting Methods. OMB Number: 1545–1516. Qualified Separate Lines of Business. Description: This revenue procedure Type of Review: Extension. Description: Plan administrators are prescribes how an eligible educational Form: 8832. required to notify IRS of any plan institution may obtain automatic

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consent from the Service to change its exempt from tax under I.R.C. § 501(a) applicant, no later than November 27, method of reporting under section which represent low income taxpayers 2009. 6050S of the Code and the Income Tax in tax controversies with the IRS or refer Selection Consideration Regulations. those taxpayers to qualified Respondents: Not-for-profit representatives. Applications that pass the eligibility screening process will be numerically institutions. DATES: Grant applications for the 2010 ranked based on the information Estimated Total Burden Hours: 300 grant cycle must be electronically filed, contained in their proposed program hours. postmarked, sent by private delivery Clearance Officer: R. Joseph Durbala; plan. Please note that the IRS Volunteer service, or hand-delivered to the LITC Income Tax Assistance (VITA) and Tax (202) 622–3634, Internal Revenue Program Office in Washington, DC by Counseling for the Elderly (TCE) Service, Room 6516, 1111 Constitution July 7, 2009. Avenue, NW., Washington, DC 20224. Programs are independently funded and OMB Reviewer: Shagufta Ahmed; ADDRESSES: Send completed grant separate from the LITC Program. (202) 395–7873, Office of Management applications to: Internal Revenue Organizations currently participating in and Budget, Room 10235, New Service, Taxpayer Advocate Service, the VITA or TCE Programs may be Executive Office Building, Washington, LITC Grant Program Administration eligible to apply for a LITC grant if they DC 20503. Office, TA:LITC, 1111 Constitution meet the criteria and qualifications Avenue, NW., Room 1034, Washington, outlined in the 2010 Grant Application Celina Elphage, DC 20224. Copies of the 2009 Grant Package and Guidelines, Publication Treasury PRA Clearance Officer. Application Package and Guidelines, 3319 (Rev. 5–2009). Organizations that [FR Doc. E9–12130 Filed 5–22–09; 8:45 am] IRS Publication 3319 (Rev. 5–2009), can seek to operate VITA and LITC BILLING CODE 4830–01–P be downloaded from the IRS Internet Programs, or TCE and LITC Programs, site at http://www.irs.gov/advocate or must maintain separate and distinct ordered from the IRS Distribution programs even if co-located to ensure DEPARTMENT OF THE TREASURY Center by calling 1–800–829–3676. proper cost allocation for LITC grant Applicants can also file electronically at Internal Revenue Service funds and adherence to the rules and http://www.grants.gov. For applicants regulations of the VITA, TCE and LITC applying through the Federal Grants Programs, as appropriate. Low Income Taxpayer Clinic Grant Web site, the Funding Number is Program; Availability of 2010 Grant TREAS–GRANTS–052010–001. Comments Application Package FOR FURTHER INFORMATION CONTACT: The Interested parties are encouraged to AGENCY: Internal Revenue Service (IRS), LITC Program Office at (202) 622–4711 provide comments on the IRS’s Treasury. (not a toll-free number) or by e-mail at administration of the grant program on ACTION: Notice. [email protected]. an ongoing basis. Comments may be SUPPLEMENTARY INFORMATION: sent to Internal Revenue Service, SUMMARY: This document contains a Taxpayer Advocate Service, Attn: Notice that the IRS has made available Background Deborah L. Jones, LITC Program Office, the grant application package and Section 7526 of the Internal Revenue TA:LITC, 1111 Constitution Avenue, guidelines (Publication 3319) for Code authorizes the IRS, subject to the NW., Room 1034, Washington, DC organizations interested in applying for availability of appropriated funds, to 20224. a Low Income Taxpayer Clinic (LITC) award organizations matching grants of matching grant for the 2010 grant cycle up to $100,000 per year for the Nina E. Olson, (the 2010 grant cycle runs January 1, development, expansion, or National Taxpayer Advocate, Internal 2010, through December 31, 2010). The continuation of qualified low income Revenue Service. application period shall run from May taxpayer clinics. Section 7526 [FR Doc. E9–12165 Filed 5–22–09; 8:45 am] 20, 2009, through July 7, 2009. authorizes the IRS to provide grants to BILLING CODE 4830–01–P The IRS will award a total of up to qualified organizations that represent $6,000,000 (unless otherwise provided low income taxpayers in controversies DEPARTMENT OF THE TREASURY by specific Congressional appropriation) with the IRS or inform individuals for to qualifying organizations, subject to whom English is a second language of Office of Thrift Supervision the limitations of Internal Revenue Code their taxpayer rights and section 7526, for matching grants. A responsibilities. The IRS may award [Docket ID: OTS–2009–0009] qualifying organization may receive a grants to qualifying organizations to Open Meeting of the OTS Mutual matching grant of up to $100,000 per fund one-year, two-year or three-year Savings Association Advisory year. Qualifying organizations that project periods. Grant funds may be Committee provide representation for free or for a awarded for start-up expenditures nominal fee to low income taxpayers incurred by new clinics during the grant AGENCY: Department of the Treasury, involved in tax controversies with the cycle. Office of Thrift Supervision. IRS or that provide education on The 2010 Grant Application Package ACTION: Notice of meeting. taxpayer rights and responsibilities to and Guidelines, Publication 3319 (Rev. taxpayers for whom English is a second 5–2009), outlines requirements for the SUMMARY: The OTS Mutual Savings language can apply for a grant for the operation of a qualifying LITC program Associations Advisory Committee 2010 grant cycle. and provides instructions on how to (MSAAC) will convene its first meeting Examples of qualifying organizations apply for a grant. on Tuesday, June 9, 2009, in Conference include: (1) Clinical programs at The costs of preparing and submitting Room 6A of the Office of Thrift accredited law, business or accounting an application are the responsibility of Supervision, 1700 G Street, NW., schools, whose students represent low each applicant. Each application will be Washington, DC, beginning at 8:30 a.m. income taxpayers in tax controversies given due consideration and the LITC Eastern Time. The meeting will be open with the IRS, and (2) organizations Program Office will notify each to the public.

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DATES: The meeting will be held on By the Office of Thrift Supervision. SUPPLEMENTARY INFORMATION: Under the Tuesday, June 9, 2009, at 8:30 a.m. Deborah Dakin, PRA of 1995 (Pub. L. 104–13; 44 U.S.C. Eastern Time. Acting Chief Counsel. 3501–3521), Federal agencies must ADDRESSES: The meeting will be held at [FR Doc. E9–12225 Filed 5–22–09; 8:45 am] obtain approval from the Office of the Office of Thrift Supervision, 1700 G BILLING CODE 6720–01–P Management and Budget (OMB) for each Street, NW., Washington, DC in collection of information they conduct Conference Room A. The public is or sponsor. This request for comment is invited to submit written statements to DEPARTMENT OF VETERANS being made pursuant to Section the MSAAC by any one of the following AFFAIRS 3506(c)(2)(A) of the PRA. methods: With respect to the following [OMB Control No. 2900–New (21–0842)] • E-mail address: collection of information, VBA invites [email protected]; or comments on: (1) Whether the proposed • Proposed Information Collection (Pre- Mail: To Charlotte Bahin, Discharge Compensation Claim) collection of information is necessary Designated Federal Official, Office of Activity: Comment Request for the proper performance of VBA’s Thrift Supervision, 1700 G Street, NW., functions, including whether the Washington, DC 20552 in triplicate. AGENCY: Veterans Benefits information will have practical utility; The agency must receive statements Administration, Department of Veterans (2) the accuracy of VBA’s estimate of the no later than June 2, 2009. Affairs. burden of the proposed collection of FOR FURTHER INFORMATION CONTACT: ACTION: Notice. information; (3) ways to enhance the Charlotte M. Bahin, Designated Federal quality, utility, and clarity of the SUMMARY: The Veterans Benefits Official, (202) 906–6452, Office of Thrift information to be collected; and (4) Administration (VBA), Department of ways to minimize the burden of the Supervision, 1700 G Street, NW., Veterans Affairs (VA), is announcing an collection of information on Washington, DC 20552. opportunity for public comment on the respondents, including through the use SUPPLEMENTARY INFORMATION: By this proposed collection of certain of automated collection techniques or notice, the Office of Thrift Supervision information by the agency. Under the the use of other forms of information is announcing that the OTS Mutual Paperwork Reduction Act (PRA) of technology. Savings Association Advisory 1995, Federal agencies are required to Committee will convene its first meeting publish notice in the Federal Register Title: Pre-Discharge Compensation on Tuesday, June 9, 2009, in Conference concerning each proposed collection of Claim, VA Form 21–0842. Room 6A at the Office of Thrift information, including each proposed OMB Control Number: 2900–New Supervision, 1700 G Street, NW., new collection, and allow 60 days for (21–0842). Washington, DC, beginning at 8:30 a.m. public comment in response to the Type of Review: New collection. Eastern Time. The meeting will be open notice. This notice solicits comments on Abstract: The Pre-Discharge to the public. Because the meeting will the information required from service be held in a secured facility with Compensation Claim form will be used members to participate in the pre- by service members to file claims under limited space, members of the public discharge claims program. the Benefits Delivery at Discharge or who plan to attend the meeting, and DATES: Written comments and members of the public who require Quick Start programs under Title 38 recommendations on the proposed U.S.C. 5101 (a). VA will use the data auxiliary aid, must contact the Office of collection of information should be Thrift Supervision at 202–906–6429 by collected as the required certification received on or before July 27, 2009. statement needed from claimants to 5 p.m. Eastern Time on Tuesday, June ADDRESSES: Submit written comments 2, 2009, to inform OTS of their desire confirm that the information they on the collection of information through provided is true and correct. to attend the meeting and to provide the Federal Docket Management System Affected Public: Individuals or information that will be required to (FDMS) at http://www.Regulations.gov households. facilitate entry into the OTS building. or to Nancy J. Kessinger, Veterans To enter the building, attendees should Benefits Administration (20M35), Estimated Annual Burden: 40,250. provide their full name, e-mail address, Department of Veterans Affairs, 810 Estimated Average Burden per date of birth, social security number, Vermont Avenue, NW., Washington, DC Respondent: 15 minutes. organization, and country of citizenship. 20420 or e-mail to Frequency of Response: On occasion. The purpose of the meeting is to advise [email protected]. Please refer to OTS on what regulatory changes or Estimated Number of Respondents: ‘‘OMB Control No. 2900–New (21– 161,000. other steps OTS may be able to take to 0842)’’ in any correspondence. During ensure the continued health and the comment period, comments may be By direction of the Secretary. viability of mutual savings associations, viewed online through FDMS. Denise McLamb, and other issues of concern to the FOR FURTHER INFORMATION CONTACT: Program Analyst, Enterprise Records Service. existing mutual savings associations. Nancy J. Kessinger at (202) 461–9769 or [FR Doc. E9–12301 Filed 5–22–09; 8:45 am] Dated: May 19, 2009. FAX (202) 275–5947. BILLING CODE P

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Part II

Environmental Protection Agency 40 CFR Part 80 Regulation of Fuels and Fuel Additives: Changes to Renewable Fuel Standard Program; Proposed Rule

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ENVIRONMENTAL PROTECTION addition to seeking comments on the this proposal and that the best AGENCY information in this document and its methodology and assumptions are used supporting materials, the Agency is for calculating GHG emissions impacts 40 CFR Part 80 conducting peer reviews of critical of fuels for the final rule. While this [EPA–HQ–OAR–2005–0161; FRL–8903–1] aspects of the lifecycle methodology. workshop will be held during the The increased use of renewable fuels comment period, it is not intended to RIN 2060–A081 would also impact criteria pollutant replace either the formal public hearing emissions, with some pollutants such as or the need to submit comments to the Regulation of Fuels and Fuel volatile organic compounds (VOC) and docket. Additives: Changes to Renewable Fuel nitrogen oxides (NOX) expected to ADDRESSES: Standard Program Submit your comments, increase and other pollutants such as identified by Docket ID No. EPA–HQ– AGENCY: Environmental Protection carbon monoxide (CO) and benzene OAR–2005–0161, by one of the Agency (EPA). expected to decrease. The production of following methods: feedstocks used to produce renewable • ACTION: Notice of proposed rulemaking. www.regulations.gov: Follow the fuels is also expected to impact water on-line instructions for submitting SUMMARY: Under the Clean Air Act, as quality. comments. amended by Sections 201, 202, and 210 This action proposes regulations • E-mail: [email protected]. of the Energy Independence and designed to ensure that refiners, • Mail: Air and Radiation Docket and Security Act of 2007, the Environmental blenders, and importers of gasoline and Information Center, Environmental Protection Agency is required to diesel would use enough renewable fuel Protection Agency, Mailcode: 2822T, promulgate regulations implementing each year so that the four volume 1200 Pennsylvania Ave., NW., changes to the Renewable Fuel Standard requirements of the Energy Washington, DC 20460. In addition, program. The revised statutory Independence and Security Act would please mail a copy of your comments on requirements specify the volumes of be met with renewable fuels that also the information collection provisions to cellulosic biofuel, biomass-based diesel, meet the required lifecycle greenhouse the Office of Information and Regulatory advanced biofuel, and total renewable gas emissions performance standards. Affairs, Office of Management and fuel that must be used in transportation Our proposed rule describes the Budget (OMB), Attn: Desk Officer for fuel each year, with the volumes standards that would apply to these EPA, 725 17th St., NW., Washington, DC increasing over time. The revised parties and the renewable fuels that 20503. statutory requirements also include new would qualify for compliance. The • Hand Delivery: EPA Docket Center, definitions and criteria for both proposed regulations make a number of EPA West Building, Room 3334, 1301 renewable fuels and the feedstocks used changes to the current Renewable Fuel Constitution Ave., NW., Washington, to produce them, including new Standard program while retaining many DC 20004. Such deliveries are only greenhouse gas emission thresholds for elements of the compliance and trading accepted during the Docket’s normal renewable fuels. For the first time in a system already in place. hours of operation, and special regulatory program, an assessment of DATES: Comments must be received on arrangements should be made for greenhouse gas emission performance is or before July 27, 2009, 60 days after deliveries of boxed information. being utilized to establish those fuels publication in the Federal Register. Instructions: Direct your comments to that qualify for the four different Under the Paperwork Reduction Act, Docket ID No. EPA–HQ–OAR–2005– renewable fuel standards. As mandated comments on the information collection 0161. EPA’s policy is that all comments by the revised statutory requirements, provisions are best assured of having received will be included in the public the greenhouse gas emission full effect if the Office of Management docket without change and may be assessments must evaluate the full and Budget (OMB) receives a copy of made available online at lifecycle emission impacts of fuel your comments on or before June 25, www.regulations.gov, including any production including both direct and 2009, 30 days after date of publication personal information provided, unless indirect emissions, including significant in the Federal Register. the comment includes information emissions from land use changes. The Hearing: We will hold a public claimed to be Confidential Business proposed program is expected to reduce hearing on June 9, 2009 at the Dupont Information (CBI) or other information U.S. dependence on foreign sources of Hotel in Washington, DC. The hearing whose disclosure is restricted by statute. petroleum by increasing domestic will start at 10 a.m. local time and Do not submit information that you sources of energy. Based on our lifecycle continue until everyone has had a consider to be CBI or otherwise analysis, we believe that the expanded chance to speak. If you want to testify protected through www.regulations.gov use of renewable fuels would provide at the hearing, notify the contact person or e-mail. The www.regulations.gov significant reductions in greenhouse gas listed under FOR FURTHER INFORMATION Web site is an ‘‘anonymous access’’ emissions such as carbon dioxide that CONTACT by June 1, 2009. system, which means EPA will not affect climate change. We recognize the Workshop: We will hold a workshop know your identity or contact significance of using lifecycle on June 10–11, 2009 at the Dupont Hotel information unless you provide it in the greenhouse gas emission assessments in Washington, DC to present details of body of your comment. If you send an that include indirect impacts such as our lifecycle GHG analysis. During this e-mail comment directly to EPA without emission impacts of indirect land use workshop, we intend to go through the going through www.regulations.gov changes. Therefore, in this preamble we lifecycle GHG analysis included in this your e-mail address will be have been transparent in breaking out proposal. The intent of this workshop is automatically captured and included as the various sources of greenhouse gas to help ensure a full understanding of part of the comment that is placed in the emissions included in the analysis and our lifecycle analysis, the major issues public docket and made available on the are seeking comments on our identified and the options discussed. Internet. If you submit an electronic methodology as well as various options We expect that this workshop will help comment, EPA recommends that you for determining the lifecycle greenhouse ensure that we receive submission of the include your name and other contact gas emissions (GHG) for each fuel. In most thoughtful and useful comments to information in the body of your

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comment and with any disk or CD–ROM copyrighted material, will be publicly FOR FURTHER INFORMATION CONTACT: Julia you submit. If EPA cannot read your available only in hard copy. Publicly MacAllister, Office of Transportation comment due to technical difficulties available docket materials are available and Air Quality, Assessment and and cannot contact you for clarification, either electronically in Standards Division, Environmental EPA may not be able to consider your www.regulations.gov or in hard copy at Protection Agency, 2000 Traverwood comment. Electronic files should avoid the Air and Radiation Docket and Drive, Ann Arbor, MI 48105; Telephone the use of special characters, any form Information Center, EPA/DC, EPA West, number: 734–214–4131; Fax number: of encryption, and be free of any defects Room 3334, 1301 Constitution Ave., 734–214–4816; E-mail address: or viruses. For additional information NW., Washington, DC. The Public [email protected], or about EPA’s public docket visit the EPA Reading Room is open from 8:30 a.m. to Assessment and Standards Division Docket Center homepage at http:// 4:30 p.m., Monday through Friday, Hotline; telephone number (734) 214– www.epa.gov/epahome/dockets.htm. excluding legal holidays. The telephone 4636; E-mail address [email protected]. For additional instructions on number for the Public Reading Room is SUPPLEMENTARY INFORMATION: submitting comments, go to Section XI, (202) 566–1744, and the telephone General Information Public Participation, of the number for the Air Docket is (202) 566– SUPPLEMENTARY INFORMATION section of 1742. A. Does This Proposal Apply to Me? this document. Docket: All documents in the docket Hearing: The public hearing will be Entities potentially affected by this are listed in the www.regulations.gov held on June 9, 2009 at the Dupont proposal are those involved with the index. Although listed in the index, Hotel, 1500 New Hampshire Avenue, production, distribution, and sale of some information is not publicly NW., Washington, DC 20036. See transportation fuels, including gasoline available, e.g., CBI or other information Section XI, Public Participation, for and diesel fuel or renewable fuels such whose disclosure is restricted by statute. more information about the public as ethanol and biodiesel. Regulated Certain other material, such as hearing. categories include:

NAICS 1 SIC 2 Category codes codes Examples of potentially regulated entities

Industry ...... 324110 2911 Petroleum Refineries. Industry ...... 325193 2869 Ethyl alcohol manufacturing. Industry ...... 325199 2869 Other basic organic chemical manufacturing. 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 whole- salers. Industry ...... 454319 5989 Other fuel dealers. 1 North American Industry Classification System (NAICS). 2 Standard Industrial Classification (SIC) system code.

This table is not intended to be For CBI information in a disk or CD– • If you estimate potential burden or exhaustive, but rather provides a guide ROM that you mail to EPA, mark the costs, explain how you arrived at your for readers regarding entities likely to be outside of the disk or CD–ROM as CBI estimate. regulated by this proposed action. This and then identify electronically within • Provide specific examples to table lists the types of entities that EPA the disk or CD–ROM the specific illustrate your concerns. • is now aware could potentially be information that is claimed as CBI. In Offer alternatives. • Make sure to submit your regulated by this proposed action. Other addition to one complete version of the comments by the comment period types of entities not listed in the table comment that includes information could also be regulated. To determine deadline identified. claimed as CBI, a copy of the comment • To ensure proper receipt by EPA, whether your activities would be that does not contain the information regulated by this proposed action, you identify the appropriate docket claimed as CBI must be submitted for identification number in the subject line should carefully examine the inclusion in the public docket. applicability criteria in 40 CFR part 80. on the first page of your response. It Information so marked will not be would also be helpful if you provided If you have any questions regarding the disclosed except in accordance with applicability of this proposed action to the name, date, and Federal Register procedures set forth in 40 CFR part 2. a particular entity, consult the person citation related to your comments. We are primarily seeking comment on listed in the preceding FOR FURTHER 2. Tips for Preparing Your Comments the proposed 40 CFR Part 80 Subpart M INFORMATION CONTACT section. When submitting comments, regulatory language that is not directly B. What Should I Consider as I Prepare remember to: included in 40 CFR Part 80 Subpart K. My Comments for EPA? • For the proposed subpart M regulatory Explain your views as clearly as language that is unchanged from subpart 1. Submitting CBI possible. K, we are only soliciting comment as it • Do not submit this information to EPA Describe any assumptions that you relates to its use for the RFS2 rule. through www.regulations.gov or e-mail. used. Outline of This Preamble • Clearly mark the part or all of the Provide any technical information I. Introduction information that you claim to be and/or data you used that support your A. Renewable Fuels and the Transportation confidential business information (CBI). views. Sector

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B. Renewable Fuels and Greenhouse Gas ii. Planted Trees and Tree Residue 5. Neat Renewable Fuel and Renewable Emissions iii. Slash and Pre-Commercial Thinnings Fuel Blends Designated as C. Building on the RFS1 Program iv. Biomass Obtained From Certain Areas Transportation Fuel, Home Heating Oil, II. Overview of the Proposed Program at Risk From Wildfire or Jet Fuel A. Summary of New Provisions of the RFS b. Issues Related to Implementation and I. Treatment of Cellulosic Biofuel Program Enforceability 1. Cellulosic Biofuel Standard 1. Required Volumes of Renewable Fuel i. Ensuring That RINs Are Generated Only 2. EPA Cellulosic Allowances for 2. Changes in How Renewable Fuel Is for Fuels Made From Renewable Biomass Cellulosic Biofuel Defined ii. Ensuring That RINs Are Generated for 3. Potential Adverse Impacts of Allowances 3. Analysis of Lifecycle Greenhouse Gas All Qualifying Renewable Fuel J. Changes to Recordkeeping and Reporting Emissions and Thresholds for Renewable c. Review of Existing Programs Requirements Fuels i. USDA Programs 1. Recordkeeping 4. Coverage Expanded to Transportation ii. Third-Party Programs 2. Reporting Fuel, Including Diesel and Nonroad d. Approaches for Domestic Renewable 3. Additional Requirements for Producers Fuels Fuel of Renewable Natural Gas, Electricity, 5. Effective Date for New Requirements e. Approaches for Foreign Renewable Fuel and Propane 6. Treatment of Required Volumes C. Expanded Registration Process for K. Production Outlook Reports Preceding the RFS2 Effective Date Producers and Importers L. What Acts Are Prohibited and Who Is 7. Waivers and Credits for Cellulosic 1. Domestic Renewable Fuel Producers Liable for Violations? Biofuel 2. Foreign Renewable Fuel Producers IV. What Other Program Changes Have We 8. Proposed Standards for 2010 3. Renewable Fuel Importers Considered? B. Impacts of Increasing Volume 4. Process and Timing A. Attest Engagements Requirements in the RFS2 Program D. Generation of RINs B. Small Refinery and Small Refiner 1. Greenhouse Gases and Fossil Fuel 1. Equivalence Values Flexibilities Consumption 2. Fuel Pathways and Assignment of D 1. Small Refinery Temporary Exemption 2. Economic Impacts and Energy Security Codes 2. Small Refiner Flexibilities 3. Emissions, Air Quality, and Health a. Domestic Producers a. Extension of Existing RFS1 Temporary Impacts b. Foreign Producers Exemption 4. Water c. Importers b. Program Review 5. Agricultural Commodity Prices 3. Facilities With Multiple Applicable c. Extensions of the Temporary Exemption III. What Are the Major Elements of the Pathways Based on Disproportionate Economic Program Required Under EISA? 4. Facilities That Co-Process Renewable Hardship A. Changes to Renewable Identification Biomass and Fossil Fuels d. Phase-in Numbers (RINs) 5 Treatment of Fuels Without an e. RIN-Related Flexibilities B. New Eligibility Requirements for Applicable D Code C. Other Flexibilities Renewable Fuels 6. Carbon Capture and Storage (CCS) 1. Upward Delegation of RIN-Separating 1. Changes in Renewable Fuel Definitions E. Applicable Standards Responsibilities a. Renewable Fuel and Renewable Biomass 1. Calculation of Standards 2. Small Producer Exemption b. Advanced Biofuel a. How Would the Standards Be D. 20% Rollover Cap c. Cellulosic Biofuel Calculated? E. Concept for EPA Moderated Transaction d. Biomass-Based Diesel b. Proposed Standards for 2010 System e. Additional Renewable Fuel c. Projected Standards for Other Years 2. How EMTS Would Work 2. Lifecycle GHG Thresholds d. Alternative Effective Date 3. Implementation of EMTS 3. Renewable Fuel Exempt From 20 2. Treatment of Biomass-Based Diesel in F. Retail Dispenser Labelling for Gasoline Percent GHG Threshold 2009 and 2010 with Greater than 10 Percent Ethanol a. Definition of Commence Construction a. Proposed Shift in Biomass-Based Diesel V. Assessment of Renewable Fuel Production b. Definition and Boundaries of a Facility Requirement from 2009 to 2010 Capacity and Use c. Options Proposed in Today’s i. First Option for Treatment of 2009 A. Summary of Projected Volumes Rulemaking Biodiesel and Renewable Diesel RINs 1. Reference Case i. Basic Approach: Grandfathering Limited ii. Second Option for Treatment of 2009 2. Control Case for Analyses to Baseline Volumes Biodiesel and Renewable Diesel RINs a. Cellulosic Biofuel (1) Increases in volume of renewable fuel b. Proposed Treatment of Deficit b. Biomass-Based Diesel produced at grandfathered facilities due Carryovers and Valid RIN Life for c. Other Advanced Biofuel to expansion Adjusted 2010 Biomass-Based Diesel d. Other Renewable Fuel (2) Replacements of equipment Requirement B. Renewable Fuel Production (3) Registration, Recordkeeping and c. Alternative Approach to Treatment of 1. Corn/Starch Ethanol Reporting Biomass-Based Diesel in 2009 and 2010 a. Historic/Current Production (4) Sub-option of treatment of future F. Fuels That Are Subject to the Standards b. Forecasted Production Under RFS2 modifications 1. Gasoline 2. Cellulosic Ethanol ii. Alternative Options for Which We Seek 2. Diesel a. Current Production/Plans Comment 3. Other Transportation Fuels b. Federal/State Production Incentives (1) Facilities that meet the definition of G. Renewable Volume Obligations (RVOs) c. Feedstock Availability ‘‘reconstruction’’ are considered new 1. Determination of RVOs Corresponding to i Urban Waste (2) Expiration date of 15 years for the Four Standards ii. Agricultural and Forestry Residues exempted facilities 2. RINs Eligible to Meet Each RVO iii Dedicated Energy Crops (3) Expiration date of 15 years for 3. Treatment of RFS1 RINs under RFS2 iv. Summary of Cellulosic Feedstocks for grandfathered facilities and limitation on a. Use of 2009 RINs in 2010 2022 volume b. Deficit Carryovers from the RFS1 v. Cellulosic Plant Siting (4) ‘‘Significant production units’’ are Program to RFS2 3. Imported Ethanol defined as facilities 4. Alternative Approach to Designation of a. Historic World Ethanol Production and (5) Indefinite grandfathering and no Obligated Parties Consumption limitations placed on volume H. Separation of RINs b. Historic/Current Domestic Imports 4. Renewable Biomass with Land 1. Nonroad c. Projected Domestic Imports Restrictions 2. Heating Oil and Jet Fuel 4. Biodiesel & Renewable Diesel a. Definitions of Terms 3. Exporters a. Historic and Projected Production i. Planted Crops and Crop Residue 4. Alternative Approaches to RIN Transfers i. Biodiesel

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ii. Renewable Diesel c. Cellulosic Ethanol 3. BTL Diesel Production Costs b. Feedstock Availability d. Biodiesel B. Distribution Costs C. Renewable Fuel Distribution 2. Treatment of GHG Emissions Over Time 1. Ethanol Distribution Costs 1. Overview of Ethanol Distribution D. Thresholds a. Capital Costs to Upgrade the Distribution 2. Overview of Biodiesel Distribution E. Assignment of Pathways to Renewable System for Increased Ethanol Volume 3. Overview of Renewable Diesel Fuel Categories b. Ethanol Freight Costs Distribution 1. Statutory Requirements 2. Biodiesel and Renewable Diesel 4. Changes in Freight Tonnage Movements 2. Assignments for Pathways Subjected to Distribution Costs 5. Necessary Rail System Accommodations Lifecycle Analyses a. Capital Costs to Upgrade the Distribution 6. Necessary Marine System 3. Assignments for Additional Pathways System for Increased FAME Biodiesel Accommodations a. Ethanol From Starch Volume 7. Necessary Accommodations to the Road b. Renewable Fuels from Cellulosic b. Biodiesel Freight Costs Transportation System Biomass c. Renewable Diesel Distribution System 8. Necessary Terminal Accommodations c. Biodiesel Capital and Freight Costs 9. Need for Additional E85 Retail Facilities d. Renewable Diesel Through C. Reduced Refining Industry Costs D. Ethanol Consumption Hydrotreating D. Total Estimated Cost Impacts 1. Historic/Current Ethanol Consumption 4. Summary 1. Refinery Modeling Methodology 2. Increased Ethanol Use under RFS2 F. Total GHG Emission Reductions 2. Overall Impact on Fuel Cost a. Projected Gasoline Energy Demand G. Effects of GHG Emission Reductions and a. Costs Without Federal Tax Subsidies b. Projected Growth in Flexible Fuel Changes in Global Temperature and Sea b. Gasoline and Diesel Costs Reflecting the Vehicles Level Tax Subsidies c. Projected Growth in E85 Access 1. Introduction IX. Economic Impacts and Benefits of the d. Required Increase in E85 Refueling Rates 2. Estimated Projected Reductions in Proposal e. Market Pricing of E85 Versus Gasoline Global Mean Surface Temperatures A. Agricultural Impacts 3. Other Mechanisms for Getting Beyond VII. How Would the Proposal Impact Criteria 1. Commodity Price Changes the E10 Blend Wall and Toxic Pollutant Emissions and Their 2. Impacts on U.S. Farm Income a. Mandate for FFV Production Associated Effects? 3. Commodity Use Changes b. Waiver of Mid-Level Ethanol Blends A. Overview of Impacts 4. U.S. Land Use Changes (E15/E20) B. Fuel Production & Distribution Impacts 5. Impact on U.S. Food Prices c. Partial Waiver for Mid-Level Blends of the Proposed Program 6. International Impacts d. Non-Ethanol Cellulosic Biofuel C. Vehicle and Equipment Emission B. Energy Security Impacts Production Impacts of Fuel Program 1. Implications of Reduced Petroleum Use e. Measurement Tolerance for E10 D. Air Quality Impacts on U.S. Imports f. Redefining ‘‘Substantially Similar’’ to 1. Current Levels of PM2.5, Ozone and Air 2. Energy Security Implications Allow Mid-Level Ethanol Blends Toxics a. Effect of Oil Use on Long-Run Oil Price, VI. Impacts of the Program on Greenhouse 2. Impacts of Proposed Standards on U.S. Import Costs, and Economic Output Gas Emissions Future Ambient Concentrations of PM2.5, b. Short-Run Disruption Premium from A. Introduction Ozone and Air Toxics Expected Costs of Sudden Supply 1. Definition of Lifecycle GHG Emissions E. Health Effects of Criteria and Air Toxic Disruptions 2. History and Evolution of GHG Lifecycle Pollutants c. Costs of Existing U.S. Energy Security Analysis 1. Particulate Matter Policies B. Methodology a. Background d. Anticipated Future Effort 1. Scenario Description b. Health Effects of PM e. Total Energy Security Benefits 2. Scope of the Analysis 2. Ozone C. Benefits of Reducing GHG Emissions a. Legal Interpretation of Lifecycle a. Background 1. Introduction Greenhouse Gas Emissions b. Health Effects of Ozone 2. Marginal GHG Benefits Estimates b. System Boundaries 3. Carbon Monoxide 3. Discussion of Marginal GHG Benefits 3. Modeling Framework 4. Air Toxics Estimates 4. Treatment of Uncertainty a. Acetaldehyde 4. Total Monetized GHG Benefits Estimates 5. Components of the Lifecycle GHG b. Acrolein D. Co-pollutant Health and Environmental Emissions Analysis c. Benzene Impacts a. Feedstock Production d. 1,3-Butadiene; 1. Human Health and Environmental i. Domestic Agricultural Sector Impacts e. Ethanol Impacts ii. International Agricultural Sector GHG f. Formaldehyde 2. Monetized Impacts Impacts g. Naphthalene 3. Other Unquantified Health and b. Land Use Change h. Peroxyacetyl nitrate (PAN) Environmental Impacts i. Amount of Land Converted i. Other Air Toxics E. Economy-Wide Impacts ii. Where Land Is Converted F. Environmental Effects of Criteria and Air X. Impacts on Water iii. What Type of Land Is Converted Toxic Pollutants A. Background iv. What Are the GHG Emissions 1. Visibility 1. Ecological Impacts Associated with Different Types of Land 2. Atmospheric Deposition 2. Gulf of Mexico Conversion 3. Plant and Ecosystem Effects of Ozone B. Upper Mississippi River Basin Analysis v. Assessing GHG Emissions Impacts Over 4. Welfare Effects of Air Toxics 1. SWAT Model Time and Potential Application of a GHG VIII. Impacts on Cost of Renewable Fuels, 2. Baseline Model Scenario Discount Rate Gasoline, and Diesel 3. Alternative Scenarios c. Feedstock Transport A. Renewable Fuel Production Costs C. Additional Water Issues d. Processing 1. Ethanol Production Costs 1. Chesapeake Bay Watershed e. Fuel Transport a. Corn Ethanol 2. Ethanol Production f. Tailpipe Combustion b. Cellulosic Ethanol a. Distillers Grain with Solubles 6. Petroleum Baseline i. Feedstock Costs b. Ethanol Leaks and Spills 7. Energy Sector Indirect Impacts ii. Production Costs 3. Biodiesel Plants C. Fuel Specific GHG Emissions Estimates c. Imported Sugarcane Ethanol 4. Water Quantity 1. Greenhouse Gas Emissions Reductions 2. Biodiesel and Renewable Diesel 5. Drinking Water Relative to the 2005 Petroleum Baseline Production Costs D. Request for Comment on Options for a. Corn Ethanol a. Biodiesel Reducing Water Quality Impacts b. Imported Ethanol b. Renewable Diesel XI. Public Participation

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A. How Do I Submit Comments? their best interest to plan accordingly in a separate volume mandate. The B. How Should I Submit CBI to the 2009. categories are renewable fuel, advanced Agency? biofuel, biomass-based diesel, and A. Renewable Fuels and the C. Will There Be a Public Hearing? cellulosic biofuel. There is a notable D. Comment Period Transportation Sector increase in the mandate for cellulosic E. What Should I Consider as I Prepare My For the past several years, U.S. Comments for EPA? biofuels in particular. EISA increased XII. Statutory and Executive Order Reviews renewable fuel use has been rapidly the cellulosic biofuel mandate from 250 A. Executive Order 12866: Regulatory increasing for a number of reasons. In million in EPAct to 1.0 billion gallons Planning and Review the early 1990’s, certain oxygenated by 2013, with additional yearly B. Paperwork Reduction Act gasoline fuel programs required by the increases to 16 billion gallons by 2022. C. Regulatory Flexibility Act CAA amendments of 1990 established These requirements will provide a 1. Overview new market opportunities for renewable strong foundation for investment in 2. Background fuels, primarily ethanol. At the same cellulosic production and position 3. Summary of Potentially Affected Small time, growing concern over U.S. cellulosic fuel to become a major Entities dependence on foreign sources of crude 4. Potential Reporting, Record Keeping, portion of the renewable fuel pool over and Compliance placed increasing focus on renewable the next decade. 5. Related Federal Rules fuels as a replacement for petroleum- The implications of the volume 6. Summary of SBREFA Panel Process and based fuels. More recently, several state expansion of the program are not trivial. Panel Outreach bans on the use of methyl tertiary butyl Development of infrastructure capable a. Significant Panel Findings ether (MTBE) in gasoline resulted in a of delivering, storing and blending these b. Panel Process large, sudden increase in demand for volumes in new markets and expanding c. Panel Recommendations ethanol. Perhaps the largest impact on existing market capabilities will be i. Delay in Standards renewable fuel demand, however, has needed. For example, the market’s ii. Phase-in been the dramatic increase in the cost of iii. RIN-Related Flexibilities absorption of increased volumes of iv. Program Review crude oil. In the last few years, both ethanol may ultimately require new v. Extensions of the Temporary Exemption crude oil prices and crude oil price ‘‘outlets’’ beyond E10 blends (i.e., Based on a Study of Small Refinery forecasts have increased dramatically, gasoline containing 10% ethanol by Impacts which have resulted in a large economic volume), such as an expansion of the vi. Extensions of the Temporary Exemption incentive for the increased development number of flexible-fuel E85 vehicles and Based on Disproportionate Economic and use of renewable fuels. the number of retail outlets selling E85. Hardship In 2005, Congress introduced a new D. Unfunded Mandates Reform Act approach to supporting renewable fuels. B. Renewable Fuels and Greenhouse Gas E. Executive Order 13132: Federalism EPAct established a major new federal Emissions F. Executive Order 13175: Consultation renewable fuel volume mandate. EPAct Another significant aspect of the RFS2 and Coordination With Indian Tribal Governments required a ramp up to 7.5 billion gallons program is the focus on the greenhouse G. Executive Order 13045: Protection of of renewable fuel as motor vehicle fuel gas impact of renewable fuels, from a Children From Environmental Health by 2012 and set annual volume targets lifecycle perspective. The lifecycle GHG Risks and Safety Risks for each year leading up to 2012. For emissions means the aggregate quantity H. Executive Order 13211: Actions 2013 and beyond, EPA was directed to of GHGs related to the full fuel cycle, Concerning Regulations That establish the annual required renewable including all stages of fuel and Significantly Affect Energy Supply, fuel volumes, but at a percentage level feedstock production and distribution, Distribution, or Use no less than that required for 2012. from feedstock generation and I. National Technology Transfer While the market forces described above extraction through distribution and Advancement Act ultimately caused renewable fuel use to delivery and use of the finished fuel. J. Executive Order 12898: Federal Actions to Address Environmental Justice in far exceed the EPAct mandates, this EISA established specific greenhouse Minority Populations and Low-Income program provided certainty that at least gas emission thresholds for each of four Populations a minimum amount of renewable fuel types of renewable fuels, requiring a XIII. Statutory Authority would be used in the U.S. transportation percentage improvement compared to a market, which in turn provided baseline of the gasoline and diesel used I. Introduction assurance for investment in production in 2005. EPA must conduct a lifecycle The current Renewable Fuel Standard capacity. analysis to determine whether or not program (RFS1) was originally adopted The subsequent passage of EISA made renewable fuels produced under varying by EPA to implement the provisions of significant changes to both the structure conditions will meet the greenhouse gas the Energy Policy Act of 2005 (EPAct), and the magnitude of the renewable fuel (GHG) thresholds for the different fuel which added section 211(o) to the Clean program. The renewable fuel program types for which EISA establishes Air Act (CAA). With the passage of the established by EISA, hereafter referred mandates. While these thresholds do Energy Independence and Security Act to as RFS2, mandates the use of 36 not constitute a control on greenhouse of 2007 (EISA), Congress recently made billion gallons of renewable fuel by gases for transportation fuels (such as a several important revisions to these 2022. This is nearly a five-fold increase low carbon fuel standard),1 they do renewable fuel requirements. This over the highest volume specified by require that the volume mandates be Notice proposes to revise the RFS EPAct and constitutes a 10-year met through the use of renewable fuels program regulations to implement these extension of the scheduled production that meet certain lifecycle GHG EISA provisions. The proposed changes ramp-up period provided for in that reduction thresholds when compared to would apply starting January 1, 2010. legislation. It is clear that the volumes For the remainder of 2009, the current required by EISA will push the market 1 See Section IV.D of EPA’s advanced notice of RFS1 regulations would apply. to new levels—far beyond what current proposed rulemaking, Regulating Greenhouse Gas Emissions under the Clean Air Act, for a discussion However, in anticipation of the biomass- market conditions would achieve alone. of EPA’s possible authority under section 211(c) of based diesel standard proposed for In addition, EISA specifies four separate the CAA to establish GHG standards for renewable 2010, obligated parties may find it in categories of renewable fuels, each with and alternative fuels. 73 FR 44354, July 30, 2008.

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the baseline lifecycle emissions of review of: Our use of satellite data to EISA provisions. This approach is in petroleum fuel they replace. project future the type of land use keeping with the Agency’s overall intent Compliance with the thresholds changes; the land conversion GHG for RFS1—to design a flexible and requires a comprehensive evaluation of emissions factors estimates we have enforceable system that could continue renewable fuels, as well as of gasoline used for different types of land use; our to operate effectively regardless of the and diesel, on the basis of their lifecycle estimates of GHG emissions from level of renewable fuel use or market emissions. As mandated by EISA, the foreign crop production; methods to conditions in the transportation fuel greenhouse gas emission assessments account for the variable timing of GHG sector. must evaluate the full lifecycle emission emissions; and how the several models A key component of the Agency’s impacts of fuel production including we have relied upon are used together work to build a successful RFS1 both direct and indirect emissions, to provide overall lifecycle GHG program was early and sustained including significant emissions from estimates. engagement with our stakeholders. In land use changes. We recognize the In addition to the GHG thresholds, developing this proposed rulemaking, significance of using lifecycle EISA included several provisions for the we have again worked closely with a greenhouse gas emission assessments RFS2 program designed to address the wide variety of stakeholders. Because that include indirect impacts such as long-term environmental sustainability EISA created new obligated parties and emission impacts of indirect land use of expanded biofuels production. The established new, complex provisions changes. Therefore, in this preamble, we new law limits the crops and crop such as the lifecycle GHG thresholds have been transparent in breaking out residues used to produce renewable fuel and previous cropland requirements, the various sources of greenhouse gas to those grown on land cleared or EPA has extended its stakeholder emissions included in the analysis. As cultivated at any time prior to engagement to include dozens of described in detail in Section VI, EPA enactment of EISA, that is either meetings with stakeholders from a broad has analyzed the lifecycle GHG impacts actively managed or fallow, and non- spectrum of perspectives. For example, of the range of biofuels currently forested. EISA also generally requires the Agency has had multiple meetings expected to contribute significantly to that forest-related slash and tree and discussions with renewable fuel meeting the volume mandates of EISA thinnings used for renewable fuel producers, technology companies, through 2022. In these analyses we have production pursuant to the Act be petroleum refiners and importers, used the best science available. Our harvested from non-federal forest lands. agricultural associations, lifecycle analysis relies on peer reviewed models To address potential air quality experts, environmental groups, vehicle and the best estimate of important concerns, EPA is required by section manufacturers, states, gasoline and trends in agricultural practices and fuel 209 of EISA to determine whether the petroleum marketers, pipeline owners RFS2 volumes will adversely impact air production technologies as these may and fuel terminal operators. quality as a result of changes in vehicle impact our prediction of individual and engine emissions and then to issue II. Overview of the Proposed Program biofuel GHG performance through 2022. fuel regulations that mitigate—to the This section provides an overview of We have identified and highlighted extent achievable—these impacts. The the RFS2 program requirements that assumptions and model inputs that Agency is also required by section 204 EPA proposes to implement as a result particularly influence our assessment of EISA to conduct a broad study of of EISA. The RFS2 program would and seek comment on these environmental and resource replace the RFS1 program promulgated assumptions, the models we have used conservation impacts of EISA, including on May 1, 2007 (72 FR 23900).2 We are and our overall methodology so as to impacts on water quality and also proposing a number of changes to assure the most robust assessment of availability, soil conservation, and make the program more flexible based lifecycle GHG performance for the final biodiversity. Congress set specific on what we learned from the operation rule. deadlines for both of these provisions, of the RFS1 program since it began on Because lifecycle analysis is a new which are separate from this rulemaking September 1, 2007. Details of the part of the RFS program, in addition to and will be carried out as part of a proposed requirements can be found in the formal comment period on the future effort. However, this NPRM does Sections III and IV. We request proposed rule, EPA is making multiple include EPA’s initial assessment of the comment on our proposed regulatory efforts to solicit public and expert air and water quality impacts of the requirements and the alternatives that feedback on our proposed approach. EISA volumes. we have considered. EPA plans to hold a public workshop While the above described changes This section also provides a summary focused specifically on lifecycle are significant, it is important to note of EPA’s impacts assessment of the use analysis during the comment period to that Congress left other structural of higher renewable fuel volumes. assure full understanding of the elements of the RFS program basically Impacts that we assessed include: analyses conducted, the issues intact. The various modifications are emissions of pollutants such as addressed and the options that are discussed throughout this preamble. greenhouse gases (GHG), oxides of discussed. We expect that this nitrogen (NOX), hydrocarbons, workshop will help ensure that we C. Building on the RFS1 Program particulate matter (PM), and toxics; receive submission of the most In designing this proposed RFS2 reductions in petroleum use and related thoughtful and useful comments to this program, the Agency is utilizing and impacts on national energy security; proposal and that the best methodology building on the same programmatic impacts on the agriculture sector; and assumptions are used for structure created to implement the impacts on costs of transportation fuels; calculating GHG emissions impacts of current renewable fuel program economic costs and benefits; and fuels for the final rule. Additionally, (hereafter referred to as RFS1). For impacts on water. Details of these between this proposal and the final rule, example, we propose to continue to use we will conduct peer-reviews of key the Renewable Identification Number 2 To meet the requirements of EPAct, EPA had previously adopted a limited program that applied components of our analysis. As (RIN) system currently in place to track only to calendar year 2006. The RFS1 program explained in more detail in the Section compliance with the RFS1 program, refers to the general program adopted in the May VI, EPA is specifically seeking peer with modifications to implement the 2007 rulemaking.

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analyses can be found in Sections V program for which EISA grants EPA each year in the transportation sector. through X and in the Draft Regulatory discretion and flexibility, such as the Under RFS1, the required volume was Impact Analysis (DRIA). grandfathering of existing renewable 4.0 billion gallons in 2006, ramping up fuel production facilities (discussed in A. Summary of New Provisions of the to 7.5 billion gallons by 2012. Starting Section III.B.3), the potential inclusion RFS Program in 2013, EPAct required that the total of electricity for credit (discussed in volume of renewable fuel represent at Today’s notice proposes new Section III.B.1.a), and how renewable minimum the same volume fraction of regulatory requirements for the RFS fuels are categorized based on the the gasoline fuel pool as it did in 2012, program that would be implemented results of lifecycle analyses (discussed and that the total volume of renewable through a new Subpart M to 40 CFR Part in Section VI.B). We believe these and fuel contains at least 250 million gallons 80. EPA is generally proposing to other aspects of the program are of fuel derived from cellulosic biomass. maintain many elements of the RFS1 important because they will affect program such as regulations governing available volumes of qualifying EISA makes three primary changes to the generation, transfer, and use of renewable fuel, regulated parties’ ability the volume requirements of the RFS Renewable Identification Numbers to comply with the program and, program. First, it substantially increases (RINs). At the same time, we seek ultimately, the program’s environmental the required volumes and extends the comment on a number of RFS1 and societal impacts. A full description timeframe over which the volumes ramp provisions that may require adjustment of all the changes we are proposing to up through at least 2022. Second, it under an expanded RFS2 program, the RFS program to implement the divides the total renewable fuel including whether or not to require that requirements in EISA is provided in requirement into four separate all qualifying renewable fuels have RINs Section III, while Section IV includes categories, each with its own volume generated for it (discussed in Section extensive discussion of other changes to requirement. Third, it requires that each III.B.4.b.ii), and whether a rollover cap the RFS program under consideration. of these mandated volumes of on RINs other than 20 percent might be appropriate (discussed in Section IV.D). 1. Required Volumes of Renewable Fuel renewable fuels achieve certain Furthermore, EPA is proposing several The primary purpose of the RFS minimum thresholds of GHG emission new provisions and seeking comment program is to require a minimum performance. The volume requirements on alternatives on aspects of the volume of renewable fuel to be used in EISA are shown in Table II.A.1–1.

TABLE II.A.1–1—RENEWABLE FUEL VOLUME REQUIREMENTS FOR RFS2 [Billion gallons]

Cellulosic Biomass- Advanced Total biofuel based diesel biofuel renewable fuel requirement requirement requirement requirement

2009 ...... n/a 0.5 0.6 11.1 2010 ...... 0.1 0.65 0.95 12.95 2011 ...... 0.25 0.80 1.35 13.95 2012 ...... 0.5 1.0 2.0 15.2 2013 ...... 1.0 a 2.75 16.55 2014 ...... 1.75 a 3.75 18.15 2015 ...... 3.0 a 5.5 20.5 2016 ...... 4.25 a 7.25 22.25 2017 ...... 5.5 a 9.0 24.0 2018 ...... 7.0 a 11.0 26.0 2019 ...... 8.5 a 13.0 28.0 2020 ...... 10.5 a 15.0 30.0 2021 ...... 13.5 a 18.0 33.0 2022 ...... 16.0 a 21.0 36.0 2023+ ...... b b b b a To be determined by EPA through a future rulemaking, but no less than 1.0 billion gallons. b To be determined by EPA through a future rulemaking.

As shown in the table, the volume one of the four categories shown in the form of minimum GHG thresholds requirements are not exclusive, and Table II.A.1–1. that each must meet. The approach generally result in nested requirements. We are co-proposing and taking taken in RFS1 would continue to assign Any renewable fuel that meets the comment on two options for how to value, in terms of gallons, to all requirement for cellulosic biofuel or treat the volumes of different renewable renewable fuels based on their energy biomass-based diesel is also valid for fuels for purposes of complying with the value in comparison with ethanol. meeting the advanced biofuel volume mandates of RFS2: As either Further discussion of the rationale and requirement. Likewise, any renewable ethanol-equivalent gallons, based on implications of these two approaches fuel that meets the requirement for energy content, as finalized in the RFS1 can be found in Section III.D.1. advanced biofuel is also valid for program, or as actual volume in gallons. The statutorily-prescribed phase-in meeting the total renewable fuel Consideration of the actual volume period ends in 2012 for biomass-based requirement. See Section VI.E for option would recognize that EISA now diesel and in 2022 for cellulosic biofuel, further discussion of which specific guarantees a market for specific advanced biofuel, and total renewable types of fuel meet the requirements for categories of renewable fuel and assigns fuel. Beyond these years, EISA requires a GHG requirement to each category in EPA to determine the applicable

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volumes based on a review of the from any cellulose, hemicellulose, or renewable fuel from new facilities is implementation of the program up to lignin each of which must originate required to achieve a lifecycle GHG that time, and an analysis of a wide from renewable biomass. It must emission displacement of 20%. As variety of factors such as the impact of achieve a lifecycle GHG emission discussed in Section III.B.3, this the production of renewable fuels on the displacement of 60%, compared to the requirement applies only to renewable environment, energy security, gasoline or diesel fuel it displaces for it fuel that is produced from certain infrastructure, costs, and other factors. to qualify as cellulosic biofuel. facilities which commenced For these future standards, EPA must The RFS1 definition provided that construction after December 19, 2007. promulgate rules establishing the ethanol made at any facility—regardless EISA defines ‘‘additional renewable applicable volumes no later than 14 of whether cellulosic feedstock is used fuel’’ as fuel produced from renewable months before the first year for which or not—may be defined as cellulosic if biomass that is used to replace or reduce such applicable volumes would apply. at such facility ‘‘animal wastes or other fossil fuels used in home heating oil or For biomass-based diesel, this would waste materials are digested or jet fuel. The Act provides that EPA may mean that final rules would need to be otherwise used to displace 90% or more allow for the generation of RFS credits issued by October 31, 2011 for of the fossil fuel normally used in the for such fuel. This represents a change application starting on January 1, 2013. production of ethanol.’’ This provision from RFS1, where renewable fuel In today’s proposed rulemaking, we are was not included in EISA, and therefore qualifying for credits was limited to fuel not suggesting any specific volume does not appear in the definitions used in motor vehicles. We propose to requirements for biomass-based diesel pertaining to cellulosic biofuel in modify the regulatory requirements to for 2013 and beyond that would be today’s proposed rule. allow RINs assigned to renewable fuel appropriate under the statutory criteria The statutory definition of ‘‘renewable blended into heating oil or jet fuel to be that we must consider. Likewise, we are biomass’’ in EISA does not include a valid for compliance purposes. The fuel not suggesting any specific volume reference to municipal solid waste would still have to meet all the other requirements for the other three (MSW) as did the definition of criteria to qualify as a renewable fuel, renewable fuel categories for 2023 and ‘‘cellulosic biomass ethanol’’ in EPAct, including being made from renewable but instead includes ‘‘separated yard beyond. However, the statute requires biomass. For example, RINs generated waste and food waste. EPA’s proposed that the biomass-based diesel volume in for advanced biofuel or biomass-based definition of renewable biomass in 2013 and beyond must be no less than diesel that could be used in automobiles today’s proposed rule includes the 1.0 billion gallons, and that advanced would still be valid, and would not language present in EISA. As discussed biofuels in 2023 and beyond must need to be retired, if the fuel producer in Section III.B.1.a, we invite comment represent at a minimum the same instead sells the fuels for use in heating on whether this definition should be percentage of total renewable fuel as it oil or jet fuel. does in 2022. interpreted as including or excluding MSW containing yard and/or food waste ‘‘Renewable biomass’’ is defined in 2. Changes in How Renewable Fuel Is from the definition of renewable EISA to include a number of feedstock Defined biomass. EPA intends to resolve this types, such as planted crops and crop Under the existing Renewable Fuel matter in the final rule, and EPA solicits residue, planted trees and tree residue, Standard, (RFS1) renewable fuel is comment on the approach that it should animal waste, algae, and yard and food defined generally as ‘‘any motor vehicle take. waste. However, the EISA definition fuel that is used to replace or reduce the Under today’s proposed rule limits many of these feedstocks quantity of fossil fuel present in a fuel ‘‘Biomass-based diesel’’ includes according to the management practices mixture used to fuel a motor vehicle’’. biodiesel (mono-alkyl esters), non-ester for the land from which they are The RFS1 definition includes motor renewable diesel and any other diesel derived. For example, planted crops and vehicle fuels produced from biomass fuel made from renewable biomass, as crop residue must be harvested from material such as grain, starch, fats, long as they are not ‘‘co-processed’’ with agricultural land cleared or cultivated at greases, oils and biogas. petroleum. EISA requires that such fuel any time prior to December 19, 2007, The definitions of renewable fuels achieve a lifecycle GHG emission that is actively managed or fallow, and under today’s proposed rule (RFS2) are displacement of 50%, compared to the non-forested. Therefore, planted crops based on the new statutory definitions gasoline or diesel fuel it displaces. As and crop residue derived from land that in EISA. Like the existing rules, the discussed in Section III.B.1.d, we are does not meet this definition cannot be definitions in RFS2 include a general proposing that co-processing is used to produce renewable fuel for definition of renewable fuel, but unlike considered to occur only if both credit under RFS2. RFS1, we are including a separate petroleum and biomass feedstock are Under today’s proposed rule, we definition of ‘‘Renewable Biomass’’ processed in the same unit describe several options for ensuring which identifies the feedstocks from simultaneously. Thus, if serial batch that feedstocks used to produce which renewable fuels may be made. processing in which 100% vegetable oil renewable fuel for which credits are Another difference in the definitions is processed one day/week/month and generated under RFS2 meet the of renewable fuel is that RFS2 contains 100% petroleum the next day/week/ definition of renewable biomass. Our three subcategories of renewable fuels: month occurs, the fuel derived from proposed approach places overall (1) Advanced Biofuel, (2) Cellulosic renewable biomass would be assigned responsibility for verifying a feedstock’s Biofuel and (3) Biomass-Based Diesel. RINs with a D code identifying it as source on the party who generates a RIN ‘‘Advanced Biofuel’’ is a renewable biomass-based diesel. The resulting for the renewable fuel produced from fuel other than ethanol derived from products could be blended together, but the feedstock. We also present options corn starch and which must achieve a only the volume produced from for how a party could or should verify lifecycle GHG emission displacement of renewable biomass would count as his or her feedstock, and we seek 50%, compared to the gasoline or diesel biomass-based diesel. comment on these options. A full fuel it displaces. For other renewable fuels, EISA discussion of the definition and Cellulosic biofuel is any renewable makes a distinction between fuel from implementation options for ‘‘renewable fuel, not necessarily ethanol, derived new and existing facilities. Only biomass’’ is presented in Section III.B.4.

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3. Analysis of Lifecycle Greenhouse Gas TABLE II.A.3–1—LIFECYCLE GHG represents this combination of Emissions and Thresholds for THRESHOLDS SPECIFIED IN EISA— emissions increases and decreases Renewable Fuels Continued occurring over time led EPA to consider various alternative ways to analyze the [Percent reduction from baseline] As shown in Table II.A.3–1, EISA timeframe of emissions changes related requires that a renewable fuel must meet Cellulosic biofuel ...... 60 to biofuel production and use as well as minimum thresholds for their reduction options for adjusting or discounting in lifecycle greenhouse gas emissions: A a The 20% criterion generally applies to re- newable fuel from new facilities that com- these emissions to determine their net 20% reduction in lifecycle GHG menced construction after December 19, present value. Section VI highlights two emissions for any renewable fuel 2007. options. One option assumes a 30 year produced at new facilities; a 50% The lifecycle GHG emissions of the time period for assessing future GHG reduction in order to be classified as renewable fuel are compared to the emissions impacts of the anticipated biomass-based diesel or advanced lifecycle GHG emissions for gasoline or increase in biofuel production to meet biofuel; and a 60% reduction in order to diesel (whichever is being replaced by the mandates of EISA, both emissions be classified as cellulosic biofuel. The the renewable fuel) sold or distributed increases and decreases, and values all these emission impacts the same lifecycle GHG emissions means the as transportation fuel in 2005. EISA regardless of when they occur during aggregate quantity of GHG emissions provides some limited flexibility for that time period (i.e., no discounting). related to the full fuel cycle, including EPA to adjust these GHG percentage The second option assesses emissions all stages of fuel and feedstock thresholds downward by up to 10 impacts over a 100 year time period but production and distribution, from percent under certain circumstances. As then discounts future emissions 2% feedstock generation or extraction discussed in Section VI.D, we are annually to arrive at an estimate of a net through distribution and delivery and proposing that the GHG threshold for present value of those emissions. use of the finished fuel. As mandated by advanced biofuels be adjusted to 44% or Several other variations of time period EISA, it includes direct emissions and potentially as low as 40% depending on and discount rate are also discussed. significant indirect emissions such as the results from the analyses that will be significant emissions from land use The analytical time horizon and the conducted for the final rule. This choice whether to discount GHG changes. EPA believes that compliance adjustment would allow ethanol emissions and, if so, at what appropriate with the EISA mandate—determining produced from sugarcane to count as rate can have a significant impact on the the aggregate GHG emissions related to advanced biofuel and would help final assessment of the lifecycle GHG the full fuel lifecycle, including both ensure that the volume mandate for emissions impacts of individual biofuels direct emissions and significant indirect advanced biofuel could be met. as well as the overall GHG impacts of emissions such as land use changes— The regulatory purpose of the these EISA provisions and this rule. make it necessary to assess those direct lifecycle greenhouse gas emissions We believe that our lifecycle analysis and indirect impacts that occur not just analysis is to determine whether is based on the best available science within the United States but also those renewable fuels meet the GHG and recognize that in some aspects it that occur in other countries. This thresholds for the different categories of represents a cutting edge approach to applies to determining the lifecycle renewable fuel. As described in detail in addressing lifecycle GHG emissions. emissions for petroleum-based fuels to Section VI, EPA has analyzed the Because of the varying degrees of determine the baseline, as well as the lifecycle GHG impacts of the range of uncertainty in the different aspects of lifecycle emissions for biofuels. For biofuels currently expected to our analysis, we conducted a number of biofuels, this includes evaluating contribute significantly to meeting the sensitivity analyses which focus on key significant emissions from indirect land volume mandates of EISA through 2022. parameters and demonstrate how our use changes that occur in other In these analyses we have used the best assessments might change under countries as a result of the increased science available. Our analysis relies on alternative assumptions. By focusing domestic production or importation of peer reviewed models and the best attention on these key parameters, the biofuels into the U.S. As detailed in estimate of important trends in comments we receive as well as Section VI, we have included the GHG agricultural practices and fuel additional investigation and analysis by emission impacts of international land production technologies as these may EPA will allow narrowing of uncertainty use changes including the indirect land impact our prediction of individual concerns for the final rule. In addition use changes that result from domestic biofuel GHG performance through 2022. to this sensitivity analysis approach, we production of biofuel feedstocks. We We have identified and highlighted will also explore options for more assumptions and model inputs that recognize the significance of including formal uncertainty analyses for the final particularly influence our assessment international land use emission impacts rule to the extent possible. and seek comment on these and, in our analysis presentation in Because lifecycle analysis is a new assumptions, the models we have used Section VI, have been transparent in part of the RFS program, in addition to and our overall methodology so as to breaking out the various sources of GHG the formal comment period on the assure the most robust assessment of emissions so that the reader can readily proposed rule, EPA is making multiple lifecycle GHG performance for the final efforts to solicit public and expert see the impact of including rule. feedback on our proposed approach. international land use impacts. In addition to the many technical EPA plans to hold a public workshop issues addressed in this proposal, focused specifically on lifecycle TABLE II.A.3–1—LIFECYCLE GHG Section VI discusses the emissions analysis during the comment period to THRESHOLDS SPECIFIED IN EISA decreases and increases associated with assure full understanding of the [Percent reduction from baseline] the different parts of the lifecycle analyses conducted, the issues emissions of various biofuels and the addressed and the options that are Renewable fuel a ...... 20 timeframes in which these emissions discussed. We expect that this Advanced biofuel ...... 50 changes occur. The need to determine a workshop will help ensure that we Biomass-based diesel ...... 50 single lifecycle value that best receive submission of the most

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thoughtful and useful comments to this are discussed in further detail in Section alternatives, EPA is proposing proposal and that the best methodology III.B.3.c. consistent with RFS1 that these and assumptions are used for While renewable fuels would be provisions could best be met by calculating GHG emissions impacts of required to meet the GHG thresholds requiring that the renewable volume fuels for the final rule. Additionally, shown in Table II.A.3–1 in order to be obligation apply to refiners, blenders, between this proposal and the final rule, valid for compliance purposes under the and importers of motor vehicle or we will conduct peer reviews of key RFS2 program, we are not proposing nonroad gasoline or diesel (with limited components of our analysis. As that an individual facility-specific flexibilities for small refineries and explained in more detail in Section VI, lifecycle GHG emissions value would small refiners), and that their percentage EPA is specifically seeking peer review have to be determined in order to show obligation would apply to the amount of of: Our use of satellite data to project that the biofuel produced or imported at gasoline or diesel they produce for such future types of land use changes; the an individual facility complies with the use. We propose to use the current land conversion GHG emissions factors threshold. Instead, EPA has determined definition of motor vehicle, nonroad, estimates we have used for different lifecycle GHG values for specific locomotive, and marine diesel fuel types of land use; our estimates of GHG combinations of fuel type, feedstock, (MVNRLM)—as defined at § 80.2(qqq)— emissions from foreign crop production; and production process, using average to determine the obligated volumes of methods to account for the variable values for various lifecycle model non-gasoline transportation fuel for this timing of GHG emissions; and how the inputs. As a result of these assessments, rule. several models we have relied upon are we propose to assign each combination We request comment on these aspects used together to provide overall of fuel type, feedstock, and production of our proposed program. process to one of the four renewable fuel lifecycle GHG estimates. 5. Effective Date for New Requirements Some renewable fuel is not required categories specified in EISA or, alternatively, make a determination that Under CAA section 211(o) as to meet the 20% GHG threshold. Section modified by EISA, EPA is required to 211(o)(2)(A) provides that only the biofuel combination has been disqualified from generating RINs revise the RFS1 regulations within one renewable fuel produced from new year of enactment, or December 19, facilities which commenced (except as may be allowed for grandfathered renewable fuel) due to a 2008. Promulgation by this date would construction after December 19, 2007 have been consistent with the revised must meet the 20% threshold. Facilities failure to meet the minimum 20% GHG threshold. Section VI.E discusses our volume requirements shown in Table that commenced construction on or proposed assignments. We are also II.A.1–1 that begin in 2009 for certain before December 19, 2007 are exempt or proposing a mechanism to allow categories of renewable fuel. However, ‘‘grandfathered’’ from the 20% biofuels whose lifecycle GHG emissions due to the addition of complex lifecycle threshold requirement. In addition, have not been assessed to participate in assessments to the determination of section 210(a) of EISA provides a further the RFS program under certain limited eligibility of renewable fuels, the exemption from the 20% threshold conditions. These conditions are extensive analysis of impacts that we requirement for ethanol plants that described in Section III.D.5. are conducting for the higher renewable commenced construction in 2008 or fuel volumes, the various complex 2009 and are fired with natural gas, 4. Coverage Expanded to Transportation changes to the regulatory program that biomass, or any combination thereof. Fuel, Including Diesel and Nonroad require close collaboration with The renewable fuel from such facilities Fuels stakeholders, and various statutory is deemed to be in compliance with the EPAct only mandated the blending of limitations such as the Small Business 20% threshold, and would thus also be renewable fuels into gasoline, though it Regulatory Enforcement Flexibility Act ‘‘grandfathered.’’ gave credit for renewable fuels blended (SBREFA) and a 60 day Congressional We are proposing and taking into diesel fuel. EISA expanded the review period for all significant actions, comment on one approach to the program to generally cover we were not able to promulgate final grandfathering provisions in today’s transportation fuel, which is defined as RFS2 program requirements by rule, and seeking comment on five fuel for use in motor vehicles, motor December 19, 2008. As a result, we are additional options. The proposed vehicle engines, nonroad vehicles, or proposing that the RFS2 regulatory approach would provide an indefinite nonroad engines. This includes diesel program go into effect on January 1, time period for grandfathering status but fuel intended for use in highway 2010. with restrictions to the baseline volume vehicles and engines, and nonroad, In order to successfully implement of renewable fuel that is grandfathered. locomotive, and marine engines and the RFS2 program, parties that generate The alternative options are (1) vessels, as well as gaseous or other fuels RINs, own and/or transfer them, or use Expiration of exemption for used in these vehicles, engines, or them for compliance purposes will need grandfathered status when facilities vessels. EISA also specifies that to re-register under the RFS2 provisions undergo sufficient changes to be ‘‘transportation fuels’’ do not include and modify their information considered ‘‘reconstructed’’; (2) fuels for use in ocean-going vessels. technology (IT) systems to accommodate Expiration of exemption 15 years after EPA is required to ensure that the changes we are proposing today. As EISA enactment, industry-wide; (3) transportation fuel contains at least the described more fully in Section III, these Expiration of exemption 15 years after specified volumes of renewable fuel. changes would include redefining the D EISA enactment with limitation of Under EISA, renewable fuel now code within the RIN, adding a process exemption to baseline volume; (4) includes fuel that is used to displace for verifying that feedstocks meet the ‘‘Significant’’ production components fossil fuel present in transportation fuel, renewable biomass definition, and are treated as facilities and and as in RFS1, EPA is required to calculating compliance with four grandfathered or deemed compliant determine the refiners, blenders, and standards instead of one. Regulated status ends when they are replaced; and importers of transportation fuel that are parties will need to establish new (5) Indefinite exemption and no subject to the renewable volume contractual relationships to cover the limitations placed on baseline volumes. obligation. As discussed in Section III.F, different types of renewable fuel Our proposal and the alternative options while we are seeking comment on required under RFS2. Parties that

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produce MVNRLM diesel but not RFS1 regulations continue to apply determine what renewable fuel volumes gasoline will be newly obligated parties until EPA amends them to implement to require in the interim between and may be establishing IT systems for EISA, and any delay in issuance of the January 1, 2010 and the start of the the RFS program for the first time. For RFS2 regulations means that parties RFS2 program. While we could apply RFS1, regulated parties had four months would continue to be subject to the the same approach, described above, between promulgation of the final RFS1 regulations until the RFS2 that we have used for 2009, doing so rulemaking on May 1, 2007 and the start regulations were in effect. Therefore, could mean that 2009 biodiesel RINs of the program on September 1, 2007. regulated parties would continue to be would be valid for compliance purposes However, this was for a new program subject to the existing regulations at 40 in 2011, which would run counter to the that had not existed before. For the CFR Part 80 Subpart K through statutory valid life of two years. RFS2 program, most regulated parties December 31, 2009, or later if the Nevertheless, we request comment on will already be familiar with the general effective date of the RFS2 program were whether this potential approach or requirements for RIN generation, later than January 1, 2010. another approach is warranted based on transfer, and use, and the attendant Under the RFS1 regulations the the differing volumes and types of recordkeeping and reporting annual percentage standards that are renewable fuel specified for use in EISA requirements. We believe that with applicable to obligated parties are for 2010. proper attention to the implementation determined by a formula set forth in the 7. Waivers and Credits for Cellulosic requirements by regulated parties, the regulations. The formula uses gasoline Biofuel RFS2 program can be implemented on volume projections from the Energy January 1, 2010 following release of the Information Administration (EIA) and Section 202(e) of EISA provides that final rule. the required volume of renewable fuel for any calendar year in which the Although we are proposing that the provided in Clean Air Act section projected volume of cellulosic biofuel RFS2 regulatory program begin on 211(o)(2)(B). Since EISA modified the production is less than the minimum January 1, 2010, we seek comment on required volumes in this section of the applicable volume required by the whether a start date later than January Clean Air Act, EPA believes that the statute, EPA will waive a portion of the 1, 2010 would be necessary. Alternative new statutory volumes can be used cellulosic biofuel standard by using the effective dates for the RFS2 program under the RFS1 regulations in projected volume as the basis for setting include January 1, 2011 and a date after generating the standards for 2009. the applicable standard. In this event, January 1, 2010 but before January 1, Therefore, in November 2008 we used EISA also allows but does not require 2011. We are requesting comment on all the new total renewable fuel volume of EPA to reduce the required volume of issues related to such an alternative 11.1 billion gallons as the basis for the advanced biofuel and total renewable effective date, including the need for 2009 standard, and not the 6.1 billion fuel. The process of projecting the such a delayed start, treatment of diesel gallons that was required by EPAct.3 volume of cellulosic biofuel that may be producers and importers, whether the While this approach will ensure that produced in the next year, and the standards for advanced biofuel, the total renewable fuel volume of 11.1 associated process of determining cellulosic biofuel and biomass-based billion gallons required by EISA for whether and to what degree the diesel should apply to the entire 2010 2009 will be used, the RFS1 regulatory advanced biofuel and total renewable production or just the production that structure does not provide a mechanism fuel requirements should be lowered, would occur after the RFS2 effective for implementing the 0.5 billion gallon will involve considerations that extend date, and the extent to which RFS1 RINs requirement for biomass-based diesel beyond the simple calculation based on should be valid to show compliance nor the 0.6 billion gallon requirement gasoline demand that was used to set with RFS2 standards. Further for advanced biofuel. As described in the annual standards under RFS1. As a discussion of alternative effective dates more detail in Section III.E.2, we are result, we believe that this process for RFS2 can be found in Section proposing to address this issue by should be subject to a notice-and- III.E.1.d. increasing the 2010 biomass-based comment rulemaking process. diesel requirement by 0.5 billion gallons Moreover, since we must make these 6. Treatment of Required Volumes and allowing 2009 biodiesel and determinations every year for Preceding the RFS2 Effective Date renewable diesel RINs to be used to application to the following year, we We are proposing that the RFS2 meet this combined 2009/2010 expect to conduct these rulemakings regulatory program begin on January 1, requirement. Doing so would also allow every year. 2010. Under CAA section 211(o), the most of the 2009 advanced biofuel In determining whether the advanced requirements for refiners, blenders, and requirement to be met. We believe this biofuel and/or total renewable fuel importers (called ‘‘obligated parties’’) as would provide a similar incentive for volume requirements should also be well as the requirements for producers biomass-based diesel use in 2009 as adjusted downward in the event that of renewable fuel and others, stem from would have occurred had we been able projected volumes of cellulosic biofuel the regulatory provisions adopted by to implement this standard for 2009. We fall short of the statutorily required EPA. In effect while EPAct and EISA propose that this requirement would volumes, we believe it would be both call for EPA to issue regulations apply to all obligated parties under appropriate to allow excess advanced that achieve certain results, the various RFS2, including producers and biofuels to make up some or all of the regulated parties are not subject to these importers of diesel fuel. shortfall in cellulosic biofuel. For requirements until EPA issues the As noted above, EPA is proposing a instance, if we determined that regulations establishing their start date for the RFS2 program of sufficient biomass-based diesel was obligations. The changes brought about January 1, 2010, and is also seeking available, we could decide that the by EISA, such as the 4 separate comment on alternative start dates of required volume of advanced biofuel standards, the lifecycle GHG thresholds, sometime during 2010 or January 1, need not be lowered, or that it should changes to obligated parties, and the 2011. If the start date is other than be lowered to a smaller degree than the revised definition of renewable biomass January 1, 2010, EPA would need to required cellulosic biofuel volume. We do not become effective until today’s would then lower the total renewable proposal is finalized. Rather, the current 3 73 FR 70643, November 21, 2008. fuel volume to the same degree that we

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would lower the advanced biofuel significant impacts on these near term RFS2 proposal and we will have more volume. We do not believe it would be plans. Therefore, while based on complete assessments, including a cost- appropriate to lower the advanced industry plans available to EPA, we are benefit comparison, for the final rule. biofuel standard but not the total not proposing that any portion of the These assessments provide important renewable standard, as this would allow cellulosic biofuel requirement for 2010 information to the wider public policy conventional biofuels to effectively be be waived, we are seeking additional considerations of renewable fuels, used to meet the standards Congress and updated information that would be climate change, and national energy specifically set for cellulosic and available prior to November 30, 2009 security. They are also an important advanced biofuels. which could result in a change in this component of all significant If EPA reduces the required volume of conclusion. Similarly, we are not aware rulemakings. cellulosic biofuel, EPA must offer a of the need to waive any other volume However, because the volumes of number of credits no greater than the mandates for 2010. Therefore, we are renewable fuel were specified by reduced cellulosic biofuel standard. proposing that the volumes shown in statute, they would not be based on or EISA dictates the cost of these credits Table II.A.1–1 for all four renewable revised by our analysis of impacts. In and ties them to inflation. The Act also fuel categories be used as the basis for addition, because we have very limited dictates that we must promulgate the applicable standards for 2010. The discretion to pursue regulatory regulations on the use of these credits proposed standards are shown in Table alternatives, the proposal does not and offers guidance on how these II.A.8–1, each representing the fraction include a systematic alternatives credits may be offered and used. We of a refiner’s or importer’s gasoline and analysis. We have investigated propose that their uses will be very diesel volume which must be renewable regulatory alternatives in some areas to limited. The credits would not be fuel. the degree that EISA provides allowed to be traded or banked for discretion. future use, but would be allowed to TABLE II.A.8–1—PROPOSED As one point of reference to assess the meet the cellulosic biofuel standard, STANDARDS FOR 2010 impacts of the volume requirements for advanced biofuel standard and total [Percent] the RFS2 program, we used projections renewable fuel standard. Further for renewable fuel use in 2022 that EIA discussion of the implementation of Cellulosic biofuel ...... 0.06 issued through their 2007 Annual these provisions can be found in Section Biomass-based diesel ...... 0.71 Energy Outlook (AEO), and for III.I. Advanced biofuel ...... 0.59 transportation fuel consumption Renewable fuel ...... 8.01 through their 2008 AEO. This reference 8. Proposed Standards for 2010 case, referred to as the ‘‘AEO Reference Once the RFS2 program is Note that the proposed 2010 Case,’’ represents a projection of the implemented, we expect to conduct a standards shown in Table II.A.8–1 were demand for renewable fuels prior to notice-and-comment rulemaking based on currently available projections enactment of EISA while still reflecting process each year in order to determine of 2010 gasoline and diesel volumes. the new Corporate Average Fuel the appropriate standards applicable in The final standards will be calculated Economy (CAFE) requirements in EISA, the following year. We therefore intend on the basis of gasoline and diesel and the 2008 AEO projections for the to issue an NPRM in the spring and a volume projections from the Energy future price of crude oil ($53 to $92 per final rule by November 30 of each year Information Administration’s (EIA) barrel). Further discussion of the as required by statute. Short-Term Energy Outlook and Reference Case can be found in Section However, for the 2010 compliance published by November 30, 2009. V.A.1. Other points of reference include year, today’s action provides a means Additional discussion of our proposed the renewable fuel volumes mandated for seeking comment on the applicable 2010 standards can be found in Section by EPAct for the RFS1 program, standards. Therefore, rather than issuing III.E.1.b. renewable fuel use prior to a separate NPRM for the 2010 standard, Note also that the proposed standards implementation of the RFS1 program, we are proposing the 2010 standards in assume an effective date of January 1, and the full impacts of renewable fuel today’s notice. We will consider 2010 for RFS2. We are taking comment use compared to a petroleum-only comments received during the comment on alternative effective dates for RFS2, economy. period associated with today’s NPRM, including January 1, 2011 and a date Given the short time provided by and we expect to issue a Federal after January 1, 2010 but before January Congress to conduct a rulemaking, many Register notice by November 30, 2009 1, 2011. Such alternative effective dates of our analyses were done in parallel for setting the applicable standards for would raise issues with regard to the this proposal. As a result, some analyses 2010. calculation and application of the were conducted without the benefit of We propose that the RFS2 program be standards for total renewable fuel and waiting for the conclusion of another effective on January 1, 2010. Therefore, the other standards required under analysis that could prove influential. all EISA volume mandates for 2010 EISA, as well as the generation and Thus, for example, impacts on food would be implemented in that year, application of RINs under RFS1 and prices assume that soy-based biodiesel unless EPA exercised its authority to RFS2. As described more fully in and sugarcane ethanol will qualify as waive one or more of the standards. Section III.E.1.d, we request comment advanced fuels under the proposed Based on information from the industry, on the issues associated with alternative RFS2 program, even though the analyses we believe that there are sufficient plans effective dates for RFS2. conducted for this proposal might underway to build plants capable of preclude such eligibility. We have producing 0.1 billion gallons of B. Impacts of Increasing Volume highlighted such inconsistencies in cellulosic biofuel in 2010, the minimum Requirements in the RFS2 Program results and assumptions throughout the volume of cellulosic biofuel required by The displacement of gasoline and proposal. Additionally, since we have EISA for 2010. However, we recognize diesel with renewable fuels has a wide identified many issues and analytical that cellulosic biofuel is at the very range of environmental and economic options in our assessment of which earliest stages of commercialization and impacts. As we describe below, we have biofuel pathways would comply with current economic concerns could have assessed many of these impacts for the the GHG thresholds, the assessment we

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conducted for this proposal may not fuel, and in transporting and blending when accounting for all the emissions reflect the final rule in all cases. We will the renewable fuels for consumption as changes over 100 years and then be addressing these issues of analytical motor vehicle fuel. Likewise, fossil fuels discounting this emission stream by 2% consistency between analyses more are used in the production and per year. This is equivalent to an fully in the final rule. transportation of petroleum and its average annualized emission rate of 160 In a similar fashion, while we finished products. In order to estimate million metric tons of CO2-eq. emissions recognize uncertainty in our assessment the true impacts of increases in per year over the entire 100 year of impacts of the proposed RFS2 renewable fuel use on fossil fuel use, we modeling time frame if that average program, we do not present a formal, must take these steps into account. Such annualized emission rate is also comprehensive analysis of uncertainty. analyses are termed lifecycle analyses. discounted at 2% per year. Determining For this proposal, many of the analyses The definition of lifecycle greenhouse lifecycle GHG emissions values for are without precedent, and as a result gas emissions in EISA requires the renewable fuels using a 0% discount we have identified the more uncertain Agency to look broadly at lifecycle rate over 30 years would result in an aspects of these analyses and have analyses and to develop a methodology estimated total reduction of 4.5 billion worked to assess their potential impact that accounts for the significant tons of CO2-eq. over the 30 year period on the results through sensitivity secondary or indirect impacts of or an average annualized emission rate analyses. We intend to continue these expanded biofuels use. These indirect reduction of 150 million metric tons of assessments for the final rule, and effects include both the domestic and CO2-eq. GHG emissions per year. (See expect that comments on this proposal international impact of land use change Section VI.F of this preamble for will allow us to reduce our uncertainty from increased biofuel feedstock additional information on how these in a number of areas. In addition to this production and the secondary emission reductions were calculated). sensitivity analysis approach, we will agricultural sector GHG impacts from Our analysis of the petroleum also explore options for more formal increased biofuel feedstock production consumption impacts took a similar uncertainty analyses for the final rule to (e.g., changes in livestock emissions due lifecycle approach. For the year 2022, the extent possible. to changes in agricultural commodity we estimate that the 36 billion gallons prices). Today no single model can of renewable fuel mandated by these 1. Greenhouse Gases and Fossil Fuel capture all of the complex interactions rules will increase renewable fuel usage Consumption required to conduct a complete lifecycle by approximately 22 billion gallons Our analyses of GHG impacts assessment as required by Congress. As which will displace about 15 billion consider the full useful life assessment a result, the methodology EPA has gallons of petroleum-based gasoline and of the production of biofuels compared currently evaluated uses a number of diesel fuel. This represents about 8% of to the petroleum-based fuels they would models and tools to provide a annual oil consumed by the replace. The analysis compared the AEO comprehensive estimate of GHG transportation sector in 2022. reference case transportation fuel pool emissions. We have used a combination 2. Economic Impacts and Energy in 2022 without the EISA mandates of peer reviewed models including Security with the same fuel pool in 2022, but Argonne National Laboratory’s GREET assuming the greater volumes of biofuel model, Texas A&M’s Forestry and The substantially increased volumes as mandated by EISA replace an energy Agricultural Sector Optimization Model of renewable fuel that would be equivalent amount of petroleum-based (FASOM) and Iowa State University’s required under RFS2 would produce a fuel. The incremental volumes of each Food and Agricultural Policy Research variety of different economic impacts. biofuel type were then evaluated to Institute’s (FAPRI) international These would include changes in the determine their average impact on GHG agricultural models as well as the cost of gasoline and diesel, a reduction emissions compared to the 2005 Winrock International database to in nationwide expenditures on baseline petroleum fuel they would be estimate lifecycle GHG emissions petroleum imports and the associated displacing. These average GHG emission estimates. These models are described increase in energy security, and reduction results can then be compared in more detail in Section VI and have increases in the prices of agricultural to the threshold performance levels for been used in combination to provide the commodities such as corn and soybeans. each fuel type. lifecycle GHG estimates presented in The RFS program is projected to As a result of the transition to greater this proposal. However, we recognize significantly impact the cost of gasoline renewable fuel use, some petroleum- other models and sources of information and diesel, though the estimated costs based gasoline and diesel will be can also be used and these are also vary based on the price of crude oil that directly replaced by renewable fuels. discussed in Section VI. is assumed. In our analysis we used Therefore, consumption of petroleum- Based on the combined use of these both $92 and $53 per barrel crude oil based fuels will be lower than it would models we have estimated the lifecycle based on price projections made by EIA. be if no renewable fuels were used in GHG emissions for a number of At these two crude oil price points, we transportation vehicles. However, a true pathways for producing the increased estimate that gasoline costs would measure of the impact of greater use of volumes of renewable fuels as mandated increase by about 2.7 and 10.9 cents per renewable fuels on petroleum use, and by EISA. Section VI of this proposal gallon, respectively, by 2022. Likewise, indeed on the use of all fossil fuels, outlines the approach taken and diesel fuel costs could experience a accounts not only for the direct use and describes the key assumptions and small cost reduction of 0.1 cents per combustion of the finished fuel in a parameters used in this analysis. In gallon, or increase by about 1.2 cent per vehicle or engine, but also includes the addition, this section highlights the gallon, respectively. For the nation as a petroleum use associated with impacts of varying these key inputs on whole, these costs are equivalent to $4 production and transportation of that the overall results. and $18 billion in 2022, respectively (in fuel. For instance, fossil fuels are used We estimate the greater volumes of 2006 dollars, and amortizing capital in producing and transporting biofuel mandated by RFS2 will reduce costs using a 7% before-tax rate of renewable feedstocks such as plants or lifecycle GHG emissions from return). These costs represent the animal byproducts, in converting the transportation by approximately 6.8 nationwide average impacts including renewable feedstocks into renewable billion tons of CO2 equivalent emissions the costs of producing and distributing

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both renewable fuels and gasoline and disruptions of corn-based ethanol. We exports of soybeans would decrease by diesel, as well as blending costs, but will attempt to broaden our energy $691 million in 2022. without consideration of either the tax security analysis to incorporate Assuming current subsidies remain in subsidies and import tariff for ethanol or estimates of overall motor fuel supply place, the Renewable Fuels Standard, by tax subsidies for biodiesel and and demand flexibility and reliability encouraging the use of biofuels, will renewable diesel fuel. for the final rule, along with impacts of result in an expansion of subsidy EPA’s estimates of economic impacts possible agricultural sector market payments by the U.S. government. If of fuels do not consider other societal disruptions. A complete discussion of this resulting loss of tax revenue were benefits. For example, the displacement the Agency’s plans for this analysis can offset by an increase in taxes, this could of petroleum-based fuel (largely be found in Section IX.B.2. of this have a distortionary impact on the imported) by renewable fuel (largely preamble. economy. We intend to consider the produced in the United States), should While increased use of renewable fuel impact of the expansion of biofuel reduce our consumption of imported oil will reduce expenditures on imported subsidies associated with the RFS2 in and fuel. We estimate that 91% of the oil, it will also increase expenditures on the context of the economy-wide lifecycle petroleum reductions resulting renewable fuels and in turn on the modeling to be conducted for the final from the use of renewable fuel will be sources of those renewable fuels. The rule. met through reductions in net RFS program is likely to spur the We note that the economic analyses petroleum imports. In Section IX of this increased use of renewable that support this proposal do not reflect preamble we estimate the value of the transportation fuels made principally all of the potentially quantifiable decrease in imported petroleum at about from agricultural crops and it is economic impacts. There are several key $12.4 billion in 2022 due to increased expected that most of these crops will impacts that remain incomplete as a volumes of renewable fuels mandated be produced in the U.S. As a result, it result of time and resource constraints, by RFS2 in comparison to the AEO is important to analyze the including the economic impact analysis reference case. Net U.S. expenditures on consequences of the transition to greater (see Section IX) and the air quality and petroleum imports in 2022 are projected renewable fuel use in the U.S. health impacts analysis (see Section to be about $208 billion. agricultural sector. To analyze the II.B.3). As a result, this proposal does Furthermore, the above estimate of domestic agricultural sector impacts, not combine economic impacts in an reduced U.S. petroleum import EPA selected the Forest and attempt to compare costs and benefits, expenditures only partly assesses the Agricultural Sector Optimization Model in order to avoid presenting an economic impacts of this proposal. One (FASOM) developed by Professor Bruce incomplete and potentially misleading of the effects of increased use of McCarl of Texas A&M University and characterization. For the final rule, renewable fuel is that it diversifies the others over the past thirty years. when the planned analyses are complete energy sources used in making FASOM is a dynamic, nonlinear and current analyses updated, we will transportation fuel. To the extent that programming model of the agriculture provide a consistent cost-benefit diverse sources of fuel energy reduce comparison. the U.S. dependence on any one source, and forestry sectors of the U.S. the risks, both financial as well as In Section IX of this preamble, we 3. Emissions, Air Quality, and Health strategic, of a potential disruption in estimate the change in the price of Impacts supply of a particular energy source are various agricultural products as a result of this rulemaking. By 2022, we estimate Analysis of criteria and toxic emission reduced. EPA has worked with impacts was performed relative to three researchers at Oak Ridge National the price of corn would increase by $0.15 per bushel (4.6%) above the different reference case ethanol Laboratory (ORNL) to update a study volumes, ranging from 3.64 to 13.2 they previously published that has been Reference Case price of $3.19 per bushel. By 2022, U.S. soybean prices billion gallons per year. To assess the used or cited in several government total impact of the RFS program, actions impacting U.S. oil consumption. would increase by $0.29 per bushel (2.9%) above the Reference Case price of emissions were analyzed relative to the This updated study went through an RFS1 rule base case of 3.64 billion independent, third-party peer review $9.97 per bushel. Due to higher commodity prices, FASOM estimates gallons in 2004. To assess the impact of process and a final draft report of this today’s RFS2 proposal relative to the updated study was developed. This that U.S. food costs would increase by $10 per person per year by 2022, current mandated volumes, we analyzed peer-reviewed report is being made impacts relative to RFS1 mandate of 7.5 available in the docket at this time for relative to the Reference Case. Total farm gate food costs would increase by billion gallons of renewable fuel use by further consideration. Using the 2012, which was estimated to include updated ORNL estimate, the total energy $3.3 billion (0.2%) in 2022. As a result 4 of increased renewable fuel 6.7 billion gallons of ethanol. In order security benefits associated with a to assess the impact of today’s proposal reduction of U.S. imported oil is $12.38 requirements, FASOM predicts that net U.S. farm income would increase by relative to the level of ethanol projected per barrel of imported oil that is to be used in 2022 without RFS2, the reduced. Based on these values, we $7.1 billion dollars in 2022 (10.6%), relative to the Reference Case. AEO2007 projection of 13.2 billion estimate that the total annual energy gallons of ethanol in 2022 was analyzed. Due to higher commodity prices, security benefits would be $3.7 billion We are also presenting a range of FASOM estimates that U.S. corn exports in 2022 (in 2006 dollars). impacts meant to bracket the impacts of would drop from 2.7 billion bushels We recognize that our current energy ethanol blends on light-duty vehicle under the Reference Case to 2.4 billion security analysis does not take into emissions. Similar to the approach bushels (a 10% decrease) by 2022. In account risk-shifting that might occur as presented in the RFS1 rule, we present value terms, U.S. exports of corn would the U.S. reduces its dependency on a ‘‘less sensitive’’ and ‘‘more sensitive’’ fall by $487 million in 2022. FASOM petroleum by increasing its use of case to present a range of the possible biofuels. For example, our analysis did estimates that U.S. exports of soybeans not take into account other energy would decrease from 1.03 billion 4 RFS1 base and mandated ethanol levels were security implications associated with bushels to 943 million bushels (an 8% projected to remain essentially unchanged in 2022 biofuels, such as possible supply decrease) in 2022. In value terms, U.S. due to the flat energy demands projected by EIA.

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emission impacts of E10 on recent in 2022, and the percent contribution of reductions in livestock agricultural model year light duty gasoline vehicles. this impact relative to the total U.S. activity), decreased CO emissions As detailed in Section VII.C, ‘‘less inventory across all sectors. Overall we (driven primarily by the impacts of sensitive’’ does not apply any E10 project the proposed program will result ethanol on exhaust emissions from effects to NOX or HC emissions for later in significant increases in ethanol and vehicles and nonroad equipment), and model year vehicles, or E85 effects for acetaldehyde emissions—increasing the decreased benzene emissions (due to any pollutant, while ‘‘more sensitive’’ total U.S inventories of these pollutants displacement of gasoline with ethanol does. by up to 30–40% in 2022 relative to the in the fuel pool). Discussion and a Our projected emission impacts for RFS1 mandate case. We project more breakdown of these results by the fuel the ‘‘less sensitive’’ and ‘‘more modest but still significant increases in production/distribution and vehicle and sensitive’’ cases are shown in Table acrolein, NO , formaldehyde and PM. X equipment emissions are presented in II.B.3–1 and II.B.3–2, showing the We project today’s action will result in Section VII. expected emission changes for the U.S. decreased ammonia emissions (due to

TABLE II.B.3–1—RFS2 ‘‘LESS SENSITIVE’’ CASE EMISSION IMPACTS IN 2022 RELATIVE TO EACH REFERENCE CASE

RFS1 base RFS1 mandate AEO2007 Pollutant Annual short % of total U.S. Annual short % of total U.S. Annual short % of total U.S. tons inventory tons inventory tons inventory

NOX ...... 312,400 2.8 274,982 2.5 195,735 1.7 HC ...... 112,401 1.0 72,362 0.6 ¥8,193 ¥0.07 PM10 ...... 50,305 1.4 37,147 1.0 9,276 0.3 PM2.5 ...... 14,321 0.4 11,452 0.3 5,376 0.16 CO ...... ¥2,344,646 ¥4.4 ¥1,669,872 ¥3.1 ¥240,943 ¥0.4 Benzene ...... ¥2,791 ¥1.7 ¥2,507 ¥1.5 ¥1,894 ¥1.1 Ethanol ...... 210,680 36.5 169,929 29.4 83,761 14.5 1,3-Butadiene ...... 344 2.9 255 2.1 65 0.5 Acetaldehyde ...... 12,516 33.7 10,369 27.9 5,822 15.7 Formaldehyde ...... 1,647 2.3 1,348 1.9 714 1.0 Naphthalene ...... 5 0.03 3 0.02 ¥1 ¥0.01 Acrolein ...... 290 5.0 252 4.4 174 3.0 SO2 ...... 28,770 0.3 4,461 0.05 ¥47,030 ¥0.5 NH3 ...... ¥27,161 ¥0.6 ¥27,161 ¥0.6 ¥27,161 ¥0.6

TABLE II.B.3–2—RFS2 ‘‘MORE SENSITIVE’’ CASE EMISSION IMPACTS IN 2022 RELATIVE TO EACH REFERENCE CASE

RFS1 base RFS1 mandate AEO2007 Pollutant Annual short % of total U.S. Annual short % of total U.S. Annual short % of total U.S. tons inventory tons inventory tons inventory

NOX ...... 402,795 3.6 341,028 3.0 210,217 1.9 HC ...... 100,313 0.9 63,530 0.6 ¥15,948 ¥0.14 PM10 ...... 46,193 1.3 33,035 0.9 5,164 0.15 PM2.5 ...... 10,535 0.3 7,666 0.2 1,589 0.05 CO ...... ¥3,779,572 ¥7.0 ¥3,104,798 ¥5.8 ¥1,675,869 ¥3.1 Benzene ...... ¥5,962 ¥3.5 ¥5,494 ¥3.3 ¥4,489 ¥2.7 Ethanol ...... 228,563 39.6 187,926 32.5 105,264 18.2 1,3-Butadiene ...... ¥212 ¥1.8 ¥282 ¥2.4 ¥430 ¥3.6 Acetaldehyde ...... 16,375 44.0 14,278 38.4 9,839 26.5 Formaldehyde ...... 3,373 4.7 3,124 4.3 2,596 3.6 Naphthalene ...... ¥175 ¥1.2 ¥178 ¥1.3 ¥187 ¥1.3 Acrolein ...... 253 4.4 218 3.8 143 2.5 SO2 ...... 28,770 0.3 4,461 0.05 ¥47,030 ¥0.5 NH3 ...... ¥27,161 ¥0.6 ¥27,161 ¥0.6 ¥27,161 ¥0.6

We note that the aggregate nationwide chemistry related to ambient photochemical air quality modeling emission inventory impacts presented concentrations of PM2.5, ozone and air analysis in time for the NPRM. For the here will likely lead to health impacts toxics is very complex, and making final rule, however, a national-scale air throughout the U.S. due to changes in predictions based solely on emissions quality modeling analysis will be future-year ambient air quality. changes is extremely difficult. Full-scale performed to analyze the impacts of the However, emissions changes alone are photochemical modeling is necessary to proposed standards on PM2.5, ozone, not a good indication of local or regional provide the needed spatial and temporal and selected air toxics (i.e., benzene, air quality and health impacts, as there detail to more completely and formaldehyde, acetaldehyde, ethanol, may be highly localized impacts such as accurately estimate the changes in acrolein and 1,3-butadiene). As increased emissions from ethanol plants ambient levels of these pollutants. As described in Section VII.D.2, EPA and evaporative emissions from cars, discussed in Section VII.D, timing and intends to use a 2005-based Community and decreased emissions from gasoline resource constraints precluded EPA Multi-scale Air Quality (CMAQ) refineries. In addition, the atmospheric from conducting a full-scale modeling platform as the tool for the air

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quality modeling. The CMAQ modeling reasons. Corn has the highest fertilizer (UMRB). The UMRB is representative of system is a comprehensive three- and pesticide use per acre and accounts the many potential issues associated dimensional grid-based Eulerian air for the largest share of nitrogen fertilizer with ethanol production, including its quality model designed to estimate the use among all crops. Furthermore, corn- connection to major water quality formation and fate of oxidant based ethanol is expected to be a large concerns such as Gulf of Mexico precursors, primary and secondary PM component of the biofuels mix. hypoxia, large corn acreage, and concentrations and deposition, and air Fertilizer nutrients that are not used numerous ethanol production plants. toxics, over regional and urban spatial by the crops are available to runoff to The UMRB contributes 39% of nitrogen scales (e.g., over the contiguous U.S.). surface water or leach into groundwater. loads and 26% of phosphorus loads to The lack of air quality modeling data Nutrient enrichment due to human the Gulf of Mexico. also precluded EPA from conducting its activities is one of the leading problems EPA selected the SWAT (Soil and standard analysis of human health facing our nation’s lakes, reservoirs, and Water Assessment Tool) model to assess impacts, where CMAQ output data are estuaries, and also has negative impacts nutrient loads from changes in used as inputs to the Environmental on aquatic life in streams; adverse agricultural production in the UMRB. Benefits Mapping and Analysis Program health effects on humans and domestic SWAT is a physical process model (BenMAP). Section IX.D of this animals; and impairs aesthetic and developed to quantify the impact of preamble describes the human health recreational use. Excess nutrients can land management practices in large, impacts that will be quantified and lead to excessive growth of algae in complex watersheds. In conducting its monetized for the final rule, as well as rivers and streams, and aquatic plants in analysis EPA quantified the impacts the unquantified impacts that will be all waters. Nutrient pollution is from a baseline that preceded the qualitatively described. widespread. The most widely known current high production of ethanol from 4. Water examples of significant nutrient impacts corn to four future years—2010, 2015, As the production of biofuels include the Gulf of Mexico and the 2020 and 2022. increases to meet the requirements of Chesapeake Bay, however waterbodies Table II.B.4–1 summarizes the model this proposed rule, there may be adverse in virtually every state and territory are outputs at the outlet of the UMRB in the impacts on both water quality and impacted by nutrient-related Mississippi River at Grafton, Illinois for quantity. Increased production of degradation. A more detailed discussion each of the four scenario years. The biofuels may lead to increased of nutrient pollution can be found in local impact in smaller watersheds application of fertilizer and pesticides Section X of this preamble and in within the UMRB may be significantly and increased soil erosion, which could Chapter 6 of the DRIA. different. The decreasing nitrogen load impact water quality. Since ethanol To provide a quantitative estimate of over time is likely attributed to the production uses large quantities of the impact of this proposal and increased corn yield production, water, the supply of water could also be production of corn ethanol generally on resulting in greater plant uptake of significantly impacted in some water quality, EPA conducted an nitrogen. The relatively stable sediment locations. analysis that modeled the changes in loadings are likely due to the fact that EPA focused the water quality loadings of nitrogen, phosphorus, and corn was modeled assuming that corn analysis for this proposal on the impacts sediment from agricultural production stover is left on the fields following of corn produced for ethanol for several in the Upper Mississippi River Basin harvest.

TABLE II.B.4–1—CHANGES FROM THE 2005 BASELINE TO THE MISSISSIPPI RIVER AT GRAFTON, ILLINOIS FROM THE UPPER MISSISSIPPI RIVER BASIN

2005 Baseline 2010 2015 2020 2022

Average corn yield (bushels/acre) ...... 141 ...... 150 158 168 171 Nitrogen ...... 1433.5 million lbs ...... +5.5% +4.7% +2.5% +1.8% Phosphorus ...... 132.4 million lbs ...... +2.8% +1.7% +0.98% +0.8% Sediment ...... 6.4 million tons ...... +0.5% +0.3% +0.2% +0.1%

After evaluating comments on this in detail in Section X of this Preamble, Council of Economic Advisors (CEA), proposal, if time and resources permit, and Chapter 6 of the DRIA. and others, the recent increase in EPA may conduct additional water commodity prices has been influenced 5. Agricultural Commodity Prices quality analyses using the SWAT model by factors as diverse as world economic in the UMRB. Potential future analyses The recent increase in food prices, growth, droughts in Australia, China could include: (1) Determination of the both domestically and internationally, and Eastern Europe, increasing oil most sensitive assumptions in the has raised the issue of whether diverting prices, changes in investment strategies, model, (2) water quality impacts from grains and oilseeds for fuel production and the declining value of the U.S. the changes in ethanol volumes between is having a large impact on commodity dollar. While the increase in renewable the reference case and this proposal, (3) markets. While we share the concern fuel production has contributed to the removing corn stover for cellulosic that food prices have increased increase in commodity prices, the ethanol, and (4) a case study of a smaller significantly over the same time period magnitude of the contribution of the RFS has most likely been minor, as watershed to evaluate local water in which renewable fuel production has market conditions have continued to quality impacts that are impossible to increased, many factors have push renewable fuel use beyond the ascertain at the scale of the UMRB. contributed to recent increases in food prices. As described by the U.S. mandated levels. EPA also qualitatively examined other Department of Agriculture (USDA), the As the mandated levels of renewable water issues, which are also discussed Department of Energy (DOE), the fuels continue to rise in the future, our

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economic modeling suggests that the and reporting, deficit carryovers, and as transportation fuel in the U.S. The impact of the RFS2 program on food the valid life of RINs. use of RINs is predicated on the fact that prices will continue to be modest, The primary elements of the RFS once renewable fuels are produced or particularly with the expansion of program that we propose changing to imported, there is very high confidence cellulosic biofuels. Table II.B.5–1 implement the requirements in EISA fall that, setting aside exports, all but de summarizes the changes in prices for primarily into the following five areas: minimus quantities will in fact be used some commodities we have estimated (1) Expansion of the applicable as transportation fuel in the U.S. for this proposal. Further discussion can volumes of renewable fuel Focusing on production of renewable be found in Section IX.A. (2) Separation of the volume fuel as a surrogate for the later actual requirements into four separate blending and use of such fuel has many TABLE II.B.5–1—CHANGE IN U.S. categories of renewable fuel, with benefits as far as streamlining the RFS corresponding changes to the RIN and to COMMODITY PRICES FOR 2022 IN program and minimizing the impact that the applicable standards the program has on the business COMPARISON TO THE REFERENCE (3) Changes to the definition of CASE operations of the regulated industries. renewable fuels and criteria for Since the RIN-based system generally [2006$] determining which if any of the four has been successful in meeting EPA’s renewable fuel categories a given goals, we propose to maintain much of Corn ...... $0.15/bushel. renewable fuel is eligible to meet its structure under RFS2. Soybeans ...... $0.29/bushel. (4) Expansion of the fuels subject to Sugarcane ...... $13.34/ton. the standards (and applicable to This section describes the regulatory Beef ...... $0.93/hundred pounds. refiners, blenders, and importers of changes we propose to implement the those fuels) to include diesel and certain new EISA provisions. Section IV II. What Are the Major Elements of the nonroad fuels describes other changes to the RFS Program Required Under EISA? (5) Inclusion of specific types of program that we have considered or are waivers and EPA-generated credits for proposing, including a concept for an While EISA made a number of cellulosic biofuel. EPA-moderated RIN trading system that changes to CAA section 211(o) that must EISA does not change the basic would provide a context within which be reflected in the RFS program requirement under CAA 211(o) that the all RIN transfers could occur. regulations, it left many of the basic RFS program include a credit trading A. Changes to Renewable Identification program elements intact, including the program. In the May 1, 2007 final Numbers (RINs) mechanism for translating national rulemaking implementing the RFS1 renewable fuel volume requirements program, we described how we Under RFS2, we propose that each into applicable standards for individual reviewed a variety of approaches to RIN would continue to represent one obligated parties, requirements for a program design in collaboration with gallon of renewable fuel for compliance credit trading program, geographic various stakeholders. We finally settled purposes consistent with our approach applicability, treatment of small on a RIN-based system for compliance under RFS1, and the RIN would refineries, and general waiver and credit purposes as the one which continue to have 38 digits. In general provisions. As a result, we propose that met our goals of being straightforward, the codes within the RIN would have many of the regulatory requirements of maximizing flexibility, ensuring that the same meaning under RFS2 as they the RFS1 program would remain largely volumes are verifiable, and maintaining do under RFS1, with the exception of or, in some cases, entirely unchanged. the existing system of fuel distribution the D code which would be expanded These provisions would include the and blending. RINs represent the basic to cover the four categories of renewable distribution of RINs, separation of RINs, framework for ensuring that the fuel defined in EISA. The proposed use of RINs to demonstrate compliance, statutorily required volumes of change to the D code is described in provisions for exporters, recordkeeping renewable fuel are produced and used Table III.A–1.

TABLE III.A–1—PROPOSED CHANGE TO D CODE

D value Meaning under RFS1 Meaning under RFS2

1 ...... Cellulosic biomass ethanol ...... Cellulosic biofuel. 2 ...... Any renewable fuel that is not cellulosic biomass ethanol ...... Biomass-based diesel. 3 ...... Not applicable ...... Advanced biofuel. 4 ...... Not applicable ...... Renewable fuel.

The determination of which D code the RFS2 program during 2010 but after mechanism for distinguishing between would be assigned to a given batch of January 1, some 2010 RINs would be these two categories of RINs in order to renewable fuel is described in more generated under the RFS1 requirements appropriately apply them to the detail in Section III.D.2 below. and others would be generated under standards. One straightforward way of As described in Section II.A.5, we are the RFS2 requirements, but all RINs accomplishing this would be to use proposing that the RFS2 program go into generated in 2010 would need to be values for the D code under RFS2 that effect on January 1, 2010. However, we valid for meeting the appropriate 2010 do not overlap the values for the D code are also taking comment on other annual standards. Since RFS1 RINs and under RFS1. Table III.A–2 describes the potential start dates including January 1, RFS2 RINs would differ in the meaning D code definitions under such an 2011 and dates between January 1, 2010 of the D codes, we would need a alternative approach. and January 1, 2011. If we were to start

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TABLE III.A–2—ALTERNATIVE D CODE DEFINITIONS

D value Meaning under RFS1 Meaning under RFS2

1 ...... Cellulosic biomass ethanol ...... Not applicable. 2 ...... Any renewable fuel that is not cellulosic biomass ethanol ...... Not applicable. 3 ...... Not applicable ...... Cellulosic biofuel. 4 ...... Not applicable ...... Biomass-based diesel. 5 ...... Not applicable ...... Advanced biofuel. 6 ...... Not applicable ...... Renewable fuel.

In this alternative approach, D code criteria and how we propose to include natural gas, and propane (i.e., values of 1 and 2 would only be relevant them in the RFS2 program. compressed natural gas (CNG) and for RINs generated under RFS1, and D liquefied petroleum gas (LPG)) as a RIN- 1. Changes in Renewable Fuel code values of 3, 4, 5, and 6 would only generating renewable fuel in today’s Definitions be relevant for RINs generated under program only if they can identify the RFS2. As a result, 2010 RINs generated Under the existing Renewable Fuel specific quantities of their product under RFS1 would be subject to our Standard (RFS1), renewable fuel is which are actually used as a proposed RFS1/RFS2 transition defined generally as ‘‘any motor vehicle transportation fuel, and if the fuel is provisions wherein they would be fuel that is used to replace or reduce the produced from renewable biomass. This assigned to one of the four annual quantity of fossil fuel present in a fuel may be possible for some portion of standards that would apply in 2010 mixture used to fuel a motor vehicle’’. electricity, natural gas, and propane using their RR and/or D codes. See The RFS1 definition includes motor since many of the affected vehicles and Section III.G.3 for further description of vehicle fuels produced from biomass equipment are in centrally-fueled fleets how we propose using RFS1 RINs to material such as grain, starch, fats, supplied under contract by a particular meet standards under RFS2. greases, oils, and biogas. The definition producer or importer of natural gas or Under RFS2, each batch-RIN specifically includes cellulosic biomass propane. A producer or importer of generated would continue to uniquely ethanol, waste derived ethanol, and electricity, natural gas, or propane who identify not only a specific batch of biodiesel, all of which are defined could document the use of his product renewable fuel, but also every gallon- separately. (See 72 FR 23915.) in a vehicle or engine would be allowed RIN assigned to that batch. Thus the RIN The definitions of renewable fuels to generate RINs to represent that would continue to be defined as under today’s proposed rule (RFS2) are product, if it met the definition of follows: based on the new statutory definition in renewable fuel. Given that the primary EISA. Like the existing rules, the use of electricity, natural gas, and RIN: KYYYYCCCCFFFFFBBBBBR definitions in RFS2 include a general propane is not for fueling vehicles and RDSSSSSSSSEEEEEEEE definition of renewable fuel, but unlike engines, and the producer generally Where: RFS1, we are including a separate does not know how it will be used, we K = Code distinguishing assigned RINs from definition of ‘‘Renewable Biomass’’ cannot require that producers or separated RINs which identifies the feedstocks from importers of these fuels generate RINs YYYY = Calendar year of production or which renewable fuels may be made. for all the volumes they produce as we import Another difference in the definitions do with other renewable fuels. CCCC = Company ID of renewable fuel is that RFS2 contains Our proposal to allow electricity, FFFFF = Facility ID natural gas, and propane to generate BBBBB = Batch number three subcategories of renewable fuels: RR = Code identifying the Equivalence Value (1) Advanced Biofuel, (2) Cellulosic RINs under certain conditions is D = Code identifying the renewable fuel Biofuel and (3) Biomass-Based Diesel. consistent with our treatment of neat category Each must meet threshold levels of renewable fuels under RFS1 and EISA’s SSSSSSSS = Start of RIN block reduction of greenhouse gas emissions requirement that all transportation fuels EEEEEEEE = End of RIN block as discussed in Section III.B.2. The be included in RFS2. With specific B. New Eligibility Requirements for specific definitions and how they differ regard to renewable electricity, Section Renewable Fuels from RFS1 follow below. 206 of EISA requires the EPA to conduct a study of the feasibility of issuing Aside from the higher volume a. Renewable Fuel and Renewable credits under the RFS2 program for requirements, most of the substantive Biomass renewable electricity used by electric changes that EISA makes to the RFS ‘‘Renewable Fuel’’ is defined as fuel vehicles. Once completed, this study program affect the eligibility of produced from renewable biomass and will provide additional information renewable fuels in meeting one of the that is used to replace or reduce the regarding the means by which four volume requirements. Eligibility quantity of fossil fuel present in a renewable electricity is able to generate would be determined based on the types transportation fuel. The definition of RINs under the RFS2 program. of feedstocks that can be used, the land ‘‘Renewable Fuel’’ now refers to As an alternative to allowing that can be used to grow feedstocks for ‘‘transportation fuel’’ rather than producers and importers of electricity, renewable fuel production, the referring to motor vehicle fuel. natural gas, and propane to generate processes that can be used to convert ‘‘Transportation fuel’’ is also defined, RINs if they can demonstrate that their those feedstocks into fuel, and the and means fuel used in motor vehicles, product is a renewable fuel and it is lifecycle greenhouse gas (GHG) motor vehicle engines, nonroad vehicles used as transportation fuel, we could emissions that can be emitted in or nonroad engines (except for ocean allow or require parties who supply comparison to the gasoline or diesel that going vessels). these fuels to centrally fueled fleets to the renewable fuel displaces. This We propose to allow fuel producers generate the RINs even if they are not section describes these eligibility and importers to include electricity, the producer of the fuel. This approach

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would treat the supplier of the fuel to present in EISA, and we propose to pastics) could be excluded from getting the fleet as the producer or importer clarify in the regulations that ‘‘yard credit under the RFS program as who then generates RINs, as they are the waste’’ is leaves, sticks, pine needles, described in Section III.D.4. EPA invites party who in effect changes the fuel grass and hedge clippings, and similar comment on whether there is enough from a fuel that can be used in a variety waste from residential, commercial, or separation of food and yard waste in of ways and ensures that it is in fact industrial areas. Nevertheless, EPA MSW used in renewable fuel production used as transportation fuel. This invites comment on whether the for MSW containing yard and food alternative approach might enable a definition of ‘‘renewable biomass’’ waste to meet the definition of larger volume of electricity, natural gas, should be interpreted as including or renewable biomass. and propane that is made from excluding MSW from the definition of Approximately 35% by weight of renewable biomass and which is renewable biomass. MSW is paper wastes, and another 6% actually used in vehicles or engines to While the lack of a reference to MSW by weight from wood wastes. Combined be included in our proposed fuels and the new listing of separated yard with food and yard wastes, more than program as RIN-generating, since in waste and food waste could be readily 60% by weight of MSW is biomass that many cases a supplier could document interpreted to exclude MSW as a could be used to make ethanol and other the use of these fuels in vehicles or qualifying feedstock under RFS2, EPA renewable fuels.5 The volume of ethanol engines, while a producer could not. In believes there are indications of associated with MSW as a feedstock is addition, in this case the supplier is the ambiguity on this issue and solicits described in more detail in Section 1.1 party who causes the fuel to transition comment on whether EPA can and of the Draft Regulatory Impact Analysis from general fuel supply to fuel should interpret EISA as including (DRIA). designated for use in motor vehicles or MSW that contains yard and/or food Our discussions with stakeholders nonroad applications—in that sense, the waste within the definition of renewable indicate that a potential concern with supplier is more like a producer or biomass. On the one hand, the reference interpreting the definition of renewable importer than the upstream producer or in the statutory definition to ‘‘separated biomass to include MSW containing importer. However, if we were to allow yard waste and food waste,’’ and the yard and/or food waste is that this the supplier of renewable electricity, lack of reference to other components of approach may cause some decrease in natural gas, or propane to generate RINs MSW (such as waste paper and wood the amount of paper that is separated in such cases, it may also be appropriate waste) suggests that only yard and food from the MSW waste stream and to require suppliers of fossil-based wastes physically separated from other recycled into paper products. We electricity, natural gas, or propane to waste materials satisfy the definition of believe, however, that current waste determine a Renewable Volume renewable biomass as opposed to the handling practices and current and Obligation (RVO) that includes these yard and food waste present in MSW. anticipated market conditions would fuels used as transportation fuel. See This view would exclude unprocessed continue to provide a strong incentive Section III.F.3 for further discussion. We MSW from any role in the development for paper separation and recycling. A request comment on this alternative of renewable fuel under EISA, and narrow reading of the statute to exclude approach for generating RINs for would also likely severely limit the MSW-derived renewable fuel would renewable electricity, natural gas and amount of yard and food waste available directionally reduce the options propane. as feedstock for EISA-qualifying fuel, available for meeting the goal of EISA to The term ‘‘Renewable Biomass’’ as since large quantities of these materials reduce our dependence on foreign defined in EISA, means: are disposed of as unprocessed MSW. sources of energy. 1. Planted crops and crop residue, On the other hand, there are some By including MSW containing yard 2. Planted trees and tree residues, indications that Congress may not have and/or food waste in the definition of 3. Animal waste material and specifically intended to exclude MSW renewable biomass, we could also allow byproducts, from playing a role in the development renewable fuel to be produced in part 4. Slash and pre-commercial of renewable fuels under EISA. For from certain plastics in the MSW waste thinnings (from non-federal forestlands), example, ethanol ‘‘derived from waste stream. We believe this could be material’’ and biogas ‘‘including landfill 5. Biomass cleared from the vicinity appropriate given that plastics that gas’’ are specifically identified as of buildings and other areas to reduce would otherwise be destined for ‘‘eligible for consideration’’ in the the risk of wildfire, landfills can be used for fuel and energy 6. Algae, and definition of advanced biofuel. While production. We recognize that the 7. Separated yard waste or food waste. landfill gas is generated primarily by the definition of renewable biomass Section III.B.4 of this preamble yard waste and food waste in a landfill, generally includes only materials of a outlines our proposed interpretations these wastes typically are not separated non fossil-fuel origin, and ask that for most of the key terms contained in from each other in a landfill. In commenters consider this issue in their the EISA definition of ‘‘renewable addition, Congress did not define the comments on whether: (1) MSW biomass’’ and possible approaches for term ‘‘separated’’ and did not otherwise implementing the land restrictions on specify the degree of ‘‘separation’’ containing yard and food waste should renewable biomass that are included in required of yard and food waste in the qualify as renewable biomass, (2) if non- EISA. It is worth noting here, however, definition of renewable biomass. Thus, fossil portions of MSW should be that the statutory definition of it might be reasonable to consider these included in the definition of renewable ‘‘renewable biomass’’ does not include a items sufficiently ‘‘separated’’ from biomass, and (3) if non-fossil portions of reference to municipal solid waste other materials, including non-waste 5 Construction and demolition (C&D) wastes are (MSW) as did the definition of materials, when food and yard waste is not typically considered as elements of MSW. ‘‘cellulosic biomass ethanol’’ in the present in MSW. In addition, the Because they are significant feedstocks for the Energy Policy Act of 2005 (EPAct), but processing of MSW to fuel will production of ethanol, we include such wastes in instead includes ‘‘separated yard waste effectively separate out the materials in our economic analysis (Section V). Therefore, for all practical purposes, the discussion here as it and food waste. EPA’s proposed MSW that cannot be made into fuel, pertains to whether MSW should be included in the definition of renewable biomass in such as glass and metal, and non- definition of ‘‘renewable biomass’’ also applies to today’s regulation includes the language biomass portions of MSW (for example, C&D wastes.

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MSW should not be included, whether and meets the proposed 40–44% GHG feedstock are processed in the same unit the approach discussed in Section emission reduction threshold. at any time; i.e., either simultaneously III.D.4 can provide an appropriate or sequentially. Under the second c. Cellulosic Biofuel means for excluding the non-fossil option, if petroleum feedstock was portions. Cellulosic biofuel is renewable fuel, processed in the unit, then no fuel Although we are proposing to exclude not necessarily ethanol, derived from produced from such unit, even from a MSW from the definition of ‘‘renewable any cellulose, hemicellulose, or lignin biomass feedstock, would be deemed to biomass’’ for the proposed rule, our each of which must originate from be biomass-based diesel. analysis of renewable fuel volume renewable biomass. It must also achieve We are proposing the first option to be (discussed in Section V) assumes that a lifecycle GHG emission reduction of at used in the definition in today’s rule. MSW is included for purposes of least 60%, compared to the gasoline or Under this approach, a batch of fuel quantifying the potential future volume diesel fuel it displaces. Cellulosic qualifying for the D code of 2 that is of renewable fuel. EPA intends to biofuel is assigned a D code of 1 as produced in a processing unit in which resolve this matter in the final rule, and shown in Table III.A–1. Cellulosic only renewable biomass is the feedstock we solicit comment on the approach biofuel in general also qualifies as both for such batch, would meet the that we should take. ‘‘advanced biofuel’’ and ‘‘renewable definition of ‘‘Biomass-Based Diesel. fuel’’. b. Advanced Biofuel Thus, serial batch processing in which The proposed definition of cellulosic 100% vegetable oil is processed one ‘‘Advanced Biofuel’’ is a renewable biofuel for RFS2 is broader in some day/week/month and 100% petroleum fuel other than ethanol derived from respects than the RFS1 definition of the next day/week/month could occur corn starch and which must also ‘‘cellulosic biomass ethanol’’. That without the activity being considered achieve a lifecycle GHG emission definition included only ethanol, ‘‘co-processing.’’ The resulting products displacement of 50%, compared to the whereas the RFS2 definition of could be blended together, but only the gasoline or diesel fuel it displaces. As cellulosic biofuels includes any volume produced from vegetable oil such, advanced biofuel would be biomass-to-liquid fuel in addition to would count as biomass-based diesel. assigned a D code of 3 as shown in ethanol. The definition of ‘‘cellulosic We believe this is the most Table III.A–1. biofuel’’ in RFS2 differs from RFS1 in straightforward approach and an ‘‘Advanced biofuel’’ also may be another significant way. The RFS1 appropriate one, given that it would biomass-based diesel, biogas (including definition provided that ethanol made at allow RINs to be generated for volumes landfill gas and sewage waste treatment any facility—regardless of whether of fuel meeting the 50% GHG reduction gas), butanol or other alcohols produced cellulosic feedstock is used or not—may threshold that is derived from through conversion of organic matter be defined as cellulosic if at such renewable biomass, while not providing from renewable biomass, and other fuels facility ‘‘animal wastes or other waste any credit for fuel derived from derived from cellulosic biomass, as long materials are digested or otherwise used petroleum sources. In addition, this as it meets the proposed 40–44% GHG to displace 90% or more of the fossil approach avoids the need for potentially emission reduction threshold. fuel normally used in the production of complex provisions addressing how fuel ‘‘Advanced Biofuel’’ is a renewable fuel ethanol.’’ This provision was not should be treated when existing or even other than ethanol derived from corn included in EISA, and therefore does mothballed petroleum hydrotreating starch and for which lifecycle GHG not appear in the definitions pertaining equipment is retrofitted and placed into emissions are at least 40–44% less than to cellulosic biofuel in today’s proposed new service for renewable fuel the gasoline or diesel fuel it displaces. rule. Advanced biofuel would be assigned a production or vice versa. d. Biomass-Based Diesel Under today’s proposal, any fuel that D code of 3 as shown in Table III.A–1. While ‘‘Advanced Biofuel’’ Under today’s proposed rule does not satisfy the definition of specifically excludes ethanol derived ‘‘Biomass-based diesel’’ includes both biomass-based diesel only because it is from corn starch, it includes other types biodiesel (mono-alkyl esters) and non- co-processed with petroleum would still of ethanol derived from renewable ester renewable diesel (including meet the definition of ‘‘Advanced biomass, including ethanol made from cellulosic diesel). The definition is the Biofuel’’ provided it meets the 50% cellulose, hemicellulose, lignin, sugar or same very broad definition of GHG threshold and other criteria for the any starch other than corn starch, as ‘‘biodiesel’’ that was in EPAct and in D code of 3. Similarly it would meet the long as it meets the proposed 40–44% RFS1, with three exceptions. First, EISA definition of renewable fuel if it meets GHG emission reduction threshold. requires that such fuel be made from a GHG emission reduction threshold of Thus, even if corn starch-derived renewable biomass. Second, its lifecycle 20%. In neither case, however, would it ethanol were made so that it met the GHG emissions must be at least 50% meet the definition of biomass-based proposed 40–44% GHG reduction less than the gasoline or diesel fuel it diesel. threshold, it would still be excluded displaces. Third, the statutory definition This restriction is only really an issue from being defined as an advanced of ‘‘Biomass-based diesel’’ excludes for renewable diesel and biodiesel biofuel. Such ethanol, while not an renewable fuel derived from co- produced via the fatty acid methyl ester advanced biofuel, would still qualify as processing biomass with a petroleum (FAME) process. For other forms of feedstock. In drafting the proposed biodiesel, it is never made through any a renewable fuel for purposes of meeting 6 the standards. definition, we considered two options sort of co-processing with petroleum. ‘‘Advanced biofuel’’ also may be for how co-processing could be treated. 6 The production of biodiesel (mono alkyl esters) biomass-based diesel, biogas (including The first option would consider co- does require the addition of methanol which is landfill gas and sewage waste treatment processing to occur only if both usually derived from natural gas, but which gas), butanol or other alcohols produced petroleum and biomass feedstock are contributes a very small amount to the resulting through conversion of organic matter processed in the same unit product. We do not believe that this was intended by the statute’s reference to ‘‘co-processing’’ which from renewable biomass, and other fuels simultaneously. The second option we believe was intended to address only renewable derived from cellulosic biomass, as long would consider co-processing to occur if fats or oils co-processed with petroleum in a as it is derived from renewable biomass renewable biomass and petroleum hydrotreater to produce renewable diesel.

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Producers of renewable diesel must Renewable fuel: The 20% threshold process met those thresholds under the therefore specify whether or not they only applies to renewable fuel from new assumption of a 100-year timeframe and use ‘‘co-processing’’ to produce the fuel facilities that commenced construction 2% discount rate for GHG emission in order to determine the correct D code after December 19, 2007, with an impacts. for the RIN. additional exemption from the 20% We are not proposing to adjust any of threshold for ethanol plants that e. Additional Renewable Fuel these thresholds. However, we may commenced construction in 2008 or adjust the GHG threshold for biomass- The statutory definition of ‘‘additional 2009 and are fired with natural gas, based diesel and/or advanced biofuel renewable fuel’’ specifies fuel produced biomass, or any combination thereof. downward for the final rule based on from renewable biomass that is used to Facilities not subject to the 20% additional lifecycle GHG analyses and replace or reduce fossil fuels used in threshold would be ‘‘grandfathered.’’ further assessments of the market home heating oil or jet fuel. EISA See Section III.B.3 below for a complete potential for volumes that can meet the indicates that EPA may allow for the discussion of grandfathering. Also, EPA requirements for these categories of generation of credits for such additional can adjust the 20% threshold to as low renewable fuel. As explained in more renewable fuel that will be valid for as 10%, but the adjustment must be the detail in Section VI.D, ethanol produced compliance purposes. Under the RFS minimum possible, and the resulting from sugarcane sugar has been program, RINs operate in the role of threshold must be established at the estimated to have a lifecycle GHG credits, and RINs are generated when maximum achievable level based on performance of 44% (under the renewable fuel is produced rather than natural gas fired corn-based ethanol assumption of a 100 year timeframe and when it is blended. In most cases, plants. 2% discount rate), short of the 50% however, renewable fuel producers do Advanced biofuel and biomass-based threshold specified in EISA. Ethanol not know at the time of fuel production diesel: The 50% threshold can be from sugarcane is one of the few (and RIN generation) how their fuel will adjusted to as low as 40%, but the currently commercial pathways that ultimately be used. adjustment must be the minimum Under RFS1, only RINs assigned to possible and result in the maximum have the potential to meet the renewable fuel that was blended into achievable threshold taking cost into requirements for advanced biofuel in motor vehicle fuel are valid for consideration. Also, such adjustments the near term (in addition to cellulosic compliance purposes. As a result, we could be made only if it was determined biofuel and biomass-based diesel which created special provisions requiring that that the 50% threshold was not are a subset of advanced biofuel, and RINs be retired if they were assigned to commercially feasible for fuels made any other new fuels that may arise), and renewable fuel that was ultimately using a variety of feedstocks, the only such pathway that was blended into nonroad fuel. The new technologies, and processes. As subjected to lifecycle analysis to date. If EISA provisions regarding additional described more fully in Section VI.D, we ethanol from sugarcane does not qualify renewable fuel make the RFS1 are proposing that the GHG threshold as advanced biofuel, it is likely that it requirement for retiring RINs for advanced biofuels be adjusted to would not be commercially feasible for unnecessary if renewable fuel is 44% or potentially as low as 40% the advanced biofuel volume blended into heating oil or jet fuel. As depending on the results from the requirements to be met in the near term. a result, we propose modifying the analyses that will be conducted for the We request comment on whether it regulatory requirements to allow RINs final rule. would be necessary to adjust the GHG assigned to renewable fuel blended into Cellulosic biofuel: Similarly to threshold for advanced biofuel. For heating oil or jet fuel to continue to be advanced biofuel and biomass-based similar reasons, as discussed in more valid for compliance purposes. diesel, the 60% threshold applicable to detail in Section VI.D, we are also cellulosic biofuel can be adjusted to as seeking comment on the need to adjust 2. Lifecycle GHG Thresholds low as 50%, but the adjustment must be the GHG threshold for biomass-based As part of the new definitions that the minimum possible and result in the diesel. EISA creates for cellulosic biofuel, maximum achievable threshold taking 3. Renewable Fuel Exempt From 20 biomass-based diesel, advanced biofuel, cost into consideration. Also, such Percent GHG Threshold and renewable fuel, EISA also sets adjustments could be made only if it minimum performance measures or was determined that the 60% threshold EISA amends section 211(o) of the ‘‘thresholds’’ for lifecycle GHG was not commercially feasible for fuels Clean Air Act to provide that renewable emissions. These thresholds represent made using a variety of feedstocks, fuel produced from new facilities which the percent reduction in lifecycle GHGs technologies, and processes. commenced construction after that is estimated to occur when a Our analyses of lifecycle GHG December 19, 2007 must achieve at least renewable fuel displaces gasoline or emissions, discussed in detail in Section a 20% reduction in lifecycle greenhouse diesel fuel. Table III.B.2–1 lists the VI, included all GHGs related to the full gas emissions compared to baseline thresholds required by EISA. fuel cycle, including all stages of fuel lifecycle greenhouse gas emissions.7 and feedstock production and Facilities that commenced construction TABLE III.B.2–1—REQUIRED distribution, from feedstock generation before December 19, 2007 are LIFECYCLE GHG THRESHOLDS and extraction through distribution, ‘‘grandfathered’’ and thereby exempt delivery, and use of the finished fuel. [Percent reduction from a 2005 gasoline or from the 20% GHG reduction diesel baseline] They included direct emissions and any requirement. significant indirect emissions such as Renewable fuel ...... 20 significant emissions from land use 7 Section 211(o)(2)(A)(i) of the Clean Air Act as Advanced biofuel ...... 50 changes. These lifecycle analyses were amended by EISA. Note that this is not a Biomass-based diesel ...... 50 used to determine whether the prohibition—facilities that make ethanol can Cellulosic biofuel ...... 60 thresholds shown in Table III.B.2–1 continue to do so. It is a minimum requirement for facilities to generate RINs under today’s proposed should be adjusted downwards and rule; failure to meet such requirements means that There are also special provisions for which specific combinations of the ethanol produced from such facilities cannot each of these thresholds: feedstock, fuel type, and production generate RINs.

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For facilities that produce ethanol and not clarify whether ‘‘deemed ‘‘installation of building supports and for which construction commenced after compliant’’ facilities have that status for foundations, laying underground pipe December 19, 2007, section 210 of EISA only 2008 and 2009, or for a longer time work and construction of permanent states that ‘‘for calendar years 2008 and period. EPA seeks, in interpreting these storage structures.’’ We have added 2009, any ethanol plant that is fired terms, to avoid long-term backsliding language to the definition that is with natural gas, biomass, or any with respect to environmental currently not in the PSD definition with combination thereof is deemed to be in performance and to also provide a level respect to multi-phased projects. We are compliance with the 20% threshold.’’ playing field for future investments. proposing that for multi-phased We refer to these facilities as ‘‘deemed Thus, we want to avoid incentives that projects, commencement of construction compliant.’’ This provision does not would allow overall GHG performance of one phase does not constitute specify whether such facilities are to worsen via expansion at older plants commencement of construction of any deemed to be in compliance only for the with poorer GHG performance or by later phase, unless each phase is period of 2008 and 2009, or indefinitely. modifications such as switches to more ‘‘mutually dependent’’ on the other on Nor does EISA specify a date by which polluting process heat sources, such as a physical and chemical basis, rather such qualifying facilities must have coal. At the same time, we also want to than economic. started operation. Although the Act is offer protection for historical business The PSD regulations provide unclear as to whether their special investments that were made prior to additional conditions beyond what treatment is only for 2008/2009, or for enactment of EISA, and we want future constitutes commencement. a longer time period, we believe that it significant investments to meet the GHG Specifically, the regulations require that would be a harsh result for investors in reduction standards of the Act. Finally the owner or operator ‘‘did not these new facilities, and generally we want to avoid excessive case-by-case discontinue construction for a period of inconsistent with the energy decision making where possible, and 18 months or more and completed independence goals of EISA, for these seek instead a rule that offers ease of construction within a reasonable time.’’ new facilities to only be guaranteed two implementation while providing (40 CFR 52.21(i)(4)(ii)(c). While years of participation in the RFS2 certainty to EPA and the regulated ‘‘reasonable time’’ may vary depending program. We propose that the statute be industry. on the type of project, we believe that interpreted to mean that fuel from such We are proposing one basic approach with respect to renewable fuel facilities, qualifying facilities, regardless of date of to the exemption provisions and seeking a reasonable time to complete startup of operations, would be exempt comment on five additional options. In construction is no greater than 3 years from the 20% GHG threshold fashioning the basic proposal and from initial commencement of requirement for the same time period as alternative options for exempted construction. We seek comment on the facilities that commence construction facilities, we considered aspects of use of these definitions. exemption approaches elsewhere in the prior to December 19, 2007, provided b. Definition and Boundaries of a CAA and EPA regulations to evaluate that such plants commence construction Facility prior to December 31, 2009, complete whether they would foster the above- such construction in a reasonable described objectives. We are only We propose that the grandfathering amount of time, and continue to burn looking to these other provisions for and deemed compliant exemptions only natural gas, biomass, or a guidance and are not bound to follow apply to ‘‘facilities.’’ Our proposed combination thereof. Therefore, we any already-established approach for a definition of this term is similar in some believe that they should be treated like different statutory provision (especially respects to the definition of ‘‘building, grandfathered facilities. We seek as those other provisions may contain structure, facility, or installation’’ comment, however, on the alternative in definitions that Congress did not contained in the PSD regulations in 40 which after 2009, such plants must meet incorporate here). CFR 52.21. We have modified the definition, however, to focus on the the 20% threshold in order to generate a. Definition of Commence Construction RINs for renewable fuel produced. typical renewable fuel plant. We Based on our survey of ethanol plants In defining ‘‘commence’’ and therefore propose to describe the in operation, as well as those not yet in ‘‘construction’’, we wanted a clear exempt ‘‘facilities’’ as including all of operation but which commenced designation that would be broad enough the activities and equipment associated construction prior to December 19, to avoid facility-specific issues, but with the manufacture of renewable fuel 2007, it is likely that production narrow enough to prevent new facilities which are located on one property and capacity of ethanol from all such (i.e., post-December 19, 2007) from under the control of the same person or facilities will reach 15 billion gallons. being grandfathered. We believe that the persons. (See Section 1.5.1.4 of the DRIA.) This definitions of ‘‘commence’’ and ‘‘Begin actual construction’’ in the Prevention c. Options Proposed in Today’s volume of ethanol will be excluded Rulemaking from having to meet the 20% GHG of Significant Deterioration (PSD) threshold by the grandfathering and regulations, which draws upon We are proposing one basic approach deemed compliant provisions of EISA.8 definitions in the Clean Air Act, served to the grandfathering provisions and For ease of reference, we will refer to this purpose. (40 CFR 52.21(b)(9) and seeking comment on five additional both these provisions as the ‘‘exemption (11)). Specifically, under the PSD options. The basic approach would provisions’’ of EISA. regulations, ‘‘commence’’ means that provide an indefinite extension of EISA does not define the term ‘‘new the owner or operator has all necessary grandfathering and deemed compliant facility’’ and, as mentioned above, does preconstruction approvals or permits status but with a limitation of the and either has begun a continuous exemption from the 20% GHG threshold 8 The grandfathering and deemed compliant program of actual on-site construction to to a baseline volume of renewable fuel. provisions in EISA sections 202 and 210 do not be completed in a reasonable time, or The five additional options for which apply to the advanced biofuels, biomass-based entered into binding agreements which we seek comment are: (1) Expiration of diesel or cellulosic biofuel standards for which the Act requires a 50 or 60% GHG reduction threshold cannot be cancelled or modified without exemption for grandfathered and to be met regardless of when the facilities substantial loss.’’ Such activities ‘‘deemed compliant’’ status when producing such fuels are constructed. include, but are not limited to, facilities undergo sufficient changes to

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be considered ‘‘reconstructed’’; (2) The baseline volume would be threshold if the facility wants to Expiration of exemption 15 years after defined as above for deemed compliant generate RINs for that volume. Such EISA enactment, industry-wide; (3) facilities with the exception that if the determinations would be made on the Expiration of exemption 15 years after maximum capacity is not stipulated in basis of EPA-defined corn ethanol fuel EISA enactment with limitation of air permits, then the exempt volume pathway categories that are deemed to exemption to baseline volume; (4) would be the maximum annual peak represent such 20% reduction. As an ‘‘Significant’’ production components production during the plant’s first three alternative approach to the greater of are treated as facilities and years of operation. In addition, any nameplate capacity or historical annual grandfathered or deemed compliant production volume increase that is peak capacity, we seek comment on an status ends when they are replaced; and attributable to construction which approach in which the baseline volume (5) Indefinite exemption and no commenced prior to December 31, 2009 is the actual volume of renewable fuel limitations placed on baseline volumes. would be exempt from the 20% GHG produced during the 2006 calendar year, threshold, provided that the facility where adequate data is available. Since i. Basic Approach: Grandfathering continued to use natural gas, biomass or there has been a particularly high Limited to Baseline Volumes a combination thereof for process demand for ethanol in recent years, the We are proposing and seeking energy. Because deemed compliant use of 2006 data may be a fair comments on an option which generally facilities owe their status to the fact that representation of the real production limits the volume of any renewable fuel they use natural gas, biomass or a capacity for most plants. For plants that for which a grandfathered and deemed combination thereof for process heat, we have not operated for an adequate shake compliant facility can generate RINs propose that their status would be lost, down period, the information in the without complying with the 20% GHG and they would be subject to the 20% state or Federal air permit could be used reduction threshold to the capacity GHG threshold requirement, at any time and if this is not available, the volume specified in a state or Federal that they change to a process energy nameplate capacity could be used. As air permit or the greater of nameplate source other than natural gas and/or mentioned above, deemed compliant capacity or actual production. This biomass. Finally, because EISA limits facilities would be exempt from the approach is similar to how we have deemed compliant facilities to ethanol 20% GHG threshold for baseline treated small refiner flexibilities under facilities, we propose that if there are volumes and any additional volumes our other fuel rules. As a sub-option to any changes in the mix of renewable regarding which construction this approach, we also seek comment on fuels produced by the facility that only commenced prior to December 31, 2009. a provision whereby facilities would the ethanol volume remain We recognize, however, that some lose their status if they switch to a grandfathered. We solicit comment, debottlenecking type changes may cause process fuel or feedstock which results however, on whether the statute could increases in volume that are within a in an increase of GHG emissions. be read to allow deemed compliant plant’s inherent capacity. To account for facilities to be treated the same as this in past regulations (e.g., 40 CFR (1) Increases in Volume of Renewable grandfathered facilities by allowing a 80.552 and 554) we allowed for an Fuel Produced at Grandfathered mix of renewable fuels. increase of 5% above the baseline Facilities due to Expansion Volume limitations contained in air volume. Based on conversations with permits may be defined in terms of peak builders of ethanol plants, however, For facilities that commenced hourly production rates or a maximum construction prior to December 19, annual capacity. If they are defined only such plants have often been 2007, we are proposing to define the as maximum hourly production rates, debottlenecked to exceed nameplate baseline volume of renewable fuel they would need to be converted to an capacity by 20% and sometimes much exempt from the 20% GHG threshold annual rate. We believe that assuming higher. We seek comment on whether requirement to be the maximum 24-hour per day production over 365 we should allow a 10% tolerance on the volumetric capacity of the facility as days per year (8,760 production hours) baseline volume for which RINs can be allowed in any applicable state air may overstate nameplate capacity. In generated without complying with the permit or Federal Title V operating other regulations that pertain to refinery 20% GHG reduction threshold. Once permit. If the capacity of a facility is not operations, we have assumed a that 10% increase in volume is stipulated in such air permits, then the conversion rate of 90% of the total exceeded, the total increase above grandfathered volume is the greater of hours in a year (7884 production hours). baseline volume would then be subject the nameplate capacity of the facility or We seek comment on what would be an to the 20% GHG reduction requirement historical annual peak production prior appropriate conversion rate for in order to generate RINs. We also seek to enactment of EISA. Volumes greater renewable fuel facilities. comment on tolerance values in the 5 to than this amount which may typically The facility registration process (see 20% range. be due to expansions of the facility Section III.C) would be used to define Our guiding philosophy of protecting which occur after December 19, 2007, the baseline volume for individual historical business investments that would be subject to the 20% GHG facilities. Owners and operators would were made to comply with the reduction requirement in order for the submit information substantiating the provisions of RFS1 is realized by facility to generate RINs for the nameplate capacity of the plant, as well allowing production increases within a incremental expanded volume. The as historical annual peak capacity if plant’s inherent capacity. At the same increased volume would be considered such is greater than nameplate capacity. time, the alternative of requiring as if produced from a ‘‘new facility’’ Subsequent expansions at a compliance with the 20% GHG which commenced construction after grandfathered that result in an increase reduction requirement for increases in December 19, 2007. Changes that might in volume would subject the increase in volume above 10% over the baseline occur to the mix of renewable fuels volume to the 20% GHG emission volume, would place new volumes from produced within the facility would reduction threshold (but not the original grandfathered facilities on a level remain grandfathered as long as the baseline volume). Thus, any new playing field with product from new overall volume fell within the baseline expansions would need to be designed grass roots facilities. We believe that a volume. to achieve the 20% GHG reduction level playing field for new investments

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is fair and consistent with the of Puerto Rico, the U.S. Virgin Islands, emissions (as discussed further in provisions of EISA. Guam, American Samoa, and the Section VI.E). (Table III.B.3.c.i–1 is Commonwealth of the Northern Mariana based on the table of fuel pathways (2) Replacements of Equipment Islands) owners would be required to contained in proposed regulations 40 If production equipment such as provide certification as well. Since the CFR 80.1426.) Since the majority of boilers, conveyors, hoppers, storage definition of commencement of facilities under consideration in this tanks and other equipment are replaced, construction includes having all portion of the rulemaking consists of it would not be considered construction necessary air permits, we would require ethanol plants, the table below is of a ‘‘new facility’’ under this option of that facilities outside the United States limited to those types. Any changes to today’s proposal—the baseline volume to certify that such facilities have a facility that shift it to a feedstock or of fuel would continue to be exempt obtained all necessary permits for use of a process energy source that from the 20% GHG threshold. We construction and operation required by results in higher GHG emissions on the discuss in a sub-option in III.B.3.c.i(4) the appropriate national and local basis of the ranking categories in Table below in which if the replacement unit environmental agencies. III.B.3.c.i–1 below would terminate the uses a higher polluting fuel in terms of facility’s grandfathered status. GHG emissions such replacement would (4) Sub-Option of Treatment of Future render the facility a new facility, and it Modifications For example, an ethanol dry mill would no longer be exempt from the plant using natural gas for process heat, 20% GHG threshold. We also solicit We seek comment on a sub-option to as well as combined heat and power comment on an approach that would the basic approach whereby facilities (CHP), is ranked as ‘‘2’’ in the table require that if coal-fired units are would lose their grandfathered status if below. If the plant (or any portion of the replaced, that the replacement units they switch to a process fuel or plant) switches to coal, it is ranked as must be fired with natural gas or biofuel feedstock which results in an increase of ‘‘4’’. The higher number indicates an for the product to be eligible for RINs GHG emissions. Some facilities may increase in GHG emissions. Therefore in that do not satisfy the 20% GHG keep production volumes the same, but this example, the plant is considered to threshold. change some or all of their feedstocks have undertaken a modification that and energy sources, thus causing a increases GHG emissions, would render (3) Registration, Recordkeeping and facility’s product to fall further below the facility as ‘‘new’’ and its Reporting the GHG performance for the fuel grandfathered status would end. Facility owner/operators would be pathway it produced at the time of Similarly, replacements of equipment required to provide evidence and enactment. We are therefore seeking that worsen GHG emissions would also certification of commencement of comment on an approach to limit the terminate grandfathered status. (For construction. Owner/operators must initial grandfathering only for the fuel replacements of equipment that do not provide annual records of process fuels pathways that applied during 2007, change the fuel, nor result in an increase used on a BTU basis, feedstocks used when establishing the volume baseline. in volume of renewable fuel, the and product volumes. For facilities that Table III.B.3.c.i–1 below presents a grandfathered status of the plant would are located outside the United States ranking of fuels and feedstock by fuel remain, as discussed in Section (including outside the Commonwealth pathway in order of life cycle GHG III.B.3.c.i(2) above.)

TABLE III.B.3.c.I–1—GROUPS OF RENEWABLE FUEL FACILITIES BY FUEL FEEDSTOCK AND PROCESS ENERGY

Feedstock Production process requirements Ranking

Starch from corn, wheat, barley, oats, rice, or sorghum ...... —Process heat derived from biomass ...... 1 Starch from corn, wheat, barley, oats, rice, or sorghum ...... —Dry mill plant ...... 2 —All process heat derived from natural gas. —Combined heat and power (CHP). —Fractionation of feedstocks. —Dried distillers grains. Starch from corn, wheat, barley, oats, rice, or sorghum ...... —Dry mill plant ...... 3 —All process heat derived from natural gas. —Wet distillers grains. Starch from corn, wheat, barley, oats, rice, or sorghum ...... —Dry mill plant ...... 4 —All or part of process heat derived from coal. —Combined heat and power (CHP). —Fractionation of feedstocks. —Membrane separation of ethanol. —Raw starch hydrolysis. —Dried distillers grains. Starch from corn, wheat, barley, oats, rice, or sorghum ...... —Dry mill plant ...... 5 —All or part of process heat derived from coal. —Combined heat and power (CHP). —Fractionation of feedstocks. —Membrane separation of ethanol. —Wet distillers grains. Sugarcane sugar ...... —Process heat derived from sugarcane bagasse ...... 1 Sugarcane sugar ...... —Process heat derived from natural gas ...... 2 Sugarcane sugar ...... —Process heat derived from coal ...... 3

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We considered whether of the modified vessel. We are seeking Our assessment of whether a facility improvements at a facility (i.e., a fuel comment on an approach wherein upon has been reconstructed would be based switch from coal to natural gas) that still the Agency’s determination that costs of on application of an appropriate cost result in GHG performance less than replacements, repairs and upgrades model such as U.S. Department of 20% should be credited to allow the conducted since the start-up of the Agriculture’s cost estimation model for facility to increase its baseline volume. facility meet the test of ‘‘reconstruction’’ construction of new ethanol plants We decided not to propose such an (i.e., the costs equal or exceed 50% of described by Kwiatkowski, J. et al. approach because it would take away an what it would cost to rebuild), that the (2006) 9. Costs associated with the costs incentive for new plants that achieve facility would be considered effectively of repair and replacement of all parts greater than 20% GHG reduction to be new, and would be subject to the 20% (including the labor associated with constructed. As such, this would go GHG reduction requirements. replacement and repair), would be against our guiding principle of The application of the definition of included in such calculation, regardless providing equal opportunities for future reconstruction in the NSPS program of the parts’ intended useful life. We investments in new plants. occurs on an equipment-wide rather seek comment on whether to also We recognize that there may be than on a plant-wide basis. Under this include costs associated with employee combinations of changes made at a option, we would apply the concept of labor related to routine maintenance, plant, some of which may worsen GHG a ‘‘new’’ facility on a plant-wide basis and also whether the costs of repairs emissions and others which may cause similar to the approach we have taken and replacements at the facility should an improvement and that not all such in the recently promulgated locomotive be limited only to the property directly combinations can be taken into account and marine standards. We believe that related to the production of biofuels.10 in a single table of fuel pathways. We a plant-wide approach is appropriate Under this alternative option, the seek comment on ways to address such under RFS2 because it is not the volume of renewable fuel that qualifies combinations. emissions from individual pieces of for an exemption from the 20% GHG ii. Alternative Options for Which We equipment that are being regulated. threshold would remain fixed at the Seek Comment Rather, the 20% GHG reduction baseline volume as in the basic option standard applies to the renewable fuel described in III.B.3(c)(i). However, we (1) Facilities That Meet the Definition of produced by the facility, and it is logical also seek comment on whether the ‘‘Reconstruction’’ Are Considered New to consider all of the equipment and volume of renewable fuel at a An alternative approach on which we structures at the facility involved in grandfathered facility should be allowed are seeking comment would consider producing the product in evaluating to increase above baseline volumes whether a facility is effectively a ‘‘new’’ when a grandfathered facility has been under this option. Specifically, facility with respect to the costs reconstructed. For these reasons, we increases in volume could be exempt incurred in maintaining the plant over believe that it would be reasonable to until such time as the entire plant is time. Starting in 2010, we would require apply the definition of ‘‘new’’ on a deemed to have been reconstructed. In facility owners to report annually plant-wide basis. Also, since upgrades, making such assessment and applying (specifically by January 31) to EPA the replacements and repairs will occur on the 50% test, the basis for the cost of a expenses for replacements, additions, an ongoing basis we would consider ‘‘comparable entirely new facility’’ and repairs undertaken at facilities since rebuilding or reconstruction to occur would be a facility with the original start up of the facility through the year over time as the accumulation of all baseline volume. For example, if an prior to reporting. The Agency would individual upgrades, replacements and existing plant has a 100 million gallon then determine whether the degree of repairs. per year capacity and expands its such activities warrants considering the The NSPS definition also requires that volume to 120 million gallons per year, facility as effectively ‘‘new’’. That it be ‘‘technologically and economically reconstruction would occur if the costs substantial rebuilding or modernization feasible for the reconstructed facility to incurred over time equal or exceed 50% may render an existing facility a new meet applicable standards that apply to of the cost of a comparable 100 million facility for regulatory purposes finds new facilities.’’ We do not think that gallon per year facility. analogies in other Clean Air Act EISA requires this additional Under this alternative option, owner/ regulatory programs. For example, consideration, and also do not believe operators or other responsible parties under the New Source Performance that there is any compelling public would be required to provide records of Standards (NSPS) equipment that has policy justification for allowing a costs incurred for additions, been ‘‘reconstructed’’ as defined in 40 reconstructed facility to continue to replacements, and repairs that have CFR 60.15 is considered new. make renewable fuel that does not meet Specifically, ‘‘reconstruction’’ is defined the 20% GHG reduction standard based 9 Kwiatkowski, J.R., McAloon, A., Taylor, F. Johnson, D. 2006. ‘‘Modeling the process and costs in 40 CFR 60.15 as ‘‘the replacement of upon a claim that it is technologically of fuel ethanol production by the corn dry-grind components of an existing facility to or economically infeasible. EPA’s process.’’ Industrial Crops and Products 23 (2006) such an extent that the fixed capital cost experience in the New Source Review 288–296. of the new components exceeds 50% of (NSR) program has demonstrated that it 10 We note that under NSPS the costs considered in determining whether the definition of the fixed capital cost that would be is extremely difficult to clearly define reconstruction has been met are restricted to the required to construct a comparable what the terms ‘‘technologically and capital costs of equipment and materials. The RFS2 entirely new facility. In addition to the economically feasible’’ mean. Aside program is authorized from EISA which does not NSPS program, regulations such as the from such definitional difficulties, rely on the definitions of ‘‘modification’’ and ‘‘routine maintenance and repair’’ that are in NSPS recently promulgated standards for however, and as discussed in Section and other new source programs (e.g., New Source locomotive and marine engines (73 FR III.B.3.c.ii(2) below, we believe that it is Review, National Emission Standards for Hazardous 25160; May 6, 2008) use a more technologically feasible to meet the 20% Pollutants). Since our application of the term encompassing concept of reconstruction GHG reduction and with proper ‘‘reconstruction’’ assumes that over time, renewable fuel facilities may become substantially rebuilt it is and consider a vessel to be new if it is planning would be economically so, as therefore appropriate to consider not only modified such that the value of the well. Therefore, this alternative option equipment replacements but some of the labor costs modifications exceeds 50% of the value would not require such a showing. associated with such replacements.

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occurred since start-up. Such records commenced construction or began As discussed in Section 1.5.1.3 of the would be provided on an annual basis operation. Under such option, the DRIA, per our conversations with to EPA by May 31, and would include grandfathered and deemed compliant builders of ethanol plants, the changes cumulative cost information up to the facilities would be subject to the 20% and upgrades would be made to prior year. GHG threshold starting on January 1, improve competitiveness which will We recognize that implementation of 2023. Renewable fuel produced from also improve operating and fuel a facility-wide definition of these facilities after this date would be efficiency, thus tending to improve ‘‘reconstruction’’ would be complex. required to comply with the 20% overall GHG performance of the plant. Records of costs since start-up may not threshold requirement in order to The high price of natural gas has many be available for older facilities. Also, generate RINs. ethanol plants considering alternative this alternative option requires EPA Based on our discussions with fuel sources. Greater biofuel availability enforcement staff to have sufficient companies that construct ethanol plants, and potential low life cycle green house financial knowledge and experience to we believe that facility owners will gas emissions incentives may further be able to evaluate the veracity of claims make decisions about equipment encourage ethanol producers to switch regarding various types of expenditures. replacements and technology upgrades from fossil fuels for process heat to Calculating the costs of repairs and that will continue to improve the overall biomass based fuels. In addition, replacements also poses challenges. operating costs and energy efficiency of ethanol producers may consider energy Specifically, as discussed above, we the plant which ultimately lead to saving changes to the ethanol seek comment on whether the costs of improvements in GHG emission production process. Several process routine maintenance and repair should performance as well. In particular, changes, including raw starch be included in such assessments. Were energy-intensive processes in the plant hydrolysis, corn fractionation, corn oil such costs to be included, the are likely to be replaced or upgraded to extraction, and membrane separation, determination of whether a replacement increase fuel and operating efficiency, are likely to be adopted to varying or a repair is routine may not always be thus reducing operating costs of the degrees. Since such changes would be straightforward. In addition to the plant, and increasing output. Nilles consistent with ultimately achieving the recordkeeping and implementation (2006) reports that the first line of next- 20% GHG reduction required of new issues, however, there is an important generation dry-grind ethanol plants was facilities, we believe it is reasonable to policy consideration that is also built with mild steel components and expect that the newly rebuilt facilities significant. As in the case of the NSR that in 10 or 15 years, those components could meet the 20% GHG reduction program, where many industry will need to be replaced entirely—most threshold, based on the results of a life representatives have argued that the likely with stainless steel. Of particular cycle analysis.15 program has a chilling effect on projects importance is that durable materials as We solicit further information and that could provide environmental well as weaker materials all require data, particularly evidence of the types benefits, the reconstruction approach in maintenance and replacement. As such, of replacements and ongoing this alternative option could also the components and equipment in maintenance that has occurred at provide a disincentive to ethanol facilities are designed to be existing plants and what is projected to implementation of safety and easily replaced and to allow simple occur in the future. We will evaluate environmental projects. Thus, this maintenance.11 such information along with other option could have the unintended Using cost data contained in the U.S. comments received during the public consequence of causing facilities to Department of Agriculture’s cost comment period. We also solicit refrain from investing in projects that estimation model for construction of comment on whether a period other will increase safety and efficiency and new ethanol plants described by than 15 years may be more appropriate. reduce emissions in order to avoid Kwiatkowski, J. et al (2006), we Under this approach, facilities that are triggering the 50% cost threshold. We calculated the cost of a replacement of exempted could expand their volume of seek comment on this issue. specific components in a hypothetical renewable fuel production, or could 12 13 100 million gallon ethanol facility. switch fuels or feedstocks within the 15 (2) Expiration Date of 15 Years for We assumed that all steel tanks are Exempted Facilities year exemption period without fear of replaced with stainless steel tanks, and losing their temporary exemption. The above discussion highlights that specific combustion equipment is While some of these activities have the potential complexities in implementing replaced. Combining replacement costs potential to worsen GHG emissions the option of considering reconstruction with maintenance, repairs, upgrades further below the 20% threshold of exempted facilities on a case-by-case and supply costs (at 2% of the capital requirement, we believe that the basis. These include potential disputes cost of the facility per year), we imposition of an expiration date will over how to calculate costs, as well as calculated that over 15 years, the result in modifications to facilities that verifying records of expenditures. In accumulated costs range from 50% to tend to increase the efficiency and GHG addition, that option has as a potential 75% of the capital cost of an equivalent performance of the plant rather than unintended consequence, a disincentive 14 facility. worsen them. The need for compliance for investment in projects that could with the 20% threshold requirement by improve safety, efficiency and 11 Nilles, D. 2006. ‘‘Time Testing’’; Ethanol a date certain would provide an environmental performance. As an Producer Magazine, May, Vol. 12, No. 5. 12 incentive for owners and operators of alternative to the case-by case approach Op Cit., Kwiatkowski, et al. (2006). described above, this option offers a 13 Note to Docket (EPA–HQ–OAR–2005–0161), ‘‘Analysis of Costs of Replacements and Repairs at replacement costs of individual components (steel practical way of implementing the a Hypothetical 100 MM GPY Ethanol Facility’’; tanks and the ring dryer) at about $13 million. reconstruction concept by establishing from Barry Garelick, Environmental Protection Ongoing maintenance costs are estimated at about an expiration date for all grandfathered Specialist, Assessment and Standards Division, $6 million per year. and deemed compliant facilities after a Office of Transportation and Air Quality; October 15 Unless and until EPA conducts facility specific 16, 2008. life cycle analyses, however, compliance with the period of 15 years from enactment of 14 The USDA model gives the installed capitol 20% GHG reduction threshold would be made on EISA (i.e., after December 31, 2022), cost of a 40 million GPY facility at approximately the basis of fuel pathways as described in Section regardless of when such facilities $60 million (2006 dollars). The model also gives III.D.2.

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such plants to ensure the changes they (3) Expiration Date of 15 Years for interpretations of the statute and make over time would bring them into Grandfathered Facilities and Limitation therefore seek comment on an compliance with the 20% requirement on Volume alternative that places no limitations on at the end of the 15 year period. We also seek comment on a hybrid the volume of renewable fuel from While the facilities built in 2008 and approach in which an expiration date of grandfathered or deemed compliant facilities. Under such option, ‘‘new 2009 would be in operation for less than 15 years is established for grandfathered facility’’ would be defined solely as a 15 years, the majority of ethanol plants and deemed compliant facilities, but new ‘‘greenfield’’ plant. will have been in operation for 15 years prior to then, the facilities’ exemption or longer. As discussed in Section V.B.1, from the 20% GHG threshold would be 4. Renewable Biomass With Land approximately 15 billion gallons of corn limited to their baseline volumes, as in Restrictions ethanol production capacity is currently the option described in Section III.B.3.c. As explained in Section III.B.1.a, online, idled or under construction. (4) ‘‘Significant Production Units’’ Are EISA lists seven types of feedstock that While some of these plants/projects are Defined as Facilities qualify as ‘‘renewable biomass’’: currently on hold due to the economy, 1. Planted crops and crop residue. We seek comment on an approach in we anticipate that this corn ethanol 2. Planted trees and tree residue. which ‘‘facility’’ would be defined on 3. Animal waste material and animal capacity will come online in the future the basis of ‘‘significant production under the proposed RFS2 program. And byproducts. units’’. For example, the regulations 4. Slash and pre-commercial the majority of these plants commenced regarding air toxic emissions for the thinnings. construction prior to 2008. We solicit miscellaneous organic chemical 5. Biomass obtained from the vicinity comment, however, on whether there manufacturing industry (which includes of buildings at risk from wildfire. should be a plant-specific expiration ethanol manufacturing plants) under 6. Algae. date of 15 years after commencement of NESHAPS (40 CFR 2440(c)) apply to 7. Separated yard or food waste. operations for deemed compliant miscellaneous chemical process units EISA limits not only the types of facilities that commenced construction and heat exchangers within a single feedstocks that can be used to make in 2008 or 2009. Under this sub-option, facility. This option, therefore, would renewable fuel, but also the land that the expiration date for such plants follow a similar approach, and treat as several of these renewable fuel would be 15 years from the time the new facilities subject to the 20% GHG feedstocks may come from. Specifically, facility began operation, per registration reduction requirement any new EISA’s definition of renewable biomass made by the owner of the facility. significant production units. incorporates land restrictions for The option of limiting the exemption Defining ‘‘facility’’ as a significant planted crops and crop residue, planted production unit would raise the period to 15 years or other specific time trees and tree residue, slash and pre- question of when an increase in volume period offers certainty to industry for a commercial thinnings, and biomass due to the addition of specific pieces of from wildfire areas. EISA does not 15 year period, and also certainty that equipment should be considered prohibit the production of renewable at the end of that time period they will augmenting current production lines as fuel feedstock that does not meet the be subject to the 20% GHG reduction opposed to being a new production line. definition of renewable biomass, nor threshold. This time period could be We solicit comment on this approach as does it prohibit the production of used by facility owners to ensure the well as how the term ‘‘significant renewable fuel from feedstock that does facility will ultimately meet the production unit’’ would need to be not meet the definition of renewable requirement. Finally, the option ensures defined in the regulations to avoid biomass. It does, however, prohibit the that investments made in equipment to ambiguity. Any incidental increases in generation of RINs for renewable fuel comply with RFS1 requirements are volume due to the addition of pieces of made from feedstock that does not meet protected with respect to being fully equipment that would not constitute a the definition of renewable biomass, depreciated for tax purposes.16 new ‘‘significant production unit’’ line which includes not meeting the Furthermore, this approach is easy to would continue to be grandfathered, as associated land restrictions. The implement, and avoids case-by-case would increases in volume associated following sections discuss the determinations that can extremely be with changes made to debottleneck the challenges of implementing the land time-consuming, contentious, and costly facility. restrictions contained in the definition for both industry and EPA. In addition, (5) Indefinite Grandfathering and No of renewable biomass and propose because the exemption expiration date Limitations Placed on Volume approaches for establishing a workable would apply to all facilities, this option implementation scheme. Under our basic option, described in would provide no incentive to delay a. Definitions of Terms modifications that increase energy Section III.B.3.c.i, we would interpret efficiency, safety, or improve the statutory language to mean that EISA’s descriptions of four feedstock expansions of grandfathered facilities types noted above—planted crops and environmental performance unlike the after enactment of EISA and which crop residue, planted trees and tree option described above involving case- expand volume beyond a plant’s residue, slash and pre-commercial by-case consideration of reconstruction. inherent capacity are not among those thinnings, and biomass from wildfire that qualify for an exemption from the areas—contain terms that can be 16 Specifically, Table B–2 of IRS Publication 946, 20% GHG reduction requirement. interpreted in multiple ways. The ‘‘How To Depreciate Property’’ provides class lives Otherwise, a facility that qualifies for following sections discuss our proposed and recovery periods for use in computing grandfathering could be expanded by interpretations for many of the terms depreciation for asset classes categorized by SIC any amount, and the additional volume contained in EISA’s definition of codes. Ethanol facilities (which are in SIC 28, Manufacture of Chemical and Allied Products) is would also receive protection. We do renewable biomass. In developing this given a class life of 10 years. For facilities that not believe that this was the intent of proposal, we consulted many sources, qualify for Modified Accelerated Cost Recovery the language in EISA. Nevertheless, we including the USDA, as well as System (MACRS), the period is 7 years. recognize that there are alternative stakeholder groups, in order to

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determine the range of possible of invasive species control or fire production for at least three years prior interpretations for these different terms. management. In that context ‘‘crop to entering the program. For this reason, We have made every attempt to define residue’’ would include any biomass we believe it is appropriate to propose these terms as consistently with USDA removed from agricultural land that that CRP land be included under the and industry standards as possible, facilitates crop management, whether or rubric of agricultural land. while keeping them workable for not the crop itself is part of the residue. In addition, we seek comment on purposes of program implementation. Our proposed regulations would whether rangeland should be included We seek comment on our proposed restrict planted crops and crop residue as agricultural land under RFS2. definitions of important terms in the to that harvested from existing Rangeland is land on which the following sections. agricultural land. With respect to what indigenous or introduced vegetation is land would qualify as agricultural land, predominantly grasses, grass-like plants, i. Planted Crops and Crop Residue we first turned to the mutually forbs or shrubs and which—unlike The first type of renewable biomass exclusive categories of land defined by cropland or pastureland—is described in EISA is planted crops and USDA’s Natural Resources Conservation predominantly managed as a natural crop residue harvested from agricultural Service (NRCS) in its annual Natural ecosystem. Given the relative lower land cleared or cultivated at any time Resources Inventory (NRI), a statistical degree of management of such lands, it prior to December 19, 2007, that is survey designed to estimate natural is questionable whether any rangeland either actively managed or fallow, and resource conditions and trends on non- should qualify as ‘‘actively managed’’ nonforested. We propose to interpret the federal U.S. lands.17 The categories used under EISA (a general discussion on our term ‘‘planted crops’’ to include all in the NRI are cropland, pastureland, proposed interpretation of the term annual or perennial agricultural crops rangeland, forest land, Conservation ‘‘actively managed’’ is presented later in that may be used as feedstock for Reserve Program (CRP) land, federal this section). On the other hand, we renewable fuel, such as grains, oilseeds, land, developed land, and ‘‘other rural understand that there is frequently some and sugarcane, as well as energy crops, land.’’ We have chosen to include in our degree of management on such lands, such as switchgrass, prairie grass, and proposed definition of agricultural land such as controlling invasive species, other species, providing that they were three of these land categories— managing grazing rates, fencing, etc. intentionally applied to the ground by cropland, pastureland, and CRP land. Therefore, we believe that there may humans either by direct application as Using the NRI descriptions of these land be merit in allowing planted crops and seed or nursery stock, or through types as models, we developed crop residue from rangeland to qualify intentional natural seeding by mature definitions for these land types for this as renewable biomass under this plants left undisturbed for that purpose. proposal. program. This would allow, for Many energy crops that could be used We propose to define cropland as example, existing switchgrass or native for cellulosic biofuel production, land used for the production of crops for grasses on rangeland to be used for especially perennial cover plants, are harvest, including cultivated cropland renewable fuel production that qualifies currently grown in the U.S. without for row crops or close-grown crops and for RIN generation under this program. significant agronomic inputs such as non-cultivated cropland for However, we are not proposing to fertilizer, pesticides, or other chemical horticultural crops. Corn, wheat, barley, include rangeland as agricultural land treatment. These crops may be and soybeans are renewable fuel due to our own implementation introduced or indigenous to the area in feedstocks that would be grown on concerns as well as issues raised by which they grow, and may have been cropland. We propose to define stakeholders over the potential for originally planted decades ago. We pastureland as land managed primarily providing any incentive for increased propose to include this type of for the production of indigenous or crop production in rangeland areas. We vegetation as a planted crop with the introduced forage plants for livestock seek comment on the issue and on the recognition that it may include some grazing or hay production, and to points raised in the following plants that were intentionally naturally prevent succession to other plant types. discussion. generated, i.e., resulted from natural Under this proposed definition, land Allowing rangeland to qualify as seeding from existing plants, and not would qualify as pastureland if it is agricultural land under RFS2 would planted through direct human maintained for grazing or hay make millions of acres of additional intervention. We believe that given the production and not allowed to develop non-cropland, non-forested land qualify increasing importance under RFS2 of greater ecological diversity. Switchgrass for renewable fuel feedstock production biofuels produced from cellulosic is one example of a renewable fuel in the U.S. This additional land could feedstocks, such as switchgrass and feedstock that could be grown on be important to support future other grasses, such a definition is pastureland. expansion of dedicated energy crops, appropriate. We note that because EISA We also propose that CRP land be such as switchgrass and tall prairie contains specific provisions for planted counted as ‘‘agricultural land’’ under grass, which currently grow or could trees and tree residue from tree RFS2. The CRP is administered by grow on such lands. The availability of plantations, we propose that the USDA’s Farm Service Agency and is rangeland could alleviate some of the definition of planted crops in EISA designed to promote restoration of competition on cropland and exclude planted trees, even if they may environmentally sensitive lands by pastureland for space to grow crops for be considered planted crops under some offering annual rental payments in biofuel feedstocks, thereby allowing circumstances. return for removing land from continued growth of food crops on land We further propose that ‘‘crop cultivation over a period of several best suited for that specific purpose. It residue’’ be limited to the residue left years. To qualify for the CRP, land had would also provide rangeland owners over from the harvesting of planted to have been used for agricultural with the potential for increased crops, such as corn stover and sugarcane revenues from their lands by producing bagasse. However, we seek comment on 17 Natural Resource Conservation Service, USDA, feedstocks for renewable fuel, and an alternative interpretation that would ‘‘Natural Resources Inventory 2003 Annual NRI,’’ decrease the pressure for such lands to February 2007. Available at http:// include as crop residue biomass from www.nrcs.usda.gov/technical/NRI/2003/Landuse- be converted to cropland for food crop agricultural land removed for purposes mrb.pdf. production.

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However, we recognize that rangeland believe that evidence of past intensive agricultural land cleared or cultivated is a term that can be used to describe a use and management of rangeland may prior to enactment of EISA, but also that wide variety of ecosystems, including be considerably more rare, and the land was not previously pastureland certain grasslands, savannas, wetlands, considerably less definitive, than for or rangeland that had been converted to deserts, and even tundra. These types of other types of agricultural land. In cropland after enactment of EISA. If it ecosystems represent land that at best addition, given the continuous, open was, it would not qualify as renewable could serve only marginally well for nature of some rangeland, there would biomass. We are concerned that adding producing renewable fuel feedstocks, likely be difficulty in identifying the this additional feedstock verification and at worst could suffer significantly if precise boundaries of a parcel of criterion to those already contained in intensive agricultural practices were qualifying rangeland. EPA seeks this proposal could render the program imposed upon them for purposes of comment on these issues. unworkable and unenforceable. producing crops. We also recognize that We thus seek comment on whether or However, we invite comment on this if we were to include rangeland as not we should include rangeland in the option, and specifically request agricultural land under RFS2, there is a definition of ‘‘existing agricultural land’’ comment on how this option could be risk that some rangeland, including in the final RFS2 program, as well as implemented in a workable and native grasslands and shrublands, could comment on whether or not the benefits enforceable manner. be converted to produce monoculture of including rangeland exceed the In keeping with the statutory crops. We raise these concerns for two disadvantages. We also seek comment definition for renewable biomass, we reasons. First, certain rangeland cannot on how best to define rangeland, and propose to include in our definition of be used sustainably for agricultural crop whether we can define rangeland in a existing agricultural land the production, and any such short-term use meaningful way such that sensitive requirement that the land was cleared or could seriously diminish the long-term ecosystems that may generally be cultivated prior to December 19, 2007, potential of these lands to be used for described as rangeland can be protected and that, since December 19, 2007, it less-intensive forage production or even from cultivation for renewable fuel has been continuously actively managed to return to their previous ecological feedstock production. (as agricultural land) or fallow, and state. Second, conversion of relatively Furthermore, EPA solicits comment nonforested. We believe the language undisturbed rangeland to the on an alternative option that would ‘‘cleared or cultivated at any time’’ prior production of annual crops could in include rangeland as agricultural land, to December 19, 2007, describes most some cases result in large releases of but that would interpret the EISA cultivable land in the U.S., since so GHGs that have been stored in the soil. ‘‘actively managed’’ criterion in the much of the country’s native forests and EPA believes that Congress enacted the renewable biomass definition (again, grasslands were cleared in the 17th, discussed later in this section) to limit renewable biomass definition in part to 18th, and 19th centuries, if not before, the types of planted crops or crop minimize GHG releases from land for agriculture. We further believe that residues from specific parcels of land conversion, a goal that could be land that was cropland, pastureland, or that can qualify as renewable biomass undermined by conversion of rangeland CRP land on December 19, 2007, would by reference to the type of management to intensive crop production under automatically satisfy this particular (cropland, pastureland, or rangeland) RFS2. On the other hand, it may be criterion, and that therefore it is not of being practiced on the date EISA was argued that while GHGs would be significant concern from an enacted. For example, if at some point implementation or enforcement emitted initially, planting dedicated in the future corn or other row crops are perspective. energy crops rather than food crops on grown on land that was pastureland or In the event that we were to include such land could yield more positive rangeland when EISA was enacted, such rangeland as agricultural land under the than negative results over time. Such row crops would not qualify as final RFS2 program, satisfying the could be the case if the alternative were renewable biomass under RFS2. This ‘‘cleared or cultivated’’ criterion could to grow energy crops on cropland, approach could thus reduce the pose significant challenges. Some consequently displacing food crops to incentives for pastureland and rangeland has never been cleared or other lands, either in the U.S. or abroad. rangeland owners to convert their land cultivated, or may have been cleared or This displacement could lead to overall to cropland. We believe that this cultivated prior to December 19, 2007, higher direct and indirect GHG approach could have less environmental but no evidence exists to confirm this. emissions. EPA solicits comment on the harm than allowing unrestricted use of Therefore, we could not assume that it potential GHG effects if rangeland were qualifying rangeland for the production would necessarily meet the ‘‘cleared or included as eligible agricultural land of crops for renewable fuel production. cultivated’’ criterion. For instance, under RFS2. We are especially While our proposed implementation grasslands in the Midwest and West that interested in data that could help us to approach and alternatives are presented during the Dust Bowl of the 1930s had quantify such impacts. later in this section, it is important to been used for cultivation could meet While enforcement of the overall note here that the principal drawback to this criterion, but other western renewable biomass provisions under the this alternative option involves its grasslands and prairies used for cattle final RFS2 program is expected to be implementation and enforcement. This grazing may not. We seek comment on challenging, it is possible that including approach would require that land types how best to verify that rangeland to be rangeland as qualifying agricultural land (again, cropland, pastureland, or used for renewable fuel feedstock under the RFS2 program would increase rangeland) be identified as of the date of production was cleared or cultivated at enforcement complexity. As discussed EISA enactment in order to determine some point prior to December 2007. We later in this section, in order to qualify which feedstocks grown on such land also seek comment on whether the as renewable biomass under RFS2, would qualify as renewable biomass. In challenge associated with applying this agricultural products must come from practical terms, such an approach may criterion to rangeland is sufficient agricultural land that was cleared or mean, for example, that a renewable fuel (alone or combined with the concerns cultivated at any time prior to producer would need to be able to raised earlier about the inclusion of enactment of EISA, and either actively identify not only whether a given rangeland in the definition of managed or fallow, and nonforested. We shipment of corn was grown on agricultural land) to exclude rangeland

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from the final definition of agricultural an agricultural certification program. period after which land that is not land. Examples of government programs or actively managed for agricultural We believe that the more restrictive, product certification programs that purposes should be considered to have and therefore more important, criteria is would indicate active agricultural land been abandoned for agriculture (and not whether agricultural land is actively management include USDA’s certified eligible for renewable biomass managed or fallow, and nonforested, per organic program or the Federal Crop production under RFS2), as opposed to the statutory language. We propose to Insurance program. being left fallow. If specifying such a interpret the phrase ‘‘that is actively We realize that it may be difficult to time limit is appropriate, we seek managed or fallow, and nonforested’’ as conclude that certain land has been comment on what the time period meaning that land must have been actively managed continuously since should be, and if there should be a actively managed or fallow, and December 2007 based solely on the distinction between allowable fallow nonforested, on December 19, 2007, and existence of receipts for fertilizer or periods for different types of continuously thereafter in order to seed. However, we have included sales agricultural land. qualify for renewable biomass and purchasing records in the list of Finally, in order to define the term production. We believe this written documentation that could be ‘‘nonforested,’’ we first propose to interpretation of the legislative language used to indicate active management due define the term ‘‘forestland’’ as is reasonable and appropriate for the to the fact that there may be qualifying generally undeveloped land covering a following reason. The EISA language land that is not registered with any minimum area of 1 acre upon which the uses the present tense (‘‘is actively formal agricultural program, for which predominant vegetative cover is trees, managed * * *’’) rather than the past the owner does not receive government including land that formerly had such tense to describe qualifying agricultural benefits, and for which no written tree cover and that will be regenerated. land. We interpret this language to mean management plan exists (or existed as of We are also proposing that forestland that at the time the planted crops or December 2007). We believe this may be would not include tree plantations. crop residue are harvested (i.e., now or the case especially for pastureland from Under this proposal, ‘‘nonforested’’ land at some time in the future), the land which no crops are harvested or sold. would be land that is not forestland. We from which they come must be actively Other evidence that could be used believe this definition is sufficient to managed or fallow, and nonforested. regarding the consistent management of make distinctions between forestland However, assuming that the land was pastureland since December 2007 are and land that is considered nonforested cleared or cultivated at some point in records associated with the sale of in the field. However, we seek comment time, then any land converted to livestock that grazed on the land. We on whether we should incorporate into agricultural land after December 19, seek comment on our proposal to our definition of forestland more 2007, and used to produce crops or crop include relevant records of sales and quantitative descriptors, such as a residue would inherently meet the purchasing as adequate documentation minimum percentage of canopy cover or definition of ‘‘is actively managed or to prove that land was actively managed minimum or maximum tree height, to fallow, and nonforested,’’ and the EISA since December 2007 and whether there help clarify what would be considered land restriction for planted crops and may be other records, such as tax or forestland. For example, the NRI crop residue would have little meaning insurance records, which could satisfy definition of forestland includes a (except in cases where it could be this requirement more effectively. minimum of twenty-five percent canopy established that the land in question The term ‘‘fallow’’ is generally used to cover. We also seek comment on had never been cleared or cultivated). describe cultivated land taken out of whether the one-acre minimum size We believe that in order for this production for a finite period of time. designation is appropriate. provision to have meaning, we must We believe it may be argued that fallow ii. Planted Trees and Tree Residue require that agricultural land remain land is actively managed land because ‘‘continuously’’ either actively managed there is a clear purpose or goal for The definition of renewable biomass or fallow, and nonforested, since taking the land out of production for a in EISA includes planted trees and tree December 19, 2007. In this way, the period of time (e.g., to conserve soil residue from actively managed tree upper bound on acreage that qualifies moisture). Nonetheless, because the plantations on non-federal land cleared for planted crop and crop residue EISA language clearly identifies a at any time prior to December 19, 2007, production under RFS2 would be difference between actively managed including land belonging to an Indian limited to existing agricultural land— agricultural land and fallow agricultural tribe or an Indian individual, that is cropland, pastureland, or CRP land—as land, we propose to define fallow to held in trust by the United States or of December 19, 2007, and the phrase mean agricultural land that is subject to a restriction against alienation ‘‘is actively managed or fallow, and intentionally left idle to regenerate for imposed by the United States. We nonforested’’ would be interpreted in a future agricultural purposes, with no propose to define the term ‘‘planted meaningful way. seeding or planting, harvesting, trees’’ to include not only trees that We propose that ‘‘actively managed’’ mowing, or treatment during the fallow were established by human intervention would mean managed for a period. While fallow agricultural land is such as planting saplings and artificial predetermined outcome as evidenced by characterized by a lack of activity on the seeding, but also trees established from any of the following: sales records for land, we believe that the decision to let natural seeding by mature trees left planted crops, crop residue, or land lie fallow is made deliberately and undisturbed for such a purpose. We livestock; purchasing records for land intentionally by a land owner or farmer understand that, depending on the treatments such as fertilizer, weed such that there should be particular conditions at a plantation, control, or reseeding; a written documentation of such intent. We seek certain trees in a stand may be management plan for agricultural comment on this assumption and on harvested, while others are maintained, purposes; documentation of whether there are other means of for the express purpose of naturally participation in an agricultural program verifying whether land was fallow, regenerating new trees. We believe that sponsored by a Federal, state or local particularly as of December 2007. We trees established in such a fashion, and government agency; or documentation also seek comment on whether we which meet the conditions for planted of land management in accordance with should specify in the regulations a time trees in every other way, should not be

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excluded from qualifying as renewable purposes; documentation of desirable trees. We seek comment on biomass under RFS2. participation in a silvicultural program whether our definition of pre- Rather than using the term ‘‘tree sponsored by a Federal, state or local commercial thinnings should include a residue,’’ we propose to use the term government agency; or documentation maximum diameter and, if so, what the ‘‘slash’’ in our regulations as a more of land management in accordance with appropriate maximum diameter should descriptive, but otherwise synonymous, an agricultural or silvicultural product be. term. According to the Dictionary of certification program. Silvicultural We understand that the State Natural Forestry (1998, p. 168), slash is ‘‘the programs such as those of the Forest Heritage Programs referred to in EISA residue, e.g., treetops and branches, left Stewardship Council, the Sustainable are those comprising a network on the ground after logging or Forestry Initiative, the American Tree associated with NatureServe, a non- accumulating as a result of a storm, fire, Farm System, or USDA are examples of profit conservation and research girdling, or delimbing.’’ We believe that the types of programs that could organization. The network includes this substitution will simplify our indicate actively managed tree local programs in each of the 50 United regulations, since paragraph (iv) of the plantations. States, other U.S. territories and regions EISA definition of renewable biomass including the Navajo Nation and also uses the term ‘‘slash.’’ Furthermore, iii. Slash and Pre-Commercial Tennessee Valley Authority, eleven the term ‘‘slash’’ is a common term that Thinnings Canadian provinces and territories, and has a specific meaning to industry. As The EISA definition of renewable eleven Latin American countries. noted earlier, we have attempted to biomass includes slash and pre- Individual Natural Heritage Programs define terms in RFS2 using existing and commercial thinnings from non-federal collect, analyze, and distribute scientific commonly understood definitions to the forestlands, including forestlands information about the biological extent possible. The term ‘‘slash’’ is belonging to an Indian tribe or an Indian diversity found within their more descriptive than ‘‘tree residue,’’ individual, that are held in trust by the jurisdictions. As part of their activities, and yet in practice means the same United States or subject to a restriction these programs survey and apply thing, so we are proposing to use it against alienation imposed by the NatureServe’s rankings, such as rather than ‘‘tree residue.’’ We also United States. It excludes slash and pre- critically imperiled (S1), imperiled (S2), propose to clarify that slash can include commercial thinnings from forests or and rare (S3) to species and ecological tree bark and can be the result of any forestlands that are ecological communities within their respective natural disaster, including flooding. communities with a global or State borders. NatureServe meanwhile uses In concert with our proposed ranking of critically imperiled, data gathered by these Natural Heritage definition for ‘‘planted trees,’’ we imperiled, or rare pursuant to a State Programs to apply its global rankings, propose to define a ‘‘tree plantation’’ as Natural Heritage Program, old growth such as critically imperiled (G1), a stand of no fewer than 100 planted forest, or late successional forest. imperiled (G2), or vulnerable (the trees of similar age and comprising one As described in Sec. III.B.4.a.i of this equivalent of the term ‘‘rare,’’ or G3), to or two tree species, or an area managed preamble, our proposed definition of species and ecological communities for growth of such trees covering a ‘‘forestland’’ is generally undeveloped found in multiple States or territories. minimum of 1 acre. Given that only land covering a minimum area of 1 acre We propose to prohibit slash and pre- trees from a tree plantation may be used upon which the primary vegetative commercial thinnings from all forest as renewable biomass under RFS2, we species are trees, including land that ecological communities with global or believe that the definition should be formerly had such tree cover and that State rankings of critically imperiled, clear and easily applied in the field. We will be regenerated. Also as noted in imperiled, or vulnerable (‘‘rare’’ in the recognize that this proposed definition Sec. III.B.4.a.ii of this preamble, we case of State rankings) from being used is more specific than the Dictionary of propose to adopt the definition of slash for renewable fuel for which RINs may Forestry’s definition of ‘‘tree listed in the Dictionary of Forestry. As be generated under RFS2. We seek plantation,’’ which is ‘‘a stand for ‘‘pre-commercial thinnings,’’ the comment on our interpretation that the composed primarily of trees established Dictionary of Forestry defines the act of statutory language implies including by planting or artificial seeding.’’ We such thinning as ‘‘the removal of trees global rankings determined by seek comment on all aspects of our not for immediate financial return but to NatureServe, including the ranking of proposed definition of tree plantation. reduce stocking to concentrate growth vulnerable (G3), in the land restrictions We also propose to apply the same on the more desirable trees.’’ 18 Because under RFS2 since State Natural Heritage management restrictions on tree what may now be considered pre- Programs, which were explicitly plantations as on agricultural land and commercial may eventually be saleable referenced in EISA, do not establish to interpret the EISA language as as renewable fuel feedstock, we propose global rankings. requiring that to qualify for renewable not to include any reference to The various state-level Natural biomass production under RFS2, a tree ‘‘financial return’’ in our definition, but Heritage Programs in the U.S. and plantation must have been cleared at rather to define pre-commercial abroad differ in organizational any time prior to December 19, 2007, thinnings as those trees removed from a affiliation, with some operated as and continuously actively managed stand of trees in order to reduce agencies of state or provincial since December 19, 2007. Similar to our stocking to concentrate growth on more government and others residing within proposal for actively managed desirable trees. We propose to include universities or non-profit organizations. agricultural land, we propose to define diseased trees in the definition of pre- According to the NatureServe Web site, the term ‘‘actively managed’’ in the commercial thinnings due to the fact ‘‘consistent standards for collecting and context of tree plantations as managed that they can threaten the integrity of an managing data allow information from for a predetermined outcome as otherwise healthy stand of trees, and different programs to be shared and evidenced by any of the following: Sales their removal can be viewed as reducing combined regionally, nationally, and records for planted trees or slash; stocking to promote the growth of more internationally. The nearly 800 staff purchasing records for seeds, seedlings, from across the network are experts in or other nursery stock; a written 18 Helms, John, ed. ‘‘The Dictionary of Forestry.’’ their fields, and include some of the management plan for silvicultural Bethesda, MD: Society of American Foresters, 2003. most knowledgeable field biologists and

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conservation planners in their regions.’’ To complete the definition of A great deal of work has been done to Different Natural Heritage Programs ‘‘ecologically sensitive forestland,’’ we identify communities and areas on the have different processes for initiating propose to include old growth and late landscape in the vicinity of public lands and performing surveys of ecological successional forestland which is that are at risk of wildfire by States in communities. In many cases, the characterized by trees at least 200 years cooperation and consultation with the programs respond to requests for old.19 We seek comment on this U.S. Forest Service, Bureau of Land environmental reviews or surveys from definition, including the proposed 200- Management, and other federal, State, parties interested in specific locations, year tree age, on whether we should and local agencies and tribes. In order oftentimes for a fee. They do not make specify a process for determining when to take advantage of this work, we seek available for public consumption a forest is ‘‘characterized by’’ trees of comment on two possible detailed information on the location of this or another age, and on other ways implementation alternatives. The first a ranked ecological community in some to identify old growth or late alternative would incorporate into our cases to protect the communities successional forestland. definition of ‘‘areas at risk of wildfire’’ themselves and in other cases to protect any communities identified as iv. Biomass Obtained From Certain private property interests. Additionally, ‘‘communities at risk’’ through a process Areas at Risk From Wildfire the datasets maintained by different defined within the ‘‘Field Guidance— Natural Heritage Programs may not The EISA definition of renewable Identifying and Prioritizing completely represent all of the biomass includes biomass obtained from Communities at Risk’’ (National vulnerable ecological communities in the immediate vicinity of buildings and Association of State Foresters, June their respective States or territories other areas regularly occupied by 2003) and covered by a community simply due to the fact that surveys have people, or of public infrastructure, at wildfire protection plan (CWPP) not been performed for all areas. risk from wildfire. We propose to clarify developed in accordance with NatureServe, however, interacts with in the regulations that ‘‘biomass’’ is ‘‘Preparing a Community Wildfire each of the State Natural Heritage organic matter that is available on a Protection Plan—A Handbook for Programs to update their central renewable or recurring basis, and that it Wildland-Urban Interface database to include each State program’s must be obtained from within 200 feet Communities’’ (Society of American ecological community rankings. We of buildings, campgrounds, and other Foresters, March 2004) and certified by propose to use data compiled by areas regularly occupied by people, or of a State Forester or equivalent. We NatureServe and published in a special public infrastructure, such as utility believe that it may make sense to report to identify ‘‘ecologically sensitive corridors, bridges, and roadways, in include communities with CWPPs in forestland.’’ The report would list all areas at risk of wildfire. We propose to the definition of ‘‘areas at risk of forest ecological communities in the define ‘‘areas at risk of wildfire’’ as areas wildfire’’ since they represent specific U.S. with a global ranking of G1, G2, or located within—or within one mile of— areas around the U.S. that are identified G3, or with a State ranking of S1, S2, or forestland, tree plantations, or any other and agreed upon through a public S3, and would include descriptions of generally undeveloped tract of land that process that includes local and state the key geographic and biologic is at least one acre in size with representatives, federal agencies, and attributes of the referenced ecological substantial vegetative cover. stakeholders. Additionally, CWPP community. The document would be It is our understanding that 100 to 200 guidelines indicate that normally three incorporated by reference into the entities must mutually agree to the definition of renewable biomass in the feet is the minimum distance contents of the CWPPs: The applicable final RFS2 regulations, and the effect recommended for clearing trees and local government, the local fire would be to identify specific ecological brush away from homes and other department or departments, and the communities from which slash and pre- property in certain wildfire-prone areas, 20 state entity responsible for forest commercial thinnings could not be used depending on slope and vegetation. management (State Forester or as feedstock for the production of We propose that under RFS2, the term equivalent). As of June 2008, there were renewable fuel that would qualify for ‘‘immediate vicinity’’ would mean roughly 52,000 total ‘‘communities at RINs under RFS2. In the future, it may within 200 feet of a given structure or risk’’ and 5,000 ‘‘communities at risk’’ be necessary to update this list as area, but we seek comment on the covered by a CWPP. appropriate through notice and appropriateness of limiting the distance comment rulemaking. to within 100 feet. We seek comment on incorporating by We will place a draft version of this reference into the final RFS2 regulations document in the docket for the 19 Old-growth forest is defined in the Dictionary a list of ‘‘communities at risk’’ with an proposed rule as soon as it is available. of Forestry as ‘‘the (usually) late successional stage approved CWPP. Similar to the of forest development. Note: Old-growth forests are document proposed for Natural Heritage EPA solicits comment both on this defined in many ways; generally, structural general incorporation-by-reference characteristics used to describe old-growth forests Rankings, this document would be approach and on each individual listing include (a) live trees: Number and minimum size incorporated by reference into the in the document. We also seek comment of both seral and climax dominants, (b) canopy definition of ‘‘areas at risk of wildfire’’ conditions: Commonly including multilayering, (c) in the final RFS2 regulations. Because on whether EPA should include in the snags: Minimum number of specific size, and (d) document forest ecological communities down logs and coarse woody debris: Minimum this list does not currently exist, EPA outside of the 50 United States (such as tonnage and numbers of pieces of specific size. would be required to seek data from in Canada or Latin American countries) Note: Old-growth forests generally contain trees that each State in order to assemble the that have natural heritage rankings of are large for their species and site and sometimes document. The effect of this decadent (overmature) with broken tops, often a G1, G2, or G3 or S1, S2, or S3. In variety of trees sizes, large snags and logs, and a incorporation by reference would be to addition, we request comment on other developed and often patchy understory * * *.’’ identify specific areas in the U.S. at risk ways that EPA may be able to provide 20 See Cohen, Jack. ‘‘Reducing the Wildland Fire of wildfire and from which biomass the protections that Congress intended Threat to Homes: Where and How Much?’’ USDA obtained from the immediate vicinity of Forest Service Gen.Tech.Rep. PSW–GTR–173. 1999. for important ecological communities See also U.S. Federal Emergency Management buildings and other areas regularly with state-level rankings pursuant to a Agency (FEMA) Web site http://www.fema.gov/ occupied by people, or of public State Natural Heritage Program. hazard/wildfire/index.shtm. infrastructure, could be easily identified

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and documented as renewable biomass. program is to ensure that renewable discussed in Section III.B.4.d of this In the future, it may be necessary to fuels are only allowed to participate in preamble. update this list as appropriate through the program if the feedstocks from ii. Ensuring That RINs Are Generated for notice and comment rulemaking. which they were made come from All Qualifying Renewable Fuel The second implementation approach certain types of land. In the context of on which we seek comment would our regulatory program, this means that Under RFS1, virtually all renewable incorporate into our definition of ‘‘areas RINs could only be generated if it can fuel is required to be assigned a RIN by at risk of wildfire’’ any areas identified be established that the feedstock from the producer or importer. This as wildland urban interface (WUI) land, which the fuel was made came from requirement was developed and or land in which houses meet wildland these types of lands. Otherwise, no RINs finalized in the RFS1 rulemaking in vegetation or are mixed with vegetation. could be generated to represent the order to address stakeholder concerns, The concept of the WUI was established renewable fuel produced or imported. particularly from obligated parties, that as part of the Healthy Forests We have considered the possibility the number of available RINs should Restoration Act (Pub. L. 108–148) which that land restrictions contained within reflect the total volume of renewable provided a means for prioritizing, the definition of renewable biomass may fuel used in the transportation sector in planning, and executing hazardous fuels not, in practice, result in a significant the U.S. and facilitate program reduction projects on federal lands. change in agricultural practices. For compliance. The only circumstances SILVIS Lab, in the Department of Forest example, a farmer wishing to expand his under which a batch of fuel is not Ecology and Management and the production by cutting forested land assigned a RIN in RFS1 is if the University of Wisconsin, Madison, has, could grow feedstock for renewable fuel feedstock used to produce the fuel is not with funding provided by the U.S. on his existing agricultural land and among those listed in the regulatory definition of renewable fuel at Forest Service, mapped WUI lands move production for food, animal feed, § 80.1101(d), the producer or importer based on data from the 2000 U.S. and fiber production to newly cultivated of the fuel produces or imports less than Census and U.S. Geological Survey land. While the EISA language is fairly 10,000 gallons per year, or the fuel is National Land Cover Data.21 We seek clear about what lands may be used for produced and used for off-road or other comment on whether and how best to harvesting renewable fuel feedstocks, it non-motor vehicle purposes. As a result, make use of this WUI map and data to does not specifically address the we believe that almost all renewable help implement the land restrictions for potential for switching non-feedstock fuel produced or imported into the U.S. biomass obtained from areas at risk of crops to new lands. Our proposed is assigned RINs under the RFS1 wildfire under RFS2. options recognize the potential for this program, and thus the number of RINs b. Issues Related to Implementation and behavior but do not attempt to prohibit available to obligated parties represents Enforceability it as we believe doing so would be as accurately as possible the volume of beyond our mandate under EISA. EPA Incorporating the new definition of renewable fuel being used in the U.S. believes that Congress would have transportation sector. renewable biomass into the RFS2 specifically directed EPA to regulate program raises issues that we did not EISA has dramatically increased the this practice if they intended EPA to do mandated volumes of renewable fuel have to consider when designing the so. RFS1 program. Under RFS1, the source that obligated parties must ensure are Another major issue we have produced and used in the U.S. At the of a renewable fuel feedstock was not a considered is the treatment of central concern, and it was a relatively same time, EISA makes it more difficult domestically produced renewable fuel for renewable fuel producers to straightforward matter to require all fuel feedstocks versus imported feedstocks made from specified renewable demonstrate that they have fuel that and imported renewable fuel, since the qualifies for RIN generation by feedstocks to be assigned RINs. new EISA language does not distinguish However, with the terms ‘‘renewable restricting qualifying renewable fuel to between domestic renewable fuel that made from ‘‘renewable biomass,’’ fuel’’ and ‘‘renewable biomass’’ being feedstocks and renewable fuel and defined differently under EISA, we must defined to include restrictions on the feedstocks that come from abroad. types of land from which feedstocks consider potential issues related to Under RFS1, RINs must be generated for implementation and enforcement to may be harvested, as discussed in this imported renewable fuel by the section. The inclusion of such land ensure that renewable fuel for which renewable fuel importer. Foreign RINs are generated is produced from restrictions under RFS2 may mean that, renewable fuel producers may not in some situations, a renewable fuel qualifying renewable biomass. participate as producers in the program Our proposed approach to the producer would prefer to forgo the (i.e., may not generate RINs for their treatment of renewable biomass under benefits of RIN generation to avoid the fuel) unless they produce cellulosic RFS2 is intended to define the cost and difficulty of ensuring that its biomass or waste-derived ethanol and conditions under which RINs can be feedstocks qualify for RIN generation. If register with EPA. Because RFS1 does generated as well as the conditions a sufficient number of renewable fuel not define renewable fuel by its source, under which renewable fuel can be producers acted in this way, it could assigning RINs to imported renewable produced or imported without RINs. lead to a situation in which not all fuel under RFS1 is a straightforward Both of these areas are described in qualifying fuel is assigned RINs, thus responsibility of the importer. more detail below. resulting in a short RIN market that However, under RFS2, ensuring that could force obligated parties into non- i. Ensuring That RINs Are Generated the feedstock used to produce imported compliance. Another possible outcome Only for Fuels Made From Renewable renewable fuel meets the definition of would be that the demand for and price Biomass renewable biomass presents additional of RINs would increase significantly, The effect of adding EISA’s definition challenges to designing a program that making compliance by obligated parties of renewable biomass to the RFS can apply to both domestic and more costly and difficult than necessary imported renewable fuel. The options and raising prices for consumers. 21 See http://silvis.forest.wisc.edu/projects/ contained in today’s proposal attempt to In order to avoid situations in which US_WUI_2000.asp. address this additional constraint, as obligated parties cannot comply with

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their annual RVOs and the volume renewable biomass definition has been ii. Third-Party Programs mandates in EISA are not met, or met for their feedstocks. That is, by To inform our options for how we instances where the requirements are having the flexibility to sell RINs might verify and track renewable met but at an inflated price, we believe independent from volume, producers biomass, we also explored non- that our proposal should ensure that could potentially command higher governmental, third-party verification RINs are generated for all fuel made prices for those RINs. This would make programs used for certifying and from feedstock that meets the definition RINS more valuable to them, and tracking agricultural and forest products of renewable biomass and which meets provide an incentive to generate as from point of origin to point of use both the GHG emissions reduction thresholds many RINs as possible. As a result, within the U.S. and outside the U.S. The set out in EISA. This would require producers would be motivated to United Kingdom and the EU are looking eliminating any incentive for renewable demonstrate that their feedstocks meet to such third-party verification fuel producers to avoid ascertaining programs to implement the where their feedstocks come from. As the renewable biomass definition. sustainability provisions of their described in Section III.B.4.d below, we However, this approach could also biofuels programs. There is no third- propose to require a demonstration of increase compliance costs for obligated party organization that certifies the type of land used to produce any parties. For further discussion of this agricultural land, managed tree feedstock used in the production of approach, see Section III.H.4. plantations, and forests; rather, each renewable fuel, regardless of whether c. Review of Existing Programs generally focuses on one area. Due to RINs are generated or not, and to require this constraint, we examined third party that RINs be generated for all qualifying i. USDA Programs fuel. organizations that certify specific types However, we also seek comment on To inform our approach for designing of biomass from croplands and an alternative approach wherein a an implementation scheme for the organizations that certify forest lands. renewable fuel producer would not be renewable biomass land restrictions We examined third-party required to make any demonstration under RFS2, we reviewed a number of organizations that focus on a particular with regard to the origin of feedstocks programs and models that track, certify, type of feedstock used for renewable used in fuel production if the fuel or verify agricultural and silvicultural fuel production, including the producer were not generating RINs. In products or land use in the U.S. and Roundtable on Sustainable Palm Oil and this situation, we would rely on the abroad. First we looked at several the Basel Criteria for Responsible Soy price of RINs in the market to encourage existing programs administered by Production. These initiatives have renewable fuel producers to generate USDA that involve data collection from outlined traceable certification programs for industry to follow. Two other RINs where possible. This approach agricultural land owners, farmers, and cooperative organizations whose would have the advantage of lessening forest owners. However, while USDA the regulatory burden for renewable fuel primary concern is renewable fuel obtains and maintains valuable data production from biomass are the producers using feedstock that is not from agricultural land owners, renewable biomass, and would Roundtable on Sustainable Biofuels producers, and forest owners for (RSB) and the Better Sugarcane generally simplify the regulations assessing the status of agricultural land, relating to implementation of the Initiative (BSI). At present, the RSB and forest land, and other types of land that renewable biomass definition. The BSI are still in their developmental could be used for renewable fuel disadvantage to this approach, as stages and do not have fully developed discussed above, would be the increased feedstock production, Section 1619 of certification processes. potential for a RIN shortage caused by the Food, Conservation, and Energy Act We also examined the work of the renewable fuel producers choosing not of 2008 (the 2008 Farm Bill) and international Soy Working Group, to generate RINs for qualifying policies of certain USDA agencies comprised of representatives from renewable fuel and a concurrent significantly limit EPA’s ability to industry, the Brazilian government, and increase in the price of RINs that do access such data in a timely and international non-governmental exist. Under such circumstances, it is meaningful way. Given that agricultural organizations (NGOs), which recently likely that some obligated parties could land owners, producers, and forest announced a one-year extension of a not acquire sufficient RINs for owners already report a great deal of moratorium on the use of soy harvested compliance purposes, while others information to USDA, having access to from recently deforested lands in the could comply but at an inflated cost. such information could enable EPA to Brazilian Amazon. This moratorium is A further step that we could take to avoid having to require duplicative the result of a negotiated voluntary streamline not just the implementation reporting or recordkeeping and thereby agreement through which companies of the renewable biomass definition, but minimize any burden that RFS2 may that purchase Brazilian soy work with also the tracking and trading of RINs, place on parties in the renewable fuel their suppliers to ensure that they would be to remove the restriction feedstock supply chain, from feedstock source their soy from farms cultivated prior to August 2006. The Brazilian established under the RFS1 rule producer to renewable fuel producer, requiring that RINs be assigned to Association of Vegetable Oil Industries while still allowing us to ensure that the batches of renewable fuel and (ABIOVE) and Brazil’s National transferred with those batches. Instead, land restrictions on renewable biomass Association of Grain Exporters (ANEC) renewable fuel producers could sell production are adhered to. We request have used aerial photography to identify RINs (with a K code of 2 rather than 1) comment on how EPA could acquire the whether any newly deforested areas separately from volumes of renewable type of information submitted by parties were used to grow soy, and Greenpeace, fuel. While this alternative approach such as agricultural land owners, one of the NGOs involved in the could potentially place obligated parties producers, and forest owners to USDA agreement, uses satellite imagery and at greater risk of market manipulation agencies in order to aid in administering aerial photography to perform spot by renewable fuel producers, it could RFS2. Having access to such checks for enforcement purposes. also provide a greater incentive for information could be valuable to EPA in Another new example of a renewable producers to demonstrate that the informing our enforcement actions. fuel feedstock verification system is the

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Verified Sustainable Ethanol initiative, parties in the U.S. covers only a small certify on their renewable fuel which established a series of criteria for portion of the total available land and production reports that the feedstock ethanol produced in Brazil and sold to forests estimated to qualify for used for each renewable fuel batch Swedish ethanol importer SEKAB. The renewable biomass production under meets the definition of renewable Brazilian sugarcane ethanol industry the EISA definition. Third, none of the biomass. We would require renewable trade association, UNICA, its member existing third-party systems had fuel producers to maintain sufficient companies, and SEKAB established the definitions or criteria that perfectly records to support these claims. criteria to promote environmental and matched the land use definitions and Specifically, renewable fuel producers social sustainability of sugarcane restrictions contained in the EISA who use planted crops or crop residue ethanol exported to Sweden. The definition of renewable biomass. Thus, from existing agricultural land, or who agreement is between companies, and it we have determined that at this time we use planted trees or slash from actively relies on a third-party auditor to inspect cannot rely on any existing third-party managed tree plantations, would be Brazilian feedstock and ethanol verification program solely to required to have copies of their production facilities to verify implement the land restrictions on feedstock producers’ written records compliance with the criteria. renewable biomass under RFS2. We that serve as evidence of land being We also examined third-party believe there is potential benefit in actively managed (or fallow, in the case organizations that specialize in utilizing third-party verification of agricultural land) since December certifying sustainable forest lands. The programs if these issues can be 2007, such as sales records for planted Sustainable Agriculture Network (SAN), addressed, and in the following section crops or trees, livestock, crop residue, or through the Rainforest Alliance, we offer one possible scenario as an slash; a written management plan for provides comprehensive certification of implementation alternative. agricultural or silvicultural purposes; or, wooded areas used for commercial Nonetheless, we seek comment on our documentation of participation in an development through sustainable conclusion that there are currently no agricultural or silvicultural program processes in the United States and Latin appropriate third-party verification sponsored by a Federal, state or local American countries. The SAN certifies systems for renewable biomass that government agency. In the case of all approximately 10 million acres of land could be adopted under RFS2. We other biomass, we would require worldwide, with minimal agricultural further seek comment on whether any renewable fuel producers to have, at a 22 land certified in the U.S. existing program or combination of minimum, written certification from We examined the certification process programs would be able to meet the their feedstock supplier that the of the Forest Stewardship Council (FSC) definitions and adopt the land feedstock qualifies as renewable because of their international restriction criteria proposed for RFS2 to biomass. We seek comment on whether recognition for certifying sustainable assist industry in meeting their we should also require renewable fuel forests and their recordkeeping obligations under this proposed producers that use slash and pre- requirement for ‘‘chain of supply’’ program. commercial thinnings from non-federal certification for products. The FSC forestland and biomass from areas at certifies 22 million acres of land in the d. Approaches for Domestic Renewable risk of wildfire to maintain additional U.S. according to certification standards Fuel records to support the claim that these designed for nine separate regions Consistent with RFS1, renewable fuel feedstocks meet the definition of within the U.S., and it provides an producers would be responsible for renewable biomass. These records could example for chain-of-custody and generating RINs under RFS2. In order to include sworn statements from licensed product segregation requirements.23 make a determination whether or not or registered foresters, contracts for tree Finally, we examined the American their fuel is eligible for RINs, renewable Tree Farm program and Sustainable fuel producers would need to have at or slash removal or documentation of Forestry Initiative (SFI). least basic information about the origin participation in a fire mitigation The criteria used to certify of their feedstock. The following program. We seek comment on other participants through third-party approaches for implementing the land methods of verifying renewable fuel verification systems are overall more restrictions on renewable biomass producers’ claims that feedstocks comprehensive and generally more contained in EISA illustrate the variety qualify for these categories of renewable stringent than the land restrictions of ways that renewable fuel feedstocks biomass. A review of such records contained within the definition of could be handled under RFS2. These would become part of the producer’s renewable biomass. However, three options are presented singly, but we annual attest engagement, the annual issues emerged through our seek comment on how they might be audit of their records by an independent investigation of these existing third- combined to create the most third party (see Section IV.A for a full party verification systems that would appropriate, practical, and enforceable discussion of attest engagement make it difficult to adopt or incorporate implementation scheme for renewable requirements). any one of them into our regulations for biomass under RFS2. A renewable fuel producer would the land restriction provisions under One approach for ensuring that only be permitted to produce and sell EISA. First, as previously noted, many producers generate RINs properly would renewable fuel without RINs if he of these third-party certifiers are limited be for EPA to require that renewable demonstrates that the feedstocks used to in the scope of products that they fuel producers obtain documentation produce his fuel do not meet the certify. Second, the acreage of about their feedstocks from their definition of renewable biomass. This agricultural land or actively managed feedstock supplier(s) and take the approach would ensure that renewable tree plantations certified through third measures necessary to ensure that they fuel producers could not avoid the know the source of their feedstocks and generation of RINs simply by failing to 22 Forest acreage taken from USDA Economic can demonstrate to EPA that they have make a demonstration regarding the Research Service, Major uses of Land in the United complied with the EISA definition of land used to produce their feedstocks. States, 2002, Economic Information Bulletin No. (EIB–14), May 2006. renewable biomass. Under this Thus, renewable fuel producers would 23 FSC certified acreage taken from FSC–US, approach, EPA would require renewable be required to keep records of their Prospectus, 2005. fuel producers who generate RINs to feedstock source(s), regardless of

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whether RINs were generated or not. At including any data made available by facility at least once per quarter or once a minimum, renewable fuel producers USDA, and could conduct site visits or every 15 deliveries, whichever is more who do not generate RINs would need inspections of feedstock producers’ and frequent, (2) an unannounced to have certification from their feedstock suppliers’ facilities. We seek comment independent third party inspection of supplier that their feedstock does not on the feasibility and practical each intermediary facility that stores meet the definition of renewable limitations of EPA working with renewable fuel feedstock received by the biomass. In the event that some portion publicly available USDA data to keep renewable fuel producer at least once of a load of feedstock does meet the track of significant land use changes in per quarter, and (3) on each occasion definition of renewable biomass and the U.S. and around the world and to when the independent third party some portion does not, the renewable note general increases in feedstock inspection reveals noncompliance, the fuel producer would need to maintain supplier productivity that might signal renewable fuel producer must (a) documentation from their supplier that cultivation of new agricultural land for conduct an investigation to determine states the percentage of each portion. renewable fuel feedstock production. the proper number of RINs that should All of these records would be included Either of these approaches would have been generated for a volume of fuel as part of the renewable fuel producer’s easily fold into existing and newly and either generate or retire an equal annual attest engagement. The proposed registration, recordkeeping, number of RINs, depending on whether renewable fuel producer would also reporting, and attest engagement the fuel’s feedstock did or did not meet indicate on his renewable fuel procedures. They would also place the the definition of renewable biomass, (b) production report that he did not burden of implementation and conduct a root cause analysis of the generate RINs for fuel made from enforcement on renewable fuel violation, and (c) refuse to accept or feedstock that did not meet the producers rather than bringing feedstock process feedstock from the renewable definition of renewable biomass. producers and suppliers directly under fuel feedstock producer unless or until Some stakeholders have expressed EPA regulation. In this way, they would the feedstock producer takes concern about EPA specifying the minimize the number of regulated appropriate corrective action to prevent records that a renewable fuel producer parties under RFS2. They would also future violations. must obtain from their feedstock allow, to varying degree, the renewable This alternative could provide a supplier. We therefore seek comment on fuel industry to determine the most partial affirmative defense either for an approach that would require efficient means of verifying and tracking renewable producers that illegally renewable fuel producers to certify on feedstocks from the point of production generate RINs for fuel made from their renewable fuel production reports to the point of consumption, thereby feedstocks that do not qualify as that their feedstock either met or did not minimizing any additional cost and renewable biomass or for renewable fuel meet the definition of renewable administrative burden created by the producers who do not generate enough biomass and would require producers to EISA definition of renewable biomass. RINs for fuel made from feedstocks that maintain sufficient records to support Another alternative would be for EPA do qualify as renewable biomass. In their claims, but would stop short of to establish a chain-of-custody tracking either case, the producers must specifying what those records would system from feedstock producer to demonstrate that the violation was have to include. We anticipate that a renewable fuel producer through which caused by a feedstock producer or large portion of feedstocks that qualify renewable fuel producers would obtain supplier and not themselves; that the as renewable biomass will be obtained information regarding the lands where commercial documents (e.g., bills of from existing agricultural land or their feedstocks were produced. This lading) received with the feedstock actively managed tree plantations, for information would accompany each indicated that the feedstock either met which, by definition, documentation transfer of custody of the feedstock until (in the case that RINs were generated already exists. We believe that, in most the feedstock reaches the renewable fuel illegally) or did not meet (in the case other cases, feedstock producers will producer. Renewable fuel feedstock that an inadequate number of RINs were have or will be able to create other producers, suppliers and handlers generated) the land restrictions for forms of documentation that could be would not have any reporting renewable biomass, and that they met provided to renewable fuel producers in obligations. EPA would, however, EPA’s quality assurance program order to provide adequate assurance that require all feedstock producers, requirements. A renewable fuel the feedstock in question meets the suppliers, and handlers to maintain as producer that generates RINs for fuel definition of renewable biomass. As records these chain-of-custody made from a feedstock that does not described above, there are many existing documents for all biomass intended to meet the definition of renewable programs, such as those administered by be used as a renewable fuel feedstock. biomass, but that qualifies for the partial USDA and independent third-party Renewable fuel producers would also be affirmative defense, would still have to certifiers, that could be useful to verify required to maintain these chain-of- retire a number of RINs equal to the that feedstock from certain land custody tracking documents in their illegally generated RINs. Likewise, a qualifies as renewable biomass. records and would have to include them renewable fuel producer that does not We anticipate that these self- as part of their records presented during generate sufficient RINs for fuel made certification approaches would result in their annual attest engagement. from a feedstock that does meet the renewable fuel producers amending An additional alternative would be for definition of renewable biomass, but their contracts and altering their supply EPA to require renewable fuel producers that qualifies for the partial affirmative chain interactions to satisfy their need to set up and administer a quality defense, would have to generate enough for documented assurance and proof assurance program that would create an RINs to make up the difference. about their feedstock’s origins. additional level of rigor in the However, in neither case would they be Enforcement under either of these implementation scheme for the EISA subject to civil penalties. approaches would rely in part on EPA’s land restrictions on renewable biomass. As yet another alternative approach, review of renewable fuel production The quality assurance program could EPA could bring together renewable fuel reports and attest engagements of include (1) an unannounced producers and renewable fuel feedstock renewable fuel producers’ records. EPA independent third party inspection of producers and suppliers to develop an would also consult other data sources, the renewable feedstock producer’s industry-wide quality assurance

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program for the renewable fuel participates in the consortium would be systems for feedstocks, in particular for production supply chain, following the deemed to have met the quality corn and soybeans in the U.S. We model of the successful Reformulated assurance criteria for a partial therefore seek comment on a Gasoline Survey Association. We affirmative defense. If the renewable stakeholder suggestion to establish a believe that this alternative could be fuel producer met the other applicable baseline level of production of biomass less costly than if each individual criteria, he would have to take feedstocks such that reporting and renewable fuel producer were to create corrective action to retire or generate the recordkeeping requirements would be their own quality assurance program, appropriate number of RINs depending triggered only when the baseline and it would add a quality assurance on the violation, but he would not be production levels of feedstocks used for element to RFS2 while creating the subject to civil penalties. biofuels were exceeded. Such an possibility for a partial affirmative Some stakeholders have suggested approach would avoid imposing a new defense for renewable fuel producers that EPA take advantage of existing recordkeeping burden on the industry as and feedstock producers and suppliers. satellite and aerial imagery and long as biofuels demand is met with The program would be carried out by mapping software and tools to existing feedstock production. We seek an independent surveyor funded by implement the renewable biomass comment on this alternative, including industry and consist of a nationwide provisions of EISA. One way to do so how to set the baseline production verification program for renewable fuel would be for EPA to develop a levels and information on appropriate producers and renewable feedstock renewable fuel mapping Web site to data sources in the U.S. and in other producers and handlers designed to assist regulated parties in meeting their countries that produce feedstocks that provide independent oversight of the obligation to identify the location of could be used for renewable fuel feedstock designations and handling land where renewable fuel feedstocks production, and on how to track processes that are required to determine are produced. Such a Web site could whether the feedstock use for biofuels if a feedstock meets the definition of include an interactive map that would production has exceeded baseline renewable biomass. Under this allow renewable feedstock producers to production levels. We also solicit alternative, a renewable fuel producer trace the boundaries of their property comment on whether this approach and its renewable feedstock suppliers and create an electronic file with could be applied to all types of and handlers would have to participate information regarding the land where feedstocks on which EISA places land in the funding of an organization which their renewable fuel feedstocks were restrictions, or if it would only be arranges to have an independent produced, such as a code that identifies appropriate for traditional agricultural surveyor conduct a program of the plot of land. This would allow the crops such as corn, soybeans, and compliance surveys. Compliance feedstock producer to provide sugarcane for which historical acreage surveys would be carried out by an information, such as a standard land ID data exists both domestically and independent surveyor pursuant to a code, on all bills of lading or other internationally. detailed survey plan submitted to EPA commercial documents that identify the EPA acknowledges that under this for approval by November 1 of the year type and quantity of feedstock being alternative, while there could be a net preceding the year in which the delivered to the renewable fuel increase in lands being cultivated for a alternative quality assurance sampling producer. Renewable fuel producers particular crop, we would presume that and testing program would be could then make a determination increases in cultivation would be used implemented. The survey plan would regarding whether or not the renewable to meet non-biofuels related feedstock include a methodology for determining fuel feedstock that they use meets the demand. We also acknowledge that such when the survey samples would be definition of renewable biomass, and is an approach would be difficult to collected, the locations of the surveys, therefore eligible or not for RIN enforce because data that could indicate the number of inspections to be generation. that baseline production levels were included in the survey, and any other Feedstock producers would not exceeded in a given year would likely elements that EPA determines are necessarily be required to use this be delayed by many months, such that necessary to achieve the same level of Internet-based tool to identify the the recordkeeping requirements for quality assurance as the requirement location where renewable fuel renewable fuel producers would also be included in the RFS2 regulations at the feedstocks are produced, since many delayed. During the interim period, time. feedstock producers already participate renewable fuel producers would have Under this alternative, the in various government or insurance generated RINs for fuel that did not independent surveyor would be programs that have required them to qualify for credit under the program, required to visit renewable feedstock map the location of their fields. But the and any remedial steps to invalidate producers and suppliers to determine if map would enable renewable fuel such RINs after the fact could be costly they are properly designating their producers to verify the accuracy of these and burdensome to all parties in the product and adhering to adequate chain descriptions and report these locations supply chain. Nonetheless, we seek of custody requirements. This to EPA using the interactive mapping comment on the approach as described nationwide sampling program would be tool on EPA’s Web site. EPA specifically above. designed to ensure even coverage of solicits comment on the practicability of We seek comment on all of these renewable feedstock producers and constructing an accurate map from approaches and what combination of suppliers. The surveyor would generate existing data sources. these approaches would be the most and report the results of the surveys to As noted above, EPA recognizes that appropriate, enforceable, and practical EPA each calendar quarter. In addition, land restrictions contained within the for ensuring that the land restrictions on where the survey finds improper definition of renewable biomass may renewable biomass contained in EISA designations or handling, the liable not, in practice, result in a significant are implemented under RFS2. We also parties would be responsible for change in agricultural practices. EPA seek comment on whether there are identifying and addressing the root also recognizes that the implementation other possible approaches that would be cause of the violation to prevent future options described in this proposal could superior to those we have described violations. When a violation is detected, impose costs and constraints on existing above. We also note that we intend to the renewable fuel producer that storage, transportation, and delivery monitor RIN generation and the trends

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in renewable fuel feedstock sources as avoid the generation of RINs for fuel the location of land from which they RFS2 implementation gets underway, shipped to the U.S. simply by failing to will or have acquired feedstocks, along and that we may make changes to the make any demonstration regarding the with historical satellite or aerial imagery approach we adopt in the final RFS2 land used to produce their feedstocks. demonstrating that feedstocks from regulations if renewable fuel feedstock Thus, foreign renewable fuel producers these lands meet the definition of production conditions change or if new, that export their product to the U.S. renewable biomass. We seek comment better renewable biomass verification would be required to keep records of the on whether foreign renewable fuel tools become available. type of land used to produce their producers should also be subject to the feedstock regardless of whether RINs are same quality assurance requirements e. Approaches for Foreign Renewable generated or not. Section III.D.2.b relating to their feedstock sources as Fuel outlines more specifically our proposed domestic renewable fuel producers, and EISA creates unique challenges requirements for foreign renewable fuel whether they should have the same related to the implementation and producers. option to use an approved survey enforcement of the definition of Importers will likely have less consortium in lieu of implementing renewable biomass for foreign-produced knowledge than a foreign renewable fuel their own individual quality assurance renewable fuel. In order to address these producer would about the point of programs. issues, we propose to require foreign origin of their fuel’s feedstock and We also seek comment on an producers of renewable fuel who export whether it meets the definition of alternative that would provide foreign to the U.S. to meet the same compliance renewable biomass. Therefore, we are renewable fuel producers an option of obligations as domestic renewable fuel proposing that in the event that a batch participating in RFS2 (in a manner producers. These obligations would of foreign-produced renewable fuel does consistent with our main proposal), or include facility registration and not have RINs accompanying it, an not participating at all. If they elected submittal of independent engineering importer must obtain documentation not to participate in RFS2, they could reviews (described in Section III.C from its producer that states whether or export renewable fuel to the United below), and reporting, recordkeeping, not the definition of renewable biomass States without RINs, and without and attest engagement requirements. was met by the fuel’s feedstock. With providing any documentation as to They would also include the same such documentation, the importer whether or not the fuel was made with obligations that domestic producers would be required to generate RINs (if renewable biomass. However, they have for verifying that their feedstock the definition of renewable biomass is would also have to meet requirements meets the definition of renewable met) or would be prohibited from doing for segregating their fuel from renewable biomass as described above, such as so (if the definition is not met) prior to fuel for which RINs were generated, and certifying on each renewable fuel introducing the fuel into commerce in the importer of their fuel would be production report that their renewable the U.S. Without such documentation, required to track it to ensure that the fuel feedstock meets the definition of the fuel would not be permitted for fuel remains segregated in the U.S. and renewable biomass and working with importation. Section III.D.2.c outlines is not used by a domestic company for their feedstock supplier(s) to ensure that our proposed requirements for illegal RIN generation. This alternative they receive and maintain accurate and importers more fully. would provide foreign renewable fuel sufficient documentation in their We seek comment on whether and to producers an option not available to records to support their claims. As what extent the approaches for ensuring domestic renewable fuel producers, who under the RFS1 program for producers compliance with the EISA’s land in all cases would be required to of cellulosic fuel, the foreign producer restrictions by foreign renewable fuel document whether or not their would be required to comply with producers could or should differ from feedstock met the definition of additional requirements designed to the proposed approach for domestic renewable biomass, and who would be ensure that enforcement of the renewable fuel producers. In light of the required to generate RINs for their regulations at the foreign production challenges associated with enforcing the product if it was. As discussed in facility would not be compromised. For EISA’s land restrictions in foreign Section III.B.4.b.ii of this preamble, EPA instance, foreign producers would be countries, we believe that it may be believes that in order for obligated required to designate renewable fuel appropriate to require foreign renewable parties to meet the increasing annual intended for export to the U.S. as such fuel producers to use an alternative volume requirements under RFS2, all and segregate the volume until it method of demonstrating compliance qualifying renewable fuel will need to reaches the U.S. and post a bond to with these requirements. We seek have RINs generated for it. Nonetheless, ensure that penalties can be assessed in comment on whether foreign renewable this alternative recognizes the potential the event of a violation. Moreover, as a producers exporting product to the U.S. difficulty of applying renewable regulated party under the RFS2 should have to comply with any of the biomass verification procedures in the program, foreign producers would have alternatives described for domestic international context, and provides an to allow for potential visits by EPA renewable fuel producers under this exemption process that EPA expects enforcement personnel to review the section. For example, we seek comment would only be used by relatively small completeness and accuracy of records on whether a foreign renewable fuel producers for whom the burden of and registration information. producer should have to demonstrate participating in the RFS2 program We propose that a foreign renewable that it had a contract in place with its would outweigh the benefits, and whose fuel producer, like a domestic renewable feedstock producer that total production volume would be renewable fuel producer, could only required designation and chain of negligible. produce and sell renewable fuel for custody and handling methods similar export to the U.S. without RINs if he to one of the alternatives for domestic C. Expanded Registration Process for demonstrated that the land used to renewable fuel producers discussed Producers and Importers produce his feedstocks did not meet the above. We also seek comment on In order to implement and enforce the definition of renewable biomass. This whether foreign renewable fuel new restrictions on qualifying approach would ensure that foreign producers that export product to the renewable fuel under RFS2, we are renewable fuel producers could not U.S. should have to provide EPA with proposing that the registration process

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for renewable fuel producers and Such information, therefore, is central to production volumes would be importers be revised. Under the existing program implementation. Therefore, we grandfathered and thus deemed to be in RFS1 program, all producers and are proposing new registration compliance with the 20% GHG importers of renewable fuel who requirements for all domestic renewable threshold, we would require evidence produce or import more than 10,000 fuel producers, importers, and foreign and certification of the facility’s gallons of fuel annually must register renewable fuel producers. We also plan qualification under the definition of with EPA’s fuels program prior to on integrating registration procedures ‘‘commence construction’’ as well as generating RINs. Renewable fuel with the new EPA Moderated information necessary to establish it’s producer and importer registration Transaction System, discussed in detail renewable fuel baseline volume per the under the existing RFS program consists in Section IV.E of this preamble. We proposal outlined in Section III.B.3 of of filling out two forms: 3520–20A encourage those affected by the this preamble. (Fuels Programs Company/Entity proposed registration requirements to Under the existing RFS1 program, Registration), which requires basic review the document entitled ‘‘Proposed producers of cellulosic biomass and contact information for the company Information Collection Request (ICR) for waste-derived ethanol are required to and basic business activity information the Renewable Fuels Standard (RFS2) have an annual engineering review of (e.g., for an ethanol producer, they need Program—EPA ICR 2333.01,’’ and an their production records performed by to indicate that they are a RIN Addendum to the proposed ICR, which an independent third party who is generator), and 3520–20B (Gasoline have been placed in the public docket licensed Professional Engineer (P.E.) Programs Facility Registration) or 3520– and to provide comments to us who works in the chemical engineering 20B1 (Diesel Programs Facility regarding the burdens associated with field. This independent third party need Registration), which requires basic the proposed registration requirements. not be based in the United States, but must hold a P.E. Each review must be contact information for each facility 1. Domestic Renewable Fuel Producers owned by the producer or importer. kept on file by both the producer and More detailed information on the The most significant proposed the engineer for five years. The renewable fuel production facility, such changes to the current registration independent third party must include as production capacity and process, system pertain to the information that a documentation of its qualifications as feedstocks, and products is not required producer will need to provide EPA prior part of the engineering review. Foreign for most producers or importers to to generating RINs. As noted above, we producers of cellulosic biomass and are proposing that producers provide generate RINs under RFS1 (producers of waste-derived ethanol are also required information about their products, cellulosic biomass ethanol and waste- to have an engineering review of their feedstocks, and facilities in order to be derived ethanol are the exception to facilities, with a report submitted to registered for the RFS2 program. this). EPA that describes in detail the physical Information contained in a producer’s plant and its operation. These Due to the revised definitions of registration would be used to verify the requirements helps ensure that renewable fuel under EISA, as well as validity of RINs generated and their producers who claim to be producing other changes, we believe it necessary to proper categorization as either cellulosic such fuel, which earns 2.5 RINs per expand the registration process for biofuel, biomass-based diesel, advanced gallon rather than 1.0 RIN per gallon for renewable fuel producers and importers biofuel, or other renewable fuel. corn-based ethanol under RFS1, are in in order to implement the new program With respect to products, we are fact doing so. effectively. Specifically, generating and interested in the types of renewable fuel We believe that the requirement for an assigning a certain category of RIN to a and co-products that a facility is capable on-site engineering review is an volume of fuel is dependent on whether of producing. With respect to effective implementation tool and the feedstock used to produce the fuel feedstocks, we believe it is necessary to propose to adopt the requirement under meets the definition of renewable have on file a list of all the different RFS2, with the following changes. First, biomass, whether the lifecycle feedstocks that a renewable fuel we propose expanding the applicability greenhouse gas emissions of the fuel producer’s facility is capable of of the requirement to all renewable fuel meets a certain GHG reduction converting into renewable fuel. For producers due to the variability of threshold and, in some cases, whether example, if a renewable fuel producer production facilities, the increase in the the renewable fuel production facility is produces fuel from both cellulosic number of categories of renewable fuels, considered to be grandfathered into the material, such as corn stover, and non- and the importance of generating RINs program. Unless we require producers, cellulosic material, such as corn starch, in the correct category. Second, we including foreign producers, and the producer may be eligible to generate propose that every renewable fuel importers to provide us with RINs in two different categories producer must have the on-site information on their feedstocks, (cellulosic biofuel and renewable fuel). engineering review of their facility facilities, and products, we cannot This producer’s registration information performed in conjunction with his or adequately implement or enforce the would be required to list both of these her initial registration for the new RFS program or have confidence that feedstocks before we would allow two program in order to establish the proper producers and importers are properly different categories of RINs to be basis for RIN generation, and every three categorizing their fuel and generating generated. years thereafter to verify that the fuel RINs. In particular, our proposed With respect to the producer’s pathways established in their initial approach for ensuring that the GHG facilities, we are proposing two types of registration are still applicable. These emission reduction thresholds for each information that would need to be requirements would apply unless the category of renewable fuel are met will reported to the Agency. First, we believe renewable fuel producer updates its require producers and importers to it is important to have information on facility registration information to determine the proper category file that describes each facility’s fuel qualify for a new RIN category (i.e., D assignment for their fuel based on a production processes (e.g., wet mill, dry code), in which case the review would combination of their feedstock, mill, thermochemical, etc.), and need to be performed within 60 days of production processes, and products (see thermal/process energy source(s). the registration update. Finally, we Section III.D.2 for the proposed list). Second, in order to determine what propose that producers be required to

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submit a copy of their independent in the chemical engineering field. This only in exceptional cases. We propose engineering review to EPA rather than P.E. need not be based in the United that registration forms will have to be simply maintaining it in their records. States. The independent third party submitted by January 1, 2010 (the We believe that this extra step is must include documentation of its proposed effective date of the final RFS2 necessary for verification and qualifications as part of the engineering regulations), or 60 days prior to a enforcement purposes. review. producer producing or importer In addition to the new registration Since implementation of RFS1 we importing any renewable fuel, requirements for all renewable fuel have received questions about engineers whichever dates comes later. If a producers who produce greater than who are licensed by other countries that producer changes to a feedstock that is 10,000 gallons of product each year, we may have equivalent licensing not listed in his registration information seek comment on whether to require requirements to those associated with on file with EPA but the feedstock will renewable fuel producers and importers the P.E. designation in the United not incur a change of RIN category for in the U.S. who produce or import less States. The existing RFS1 program does the fuel (i.e., a change in the appropriate than 10,000 gallons per year to register not permit independent third party D code), then we propose that the basic information about their company review by a party who is not a licensed producer must update his registration and facility (or facilities) with EPA, P.E. We invite comment on whether or information within seven (7) days of the similar to information currently not we should permit independent third change. However, if a producer’s required of renewable fuel producers parties who are based in—and licensed feedstock, facility (including industrial under RFS1. This information would by—foreign countries and who work in processes or thermal energy source), or complement information submitted to the chemical engineering field to products undergo changes that would EPA under the Fuels and Fuel Additives demonstrate the foreign equivalency of qualify his renewable fuel for a new RIN Registration System (FFARS) program to a P.E. license. category (and thus a new D code), then help ensure that EPA has a complete We also seek comment on requiring we propose that such an update would record of renewable fuel production and foreign renewable fuel producers to need to be submitted at least 60 days importation in the U.S. provide EPA with the location of land prior to the change, followed by from which they will acquire 2. Foreign Renewable Fuel Producers submittal of a complete on-site feedstocks, along with historical independent engineering review of the Under the current RFS program, satellite or aerial imagery demonstrating producer’s facility also within 60 days foreign renewable fuel producers of that the lands from which they acquire of the change. cellulosic biomass ethanol and waste- feedstock are eligible under the derived ethanol may apply to EPA to definition of renewable biomass (see D. Generation of RINs generate RINs for their own fuel. This Section III.B.4 for a full discussion of Under RFS2, each RIN would allows a foreign producer of this our proposed and alternative continue to be generated by the renewable fuel to obtain the same approaches for foreign renewable fuel producer or importer of the renewable benefits of higher credit value as producers to verify their feedstocks fuel, as in the RFS1 program. In order domestic producers of this category of meet the definition of ‘‘renewable to determine the number of RINs that renewable fuel. Under the RFS1 biomass’’). must be generated and assigned to a regulations, the foreign fuel producer batch of renewable fuel, the actual must meet a variety of requirements 3. Renewable Fuel Importers volume of the batch of renewable fuel established to make the program A renewable fuel importer is required must be multiplied by the appropriate effective and enforceable with respect to under RFS1 to register basic information Equivalence Value. The producer or a foreign producer. These requirements about their company with EPA prior to importer must also determine the mirror a number of similar fuel generating RINs. Under the proposed appropriate D code to assign to the RIN provisions that apply to foreign refiners new RFS2 program, we are proposing to identify which of the four standards in other fuels programs. For RFS2, we that only in limited cases can importers the RIN can be used to meet. This propose that foreign producers of generate RINs for imported fuel that section describes these two aspects of renewable fuel must meet the same they receive without RINs. In any case, the generation of RINs. We propose that requirements as domestic producers, whether they receive fuel with or other aspects of the generation of RINs, including registering information about without RINs, an importer must rely on such as the definition of a batch and their feedstocks, facilities, and products, his supplier, a foreign renewable fuel temperature standardization, as well as as well as submitting an on-site producer, to provide documentation to the assignment of RINs to batches, independent engineering review of their support any claims for their decision to should remain unchanged from the facilities at the time of registration for generate or not to generate RINs. An RFS1 requirements. the program and every three years importer may have an agreement with a 1. Equivalence Values thereafter. These requirements would foreign renewable fuel producer for the apply to all foreign renewable fuel importer to generate RINs if the foreign For RFS1, we interpreted CAA section producers who export their products to producer has not done so already. 211(o) as allowing us to develop the U.S., whether or not they qualify to However, the foreign renewable fuel Equivalence Values representing the generate RINs for their fuel. They would producer must be registered with EPA number of gallons that can be claimed also be subject to the variety of as noted above. Section III.D.2.c for compliance purposes for every enforcement related provisions that describes our proposed RIN generating physical gallon of renewable fuel. We apply under RFS1 to foreign producers restrictions and requirements for described how the use of Equivalence of cellulosic biomass or waste derived importers under RFS2. Values adjusted for renewable content ethanol. and based on energy content in As discussed in Section III.C.1, the 4. Process and Timing comparison to the energy content of existing RFS1 program requires that the We intend to make forms for ethanol was consistent with independent engineering review be expanded registration for renewable fuel Congressional intent to treat different conducted by an independent third producers and importers available renewable fuels differently in different party who is a licensed P.E. who works electronically, with paper registration circumstances, and to provide

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incentives for use of renewable fuels in requirement, and thus there will exist a Under RFS1, Equivalence Values were certain circumstances, as evidenced by guaranteed market for each. As a result determined from a formula that the specific circumstances addressed by there may no longer be a need for included measures of both volumetric Congress. This included the direction additional incentives for certain fuels in energy content and renewable content. that EPA establish ‘‘appropriate’’ credit the form of Equivalence Values greater The renewable content was intended to values in certain circumstances, as well than 1.0. In addition, the use of an take into account the portion, if any, of as provisions in the statute providing for energy-based approach to Equivalence a renewable fuel that originated from a different credit values to be assigned to Values raises some questions, discussed fossil fuel feedstock. EISA eliminated the same volume of different types of below, concerning the impact of such the statutory language on which the renewable fuels (e.g., cellulosic and Equivalence Values on the biomass- inclusion of renewable content was waste-derived fuels). We also noted that based diesel volume requirement and in based, and instead restricts renewable the use of Equivalence Values based on the initial years on the advanced biofuel fuels that are valid under the RFS2 energy content was an appropriate volume requirement. Overall EPA program to those produced from measure of the extent to which a believes that the statute continues to be renewable biomass. In the case of fuels renewable fuel would replace or reduce ambiguous on this issue, and we are produced from both renewable and the quantity of petroleum or other fossil therefore co-proposing and seeking nonrenewable feedstocks, we have fuel present in a fuel mixture. The result comment on two options for interpreted this to mean only that was an Equivalence Value for ethanol of Equivalence Values: portion of the volume attributable to the 1.0, for butanol of 1.3, for biodiesel 1. Equivalence Values would be based renewable feedstocks (see further (mono alkyl ester) of 1.5, and for non- on the energy content and renewable discussion in Section III.D.4 below). ester renewable diesel of 1.7. EPA stated content of each renewable fuel in However, we do not believe that this that these provisions indicated that comparison to denatured ethanol, approach is appropriate for the Congress did not intend to limit the RFS consistent with the approach under denaturant in ethanol and the small program solely to a straight volume RFS1. amount of non-renewable methanol measurement of gallons. EPA also noted 2. All liquid renewable fuels would be used in the production of biodiesel, that the use of Equivalence Values counted strictly on the basis of their since Congress clearly intended that would not interfere with meeting the measured volumes, and the Equivalence ethanol and biodiesel be included as a overall volume goals specified by Values for all renewable fuels would be renewable fuel, and they are only used Congress, given the various provisions 1.0 (essentially, Equivalence Values as a fuel under these circumstances. We that make achievement of the specified would no longer apply). therefore propose to treat the denaturant While these two different approaches volumes imprecise. See 72 FR 23918– in ethanol and the nonrenewable to volume would have an impact on the 23920, and 71 FR 55570–55571. portion of biodiesel as de minimus and market values of renewable fuels with EISA has not changed certain of the thus count them as part of the different energy contents as explained statutory provisions we looked to for renewable fuel volume under an more fully below, the overall impact on support under RFS1 in establishing approach to Equivalence Values in Equivalence Values based on relative the program would likely be small since we are projecting that the overwhelming which all liquid renewable fuels would volumetric energy content in be counted strictly on the basis of their comparison to ethanol. For instance, majority of renewable fuels will be ethanol (see further discussion in measured volumes. As a result, under CAA 211(o) continues to give EPA the this co-proposed approach we are authority to determine an ‘‘appropriate’’ Section V.A.2). proposing that the full formula used to credit for biodiesel, and also directs Under either option, non-liquid calculate Equivalence Values under EPA to determine the ‘‘appropriate’’ renewable fuels such as biogas and RFS1 be eliminated from the regulations amount of credit for renewable fuel use renewable electricity would continue to and that the Equivalence Value for all in excess of the required volumes. be valued based on the energy contained However, EISA made a number of in one gallon of denatured ethanol. In renewable fuels be specified as 1.0. other changes to CAA section 211(o) the RFS1 final rulemaking, we specified Nevertheless, we seek comment on this that impact our consideration of that 77,550 Btu of biogas be counted as approach. Equivalence Values in the context of the the equivalent of 1 gallon of renewable Although there are several reasons for RFS2 program. For instance, EISA fuel with an assigned Equivalence Value a straight volume approach as discussed eliminated the 2.5-to-1 credit for of 1.0. We propose to maintain this above, there are also several reasons to cellulosic biomass ethanol and waste- approach to non-liquid renewable fuels maintain the ethanol-equivalent energy derived ethanol and replaced this under the RFS2 program under either content approach to Equivalence Values provision with large mandated volumes approach to Equivalence Values, but of RFS1. For instance, in our of cellulosic biofuel and advanced with a small modification to make the discussions with stakeholders, some biofuels. Under the RFS1 program, an ethanol energy content more accurate. have argued that the existence of four Equivalence Value of 2.5 applies to The energy content of denatured ethanol standards is not a sufficient reason to these types of ethanol through the end was specified as 77,550 Btu/gal under eliminate the use of energy-based of 2012. Under the new RFS2 program, RFS1, but a more accurate value would Equivalence Values for RFS2. The four these types of ethanol would have an be 77,930 Btu/gal. Thus we propose to categories are defined in such a way that Equivalence Value of 1.0, consistent use 77,930 Btu to convert biogas and a variety of different types of renewable with all other forms of ethanol. renewable electricity into volumes of fuel could qualify for each category, EISA also expanded the program to renewable fuel under RFS2. such that no single specific type of include four separate categories of Under the second option in which all renewable fuel will have a guaranteed renewable fuel (cellulosic biofuel, liquid renewable fuels would be market. For example, the cellulosic biomass-based diesel, advanced biofuel, counted strictly on the basis of their biofuel requirement could be met with and total renewable fuel) and included measured volumes, we would need to both cellulosic ethanol or cellulosic GHG thresholds in the definitions of determine how to treat the small diesel. As a result, the existence of four each category. Each of these categories amount of denaturant in ethanol and the standards under RFS2 may not obviate of renewable fuel has its own volume nonrenewable portion of biodiesel. the value of standardizing for energy

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content, which provides a level playing coming years, allowing the market to have an independent effect until 2013. field under RFS1 for various types of choose freely may be important to While EPA recognizes this, EPA renewable fuels based on energy overall fuel supply. In the extreme, the believes that the long term benefits of an content. cellulosic biofuel standard could then energy based Equivalence Value may be More importantly, they argue that a be met by roughly 10 billion gallons of significantly greater than any temporary straight volume approach would be a cellulosic diesel fuel instead of the 16 diminishment in the real world impact likely to create a disincentive for the billion gallons of cellulosic ethanol of the advanced biofuel mandate. development of new renewable fuels assumed for the impacts analysis of this In recognition of the competing that have a higher energy content than proposal. The same amount of perspectives, we request comment on ethanol in the same way as the current petroleum energy would be displaced, both co-proposed approaches to the ethanol tax credit structure. For a given but by different physical volumes. Equivalence Values: (1) Retaining the mass of feedstock, the volume of As discussed above, there are no energy-based approach of the RFS1 renewable fuel that can be produced is provisions in EISA that explicitly program, and (2) a straight volume roughly inversely proportional to its instruct the Agency to change from the approach measured in liquid gallons of energy content. For instance, one ton of approach to Equivalence Values renewable fuel. biomass could be gasified and converted adopted in RFS1. However, there is a to syngas, which could then be question of how to address the biomass- 2. Fuel Pathways and Assignment of D catalytically reformed into either 90 based diesel requirement under such an Codes gallons of ethanol (and other alcohols) approach. In that context, it does appear As described in Section III.A, we or 50 gallons of diesel fuel (and that Congress intended the required propose that RINs under RFS2 would naphtha).24 If RINs were assigned on a volumes of biomass-based diesel to be continue to have the same number of straight volume basis, the producer treated as diesel volumes rather than digits and code definitions as under could maximize the number of RINs he ethanol-equivalent volumes. Therefore RFS1. The one change would be that, is able to generate and sell by producing EPA proposes that, for the biomass- while the D code would continue to ethanol instead of diesel. Thus, even if based diesel volume mandate under an identify the standard to which the RIN the market would otherwise lean ethanol-equivalent energy content could be applied, it would be modified towards demanding greater volumes of approach to Equivalence Values, the to have four values corresponding to the diesel, the greater RIN value for compliance calculations would be four different renewable fuel categories producing ethanol may favor its structured such that this requirement is defined in EISA. These four D code production instead. However, if the treated in effect as a straight volume- 25 values and the corresponding categories energy-based Equivalence Values were based requirement. are shown in Table III.A–1. maintained, the producer could assign In addition, it is also clear that Congress established the advanced In order to generate RINs for 1.7 RINs to each gallon of diesel made renewable fuel that meets the various from biomass in comparison to 1.0 RIN biofuel standard in EISA to begin to take affect in 2009. However, if we maintain eligibility requirements (see Section to each gallon of ethanol from biomass, III.B), a producer or importer must know and the total number of RINs generated the ethanol-equivalent energy content approach for RFS2, and biodiesel which D code to assign to those RINs. would be essentially the same for the We propose that a producer or importer diesel as it would be for the ethanol. continues to have an Equivalence Value of 1.5, then from 2009–2012 the would determine the appropriate D code The use of energy-based Equivalence using a lookup table in the regulations. Values could thus provide a level combination of the biomass-based diesel standard and the cellulosic biofuel The lookup table would list various playing field in terms of the RFS standard will meet or exceed the combinations of fuel type, production program’s incentives to produce advanced biofuel standard. Unless we process, and feedstock, and the different types of renewable fuel from were to waive a portion of either the producer or importer would choose the the available feedstocks. The market biomass-based diesel standard or the appropriate combination representing would then be free to choose the most cellulosic biofuel standard, the the fuel he is producing and for which appropriate renewable fuels without any advanced biofuel standard would not he is generating RINs. Parties generating bias imposed by the RFS regulations, RINs would be required to use the D and the costs imposed on different types 25 The proposed regulations and the ensuing code specified in the lookup table and of renewable fuel through the discussion in Sections III and IV of this proposal would not be permitted to use a D code assignment of RINs would be more reflect straight volume approach, however, the representing a broader renewable fuel evenly aligned with the ability of those impacts analysis of the program are calculated using volumes based on ethanol-equivalent energy category. For example, a party whose fuels to power vehicles and engines, and content. Were we to maintain the energy content fuel qualified as biomass-based diesel displace fossil fuel-based gasoline or approach to Equivalence Values, then we believe could not choose to categorize that fuel diesel. the biomass-based diesel standard should be treated as advanced biofuel or general Moreover, the technologies for in effect as a biodiesel volume, reflecting the nature of this standard, while the other three standards renewable fuel. producing more energy-dense fuels such would be treated as ethanol-equivalent volumes. In This section describes our proposed as cellulosic diesel are still in the early order to effectuate this, we are considering two approach to the assignment of D codes stages of development and may benefit approaches. Under either approach all RINs would to RINs for domestic producers, foreign from not having to overcome the be generated based on ethanol-equivalent volume, including biomass-based diesel RINs. Under one producers, and importers of renewable disincentive in the form of the same approach, we would propose that the biomass- fuel. Subsequent sections address the Equivalence Value based on straight based diesel standard also be expressed as an generation of RINs in special volume. Given the projected tightness in ethanol-equivalent volume (e.g., 1.5 billion ethanol- circumstances, such as when a the distillate market and relative excess equivalent gallons in 2012). Another approach would be to have the standard expressed as a production facility has multiple supply in the gasoline market in the volume of biomass-based diesel, and to require the applicable combinations of feedstock, biomass-based diesel RINs be adjusted back to a fuel type, and production process 24 Another example would be a fermentation volume basis, with this adjustment just for purposes process in which one ton of cellulose could be used of the biomass-based diesel standard but not for within a calendar year, production to produce either 70 gallons of ethanol or 55 gallons purposes of the other fuels mandates. Either facilities that co-process renewable of butanol. approach would have the same result. biomass and fossil fuels, and production

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facilities for which the lookup table requirements. For example, ethanol a single facility are addressed in Section does not provide an applicable D code. made from corn stover or switchgrass in III.D.3 below. an enzymatic hydrolysis process would For producers for whom none of the a. Domestic Producers count as cellulosic biofuel. Biodiesel defined fuel pathways in the lookup For domestic producers, the lookup made from waste grease could count as table would apply, we propose two table would identify individual fuel biomass-based diesel. Ethanol made possible treatments. First, such ‘‘pathways’’ comprised of unique from sugarcane sugar may count as producers may be able to generate RINs combinations of the type of renewable advanced biofuel depending on the through our proposed system of default fuel being produced, the feedstock used results of the lifecycle assessment D codes as described in Section III.D.5 to produce the renewable fuel, and a conducted for the final rule and a below. Second, if a producer meets the description of the production process. determination about whether the GHG criteria for grandfathered status as Each pathway would be assigned to one threshold for advanced biofuel should described in Section III.B.3 and his fuel of the four specific D codes on the basis be adjusted downward. Finally, under meets the definition of renewable fuel as of the revised renewable fuel definitions an assumed 100-year timeframe and 2% described in Section III.B.1, he could provided in EISA and our assessment of discount rate for GHG emissions continue to generate RINs for his fuel the GHG lifecycle performance for that impacts, a variety of pathways would but would use a D code of 4 for those pathway. A description of the lifecycle count as generic renewable fuel under RINs generated under the grandfathering assessment of each fuel pathway and the the RFS2 program, including ethanol provisions. If a producer was not process we used for determining the made from corn starch in a facility covered by either of these two associated D code can be found in powered by biomass combustion and treatments, we propose that he would Section VI. Note that the subsequent biodiesel made from soybean oil. The not be permitted to generate RINs for his generation of RINs would also require as complete list of pathways that would be product until the lookup table in the a prerequisite that the feedstocks used valid under our proposed RFS program regulations was modified to include a to make the renewable fuel meet the is provided in the regulations at pathway applicable to his operations. definition of ‘‘renewable biomass’’ as § 80.1426(d), based upon an assumed A diesel fuel product produced from described in Section III.B.4, including 100-year timeframe and 2% discount cellulosic feedstocks that meets the 60% applicable land use restrictions. rate for GHG emission impacts. GHG threshold could qualify as either Moreover, a domestic producer could Domestic producers would choose the cellulosic biofuel or biomass-based not introduce renewable fuel into appropriate D code from the lookup diesel. As a result, we are proposing that commerce without generating RINs table in the regulations based on the fuel the producer of such ‘‘cellulosic diesel’’ unless he had records demonstrating pathway that describes their facility. be given the choice of whether to that the feedstocks used to produce the The fuel pathway must be specified by categorize his product as either fuel did not meet the definition of the producer in the registration process cellulosic biofuel or biomass-based renewable biomass. See Section as described in Section III.C. If there diesel. This would allow the producer III.B.4.b.ii for further discussion of this were changes to a domestic producer’s to market his product and the associated issue. facility or feedstock such that their fuel RINs on the basis of market demand. Through our assessment of the would require a D code that was However, we request comment on an lifecycle GHG impacts of different different from any D code(s) which their alternative approach as shown in Table pathways and the application of the existing registration information already III.D.2.a–1 in which an additional D EISA definitions for each of the four allowed, the producer would be code would be defined to represent categories of renewable fuel, including required to revise its registration cellulosic diesel and an obligated party the GHG thresholds, we have information with EPA 30 days prior to would be given the choice of using determined that all four categories changing the applicable D code it uses cellulosic diesel RINs either to meet his would have pathways that could be to generate RINs. Situations in which or her RVO for cellulosic biofuel or for used to meet the Act’s volume multiple fuel pathways could apply to biomass-based diesel.

TABLE III.D.2.a–1—ALTERNATIVE D CODE DEFINITIONS TO ACCOMMODATE CELLULOSIC DIESEL

D value Meaning under RFS1 Meaning under RFS2

1 ...... Cellulosic biomass ethanol ...... Cellulosic biofuel. 2 ...... Any renewable fuel that is not cellulosic biomass Biomass-based diesel. ethanol. 3 ...... Not applicable ...... Cellulosic biofuel or biomass-based diesel. 4 ...... Not applicable ...... Advanced biofuel. 5 ...... Not applicable ...... Renewable fuel.

Under this alternative, producers of product, and hence its potential value to b. Foreign Producers cellulosic diesel would assign a D code an obligated party. The obligated party of 3 to their product rather than being is then given the ability to make a Under RFS1, foreign producers have given a choice of whether to assign a D choice about how to treat cellulosic the option of generating RINs for the code of 1 or 2. Any obligated party that diesel based on the market price and renewable fuel that they export to the acquired a RIN with a D code of 3 could availability of RINs with D codes of 1 U.S. if they want to designate their fuel apply that RIN to either its cellulosic and 2. We request comment on this as cellulosic biomass ethanol or waste- biofuel or biomass-based diesel alternative approach to the designation derived ethanol, and thereby take obligation, but not both. The advantage of D codes for cellulosic diesel. advantage of the additional 1.5 credit of this alternative approach is that it value afforded by the 2.5 Equivalence reflects the full compliance value for the Value for such products. In order to

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ensure that EPA has the ability to are. As under the RFS1 program, the the foreign producer of any renewable enforce the regulations relating to the foreign producer would also be required fuel exported to the U.S. to provide this generation of RINs from such foreign to comply with additional requirements information to the U.S. importer before ethanol producers, the RFS1 regulations designed to ensure that enforcement of the renewable fuel enters U.S. require them to post a bond and submit the regulations at the foreign production commerce even if the foreign producer to third-party engineering reviews of facility would not be compromised. For is not generating RINs himself. their production process. If a foreign instance, foreign producers would be Moreover, the foreign producer should producer does not generate RINs for the required to designate renewable fuel be liable for the accuracy of this renewable fuel that it exports to the intended for export to the U.S. as such information just as if he were the party U.S., the U.S. importer is responsible for and segregate the volume until it generating RINs. Therefore, in order to generating the RINs associated with the reaches the U.S. in order to ensure that ensure that RINs are valid regardless of imported renewable fuel. RINs are only generated for volumes who generates them, we propose that all EISA creates unique challenges in the imported into the U.S. Foreign the provisions described above that implementation and enforcement of the producers would also be required to would be applicable to a foreign renewable fuel standards for imported post a bond to ensure that penalties can producer who generates RINs would renewable fuel. Unlike our other fuels be assessed in the event of a violation. also apply to a foreign producer who programs, EPA cannot determine Moreover, as a regulated party under the does not generate RINs but still exports whether a particular shipment of RFS2 program, foreign producers must renewable fuel to the U.S. This would renewable fuel is eligible to generate allow for potential visits by EPA include registration with the EPA under RINs under the new program by testing enforcement personnel to review the the RFS2 program, being subject to all the fuel itself. Instead, information completeness and accuracy of records the recordkeeping, reporting, and attest regarding the feedstock that was used to and registration information. Non- engagement requirements, and posting a produce renewable fuel and the process compliance with any of these bond. The only exception would be that by which it was produced is vital to requirements could be grounds for the foreign producer would not be determining the proper renewable fuel refusing to allow renewable fuel from required to segregate a specific volume category and RIN type for the imported such a foreign producer to be imported between the foreign producer’s facility fuel. It is for these reasons that we into the U.S. and the import facility if the foreign required foreign producers of cellulosic For RFS2, we are proposing a number producer is not generating RINs, since biomass ethanol or waste-derived of additional provisions to address the importer would be the primary party ethanol under RFS1 to take additional foreign companies that produce responsible for measuring the volume steps to ensure the validity of the RINs renewable fuel for export to the United before generating RINs. they generate. States, but that do not generate their Although we are proposing that RINs For RFS2 we are proposing a similar own RINs for that renewable fuel. These for imported renewable fuel could be approach to that taken under RFS1, but provisions are intended to account for generated by either the importer or the with a number of modifications to the greater difficulties in verifying the foreign producer, it is possible that this account for the changes that EISA makes validity of RINs for imported renewable could result in difficulty in verifying to the definition of renewable fuel. fuel when the importer is generating the that only one set of RINs has been Thus, we propose that foreign producers RINs, given that the importer would generated for a given volume of would have the option of generating generally not have direct knowledge of renewable fuel. One possible solution RINs for any renewable fuel (not just the the feedstocks used to produce the would be to require a foreign producer cellulosic biofuel category) that they renewable fuel, the land used to grow to make a decision regarding RIN export to the U.S. If the foreign producer those feedstocks, or the fuel production generation that would apply for an did not generate RINs, the importer process. We believe that these entire calendar year. Under this would be required to generate RINs for additional provisions would be approach, a foreign producer would be the imported renewable fuel. Our necessary to ensure that RINs required to either generate RINs for all proposed importer provisions are representing imported renewable fuel the renewable fuel that he exports to the covered in more detail in Section and used by obligated parties have been U.S within a calendar year, or to III.D.2.c below. generated appropriately. generate no RINs for the renewable fuel In general, we propose that foreign As described more fully in Section that he exports to the U.S within a producers of renewable fuel who intend III.D.2.c below, importers would only be calendar year. While we are not to export their fuel to the U.S. would allowed to import renewable fuel from proposing this approach it today’s use the same process as domestic registered foreign producers and would action, we request comment on it. producers to generate RINs, namely the be required to generate RINs for all As described in Section III.B.4.b.ii, we lookup table to identify the appropriate imported renewable fuel that has not are proposing that domestic producers D code as a function of fuel type, been assigned RINs by the foreign could only introduce renewable fuel production process, and feedstock. They producer. Like domestic and foreign into commerce without generating RINs would be required to be registered with producers who generate RINs, the if they demonstrate that feedstocks used the EPA as a producer under the RFS2 importer must be able to determine if to produce the fuel did not meet the program and would be subject to the the renewable biomass definition has definition of renewable biomass. Thus it same recordkeeping, reporting, and been met before generating RINs. The would not be sufficient for a domestic attest engagement requirements as importer must also have enough producer to simply fail to make a domestic producers, including those information about the production demonstration that the renewable provisions associated with ensuring that process and feedstock to be able to use biomass definition had been met, and the feedstocks they use meet the the lookup table to identify the thereby avoid generation of RINs. We definition of renewable biomass. They appropriate D code to include in the propose that a similar approach would would also be required to submit to RINs he generates. Since the foreign be applied to imported renewable fuel. third-party engineering reviews of their producer is the only party who can As a result, all renewable fuel that production process and use of provide this information, we believe would be imported into the U.S. would feedstocks, just as domestic producers that it would be appropriate to require be required to come with

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documentation regarding the status of have to provide this information to the feedstocks and production process used the feedstock’s compliance with the importer. to produce the renewable fuel, it may renewable biomass definition. In the Under today’s proposal, importers not be necessary to place the burden case of documentation indicating that would be able to import renewable fuels upon importers for acquiring this the renewable biomass definition had only under one of the following information before they generate RINs. been met, the importer would be scenarios: Instead, an alternative approach would required to generate RINs. In the case of 1. The importer receives RINs prohibit importers from generating any documentation indicating that the generated by the registered foreign RINs, and instead require foreign renewable biomass definition had not producer when he imports a volume of producers to generate RINs for all been met, the importer would be renewable fuel. renewable fuel that they export to the prohibited from generating RINs but 2. The imported renewable fuel is not U.S. We recognize that this would be a could still import the renewable fuel accompanied by RINs generated by the significant change from RFS1, and thus into the U.S. Renewable fuel that was registered foreign producer, and the we are not proposing it. However, since foreign producer provides the importer not accompanied by any documentation it would place the same responsibilities with: regarding the status of the feedstock’s on foreign producers as domestic compliance with the renewable biomass —A demonstration that the renewable producers, we request comment on it. definition could not be imported into biomass definition has been met for the U.S. the volume of renewable fuel being 3. Facilities With Multiple Applicable Our proposed approach to foreign imported. Pathways producers is consistent with the —Information about the feedstock and approach we propose taking for production process used to produce If a given facility’s operations can be domestic producers, in that the the renewable fuel. fully represented by a single pathway, producer is responsible for ensuring that In this case, the importer would be then a single D code taken from the RINs generated for renewable fuel used required to generate RINs for the lookup table will be applicable to all in the U.S. are valid and categorized imported renewable fuel before RINs generated at or imported into that appropriately. While our proposed introducing it into commerce in the facility. However, we recognize that this approach to foreign producers of contiguous 48 states or Hawaii. will not always be the case. Some renewable fuel under RFS2 would 3. The imported renewable fuel is not facilities use multiple feedstocks at the require additional actions in accompanied by RINs generated by the same time, or switch between different comparison to their general registered foreign producer, and the feedstocks over the course of a year. A requirements under RFS1, we believe foreign producer provides the importer facility may be modified to produce the these provisions would be necessary to with a demonstration that the renewable same fuel but with a different process, ensure that the volume mandates shown biomass definition has not been met for or may be modified to produce a in Table II.A.1–1 are met, given the new the volume of renewable fuel being different type of fuel. Any of these definitions for renewable fuel and imported. See further discussion of this situations could result in multiple renewable biomass in EISA. We request issue in Section III.B.4.b.ii. The pathways being applicable to a facility, comment on our proposed approach to importer would be prohibited from and thus there may be more than one D foreign producers. generating RINs for the imported code used for various RINs generated at c. Importers volume, but could still introduce the the facility. renewable fuel into commerce. Under RFS1, importers who import If more than one pathway applies to If none of these scenarios applied, the a facility within a compliance period, more than 10,000 gallons in a calendar importer would be prohibited from year must generate RINs for all imported no special steps would need to be taken importing renewable fuel. Our proposed if the D codes were the same for all the renewable fuel based on its type, except approach to imported fuels would apply for cases in which the foreign producer applicable pathways. In this case, all to both neat renewable fuel and RINs generated at the facility would generated RINs for cellulosic biomass renewable fuels blended into gasoline or have the same D code. As for all other ethanol or waste-derived ethanol. Due to diesel. producers, the producer with multiple the new definitions of renewable fuel As described in Section III.B.4.e, we and renewable biomass in EISA, also seek comment on an alternative applicable pathways would describe its importers could no longer generate RINs approach to imported renewable fuel in feedstock(s), fuel type(s), and under RFS2 on the basis of fuel type which foreign renewable fuel producers production process(es) in its annual alone. Instead, they must be able to would have the option of not report to the Agency so that we could determine whether or not the renewable participating in RFS2 but still export verify that the D code used was biomass definition has been met for the renewable fuel to the U.S. Under this appropriate. renewable fuel they intend to import, alternative approach, foreign producers However, if more than one pathway and they must also have sufficient would have to meet requirements for applies to a facility within a compliance information about the feedstock and segregating their fuel from renewable period and these pathways have been process used to make the renewable fuel fuel for which RINs were generated, and assigned different D codes, then the to allow them to identify the the importer of their fuel would be producer must determine which D appropriate D code from the lookup required to track it to ensure that the codes to use when generating RINs. table for use in the RINs they generate. fuel remains segregated in the U.S. and There are a number of different ways As described in Section III.D.2.b above, is not used by a domestic company for that this could occur, and our proposed we are proposing that in order for an illegal RIN generation. approach to designating D codes for importer to import renewable fuel into While it is important that all RINs be RINs in these cases is described in Table the U.S., the foreign producer would based on accurate information about the III.D.3–1.

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TABLE III.D.3–1—PROPOSED APPROACH TO ASSIGNING MULTIPLE D CODES FOR MULTIPLE APPLICABLE PATHWAYS

Case Description Proposed approach

1 ...... The pathway applicable to a facility changes on a The applicable D code used in generating RINs specific date, such that one single pathway ap- must change on the date that the fuel pro- plies before the date and another single path- duced changes pathways. way applies on and after the date. 2 ...... One facility produces two or more different types The volumes of the different types of renewable of renewable fuel at the same time. fuel should be measured separately, with dif- ferent D codes applied to the separate vol- umes. 3 ...... One facility uses two or more different feedstocks For any given batch of renewable fuel, the pro- at the same time to produce a single type of ducer should assign the applicable D codes renewable fuel. using a ratio (explained below) defined by the amount of each type of feedstock used.

In general, we are not aware of a conducted for this proposal only represent corn-ethanol facilities that dry scenario in which a facility uses two examined cases in which a corn-ethanol only a portion of their distiller’s grains. different processes in parallel to convert facility dried 100% of its distiller’s We also request comment on whether a single type of feedstock into a single grains or left 100% of its distiller’s RINs could be assigned to only a portion type of renewable fuel. Therefore, we grains wet. As a result, a corn-ethanol of the facility’s ethanol in cases wherein have not created a case in Table III.D.3– facility that dried only a portion of its only a portion of the distiller’s grains 1 to address it. However, we know that distiller’s grain would be treated as if it are dried. some corn-ethanol facilities may dry dried 100% of its grains, and would only a portion of their distiller’s grains thus need to implement additional We propose that the cases listed in and leave the remainder wet. Using the GHG-reducing technologies as described Table III.D.3–1 be treated as lifecycle with an assumed 100 year in the lookup table in order to qualify hierarchical, with Case 2 only being timeframe and 2% discount rate for to generate RINs. This is reflected in the used to address a facility’s GHG emission impacts, the treatment of list of required production technologies circumstances if Case 1 is not the distiller’s grains could impact the in the lookup table at § 80.1426(d) for applicable, and Case 3 only being used determination of whether the 20% GHG facilities that dry any portion of their to address a facility’s circumstances if threshold for renewable fuel has been distiller’s grains. In practice, depending Case 2 is not applicable. We believe that met, a corn-ethanol facility that dries on the selection of other technologies, it this approach covers all likely cases in some portion of its distiller’s grains may be possible for a facility using some which multiple applicable pathways would need to implement additional combination of dry and wet distiller’s may apply to a renewable fuel producer. technologies in order to qualify to grains to meet the 20% GHG threshold. Some examples in which Case 2 or 3 generate RINs for all the ethanol it Therefore we request comment on would apply are provided in Table produces (if the facility has not been whether a selection of pathways should III.D.3–2. grandfathered). The lifecycle analyses be included in the lookup table that

TABLE III.D.3–2—EXAMPLES OF FACILITIES WITH MULTIPLE PATHWAYS

Applicable Example case Reasoning

Facility makes both diesel and naphtha (a gasoline blendstock) 2 The production of two types of renewable fuel from the same from gasified biomass in a Fischer-Tropsch process. feedstock and process makes it highly likely that the two pathways would be assigned the same D code. If LCA deter- mined that this was not the case, the volumes of diesel and naphtha can be measured separately and assigned separate batch-RINs with different D codes. Facility produces ethanol from corn starch and corn cobs/husks 3 There is only one fuel produced, so Case 2 cannot apply. Facility makes both ethanol and butanol through two different 2 Case 2 is the default since there are two separate fuels pro- processes using corn starch. duced. However, Case 3 would not apply regardless because there is only one feedstock. Facility makes ethanol through an enzymatic hydrolysis process 3 There is only one fuel produced, so Case 2 cannot apply. using both switchgrass and corn stover.

A facility where two or more different different D codes. The D codes would be how many gallon-RINs should be types of feedstock were used to produce chosen on the basis of the different assigned to each D code. Our proposed a single fuel (such as Case 3 in Table pathways as defined in the lookup table calculations are given in the regulations III.D.3–1) would be required to generate in § 80.1426(d). The number of gallon- at § 80.1126(d)(5). two or more separate batch-RINs 26 for a RINs that would be included in each of In determining the useable energy single volume of renewable fuel, and the batch-RINs would depend on the content of the feedstocks, we propose to these separate batch-RINs would have relative amount of the different types of take into account several elements to feedstocks used by the facility. We ensure that the number of gallon-RINs 26 Batch-RINs and gallon-RINs are defined in the propose to use the useable energy associated with each D code is RFS1 regulations at 40 CFR 80.1101(o). content of the feedstocks to determine appropriate. For instance, we propose

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that only that portion of a feedstock renewable fuel producers would have of gallon-RINs corresponds only to the which is expected to be converted into ready access to information about total renewable portion of the fuel. renewable fuel by the facility should be feedstock mass used each day, such that Under RFS1, we created a provision counted in the calculation. For example, the timely generation of RINs should not to address the co-processing of a biochemical cellulosic ethanol be unduly affected. We request ‘‘renewable crudes’’ along with conversion process that could not comment on the effort and time petroleum feedstocks to produce a convert the lignin into ethanol would involved in collecting information on gasoline or diesel fuel that is partially not include the lignin portion of the feedstock mass and translating this renewable. See 40 CFR 80.1126(d)(6). biomass in the calculation. This information on a daily basis into RINs However, this provision would not approach would also take into account assigned to volumes of renewable fuel. apply in cases where either the the conversion efficiency of the facility. In order to generate RINs when the renewable feedstock or the fossil fuel We propose that the producer of the processing of two or more different feedstock is a gas (e.g., biogas, natural renewable fuel would be required to feedstocks in the same facility results in gas) or a solid (e.g. biomass, coal). designate this fraction for the feedstocks two or more different applicable D Therefore, we propose to eliminate the processed by his facility and to include codes but a single renewable fuel, the existing provision applicable only to this information as part of its reporting producer would continue to determine liquid feedstocks and replace it with a requirements. the total number of gallon-RINs that more comprehensive approach that We are also proposing to use the must be generated for and assigned to a could apply to liquid, solid, or gaseous energy content of the feedstocks instead given volume of renewable fuel using feedstocks and any type of conversion of their mass since we believe that their the process established under RFS1. In process. Our proposed approach would relative energy contents are more short, the total volume of the renewable be similar to the treatment of renewable closely related than their mass to the fuel would be multiplied by its fuels with multiple D codes as described energy in the renewable fuel. Producers Equivalence Value. However, the in Section III.D.3 above. Thus, the would be required to designate the feedstock’s useable energy content producer would determine the energy content (in Btu/lb) of the portion would be used to divide the resulting renewable fuel volume that would be of each of their feedstocks which is number of gallon-RINs into two or more assigned RINs based on the amount of converted into fuel. We request groups, each corresponding to a energy in the renewable feedstock comment on whether producers would different D code. Two, three, or more relative to the amount of energy in the determine these values independently separate batch-RINs could then be fossil feedstock. Just as two different for their own feedstocks, or whether a generated and assigned to the single batch-RINs would be generated for a standard set of such values should be volume of renewable fuel. The sum of single volume of renewable fuel developed and incorporated into the all gallon-RINs from the different batch- produced from two different renewable regulations for use by all renewable fuel RINs would be equal to the total number feedstocks, only one batch-RIN would producers. If we did specify a standard of gallon-RINs that must be generated to be generated for a single volume of set of energy content values, we request represent the volume of renewable fuel. renewable fuel produced from both a comment on what those values should As described in Section III.J, we renewable feedstock and a fossil be and/or the most appropriate sources propose that in their reports, producers feedstock, and this one batch-RIN would for determining those values. of renewable fuel be required to submit be based on the contribution that the Some components in the calculation information on the feedstocks they used, renewable feedstock makes to the of the useable energy content of their production processes, and the type volume of renewable fuel. See feedstocks are unlikely to vary of fuel(s) they produced during the § 80.1426(d)(6) for our proposed significantly for a particular type of compliance period. This would apply to calculations under these circumstances. feedstock. This would include that both domestic producers and foreign For facilities that co-process portion of a feedstock which is expected producers who export any renewable renewable biomass and fossil fuels to to be converted into renewable fuel by fuel to the U.S. We would use this produce a single fuel that is partially the facility, and the relative amount of information to verify that the D codes renewable, we propose to use the energy in the two feedstocks. For these used in generating RINs were relative energy in the feedstocks to factors, we propose that one set of appropriate. determine the number of gallon-RINs values be determined by the producer that should be generated. As shown in 4. Facilities That Co-Process Renewable and applied to all renewable fuel the regulations at § 80.1426(d)(6), the Biomass and Fossil Fuels production within a calendar year. The calculation of the relative energy values could be reassessed annually and We expect situations to arise in which contents would include factors that take adjusted as necessary. a producer uses a renewable feedstock into account the conversion efficiency Although we are proposing annual simultaneously with a fossil fuel of the plant, and as a result, potentially determinations of the portion of a feedstock, producing a single fuel that is different reaction rates and byproduct feedstock which is expected to be only partially renewable. For instance, formation for the various feedstocks converted into renewable fuel by the biomass might be cofired with coal in a would be accounted for. The relative facility and the relative amount of coal-to-liquids (CTL) process that uses energy content of the feedstocks would energy in the two feedstocks, we are Fischer-Tropsch chemistry to make be used to adjust the basic calculation proposing daily determinations of the diesel fuel, biomass and waste plastics of the number of gallon-RINs downward total mass of each type of feedstocks might be fed simultaneously into a from that calculated on the basis of fuel used by the facility. This approach catalytic or gasification process to make volume alone. The D code that would be would take into account the fact that the diesel fuel, or vegetable oils could be assigned to the RINs would be drawn relative amount of the different fed to a hydrotreater along with from the lookup table in the regulations feedstocks used could vary frequently, petroleum to produce a diesel fuel. In as if the feedstock was entirely and thus the determination of the total these cases, the diesel fuel would be renewable biomass. Thus, for instance, useable energy content of the feedstocks only partially renewable. We propose a coal-to-liquids plant that co-processes would be unique to the renewable fuel that RINs must be generated in such some cellulosic biomass to make diesel produced each day. We believe that cases, but in such a way that the number fuel would be treated as a plant that

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produces only cellulosic diesel for whole, it might not meet the 60% GHG assigned the appropriate D code in the purposes of identifying the appropriate threshold for cellulosic biofuel. As a regulations. To address some of these D code. result, the portion of the ethanol fuel pathways, we are proposing the use One drawback of our proposed produced from corn stover could not be of default D codes.27 approach is that it does nothing to counted as cellulosic biofuel but would Under our proposed approach, the address lifecycle GHG emissions instead count only as renewable fuel, producer would be required to register associated with the portion of the fuel even though our lifecycle analyses have under the RFS program and provide that comes from the fossil fuel determined that ethanol from corn information about their facility as feedstock. While the lifecycle GHG stover does meet the 60% GHG described in Section III.C. The producer thresholds under RFS2 are specific to threshold. Nevertheless, we seek will also be required to provide any fuels made from renewable biomass, comment on this alternative approach. information necessary for EPA to allowing a fuel producer to generate As another alternative to using the perform a proper lifecycle analysis. RINs for the co-processing of renewable relative energy in the feedstocks to Additionally, the company would need biomass with fossil fuels might provide determine the number of gallon-RINs to register their renewable fuel under a greater incentive for production of that should be generated, we could title 40 CFR part 79 as a motor vehicle transportation fuels from processes that allow renewable fuel producers to use fuel. If EPA determines, based on the have high lifecycle GHGs. In such cases, an accepted test method to directly company’s registration, that they are not the GHG benefits of the renewable fuel measure the fraction of the fuel which producing renewable fuel, the company may be overwhelmed by the GHG originates with biomass rather than a will not be able to generate RINs. increases of the fossil fuel. This is of fossil fuel feedstock. For instance, In order to generate RINs, the particular concern for CTL processes ASTM test method D–6866 can be used producer of renewable fuel would apply which generally produce higher to determine the renewable content of through our registration system to use lifecycle GHG emissions per unit of gasoline. However, such a test method the D code that best represents his transportation fuel produced than could not distinguish between fuel combination of fuel type, feedstock, and traditional refinery processes that use made from feedstocks that meet the production process. If the producer’s petroleum. Under our proposed definition of renewable biomass, and combination of fuel type and feedstock, approach to the treatment of co- other biomass feedstocks which do not but not production process, is processing of renewable biomass and meet the definition of renewable represented in an already defined fossil fuels, incentives would be biomass. We request comment on the pathway combination of fuels, provided for renewable fuels with lower use of ASTM D–6866 or equivalent test processes, or feedstocks, the producer lifecycle GHG emissions, but there will methods to determine the number of would use the highest numerical D code be little disincentive for production of RINs generated when multiple applicable to the fuel and feedstock high GHG-emitting fuels made from feedstocks are used simultaneously to combination. For example, if a fuel and fossil fuels. make a fuel. feedstock spans the D Codes 3 and 4 As an alternative to our proposed then the producer would use 4 until the approach, we could treat fuels produced 5. Treatment of Fuels Without an Applicable D Code regulations were updated. The producer through co-processing of renewable then would generate RINs using the D biomass and fossil fuel feedstocks in an Among all fuels covered by our code 4, until EPA could perform a aggregate fashion rather than focusing proposed RFS2 program, we have lifecycle analysis and issue a change to only on the renewable portion of those identified a number of specific the regulations to reflect the new fuels. In this approach, we would ‘‘pathways’’ of fuels, defined by fuel pathway. If the producer is making a require the whole fuel produced at co- type, feedstock, and various production new fuel or using a new feedstock that processing facilities to meet the lifecycle process characteristics. This list producer will still need to apply, but GHG thresholds under RFS2. If, for includes fuels that either already exist would be unable to generate RINs until instance, a diesel fuel produced from in the marketplace or are expected to the regulations were updated with the co-processing renewable biomass and exist sometime during the next decade, new pathway. coal in a Fischer-Tropsch process were and for which we had sufficient Since certain combinations of fuel, determined to not meet the 20% GHG information to conduct a lifecycle production process, and feedstock have threshold, no RINs could be generated analysis of the GHG emissions. As been determined through our lifecycle even though the renewable portion of described in III.D.2, we have assigned analysis to not meet the minimum 20% the diesel fuel might meet the 20% GHG each pathway a D code corresponding to GHG threshold, they would be ineligible threshold. However, this alternative the four categories of renewable fuel to generate RINs and EPA would not approach would require a lifecycle defined in EISA. allow producers using those processes analysis that is specific to the relative Despite our efforts to explicitly to generate RINs using a default D code. amounts of renewable biomass and address the existing or possible To effectuate this, we propose to fossil fuel feedstock being used at a pathways in our proposed program, it is provide a statement in the regulations of particular facility, which would in turn expected that a fuel, process, or pathways that are prohibited from using require a facility-specific lifecycle GHG feedstock will arise that is a renewable a default D code. For example, if a model. As described in Section II.A.3, fuel meeting the RFS definitions, and producer is producing ethanol from this is beyond the capabilities of our yet is not among the fuels we explicitly cornstarch in a process that uses coal or current modeling tools. Moreover, this identified in the regulations as a RIN- natural gas for process heat, then alternative approach could have generating fuel. This could occur for an regardless of other elements of the undesirable effects on facilities that entirely new fuel type, a known fuel production process the producer may produce renewable fuel from multiple produced from a new feedstock, or a not use a default D code, but must renewable feedstocks. For instance, if a known fuel produced through a unique register and provide information facility produced ethanol from both production process. In such cases, the corn starch and corn stover and the fuel may meet our definition of 27 Additional default requirements applicable to lifecycle GHG assessment was renewable fuel covered under our importers of renewable fuels are discussed in conducted for this specific facility as a program, but would not have been Section III.D.2.c.

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necessary to conduct a lifecycle collectively ensure that governmental from CCS in meeting GHG thresholds analysis. research programs address the range of include: the means through which the EPA will not conduct a rulemaking potential environmental risks associated CO2 would be captured from the every year to adjust the regulations for with CCS and that appropriate renewable fuel production facility, the new fuels, processes, or feedstocks. EPA regulatory frameworks are in place to minimum fraction that must be will periodically update the regulations manage risks.28 captured, appropriate means for as necessary under CAA section The EPA has experience regulating transporting to the injection site, and 211(o)(4) and may take the opportunity underground injection of various fluids appropriate monitoring procedures to to update the list of fuel pathways. and believes that well selected, ensure long-term storage of CO2. We Companies are encouraged to work with designed, and managed sites can believe the CO2 that would be most EPA early to provide information about sequester CO2 for long periods of time. readily available for capture in an fuels, processes, or feedstocks not in the The Safe Drinking Water Act’s (SDWA) ethanol production facility would be regulations so that we can do a proper Underground Injection Control (UIC) that which is produced during the lifecycle analysis before these fuels, Program has been successfully fermentation process, not CO2 that is processes, or feedstocks are regulating tens of thousands of injection generated during the combustion of commercially viable. EPA is proposing wells for over 35 years. The UIC fossil fuels for process energy, since CO2 that if the regulations are not updated program’s siting, well construction, and from the fermentation process provides with in 5 years of receipt of the monitoring and testing requirements are a more concentrated stream that is more application and the application is not keys to ensuring that injected fluids amenable to capture. However, we rejected in that time then the producer remain in the geologic rock formations request comment on the efficacy of will no longer be able to generate RINs specifically targeted for injection. capturing CO2 from the combustion of using a default D code until the In March 2007, the EPA issued UIC fossil fuels for process heat. regulations are updated. permitting guidelines for pilot geologic A mechanism for accounting for potential leakage of captured CO 6. Carbon Capture and Storage (CCS) sequestration projects in order to ensure 2 that these projects could move forward during transport to the storage site or One element of the production under an appropriate regulatory after injection has occurred would also process that may enable renewable fuel framework. Subsequently, on July 25, be required. The renewable fuel producers to greatly improve their GHG 2008, EPA issued a proposed producer would be responsible for emissions is carbon capture and storage rulemaking that would address tracking any leaks that occur after CO2 (CCS). CCS involves the process of commercial-scale projects and establish capture. We request comment on the capturing CO2 from an industrial or the regulatory requirements for type and level of surface and/or energy-related source, transporting it to underground injection of CO for the subsurface monitoring that would be a suitable storage site, and isolating it 2 purpose of geologic storage (73 FR required to demonstrate long-term from the atmosphere for long periods of 43492). These proposed regulations storage of CO2. We also request time. While we are not proposing a include permitting requirements, comment on whether additional specific pathway in today’s NPRM that criteria for establishing and maintaining monitoring and reporting requirements would allow a renewable fuel producer the mechanical integrity of wells, would be appropriate. For example, to use CCS to demonstrate compliance minimum criteria for siting, injection whether there should be a requirement with the GHG thresholds, we believe well construction and operating for the monitoring and reporting of CO2 that CCS could be an effective method requirements, recordkeeping and volumes captured, transported, injected for significantly reducing the GHG reporting requirements, etc. While these and stored, as well as any fugitive emissions associated with renewable regulations cover many operational emissions released. We seek comment fuel production. on the appropriateness of establishing a Although there are several possible aspects of underground injection and monitoring geologic sequestration sites, performance standard for CO2 leakage approaches for long-term storage of CO2, during transport, injection, and/or this section will only address geologic their purpose is to protect underground sources of drinking water. The SDWA geologic storage, and any data that storage as a means to reduce CO2 might be available to help develop such emissions from renewable fuel does not provide authority to develop regulations for all areas related to CCS, a performance standard. production facilities. This method Finally, in order to generate RINs, the including capture and transport of CO2 entails injecting CO2 deep underground renewable fuel producer would have to, and accounting or certification for GHG and monitoring to ensure long-term at minimum, demonstrate that a emissions reductions. The UIC isolation from the atmosphere. The sufficient amount of CO was requirements will not replace or 2 remainder of this section describes the sequestered to reach the appropriate supersede other statutory or regulatory efforts to establish regulatory lifecycle GHG threshold. We expect that requirements for protection of human requirements for CCS, and the further the regulations would need to specify health and the environment. Thus, work that needs to be done before the minimum fraction of CO emitted parties that implemented CCS would 2 allowing the use of CCS as an element that must be captured and stored in still need to obtain all necessary permits in pathways eligible for generating RINs order for a renewable fuel producer to from appropriate State and Federal under the RFS2 program. qualify for generating RINs. We request authorities under the Clean Air Act or Although there is limited experience comment on whether this approach is any other applicable statutes and with integrated CCS systems in the US, appropriate. regulations. where CO2 is captured, transported and injected for long-term storage, there are Specific areas that would need to be E. Applicable Standards commercial CCS projects operating addressed before allowing the CAA section 211(o)(3) describes how today and several DOE pilot projects renewable fuel producers to benefit the applicable standards are to be underway to further demonstrate CCS in calculated. The only changes made to 28 More information on the EPA’s UIC Program a variety of industrial sectors and and ongoing research into CCS issues is available this provision by EISA are substituting geological settings. The EPA has been at: http://www.epa.gov/safewater/uic/ ‘‘transportation fuel’’ for gasoline, and working closely with DOE to wells_sequestration.html. reflecting the expanded number of years

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and additional renewable fuel categories II.A.1–1. The specific formulas we relevant to gasoline). The remaining added by Congress in CAA 211(o)(2). In propose using to calculate the portion would apply to diesel. The general the form of the standard will not renewable fuel standards are described result would be seven standards instead change under RFS2. The renewable fuel below in Section III.E.1. of four. This approach to setting standards will continue to be expressed In order for an obligated party to standards would more readily align the as a volume percentage, and will be demonstrate compliance, the percentage RFS obligations with the relative used by each refiner, blender or standards would be converted into the amounts of gasoline and diesel importer to determine their renewable volume of renewable fuel each obligated produced or imported by each obligated volume obligations. The applicable party is required to satisfy. This volume party. For instance, a refiner that percentages are set so that if each of renewable fuel is the volume for produced only diesel fuel would have regulated party meets the percentages, which the obligated party is responsible no obligations under the RFS program then the amount of renewable fuel, under the RFS program, and would for renewable fuels that are used to cellulosic biofuel, biomass-based diesel, continue to be referred to as its displace gasoline. However, this and advanced biofuel used will meet the Renewable Volume Obligation (RVO). alternative approach relies on volumes specified in Table II.A.1–1.29 Since there would be four separate projections of the relative amounts of The new renewable fuel standards standards under the RFS2 program, gasoline-displacing and diesel- would be based on both gasoline and there would likewise be four separate displacing renewable fuels that would diesel volumes as opposed to only RVOs applicable to each refiner, need to be updated every year. While gasoline. Under CAA section 211(o)(3), importer, or other obligated party. such projections would be available EPA must determine the refiners, However, all RVOs would be through our proposed Production blenders and importers who are subject determined in the same way as Outlook Reports (see Section III.K), we to the standard. We propose that the described in the current regulations at nevertheless believe that such an standard would apply to refiners, § 80.1107, with the exception that each approach would unnecessarily blenders and importers of diesel in standard would apply to the sum of all complicate the program, and thus we addition to gasoline, for both highway gasoline and diesel produced or are not proposing it. However, we and nonroad uses. As described more imported as opposed to just the gasoline request comment on it. fully in Section III.F.3, we are proposing volume. The formulas we propose using In determining the applicable at this time that other producers of to calculate the RVOs under the RFS2 percentages for a calendar year, EISA transportation fuel, such as producers of program are described in Section III.G.1. requires EPA to adjust the standard to prevent the imposition of redundant natural gas, propane, and electricity 1. Calculation of Standards from fossil fuels, would not be subject obligations on any person and to to the standard. Since the standard a. How Would the Standards Be account for renewable fuel use during would apply to refiners, blenders and Calculated? the previous calendar year by exempt importers of gasoline and diesel, these Table II.A.1–1 shows the required small refineries, defined as refineries are also the transportation fuels that overall volumes of four types of that process less than 75,000 bpd of would be used to determine the annual renewable fuel specified in EISA. The crude oil. As a result, in order to be volume obligation of the refiner, blender four separate renewable fuel standards assured that the percentage standards or importer. would be based primarily on (1) the 49- will in fact result in the volumes shown The projected volumes of gasoline state 30 gasoline and diesel consumption in Table II.A.1–1, we must make several and diesel used to calculate the volumes projected by EIA, and (2) the adjustments to what otherwise would be standards would continue to be total volume of renewable fuels required a simple calculation. provided by EIA’s Short-Term Energy by EISA for the coming year. Each As stated, the renewable fuel Outlook (STEO). The standards renewable fuel standard will be standards for a given year are basically applicable to a given calendar year expressed as a volume percentage of the ratio of the amount of each type of would be published by November 30 of combined gasoline and diesel sold or renewable fuel specified in EISA for that the previous year. The renewable fuel introduced into commerce in the U.S., year to the projected 49-state non- standards would also continue to take and will be used by each obligated party renewable combined gasoline and diesel into account various adjustments. For to determine its renewable volume volume for that year. While the required instance, gasoline and diesel volumes obligation. amount of total renewable fuel for a would be adjusted to account for the While we are proposing that the given year is provided by EISA, the Act required renewable fuel volumes, and standards be based on the sum of all requires EPA to use an EIA estimate of gasoline and diesel volumes produced gasoline and diesel, an alternative the amount of gasoline and diesel that by small refineries and small refiners would split the standards between those will be sold or introduced into would continue to be exempt through that would be specific to gasoline and commerce for that year to determine the 2010. those that would be specific to diesel. percentage standards. The levels of the While the calculation methodology To accomplish this, it would be percentage standards would be reduced for determination of standards would necessary to project the fraction of the if Alaska or a U.S. territory chooses to not change, there would be four separate volumes shown in Table II.A.1–1 for participate in the RFS2 program, as standards under the new RFS2 program, cellulosic biofuel, advanced biofuel, and gasoline and diesel produced in or corresponding to the four separate total renewable fuel that would imported into that state or territory volume requirements shown in Table represent gasoline-displacing renewable would then be subject to the standard. As mentioned above, we are fuel, and apply this portion of the proposing that EIA’s STEO continue to 29 Actual volumes can vary from the amounts required volumes to gasoline (by be the source for projected gasoline, and required in the statute. For instance, lower volumes definition the biomass-based diesel may result if the statutorily required volumes are now diesel, consumption estimates. standard would have no component adjusted downward according to the waiver These volumes include renewable fuel provisions in CAA 211(o)(7)(D). Also, higher or lower volumes may result depending on the actual 30 Hawaii opted-in to the original RFS program; use. In order to achieve the volumes of consumption of gasoline and diesel in comparison that opt-in is carried forward to the proposed new renewable fuels specified in EISA, the to the projected volumes used to set the standards. program. gasoline and diesel volumes used to

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determine the standard must be the non- California small refiners, we estimate subsequently opted in). However, renewable portion of the gasoline and that small refinery volumes constitute because renewable fuel produced in diesel pools. In order to get total non- 11.9% of the gasoline pool, and 15.2% Alaska or a U.S. territory is unlikely to renewable gasoline and diesel volumes, of the diesel pool. be transported to the contiguous 48 we must subtract the total renewable CAA section 211(o) requires that the states or to Hawaii, including their fuel volume from the total gasoline and small refinery adjustment also account renewable fuel volumes in the diesel volume. As with RFS1, the best for renewable fuels used during the calculation of the standard would not estimation of the coming year’s prior year by small refineries that are serve the purpose intended by section renewable fuel consumption is found in exempt and do not participate in the 211(o) of the Clean Air Act of ensuring Table 11 (U.S. Renewable Energy Use by RFS2 program. Accounting for this that the statutorily required renewable Sector: Base Case) of the STEO. volume of renewable fuel would reduce fuel volumes are consumed in the 48 CAA section 211(o) exempts small the total volume of renewable fuel use contiguous states and any state or refineries 31 from the RFS requirements required of others, and thus territory that opts in. until the 2011 compliance period. In directionally would reduce the RFS1, we extended this exemption to percentage standard. However, as we In summary, we are proposing that the few remaining small refiners not discussed in RFS1, the amount of the total projected non-renewable already exempted.32 Since EPA renewable fuel that would qualify, i.e., gasoline and diesel volumes from which proposes that small refineries and small that was used by exempt small the annual standards are calculated be refiners continue to be exempt from the refineries and small refiners but not based on EIA projections of gasoline and program until 2011 under the new RFS2 used as part of the RFS program, is diesel consumption in the contiguous regulations, EPA will exclude their expected to be very small. In fact, these 48 states and Hawaii, adjusted by gasoline and diesel volumes from the volumes would not significantly change constant percentages of 11.9% and overall non-renewable gasoline and the resulting percentage standards. 15.2% in 2010 to account for small diesel volumes used to determine the Whatever renewable fuels small refinery/refiner gasoline and diesel applicable percentages until 2011. EPA refineries and small refiners blend will volumes, respectively, and with built-in believes this is appropriate because the be reflected as RINs available in the correction factors to be used when and percentage standards need to be based market; thus there is no need for a if Alaska or a territory opt-in to the on the gasoline and diesel subject to the separate accounting of their renewable program. If actual gasoline and diesel renewable volume obligations, to fuel use in the equations used to consumption were to exceed the EIA achieve the overall required volumes of determine the standards. We thus are projections, the result would be that renewable fuel. Because the total small proposing, as for RFS1, that this value renewable fuel volumes would exceed refinery and small refiner gasoline be zero. the statutory volumes. Conversely, if production volume is expected to be Just as with their corresponding actual gasoline and diesel consumption fairly constant compared to total U.S. gasoline and diesel volumes, renewable was less than the EIA projection for a transportation fuel production, we are fuels used in Alaska or U.S. territories given year, actual renewable fuel proposing to estimate small refinery and are not included in the renewable fuel volumes could be lower than the small refiner gasoline and diesel volumes that are subtracted from the statutory volumes depending on market volumes using a constant percentage of total gasoline and diesel volume conditions. Additional special national consumption, as we did in estimates. Section 211(o) of the Clean considerations in establishing the RFS1. Using information from gasoline Air Act requires that the renewable fuel annual cellulosic biofuel standard are batch reports submitted to EPA for 2006, be consumed in the contiguous 48 discussed below in Section III.E.1.c. EIA data, and input from the California states, and any other state or territory The following formulas will be used Air Resources Board regarding that opts in to the program (Hawaii has to calculate the percentage standards:

RFV Std=× 100% CB, i CB, i ()− +−()−+−()+ ()− − Gii RG GS i RGS i GE iii D RD DS iRDSii DE

RFV Std=× 100% BBD, i BBD, i ()− +−()−+−()+ ()− − Gii RG GS i RGS i GE iii D RD DSiii RDS DE

RFV Std=× 100% AB, i AB, i ()− +−()−+−()+ ()− − Gii RG GS i RGS i GE iii D RD DS iRDSii DE

RFV Std=× 100% RF, i RF, i ()− +−()−+−()+ ()− − Gii RG GS i RGS i GE iii D RD DS iRDSii DE

31 Under section 211(o) of the Clean Air Act, 32 See Section IV.B.2. small refineries are those with 75,000 bbl/day or less average aggregate daily crude oil throughput.

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Where the comment period associated with TABLE III.E.1.b–1—PROPOSED StdCB,i = The cellulosic biofuel standard for today’s NPRM, and we intend to issue STANDARDS FOR 2010 year i, in percent a Federal Register notice by November [Percent] StdBBD,i = The biomass-based diesel standard 30, 2009 setting the applicable for year i, in percent standards for 2010. While we are not StdAB,i = The advanced biofuel standard for Cellulosic biofuel ...... 0.06 year i, in percent proposing standards for 2011 and Biomass-based diesel ...... 0.71 StdRF,i = The renewable fuel standard for year beyond, we present our current Advanced biofuel ...... 0.59 i, in percent projections of these standards in the Renewable fuel ...... 8.01 RFVCB,i = Annual volume of cellulosic next section. biofuel required by section 211(o)(2)(B) As described more fully in Section of the Clean Air Act for year i, in gallons Under CAA section 211(o)(7)(D)(i), III.E.1.d below, we are proposing that RFVBBD,i = Annual volume of biomass-based EPA is required to make a determination the RFS2 program take effect on January diesel required by section 211(o)(2)(B) of each year regarding whether the 1, 2010, but we are also taking comment the Clean Air Act for year i, in gallons required volumes of cellulosic biofuel on an effective date later than January RFVAB,i = Annual volume of advanced for the following year can be produced. 1, 2010, including January 1, 2011 and biofuel required by section 211(o)(2)(B) of the Clean Air Act for year i, in gallons For any calendar year for which the a mid-2010 effective date. If the RFS2 RFVRF,i = Annual volume of renewable fuel projected volume of cellulosic biofuel program became effective mid-2010, the required by section 211(o)(2)(B) of the production is less than the minimum RFS1 program would apply during the Clean Air Act for year i, in gallons required volume, the projected volume first part of 2010 and the RFS2 program Gi = Amount of gasoline projected to be used becomes the basis for the cellulosic would apply for the remainder of the in the 48 contiguous states and Hawaii, biofuel standard. In such a case, the year. We request comment on whether in year i, in gallons* statute also indicates that EPA may also the four proposed standards shown in Di = Amount of diesel projected to be used Table III.E.1.b–1 would apply only to in the 48 contiguous states and Hawaii, lower the required volumes for in year i, in gallons advanced biofuel and total renewable gasoline and diesel produced or imported after the RFS2 effective date or RGi = Amount of renewable fuel blended into fuel. gasoline that is projected to be consumed should apply to all gasoline and diesel in the 48 contiguous states and Hawaii, Based on information available to produced in 2010. We also request in year i, in gallons date, we believe that there are sufficient comment on whether a single standard RDi = Amount of renewable fuel blended into plans underway to build plants capable for total renewable fuel should apply diesel that is projected to be consumed of producing 0.1 billion gallons of under RFS1 regulations for the first part in the 48 contiguous states and Hawaii, cellulosic biofuel in 2010, the minimum of 2010. in year i, in gallons volume of cellulosic biofuel required by GSi = Amount of gasoline projected to be c. Projected Standards for Other Years used in Alaska or a U.S. territory in year EISA for 2010. Our April 2009 industry i if the state or territory opts in, in assessment concludes that there could As discussed above, we intend to set gallons* be seven small commercial-scale plants the percentage standards for each RGSi = Amount of renewable fuel blended online in 2010 (as well as a series of upcoming year based on the most recent into gasoline that is projected to be pilot and demonstration plants) capable EIA projections, and using the other consumed in Alaska or a U.S. territory in of producing just over 100 million sources of information as noted above. year i if the state or territory opts in, in We would publish the standard in the gallons gallons of cellulosic biofuel. And since the majority of this production (73%) is Federal Register by November 30 of the DSi = Amount of diesel projected to be used preceding year. The standards would be in Alaska or a U.S. territory in year i if projected to be cellulosic diesel, the the state or territory opts in, in gallons* ethanol-equivalent complaince volume used to determine the renewable volume obligations based on an RDSi = Amount of renewable fuel blended could be closer to 145 million gallons. obligated party’s total gasoline and into diesel that is projected to be While it is possible that some of these diesel production or import volume in consumed in Alaska or a U.S. territory in plants could be delayed or a portion of year i if the state or territory opts in, in a calendar year, January 1 through gallons the projected production may not meet December 31. An obligated party will the definition of ‘‘cellulosic biofuel’’ GEi = The amount of gasoline projected to be calculate its Renewable Volume produced by exempt small refineries and (due to mixed feedstocks), it is also Obligations (discussed in Section small refiners in year i, in gallons, in any possible that other plans could proceed III.G.1) using the annual standards. year they are exempt per §§ 80.1441 and ahead of their current schedules. For For illustrative purposes, we have 80.1442, respectively. Equivalent to more on the 2010 cellulosic biofuel 0.119 * (G ¥ RG ). estimated the standards for 2011 and i i production assessment, refer to Section DEi = The amount of diesel projected to be later based on current information using produced by exempt small refineries and 1.5.3.4 of the DRIA the formulas discussed above, and small refiners in year i, in gallons, in any On the basis of this information, we assuming no modifications to the year they are exempt per §§ 80.1441 and are not proposing that any portion of the annual volumes required.33 These 80.1442, respectively. Equivalent to values are listed below in Table III.E.1.c- ¥ cellulosic biofuel requirement for 2010 0.152 * (Di RDi). 1. The required renewable fuel volumes * Note that these terms for projected be waived. Therefore, we are proposing that the volumes shown in Table II.A.1– specified in EISA are shown in Table volumes of gasoline and diesel use include II.A.1–1. The projected gasoline, diesel gasoline and diesel that has been blended 1 be used as the basis for the applicable with renewable fuel. standards for 2010. As described more and renewable fuels volumes were fully in Section III.E.2 below, we are determined from EIA’s energy b. Proposed Standards for 2010 also proposing that the 2010 standard projections. Variables related to Alaska or territory opt-ins were set to zero since for biomass-based diesel be based on the In today’s NPRM we are proposing the we do not have any information related specific standards that would apply to combined required volumes for 2009 and 2010, or a total of 1.15 billion all obligated parties in calendar year 33 ‘‘Calculation of the Renewable Fuel Standard 2010. We will consider comments gallons. The proposed standards for for Gasoline and Diesel,’’ memo to the docket from received on these standards as part of 2010 are shown in Table III.E.1.b–1. Christine Brunner, ASD, OTAQ, EPA, April 2009.

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to their participation at this time. No exemption is assumed to end at the end adjustment was made for small refiner of the 2010 compliance period. or small refinery volumes since their

TABLE III.E.1.c–1—PROJECTED STANDARDS UNDER RFS2 [percent]

Biomass- Cellulosic based Advanced Renewable biofuel diesel biofuel fuel

2011 ...... 0.15 0.49 0.83 8.60 2012 ...... 0.31 0.61 1.22 9.31 2013 ...... 0.61 0.61a 1.68 10.09 2014 ...... 1.07 0.61a 2.28 11.05 2015 ...... 1.83 0.61a 3.35 12.48 2016 ...... 2.58 0.61a 4.40 13.49 2017 ...... 3.34 0.61a 5.46 14.56 2018 ...... 4.25 0.61a 6.68 15.80 2019 ...... 5.19 0.61a 7.95 17.11 2020 ...... 6.47 0.62a 9.25 18.50 2021 ...... 8.40 0.62a 11.21 20.54 2022 ...... 10.07 0.63a 13.21 22.65 a These projected standards represent the minimum volume of 1.0 billion gallons required by EISA. The actual volume used to set the standard would be determined by EPA through a future rulemaking.

d. Alternative Effective Date to reflect the application of the standard the extent to which RFS1 RINs Although we are proposing that the only to gasoline producers. However, it generated in the first part of 2010 could RFS2 regulatory program begin on does not appear that EPA has statutory be used to satisfy RFS2 obligations, January 1, 2010 which, depending on authority, or discretion under the RFS1 given that some 2010 RINs would be timing for the final rule, would allow regulations, to modify the total generated under the RFS1 requirements approximately two months from the renewable fuel mandate in this manner. while other 2010 RINs would be anticipated issuance of the rule to its As discussed below in Section III.E.2, generated under RFS2 requirements. To implementation, we seek comment on any delay beyond January 1, 2010 also accomplish this, RINs generated under whether an effective date later than has implications for our proposed the RFS2 requirements would need to January 1, 2010 would be necessary. If treatment of the biomass-based diesel be distinguished from RINs generated the RFS2 program was not made volumes required for 2009. EPA invites under RFS1 requirements through the effective on January 1, 2010, the most comment on whether RFS2 RINs’ D codes. Section III.A provides a straightforward alternative start date implementation should be delayed to more detailed description of this would be January 1, 2011. Delaying to January 1, 2011 and, if so, the manner alternative approach to the assignment 2011 would provide regulated parties in which the EISA-mandated RFS of D codes under the RFS2 program. For additional lead time and would allow program should be implemented prior additional discussion of how RFS1 RINs all the new requirements and standards to that date. would be treated in the transition to the to go into effect at the beginning of an Another alternative would be to delay RFS2 program, see our proposed annual compliance period. However, the effective date of the RFS2 program transition approach described in Section delaying to 2011 would also mean that to some time after January 1, 2010 but III.G.3. demonstrating compliance with the before January 1, 2011. This alternative We are requesting comment on all separate requirements for biomass-based would raise the same issues described issues related to the option of an RFS2 diesel, cellulosic biofuel, and advanced above (regarding the option of a delay start date sometime after January 1, biofuel mandates would not go into until January 1, 2011) for that portion of 2010, including the need for such a effect until 2011. The total renewable 2010 during which RFS2 was not delayed start, the level of the standards, fuel mandate in EISA may be able to be effective. It would also raise additional treatment of diesel producers and implemented with the RFS1 regulations transition and implementation issues. importers, whether the standards for until such time as the RFS2 regulations For instance, we would need to advanced biofuel, cellulosic biofuel and become effective. However, under the determine whether diesel fuel producers biomass-based diesel should apply to RFS1 regulations, this entire standard and importers carry a total renewable the entire 2010 production or just the would be for conventional biofuels and fuel obligation calculated on the basis of production that would occur after the would be applied to gasoline producers their production for all of 2010 or just RFS2 effective date, treatment of the and importers only. There would be no the production period in 2010 during 2009 and/or 2010 biomass-based diesel obligation with respect to diesel fuel which the RFS2 regulations are standard, and the extent to which RFS1 producers and importers, resulting in a effective. We would also need to RINs should be valid to show numerically larger standard that would determine whether the 2010 cellulosic compliance with RFS2 standards. apply to gasoline producers only and biofuel, biomass-based diesel, and 2. Treatment of Biomass-Based Diesel in which could compel them to market a advanced biofuel standards applicable 2009 and 2010 larger proportion of ethanol as E85 to under RFS2 should apply to production acquire sufficient RINs for compliance. of gasoline and diesel for all of 2010 or We are proposing to make the RFS2 One possible way to address this issue just the production that occurred after program required through EISA effective would be to reduce the 2010 total the RFS2 regulations were effective If on January 1, 2010. The RFS2 program renewable fuel standard proportionately the latter, EPA would need to determine would include an expansion to four

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separate standards, changes to the RIN diesel. With regard to advanced biofuel, can demonstrate compliance with both system, changes to renewable fuel we believe that it is not necessary to the 2009 and 2010 biomass-based diesel definitions, the introduction of lifecycle implement a separate requirement for requirements in 2010, consistent with GHG reduction thresholds, and the the 0.6 billion gallons. Due to the nested what the deficit carryover provision expansion of obligated parties to nature of the volume requirements, the would have allowed had we been able include producers and importers of 0.5 billion gallon requirement for to implement the full RFS2 program by diesel and nonroad fuel. However, EISA biomass-based diesel would count January 1, 2009. requires promulgation of the final RFS2 towards meeting the advanced biofuel Furthermore, we propose to allow all regulations within one year of requirement, leaving just 0.1 billion 2009 biodiesel and renewable diesel enactment and presumes full gallons that we believe will be supplied RINs, identifiable through an RR code of implementation by January 1, 2009. through imports of sugar-based ethanol 15 or 17 respectively, to be valid for Moreover, EISA specifies new volume even without a specific mandate for showing compliance with the adjusted requirements for biomass-based diesel, advanced biofuel. 2010 biomass-based diesel standard of advanced biofuel, and total renewable We believe that the deficit carryover 1.15 billion gallons. This use of fuel for 2009. As described in Section provision provides a conceptual previous year RINs for current year II.A.5, it is not possible to have the full mechanism for ensuring that the volume compliance would be consistent with RFS2 program implemented by January of biomass-based diesel that is required our approach to any other standard for 1, 2009. As a result, we must consider by EISA for 2009 is actually consumed. any other year and consistent with the how to treat these separate volume As described in the RFS1 final rule, the flexibility available to any obligated requirements for 2009. statute permits obligated parties to carry party that carried a deficit from one year a deficit of any size from one to the next. Moreover, it allows an a. Proposed Shift in Biomass-Based compliance period to the next, so long Diesel Requirement From 2009 to 2010 obligated party to acquire sufficient as a deficit is not carried over two years biodiesel and renewable diesel RINs The statutory language in EISA does 35 in a row. In theory this would allow during 2009 to comply with the 0.5 not indicate that the existing RFS1 any and all obligated parties to defer billion gallons requirement, even regulations cease to apply on January 1, compliance with any or all of the 2009 though their compliance demonstration 2009. Rather, it directs us to ‘‘revise the standards until 2010. Based on the would not occur until the 2010 regulations’’ to ensure that the required precedent set by this statutory compliance period. volumes of renewable fuel are contained provision, we propose that the While we recognize that RINs in transportation fuel. As a result, until compliance demonstration for the 2009 generated in 2009 under RFS1 the RFS1 regulations are changed biomass-based diesel requirement be regulations will differ from those through a notice and comment extended to 2010. We believe this generated in 2010 under RFS2 rulemaking process, they will remain in approach would provide a reasonable regulations in terms of the purpose of effect. If the full RFS2 program goes into transition for biomass-based diesel, the D code and the other criteria for effect on January 1, 2010, then the given our inability to issue regulations existing RFS1 regulations will continue before the beginning of the 2009 establishing the eligibility of renewable to apply in 2009. calendar year. Our proposed approach fuel, we believe that the use of 2009 Under RFS1, we set the applicable would implement the 2009 and 2010 RINs for compliance with the 2010 standard each November for the biomass-based diesel volume adjusted standard is appropriate. It is following compliance period using the requirements in a way that ensures that also consistent with CAA section required volume of renewable fuel these two years worth of biomass-based 211(o)(5), which provides that validly specified in the Clean Air Act, gasoline diesel would be used, while providing generated credits may be used to show volume projections from EIA, and the reasonable lead time for obligated compliance for 12 months. The program formula provided in the regulations at parties. It would avoid a transition that transition issue of RINs generated under § 80.1105(d). Since final RFS2 fails to have any requirements related to RFS1 but used to meet standards under regulations will not be promulgated by the 2009 biomass-based diesel volume, RFS2 is discussed in more detail in the end of 2008, this RFS1 standard- and instead would require the use of the Section III.G.3 below. setting process will apply to the 2009 2009 volume but would achieve this by Rather than reducing the 2009 volume compliance period as well. However, extending the compliance period by one requirement for total renewable fuel by EISA modifies the Clean Air Act to year. We believe this is a reasonable 0.5 billion gallons of biomass-based increase the required volume of total exercise of our authority under section diesel and increasing the 2010 volume renewable fuel for 2009 from 6.1 to 11.1 211(o)(2) to issue regulations that ensure requirements for advanced biofuel and billion gallons, and thus the applicable that the volumes for 2009 are ultimately total renewable fuel by the same standard for 2009, published in used, even though we are unable to amount, we are proposing that the only November of 2008,34 reflects this higher issue final regulations prior to the 2009 standard that would be adjusted would volume. This will ensure that the total compliance year. In addition, it is a be that for biomass-based diesel in 2010. renewable fuel requirement under EISA practical approach that provides This approach would minimize the for 2009 is implemented. obligated parties with appropriate lead changes to the annual RFS volume While the total renewable fuel volume time. requirements and thus would more of 11.1 billion gallons will be required To implement our proposed directly implement the requirements of in 2009, the existing RFS1 regulations approach, the 2009 requirement of 0.5 the statute. However, this approach do not provide a mechanism for billion gallons of biomass-based diesel would also require that we allow 2009 requiring the 0.5 billion gallons of would be combined with the 2010 biodiesel and renewable diesel RINs to biomass-based diesel or the 0.6 billion requirement of 0.65 billion gallons for a be used for compliance purposes for gallons of advanced biofuel required by total adjusted 2010 requirement of 1.15 both the 2009 total renewable fuel EISA for 2009. Below we describe our billion gallons of biomass-based diesel. standard as well as the 2010 adjusted proposed approach for biomass-based The net effect is that obligated parties biomass-based diesel standard, but not for the 2010 advanced biofuel or total 34 See 73 FR 70643. 35 See 72 FR 23935. renewable fuel standards. We have

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identified two possible options for year to allow 2009 biodiesel and 1.15 billion gallons could carry a deficit accomplishing this. renewable diesel RINs to be used for of any amount into 2011. compliance purposes in two different If we had been able to implement the i. First Option for Treatment of 2009 years. This change would allow all 2009 2009 biomass-based diesel volume Biodiesel and Renewable Diesel RINs biodiesel and renewable diesel RINs to requirement of 0.5 billion gallons in In the first option, an obligated party be used to meet the adjusted biomass- calendar year 2009, the 2010 biomass- would add up the 2009 biodiesel and based diesel standard in 2010 regardless based diesel standard would have been renewable diesel RINs that he used for of whether they were also used to meet based on 0.65 billion gallons. In this 2009 compliance with the RFS1 the total renewable fuel standard in case, the maximum volume of biomass- standard for renewable fuel, and reduce 2009. We would also need to lift the based diesel that could have been his 2010 biomass-based diesel 20% rollover cap that would otherwise carried into 2011 as a deficit would obligation by this amount. Any limit the use of 2009 RINs in 2010, and have been 0.65 billion gallons. In the remaining 2010 biomass-based diesel instead allow any number of 2009 context of our proposed approach to the obligation would need to be covered biodiesel and renewable diesel RINs to treatment of biomass-based diesel in with either 2009 biodiesel and be used to meet the 2010 biomass-based 2009 and 2010, we believe that it would renewable diesel RINs that were not diesel standard. be inappropriate to allow the full 1.15 used for compliance with the renewable This option would also require that billion gallons to be carried into 2011 as fuel standard in 2009, or 2010 biomass- we implement additional RIN tracking a deficit. Therefore, we are proposing based diesel RINs. This is the option we procedures. Under the current RFS1 that obligated parties be prohibited from are proposing in today’s notice. regulations, RINs used for compliance carrying over a deficit into 2011 larger The primary drawback of our demonstrations are removed from the than 0.65 bill gal. In practice, this would proposed option is that 2009 biodiesel mean that deficit carryovers from 2010 and renewable diesel RINs used to RIN market, while under this alternative approach biodiesel and renewable into 2011 for biomass-based diesel demonstrate compliance with the 2009 could not exceed 57% of an obligated renewable fuel standard could not be diesel RINs could continue to be valid for compliance purposes vis a vis the party’s 2010 RVO. traded to any other party for use in Similarly, the combination of the 0.5 adjusted 2010 biomass-based diesel complying with the 2010 biomass-based billion gallons biomass-based diesel standard even if they were already used diesel standard. Thus, for instance, if a requirement from 2009 with the 2010 for compliance with the renewable fuel refiner acquired many 2009 biodiesel volume raises the question of whether standard in 2009. The regulations would and renewable diesel RINs and used 2008 biodiesel or renewable diesel RINs need to be changed to allow this, and them for compliance with the 2009 could be used for compliance in 2010 renewable fuel standard, and if the both EPA’s and industry’s IT systems with the adjusted biomass-based diesel number of these 2009 RINs was more would need to be modified to allow for standard. Without a change to the than he needed to comply with his 2010 this temporary change. regulations, this practice would not be biomass-based diesel obligation, he Due to the additional complexities allowed because RINs are only valid for could not trade the excess to another associated with this option, we are not compliances purposes for the year party. These excess RINs could never be proposing it. Nevertheless, we request generated or the year after. However, if applied to the adjusted 2010 biomass- comment on it, as it would more we had been able to implement the full based diesel standard by any party, and explicitly reflect two separate RFS2 program for the 2009 compliance as a result the actual demand for obligations for calendar year 2009: An year, 2008 biodiesel and renewable biomass-based diesel could exceed 1.15 RFS1 obligation for total renewable fuel, diesel RINs would be valid for bill gal. We believe that obligated and an obligation for biomass-based compliance with the 0.5 billion gallons parties could avoid this outcome by diesel that starts during 2009 with biomass-based diesel requirement. planning ahead to use no more 2009 compliance required by the end of 2010 Therefore, we are proposing to modify biodiesel and renewable diesel RINs for for a volume that covers both 2009 and the regulations to allow excess 2008 2009 compliance with the renewable 2010. We also request comment on biodiesel and renewable diesel RINs to fuel standard than they would need for whether under this option we should be used for compliance purposes in 2010 compliance with the adjusted allow 2009 biodiesel and renewable 2009 or 2010. We request comment on biomass-based diesel standard. diesel RINs to continue to be bought and this proposal. Moreover, this option could provide sold after 2009 if they are used to We also propose that the 20% rollover obligated parties with sufficient demonstrate compliance with the 2009 cap would continue to apply in all years incentive to collect 0.5 billion gallons total renewable fuel standard. as described in more detail in Section worth of biodiesel and renewable diesel b. Proposed Treatment of Deficit IV.D. However, we are proposing an RINs in 2009 without significant Carryovers and Valid RIN Life For additional constraint in the application of this cap to the biomass-based diesel changes to the program’s requirements. Adjusted 2010 Biomass-Based Diesel obligation in the 2010 compliance year. Requirement ii. Second Option for Treatment of 2009 If the 2009 biomass-based diesel volume Biodiesel and Renewable Diesel RINs Although our proposed transition requirement of 0.5 billion gallons could Under the second option, biodiesel approach is conceptually similar to the have been required in 2009, the use of and renewable diesel RINs generated in statutory deficit carryover provision, the excess 2008 biodiesel and renewable 2009 would be allowed to be used for regulatory requirements would not diesel RINs would have been limited to compliance purposes in both 2009 and explicitly treat the movement of the 0.5 20% of the 2009 requirement, or a 2010. To enable this option, for the billion gallons biomass-based diesel maximum of 0.1 billion gallons. Since specific and limited case of biodiesel requirement from 2009 to 2010 as a we are proposing to require that the and renewable diesel RINs generated in deficit carryover. In the absence of any 2009 and 2010 biomass-based diesel 2009, we would modify the regulatory modifications to the deficit carryover requirements be combined for a total of prohibition at § 80.1127(a)(3) limiting provisions, then, an obligated party that 1.15 billion gallons, we propose that the the use of RINs for compliance did not fully comply with the 2010 maximum allowable portion that could demonstrations to a single compliance biomass-based diesel requirement of be derived from 2008 biomass-based

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diesel RINs would be 0.1 billion gallons. 0.65 billion gallons and would represent regarding whether EISA volume This would represent 8.7% of the 2010 the applicable biomass-based diesel mandates for fuel categories with no obligation (0.1⁄1.15). In addition to this standard for 2010. The other standard mandates under RFS1 are lost, or should limit on the use of 2008 RINs for 2010 would be based on 0.5 billion gallons be recaptured through a delayed compliance that is unique to this option, and would represent the applicable compliance demonstration in the first the 20% rollover cap would continue to biomass-based diesel standard for 2009. year of the RFS2 program. For a delay apply to the use of all previous-year In essence, the standard based on 0.5 beyond January 1, 2010, the issues relate RINs used for compliance purposes in billion gallons would be for the 2009 to cellulosic biofuel and advanced 2010. Thus, the total number of all 2008 calendar year even though we would biofuel in addition to biomass-based and 2009 RINs that could be used to extend its compliance demonstration diesel. meet the 2010 biomass-based diesel until February 28, 2011. For instance, our proposed approach In this alternative, only excess 2008 or obligation would continue to be capped to biomass-based diesel effectively 2009 biodiesel and renewable diesel at 20%. We request comment on this makes the one-year deficit carryover a RINs could be used to comply with the approach. necessary element of compliance for Finally, we are proposing to allow standard based on 0.5 billion gallons. 2010, and maintains the two-year valid 2009 RINs that are retired because they Excess 2009 biodiesel or renewable life of RINs. However, if the effective are ultimately used for nonroad or home diesel RINs and 2010 biomass-based heating oil purposes to be valid for diesel RINs could be used to comply date of RFS2 were delayed to January 1, compliance with the 2010 RFS standard. with the standard based on 0.65 billion 2011, we could not take the same Currently, under RFS1, RINs associated gallons. The 20% rollover cap would approach. By requiring compliance with renewable fuel that is not apply to both standards. As a result, this demonstrations to be made in 2011 for ultimately used as motor vehicle fuel alternative approach would effectively the required biomass-based diesel must be retired. In contrast, under EISA, implement the 2009 biomass-based volumes mandated for 2009, 2010, and renewable fuel used for nonroad diesel standard in calendar year 2009, 2011, we would be effectively requiring purposes, except for use in industrial and thus it may come closer to the a 2-year deficit carryover and a three- boilers or ocean-going vessels, is statute’s requirements than our year valid life of RINs, contrary to the considered transportation fuel, and is proposed approach. Moreover, the statutory limitations. As an alternative, eligible for the RFS program. We are existing provisions for the valid life of one possible approach would be to only proposing that 2009 RINs generated for RINs and deficit carryover would not sum the required biomass-based diesel renewable fuel that is ultimately used need modification as they would under volumes for 2010 and 2011 and require for nonroad or home heating oil our proposed approach. compliance demonstrations at the end purposes continue to be retired by the However, this alternative would of 2011. appropriate party pursuant to arguably provide less than appropriate If the RFS2 program became effective 80.1129(e). However, we are proposing lead time for meeting the 0.5 billion in mid-2010, we would also need to that those retired 2009 nonroad or home gallon obligation, as it would require determine the appropriate level of the heating oil RINs be eligible for obligated parties to begin acquiring biomass-based diesel standard, and reinstatement by the retiring party in sufficient 2008 and 2009 biodiesel and whether it would apply to gasoline and 2010. These reinstated RINs may be renewable diesel RINs starting in diesel volumes produced only after the used by that party to demonstrate January of 2009 even though our final RFS2 effective date, or all gasoline and compliance with a 2010 RVO, or for sale rulemaking is not expected to be issued diesel volumes produced in 2010. until the fall of 2009. There are two to other parties who would then use the EPA invites comment on whether and reasons that this lead time might RINs for compliance purposes. While how it should recapture these volume nevertheless be considered appropriate. we anticipate that this proposed mandates under different start-date provision would be utilized largely for First, obligated parties could wait until scenarios. biodiesel RINs that were retired by the final rule is published to begin parties that sold them for use as acquiring 2008 and 2009 biodiesel and F. Fuels That Are Subject to the nonroad fuel or home heating oil, we renewable diesel RINs. Moreover, they Standards propose that the provision apply to all would not need to demonstrate RINs. We request comment on this compliance with the 0.5 billion gallons Under RFS1, producers and importers proposed approach. standard until February 28, 2011, of gasoline are obligated parties subject providing ample time to locate and to the standards. Any party that c. Alternative Approach to Treatment of acquire sufficient RINs. Second, the produces or imports only diesel fuel is Biomass-Based Diesel in 2009 and 2010 deficit carryover provisions would not subject to the standards. EISA Under our proposed approach, the 0.5 allow obligated parties to treat the changes this provision by expanding the billion gallon requirement for biomass- separate 0.5 and 0.65 billion gallon RFS program in general to include based diesel in 2009 would be added to requirements as a single requirement transportation fuel. As discussed above, the 0.65 billion gallon requirement for that must be met in total by February 28, however, section 211(o)(3) continues to 2010, and the total volume of 1.15 2011. In this sense, this alternative is require EPA to determine which billion gallons would be used as the similar to our proposed approach. We refiners, blenders, and importers are basis of a single adjusted standard request comment on this alternative treated as subject to the standard. As applicable to obligated parties in 2010. approach. described further in Section III.G below, The compliance demonstration for this we are proposing that the sum of all single standard would need to be made d. Treatment of Biomass-Based Diesel highway and nonroad gasoline and by February 28, 2011. As an alternative, Under an RFS2 Effective Date Other diesel fuel produced or imported within we could establish two separate Than January 1, 2010 a calendar year be the basis on which biomass-based diesel standards for The above discussion assumes that the RVOs are calculated. This section which compliance must be the RFS2 program is effective on provides our proposed definition of demonstrated by February 28, 2011. One January 1, 2010. If the program effective gasoline and diesel for the purposes of of these standards would be based on date is delayed, similar issues arise the RFS program.

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1. Gasoline other renewable fuels that blended into We are proposing that transportation As with the RFS1 program, the the gasoline in determining the overall fuels meeting the definition of volume of gasoline used in calculating projected volume of gasoline. When an MVNRLM would be used to calculate the RVO under RFS2 would continue to obligated party determines their RVO by the RVOs, and refiners, blenders, or include all finished gasoline applying the applicable percentage to importers of MVNRLM would be treated (reformulated gasoline (RFG) and the amount of gasoline they produce or as obligated parties. As such, diesel fuel conventional gasoline (CG)) produced or import, it is consistent to also exclude that is designated as heating oil, jet fuel, imported for use in the contiguous ethanol and other renewable fuel blends or any designation other than MVNRLM United States or Hawaii, as well as all from the calculation of the volume of or a subcategory of MVNRLM, would unfinished gasoline that becomes gasoline produced. not be subject to the applicable finished gasoline upon the addition of As with the RFS1 program, we are percentage standard and would not be 37 oxygenate blended downstream from proposing that Gasoline Treated as used to calculate the RVOs. We are also requesting comment on the refinery or importer. This would Blendstock (GTAB) would continue to the idea that any diesel fuel not meeting include both unfinished reformulated be treated as a blendstock under the these requirements, such as distillate or gasoline, called ‘‘reformulated gasoline RFS2 program, and thus would not residual fuel intended solely for use in blendstock for oxygenate blending,’’ or count towards a party’s renewable fuel ocean-going vessels, would not be used ‘‘RBOB,’’ and unfinished conventional obligation. Where the GTAB is blended to calculate the RVOs. As discussed gasoline designed for downstream with other blendstock (other than above in Section II.A.4, EISA specifies oxygenate blending (e.g., sub-octane renewable fuel) to produce gasoline, the that ‘‘transportation fuels’’ do not conventional gasoline), called ‘‘CBOB.’’ total volume of the gasoline blend, include fuels for use in ocean-going The volume of any other unfinished including the GTAB, would be included vessels. We are interpreting the term gasoline or blendstock, such as butane in the volume of gasoline used to ‘‘ocean-going vessel’’ to mean those or naphtha produced in a refinery, determine the renewable fuel obligation. vessels that are powered by Category 3 would not be included in the obligated Where GTAB is blended with renewable (C3) marine engines and that use volume, except where the blendstock is fuel to produce gasoline, only the GTAB residual fuel or operate internationally; combined with other blendstock or volume would be included in the we request comment on this gasoline to produce finished gasoline, volume of gasoline used to determine interpretation. As such, we are RBOB, or CBOB. Where a blendstock is the renewable fuel obligation. Where the requesting comment on the concept that blended with other blendstock to GTAB is blended with finished gasoline, fuel intended solely for use in ocean- produce finished gasoline, RBOB, or only the GTAB volume would be going vessels, or that an obligated party CBOB, the total volume of the gasoline included in the volume of gasoline used can verify as having been used in an blend would be included in the volume to determine the renewable fuel ocean-going vessel, would be excluded used to determine the blender’s obligation. from the renewable fuel standards. renewable fuels obligation. Where a 2. Diesel Further, we are also requesting blendstock is added to finished comment on whether fuel used on such gasoline, only the volume of the As discussed above in Section II.A.4, vessels with C2 engines should also be blendstock would be included, since the EISA expanded the RFS program to excluded from the renewable fuel finished gasoline would have been include transportation fuels other than standards, and how such an exemption included in the compliance gasoline, and we are proposing that both should be phrased. determinations of the refiner or importer highway and nonroad diesel be used in of the gasoline. For purposes of this calculating a party’s RVO. We are 3. Other Transportation Fuels proposing that any party that produces preamble, the various gasoline products As discussed further in Section III.J.3, described above that we are proposing or imports petroleum-based diesel fuel that is designated as motor vehicle, below, we propose that transportation to include in a party’s obligated volume fuels other than gasoline or MVNRLM would collectively be called ‘‘gasoline.’’ nonroad, locomotive, and marine diesel fuel (MVNRLM) (or any subcategory of diesel fuel (natural gas, propane, and Also consistent with the RFS1 electricity) would not be used to program, we propose to continue to MVNRLM) would be required to include the volume of that diesel fuel in the calculate the RVOs of any obligated exclude any volume of renewable fuel party. We believe this is a reasonable contained in gasoline from the volume determination of its RVO under the RFS2 rule. We are proposing that diesel way to implement the obligations of of gasoline used to determine the 211(o)(3) because the volumes are small renewable fuels obligations. This fuel would include any distillate fuel that meets the definition of MVNRLM and the producers cannot readily exclusion would apply to any renewable differentiate the small transport portion fuels that are blended into gasoline at a diesel fuel as it has already been defined in the regulations at § 80.2(qqq), from the large non-transport portion (in refinery, contained in imported fact, the producer may have no gasoline, or added at a downstream including any subcategories such as MV (motor vehicle diesel produced for use knowledge of its use in transport); we location. Thus, for example, any ethanol will reconsider this approach if and added to RBOB or CBOB at a refinery’s in highway diesel engines and vehicles), NRLM (diesel produced for use in when these volumes grow. At the same rack or terminal downstream from the time, it is clear that other fuels can meet refinery or importer would be excluded nonroad, locomotive, and marine diesel engines and equipment/vessels), NR the definition of ‘‘transportation fuel,’’ from the volume of gasoline used by the and we are proposing that under certain refiner or importer to determine the (diesel produced for use in nonroad engines and equipment), and LM (diesel obligation. This is consistent with how and vessels are also nonroad engines and vehicles the standard itself is calculated—EPA produced for use in locomotives and under EPAct’s definition of nonroad. Except where 36 determines the applicable percentage by marine diesel engines and vessels). noted, the discussion of nonroad in reference to comparing the overall projected volume transportation fuel includes the entire category 36 EPA’s diesel fuel regulations use the term covered by EPAct’s definition of nonroad. of gasoline used to the overall ‘‘nonroad’’ to designate one large category of land- 37 See 40 CFR 80.598(a) for the kinds of fuel types renewable fuel volume that is specified based off-highway engines and vehicles, used by refiners or importers in designating their in EPAct, and EPA excludes ethanol and recognizing that locomotive and marine engines diesel fuel.

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circumstances, producers or generators acquired sufficient RINs to meet its calculation. CAA section 211(o)(5) only of such other transportation fuels may RVOs, then under certain conditions it permits a deficit carryover from one generate RINs as a producer or importer could carry a deficit into the next year. year to the next if the obligated party of a renewable fuel. See Section III.B.1.a This section describes our proposed achieves full compliance with its RVO for further discussion of other RIN- approach to the calculation of RVOs including the deficit carryover in the generating fuels. under RFS2 and the RINs that would be second year. Thus deficit carryovers valid for demonstrating compliance could not occur two years in succession G. Renewable Volume Obligations with those RVOs. This includes a for any of the four standards. They (RVOs) description of the special treatment that could, however, occur as frequently as Under the current RFS program, each must be applied to 2009 RINs used for every other year for a given obligated obligated party must determine its RVO compliance purposes in 2010, since party. based on the applicable percentage RINs generated in 2009 under RFS1 Note that a party that produces only standard and its annual gasoline would not be exactly the same as those diesel fuel would have an obligation for volume. The RVO represents the volume generated in 2010 under RFS2. We also all four standards even though he would of renewable fuel that the obligated describe an alternative approach to the not have the opportunity to blend party must ensure is used in the U.S. in identification of obligated parties that ethanol into his own gasoline. Likewise, a given calendar year. Obligated parties would place the obligations under RFS2 a party that produces only gasoline will must meet their RVO through the on only finished gasoline and diesel have an obligation for all four standards accumulation of RINs which represent rather than on certain blendstocks and even though he would not have an the amount of renewable fuel used as unfinished fuels as well. The opportunity to blend biomass-based motor vehicle fuel that is sold or implication of this would be that the diesel into his own diesel fuel. introduced into commerce within the final blender of the gasoline or diesel Although these circumstances might U.S. Each gallon-RIN would count as would be the obligated parties rather imply that the four standards should be one gallon of renewable fuel for than producers of blendstocks and further subdivided into gasoline-specific compliance purposes. unfinished fuels. and diesel-specific standards, we do not We propose to maintain this approach believe that this would be appropriate 1. Determination of RVOs to compliance under the RFS2 program. as described in Section III.E.1. Instead, Corresponding to the Four Standards One primary difference between the since the obligations are met through current and new RFS programs in terms In order for an obligated party to the use of RINs, compliance with the of demonstrating compliance would be demonstrate compliance, the percentage standards does not require an obligated that each obligated party would now standards described in Section III.E.1 party to blend renewable fuel into their have four RVOs instead of one (through which are applicable to all obligated own or anyone else’s gasoline or diesel 2012) or two (starting in 2013) under the parties must be converted into the fuel. RFS1 program. Also, as discussed volumes of renewable fuel each above, RVOs would be calculated based obligated party is required to satisfy. 2. RINs Eligible To Meet Each RVO on production or importation of both These volumes of renewable fuel are the Under RFS1, all RINs had the same gasoline and diesel fuels, rather than volumes for which the obligated party is compliance value and thus it did not gasoline alone. responsible under the RFS program, and matter what the RR or D code was for By acquiring RINs and applying them are referred to here as its RVO. Under a given RIN when using that RIN to to their RVOs, obligated parties are RFS2, each obligated party would need meet the total renewable fuel standard. effectively causing the renewable fuel to acquire sufficient RINs each year to In contrast, under RFS2 only RINs with represented by the RINs to be consumed meet each of the four RVOs specified D codes could be used to meet as transportation fuel in highway or corresponding to the four renewable each of the four standards. nonroad vehicles or engines. Obligated fuel standards. As described in Section II.A.1, the parties would not be required to The calculation of the RVOs under volume requirements in EISA are physically blend the renewable fuel into RFS2 would follow the same format as generally nested within one another, so gasoline or diesel fuel themselves. The the existing formulas in the regulations that the advanced biofuel requirement accumulation of RINs would continue to at § 80.1107(a), with one modification. includes fuel that meets either the be the means through which each The standards for a particular cellulosic biofuel or the biomass-based obligated party shows compliance with compliance year would be multiplied by diesel requirements, and the total its RVOs and thus with the renewable the sum of the gasoline and diesel renewable fuel requirement includes fuel standards. volume produced or imported by an fuel that meets the advanced biofuel If an obligated party acquires more obligated party in that year rather than requirement. As a result, the RINs that RINs than it needs to meet its RVOs, only the gasoline volume as under the can be used to meet the four standards then in general it could retain the excess current program.38 To the degree that an are likewise nested. Using the proposed RINs for use in complying with its RVOs obligated party did not demonstrate full D codes defined in Table III.A–1, the in the following year or transfer the compliance with its RVOs for the RINs that could be used to meet each of excess RINs to another party. If, previous year, the shortfall would be the four standards are shown in Table alternatively, an obligated party has not included as a deficit carryover in the III.G.2–1.

TABLE III.G.2–1—RINS THAT CAN BE USED TO MEET EACH STANDARD

Standard Obligation Allowable D codes

Cellulosic biofuel ...... RVOCB ...... 1.

38 As discussed above, the diesel fuel that is used to calculate the RVO is any diesel designated as MVNRLM or a subcategory of MVNRLM.

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TABLE III.G.2–1—RINS THAT CAN BE USED TO MEET EACH STANDARD—Continued

Standard Obligation Allowable D codes

Biomass-based diesel ...... RVOBBD ...... 2. Advanced biofuel ...... RVOAB ...... 1, 2, and 3. Renewable fuel ...... RVORF ...... 1, 2, 3, and 4.

The nested nature of the four ethanol made from corn must meet a biofuel standard. Likewise, we are standards also means that we must 20% GHG threshold under RFS2 if proposing that RINs generated in 2009 allow the same RIN to be used to meet produced by a facility that commenced to represent biodiesel and renewable more than one standard in the same construction after December 19, 2007, diesel whose GHG performance has not year. Thus, for instance, a RIN with a D facilities that were already built or had been verified would still be valid for use code of 1 could be used to meet three commenced construction as of for 2010 compliance purposes for the of the four standards, while a RIN with December 19, 2007 are exempt from this biomass-based diesel standard. We a D code of 3 could be used to meet both requirement. Essentially all ethanol request comment on this approach. produced in 2009 will meet the the advanced biofuel and total We propose to use information prerequisites for this exemption. renewable fuel standards. However, we contained in the RR and D codes of Second, it is unlikely that renewable propose continuing to prohibit the use RFS1 RINs to determine how those RINs fuels produced in 2009 will have been of a single RIN for compliance purposes should be treated under RFS2. The RR made from feedstocks grown on in more than one year or by more than code is used to identify the Equivalence one party.39 agricultural land that had not been cleared or cultivated prior to December Value of each renewable fuel, and under 3. Treatment of RFS1 RINs Under RFS2 19, 2007. In the intervening time period, RFS1 these Equivalence Values are As described in Section II.A, we are it is much more likely that the unique to specific types of renewable proposing a number of changes to the additional feedstocks needed for fuel. For instance, biodiesel (mono alkyl RFS program as a result of the renewable fuel production would come ester) has an Equivalence Value of 1.5, requirements in EISA. These changes from existing cropland or cropland that and non-ester renewable diesel has an would go into effect on January 1, 2010 has lain fallow for some time. Finally, Equivalence Value of 1.7, and both of and, among other things, would affect the text of section 211(o)(5) states that these fuels may be valid for meeting the the conditions under which RINs are a ‘‘credit generated under this paragraph biomass-based diesel standard under generated and their applicability to each shall be valid to show compliance for RFS2. Likewise, RINs generated for of the four standards. As a result, RINs the 12 months as of the date of cellulosic biomass ethanol in 2009 must generated in 2010 under RFS2 will not generation,’’ and EISA did not change be identified with a D code of 1, and be exactly the same as RINs generated this provision and did not specify any these fuels may be valid for meeting the in 2009 under RFS1. Given the valid particular transition protocol to follow. cellulosic biofuel standard under RFS2. RIN life that allows a RIN to be used in A straightforward interpretation of this Our proposed treatment of 2009 RINs in the year generated or the year after, we provision is to allow 2009 RINs to be 2010 is shown in Table III.G.3.a–1. must address circumstances in which valid to show compliance for 2010 excess 2009 RINs are used for obligations. TABLE III.G.3.a–1—PROPOSED TREAT- compliance purposes in 2010. We must Since there will be separate standards MENT OF EXCESS 2009 RINSIN also address deficit carryovers from for cellulosic biofuel and biomass-based 2010 2009 to 2010, since the total renewable diesel in 2010, RINs generated in 2009 fuel standards in these two years will be that could be used to meet either of Excess 2009 RINs Treatment in 2010 defined differently. these two 2010 standards should meet the GHG thresholds of 60% and 50%, RFS1 RINs with RR Equivalent to RFS2 a. Use of 2009 RINs in 2010 respectively. While we will not have a code of 15 or 17. RINs with D code In 2009, the RFS1 regulations will mechanism in place to determine if of 2. continue to apply and thus producers these thresholds have been met for RINs RFS1 RINs with D Equivalent to RFS2 will not be required to demonstrate that generated in 2009, and there are code of 1. RINs with D code their renewable fuel is made from indications from our assessment of of 1. renewable biomass as defined by EISA, lifecycle GHG performance that at least All other RFS1 RINs .. Equivalent to RFS2 some renewable fuels produced in 2009 RINs with D code nor that their combination of fuel type, of 4. feedstock, and process meets the GHG would not meet these thresholds, thresholds specified in EISA. Moreover, nevertheless any shortfall in GHG there is no practical way to determine performance for this one transition year Although we have discussed the issue after the fact if RINs generated in 2009 is unlikely to have a significant impact of RFS1 RINs being used for RFS2 meet any of these criteria. However, we on long-term GHG benefits of the purposes in the context of our proposal believe that the vast majority of RINs program. Based on our belief that it is that the RFS2 program be effective on generated in 2009 would in fact meet critical to the smooth operation of the January 1, 2010, we would expect a the RFS2 requirements. First, while program that excess 2009 RINs be similar treatment of RFS1 RINs for RFS2 allowed to be used for compliance compliance purposes if the RFS2 39 Note that we are proposing an exception to this purposes in 2010, we are proposing that effective date is delayed. In that case general prohibition for the specific and limited case RINs generated in 2009 to represent RFS1 RINs generated in 2010 would be of excess 2008 and 2009 biodiesel and renewable cellulosic biomass ethanol whose GHG available to show compliance for both diesel RINs used to demonstrate compliance with the 2010 and 2011 compliance years, in both the 2009 total renewable fuel standard and the performance has not been verified 2010 biomass-based diesel standard. See Section would still be valid for use for 2010 a manner similar to that described III.E.2.a. compliance purposes for the cellulosic above.

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b. Deficit Carryovers From the RFS1 gasoline. The volume of any other seeking RINs cannot acquire a sufficient Program to RFS2 unfinished gasoline or blendstock, such number, they can only carry a deficit If the RFS2 program goes into effect as butane, is not included in the volume into the following year, after which they on January 1, 2010, the calculation of used to determine the RVO, except would be in noncompliance if they RVOs in 2009 under the existing where the blendstock is combined with could not acquire sufficient RINs. The regulations will be somewhat different other blendstock or finished gasoline to result might be a much higher price for than the calculation of RVOs in 2010 produce finished gasoline, RBOB, or RINs (and fuel) in the marketplace than CBOB. Thus, parties downstream of a would be expected under a more liquid under RFS2. In particular, 2009 RVOs refinery or importer are only obligated market. will be based upon gasoline production parties to the degree that they use non- Given the change in circumstances only, while 2010 RVOs would be based renewable blendstocks to make finished brought about through EISA, it may be on volumes of gasoline and diesel. As a gasoline, RBOB, or CBOB. appropriate to consider a change in the result, 2010 compliance demonstrations The approach we took for RFS1 was way that obligated parties are defined to that include a deficit carried over from based on our expectation at that time more evenly align a party’s access to 2009 will combine obligations that there would be an excess of RINs RINs with that party’s obligations under calculated on two different bases. at low cost, and our belief that the the RFS2 program. The most We do not believe that deficits carried ability of RINs to be traded freely straightforward approach would be to over from 2009 to 2010 would between any parties once separated eliminate RBOB and CBOB from the list undermine the goals of the program in from renewable fuel would provide of fuels that are subject to the standard, requiring specific volumes of renewable ample opportunity for parties who were such that a party’s RVO would be based fuel to be used each year. Although in need of RINs to acquire them from only on the non-renewable volume of RVOs in 2009 and 2010 would be parties who had excess. We also pointed finished gasoline or diesel that he calculated differently, obligated parties out that the designation of ethanol produces or imports. Parties that blend must acquire sufficient RINs in 2010 to blenders as obligated parties would ethanol into RBOB and CBOB to make cover any deficit carried over from 2009 have greatly expanded the number of finished gasoline would thus be in addition to that portion of their 2010 regulated parties and increased the obligated parties, and their RVOs would obligation which is based on their 2010 complexity of the RFS program beyond be based upon the volume of RBOB and gasoline and diesel production. As a that which was necessary to carry out CBOB prior to ethanol blending. result, the 2009 nationwide volume the renewable fuels mandate under CAA Traditional refiners that convert crude requirement of 11.1 billion gallons of section 211(o). oil into transportation fuels would only renewable fuel will be consumed over Following the new requirements have an RVO to the degree that they the two year period concluding at the under EISA, the required volumes of produced finished gasoline or diesel, end of 2010. Thus, we are not proposing renewable fuel will be increasing with all RBOB and CBOB sold to special treatment for deficits carried significantly above the levels required another party being excluded from the over from 2009 to 2010. under RFS1. These higher volumes are calculation of their RVO. We propose that a deficit carried over already resulting in changes in the Since essentially all gasoline is from 2009 to 2010 would only affect a demand for RINs and operation of the expected to be E10 within the next few party’s total renewable fuel obligation in RIN market. First, obligated parties who years (see discussion in Section V.D.2 2010 (RVORF,i as discussed in Section have excess RINs are increasingly opting below), this approach would effectively III.G.1), as the 2009 obligation is for to retain rather than sell them to ensure shift the obligation for all gasoline from total renewable fuel use, not a they have a sufficient number for the refiners and importers to ethanol subcategory. The RVOs for cellulosic next year’s compliance. Second, since blenders (who in many cases are still biofuel, biomass-based diesel, or all gasoline is expected to contain the refiners). However, this approach by advanced biofuel would not be affected, ethanol by 2013, few blenders would be itself would maintain the obligation for as they do not have parallel obligations able to avoid taking ownership of RINs diesel on refiners and importers. Thus, in 2009 under RFS1. by that time under the existing a variation of this approach would be to If the RFS2 start date is delayed to be definition of obligated party. As a result, move the obligations for all gasoline and later than January 1, 2010, we expect by 2013 essentially every blender would diesel downstream to parties who that the same principles described be a regulated party who is subject to supply finished transportation fuels to above would apply for any deficit recordkeeping and reporting retail outlets or to wholesale purchaser- calculated under the RFS1 program and requirements, and thus the additional consumer facilities. This variation carried forward to RFS2. burden of demonstrating compliance would have the additional effect of more with the standard could be small. Third, closely aligning obligations and access 4. Alternative Approach to Designation major integrated refiners who operate to RINs for parties that blend biodiesel of Obligated Parties gasoline marketing operations have and renewable diesel into petroleum- Under RFS1, obligated parties who direct access to RINs for ethanol based diesel. are subject to the standard are those that blended into their gasoline, while We are not proposing to eliminate produce or import finished gasoline refiners whose operations are focused RBOB and CBOB from the list of fuels (RFG and conventional) or unfinished primarily on producing refined products that are subject to the standard in gasoline that becomes finished gasoline do not have such direct access to RINs. today’s notice since it would result in a upon the addition of an oxygenate The result is that in some cases there are significant change in the number of blended downstream from the refinery significant disparities between obligated obligated parties and the movement of or importer. Unfinished gasoline parties in terms of opportunities to RINs. Many parties that are not includes reformulated gasoline acquire RINs. If those that have excess obligated under the current RFS blendstock for oxygenate blending RINs are reluctant to sell them, those program would become obligated, and (RBOB), and conventional gasoline who are seeking RINs may be forced to would be forced to implement new blendstock designed for downstream market a disproportionate share of E85 systems for determining and reporting oxygenate blending (CBOB) which is in order to gain access to the RINs they compliance. Nevertheless, it would have generally sub-octane conventional need for compliance. If obligated parties certain advantages. Currently, blenders

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that are not obligated parties are blended were transferred to the 1. Nonroad profiting from the sale of RINs they producer of the RBOB or CBOB, given Under RFS1, RINs associated with acquire through splash blending of the fungible nature of RINs assigned to renewable fuels used in nonroad ethanol. By eliminating RBOB and batches of renewable fuel. For these vehicles and engines downstream of the CBOB from the list of obligated fuels, reasons, we do not believe that this renewable fuel producer are required to these blenders would become directly alternative approach would be be retired by the party who owns the responsible for ensuring that the volume appropriate. renewable fuel at the time of blending. requirements of the RFS program are In another alternative approach, some This provision derived from the EPAct met, and the cost of meeting the RINs that expire without being used for definition of renewable fuel which was standard would be more evenly compliance by an obligated party could limited to fuel used to replace fossil fuel distributed among parties that blend be used to reduce the nationwide used in a motor vehicle. EISA however renewable fuel into gasoline. With volume of renewable fuel required in expands the definition of renewable obligations placed more closely to the the following year. We would only fuel, and ties it to the definition of points in the distribution system where reduce the required volume of transportation fuel, which is defined as RINs are made available, the overall renewable fuel to the degree that any ‘‘fuel for use in motor vehicles, market prices for RINs may be lowered sufficient RINs had been generated to motor vehicle engines, nonroad and consequently the cost of the permit all obligated parties to vehicles, or nonroad engines (except for program to consumers may be reduced. demonstrate compliance, but some ocean-going vessels). To implement While eliminating the categories of obligated parties nevertheless could not these changes, the proposed RFS2 RBOB and CBOB from the list of acquire a sufficient number of RINs. program eliminates the RFS1 RIN obligated fuels would result in a Moreover, only RINs that were expiring retirement requirement for renewable significant change in the distribution of would be used to reduce the nationwide fuels used in nonroad applications, with obligations among transportation fuel volume for the next year. This the exception of RINs associated with producers, it could help to ensure that alternative approach would ensure that renewable fuels used in ocean-going the RIN market functions as we the volumes required in the statute vessels. originally intended. As a result, RINs would actually be produced and would would more directly be made available prevent the hoarding of RINs from 2. Heating Oil and Jet Fuel to the parties that need them for driving up demand for renewable fuel. EISA defined ‘additional renewable compliance. This is similar to the goal However, it would also reduce the fuel’ as ‘‘fuel that is produced from of the direct transfer approach to RIN impact of the valid life limit for RINs. renewable biomass and that is used to distribution as described in the We could lower the 20% rollover cap replace or reduce the quantity of fossil proposed rulemaking for the RFS1 applicable to the use of previous-year fuel present in home heating oil or jet program and presented again in Section RINs to a lower value, such as 10%. fuel.’’ 40 While we are proposing that III.H.4 below. We request comment on This approach would provide a greater fossil-based heating oil and jet fuel the degree to which access to RINs is a incentive for obligated parties with would not be included in the fuel used concern among current obligated excess RINs to sell them but would by a refiner or importer to calculate parties. Since either the elimination of further restrict a potentially useful their RVO, we are proposing that RBOB and CBOB from the list of means of managing an obligated party’s renewable fuels used as or in heating oil obligated fuels or the direct transfer risk. As described in Section IV.D, we and jet fuel may generate RINs for credit approach to RIN distribution could both are not proposing any changes in the purposes. Thus, the RINs of a renewable accomplish the same goal, we request 20% rollover cap in today’s notice. fuel, such as biodiesel, that is blended comment on which one would be more However, we request comment on it. into heating oil continue to be valid. See appropriate, if any. Finally, another change to the also discussion in Section III.B.1.e. We have also considered a number of program that would not change the alternative approaches that could be definition of obligated parties, but could 3. Exporters used to help ensure that obligated help address the disparity of access to Under RFS1, exporters are assigned parties can demonstrate compliance. For RINs among obligated parties, would be an RVO representing the volume of instance, one alternative approach to remove the requirement developed renewable fuel that has been exported, would leave our proposed definitions under RFS1 that RINs be transferred and they are required to separate all for obligated parties in place, but would with renewable fuel volume by the RINs that have been assigned to fuel that add a regulatory requirement that any renewable fuel producers and importers. is exported. Since there is only one party who blends ethanol into RBOB or This alternative is discussed further in standard, there is only one possible CBOB must transfer the RINs associated Section III.H.4 below. RVO applicable to exporters. with the ethanol to the original H. Separation of RINs Under RFS2, there are four possible producer of the RBOB or CBOB. RVOs corresponding to the four However, we believe that such an We propose that most of the RFS1 categories of renewable fuel (cellulosic approach would be both inappropriate provisions regarding the separation of biofuel, biomass-based diesel, advanced and difficult to implement. RBOB and RINs from volumes of renewable fuel be biofuel, total renewable fuel). However, CBOB is often transferred between retained for RFS2. However, the given the fungible nature of the RIN multiple parties prior to ethanol modifications in EISA will require a system and the fact that an assigned RIN blending. As a result, a regulatory number of changes, primarily to the transferred with a volume of renewable requirement for RIN transfers back to treatment of RINs associated with fuel may not be the same RIN that was the original producer would necessitate nonroad renewable fuel and renewable originally generated to represent that an additional tracking requirement for fuels used in heating oil and jet fuel. volume, there is no way for an exporter RBOB and CBOB so that the blender Our approach to the separation of RINs to determine from an assigned RIN would know the identity of the original by exporters must also be modified to which of the four categories applies to producer. It would also be difficult to account for the fact that there would be ensure that RINs representing the four categories of renewable fuel under 40 EISA, Title II, Subtitle A–Renewable Fuel specific category of renewable fuel RFS2. Standard, Section 201.

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an exported volume. In order to seem warranted at this time. an obligated party (see 71 FR 55591). determine its RVOs, the only Nevertheless, we request comment on it. This ’’direct transfer’’ approach would information available to the exporter is require renewable fuel producers to 4. Alternative Approaches to RIN the type of renewable fuel that he is transfer RINs with renewable fuel for all Transfers exporting. transactions with obligated parties, and For RFS2, we are proposing that In the NPRM for the RFS1 sell all other RINs directly to obligated exporters use the fuel type and its rulemaking, we presented a variety of parties on a quarterly basis for any associated volume to determine his approaches to the transfer of RINs, renewable fuel volumes that were not applicable RVO. To accomplish this, an ultimately requiring that RINs generated sold directly to obligated parties. Only exporter must know which of the four by renewable fuel producers and renewable fuel producers, importers, renewable fuel categories applies to a importers must be assigned to batches of and obligated parties would be allowed given type of renewable fuel. We are renewable fuel and transfered along to own RINs, and only obligated parties proposing that all biodiesel (mono alkyl with those batches. However, given the could take ownership of RINs from esters) and renewable diesel would be higher volumes required under RFS2 producers and importers. This approach categorized as biomass-based diesel (D and the resulting expansion in the would spare marketers and distributors code of 4), and that exported volumes of number of regulated parties, we believe of renewable fuel from the burdens these two fuels would be used to that two of the alternative approaches to associated with transferring RINs with determine the exporter’s RVO for RIN transfers should be considered for batches, and thus would eliminate the RFS2. Our proposal for an EPA- biomass-based diesel. For all other types tracking, recordkeeping and reporting moderated RIN trading system (EMTS) of renewable fuel, the most likely requirements that would continue to be may also support the implementation of category for most of the phase-in period applicable to them if RINs are one of these approaches. of the RFS2 program is general transferred through the distribution In one of the alternative approaches, system as required under the RFS1 renewable fuel, and as a result we we would entirely remove the propose that all other types of program. restriction established under the RFS1 Under the direct transfer alternative, renewable fuel be used to determine the rule requiring that RINs be assigned to exporter’s RVO for total renewable fuel. the renewable fuel producer or importer batches of renewable fuel and would be required to transfer the RINs Our proposed approach is provided at transferred with those batches. Instead, § 80.1430. We recognize that by 2022 associated with his renewable fuel to an renewable fuel producers could sell obligated party who purchases the the required volume of cellulosic RINs (with a K code of 2 rather than 1) renewable fuel. The RINs associated biofuel will exceed the required volume separately from volumes of renewable with any renewable fuel that is not of general renewable fuel that is in fuel to any party. This approach could directly transferred to an obligated party excess of the advanced biofuel significantly streamline the tracking and would not be transferred with the fuel requirements. Thus we request trading of RINs. For instance, there as required under the RFS1 program. comment on requiring all or some would no longer be a need for K-codes Instead, the renewable fuel producer or portion of renewable fuels other than and restrictions on separation of RINs, importer would be required to sell the biodiesel and renewable diesel to be there would only be a single RIN market RINs directly to an obligated party. Any categorized as cellulosic biofuel in 2022 rather than two (one for RINs assigned RINs not sold in this way would be and beyond. to volume and another for separated required to be offered for sale to all An alternative approach could be RINs), there would be no need for obligated parties through a public required that would more closely volume/RIN balance calculations at the auction. This could be through an EPA estimate the amount of exported end of each quarter, and there would be moderated trading system, an existing renewable fuels that fall into the four no need for restrictions on the number internet auction web site, or through categories defined by EISA. In this of RINs that can be transfered with each another auction mechanism alternative, the total nationwide gallon of renewable fuel. As described implemented by a renewable fuel volumes required in each year (see more fully in Section III.B.4.b.ii, this producer. Table II.A.1–1) would be used to approach could also provide a greater Although we believe that the direct apportion specific types of renewable incentive for producers to demonstrate transfer approach has merit, many of the fuel into each of the four categories. For that the renewable biomass definition concerns laid out in the RFS1 NPRM example, exported ethanol may have has been met for their feedstocks. As remain valid today. In particular, the originally been produced from cellulose discussed in Section III.G.4, this auctions would need to be regulated in to meet the cellulosic biofuel approch could help level the playing some way to ensure that RIN generators requirement, from corn to meet the total field among obligated parties for access could not withhold RINs from the renewable fuel requirement, or may to RINs regardless of whether they market by such means as failing to have been imported as advanced market a substantial volume of gasoline adequately advertise the time and biofuel. If ethanol were exported, we or not. However, as discussed in the location of an auction, by setting the could divide the exported volume into RFS1 rulemaking, this approach could selling price too high, by specifying a three RVOs for cellulosic biofuel, also place obligated parties at greater minimum number of bids before selling, advanced biofuel, and total renewable risk of market manipulation by by conducting auctions infrequently, by fuel using the same proportions renewable fuel producers. having unduly short bidding windows, represented by the national volume In order to address some of the etc. We seek comment on how we could requirements for that year. However, we concerns raised about allowing regulate such auctions to ensure that believe that this alternative approach producers and importers to separate obligated parties could acquire would add considerable complexity to RINs from their volume, in the NPRM sufficient RINs for compliance purposes the compliance determinations for for the RFS1 rulemaking we also in a timely manner. exporters without necessarily adding presented an alternative concept for RIN Our proposed EPA-moderated RIN more precision. Given the expected distribution in which producers and trading system (see Section IV.E) could small volumes of exported renewable importers of renewable fuels would be help to make the direct transfer fuel, this added complexity does not required to transfer the RIN, but only to approach feasible. By creating accounts

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in a centralized system within which all further blending. The party would also the following year. The outlook reports RIN transfers between parties would be be required maintain records of this from all renewable fuel producers made, it may be more straightforward designation pursuant to 80.1451(b)(5). would assist EPA in determining what for obligated parties to identify available Finally, the party would be required to the cellulosic biofuel standard should RINs owned by producers and comply with the proposed PTD be and if the advanced biofuel standard importers, and to bid on those RINs. requirements in 80.1453(a)(5)(iv), which should be adjusted. For years where Therefore, while we are not proposing serve to notify downstream parties that EPA determines that the projected the direct transfer approach in today’s the volume of fuel has been designated volume of cellulosic biofuels is not action, we nevertheless request for use as transportation fuel, home sufficient to meet the levels in EISA we comment on it. heating oil, or jet fuel, and must be used will consider the availability of other 5. Neat Renewable Fuel and Renewable in that designated form without further advanced biofuels in deciding whether Fuel Blends Designated as blending. Parties could separate RINs at to lower the advanced biofuel standard Transportation Fuel, Home Heating Oil, the time they complied with the as well. designation and PTD requirements, and or Jet Fuel 2. EPA Cellulosic Allowances for would not need to physically track Cellulosic Biofuel Under RFS1, RINs must, with limited ultimate fuel use. exceptions, be separated by an obligated EPA requests comment on this Whenever EPA sets the cellulosic party taking ownership of the renewable proposed approach to RIN separation. biofuel standard at a level lower than fuel, or by a party that blends renewable Additionally, EPA requests comment on that required in EISA, EPA is required fuel with gasoline or diesel. In addition, an alternative approach to modifying to provide a number of cellulosic credits a party that designates neat renewable the current program for separation of for sale that is no more than the volume fuel as motor vehicle fuel may separate RINs. Under this second approach, used to set the standard. Congress also RINs associated with that fuel if the fuel 80.1429(b)(2) and (b)(5)would be specified the price for such credits: is in fact used in that manner without eliminated as redundant, and adjusted for inflation, they must be further blending. For purposes of the 80.1429(b)(4) would be broadened to offered at the price of the higher of 25 RFS program, ‘‘neat renewable fuel’’ is require separation of RINs for all neat cents per gallon or the amount by which defined in 80.1101(p) as ‘‘a renewable renewable fuels and all blends of $3.00 per gallon exceeds the average fuel to which only de minimis amounts renewable fuels with either gasoline or wholesale price of a gallon of gasoline of conventional gasoline or diesel have diesel, when a party designates such in the United States. The inflation been added.’’ One exception to these fuel as transportation fuel, home heating adjustment will be for years after 2008. provisions is that biodiesel blends in oil or jet fuel, and the fuel is in fact used We propose that the inflation which diesel constitutes less than 20 in accordance with that designation adjustment would be based on the volume percent are ineligible for RIN without further blending. The party Consumer Price Index for All Urban separation by a blender. As noted in the would be required to maintain records Consumers (CPI–U) for All Items preamble to the final RFS1 regulations, that verify the ultimate use of the fuel expenditure category as provided by the EPA understands that in the vast as transportation, home heating, or jet Bureau of Labor Statistics.41 majority of cases, biodiesel is blended fuel. Additionally, there would be a Congress afforded the Agency with diesel in concentrations of 80 PTD requirement to inform downstream considerable flexibility in implementing volume percent or less. parties that the fuel has been designated the system of cellulosic biofuel credits. However, in order to account for as transportation, home heating, or jet EISA states EPA; ‘‘shall include such situations in which biodiesel blends of provisions, including limiting the 81 percent or greater may be used as fuel and may not be further blended. This proposed approach would credits’ uses and useful life, as the motor vehicle fuel without ever having Administrator deems appropriate to been owned by an obligated party, EPA eliminate the need for parties to distinguish for purposes of separating assist market liquidity and is proposing to change the applicability transparency, to provide appropriate of the RIN separation provisions for RINs between fuels that are neat or certainty for regulated entities and RFS2. EPA is proposing that blended or, for biodiesel, between renewable fuel producers, and to limit 80.1429(b)(4) allow for separation of blends of E80 and below or E81 and any potential misuse of cellulosic RINs for neat renewable fuel or blends above. biofuel credits to reduce the use of other of renewable fuel and or diesel fuel that I. Treatment of Cellulosic Biofuel renewable fuels, and for such other the party designates as transportation purposes as the Administrator fuel, home heating oil, or jet fuel, 1. Cellulosic Biofuel Standard determines will help achieve the goals provided the neat renewable fuel or EISA requires in section 202(e) that the Administrator set the cellulosic of this subsection.’’ blend is used in the designated form, Though EISA gives EPA broad biofuel standard each November for the without further blending, as flexibility, we believe the best way to next year based on the lesser of the transportation fuel, home heating oil, or accomplish the goals of providing volume specified in the Act or the jet fuel. As in RFS1, those parties that certainty to both the cellulosic biofuel projected volume of cellulosic biofuel blend renewable fuel with gasoline or industry and the obligated parties is to production for that year. In the event diesel fuel (in a blend containing less propose credits with few degrees of that the projected volume is less than than 80 percent biodiesel would in all freedom. We believe this would prevent the amount required in the Act, EPA cases be required to separate RINs speculation in the market and provide may also reduce the applicable volume pursuant 80.1429(b)(2). certainty for investments in real Thus, for example, under these of the advanced biofuels requirement by cellulosic biofuels. the same or a lesser volume. We intend proposed regulations, if a party intends Specifically, we propose that the to examine EIA’s projected volumes and to separate RINs from a volume of B85, credits would be called allowances so the party must designate the blend for other available data including the use as transportation fuel, home heating production outlook reports proposed in 41 See U.S. Department of Labor, Bureau of Labor oil, or jet fuel and the blend must be Section III.K to be submitted to the EPA Statistics (BLS), Consumer Price Index Web site at: used in its designated form without to decide the appropriate standard for http://www.bls.gov/cpi/.

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that there is no confusion with RINs, We propose that the wholesale price However, even with these proposed such allowances would only be of gasoline will be based on the average restrictions on the purchase and available for the current compliance monthly bulk (refinery gate) price of application of allowances, the statutory year for which we have waived some gasoline using data from the most recent provision may not operate as intended. portion of the cellulosic biofuel twelve months of data from EIA’s For instance, if the combination of standard, they would only be available annual cellulosic ethanol forecast each cellulosic biofuel volume price and RIN to obligated parties, and they would be October.42 Thus we will set the price is low compared to that for corn- nontransferable and nonrefundable. allowance price for the following year ethanol, a small number of obligated Further, we propose that obligated each November along with the parties could purchase more cellulosic parties would only be able to purchase cellulosic biofuel standard for the biofuel than they need to meet their allowances up to the level of their following year. We seek comment on cellulosic biofuel RVOs and could use cellulosic biofuel RVO less the number using the average monthly rack the additional cellulosic biofuel RINs to of cellulosic biofuel RINs that they own. (terminal) price for the same period and meet their advanced biofuel and total This would help ensure that every party changing the allowance price as often as renewable fuel RVOs. Other obligated that needs to meet the cellulosic biofuel quarterly. Though EISA allows EPA to parties would then have no access to standard will have equal access to the change the price as often as quarterly we cellulosic biofuel volume nor cellulosic allowances. A company would also then believe this will lead to speculation biofuel RINs, and would be forced to only use an allowance to meet its total which may introduce more uncertainty purchase allowances from the EPA. This renewable and advanced biofuel for the obligated parties and the situation would have the net effect of standards if it used the allowance for cellulosic biofuel industry. allowances replacing imported the cellulosic biofuel standard. We sugarcane ethanol and/or corn-ethanol 3. Potential Adverse Impacts of believe that if a company can only rather than cellulosic biofuel. Allowances purchase as many allowances as it Moreover, under certain conditions it needs to meet its cellulosic biofuel While the credit provisions of section may be possible for the market price of obligation, it can not hinder another 202(e) of EISA ensure that there is a corn-ethanol RINs to be significantly obligated party from meeting the predictable upper limit to the price that higher than the market price of standard and therefore every company cellulosic biofuel producers can charge cellulosic biofuel RINs, as the latter is that needs to meet the standard will for a gallon of cellulosic biofuel and its limited in the market by the price of have equal access to the allowances in assigned RIN, there may be EPA-generated allowances according to the event that they do not acquire circumstances in which this provision the statutory formula described in sufficient cellulosic biofuel RINs. If we has other unintended impacts. For Section III.I.2 above. Under some were to allow a company to purchase instance, if we made all cellulosic conditions, this could result in a more allowances than they needed, allowances available to any obligated competitive disadvantage for cellulosic another company may not be able to party, one obligated party could biofuel in comparison to corn ethanol. meet the standard which we believe was purchase more allowances than he For instance, if gasoline prices at the not the intent of Congress. needs to meet his cellulosic biofuel RVO pump are significantly higher than ethanol production costs, while at the We also propose that these allowances and then sell the remaining allowances at an inflated price to other obligated same time corn-ethanol production would be offered in a generic format costs are lower than cellulosic ethanol rather than a serialized format, like parties. Thus, we are proposing that each obligated party could only production costs, profit margins for RINs. Allowances would be purchased corn-ethanol producers would be larger from the EPA at the time that an purchase allowances from the EPA up to the level of their cellulosic biofuel RVO. than for cellulosic ethanol producers. obligated party submits its annual Under these conditions, while obligated compliance demonstration to the EPA However, even with this restriction an obligated party could still purchase both parties may still purchase cellulosic and establishes that it owns insufficient ethanol volume and its associated RIN cellulosic biofuel RINs to meet its cellulosic biofuel volume with its assigned RINs sufficient to meet its rather than allowances, cellulosic cellulosic biofuel RVO. A company ethanol producers would realize lower owning cellulosic biofuel RINs and cellulosic biofuel RVO, and also purchase allowances from the EPA. In profits than corn-ethanol producers due cellulosic allowances may use both to the upper limit placed on the price this case, the obligated party would types of credits if desired to meet their of cellulosic biofuel RINs through the effectively be using allowances as a RVOs, but unlike RINs they would not pricing formula for allowances. For a replacement for corn ethanol rather than be able to carry allowances over to the newly forming and growing cellulosic cellulosic biofuel. To prevent this, we next calendar year. biofuel industry, this competitive are proposing an additional restriction: Congress refers to allowances as disadvantage could make it more an obligated party could only purchase ‘‘cellulosic biofuel credits,’’ with no difficult for investors to secure funding allowances from the EPA to the degree indication that the ‘‘credits’’ should be for new projects, threatening the ability that it establishes it owns insufficient given any less role in meeting a party’s of the industry to reach the statutorily cellulosic biofuel RINs to meet its obligations under the CAA section mandated volumes. 211(o) than would the purchase and use cellulosic biofuel RVO. This approach We have not established the of a cellulosic biofuel RIN that reflects forces obligated parties to apply all their likelihood that these circumstances actual production and use of cellulosic cellulosic biofuel RINs to their would arise in practice, and we request biofuel. Because cellulosic biofuel RINs cellulosic biofuel RVO before appying comment on the specific market can be used to meet the advanced any allowances to their cellulosic conditions that could lead to them. biofuel and total renewable fuel biofuel RVO. Nevertheless, we have explored a standards in addition to the cellulosic variety of ways that we could modify biofuel standard, we propose that 42 More information on wholesale gasoline prices the RFS program structure to mitigate can be found on the Department of Energy’s (DOE), cellulosic biofuel allowances also be Energy Information Administration’s (EIA) Web site these potential negative outcomes. For available for use in meeting those three at: http://tonto.eia.doe.gov/dnav/pet/ instance, as mentioned in Section III.I.2 standards. pet_pri_allmg_d_nus_PBS_cpgal_m.htm. above, we are proposing that each

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cellulosic allowance could be used to from the RIN generation and transfer 2. Reporting meet an obligated party’s RVOs for program structure that was developed Under the existing renewable fuels cellulosic biofuel, advanced biofuel, and cooperatively with stakeholders during program, obligated parties, exporters of total renewable fuel. However, we could RFS1. It would provide cellulosic renewable fuel, producers and importers restrict the applicability of allowances biofuel producers with significantly of renewable fuels, and any party who to only the cellulosic biofuel RVO. This more control over the sale and price of owns RINs must report appropriate approach could help ensure that cellulosic biofuel RINs, which was one information to EPA on a quarterly and/ demand for imported sugarcane ethanol of the primary concerns of obligated or annual basis. We are proposing a and corn ethanol does not fall in the parties during the development of RFS1. change in the schedule for submission event that a small number of obligated Due to the drawbacks of each of these of producers’ and importers’ batch parties purchase all available cellulosic potential changes to the RFS program reports, and for the submission of RIN biofuel volume, compelling the structure, we are not proposing any of transaction reports. This proposed remaining obligated parties to purchase them in today’s NPRM. However, we change in schedule, which is discussed allowances. However, this approach request comment on whether any of in great detail in Section IV.E. of this could also have the effect of making the them, or alternatives, could address the preamble, is effective for 2010 only. We advanced biofuel and total renewable adverse situations described above. We are proposing that, for 2010, these fuel standards more stringent. This also request comment on the degree to reports (which were submitted quarterly could occur as obligated parties are which the adverse situations are likely under RFS1) be submitted monthly forced to buy additional imported to occur, and the degree of severity of rather than quarterly. The reason for sugarcane ethanol and corn ethanol to the negative impacts that could result. proposing monthly reporting for 2010 is make up for the fact that the allowances to minimize difficulties associated with they purchase from the EPA would not J. Changes to Recordkeeping and invalid RINs, while the EPA-Moderated apply to the advanced biofuel and total Reporting Requirements Trading System is still under renewable fuel standards. 1. Recordkeeping As a variation to this approach, while development. As described in detail in still restricting the applicability of IV.E. we intend to have an EPA- As with the existing renewable fuel Moderated Trading System fully allowances to only the cellulosic biofuel standard program, recordkeeping under RVO, we could similarly make operational by 2011. At the time that this proposed program will support the system becomes fully operational, all cellulosic biofuel RINs applicable to enforcement of the use of RINs for only the cellulosic biofuel RVO. This batch and RIN transactional reporting compliance purposes. As with the would be submitted in real time. The approach would ensure that the existing renewable fuels program, we compliance value of both cellulosic following deadlines would apply to are proposing that parties be afforded ‘‘real time,’ monthly, quarterly, and biofuel RINs and allowances is the significant freedom with regard to the same, but would necessarily result in an annual reports. form that product transfer documents ‘‘Real time’’ reports within the EPA- increase in the effective stringency of (PTDs) take. We propose to permit the Moderating Trading System would be the advanced biofuel and total use of product codes as long as they are submitted within three (3) business days renewable fuel standards. understood by all parties. We propose Finally, we could institute a ‘‘dual of a reportable event (e.g. generation of that product codes may not be used for a RIN, a transaction occurring involving RIN’’ approach to cellulosic biofuel that transfers to truck carriers or to retailers has the potential to address some of the a RIN). Real time reporting would apply or wholesale purchaser-consumers. We to batch reports submitted by producers shortcomings of the previous propose that parties must keep copies of approaches. In this approach, both and importers who generate RINs and to all PTDs they generate and receive, as to RIN transaction reports submitted in cellulosic biofuel RINs (with a D code well as copies of all reports submitted of 1) and allowances could only be 2011 and future years. to EPA and all records related to the Monthly reports would be submitted applied to an obligated party’s cellulosic sale, purchase, brokering or transfer or according to the following schedule: biofuel RVO, but producers of cellulosic RINs, for five (5) years. We also propose biofuel would also generate an that parties must also keep copies of TABLE III.J.2–1—MONTHLY additional RIN representing advanced records that relate to flexibilities, as REPORTING SCHEDULE biofuel (with a D code of 3). The described in Section IV.A. through C. of producer would only be required to this preamble. Such flexibilities are Month covered by Due date for report transfer the advanced biofuel RIN with related to attest engagements, the report a batch of cellulosic biofuel, and could upward delegation of RIN-separating retain the cellulosic biofuel RIN for responsibilities, and various small January ...... February 28. separate sale to any party.43 The February ...... March 31. business oriented provisions. Upon March ...... April 30. cellulosic biofuel and its attached request, parties would be responsible for advanced biofuel RIN would then April ...... May 31. providing their records to the May ...... June 30. compete directly with other advanced Administrator or the Administrator’s June ...... July 31. biofuel and its attached advanced authorized representative. We would July ...... August 31. biofuel RIN, while the separate reserve the right to request to receive August ...... September 30. cellulosic biofuel RIN would have an documents in a format that we can read September ...... October 31. independent market value that would be and use. October ...... November 30. effectively limited by the pricing November ...... December 31. In Section IV.E. of this preamble, we formula for allowances as described in December ...... January 31. propose an EPA-Moderated Trading Section III.I.2. However, this approach System for RINs. If adopted, the new The monthly reporting schedule would be a more significant deviation system would allow for real-time would apply to batch reports submitted by producers and importers who 43 The cellulosic biofuel RIN would be a reporting of RIN generation (i.e., batch separated RIN with a K code of 2 immediately upon reports by producers and importers) and generate RINs and to RIN transaction generation. RIN transactions. reports submitted for 2010 only.

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Quarterly reports would be submitted importer would be required to state the Additionally, we believe that highly on the following schedule: reason for not generating RINs, such as summarized price information (e.g., the they have documentation that states that average price of RINs traded) should be TABLE III.J.–2—QUARTERLY their feedstock did not meet the available to regulated parties, as well, REPORTING SCHEDULE definition of ‘‘renewable biomass,’’ or and may help them to anticipate and the fuel pathway used to produce the avoid market disruptions. Quarter covered by Due date for fuel was such that the fuel did not We also propose to make minor report report qualify for any D code (see Section changes to compliance reports related to III.B.4.b for a discussion about the identification of types of RINs. January–March ...... May 31. demonstrating whether or not feedstock Please refer to Section III.B. of this April–June ...... August 31. preamble for a discussion of types of July–September ...... November 30. meets the definition of ‘‘renewable October–December ...... February 28. biomass’’). For each batch of renewable renewable fuels. Also, please refer to fuel produced, we also propose to Section III.A. for a discussion of Quarterly reports include summary require information about the types and proposed changes to RINs. Under our proposed EPA-Moderated reports related to RIN activities. volumes of feedstock used and the types Trading System described in Section Annual reports (covering January and volumes of co-products produced, IV.E. of this preamble, then there would through December) would continue to as well as information about the process be a change in reporting burden on be due on February 28. Annual reports or processes used. This information is regulated parties that affects the include compliance demonstrations by necessary to confirm that the producer frequency of reporting and the number obligated parties. or importer assigned the appropriate D of reports. Instead of quarterly and/or Under this proposed rule, the code to their fuel and that the D code annual contact with EPA, there would universe of reporting parties would was consistent with their registration be real time contact—i.e., as batches of grow, but we propose similar reporting information. renewable fuel are generated or as RINs to existing reporting. We believe that the Two minor additions are being are transacted. However, we believe that proposed EPA-Moderating Trading incorporated into the RIN transaction any burden is offset by the advantage of System will make reporting easier for report. First, for reports of RINs assigned having a simplified system for RIN most parties. Existing reporting forms to a volume of renewable fuel, we are management that will promote the and instructions are posted at http:// asking that the volume of renewable fuel integrity of RINs and will remove www.epa.gov/otaq/regs/fuels/ be reported. Additionally, we propose ‘‘guesswork’’ now associated with RIN rfsforms.htm. You may wish to refer to that RIN price information be submitted management. As things are now, a these existing forms in preparing your for transactions involving both regulated party may experience comments on this proposal. separated RINs and RINs assigned to a frustration and incur expense in trying Simplified, secure reporting is renewable volume. This information is to track down and correct errors. Once currently available through our Central not collected under RFS1, but we an error is made, it propagates Data Exchange (CDX). CDX permits us believe this information has great throughout the distribution system with to accept reports that are electronically programmatic value to EPA because it each transfer from party to party. By signed and certified by the submitter in may help us to anticipate and having EPA moderate RIN management, a secure and robustly encrypted fashion. appropriately react to market we believe that errors would be Using CDX eliminates the need for wet disruptions and other compliance minimized and regulated parties would ink signatures and reduces the reporting challenges, will be beneficial when be freed of the greater burden to attempt burden on regulated parties. It is our setting future renewable standards, and to track down and correct errors they intention to continue to encourage the will provide additional insight into the may have made. Implementation of the use of CDX for reporting under this market when assessing potential EPA-Moderated Trading System would proposed program as well. waivers. We anticipate that having correspond to real-time reporting of the Due to the criteria that renewable fuel current market information such as total type of information contained in the producers and importers must meet in number of RINs produced and RINs following two quarterly reports: The order to generate RINs under RFS2, and available in the separated market is Renewable Fuel Production Report, due to the fact that renewable fuel incomplete. Missing is our ability to known as the RIN Generation Report or producers and importers must have assess the general health and direction ‘‘batch report’’ under RFS1 (Report documentation about whether their of the market and overall liquidity of Form Template RFS0400), and the RIN feedstock(s) meets the definition of RINs. Tracking price trend information Transaction Report (Report Form ‘‘renewable biomass,’’ we propose will allow us to identify market Template RFS0200), starting in 2011. several changes to the RFS1 RIN inefficiencies and perceptions of RIN For 2010, we are proposing that the type generation report. We propose to make supply. When price information is of information contained in these two the report a more general report on combined with information from the forms be submitted monthly. These and renewable fuel production in order to production outlook reports, we will be other reports and instructions related to capture information on all batches of better able to judge realistic the existing renewable fuel standard renewable fuel, whether or not RINs are expectations of renewable production program (RFS1) are posted at http:// generated for them. All renewable fuel and be in a better position when setting www.epa.gov/otaq/regs/fuels/ producers and importers above 10,000 and justifying future renewable rfsforms.htm. gallons per year would report to EPA on standards or pursuing relief through each batch of their fuel and indicate waiver provisions. Also, we believe the 3. Additional Requirements for whether or not RINs are generated for addition of price information will be Producers of Renewable Natural Gas, the batch. If RINs are generated, the highly beneficial to regulated parties. Electricity, and Propane producer or importer would be required With price information being noted on In addition to the general reporting to certify that his feedstock meets the transaction reports, buyers and sellers requirement listed above, we are definition of ‘‘renewable biomass.’’ If will have an additional and immediate proposing an additional item of RINs are not generated, the producer or reference when confirming transactions. reporting for producers of renewable

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natural gas, electricity, and propane goals mandated by EISA and to set the RINs to qualifying fuel, or creating or who choose to generate and assign RINs. annual cellulosic biofuel, advanced transferring invalid RINs. Any person While producers of renewable natural biofuel, biomass-based diesel, and total subject to a prohibition would be held gas, electricity, and propane who renewable fuel standards (see Section liable for violating that prohibition. generate and assign RINs would be II.A.7 of this preamble). We are Thus, for example, an obligated party responsible for filing the same reports as proposing that the annual production would be liable if the party failed to other producers of RIN-generating outlook reports be due annually by acquire sufficient RINs to meet its RVO. renewable fuels, we propose that February 28, beginning in 2010 and A party who produces or imports additional reporting for these producers continuing through 2022, and we are renewable fuels would be liable for a be required to support the actual use of proposing that each annual report must failure to assign proper RINs to their products in the transportation provide projected information through qualifying batches of renewable fuel sector. We believe that one simple way calendar year 2022. produced or imported. Any party, to achieve this may be to add a EPA currently receives data on including an obligated party, would be requirement that producers of projected flexible-fuel vehicle (FFV) liable for transferring a RIN that was not renewable natural gas, electricity, and sales and conversions from vehicle properly identified. propane add the name of the purchaser manufacturers; however, we do not have In addition, any person who is subject (e.g., the name of the wholesale information on renewable fuels in the to an affirmative requirement under this purchaser-consumer (WPC) or fleet) to distribution system. Thus, EPA is also program would be liable for a failure to their quarterly RIN generation reports considering whether to require the comply with the requirement. For and then maintain appropriate records annual submission of data to facilitate example, an obligated party would be that further identify the purchaser and our evaluation of the ability of the liable for a failure to comply with the the details of the transaction. We are not distribution system to deliver the annual compliance reporting proposing that a purchaser who is either projected volumes of biofuels to requirements. A renewable fuel a WPC or an end user would have to petroleum terminals that are needed to producer or importer would be liable for register under this scenario, unless that meet the RFS2 standards. We request a failure to comply with the applicable party engages in other activities comment on the extent to which such batch reporting requirements. Any party requiring registration under this information is already publicly available subject to recordkeeping or product program. or can be purchased from a proprietary transfer document (PTD) requirements source. We further request comment on would be liable for a failure to comply K. Production Outlook Reports the extent to which such publicly with these requirements. Like other EPA We are also proposing additional available or purchasable data would be fuels programs, the proposed rule reporting—annual production outlook sufficient for EPA to make its provides that a party who causes reports that would be required of all determination. To the extent that another party to violate a prohibition or domestic renewable fuel producers, additional data might be needed, we fail to comply with a requirement may foreign renewable fuel producers who request comment on the parties that be found liable for the violation. register to generate RINs, and importers should be required to report to EPA and EPAct amended the penalty and of covered renewable fuels starting in what data should be required. For injunction provisions in section 211(d) 2010. These production outlook reports example, would it be appropriate to of the Clean Air Act to apply to would be similar to the pre-compliance require terminal operators to report to violations of the renewable fuels reports required under the Highway and EPA annually on their ability to receive, requirements in section 211(o). Nonroad Diesel programs. These reports store, and blend biofuels into Accordingly, under the proposed rule, would contain information about petroleum-based fuels? We believe that any person who violates any prohibition existing and planned production publicly available information on E85 or requirement of the RFS2 program capacity, long-range plans, and refueling facilities is sufficient for us to may be subject to civil penalties of feedstocks and production processes to make a determination about the $32,500 for every day of each such be used at each production facility. For adequacy of such facilities to support violation and the amount of economic expanded production capacity that is the projected volumes of E85 that would benefit or savings resulting from the planned or underway at each existing be used to satisfy the RFS2 standards. violation. Under the proposed rule, a facility, or new production facilities that We request comment on the proposed failure to acquire sufficient RINs to meet are planned or underway, the progress requirement of annual production a party’s renewable fuels obligation reports would require information on: outlook reports, and all other aspects would constitute a separate day of (1) Strategic planning; (2) Planning and mentioned above (e.g., reporting violation for each day the violation front-end engineering; (3) Detailed requirements, reporting dates, etc.). occurred during the annual averaging engineering and permitting; (4) period. Procurement and Construction; and (5) L. What Acts Are Prohibited and Who Is As discussed above, the regulations Commissioning and startup. These five Liable for Violations? would prohibit any party from creating project phases are described in EPA’s The prohibition and liability or transferring invalid RINs. These June 2002 Highway Diesel Progress provisions applicable to the proposed invalid RIN provisions apply regardless Review report (EPA document number RFS2 program would be similar to those of the good faith belief of a party that EPA420–R–02–016, located at: of the RFS1 program and other gasoline the RINs are valid. These enforcement www.epa.gov/otaq/regs/hd2007/ programs. The proposed rule identifies provisions are necessary to ensure the 420r02016.pdf). certain prohibited acts, such as a failure RFS2 program goals are not The full list of requirements for the to acquire sufficient RINs to meet a compromised by illegal conduct in the proposed production outlook reports is party’s RVOs, producing or importing a creation and transfer of RINs. provided in the proposed regulations at renewable fuel that is not assigned a As in other motor vehicle fuel credit § 80.1449. The information submitted in proper RIN category (or D Code), programs, the regulations would address the reports would be used to evaluate improperly assigning RINs to renewable the consequences if an obligated party the progress that the industry is making fuel that was not produced with was found to have used invalid RINs to towards the renewable fuels volume renewable biomass, failing to assign demonstrate compliance with its RVO.

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In this situation, the obligated party that annually. We propose to apply the same Panel is available in the docket for this used the invalid RINs would be required provision to this proposed RFS2 rule. proposed rule. For the SBREFA process, to deduct any invalid RINs from its However, we seek comment on whether we conducted outreach, fact-finding, compliance calculations. Obligated there should be any flexibility and analysis of the potential impacts of parties would be liable for violating the provisions for those who own a small our regulations on small businesses. standard if the remaining number of number of RINs and what level of During the SBREFA process, small valid RINs was insufficient to meet its flexibility might be appropriate (e.g., refiners informed us that they would allowing those who own a small number RVO, and the obligated party might be need to rely heavily on RINs and/or subject to monetary penalties if it used of RINs to submit an attest engagement make capital improvements to comply invalid RINs in its compliance every two years, rather than every year). with the RFS2 requirements. These demonstration. In determining what B. Small Refinery and Small Refiner refiners raised concerns about the RIN penalty is appropriate, if any, we would Flexibilities program itself, uncertainty (with the consider a number of factors, including whether the obligated party did in fact 1. Small Refinery Temporary Exemption required renewable fuel volumes, RIN availability, and cost), and the desire for procure sufficient valid RINs to cover CAA section 211(o)(8), enacted as part the deficit created by the invalid RINs, a RIN system review access to RINs, and of EPAct, provides a temporary the difficulty in raising capital and and whether the purchaser was indeed exemption to small refineries (those a good faith purchaser based on an competing for engineering resources to refineries with a crude throughput of no make capital improvements. investigation of the RIN transfer. A more than 75,000 barrels of crude per penalty might include both the day, as defined in section 211(o)(1)(K)) During the Panel process, EPA raised economic benefit of using invalid RINs through December 31, 2010.44 a concern regarding provisions for small and/or a gravity component. Accordingly, the RFS1 program refiners in the RFS2 rule; and this rule Although an obligated party would be regulations exempt gasoline produced presents a very different issue than the liable under our proposed program for by small refineries from the renewable small refinery versus small refiner a violation if it used invalid RINs for fuels standard (unless the exemption concept from RFS1. This issue deals compliance purposes, we would was waived), see 40 CFR 80.1141. EISA with whether or not EPA has the normally look first to the generator or did not alter the small refinery authority to provide a subset of small seller of the invalid RINs both for exemption in any way. Therefore, we refineries (those that are operated by payment of penalty and to procure intend to retain this small refinery small refiners) with an extension of time sufficient valid RINs to offset the invalid temporary exemption in the RFS2 that would be different from, and more RINs. However, if, for example, that program without change. Further, as than, the temporary exemption specified party was out of business, then attention discussed below in Section IV.B.2.c, we by Congress in section 211(o)(9) for would turn to the obligated party who are proposing to continue one of the small refineries (temporary exemption would have to obtain sufficient valid hardship provisions for small refineries through December 31, 2010, with the RINs to offset the invalid RINs. provided at 40 CFR 80.1141(e). potential for extensions of the We request comment on the need for exemption beyond this date if certain additional prohibition and liability 2. Small Refiner Flexibilities criteria are met.). In other words, the provisions specific to the proposed RFS As mentioned above, EPAct granted a temporary exemption specified by 2 program. temporary exemption from the RFS Congress provided relief for those small IV. What Other Program Changes Have program to small refineries through refiners that are covered by the small We Considered? December 31, 2010. In the RFS1 final refinery provision; EPA believes that rule, we exercised our discretion under providing these refiners with an In addition to the regulatory changes section 211(o)(3)(B) and extended this additional exemption different from that we are proposing today in response to temporary exemption to the few provided by section 211(o)(9) may be EISA that are designed to implement the remaining small refiners that met the inconsistent with the intent of Congress. provisions of RFS2, there are a number Small Business Administration’s (SBA) Congress spoke directly to the relief that of other changes to the RFS program definition of a small business (1,500 EPA may provide for small refineries, that we are considering. These changes employees or less company-wide) but including those small refineries would be designed to increase did not meet the Congressional small operated by small refiners, and limited flexibility, simplify compliance, or refinery definition as noted above. it to a blanket exemption through address RIN transfer issues that have As explained in the discussion of our December 31, 2010, with additional arisen since the start of the RFS1 compliance with the Regulatory extensions if the criteria specified by program. We have also investigated Flexibility Act below in Section XII.C Congress were met. impacts on small businesses and are and in the Initial Regulatory Flexibility proposing approaches designed to Analysis in Chapter 7 of the draft RIA, The Panel recommended that EPA address the impacts of the program on we considered the impacts of today’s consider the issues raised by the SERs them. proposed regulations on small and discussions had by the Panel itself, and that EPA should consider A. Attest Engagements businesses. Most of our analysis of small business impacts was performed as a comments on flexibility alternatives that The purpose of an attest engagement part of the work of the Small Business would help to mitigate negative impacts is to receive third party verification of Advocacy Review Panel (SBAR Panel, on small businesses to the extent information reported to EPA. An attest or ‘‘the Panel’’) convened by EPA, allowable by the Clean Air Act. A engagement, which is similar to a pursuant to the Regulatory Flexibility summary of further recommendations of financial audit, is conducted by a Act as amended by the Small Business the Panel are discussed in Section XII.C Certified Public Accountant (CPA) or Regulatory Enforcement Fairness Act of of this preamble, and a full discussion Certified Independent Auditor (CIA) 1996 (SBREFA). The Final Report of the of the regulatory alternatives discussed following agreed-upon procedures. and recommended by the Panel can be Under the RFS1 program, an attest 44 Small refineries are also allowed to waive this found in the SBREFA Final Panel engagement must be conducted exemption. Report.

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a. Extension of Existing RFS1 review could be beneficial to small outcome of the DOE small refinery Temporary Exemption entities in providing them some insight study (as discussed below). In the small refinery study, ‘‘EPACT As previously stated, the RFS1 to the RFS program’s progress and 2005 Section 1501 Small Refineries program regulations provide small alleviate some uncertainty regarding the Exemption Study’’, DOE’s finding was refiners who operate small refineries, as RIN system. As we will be publishing a that there is no reason to believe that well as those small refiners who do not Federal Register notice annually, the any small refinery would be operate small refineries, with a Panel recommended that we include an disproportionately harmed by inclusion temporary exemption from the update of RIN system progress (e.g., RIN trading, publicly-available information in the proposed RFS2 program. This standards through December 31, 2010. RIN availability, etc.) in this annual finding was based on the fact that there Small refiner SERs suggested that an notice. appeared to be no shortage of RINs additional temporary exemption for the We propose to include elements of available under RFS1, and EISA has RFS2 program would be beneficial to RIN system progress—such as RIN provided flexibility through waiver them in meeting the RFS2 standards; trading and availability—in the annual authority (per section 211(o)(7)). and the Panel recommended that EPA Federal Register RFS2 standards notice. Further, in the case of the cellulosic propose a delay in the effective date of We also invite comment on additional biofuel standard, cellulosic biofuel the standards until 2014 for small elements to include in this review. allowances can be provided from EPA at entities, to the maximum extent allowed prices established in EISA (see proposed c. Extensions of the Temporary by the statute. regulation section 80.1455). DOE thus Exemption Based on Disproportionate We have evaluated an additional determined that no small refinery would Economic Hardship temporary exemption for small refiners be subject to disproportionate economic for the required RFS2 standards, and we As noted above, there are two hardship under the proposed RFS2 have also evaluated such an exemption provisions in section 211(o)(9) that program, and that the small refinery with respect to our concerns about our allow for an extension of the temporary exemption should not be extended authority to provide an extension of the exemption beyond December 31, 2010. beyond December 31, 2010. DOE noted temporary exemption for small One involves a study by the Department in the study that, if circumstances were refineries that is different from that of Energy (DOE) concerning whether to change and/or the RIN market were provided in CAA section 211(o)(9). As compliance with the renewable fuel to become non-competitive or illiquid, a result, we believe that the limitations requirements would impose individual small refineries have the of the statute do not necessarily allow disproportionate economic hardship on ability to petition EPA for an extension us the discretion to provide an small refineries, and would grant an of their small refinery exemption (as exemption for small refiners only (i.e., extension of at least two years for a proposed at draft regulation section small refiners but not small refineries) small refinery that DOE determines 80.1441). We note that the findings of beyond that provided in section would be subject to such DOE’s small refinery study, and a 211(o)(9). However, it is important to disproportionate hardship. Another consideration of EPA’s ongoing review recognize that the 211(o)(9) small provision authorizes EPA to grant an of the functioning of the RIN market, refinery provision does allow for extension for a small refinery based could factor into the basis for approval extensions beyond December 31, 2010, upon disproportionate economic of such a hardship request. with two separate provisions addressing hardship, on a case-by-case basis. We are also proposing a case-by-case extensions beyond 2010. These We believe that these avenues of relief hardship provision for those small provisions are discussed below in can and should be fully explored by refiners that do not operate small Section IV.B.2.c. small refiners who are covered by the refineries, at draft regulation section Therefore, we are proposing to small refinery provision. In addition, we 80.1442(h), using our discretion under continue the temporary exemption believe that it is appropriate to consider CAA section 211(o)(3)(B). This proposed finalized in RFS1—through December allowing petitions to EPA for an provision would allow those small 31, 2010—for small refineries and all extension of the temporary exemption refiners that do not operate small qualified small refiners. We also request based on disproportionate economic refineries to apply for the same kind of comment on the interpretation of our hardship for those small refiners who extension as a small refinery. In authority under the CAA and the are not covered by the small refinery evaluating applications for this appropriateness of providing an provision (again, per our discretion proposed hardship provision, it was extension to small refiners only beyond under section 211(o)(3)(B)); this would recommended by the SBAR Panel that that authorized by section 211(o)(9). ensure that all small refiners have the EPA take into consideration information same relief available to them as small b. Program Review gathered from annual reports and RIN refineries do. Thus, we are proposing a system progress updates. During the SBREFA process, the small hardship provision for small refineries refiner SERs also requested that EPA in the RFS2 program, that any small d. Phase-in perform an annual program review, to refinery may apply for a case-by-case The small refiner SERs suggested that begin one year before small refiners are hardship at any time on the basis of a phase-in of the obligations applicable required to comply with the program. disproportionate economic hardship per to small refiners would be beneficial for We have slight concerns that such a CAA section 211(o)(9)(B). While EISA compliance, such that small refiners review could lead to some redundancy stated (per section 211(o)(9)(A)(ii)(I)) would comply by gradually meeting the since EPA is required to publish a that the small refinery temporary standards on an incremental basis over notice of the applicable RFS standards exemption shall be extended for at least a period of time, after which point they in the Federal Register annually, and two years for any small refinery that the would comply fully with the RFS2 this annual process will inevitably DOE small refinery study determines standards, however we have concerns include an evaluation of the projected would face disproportionate economic about our authority under the statute to availability of renewable fuels. hardship in meeting the requirements of allow for such a phase-in of the Nevertheless, some Panel members the RFS2 program, we are not proposing standards. CAA section 211(o)(3)(B) commented that they believe a program this hardship provision given the states that the renewable fuel obligation

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shall ‘‘consist of a single applicable section 211(o) of the Clean Air Act. gallons of renewable fuel per year. We percentage that applies to all categories Thus, we are not proposing this also request comment on whether or not of persons specified’’ as obligated provision in this action, however we this threshold is appropriate. parties. This kind of phase-in approach invite comment on such an approach for We envision that such a provision would result in different applicable small refiners. would be available to any blender who percentages being applied to different must separate RINs from a volume of obligated parties. Further, as discussed C. Other Flexibilities renewable fuel under § 80.1429(b)(2). above, such a phase-in approach would 1. Upward Delegation of RIN-Separating We also request comment on provide more relief to small refineries Responsibilities appropriate documentation to authorize this upward delegation. This could be operated by small refiners than that Since the start of the RFS1 program something such as a document given to provided under the small refinery on September 1, 2007, there have been the supplier identifying the RIN provision. We do not believe that we a number of instances in which a party separation that the supplier would can use our discretion under the statute who receives RINs with a volume of to allow for such a provision; however perform. The document could include renewable fuel is required to either we invite comment on the concept of a sufficient information to precisely separate or retire those RINs, but views phase-in provision for all small refiners. identify the conditions of the the recordkeeping and reporting authorization, such as the volume of e. RIN-Related Flexibilities requirements under the RFS program as renewable fuel in question and the The small refiner SERs requested that an unnecessary burden. Such number of RINs assigned to that volume. the proposed rule contain provisions for circumstances typically might involve a By necessity the document would need small refiners related to the RIN system, renewable fuel blender, a party that uses to be signed by both parties, and copies such as flexibilities in the RIN rollover renewable fuel in its neat form, or a retained as records by both parties, cap percentage and allowing all small party that uses renewable fuel in a non- since the supplier would then be refiners to use RINs interchangeably. highway application and is therefore responsible for these actions. The Currently in the RFS program, up to required to retire the RINs (under RFS1) supplier would then be allowed to 20% of a previous year’s RINs may be associated with the volume. In some of retain ownership of RINs assigned to a ‘‘rolled over’’ and used for compliance these cases, the affected party may volume of renewable fuel when that in the following year. A provision to purchase and/or use only small volumes volume is transferred, under the allow for flexibilities in the rollover cap of renewable fuel and, absent the RFS condition that the RINs be separated or could include a higher RIN rollover cap program, would be subject to few if any retired concurrently with the transfer of for small refiners for some period of other EPA regulations governing fuels. the volume. We are proposing an annual time or for at least some of the four This situation will become more authorization that would apply to all standards. While the rollover cap is the prevalent with the RFS2 program, as volumes of renewable fuel transferred means through which we are EISA added diesel fuel to the RFS between two parties for a given year implementing the limited credit lifetime program. With the RFS1 rule, small (i.e., the two parties would enter into a provisions in section 211(o) of the CAA, blenders (generally farmers and other contract stating that the supplier has and therefore cannot simply be parties that use nonroad diesel fuel) RIN-separation responsibilities for all eliminated, the magnitude of the cap blending small amounts of biodiesel transferred volumes). can be modified to some extent. Thus, were not covered under the rule as We are proposing this provision there could be an opportunity to EPAct mandated renewable fuel solely for the case of blenders who provide appropriate flexibility in this blending for highway use only. EISA blend and trade less than 125,000 total area. However, given the results of the mandates certain amounts of renewable gallons of renewable fuel per year. A DOE small refinery study, we do not fuels to be blended into transportation company that blends 100,000 gallons believe it would be appropriate to fuels—which includes nonroad diesel and trades 100,000 gallons would not be propose a change to the RIN rollover cap fuel. Thus, parties that were not able to use this provision. However, we for small refiners today. However, we regulated under the RFS1 rule who only request comment on whether request comment on the concept of blend a small amount of renewable fuel authorization to delegate RIN-separation increasing the RIN rollover cap (and, as mentioned above, are generally responsibilities should also be allowed percentage for small refiners. We also not subject to many of the EPA fuels for other parties as well. request comment on an appropriate regulations) would now be regulated by 2. Small Producer Exemption level of that percentage. For example, the program. would a rollover cap of 50% for small Consequently, we believe it may be Under the RFS1 program, parties who refiners be appropriate? Or, would an appropriate, and thus we are proposing produce or import less than 10,000 intermediate value between 20% and today, to permit blenders who only gallons of renewable fuel in a year are 50%, such as 35%, be more blend a small amount of renewable fuel not required to generate RINs for that appropriate? to allow the party directly upstream to volume, and are not required to register The Panel recommended that we take separate RINs on their behalf. Such a with the EPA if they do not take comment on allowing RINs to be used provision would be consistent with the ownership of RINs generated by other interchangeably for small refiners, but fact that the RFS1 program already parties. We propose to maintain this not propose this concept because under allows marketers of renewable fuels to exemption under the RFS2 rule. this approach small refiners would assign more RINs to some of their sold However, we request comment on arguably be subject to a different product and no RINs to the rest of their whether the 10,000 gallon threshold applicable percentage than other sold product. We believe that this should be higher given that the total obligated parties. However, this concept provision would eliminate undue volume of renewable fuel mandated by fails to require the four different burden on small parties who would EISA is considerably higher than that standards mandated by Congress (e.g., otherwise not be regulated by this required by the RFS1 program, or conventional biofuel could not be used program. We are proposing that this conversely whether it should be lower instead of cellulosic biofuel or biomass- provision apply to small blenders who given that the biomass-based diesel based diesel), and is not consistent with blend and trade less than 125,000 total standard is considerably lower than the

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mandated volume for total renewable RINs that an obligated party may have E. Concept for EPA Moderated fuel. that are in excess of the 20% cap can be Transaction System traded to other obligated parties that D. 20% Rollover Cap 1. The Need for an EPA Moderated need them. If the previous-year RINs in Transaction System EISA does not change the language in excess of the 20% cap are not used by CAA section 211(o)(5) stating that any obligated party for compliance, they In implementing RFS1, we found that renewable fuel credits must be valid for will thereafter cease to be valid for the 38-digit standardized RINs have showing compliance for 12 months as of compliance purposes. proven confusing to many parties in the the date of generation. As discussed in EISA does not modify the statutory distribution chain. Parties have made the RFS1 final rulemaking, we provisions regarding credit life, and the various errors in generating and using interpreted the statute such that credits volume changes by EISA also do not RINs. For example, we have seen errors would represent renewable fuel change at least the possibility of large wherein parties have transposed digits volumes in excess of what an obligated rollovers of RINs for individual within the RIN. We have seen parties party needs to meet their annual obligated parties. Therefore, we propose creating alphanumeric RINs, despite the compliance obligation. Given that the to maintain the regulatory requirement fact that RINs are supposed to consist of renewable fuel standard is an annual for a 20% rollover cap under the new all numbers. We have also seen standard, obligated parties determine RFS2 program. However, under RFS2 incorrect numbering of volume start and compliance shortly after the end of the obligated parties will have four RVOs end codes. Once an error is made within a RIN, year, and credits would be identified at instead of one. As a result, we are the error propagates throughout the that time. In the context of our RIN- proposing that the 20% rollover cap distribution system. Correcting an error based program, we have accomplished would apply separately to all four can require significant time and the statute’s objective by allowing RINs RVOs. We do not believe it would be to be used to show compliance for the resources and involve many steps. Not appropriate to apply the rollover cap to year in which the renewable fuel was only must reports to EPA be corrected, only the RVO representing total produced and its associated RIN first underlying records and reports renewable fuel, leaving the other three generated, or for the following year. reflecting RIN transactions must also be RVOs with no rollover cap. Doing so RINs not used for compliance purposes located and corrected to reflect would allow all previous-year RINs in the year in which they were discovery of an error. Because reporting used for compliance to be those with a generated will by definition be in excess related to RIN transactions under RFS1 D code of 4, and this in turn would of the RINs needed by obligated parties is only on a quarterly basis, a RIN error allow an obligated party to meet one of in that year, making excess RINs may exist for several months before the nested standards, such as that for equivalent to the credits referred to in being discovered. section 211(o)(5). Excess RINs are valid biomass-based diesel, using more than Incorrect RINs are invalid RINs. If for compliance purposes in the year 20% previous-year RINs. This could parties in the distribution system cannot following the one in which they initially result in significant rollover of RINs track down and correct the error made came into existence. RINs not used with a D code of 2, representing by one of them in a timely manner, then within their valid life will thereafter biomass-based diesel, and the valid life all downstream parties that trade the cease to be valid for compliance of these RINs would have no meaning invalid RIN will be in violation. Because purposes. in this case. RINs are the basic unit of compliance In the RFS1 final rulemaking, we also Some obligated parties have suggested for the RFS1 program, it is important discussed the potential ‘‘rollover’’ of that the rollover cap should be raised to that parties have confidence when excess RINs over multiple years. This a value higher than 20%, citing the need generating and using them. can occur in situations wherein the total for greater flexibility in the face of All parties in the RFS1 and the number of RINs generated each year for significantly higher volume proposed RFS2 regulated community a number of years in a row exceeds the requirements. However, we believe that use RINs. These parties include number of RINs required under the RFS a higher value could create disruptions producers of renewable fuels, obligated program for those years. The excess in the RIN market as parties with excess parties, exporters, and other owners of RINs generated in one year could be RINs would have a greater incentive to RINS, typically marketers of renewable used to show compliance in the next hold onto them rather than sell them. fuels and blenders. (Anyone can own year, leading to the generation of new This would especially be a concern in RINs, but those who do would be excess RINs in the next year, causing the years where the volume of renewable subject to registration, recordkeeping, total number of excess RINs in the fuel available in the market is very close reporting, and attest engagement market to accumulate over multiple to the RFS requirements. Nevertheless, requirements described in this years despite the limit on RIN life. The we request comment on whether the preamble.). Currently under RFS1, all rollover issue could in some 20% rollover cap should be raised to a RINs are used to comply with a single circumstances undermine the ability of higher value. standard, and in 2013 an additional a limit on credit life to guarantee an As described in Section III.G.4, some cellulosic standard would have been ongoing market for renewable fuels. parties have also suggested that the added. Under this proposed rule, there To implement the Act’s restriction on rollover cap should be lowered to a are four standards, and RINs must be the life of credits and address the value lower than 20%, such as 10%. In generated to identify four types of rollover issue, the RFS1 final the event of concerns about the renewable fuels: cellulosic biofuel, rulemaking implemented a 20% cap on availability of RINs, a lower rollover cap biomass-based diesel, other advanced the amount of an obligated party’s RVO would provide a greater incentive for biofuels, and other renewable fuels (e.g., that can be met using previous-year parties with excess RINs to sell them corn ethanol). (For a more detailed RINs. Thus each obligated party is rather than hold onto them. However, a discussion of RINs, see Section III.A of required to use current-year RINs to lower rollover cap would also reduce this preamble.) In the proposed EPA meet at least 80% of its RVO, with a flexibility for many obligated parties. Moderated Transaction System (EMTS), maximum of 20% being derived from While we are not proposing it in today’s the four types of RINs will be managed previous-year RINs. Any previous-year notice, we request comment on it. through four types of account.

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Based upon problems we observed Under RFS1, the producer or importer operational. We believe that permitting with the use of RINs under RFS1, and list RINs they generate and assign via interested parties to ‘‘opt in’’ will result considering that we will now have a the batch report. EPA, in turn, uses the in a better EMTS for all. more complex system including four batch report data to verify RINs In the second year of the program (i.e., standards instead of just one, we believe generated and transacted. The report is calendar year 2011 and forward), we that the best way to screen RINs and submitted quarterly. Under RFS1, the anticipate fully implementing the conduct RIN-based transactions is purpose of the RIN transaction report is proposed EMTS and receiving the data through EMTS. to document RIN transactions and to contained in batch and RIN transaction This section describes the proposed document that RINs have been sold or reports in relatively ‘‘real time’’ (i.e., as EMTS and options for implementing it. transferred from party to party in the transactions occur). We propose that By implementing EMTS, we believe that distribution system. This report is also ‘‘real time’’ be construed as within three we would be able to greatly reduce RIN- submitted quarterly. The RIN (3) business days of a reportable event related errors and efficiently and transaction report includes the (e.g., generation and assignment of RINs, accurately manage the universe of RINs. following information in this report: its transfer of RINs). There are two aspects to our proposal name, its EPA company registration Parties who use EMTS would have to for EMTS. The first aspect focuses upon number, and in some cases (where register with EPA in accordance with creating four, generic types of RIN compliance is on a facility basis), its the proposed RFS2 registration program account. The second aspect focuses EPA facility identification number. For described in Section III.C of this upon actually developing a ‘‘real time’’ the quarterly reporting period, the preamble. They would also have to environment for handling RIN trades. reporting party indicates the transaction create an account (i.e., register) via type (RIN purchase, RIN sale, expired EPA’s Central Data Exchange (CDX), as 2. How EMTS Would Work RIN, or retired RIN), and the date of the we envision managing EMTS via CDX. CDX is a secure and central portal EMTS would be a closed, EPA- transaction. For a RIN purchase or sale, through which parties may submit managed system that provides a the transaction report includes the compliance reports. We propose that mechanism for screening RINs as well trading partner’s name and the trading parties must establish an account with as a structured environment for partner’s EPA company registration EMTS by October 1, 2010 or 60 days conducting RIN transactions. number. There is also information that prior to engaging in any transaction ‘‘Screening’’ RINs will mean that parties may have to be submitted in the event involving RINs, whichever is later. As would have much greater confidence a reporting party must report a RIN that discussed above, the actual items of that the RINs they handle are genuine. has been retired (e.g., when a RIN has become invalid due to the spillage of the information covered by reporting under Although screening cannot remove all RFS2 are nearly identical to those associated volume of renewable fuel). human error, we believe it can remove reported under RFS1. As discussed above, the shortcoming of most of it. Once registration occurs with EMTS, We propose that screening and these reports is that they are only individual RIN accounts would be assignment of RINs be made at the submitted quarterly. RIN errors that established and the system would logical point, i.e., the point when RINs affect compliance may not be manage the accounts for each individual are generated through production or discovered for many months because of party. The RIN accounts would importation of renewable fuel. A the relative infrequency of reporting correspond to the four broad types of renewable producer would transactions to EPA. EMTS will assume renewable fuel. RIN accounts would be electronically submit, in ‘‘real time,’’ a the functionality of batch reporting and established for cellulosic biofuel, batch report for the volume of transaction reporting used by regulated biomass-based diesel, other advanced renewable fuel produced or imported, as parties, allowing EPA to better screen biofuels, and other renewable fuels well as a list of the RINs generated and RINs and reduce or eliminate generation (including corn ethanol). One big assigned. EMTS would automatically and transaction errors. advantage of RIN accounts is that the screen each batch and either reject the Under the RFS2 program, we are system would make available generic RINs or permit them to pass into the proposing that batch reports submitted accounts for transactions involving RINs transaction system, into the RIN by producers and importers and RIN of similar type. The unique generator’s account, as one of the four transaction reports be submitted identification of the RIN would exist types of RINs. Note that under RFS1, monthly rather than quarterly in the within EMTS, but parties engaging in RIN generation (batch) and RIN first year of the program (i.e., calendar RIN transactions would no longer have transaction reports are submitted year 2010). During 2010, we will be to worry about incorrectly recording or quarterly. Batch reports are submitted finishing development and testing of the using 38-digit RIN numbers. As with by producers and importers quarterly EMTS. In order to minimize the RFS1, there is no ‘‘good faith’’ provision and reflect how they generated and hardship that undiscovered, invalid to RIN ownership. An underlying assigned RINS to batches. RIN RINs may cause, we propose and seek principle of RIN ownership is still one transaction reports are submitted by all comment on increasing the frequency of of ‘‘buyer beware’’ and RINs may be parties who engage in RIN transactions, reporting and our own review of reports prohibited from use at any time if they including buying or selling RINs. Under in order to assist the regulated are found to be invalid. Because of the this proposed approach for RFS2, these community with compliance. As we ‘‘buyer beware’’ aspect, we intend to batch reports and RIN transaction develop EMTS through calendar year offer the option for a buyer to accept or reports would be submitted monthly for 2010, we intend to invite and encourage reject RINs from specific RIN generators calendar year 2010. However, once interested reporting parties to ‘‘opt in’’ or from classes of RIN generators. Also, EMTS is implemented in calendar year to EMTS. This will serve a two-fold we propose to collect information about 2011, these separate periodic reports purpose: regulated parties may opt to the price associated with RINs traded. may no longer be necessary. Instead the gain familiarity EMTS before it becomes This information is not collected under information would be submitted as RINs fully operational and we may have RFS1, but we believe this information are generated and assigned within actual customers with which to test has great programmatic value to EPA EMTS. EMTS prior to it becoming fully because it may help us to anticipate and

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appropriately react to market propose that the actual transactions Implementation of EMTS should save disruptions and other compliance between parties and that individual considerable time and resources for both challenges, assess and develop company account information may be industry and EPA. This is most evident responses to potential waivers, and claimed as confidential business considering that the proposed system assist in setting future renewable information (CBI) by the parties to that virtually eliminates multiple sources of standards. We believe that highly transaction. EPA would treat any administrative errors, resulting in a summarized price information (e.g., the information submitted that is covered reduction in costs and effort expended average price of RINs traded by a CBI claim in accordance with the to correct and regenerate product nationwide) may be valuable to procedures at 40 CFR Part 2 and transfer documents, documentation and regulated parties, as well, and may help applicable Agency policies and recordkeeping, and resubmitting reports them to anticipate and avoid market guidelines for the handling of claimed to EPA. We anticipate that a fully disruptions. CBI. functioning EMTS will result in fewer The following is an example of how reports and easier reporting for industry, 3. Implementation of EMTS a RIN transaction might occur in the and fewer reports requiring processing proposed EMTS model: We anticipate that implementing by EPA. Industry will need to spend less 1. Seller logs into EMTS and posts his EMTS will take until January 1, 2011, time and effort verifying the validity of sale of 10,000 RINs to Buyer. For this although we are proposing that the the RINs they procure and allowing example, assume the RINs were RFS2 program be effective on January 1, them to procure them on the open generated in 2008 and were assigned to 2010. We anticipate that development of market with confidence. EPA will need 10,000 gallons of ‘‘other renewable fuel’’ EMTS will require significant time and to spend less time tracking down the (corn ethanol). Seller’s RIN account for effort and that a delayed effective date responsible parties for invalid RINs. ‘‘other renewable fuel’’ is automatically may permit better pre-testing with This is possible because EMTS will reduced by 10,000 with the posting of interested regulated parties. We propose remove management of the 38-digit RIN his sale to Buyer. Buyer receives to permit regulated parties who are from the hands of the reporting automatic notification of the pending willing to participate in EMTS early to community. At the same time, EPA and transaction. voluntarily opt-in to the system before the reporting community will be 2. Buyer logs into EMTS. She sees the January 1, 2011. The actual date for working with a standardized system, sale transaction pending. Assuming it is these parties’ opt-in will depend upon reducing stresses and development costs correct, she accepts it. Upon her the actual timeline for development of on IT systems. acceptance, her RIN account for ‘‘other EMTS. We encourage comments from In summary, the advantage to renewable fuel’’ (corn ethanol) is interested parties as to how we might implementing EMTS is that parties may automatically increased by 10,000 2008 best make use of the development engage in RIN transactions with a high assigned RINs. period and the proposed opportunity for degree of confidence. Errors would be 3. After Seller has posted his sale and willing and interested parties to ‘‘opt virtually eliminated. Everyone engaging Buyer has accepted it, EMTS in’’ early. in RIN transactions would have a automatically notifies both Buyer and Under our proposed scenario, for the simplified environment in which to Seller that the transaction has been fully 2010 compliance year, recordkeeping work which should minimize the level completed. and reporting would be analogous to of resources needed for implementation. Under EMTS as we are proposing it, RFS1, although registration would be However, the one unavoidable the seller would always have to initiate enhanced in accordance with the disadvantage that we foresee is that any transaction. The seller’s account is discussion in Section III.C of this parties would have to switch to a new reduced when he posts his sale. The preamble and recordkeeping and and different reporting system in the buyer must acknowledge the sale in reporting would reflect the four types of second year of the RFS2 program. Some order to have the RINs transferred to her RIN described above. In order to avoid errors may still occur in by parties who account. Transactions would always be propagation of RIN-related errors and to continue to generate and use the 38- limited to available RINs. Notification prevent errors from going too long digit RINs during 2010. As discussed would automatically be sent to both the without being detected, we believe it is above, we propose to increase the buyer and the seller upon completion of necessary to increase the frequency of frequency of batch and RIN transaction the transaction. EPA proposes to batch reporting and RIN transaction reporting to monthly for 2010, in order consider any sale or transfer as complete reporting to monthly rather than that we may help parties discover errors upon acknowledgement by the buyer. quarterly during 2010. and correct them before they become We propose that RINs and the EPA will implement the EMTS during violations. We also propose to permit parameters of RIN generation (e.g., year) the first year of the RFS2 program. RINs parties to voluntarily ‘‘opt in’’ to using be considered public information. We generated under the RFS1 regulations EMTS while it is still in development in also propose that summary RIN price will continue to be traded and reported order to ease the transition. We invite information, such as average price of all using the current processes. RINs would comment from all interested parties as RINs in a broad geographic area (such as still have unique identifying to how we may best assist regulated a state, region, or nationwide) be information, but EMTS will allow parties in transitioning from the ‘‘old’’ considered public information. This transactions to take place on a generic RFS1 method of handing RINs to the summary price information would be basis having the system track the ‘‘new,’’ proposed RFS2 EMTS method aggregated from transactions conducted specific unique identifiers. We believe on January 1, 2011. within EMTS, but would not be that EMTS will virtually eliminate We also invite comment on whether, identified with individual companies or errors related to tracking and using in the event the RFS2 start date is particular transactions that have individual RINs. Parties will be required delayed, EPA should nevertheless allow occurred. Because we believe to submit RIN transactions by specifying a one-year period during which use of information about RIN pricing in RIN year, RIN assignment, RIN fuel EMTS is optional, or if EPA should general will be useful to regulated type, and any other reporting begin the program at the inception of parties, we are proposing to make this requirement specified by the the delayed RFS2 program if EMTS is information available to them. We administrator. fully operational at that time.

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F. Retail Dispenser Labelling for We request comment on whether the essentially a projection of renewable Gasoline With Greater Than 10 Percent proposed labeling requirements and fuel volumes without the enactment of Ethanol voluntary measures such as those EISA. The control case is a projection of described above would provide the volumes and types of renewable fuel Fuel retailers expressed concern that sufficient warning to fuel retail that might be used to comply with the the magnitude of the price discount for customers not to refuel non-flex-fuel EISA volume mandates. Both the E85 relative to E10 that would be vehicles with E85. To the extent that reference and control cases are necessary to facilitate sufficient use of other measures to prevent misfueling discussed in further detail below. E85 would encourage widespread are thought to be necessary, comment is misfueling of non-flex fuel vehicles. requested on the specific nature of such 1. Reference Case Today’s proposal contains labeling measures and the associated potential Our reference case renewable fuel requirements for pumps that dispense costs and benefits. One additional volumes are based on the Energy blends that contain greater than 10% potential measure to prevent misfueling Information Administration’s (EIA) ethanol which state that the use in non- would be for cards to be issued to flex Annual Energy Outlook (AEO) 2007 flex fuel vehicles is prohibited and may fuel vehicle owners and for all E85 reference case projections. The AEO 45 cause damage to the vehicle. We dispensers to be equipped with card 2007 presents long-term projections of anticipate that the industry would also readers that would allow E85 to be energy supply, demand, and prices conduct public information activities to dispensed only to card holders. through 2030 based on results from alert customers who may not have yet V. Assessment of Renewable Fuel EIA’s National Energy Modeling System become accustomed to seeing E85 at Production Capacity and Use (NEMS). EIA’s analysis focuses retail to avoid using E85 in their non- To assess the impacts of this rule, primarily on a reference case (which we flex-fuel vehicles. Uniquely colored/ use as our reference case), lower and labeled nozzle handles may also be there must be a clear understanding of the kind of renewable fuels that could higher economic growth cases, and useful in helping to prevent accidental lower and higher energy price cases. cases of misfueling. We believe that in be used, the types and locations of their feedstocks, the fuel volumes that could AEO 2007 projections generally are most cases the warnings that the use of based on Federal, State, and local laws E85 in non-flex fuel vehicles is illegal, be produced by a given feedstock, and any challenges associated with their and regulations in effect on or before can damage the vehicle, and can void October 31, 2006.47 The potential vehicle manufacturer warranties may be use. This section provides this assessment of the potential feedstocks impacts of pending or proposed a sufficient disincentive to prevent legislation, regulations, and standards intentional misfueling. In cases where and renewable fuels that may be used to meet the Energy Independence and are not reflected in the projections. intentional misfueling may occasionally While AEO 2007 is not as up-to-date as take place, the party is likely to Security Act (EISA) and the rationale behind our projections of various fuel AEO 2008 (or the recently released AEO experience drivability problems and 2009), we chose to use AEO 2007 thus would not repeat the act. types to represent the control case for analysis purposes. Definitional issues because AEO 2008 already includes the Today’s proposal does not contain regarding the four types of renewable impact of increased renewable fuel requirements that E85 refueling fuel required under EISA are discussed volumes under EISA as well as fuel hardware be configured to prevent the in Section III.B of this preamble. economy improvements under CAFE, introduction of E85 into non-flex-fuel whereas AEO 2007 did not. Table vehicles. It is unclear how such an A. Summary of Projected Volumes V.A.1–1 summarizes the fuel types and approach could be implemented to EISA mandates the use of increasing volumes for the years 2009–2022 as allow the approximately 6 million flex- volumes of renewable fuel. To assess the taken from AEO 2007. For our air fuel vehicles on the road today to impacts of this increase in renewable quality analysis we also considered a continue to be fueled with E85 without fuel volume from business-as-usual reference case assuming the mandated modification to their filler neck (what is likely to have occurred without renewable fuel volumes under the hardware.46 In any event, we do not EISA), we have established a reference Renewable Fuel Standard Program from believe that unique E85 nozzles are and control case from which subsequent the Energy Policy Act of 2005 (EPAct). necessary. analyses are based. The reference case is Refer to Section VII for further details.

TABLE V.A.1–1—AEO 2007 REFERENCE CASE PROJECTED RENEWABLE FUEL VOLUMES [billion gallons]

Advanced biofuel Non-advanced biofuel Cellulosic Biomass- Other ad- Total Year biofuel based diesela vanced biofuel renewable Corn fuel Cellulosic FAME Imported ethanol ethanol biodieselb ethanol

2009 ...... 0.07 0.32 0.50 9.44 10.33 2010 ...... 0.12 0.32 0.29 10.49 11.22 2011 ...... 0.19 0.33 0.16 10.69 11.37 2012 ...... 0.25 0.33 0.18 10.81 11.57

45 See section 80.1469 in the proposed regulatory while allowing flex fuel vehicles to be fueled with neck hardware between flex-fuel and non-flex-fuel text. E10 as well as E85 would also prevent the vehicles. 46 An E85 nozzle design and corresponding flex- introduction of E85 into current flex-fuel vehicles 47 EIA. Annual Energy Outlook 2007 with fuel vehicle filler design that would prevent the since there is currently no difference in nozzle/filler Projections to 2030. http://www.eia.doe.gov/oiaf/ introduction of E85 into non-flex-fuel vehicles archive/aeo07/index.html. Accessed February 2008.

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TABLE V.A.1–1—AEO 2007 REFERENCE CASE PROJECTED RENEWABLE FUEL VOLUMES—Continued [billion gallons]

Advanced biofuel Non-advanced biofuel Cellulosic Biomass- Other ad- Total Year biofuel based diesela vanced biofuel renewable Corn fuel Cellulosic FAME Imported ethanol ethanol biodieselb ethanol

2013 ...... 0.25 0.33 0.19 10.93 11.70 2014 ...... 0.25 0.23 0.20 11.01 11.69 2015 ...... 0.25 0.25 0.39 11.10 11.99 2016 ...... 0.25 0.35 0.51 11.16 12.27 2017 ...... 0.25 0.36 0.53 11.30 12.44 2018 ...... 0.25 0.36 0.54 11.49 12.64 2019 ...... 0.25 0.37 0.58 11.69 12.89 2020 ...... 0.25 0.37 0.60 11.83 13.05 2021 ...... 0.25 0.38 0.63 12.07 13.33 2022 ...... 0.25 0.38 0.64 12.29 13.56 a Biomass-Based Diesel includes FAME biodiesel, cellulosic diesel, and non-co-processed renewable diesel. AEO 2007 only projects FAME biodiesel volumes. b Fatty acid methyl ester (FAME) biodiesel.

2. Control Case for Analyses biofuel, and total renewable fuel. As Although actual volumes and these categories could be met with a feedstocks may be different, we believe Our assessment of the renewable fuel wide variety of fuel choices, in order to the projections made for our control volumes required to meet EISA assess the impacts of the rule, we case are within the range of reasonable necessitates establishing a primary set of projected a set of reasonable renewable predictions and allow for an assessment fuel types and volumes on which to fuel volumes based on our of the potential impacts of the RFS2 base our assessment of the impacts of interpretation at the time we began our standards. Table V.A.2–1 summarizes the new standards. EISA contains four analysis of likely fuels that could come the fuel types used for the control case broad categories: cellulosic biofuel, to market. and their corresponding volumes for the biomass-based diesel, total advanced years 2009–2022.

TABLE V.A. 2–1—CONTROL CASE PROJECTED RENEWABLE FUEL VOLUMES [billion gallons]

Advanced biofuel Non-Ad- vanced a Cellulosic Biomass-based diesel Other advanced biofuel Biofuel Year biofuel Total renew- Non-co- Co-proc- able fuel FAME b processed essed re- Imported Corn Cellulosic biodiesel renewable newable ethanol ethanol ethanol diesel diesel

2009 ...... 0.00 0.50 0.00 0.00 0.50 9.85 10.85 2010 ...... 0.10 0.64 0.01 0.01 0.29 11.55 12.60 2011 ...... 0.25 0.77 0.03 0.03 0.16 12.29 13.53 2012 ...... 0.50 0.96 0.04 0.04 0.18 12.94 14.66 2013 ...... 1.00 0.94 0.06 0.06 0.19 13.75 16.00 2014 ...... 1.75 0.93 0.07 0.07 0.36 14.40 17.58 2015 ...... 3.00 0.91 0.09 0.09 0.83 15.00 19.92 2016 ...... 4.25 0.90 0.10 0.10 1.31 15.00 21.66 2017 ...... 5.50 0.88 0.12 0.12 1.78 15.00 23.40 2018 ...... 7.00 0.87 0.13 0.13 2.25 15.00 25.38 2019 ...... 8.50 0.85 0.15 0.15 2.72 15.00 27.37 2020 ...... 10.50 0.84 0.16 0.16 2.70 15.00 29.36 2021 ...... 13.50 0.83 0.17 0.17 2.67 15.00 32.34 2022 ...... 16.00 0.81 0.19 0.19 3.14 15.00 35.33 a Biomass-Based Diesel includes FAME biodiesel, cellulosic diesel, and non-co-processed renewable diesel. b Fatty acid methyl ester (FAME) biodiesel.

We needed to make this projection rulemaking. However, as described in net effect of these two approaches to soon after EISA was signed to allow Section III.D.1, we are also co-proposing Equivalence Values on projected sufficient time to conduct our long lead- that volumes of renewable fuel be volumes is very small; instead of 36 time analyses. As a result, we used the counted on a straight gallon-for-gallon billion gallons of renewable fuel in same ethanol-equivalence basis for these basis under RFS2, such that all 2022, our control case includes 35.3 projections as was used in the RFS1 Equivalence Values would be 1.0. The billion gallons. We do not believe that

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this difference will substantively affect with diesel fuel and oversupplying it virtually any hydrocarbon material the analyses that are based on our with gasoline, and based on the recent could be processed as feedstock, as they projected control case volumes. high diesel fuel price margins over would all be converted to the synthesis The following subsections detail our gasoline, it seems that the U.S. is falling gas, even if they produce different rationale for projecting the amount and in line with Europe. Therefore, if the relative concentrations of carbon type of fuels needed to meet EISA as U.S. trend is toward being relatively monoxide and hydrogen. The synthesis shown in Table V.A.2–1. For cellulosic oversupplied with gasoline, there could gas is typically converted to ethanol or biofuel we have assumed that the entire be a price advantage towards producing diesel by one of several different volume will be domestically produced renewable fuels that displace diesel fuel processes. cellulosic ethanol. Biomass-based diesel rather than a gasoline fuel replacement Examples of companies currently is assumed to be comprised of a like ethanol. pursuing the thermochemical route to majority of fatty-acid methyl ester Current efforts in converting selectively produce ethanol include (FAME) biodiesel and a smaller portion cellulosic feedstocks into fuels focus on Range Ethanol and Coskata. Range of non-co-processed renewable diesel. biochemical and thermochemical Ethanol is using a specially formulated The portion of the advanced biofuel conversion processes. Biochemical catalyst that will primarily produce category not met from cellulosic biofuel processes use live bacteria or isolated ethanol, but it will produce other higher and biomass-based diesel is assumed to enzymes, or acids, to break cellulose molecular weight alcohols as well come mainly from imported (sugarcane) down into fermentable sugars. The which would be recycled and mostly ethanol with a smaller amount from co- advantage of using live bacteria or converted to ethanol. Coskata, which is processed renewable diesel. The total enzymes is that simple carbon steel being supported by General Motors, is renewable fuel volume not required to could be used which helps to control planning on using bacteria to convert be comprised of advanced biofuels is the capital costs. However, bacteria and the synthesis gas to ethanol. assumed to be met with corn ethanol. enzymes that break down cellulose are Another thermochemical plant could In addition, the following subsections generally specific to certain types of employ a very similar gasification also describe other fuels that have the cellulose, thus, the cellulosic biofuel reactor, but instead of producing potential to contribute to meeting EISA, facility may have difficulty processing ethanol from syngas, a Fischer Tropsch but because of their uncertainty of use, different types of feedstocks.48 If live (F–T) reactor would be used to produce or because their use likely might be bacteria are used, the bacteria could be a primarily diesel product, i.e., negligible we have chosen to not assume susceptible to contamination that could cellulosic diesel. The F–T reactor would any use for our analysis. Examples of force a plant shutdown. An example of use a specially designed iron or cobalt these types of renewable fuels or a company using enzymes to process catalyst to convert the syngas to straight blendstocks include bio-butanol, biogas, cellulose into ethanol is Iogen, which chain hydrocarbon compounds of cellulosic diesel, cellulosic gasoline, has a demonstration plant in Canada. varying lengths and molecular weights. biofuel from algae, jatropha, or palm, On the other hand, biochemical The heavier of these hydrocarbon imported cellulosic ethanol, other processes which rely on strong acids compounds are then hydrocracked to biomass-to-liquids (BTL), and other will likely be less susceptible to produce a very high percentage of alcohols or ethers. We intend to revisit contamination issues, and could more valuable diesel fuel and naphtha these assumptions for the final rule and easily process mixed feedstocks. Thus, (gasoline type compounds). The F–T invite comment on whether these strong acid biochemical cellulosic diesel fuel produced from the F–T renewable fuels or other potential fuels ethanol plants could process MSW or a process is very high in quality due to its which have not been included in our variety of feedstocks which may be high cetane and essentially zero sulfur analyses should be included. available in areas where no single level. While the naphtha produced from feedstock dominates. The strong acids, the F–T process also contains a. Cellulosic Biofuel however, would likely require more essentially zero sulfur, it is very low in As defined in EISA, cellulosic biofuel expensive metallurgy. A company octane and thus is a poor gasoline means renewable fuel produced from which is planning to use strong acids to blendstock (although it could still be any cellulose, hemicellulose, or lignin hydrolyze the cellulose is Blue Fire desirable as a gasoline blendstock that is derived from renewable biomass Ethanol. Blue Fire is planning on because of all the high octane ethanol and that has lifecycle greenhouse gas building a MSW plant in Southern being blended into gasoline). Cellulosic emissions, as determined by the California. Once cellulose is reduced to naphtha is also valuable as a cracking Administrator, that are at least 60% less simple sugars, either strong acid or feedstock for producing various than the baseline lifecycle greenhouse enzymatic cellulosic ethanol plants petrochemical compounds. Since the F– gas emissions. operate in a manner similar to a corn T diesel is of better quality than the When many people think of cellulosic ethanol plant. This consists of naphtha, the heavier hydrocarbon biofuel, they immediately think of fermenting sugars into ethanol and then compounds are selectively cellulosic ethanol. However, cellulosic separating the ethanol from the water hydrocracked to produce more diesel biofuel could be comprised of other that facilitated the fermentation step. over naphtha. alcohols, synthetic gasoline, synthetic The thermochemical conversion No commercial cellulosic diesel diesel fuel, and synthetic jet fuel, process is very different from the plants currently exist in the U.S., nor propane, and biogas. Whether cellulosic biochemical process right from the elsewhere in the world. Currently, there biofuel is ethanol will depend on a beginning. For the thermochemical is a cellulosic diesel pilot plant operated number of factors, including production process, feedstocks are partially burned by Choren in Germany and a costs, the form of tax subsidies, credit with oxygen at a very high temperature commercial sized plant in the planning programs, and issues associated with and converted into a synthesis gas stages by Choren also in Germany. blending the biofuel into the fuel pool. comprised of carbon monoxide and Choren is planning to employ woody It will also depend on the relative hydrogen. The principal advantage of materials and agricultural residue as demand for gasoline and diesel fuel. For the thermochemical process is that feedstocks. Choren specially developed instance, European refineries are a three-stage gasification process for undersupplying the European market 48 This is currently an area of intense research. dealing with the complexities of

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biomass and has partnered with Shell generating RINs in which volume rather both bagasse and forest products. Other which has commercialized a F–T than energy content is the basis, there countries include India, China, and reaction process. The Choren would be an advantage for the those belonging to the Caribbean Basin commercial cellulosic diesel plant in production of cellulosic ethanol over Initiative (CBI), though much smaller Germany is expected to begin operating cellulosic diesel. feedstock supplies are projected as in 2010. Although coal-to-liquids (CTL) One large advantage that cellulosic compared to Brazil. Although plants rely on coal as their feedstock, diesel has over ethanol is the ability for international production of cellulosic they are very similar to cellulosic diesel the fuel to be blended easily into the biofuel is possible, it is uncertain plants in design and help to current distribution infrastructure at whether this supply would be available demonstrate the feasibility of the sizeable volumes. There are currently primarily to the U.S. or whether other cellulosic diesel process. There are CTL factors tending to limit the amount of nations would consume the fuel pilot plants which are operating today, ethanol that can be blended into the fuel domestically. Therefore, for our as well as a number of commercial CTL pool (see Section V.D. for more analyses we have chosen to assume that plants operating today or in the discussion). Thus, the production of all the cellulosic biofuel used to comply planning stages. Some of these plants cellulosic diesel instead of cellulosic with RFS2 would be produced have experimented with or are being ethanol could help increase domestically. planned for co-feeding biomass along consumption of renewable fuels. b. Biomass-Based Diesel with the coal. A current list of proposed Thus, there is uncertainty as to which cellulosic diesel and CTL plants is mix of cellulosic biofuels will be Biomass-based diesel as defined in provided in Chapter 1 of the DRIA. produced to fulfill the 16 Bgal mandate EISA means renewable fuel that is In terms of production costs, at least by 2022. The latest release of AEO 2009, biodiesel as defined in section 312(f) of for the current state of technology, for example, estimates a mixture of the Energy Policy Act of 1992 with neither the biochemical nor cellulosic diesel and ethanol produced lifecycle greenhouse gas emissions, as thermochemical platforms (comparing for cellulosic biofuel. For assessing the determined by the Administrator, that enzymatic biochemical processing to impacts of the RFS2 standards, we made are at least 50% less than the baseline ethanol and thermochemical processing the simplifying assumption that lifecycle greenhouse gas emissions. to cellulosic diesel) appear to have clear cellulosic biofuel would only consist of Biomass-based diesel can include fatty advantages in capital costs or operating ethanol, though market realities may acid methyl ester (FAME) biodiesel, costs.49 Other processing techniques, for also result in cellulosic diesel and other renewable diesel (RD) that has not been example, the syngas-to-ethanol process products. We are requesting comment co-processed with a petroleum used by Coskata, claim to be capable of on the types of cellulosic biofuel that feedstock, as well as cellulosic diesel. producing at even lower production should be accounted for in our analyses Although cellulosic diesel produced costs, but without any commercial and whether certain fuels are more through the Fischer-Tropsch (F–T) facilities operating today, it is hard to likely to come to fruition than others. process could potentially contribute to predict how these other processing Cellulosic biofuel could also be the biomass-based diesel category, we techniques differ from our estimates of produced internationally. One example have assumed for our analyses that the what the production costs for cellulosic of internationally produced cellulosic fuel and its corresponding feedstocks biofuel facilities will be in the future biofuel is ethanol produced from (cellulosic biomass) are already and which technology pathways will be bagasse or straw from sugarcane accounted for in the cellulosic biofuel most economic. As such, both processing in Brazil. Currently, Brazil category discussed previously in enzymatic biochemical and burns bagasse to produce steam and Section V.A.2.a. thermochemical technologies could be generate bioelectricity. However, FAME and RD processes can make key processing pathways for the improving efficiencies over the coming acceptable quality fuel from vegetable production of cellulosic biofuel. decade may allow an increasing portion oils, fats, and greases, and thus will The economic competitiveness of of bagasse to be allocated to other uses, generally compete for the same cellulosic biofuels will also depend on including cellulosic biofuel, as the feedstock pool. For our analyses, we the extent of financial support from the demand for bagasse for steam and have assumed that the volume government. Under the Farm Bill of bioelectricity could remain relatively contribution from FAME biodiesel and 2008, both cellulosic ethanol and constant. RD will be a function of the available cellulosic diesel receive the same tax One recent study assessed the feedstock types. In our analysis we subsidies ($1.01 per gallon each). The biomass feedstock potential for selected assumed that virgin plant oils would be tax subsidy, however, gives ethanol countries outside the United States and preferentially processed by biodiesel producers a considerable advantage over projected supply available for export or plants, while the majority of fats and those producing cellulosic diesel due to for biofuel production.50 51 For the greases would be routed to RD the feedstock quantity needed per gallon study’s baseline projection in 2017, it production.52 53 This is because the RD produced (i.e., typically the higher the was estimated that approximately 21 process involves hydrotreating (or energy content of the product, the more billion ethanol-equivalent gallons could thermal depolymerization), which is feedstock that is required). On an energy be produced from cellulosic feedstocks more severe and uses multiple chemical basis, cellulosic ethanol would receive at $36/dry tonne or less. The majority mechanisms to reform the fat molecules approximately $13/mmBtu while (∼80%) projected is from bagasse, with into diesel range material. The FAME cellulosic diesel would receive the rest from forest products. Brazil was approximately $8/mmBtu. In a similar projected to have the most potential for 52 Recent changes to federal tax subsidies and manner, if we were to finalize an market shifts may warrant changes to this cellulosic feedstock production from assumption. We will reevaluate the relative approach to the Equivalence Values for production volumes of biodiesel and renewable 50 Countries evaluated include Argentina, Brazil, diesel for the FRM. 49 Wright, M. and Brown, R, ‘‘Comparative Canada, China, Colombia, India, Mexico, and CBI. 53 This analysis was conducted prior to the Economics of Biorefineries Based on the 51 Kline, K. et al., ‘‘Biofuel Feedstock Assessment completion of our lifecycle analysis discussed in Biochemical and Thermochemical Platforms,’’ for Selected Countries,’’ Oak Ridge National Section VI, and assumes the fuels will meet the Biofuels, Bioprod. Bioref. 1:49–56, 2007. Laboratory, February 2008. required GHG threshold.

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process, by contrast, relies on more on producing algae oil for traditional fuels; see Table V.A.2–1. It is entirely specific chemical mechanisms and biodiesel production, several companies possible that greater volumes of requires pre-treatment if the feedstocks are alternatively using algae for cellulosic biofuel, biomass-based diesel, contain more than trace amounts of free producing ethanol or crude oil for and co-processed renewable diesel than fatty acids or other contaminates which gasoline or diesel which could also help required by EISA could be produced in are typical of recycled fats and greases. contribute to the advanced biofuel the future. Our control case, however, In terms of volume availability of mandate.54 For more detail on algae as does not assume that cellulosic biofuel feedstocks, supplies of fats and greases a feedstock refer to Section 1.1 of the and biomass-based diesel volumes will are more limited than virgin vegetable DRIA. exceed those required under EISA.55 As oils. As a result, our control case Jatropha curcas, a shrub native to a result, to meet the total advanced assumes the majority of biomass-based Central America, is yet another possible biofuel volume required under EISA, diesel volume is met using biodiesel biofuel feedstock. The perennial yields advanced biofuel types are needed other facilities processing vegetable oils, with oil-rich seeds yearly, with oil yields per than cellulosic biofuel, biomass-based RD making up a smaller portion and acre up to 4 times that of soy and twice diesel, and co-processed renewable using solely fats and greases. that of rapeseed under optimal diesel through 2022. The RD production volume must be conditions. It can grow on low-nutrient We have assumed for our control case further classified as co-processed or lands, and is tolerant of drought. that the most likely source of advanced non-co-processed, depending on However, jatropha yields under these fuel other than cellulosic biofuel, whether the renewable material was marginal conditions are hard to predict biomass-based diesel, and co-processed mixed with petroleum during the because of insufficient commercial renewable diesel would be from hydrotreating operations (more details experience; it is possible that jatropha imported sugarcane ethanol.56 Our on this definition are in Section III.B.1). will have low yields in the sub-optimal assessment of international fuel ethanol EISA specifically forbids co-processed conditions where its cultivation would production and demand indicate that RD from being counted as biomass- be most advantageous. Furthermore, anywhere from 3.8–4.2 Bgal of based diesel, but it can still count jatropha seed harvesting is very labor sugarcane ethanol from Brazil could be toward the total advanced biofuel intensive, and little is known about the available for export by 2020/2022. If this requirement. What fraction of RD will crop’s sustainability impacts, its long- volume were to be made available to the ultimately be co-processed is uncertain term yield, or the feasibility of U.S., then there would be sufficient at this time, since little or no cultivation as a monoculture. It is volume to meet the advanced biofuel commercial production of RD is unlikely that jatropha can be cultivated standard. To calculate the amount of currently underway, and little public in the United States economically or imported ethanol needed to meet the information is available about the sustainably, and the possibility of EISA standards, we took the difference comparative economics and feasibility importing jatropha oil or biodiesel from between the total advanced biofuel of the two methods. We assumed in our producing countries is very uncertain category and cellulosic biofuel, biomass- control case that half the material will because overseas cultivation efforts are based diesel, and co-processed be non-co-processed and thus qualify as still underdeveloped and initial renewable diesel categories. The amount biomass-based diesel. We invite volumes will likely be used of imported ethanol required by 2022 is comment on whether RD production domestically. As a result, we have not approximately 3.2 Bgal. We solicit will favor co-processing or non-co- projected the use of jatropha as a comment on our estimate of 3.2 Bgal processing with a petroleum feedstock feedstock under our control case. For and whether or not it is reasonable to in the future. more detail on the potential use of assume that Brazil (or any other Perhaps the feedstock with the jatropha refer to Section 1.1 of the DRIA. country) could satisfy this demand. greatest potential for providing large Recent news indicates that there are volumes of oil for the production of c. Other Advanced Biofuel also plans for sugarcane ethanol to be biomass-based diesel is microalgae. As defined in EISA, advanced biofuel produced in the U.S in places where the Algae grown on land in photo- means renewable fuel, other than sugar subsidy does not apply. For bioreactors or in open ponds could ethanol derived from corn starch, that instance, sugarcane has been grown in potentially yield 15 to 50 times more oil has lifecycle greenhouse gas emissions, California’s Imperial Valley specifically per acre than traditional oil crops such as determined by the Administrator, for the purpose of making ethanol and as soy, rapeseed, or oil palm. that are at least 50% less than baseline using the cane’s biomass to generate Additionally it can be cultivated on lifecycle greenhouse gas emissions. As electricity to power the ethanol marginal land with low nutrient inputs, described more fully in Section VI.D, we distillery as well as export excess 57 and thus does not suffer from the sheer are proposing that the GHG threshold electricity to the electric grid. There resource constraints that make other for advanced biofuels be adjusted to are at least two projects being developed biofuel feedstocks problematic at large 44% or potentially as low as 40% at this time that could result in several scale. However, several technical depending on the results from the 55 hurdles do still exist. Specifically, more analyses that will be conducted for the While cellulosic biofuel will not be limited by efficient harvesting, dewatering and feedstock availability, it likely will be limited by final rule. As defined in EISA, advanced the very aggressive ramp up in production volume lipid extraction methods are needed to biofuel includes the cellulosic biofuel, for an industry which is still being demonstrated on lower costs to a level competitive with biomass-based diesel, and co-processed the pilot scale and therefore is not yet commercially other biodiesel feedstocks (20–30% of renewable diesel categories that were viable. On the other hand, biomass-based diesel current costs). Until these hurdles are derived from agricultural oils and animal fats are mentioned in Sections V.A.2.a and faced with relatively high feedstock costs which overcome, it is unlikely that algae-based V.A.2.b above. However, EISA requires limit feedstock supply. biodiesel can be commercially greater volumes of advanced biofuel 56 This analysis was conducted prior to the competitive with other biodiesel fuels. than just the volumes required of these completion of our lifecycle analysis discussed in Thus, for our control case we have Section VI, and assumes the fuel will meet the chosen not to include oil from algae as required GHG threshold. 54 Algenol and Sapphire Energy, see http:// 57 Personal communication with Nathalie a feedstock. Although the majority of www.algenolbiofuels.com/ and http:// Hoffman, Managing Member of California algae to biofuel companies are focusing www.sapphireenergy.com/. Renewable Energies, LLC, August 27, 2008.

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hundred million gallons of ethanol provides some difficult challenges. The Because the majority of the biogas produced. The sugarcane is being grown use of butanol may be one means of volume estimates assume biomass as a on marginal and existing cropland that avoiding these blending difficulties. feedstock, we have chosen not to is unsuitable for food crops and will At the same time, butanol has a include this fuel in our analyses since replace forage crops like alfalfa, couple of less desirable aspects relative we are projecting most available Bermuda grass, Klein grass, etc. to ethanol. First, butanol is lower in biomass will be used for cellulosic Harvesting is expected to be fully octane compared to ethanol—ethanol liquid biofuel production in the long mechanized. Thus, there is potential for has a very high blending octane of term. The remaining biogas potentially these projects and perhaps others to around 115, while butanol’s octane available from waste-related sources help contribute to the EISA biofuels ranges from 87 octane numbers for would come from a large number of mandate. This could lower the volume normal butanol and 94 octane numbers small streams requiring purification and needed to be imported from Brazil. for isobutanol. Potential butanol connection to storage and/or Butanol is another potential motor producers are likely to pursue distribution facilities, which would vehicle fuel which could be produced producing isobutanol over normal involve significant economic hurdles. from biomass and used in lieu of butanol because of isobutanol’s higher An additional and important source of ethanol to comply with the RFS2 octane content. Higher octane is a uncertainty is whether there would be a standard. Production of butanol is being valuable attribute of any gasoline sufficient number of vehicles configured pursued by a number of companies blendstock because it helps to reduce to consume these volumes of biogas. including a partnership between BP and refining costs. A second negative Thus, we expect future biogas fuel Dupont. Other companies which have property of butanol is that it has a much streams to continue to find non- expressed the intent to produce higher viscosity compared to either transportation uses such as electrical biobutanol are Baer Biofuels and Gevo. gasoline or ethanol. High viscosity power generation or facility heating. The near term technology being pursued makes a fuel harder to pump, and more d. Other Renewable Fuel for producing butanol involves difficult to atomize in the combustion fermentation of starch compounds, chamber in an internal combustion The remaining portion of total although it can also be produced from engine. The third downside to butanol renewable fuel not met with advanced cellulose. Butanol has several inherent is that it is more expensive to produce biofuel is assumed to come from corn- advantages compared to ethanol. First, it than ethanol, although the higher based ethanol. EISA effectively sets a has higher energy density than ethanol production cost is partially offset by its limit for participation in the RFS which would improve fuel economy higher energy density. program of 15 Bgal of corn ethanol by (mpg). Second, butanol is much less Another potential source of renewable 2022. It should be noted, however, that water soluble which may allow the transportation fuel is biomethane there is no specific ‘‘corn-ethanol’’ butanol to be blended in at the refinery refined from biogas. Biogas is a term mandated volume, and that any and the resulting butanol-gasoline blend meaning a combustible mixture of advanced biofuel produced above and then more easily shipped through methane and other light gases derived beyond what is required for the pipelines. This would reduce from biogenic sources. It can be advanced biofuel requirements could reduce the amount of corn ethanol distribution costs associated with combusted directly in some needed to meet the total renewable fuel ethanol’s need to be shipped separately applications, but for use in highway standard. This occurs in our projections from its gasoline blendstock and also vehicles it is typically purified to during the earlier years (2009–2014) in save on the blending costs incurred at closely resemble fossil natural gas for which we project that some fuels could the terminal. Third, butanol can be which the vehicles are typically compete favorably with corn ethanol blended in higher concentrations than designed. The definition of biogas as (e.g. biodiesel and imported ethanol). 10% which would likely allow butanol given in EISA is sufficiently broad to Beginning around 2015, fuels qualifying to be blended with gasoline at high cover combustible gases produced by as advanced biofuels likely will be enough concentrations to avoid the need biological decomposition of organic devoted to meeting the increasingly for most or all of high concentration matter, as in a landfill or wastewater stringent volume mandates for advanced ethanol-gasoline blends, such as E85, treatment facility, as well as those biofuel. It is also worth noting that more that require the use of fuel flexible produced via thermochemical than 15 Bgal of corn ethanol could be vehicles. For example, because of decomposition of biomass. produced and RINs generated for that butanol’s lower oxygen content, it can Currently, the largest source of biogas volume under our proposed RFS2 be blended at 16% (by volume) to match is landfill gas collection, where the regulations. However, obligated parties the oxygen concentration of ethanol majority of fuel is combusted to generate would not be required to purchase more blended at 10% (by volume).58 Because electricity, with a small portion being than 15 Bgal worth of corn ethanol of butanol’s higher energy density, upgraded to methane suitable for use in RINs. when blending butanol at 16% by heavy duty vehicle fleets. Current We are assuming for our analysis that volume, it is the renewable fuels literature suggests approximately 16 sufficient corn ethanol will be produced equivalent to blending ethanol at about billion gasoline gallons equivalent of to meet the 15 Bgal limit. However, this 20 percent. Thus, butanol would enable biogas (referring to energy content) assumes that in the future corn ethanol achieving most of the RFS2 standard by could potentially be produced in the production is not limited due to blending a lower concentration of long term, with about two thirds coming environmental constraints, such as renewable fuel than having to resort to from biomass gasification and about one water quantity issues (see Section 6.10 a sizable volume of E85 as in the case third coming from waste streams such of the DRIA). This also assumes that in of ethanol. As pointed out in Section as landfills and human and animal 59 60 V.D., the need to blend ethanol as E85 sewage digestion. University of Tennessee. http://www.agpolicy.org/ polysys.html. Accessed May 2008. 58 To obtain EPA approval for butanol blends as 59 National Renewable Energy Laboratory 60 Milbrandt, A., ‘‘Geographic Perspective on the high as 16% by volume would require that the estimate based on biomass portion available at $45– Current Biomass Resource Availability in the butanol be blended with an approved corrosion $55/dry ton. Using POLYSYS Policy Analysis United States.’’ 70 pp., NREL Report No. TP–560– inhibitor. System, Agricultural Policy Analysis Center, 39181, 2005.

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the future either corn ethanol plants are advanced technologies that could a. Historic/Current Production constructed or modified to meet the improve the corn ethanol lifecycle GHG The United States is currently the 20% GHG threshold, or that sufficient estimates. largest ethanol producer in the world. In corn ethanol production exists that is B. Renewable Fuel Production 2008, the U.S. produced almost nine grandfathered and not required to meet billion gallons of fuel ethanol for the 20% threshold. Our current 1. Corn/Starch Ethanol domestic consumption, the majority of projection is that up to 15 Bgal could be which came from locally-grown corn.61 grandfathered, but actual volumes will The majority of domestic biofuel Although the U.S. ethanol industry has be determined at the time of facility production currently comes from plants been in existence since the 1970s, it has registration. Refer to Section 1.5.1.4 of processing corn and other similarly- rapidly expanded over the past few the DRIA for more information. Since processed grains in the Midwest. years due to the phase-out of methyl our current lifecycle analysis estimates However, there are a handful of plants tertiary butyl ether (MTBE),62 elevated that much of the current corn ethanol located outside the Corn Belt and a few crude oil prices, state mandates and tax would not meet the 20% GHG reduction plants processing simple sugars from incentives, the introduction of the threshold required of non-grandfathered food or beverage waste. In this section, Federal Volume Ethanol Excise Tax facilities without facility upgrades, then we will summarize the present state of Credit (VEETC),63 and the if actual grandfathered corn volumes are the corn/starch ethanol industry and implementation of the existing RFS1 less than 15 Bgal it may be necessary to discuss how we expect things to change program.64 As shown in Figure V.B.1–1, meet the volume mandate with other in the future under the proposed RFS2 U.S. ethanol production has grown renewable fuels or through the use of program. exponentially over the past decade.

61 Based on total transportation ethanol reported Ethanol Excise Tax Credit (VEETC). The $0.51/gal Standard (RFS) required by EPAct. The RFS in EIA’s March 2009 Monthly Energy Review (Table VEETC for ethanol blender replaced the former fuel requires that 4.0 billion gallons of renewable fuel 10.2) less imports (http://tonto.eia.doe.gov/dnav/ excise tax exemption, blender’s credit, and pure be blended into gasoline/diesel by 2006, growing to pet/hist/mfeimus1a.htm). ethanol fuel credit. However, the recently-enacted 7.5 billion gallons by 2012. 62 For more information on how the phase-out of 2008 Farm Bill modifies the alcohol credit so that 65 Based on total transportation ethanol reported MTBE helped spur ethanol production/ corn ethanol gets a reduced credit of $0.45/gal and consumption, refer to Section V.D.1. cellulosic biofuel a credit of $1.01/gal effective in EIA’s March 2009 Monthly Energy Review (Table 63 On October 22, 2004, President Bush signed January 1, 2009. 10.2) less imports (http://tonto.eia.doe.gov/dnav/ into law H.R. 4520, the American Jobs Creation Act 64 On May 1, 2007, EPA published a final rule (72 pet/hist/mfeimus1a.htm). of 2004 (JOBS Bill), which created the Volumetric FR 23900) implementing the Renewable Fuel

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As of April 1, 2009, there were 169 currently idled.67 The majority of percent is produced from cheese whey, corn/starch ethanol plants operating in today’s ethanol (over 91% by volume) is waste beverages, and sugars/starches the U.S. with a combined estimated produced exclusively from corn. combined. A summary of U.S. ethanol production capacity of 10.5 billion Another 8% comes from a blend of corn production by feedstock is presented in gallons per year.66 This does not include and/or similarly processed grains (milo, Table V.B.1–1. a number of ethanol plants that are wheat, or barley) and less than half a

TABLE V.B.1–1—CURRENT CORN/STARCH ETHANOL PRODUCTION CAPACITY BY FEEDSTOCK

Plant feedstock Capacity Percent of Number of Percent of (Primary listed first) MGY capacity plants plants

Corn a ...... 9,605 91.2 144 85.2 Corn, Milo b ...... 717 6.8 14 8.3 Corn, Wheat ...... 130 1.2 1 0.6 Milo ...... 3 0.0 1 0.6 Wheat, Milo ...... 50 0.5 1 0.6 Cheese Whey ...... 5 0.0 1 0.6 Waste Beverages c ...... 19 0.2 5 3.0 Waste Sugars & Starches d ...... 7 0.1 2 1.2

Total ...... 10,535 100 169 100 a Includes one facility processing seed corn, two facilities also operating pilot-level cellulosic ethanol plants at these locations, and four facilities planning on incorporating cellulosic feedstocks in the future. b Includes one facility processing a small amount of molasses in addition to corn and milo. c Includes two facilities processing brewery waste. d Includes one facility processing potato waste that intends to add corn in the future.

As shown in Table V.B.1–1, of the 169 processing into its component parts production facilities, 142 burn natural operating plants, 161 process corn and/ (germ, fiber, protein, and starch) and in gas 71 (exclusively), three burn a or other similarly processed grains. Of turn produce other co-products (usually combination of natural gas and biomass, these facilities, 150 utilize dry-milling gluten feed, gluten meal, and food-grade one recently started burning a technologies and the remaining 11 corn oil) in addition to DGS. Wet mill combination of natural gas, landfill plants rely on wet-milling processes. plants are generally more costly to build biogas and wood, and two burn a Dry mill ethanol plants grind the entire but are larger in size on average.68 As combination of natural gas and syrup kernel and generally produce only one such, 11.5% of the current grain ethanol from the process. In addition, 20 plants primary co-product: Distillers grains production comes from the 11 burn coal as their primary fuel and one with solubles (DGS). The co-product is previously-mentioned wet mill burns a combination of coal and sold wet (WDGS) or dried (DDGS) to the facilities. The remaining eight plants biomass. Our research suggests that 25 agricultural market as animal feed. which process cheese whey, waste plants currently utilize cogeneration or However, there are a growing number of beverages or sugars/starches, operate combined heat and power (CHP) dry mill ethanol plants pursuing front- differently than their grain-based end fractionation or back-end extraction counterparts. These small production technology, although others may exist. to produce fuel-grade corn oil for the facilities do not require milling and CHP is a mechanism for improving biodiesel industry. There are also operate a simpler enzymatic overall plant efficiency. Whether owned additional plants pursuing cold starch fermentation process. by the ethanol facility, their local utility, fermentation and other energy-saving Ethanol production is a relatively or a third party, CHP facilities produce processing technologies. For more on resource-intensive process that requires their own electricity and use the waste the dry-milling and wet-milling the use of water, electricity, and heat from power production for process processes as well as emerging advanced steam.69 Steam needed to heat the steam, reducing the energy intensity of technologies, refer to Section 1.4 of the process is generally produced on-site or ethanol production.72 A summary of the DRIA. by other dedicated boilers.70 The energy sources and CHP technology In contrast to dry mill plants, wet mill ethanol industry relies primarily on utilized by today’s ethanol plants is facilities separate the kernel prior to natural gas. Of today’s 169 ethanol found in Table V.B.1–2.

66 Our April 2009 corn/starch ethanol industry production capacity. The April 2009 information 111 million gallons per year—almost twice that of characterization was based on a variety of sources presented in this section reflects our most recent the average dry mill plant capacity (62 million including: Renewable Fuels Association (RFA) knowledge of the corn/starch ethanol industry. gallons per year). For more on average plant sizes, Ethanol Biorefinery Locations (updated March 31, However, for various NPRM impact analyses, an refer to Section 1.5.1.1 of the DRIA. 2009); Ethanol Producer Magazine (EPM) Producing earlier May 2008 industry assessment was used. For 69 For more information on plant energy plant list (last modified on April 7, 2009), and more on this assessment, refer to Section 1.5.1.5 of requirements, refer to Section 1.5.1.3 of the DRIA. ethanol producer Web sites. The baseline does not the DRIA. 70 We are also aware of a couple plants that pull include ethanol plants whose primary business is 67 In addition to idled plants, the assessment does steam directly from a nearby utility. industrial or food-grade ethanol production nor not include idled production capacity at facilities 71 Facilities were assumed to burn natural gas if does it include plants that might be located in the that are currently operating at 50% or less than the plant boiler fuel was unspecified or unavailable Virgin Islands or U.S. territories. Where applicable, their nameplate capacity. on the public domain. current/historic production levels have been used 68 According to our April 2009 corn ethanol plant 72 For more on CHP technology, refer to Section in lieu of nameplate capacities to estimate assessment, the average wet mill plant capacity was 1.4.1.3 of the DRIA.

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TABLE V.B.1–2—CURRENT CORN/STARCH ETHANOL PRODUCTION CAPACITY BY ENERGY SOURCE

Capacity Percent of Number of Percent of Plant energy source (primary listed first) MGY capacity plants plants CHP tech.

Coal a ...... 1,868 17.7 20 11.8 9 Coal, Biomass ...... 50 0.5 1 0.6 0 Natural Gas b ...... 8,294 78.7 142 84.0 15 Natural Gas, Biomass c ...... 113 1.1 3 1.8 1 Natural Gas, Landfill Biogas, Wood ...... 110 1.0 1 0.6 0 Natural Gas, Syrup ...... 101 1.0 2 1.2 0

Total ...... 10,535 100.0 169 100.0 25 a Includes four plants that are permitted to burn biomass, tires, petroleum coke, and wood waste in addition to coal and one facility that intends to transition to biomas in the future. b Includes one facility that intends to switch to biomass, one facility that intends to burn thin stillage biogas, and two facilities that might switch to coal in the future. c Includes one facility processing bran in addition to natural gas.

Since the majority of ethanol is made near the Corn Belt. Of today’s 169 PADD 2. For a map of the Petroleum from corn, it is no surprise that most of ethanol production facilities, 151 are Administration for Defense Districts or the plants are located in the Midwest located in the 15 states comprising PADDs, refer to Figure V.B.1–2.

As a region, PADD 2 accounts for 94% as shown in Table V.B.1–3. For more and a detailed map of their locations, (or almost 10 billion gallons) of today’s information on today’s ethanol plants refer to Section 1.5 of the DRIA. estimated ethanol production capacity,

TABLE V.B.1–3—CURRENT CORN/STARCH ETHANOL PRODUCTION CAPACITY BY PADD

Capacity Percent of Number of Percent of PADD MGY capacity plants plants

PADD 1 ...... 150 1.4 3 1.8 PADD 2 ...... 9,900 94.0 151 89.3 PADD 3 ...... 194 1.8 3 1.8 PADD 4 ...... 160 1.5 7 4.1 PADD 5 ...... 131 1.2 5 3.0

Total ...... 10,535 100.0 169 100.0

The U.S. ethanol industry is currently 79% of today’s ethanol production companies—POET Biorefining, Archer comprised of a mixture of company- capacity.73 Furthermore, 30% of the Daniels Midland (ADM), and Valero owned plants and locally-owned farmer total domestic product comes from 38 Renewables.74 cooperatives (co-ops). The majority of plants owned by just three different today’s ethanol production facilities are 74 company-owned, and on average these 73 Farmer-owned plant status derived from Valero recently entered into the renewable fuels business by acquiring five idled corn ethanol plants are larger in size than farmer- Renewable Fuels Association (RFA), Ethanol Biorefinery Locations (updated March 31, 2009). plants and one construction site formerly owned by owned co-ops. Accordingly, company- For more on average plant sizes, refer to Section VeraSun Energy Corporation. Valero has since owned plants account for more than 1.5.1 of the DRIA. Continued

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b. Forecasted Production Under RFS2 starch-based ethanol will fulfill this for Chapter 11 bankruptcy. In addition, requirement. Furthermore, we project we are aware of two facilities that are As highlighted above, 10.5 billion that all new corn/starch ethanol plant currently operating at 50% or less than gallons of corn/starch ethanol plant capacity brought online under RFS2 their nameplate capacity. As crude oil capacity was online as of April 1, 2009. would either meet the conventional and gasoline prices rise again in the So even if no additional capacity was biofuel GHG threshold requirement 75 or future, corn ethanol production will added, U.S. ethanol production would meet the grandfathering requirement become more viable again and we grow from 2008 to 2009, provided (for more information, refer to Section expect that these plants will resume facilities continue to operate at or above 1.5.1.4 of the DRIA). operations. At the time of our April today’s production levels. And despite In addition to the 169 corn/starch 2009 ethanol industry assessment, there today’s temporary unfavorable market ethanol plants that are currently online were also 19 new ethanol plants under conditions (i.e., low ethanol market today, 36 plants are presently idled. construction in the U.S, and two plant values), we expect the ethanol industry Some of these constructed facilities expansion projects underway. While will continue to expand in the future (namely smaller ethanol plants) have many of these projects are also on hold under RFS2. Although there is not a set been idled for quite some time, whereas due to the current economic conditions, corn ethanol standard, EISA allows for other plants have just recently been put we expect these facilities will 15 billion gallons of the 36-billion into ‘‘hot idle’’ mode. A number of eventually come online under the RFS2 gallon renewable fuel standard to be met ethanol producers (e.g., VeraSun) are program. A summary of the projected by conventional biofuels. And we idling operations, putting projects on industry growth is found in Table expect that corn and other sugar or hold, selling off plants, and even filing V.B.1–4.76

TABLE V.B.1–4—POTENTIAL INDUSTRY EXPANSION UNDER RFS2

Growth in ethanol production

Plants New Expansion currently Idled plants/ construction Total a projects online capacity projects

Plant Capacity (MGY) ...... 10,535 2,471 1,955 80 15,042 Total No. of Plants ...... 169 36 19 2 226 a Includes the idled plant capacity of the two facilities that are currently operating at 50% or less than nameplate capacity.

While theoretically it only takes 12 to relative ethanol/gasoline price operating in the U.S. with a combined 18 months to build an ethanol plant,77 relationship. To measure the impacts of production capacity of around 15 billion the rate at which new plant capacity the proposed RFS2 program, we gallons per year. Much like today’s comes online will be dictated by market assumed that corn ethanol production ethanol industry, the overwhelming conditions, which will in part be would not exceed 15 billion gallons. We majority of new production capacity influenced by the RFS2 requirements. also assumed that all growth would (93% by volume) is expected to come As mentioned above, today’s proposed come from new plants or plant from corn-fed plants. Another 7% is program will create a growing demand expansion projects (in addition to idled forecasted to come from plants for corn ethanol reaching 15 billion plants being brought back online).78 processing a blend of corn and other gallons by 2015. However, it is possible However, it is possible that some of the grains, and a very small increase is that market conditions could drive growth could come from minor process projected to come from idled cheese demand even higher. Whether the improvements (e.g., debottlenecking) at whey and waste beverage plants coming nation will overcomply with the corn existing facilities. back online. A summary of the ethanol standard is uncertain and will Once all the aforementioned projects forecasted ethanol production by be determined by feedstock availability/ are complete, we project that there feedstock under the RFS2 program is pricing, crude oil pricing, and the would be 226 corn/starch ethanol plants found in Table V.B.1–5.

TABLE V.B.1–5—PROJECTED RFS2 CORN/STARCH ETHANOL PRODUCTION CAPACITY BY FEEDSTOCK

Additional production Total RFS2 estimate Plant feedstock (primary listed first) Capacity Number of Capacity Number of MGY plants MGY plants

Corn a ...... 4,197 49 13,802 193 Corn, Milo b ...... 185 3 902 17 Corn, Wheat ...... 8 1 138 2 Corn, Wheat, Milo ...... 110 2 110 2 Milo ...... 0 0 3 1 Wheat, Milo ...... 0 0 50 1

purchased two more idled VeraSun plants, but they Ethanol Producer Magazine (EPM) Not Producing 77 For more information on plant build rates, refer have not been brought back online yet. and Under Construction plant lists (last modified to Section 1.2.5 of the RIA. 75 The lifecycle assessment values which assume on April 7, 2009), ethanol producer Web sites, and 78 For our NPRM impact analyses, we relied on a 2% discount rate over a 100-year timeframe. follow-up correspondence with ethanol producers. an earlier May 2008 industry assessment. For more 76 Idled plants and construction projects based on It is worth noting that for our industry assessment, information, refer to Section 1.5.1.5 of the DRIA. Renewable Fuels Association (RFA) Ethanol ‘‘under construction’’ implies that more than just a Biorefinery Locations (updated March 31, 2009); ground breaking ceremony has taken place.

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TABLE V.B.1–5—PROJECTED RFS2 CORN/STARCH ETHANOL PRODUCTION CAPACITY BY FEEDSTOCK—Continued

Additional production Total RFS2 estimate Plant feedstock (primary listed first) Capacity Number of Capacity Number of MGY plants MGY plants

Cheese Whey ...... 3 1 8 2 Waste Beverages c ...... 4 1 23 6 Waste Sugars & Starches d ...... 0 0 7 2

Total ...... 4,507 57 15,042 226 a Includes one facility processing seed corn, another facility processing small amounts of whey, two facilities also operating pilot-level cellulosic ethanol plants at these locations, and four facilities planning on incorporating cellulosic feedstocks in the future. b Includes one facility processing a small amount of molasses in addition to corn and milo. c Includes two facilities processing brewery waste. d Includes one facility processing potato waste that intends to add corn in the future.

Based on current industry plans, the forecasting one new plant and a utilize cogeneration, bringing the total majority of additional corn/grain reopening of another plant relying on number of CHP facilities to 30. A ethanol production capacity (almost manure biogas. We are also predicting summary of the projected near-term 84% by volume) is predicted to come expansions at three coal-fired ethanol ethanol plant energy sources is found in from new or expanded plants burning plants.80 Of the 55 new ethanol plants, Table V.B.1–6. natural gas.79 Additionally, we are our research indicates that five would

TABLE V.B.1–6—PROJECTED NEAR-TERM CORN/STARCH ETHANOL PRODUCTION CAPACITY BY ENERGY SOURCE

Additional production Total RFS2 estimate Plant energy source (primary listed first) Capacity Number of Capacity Number of MGY plants MGY plants CHP tech.

Coal a ...... 610 2 2,478 22 11 Coal, Biomass ...... 0 0 50 1 0 Manure Biogas ...... 134 2 134 2 0 Natural Gas b ...... 3,763 53 12,056 195 18 Natural Gas, Biomass c ...... 0 0 113 3 1 Natural Gas, Landfill Biogas, Wood ...... 0 0 110 1 0 Natural Gas, Syrup ...... 0 0 101 2 0

Total ...... 4,507 57 15,042 226 30 a Includes six plants that are permitted to burn biomass, tires, petroleum coke, and wood waste in addition to coal and one facility that intends to transition to biomass in the future. b Includes one facility that intends to switch to biomass, one facility that intends to burn thin stillage biogas, and six facilities that might switch to coal in the future. c Includes one facility processing bran in addition to natural gas.

The information in Table V.B.1.6 is biomass-based feedstocks. We also close to where most of the corn is based on short-term industry production believe that fossil fuel/electricity prices grown. However, there are a number of plans at the time of our April 1, 2009 will drive a number of ethanol ‘‘destination’’ ethanol plants being built plant assessment. However, we are producers to pursue CHP technology. outside the Midwest in response to anticipating growth in advanced ethanol For more on our projected 2022 production subsidies, E10/E85 retail production technologies under the utilization of these technologies under pump incentives, and state mandates. A proposed RFS2 program. We project that the RFS2 program, refer to Section summary of the forecasted ethanol fuel prices will drive a large number of 1.5.1.3 of the DRIA. production by PADD under the RFS2 Under the proposed RFS2 program, corn ethanol plants to transition from program can be found in Table V.B.1– the majority of new ethanol production conventional boiler fuels to advanced 7. is expected to originate from PADD 2,

79 Facilities were assumed to burn natural gas if adding dry milling plant capacity to an existing wet construction prior to December 19, 2007, we project the plant boiler fuel was unspecified or unavailable mill plant. However, our interpretation is that these that the ethanol produced at these facilities will be on the public domain. facilities will rely on the same (potentially grandfathered under the proposed RFS2 rule. For 80 Two of the three coal-fired plant expansions expanded) coal-fired boilers for process steam. more on our grandfathered volume estimate, refer appear as new plants in Table V.B.1–6. This is Since all the aforementioned coal-fired ethanol to Section 1.5.1.4 of the DRIA. because two of the expansion projects consist of production facilities appear to have commenced

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TABLE V.B.1–7—PROJECTED RFS2 CORN/STARCH ETHANOL PRODUCTION CAPACITY BY PADD

Additional production Total RFS2 Estimate PADD Capacity Number of Capacity Number of MGY plants MGY plants

PADD 1 ...... 178 3 328 6 PADD 2 ...... 3,566 43 13,466 194 PADD 3 ...... 350 4 544 7 PADD 4 ...... 50 1 210 8 PADD 5 ...... 363 6 494 11

Total ...... 4,507 57 15,042 226

2. Cellulosic Biofuel production, the Department of Energy and construction and demolition (C&D) (DOE) and other federal and state debris. Dedicated energy crops Ethanol currently dominates U.S. agencies are helping to spur industry including switchgrass and poplar trees biofuel production, and more growth. are also being investigated. specifically, ethanol produced from corn and other grains. However, a. Current Production/Plans Based on an April 2009 assessment of cellulosic feedstocks have the potential The cellulosic biofuel industry is information available on the public to greatly expand domestic ethanol essentially in its infancy. With the domain, there are currently 25 pilot- production, both volumetrically and exception of a 20 million-gallon-per and demonstration-level (or smaller) geographically. It is also possible to year cellulosic diesel plant recently cellulosic ethanol plants operating in produce synthetic diesel fuel from opened by Cello Energy in Bay Minette, the United States. However, only 9 of cellulosic feedstocks (also known as AL, the majority of facilities in these plants report measurable volumes ‘‘cellulosic diesel’’) through a Fischer- operation today are small pilot- or of ethanol production. In addition, we Tropsch gasification process or a demonstration-level plants. Most of are aware of one pilot-level cellulosic thermal depolymerization process. We these facilities operate intermittently diesel plant in addition to the are also aware of one company using and produce insignificant volumes of commercial-level Cello Energy plant.81 live bacteria to break down biomass and biofuel. Some researchers are focusing A summary of these 11 facilities totaling produce cellulosic diesel and other on processing corn residues, e.g., corn just over 23 million gallons of annual petroleum replacements. Before wide- stover, cobs, and/or fiber. Some are production capacity is provided in scale commercialization of cellulosic focusing on other agricultural residues Table V.B.2–1. The date listed in the biofuel can occur in today’s such as sugarcane bagasse, rice and table indicates when the facility first marketplace, technical and logistical wheat straw. Others are looking at waste began operations. For more on the barriers must be overcome. In addition products such as forestry residues, existing cellulosic ethanol and diesel to today’s RFS2 program which sets citrus residues, pulp or paper mill plants, refer to Sections 1.5.3.1 and aggressive goals for all ethanol waste, municipal solid waste (MSW), 1.5.3.3 of the DRIA.

TABLE V.B.2–1—EXISTING CELLULOSIC BIOFUEL PLANTS

Prod Est. Conv. Company or organization name Location Feedstocks cap Op. a (MGY) date tech.

Cellulosic Ethanol

Abengoa Bioenergy Corporation b ...... York, NE ...... Wheat straw, corn stover, energy crops ...... 0.02 Sep-07 Bio. Bioengineering Resources, Inc. (BRI) ...... Fayetteville, AR .. MSW, wood waste, coal ...... 0.04 1998 Therm. BPI & Universal Entech ...... Phoenix, AZ ...... Paper waste (sorted MSW) ...... 0.01 2004 Bio. Gulf Coast Energy ...... Livingston, AL ..... Wood waste (sorted MSW) ...... 0.20 Dec-08 Therm. Mascoma Corporation ...... Rome, NY ...... Wood chips ...... 0.20 Feb-09 Bio. POET Project Bell b ...... Scotland, SD ...... Corn cobs & fiber ...... 0.02 Jan-09 Bio. Verenium ...... Jennings, LA ...... Sugarcane bagasse ...... 0.05 2006 Bio. Verenium ...... Jennings, LA ...... Sugarcane bagasse, wood, energy cane ...... 1.50 Feb-09 Bio. Western Biomass Energy LLC. (WBE) ...... Upton, WY ...... Wood waste (softwood) ...... 1.50 2007 Bio.

Cellulosic Diesel

Cello Energy ...... Bay Minette, AL .. Wood chips, hay ...... 20.00 Dec-08 CatDep. Bell BioEnergy ...... Fort Stewart, GA Wood chips ...... 0.01 Dec-08 Bact.

Total Existing Production Capacity >23 MGY a Bio = biochemical pre-treatment, Therm = thermochemical conversion, CatDep = catalytic depolymerization, Bact = involves the use of live bacteria to break down biomass for cellulosic diesel production. b Cellulosic pilot plant is collocated with a corn ethanol plant.

81 Our April 2009 cellulosic ethanol industry HART’s Ethanol & Biodiesel News (through the and plants referenced on other biofuel industry characterization was based on researching DOE- April 14, 2009 issue), plants included on the Web sites. and USDA-supported projects, plants referenced in Cellulosic Ethanol Site (http://www.thecesite.com/),

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To date, the majority of cellulosic currently three cellulosic ethanol plants 10 million gallons of annual production ethanol research has focused on under construction in the United States. capacity, is presented in Table V.B.2–2. biochemical pre-treatment technologies, Like the existing plants, two are pilot- As shown in Tables V.B.2–1 and i.e., the use of acids and/or enzymes to level facilities that are still working V.B.2–2, unlike corn ethanol break down cellulosic materials into towards proving their conversion production, which is primarily located fermentable sugars. However, there are technologies. However, Range Fuels, a in the Midwest near the Corn Belt, a growing number of companies company that received $76 million from cellulosic biofuel production is spread investigating the thermochemical DOE and an $80 loan guarantee from pathway which involves gasification of USDA to build one of the first throughout the country. The geographic biomass into a synthesis gas or pyrolysis commercial-scale cellulosic ethanol distribution of plants is due to the wide of biomass into a bio-crude oil for plants in the U.S., is currently building variety and availability of cellulosic processing. Cellulosic diesel can also be a 40 million gallon per year plant in feedstocks. Corn stover is found made from thermochemical as well as Soperton, GA.82 At this time, the primarily in the Midwest, while the other processes. Many companies are company is just working on the initial Pacific Northwest, the Northeast, and also researching the potential of co- 10 million gallon per year phase. Bell the Southeast all have forestry residues. firing biomass to produce plant energy Bioenergy, a company that received $7.5 Some southern states have access to in addition to biofuels. For more on million in funding from the Department sugarcane bagasse and citrus waste cellulosic biofuel processing of Defense to convert biomass into while MSW and C&D debris are technologies, refer to Section 1.4.3 of cellulosic diesel using live bacteria, also available in highly populated areas the DRIA. has six pilot plants under construction throughout the country. For more In addition to the existing facilities in in various locations through the information on cellulosic feedstock Table V.B.2–1, our April 2009 industry country. A summary of these nine availability, refer to Section 1.1.2 of the assessment suggests that there are cellulosic biofuel plants, totaling over DRIA.

TABLE V.B.2–2—CELLULOSIC BIOFUEL PLANTS CURRENTLY UNDER CONSTRUCTION

Prod Est. Company plant name Location Feedstocks cap op. Conv. a (MGY) date. tech.

Cellulosic Ethanol

Coskata ...... Madison, PA...... MSW, natural gas, woodchips, bagasse, 0.04 Jul–09 Therm. switchgrass. DuPont Dansico Cellulosic Ethanol (DDCE) ... Vonore, TN ...... Corn cobs then switchgrass ...... 0.25 Dec– Bio. 09 Range Fuels b ...... Soperton, GA ...... Wood waste, switchgrass ...... 10.00 Dec– Therm. 09

Cellulosic Diesel

Bell Bio-Energy ...... Fort Lewis, WA ... Cellulose ...... 0.01 2009 Bact. Bell Bio-Energy ...... Fort Drum, NY .... Cellulose ...... 0.01 2009 Bact. Bell Bio-Energy ...... Fort AP Hill, VA .. Cellulose ...... 0.01 2009 Bact. Bell Bio-Energy ...... Fort Bragg, NC ... Cellulose ...... 0.01 2009 Bact. Bell Bio-Energy ...... Fort Benning, GA Cellulose ...... 0.01 2009 Bact. Bell Bio-Energy ...... San Pedro, CA ... Cellulose ...... 0.01 2009 Bact.

Total Under Construction Production Capacity >10 MGY a Bio = biochemical pre-treatment, Therm = thermochemical conversion, Bact = involves the use of live bacteria to break down biomass for cel- lulosic diesel production. b The first 10 MGY phase is currently under construction in Soperton, GA. Once this second 30 MGY phase is added, the plant will be capable of producing 40 MGY of cellulosic ethanol.

Increased public interest, government projects has primarily been through the companies have forfeited their support, technological advancement, venture capital and similar funding funding. Iogen has decided to locate its and the recently-enacted EISA have mechanisms, as opposed to first commercial-scale plant in Canada helped spur many plans for new conventional bank loans. and Alico has discontinued plans to cellulosic biofuel plants. Although more Consequently, recently-announced produce ethanol all together. The four and more plants are being announced, Federal grant and loan guarantee remaining ‘‘pioneer’’ plants (including most are limited in size and contingent programs may serve as a significant Range Fuels) hold promise and could upon technology breakthroughs and asset to the cellulosic biofuel industry very well be some of the first plants to efficiency improvements at the pilot or in this area. In February 2007, DOE demonstrate the commercial-scale demonstration level. Additionally, announced that it would invest up to viability of cellulosic ethanol because cellulosic biofuel production $385 million in six commercial-scale production. However, there is still more has not yet been proven on the ethanol projects over the next four to be learned at the pilot level. Although commercial level, financing of these years. Since the announcement, two of technologies needed to convert

82 Range Fuels’ ultimate goal is to expand the Soperton, GA facility to produce 100 million gallons of cellulosic ethanol per year.

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cellulosic feedstocks into ethanol (and The Department of Energy has also a growing number of privately-funded diesel) are becoming more and more introduced a loan guarantee program to companies (including Cello Energy) understood, there are still a number of help reduce risk and spur investment in with plans to build more cellulosic efficiency improvements that need to projects that employ new, clean energy biofuel plants in the United States. occur before cellulosic biofuels can technologies. In October 2007, DOE These facilities range in size from pilot- compete in today’s marketplace. issued final regulations and invited 16 and demonstration-level plants (similar project sponsors who submitted pre- to those currently operational or under In May 2007, DOE announced that it applications to submit full applications construction), to small commercial would provide up to $200 million to for loan guarantees. Of those who were plants (similar to the four commercial- help fund small-scale cellulosic invited to participate, five were scale plants receiving DOE funding), to biorefineries experimenting with novel pursuing cellulosic biofuel production. large commercial plants (similar in size processing technologies that could later However, only three companies appear to an average corn ethanol plant). These be expanded to commercial production to still be eligible.83 Of the three projects are also at various stages of facilities. Four recipients were remaining companies, two are pursuing planning. According to our April 2009 announced in January 2008 and three cellulosic ethanol production (and are industry assessment, 11 plants are more were announced in April 2008. also DOE grant recipients) and one is currently at advanced stages of planning Three months later, DOE announced pursuing cellulosic diesel production. and likely to go online in the near that it would provide $40 million more The U.S. Department of Agriculture is future. Along with those plants to help fund two additional small-scale also providing an $80 million loan currently operational or under plants. Of the nine announced small- guarantee to Range Fuels to help construction, we believe that these scale plants, seven were pursuing support construction of its 40 million- facilities will enable the U.S. to meet the cellulosic ethanol production (including gallon-per-year cellulosic ethanol plant 100 million gallon cellulosic biofuel Verenium Corp.) and two are pursuing in Soperton, GA. For more on standard in 2010. For a summary of the cellulosic diesel production. However, information on Federal support for plants and their respective projected Lignol Innovations, recently suspended biofuel production, refer to Section 1.5.3 contributions, refer to Table V.B.2–3 plans to build a 2.5 million gallon per of the DRIA. below. For a greater discussion on these year cellulosic ethanol plant in Grand In addition to the companies and other cellulosic biofuel projects, Junction, CO due to market uncertainty. receiving government funding, there are refer to Section 1.5.3.1 of the DRIA.

TABLE V.B.2–3—PROJECTED CELLULOSIC BIOFUEL PRODUCTION IN 2010

Est 2010 Est. 2010 ETOH- Company or organization name Location Prod cap Est. op. date million equiv. (MGY) gallons million gallons

Cellulosic Ethanol

BPI & Universal Entech ...... Phoenix, AZ ...... 0.01 Online ...... 0.01 0.01 POET Project Bell ...... Scotland, SD ...... 0.02 Online ...... 0.02 0.02 Abengoa Bioenergy Corporation ...... York, NE ...... 0.02 Online ...... 0.02 0.02 Bioengineering Resources, Inc. (BRI) .. Fayetteville, AK ...... 0.04 Online ...... 0.04 0.04 Verenium ...... Jennings, LA ...... 0.05 Online ...... 0.05 0.05 Gulf Coast Energy ...... Livingston, AL ...... 0.20 Online ...... 0.20 0.20 Mascoma Corporation ...... Rome, NY ...... 0.20 Online ...... 0.20 0.20 Verenium ...... Jennings, LA ...... 1.50 Online ...... 1.50 1.50 Western Biomass Energy, LLC. (WBE) Upton, WY ...... 1.50 Online ...... 1.50 1.50 Coskata ...... Madison, PA ...... 0.04 Jul-09 ...... 0.04 0.04 DuPont Dansico Cellulosic Ethanol Vonore, TN ...... 0.25 Dec-09 ...... 0.25 0.25 (DDCE). Range Fuels ...... Soperton, GA ...... 10.0 Dec-09 ...... 10.0 10.0 Ecofin/Alltech ...... Springfield, KY ...... 1.30 2010 ...... 0.65 0.65 Fulcrum Bioenergy ...... Storey County, NV ...... 10.50 2010 ...... 5.25 5.25 ICM Inc...... St. Joseph, MO ...... 1.50 2010 ...... 0.75 0.75 RSE Pulp & Chemical ...... Old Town, ME ...... 2.20 2010 ...... 1.10 1.10 ZeaChem ...... Boardman, OR ...... 1.50 2010 ...... 0.75 0.75 ClearFuels Technology ...... Kauai, HI ...... 1.50 End of 2010 ...... 0.38 0.38 Southeast Renewable Fuels LLC ...... Clewiston, FL ...... 20.00 End of 2010 ...... 5.00 5.00

Cellulosic Diesel

Cello Energy ...... Bay Minette, AL ...... 20.00 Online ...... 20.00 32.00 Bell Bio-Energy ...... Fort Stewart, GA ...... 0.01 2008 ...... 0.01 0.01 Bell Bio-Energy ...... Fort Lewis, WA ...... 0.01 2009 ...... 0.01 0.01 Bell Bio-Energy ...... Fort Drum, NY ...... 0.01 2009 ...... 0.01 0.01 Bell Bio-Energy ...... Fort AP Hill, VA ...... 0.01 2009 ...... 0.01 0.01 Bell Bio-Energy ...... Fort Bragg, NC ...... 0.01 2009 ...... 0.01 0.01 Bell Bio-Energy ...... Fort Benning, GA ...... 0.01 2009 ...... 0.01 0.01 Bell Bio-Energy ...... San Pedro, CA ...... 0.01 2009 ...... 0.01 0.01

83 Iogen and Alico have also forfeited a potential loan guarantee from DOE.

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TABLE V.B.2–3—PROJECTED CELLULOSIC BIOFUEL PRODUCTION IN 2010—Continued

Est 2010 Est. 2010 ETOH- Company or organization name Location Prod cap Est. op. date million equiv. (MGY) gallons million gallons

Cello Energy ...... TBD (AL) ...... 50.00 2010 ...... 16.67 26.67 Cello Energy ...... TBD (AL) ...... 50.00 2010 ...... 16.67 26.67 Cello Energy ...... TBD (GA) ...... 50.00 2010 ...... 16.67 26.67 Flambeau River Biofuels ...... Park Falls, WI ...... 6.00 2010 ...... 3.00 4.80

Total 2010 Production Forecast ...... 100.74 144.57

b. Federal/State Production Incentives guarantees to help encourage biofuel through the growth of cellulosic ethanol production. The majority of efforts are production and availability of E85. The In addition to helping fund a series of centered on expanding ethanol Platform goals are to produce cellulosic small-scale cellulosic biofuel plants, the production, and more recently, ethanol on a commercial level by 2012 Department of Energy, along with the cellulosic ethanol production.84 and to have E85 offered at one-third of U.S. Department of Agriculture (USDA), According to a July 2008 assessment of refueling stations by 2025. They also is also helping to fund critical research DOE’s Energy Efficiency and Renewable want to reduce the energy intensity of to help make cellulosic biofuel Energy (EERE) Web site,85 33 states ethanol production and supply 50% of production more commercially viable. currently offer some form of ethanol their transportation fuel needs by In March 2007, DOE awarded $23 production incentive. The incentives regionally produced biofuels by 2025. million in grants to four companies and range from support for ethanol Finally, the passage of the Food, one university to develop more efficient producers to support for research and Conservation, and Energy Act of 2008 microbes for ethanol refining. In June development companies to support for (also known as the ‘‘2008 Farm Bill’’) is 2007, DOE and USDA awarded $8.3 feedstock suppliers. Kansas, Maryland, also helping to spur cellulosic ethanol million to 10 universities, laboratories, and South Carolina each offer specific production and use.87 The 2008 Farm and research centers to conduct incentives towards cellulosic ethanol Bill modified the existing $0.51 per genomics research on woody plant production. Kansas offers revenue gallon alcohol blender credit to give tissue for bioenergy. Later that same bonds through the Kansas Development preference to ethanol and other biofuels month, DOE announced plans to spend Finance Authority to help fund produced from cellulosic feedstocks. $375 million to build three bioenergy construction or expansion of a cellulosic Corn ethanol now receives a reduced research centers dedicated to ethanol plant. Additionally, these credit of $0.45/gal while cellulosic accelerating research and development 88 newly-built or expanded facilities are biofuel earns a credit of $1.01/gal. The of cellulosic ethanol and other biofuels. exempt from state property tax for 10 2008 Farm Bill also has provisions that The centers, which will each focus on years. Maryland offers a credit towards enable USDA to assist with the different feedstocks and biological state income tax for 10% of cellulosic commercialization of second-generation research challenges, will be located in ethanol research and development biofuels. Section 9003 authorizes loan Oak Ridge, TN, Madison, WI, and expenses. They also have a $0.20 per guarantees for the development, Berkeley, CA. In December 2007, DOE gallon production credit for cellulosic construction and retrofitting of awarded $7.7 million to one company, ethanol. South Carolina gives a $0.30 commercial scale biorefineries. Section one university, and two research centers per gallon production credit to 9004 provides payments to biorefineries to demonstrate the thermochemical cellulosic ethanol producers that meet to replace fossil fuels with renewable conversion process of turning grasses, certain requirements. biomass. Section 9005 provides stover, and other cellulosic materials payments to producers to support and into biofuel. In February 2008, DOE In addition to individual state incentives, a group of states in the ensure production of advanced biofuels. awarded another $33.8 million to three And finally, Section 9008 provides companies and one research center to Midwest have joined together to pursue ethanol and other biofuel production competitive grants, contracts and support the development of financial assistance to enable eligible commercially-viable enzymes to support and usage goals as part of the Midwest Energy Security and Climate entities to carry out research, cellulose hydrolysis, a critical step in development, and demonstration of Stewardship Platform.86 As of June the biochemical breakdown of cellulosic biofuels and biomass-based based 2008, Indiana, Iowa, Kansas, Michigan, feedstocks. Finally, in March 2008, DOE products. For more information on the Minnesota, North Dakota, Ohio, South and USDA awarded $18 million to 18 Federal and state production incentives Dakota, and Wisconsin had all universities and research institutes to outlined in this subsection, refer to committed to these goals which conduct research and development of Section 1.5.3.2 of the DRIA. biomass-based products, biofuels, emphasize energy independence c. Feedstock Availability bioenergy, and related processes. Since 2007, DOE has announced more than $1 84 For more on state-level biodiesel production A wide variety of feedstocks can be incentives, refer to Section 1.5.4 of the DRIA. used for cellulosic ethanol production, billion and since 2006, USDA has 85 The database of ethanol incentives and laws by invested almost $600 million for the state is available at: http://www.eere.energy.gov/ including: Agricultural residues, research, development, and afdc/ethanol/incentives_laws.html. demonstration of new biofuel 86 Midwest Governors Association, ‘‘Energy 87 The Food, Conservation, and Energy Act of technology. Security and Climate Stewardship Platform for the 2008 (http://www.usda.gov/documents/ Midwest 2007’’ (http:// Bill_6124.pdf) Numerous states are also offering www.midwesterngovernors.org/resolutions/ 88 Refer to Part II, Subparts A and B (Sections grants, tax incentives, and loan Platform.pdf) 15321 and 15331).

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forestry biomass, municipal solid waste, cellulosic ethanol plant. For corn stover, based municipal solid waste and wood construction and demolition waste, and we assumed 50% more feedstock than debris from construction and energy crops. These feedstocks are necessary. We used a lower safety factor demolition. much more difficult to convert into for corn stover because it could be MSW consists of paper, glass, metals, ethanol than traditional starch/corn possible to remove a larger percentage of plastics, wood, yard trimmings, food crops or at least require new and the corn stover in any given year scraps, rubber, leather, textiles, etc. The different processes because of the more (usually only 50% or less of corn stover portion of MSW containing cellulosic complex structure of cellulosic material. is assumed to be sustainably removed in material and typically the focus for One potential barrier to commercially any one year).90 As a result, our biofuel production is wood and yard viable cellulosic biofuel production is projected cellulosic facilities only trimmings. In addition, paper, which high feedstock cost. As such, fuel consume a portion of the total supply of made up approximately 34% of the total producers will seek to acquire feedstock available. After a cellulosic MSW generated in 2006, could inexpensive feedstocks in sufficient facility is fully established and certain potentially be converted to cellulosic quantities to lower their production risks are reduced, it is entirely possible biofuel.91 Food scraps could also be costs and the risk of feedstock supply that the facility may choose to consume converted to cellulosic biofuel, shortages. At least initially, the focus excess feedstock in order to expand however, it was noted by an industry will be on feedstocks that are readily production. In addition, more facilities group that this feedstock could be more available, already produced or collected could potentially be built if financial difficult to convert to biofuel due to for other reasons, and even waste investors required less excess supply. challenges with separation, storage, biomass which currently incurs a Since we are assessing the impact of transport, and degradation of the disposal fee. Consequently, initial producing 16 Bgal of cellulosic biofuel materials. Although recycling/recovery volumes of cellulosic biofuels may by 2022, this analysis does not project rates are increasing over time, there benefit from low-cost feedstocks. the construction of more facilities or appears to still be a large fraction of However, to reach 16 Bgal will likely more feedstocks consumed than biogenic material that ends up unused require reliance on more expensive necessary. and in land-fills. C&D debris is typically feedstock sources purposely grown and Another assumption that we made is not available in wood waste or harvested for conversion into that if multiple feedstocks are available assessments, although some have cellulosic biofuel. in an area, each would be used as estimated this feedstock based on To determine the likely cellulosic feedstocks for a prospective cellulosic population. In 1996, this was estimated feedstocks for production of 16 billion ethanol plant. For example, a particular to be approximately 124 million metric 92 gallons cellulosic biofuel by 2022, we area might comprise a small or medium tons of C&D debris. Only a portion of analyzed the data and results from sized city, some forest and some this, however, would be made of woody various sources. Sources include agricultural land. We would include the material. Utilization of such feedstocks agricultural modeling from the Forestry MSW and C&D wastes available from could help generate energy or biofuels Agriculture Sector Optimization Model the city along with the corn stover and for transportation. However, despite (FASOM) to establish the most forest residue for projecting the various assessments on urban waste economical agriculture residues and feedstock that would be processed by resources, there is still a general lack of energy crops (see Section IX for more the particular cellulosic ethanol plant. reliable data on delivered prices, issues details on the FASOM), consultation The following subsections describe of quality (potential for contamination), with USDA–Forestry Sector experts for and lack of understanding of potential the availability of various cellulosic forestry biomass supply curves, and competition with other alternative uses feedstocks and the estimated amounts feedstock assessment estimates for (e.g. recycling, burning for electricity). urban waste.89 from each feedstock needed to meet the We estimated that 42 million dry tons An important assumption in our EISA requirement of 16 Bgal of of MSW (wood and yard trimmings & analysis projecting which feedstocks cellulosic biofuel by 2022. Refer to paper) and C&D wood waste could be will be used for producing cellulosic Section V.B.2.c.iv for the summarized available for producing biofuels after ethanol is that an excess of feedstock results of the types and volumes of factoring in several assumptions (e.g. would have to be available for cellulosic feedstocks chosen based on percent contamination, percent producing the biofuel. Banks are our analyses. recovered or combusted for other uses, anticipated to require excess feedstock i Urban Waste and percent moisture).93 94 We assumed supply as a safety factor to ensure that that approximately 25 million dry tons Cellulosic feedstocks available at the the plant will have adequate feedstock (of the total 42 million dry tons) would available for the plant, despite any lowest cost to the ethanol producer will be used. However, many areas of the feedstock emergency, such as a fire, likely be chosen first. This suggests that U.S. (e.g. much of the Rocky Mountain drought, infestation of pests etc. For our urban waste which is already being States) have such sparse resources that analysis we assumed that twice the gathered today and which incurs a fee a MSW and C&D cellulosic facility feedstock of MSW, C&D waste, and for its disposal may be among the first would not likely be justifiable. We did forest residue would have to be to be used. Urban wood wastes are used assume that in areas with other available to justify the building of a in a variety of ways. Most commonly, wastes are ground into mulch, dumped 91 EPA. Municipal Solid Waste Generation, 89 It is important to note that our plant siting into land-fills, or incinerated with other Recycling, and Disposal in the United States: Facts analysis for cellulosic ethanol facilities used the municipal solid waste (MSW) or and Figures for 2006. most current version of outputs from FASOM at the construction and demolition (C&D) 92 Fehrs, J., ‘‘Secondary Mill Residues and Urban time, which was from April 2008. Since then, debris. Urban wood wastes include a Wood Waste Quantities in the United States—Final FASOM has been updated to reflect better Report,’’ Northeast Regional Biomass Program assumptions. Therefore, the version used for the variety of wood resources such as wood- Washington, DC, December 1999. NPRM in Section IX on economic impacts is 93 Wiltsee, G., ‘‘Urban Wood Waste Resource slightly different than the one we used here. We do 90 The FASOM results do not take into Assessment,’’ NREL/SR–570–25918, National not believe that the differences between the two consideration these feedstock safety margins. Safety Renewable Energy Laboratory, November 1998. versions are enough to have a major impact on the margins were used, however, for the plant siting 94 Biocycle, ‘‘The State of Garbage in America,’’ plant siting analysis. analysis described in Section V.B.2.c.v. Vol. 47, No. 4, 2006, p. 26.

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cellulosic feedstocks (forest and and/or cobs), straw from wheat, rice, how soil carbon and other factors affect agricultural residue), that the MSW barley, or oats, and bagasse from sustainable removal rates. Despite would be used even if the MSW could sugarcane. The eight leading U.S. crops unclear guidelines for sustainable not justify the installation of a plant on produce more than 500 million tons of removal rates due to the uncertainties its own. Therefore, we have estimated residues each year, although only a explained above, our agricultural that urban waste could help contribute fraction can be used for fuel and/or modeling analysis assumes that 0% of to the production of approximately 2.2 energy production due to sustainability stover is removable for conventional billion gallons of ethanol.95 A more and conservation constraints.97 Crop tilled lands, 35% of stover is removable detailed discussion on this analysis is residues can be found all over the for conservation tilled lands, and 50% included in the DRIA Chapter 1. United States, but are primarily is removable for no-till lands. In general, Subsequent to initiating our analysis, concentrated in the Midwest since corn these removal guidelines are however, we realized that the revised stover accounts for half of all available appropriate only for the Midwest, where renewable biomass definition in the agricultural residues. the majority of corn is currently grown. statute may preclude the use of most Agricultural residues play an As already noted, removal rates will MSW. See Section III.B.4 for a important role in maintaining and vary within regions due to local discussion of renewable biomass. When improving soil quality, protecting the differences. Given the current the definition of renewable biomass is soil surface from water and wind understanding of sustainable removal finalized, it could preclude the use of erosion, helping to maintain nutrient rates, we believe that such assumptions some of the lowest cost potential levels, and protecting water quality. are reasonably justified. We invite feedstocks, including waste paper and Thus, collection and removal of comment on these assumptions. Based C&D waste, for use in producing agricultural residues must take into on our research we also note that cellulosic biofuel for use toward the account concerns about the potential for residue maintenance requirements for RFS2 standard. If this is the case, then increased erosion, reduced crop the amount of biomass that must remain our FRM analysis will be adjusted to productivity, depletion of soil carbon on the land to ensure soil quality is reflect this. and nutrients, and water pollution. another approach for modeling In addition to MSW and C&D waste Sustainable removal rates for sustainable residue collection generated from normal day-to-day agricultural residues have been quantities, therefore we also invite activities, there is also potential for estimated in various studies, many comment on this approach. This renewable biomass to be generated from showing tremendous variability due to approach would likely be more accurate natural disasters. This includes diseased local differences in soil and erosion for all landscapes as site specific trees, other woody debris, and C&D conditions, soil type, landscape (slope), conditions such as soil type, debris. For instance, Hurricane Katrina tillage practices, crop rotation topography, etc. could be taken into was estimated to have damaged managements, and the use of cover account. This would prevent site approximately 320 million large trees.96 crops. One of the most recent studies by specific soil erosion and soil quality Katrina also generated over 100 million top experts in the field showed that concerns that would inevitably exist tons of residential debris, not including under current rotation and tillage when using average values for residue the commercial sector. The material practices, about 30% of stover (about 59 removal rates across all soils and generated from these situations could million metric tons) produced in the landscapes. At the time of our analyses potentially be used to generate U.S. could be collected, taking into we had limited data on which to cellulosic biofuel. While we consideration erosion, soil moisture accurately apply this approach and acknowledge this material could concerns, and nutrient replacement therefore assumed the removal provide a large source in the short-term, costs.98 The same study showed that if guidelines based on tillage practices. natural disasters are highly variable, farmers chose to convert to no-till corn Refer to the Section 1.1 of the DRIA for making it hard to predict future volumes management and total stover production more discussion on sustainable removal that could be generated. We seek did not change, then approximately rates. comment on how to take into account 50% of stover (100 million metric tons) Some of the challenges of relying on such estimates to be included in future could be collected without causing agricultural residues to produce biofuels feedstock availability analyses. erosion to exceed the tolerable soil loss. include the development of the technology and infrastructure for the ii. Agricultural and Forestry Residues This study, however, did not consider possible soil carbon loss which other harvesting of biomass crops. For The next category of feedstocks studies indicate may be a greater example, it may be possible to reduce chosen will likely be those that are constraint to environmentally costs by harvesting the corn stover at the readily produced but have not yet been sustainable feedstock harvest than that same time that the corn is harvested, in commercially collected. This includes needed to control water and wind a single pass operation, as opposed to both agricultural and forestry residues. erosion.99 Experts agree that additional two separate harvests. In addition, Agricultural residues are expected to studies are needed to further evaluate because agricultural residues are usually play an important role early on in the harvested only one time per year, but development of the cellulosic ethanol 97 Elbehri, Aziz. USDA, ERS. ‘‘An Evaluation of cellulosic ethanol plants must receive industry due to the fact that they are the Economics of Biomass Feedstocks: A Synthesis the feedstock throughout the year, already being grown. Agricultural crop of the Literature. Prepared for the Biomass Research agricultural residues would likely need residues are biomass that remains in the and Development Board,’’ 2007; Since 2007, a final to be stored at a secondary storage field after the harvest of agricultural report has been released. Biomass Research and Development Board, ‘‘The Economics of Biomass facility. The transportation and storage crops. The most common residue types Feedstocks in the United States: A Review of the issues and costs associated with this include corn stover (the stalks, leaves, Literature,’’ October 2008. secondary storage will add additional 98 Graham, R.L., ‘‘Current and Potential U.S. Corn costs to using agricultural residue as 95 Assuming 90 gal/dry ton ethanol conversion Stover Supplies,’’ American Society of Agronomy cellulosic plant feedstock. These 99:1–11, 2007. yield for urban waste in 2022. significant transportation and storage 96 Chambers, J., ‘‘Hurricane Katrina’s Carbon 99 Wilhelm, W.W. et. al., ‘‘Corn Stover to Sustain Footprint on U.S. Gulf Coast Forests’’ Science Vol. Soil Organic Carbon Further Constrains Biomass issues need to be resolved and the 318, 2007. Supply,’’ Agron. J. 99:1665–1667, 2007. infrastructure built before agricultural

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residues can supply a steady stream of further distances away from the higher rates of net photosynthetic CO2 feedstock to the biorefinery. We discuss cellulosic plant compared to fixation into sugars. Third, lower these harvesting and storage challenges agricultural residue at the same fertilizer runoff, lower soil erosion, and in Section 1.3 of the DRIA. feedstock price. Section 1.1 of the DRIA increased habitat diversity are also Our agricultural modeling (FASOM) further details some of challenges with attributes that make perennial crops suggests that corn stover will make up using forestry biomass as a feedstock. more attractive than annual crops.104 the majority of agricultural residues EISA does not allow forestry material Finally, energy crops tend to store more used by 2022 to meet the EISA from national forests and virgin forests carbon in the soil compared to cellulosic biofuel standard that could be used to produce biofuels agricultural crops such as corn.105 (approximately 83 million dry tons used to count towards the renewable fuels The introduction of dedicated energy to produce 7.8 billion gallons of requirement under EISA. Therefore, we crops could present some potential cellulosic ethanol).100 Smaller required forestry residue estimates that risks, however. Dedicated energy crops contributions are expected to come from excluded such material. Most recently, for cellulosic biofuels can be non-native other crop residues, including bagasse the USDA–FS provided forestry biomass to the region where their production is (1.2 Bgal ethanol) and sweet sorghum supply curves for various sources (i.e., proposed.106 As a result, these species pulp (0.1 Bgal ethanol).101 At the time logging residues, other removal may potentially escape cultivation and of this proposal, FASOM was able to residues, thinnings from timberland, damage surrounding ecosystems.107 In model agricultural residues but not etc.). This information suggested that a addition breeding and genetic forestry biomass as potential feedstocks. total of 76 million dry tons of forest engineering to increase environmental As a result, we relied on USDA–Forest material could be available for tolerance, increase harvestable biomass Service (FS) for information on the producing biofuels (excluding forest production, and enhance energy forestry sector. biomass material contained in national conversion may have unexpected The U.S. has vast amounts of forest forests as required under EISA). ecological consequences. To minimize resources that could potentially provide However, much of the forest material is such risks, non-native species and non- feedstock for the production of in small pockets of forest which because wild-type native species (i.e. native cellulosic biofuel. One of the major of its regional low density, could not species after genetic modification) sources of woody biomass could come help to justify the establishment of a should be introduced in a responsible from logging residues. The U.S. timber cellulosic ethanol plant. After manner and evaluated carefully in order industry harvests over 235 million dry conducting our feedstock availability to weigh the potential risks against the tons annually and produces large analysis, we estimated that benefits. volumes of non-merchantable wood and approximately 44 million dry tons of Currently, an energy crop receiving residues during the process.102 Logging forest material could be used, which much attention is switchgrass. residues are produced in conventional would make up approximately one Switchgrass has many qualities that harvest operations, forest management fourth, or 3.8 billion gallons, of the 16 make it a prime cellulosic feedstock activities, and clearing operations. In billion gallons of cellulosic biofuel option. However, switchgrass and other 2004, these operations generated required to meet EISA. energy crops are not currently harvested approximately 67 million dry tons/year iii Dedicated Energy Crops on a large scale. Switchgrass would of forest residues that were left likely be grown on a 10-year crop While urban waste, agricultural uncollected at harvest sites.103 Other rotation basis, with harvest beginning in residues, and forest residues will likely feedstocks include those from other year 1 or 2, depending on location. be the first feedstocks used in the removal residues, thinnings from Because switchgrass and other production of cellulosic biofuel, there timberland, and primary mill residues. dedicated energy crops would not be Harvesting of forestry residue and may be limitations to their use due to harvested annually, there will be some other woody material can be conducted land availability and sustainable economic challenges in terms of price throughout the year. Thus, unlike removal rates. Energy crops which are forecasting and contracts. Accordingly, agricultural residue which must be not yet grown commercially but have 10- to 15-year arrangements may be the potential for high yields and a series moved to secondary storage, forest needed to stabilize the market for energy of environmental benefits could help material could be ‘‘stored on the crops.108 Despite these challenges, provide additional feedstocks in the stump.’’ Avoiding the need for dedicated energy crops are still future. Dedicated energy crops are plant secondary storage and the transportation projected to be needed in 2022 in order species grown specifically as renewable costs for moving the feedstock there to meet the aggressive goal of 16 Bgal of fuel feedstocks. Various perennial potentially provides a significant cost plants have been researched as potential advantage for forest residue over 104 DOE., ‘‘Breaking the Biological Barriers to dedicated feedstocks. These include agricultural residue. This could allow Cellulosic Ethanol: A Joint Research Agenda,’’ 2006. switchgrass, mixed prairie grasses, 105 Tolbert, V.R., et al., ‘‘Biomass Crop forest residue to be transported from hybrid poplar, miscanthus, and willow Production: Benefits for Soil Quality and Carbon trees. Sequestration,’’ March 1999. 100 Assuming 94 gal/dry ton ethanol conversion 106 Lewandowski, I., J. M. O. Scurlock, E. yield for corn stover in 2022. Perennials have several benefits over Lindvall, and M. Chistou, ‘‘The development and 101 Bagasse is a byproduct of sugarcane crushing many major agricultural crops (the current status of perennial rhizomatous grasses as and not technically an agricultural residue. Sweet majority of which are annual plants). energy crops in the U.S. and Europe,’’ Biomass sorghum pulp is also a byproduct of sweet sorghum First, energy crops based on perennial Bioenergy 25:335–361, 2003. processing. We have included it under this heading species are grown from roots or 107 The Council for Agricultural Science and for simplification due to sugarcane being an Technology (CAST), ‘‘Biofuel Feedstocks: The Risk agricultural feedstock. rhizomes that remain in the soil after of Future Invasions,’’ CAST Commentary 102 Smith, W. Brad et. al., ‘‘Forest Resources of harvests. This reduces annual field QTA2007–1. November 2007. Accessed at: http:// the United States, 2002 General Technical Report preparation and fertilization costs. pdf.cast-science.org/websiteUploads/ NC–241,’’ St. Paul, MN: U.S. Dept. of Agriculture, Second, perennial crops in temperate publicationPDFs/Biofuels%20Commentary%20 Forest Service, North Central Research Station, Web%20version%20with%20color%20 2004. zones may also have significantly higher %207927146.pdf 103 USDA–Forest Service. ‘‘Timber Products total biomass yield per unit of land area 108 Zeman, N., ‘‘Feedstock: Potential Players,’’ Output Mapmaker Version 1.0.’’ 2004. compared to annual species because of Ethanol Producer Magazine, October 2006.

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cellulosic biofuel by 2022 as outlined in production, FASOM also estimated the TABLE V.B.2–4—CELLULOSIC FEED- EISA. contribution that energy crops might STOCKS ASSUMED TO MEET EISA IN Since energy crops are not being provide.112 FASOM covers all cropland 2022 grown today to make fuels, their and pastureland in production in the 48 production and use depends on the conterminous United States, however it Feedstock Volume development of a successful strategy. does not contain all categories of (Bgal) One issue is that if they were to be grassland and rangeland captured in grown on farmland currently used to USDA’s Major Land Use data sets. Agricultural Residues ...... 9.1 grow crops, the growth of switchgrass Corn Stover ...... 7.8 Therefore, it is possible there is land would have an opportunity cost Sugarcane Bagasse ...... 1.2 appropriate for growing dedicated associated with the loss of agricultural Sweet Sorghum Pulp ...... 0.1 production. For this reason, energy energy crops that is not currently Forestry Biomass ...... 3.8 crops may instead be grown on more modeled in FASOM. Furthermore, we Urban Waste ...... 2.2 marginal farm land such as fallow constrained FASOM to be consistent Dedicated Energy Crops farmland and farmland which has been with the 2008 Farm Bill and assumed 32 (Switchgrass) ...... 0.9 converted over to prairie grass. A study million acres would stay in CRP.113 by Stanford and the Carnegie Institution These constraints on land availability Total ...... 16.0 found that 58 million hectares (145 may have contributed to the model million acres) of abandoned farmland choosing a substantial amount of v. Cellulosic Plant Siting would potentially be available for agricultural residues mostly as corn growing energy crops here in the U.S.109 stover and a relatively small portion of Future cellulosic biofuel plant siting was based on the types of feedstocks However, they also concluded that this energy crops as being economically that would be most economical as land is marginal in quality and thus the viable feedstocks. The use of other shown in Table V.B.2–4, above. As production per acre would be much models, such as USDA’s Regional cellulosic biofuel refineries will likely lower compared to prime farm land. Environment and Agriculture Additionally, a substantial amount of be located close to biomass resources in Programming (REAP) model and order to take advantage of lower this abandoned farm land is a part of the University of Tennessee’s POLYSYS Conservation Reserve Program (CRP). transportation costs, we’ve assessed the model, have shown that the use of potential areas in the U.S. that grow the The CRP is the U.S. Department of energy crops in order to meet EISA may Agriculture’s voluntary program that various feedstocks chosen. To do this, be more significant than our current was established by the Food Security we used data on harvested acres by FASOM modeling results.114 As such, Act of 1985 to provide farmers with a county for crops that are currently dependable source of income, reduce we plan to revisit these land availability grown today, such as corn stover and erosion on unused farmland, and serve assumptions in order to arrive at a more sugarcane (for bagasse).115 In some to preserve wildlife and water consistent basis for the FRM. We request cases, crops are not currently grown, but quality.110 A large portion of the 36 comment on these assumptions, in have the potential to replace other crops million acres in the CRP land is addition to all the cellulosic yield or pastureland (e.g. dedicated energy currently planted with switchgrass and assumptions that are contained in DRIA crops). We used the output from our mixed prairie grasses.111 However, the Chapter 1. economic modeling (FASOM) to help us 2008 Farm Bill capped the number of determine which types of land are likely iv. Summary of Cellulosic Feedstocks CRP acres at 32 million acres for 2010– to be replaced by newly grown crops. for 2022 2012, and we expect that some of the For forestry biomass, USDA-Forestry CRP acres that are not re-enrolled will Table V.B.2–4 summarizes our Service provided supply curve data by go into crop production. While it may internal estimate of cellulosic feedstocks county showing the available tons be possible to use some of the CRP acres and their corresponding volume produced. Urban waste (MSW wood, to produce biofuels from switchgrass contribution to 16 billion gallons paper, and C&D debris) was estimated to and prairie grass, the potential loss of cellulosic biofuel by 2022 for the be located near large population centers. the wildlife habitat and water quality purposes of our impacts assessment. Using feedstock availability data by benefits of CRP land would have to be county/city, we located potential weighed against the potential use for cellulosic sites across the U.S. that this land for growing energy crops. Also, could justify the construction of a a significant portion of the CRP land is cellulosic plant facility. For more details wetlands and likely could not be used 112 Assuming 16 Bgal cellulosic biofuel total, 2.2 on this analysis, refer to Section 1.5 of for growing energy crops without Bgal from Urban Waste, and 3.8 Bgal from Forestry the DRIA. Table V.B.2–5 shows the impacting water quality and wildlife. Biomass; 10 Bgal of cellulosic biofuel for ag In addition to estimating the extent residues and/or energy crops would be needed. volume of cellulosic facilities by that agricultural residues might 113 Beside the economic incentive of a farmer feedstock by state projected for 2022. contribute to cellulosic ethanol payment to keep land in CRP, local environmental The total volumes given in Table V.B.2– interests may also fight to maintain CRP land for 5 match the total volumes given in wildlife preservation. Also, we did not know what 109 Campbell, J.E. at al., ‘‘The global potential of Table V.B.2–4 within a couple hundred portion of the CRP is wetlands which likely could bioenergy on abandoned agriculture lands,’’ million gallons. As these differences are Environ. Sci. Technology, 2008. not support harvesting equipment. relatively small, we believe the 114 110 Charles, Dan; ‘‘The CRP: Paying Farmers not Biomass Research and Development Initiative cellulosic facilities sited are a good (BR&DI), ‘‘Increasing Feedstock Production for to Farm,’’ National Public Radio, May 5, 2008. estimate of potential locations. 111 Farm Service Agency, ‘‘Conservation Reserve Biofuels: Economic Drivers, Environmental Program, Summary and Enrollment Statistics Implications, and the Role of Research,’’ http:// FY2006,’’ May 2007. www.brdisolutions.com December 2008. 115 NASS database. http://www.nass.usda.gov/.

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TABLE V.B.2–5—PROJECTED CELLULOSIC ETHANOL VOLUMES BY STATE [Million gallons in 2022]

Agricultural Energy Urban State Total residue crop waste Forestry volume volume volume volume volume

Alabama ...... 532 0 0 140 392 Arkansas ...... 298 0 0 0 298 California ...... 450 0 0 221 229 Colorado ...... 28 0 0 28 0 Florida ...... 421 390 0 31 0 Georgia ...... 437 0 0 67 370 Illinois ...... 1,525 1,270 0 198 58 Indiana ...... 1,109 948 0 101 60 Iowa ...... 1,697 1,635 0 32 30 Kansas ...... 310 250 0 29 32 Kentucky ...... 70 70 0 0 0 Louisiana ...... 1,001 590 0 103 308 Maine ...... 191 0 0 2 189 Michigan ...... 505 283 0 171 51 Minnesota ...... 876 750 0 50 76 Mississippi ...... 214 0 0 22 192 Missouri ...... 654 504 0 78 72 Montana ...... 92 0 0 9 83 Nebraska ...... 956 851 0 31 75 Nevada ...... 17 0 0 17 0 New Hampshire ...... 171 0 35 29 107 New York...... 72 0 0 72 0 North Carolina ...... 315 0 0 98 217 Ohio ...... 598 410 0 156 32 Oklahoma ...... 793 0 777 0 16 Oregon ...... 244 0 0 44 200 Pennsylvania ...... 42 0 0 42 0 South Carolina ...... 213 0 0 57 156 South Dakota ...... 434 350 0 6 78 Tennessee ...... 97 0 0 19 78 Texas ...... 576 300 0 131 145 Virginia ...... 197 0 0 95 102 Washington ...... 175 0 0 17 158 West Virginia ...... 149 0 101 0 48 Wisconsin ...... 581 432 0 43 106

Total Volume ...... 16,039 9,034 913 2,139 3,955

It is important to note, however, that at the time of this proposal, was not yet represent a reasonable forecast for there are many more factors other than available.116 estimating the impacts of this rule. feedstock availability to consider when As we are projecting the location of 3. Imported Ethanol eventually siting a plant. We have not cellulosic plants in 2022, it is important a. Historic World Ethanol Production taken into account, for example, water to keep in mind the various and Consumption constraints, availability of permits, and uncertainties in the analysis. For sufficient personnel for specific example, future analyses could Although ethanol can be used for locations. As many of the corn stover determine better recommendations for multiple purposes (fuel, industrial, and facilities are projected to be located sustainable removal rates. In the case beverage), fuel ethanol is by far the close to corn starch facilities, there is where lower removal rates are largest market, accounting for about the potential for competition for clean recommended, agricultural residues two-thirds of the total world ethanol water supplies. Therefore, as more and may be more limited and could require consumed. According to forecasts, fuel more facilities draw on limited more growth in dedicated energy crops. ethanol might even exceed 80% of the resources, it may become apparent that Also, the feedstocks could be processed market share by the end of the decade.117 In 2008, the top three fuel various locations are infeasible. in the field to a liquid by a pyrolysis ethanol producers were the U.S., Brazil, Nevertheless, our plant siting analysis process, facilitating the ability to ship the preprocessed biomass to plants and the European Union (EU), provides a reasonable approximation for producing 9.0, 6.5, and 0.7 billion located further away from the feedstock analysis purposes since it is not gallons, respectively.118 Other countries source. Given the information we have intended to predict precisely where that have produced ethanol include actual plants will be located. Other to date, we believe our projected locations for cellulosic facilities work is currently being done that will 117 F.O. Licht., ‘‘World Ethanol Markets: The help address some of these issues, but Outlook to 2015’’, 2006, pg. 21. 116 USDA, WGA, Bioenergy Strategic Assessment 118 Renewable Fuels Association (RFA), ‘‘2007 project findings upcoming as noted in report WGA. World Fuel Ethanol Production,’’ Transportation Fuels for the Future Biofuels: Part I. http://www.ethanolrfa.org/industry/statistics/#E, 2008. March 31, 2009.

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China, Canada, Thailand, Colombia, and use an oxygenate and gasoline marketers fuel within the next few years.124 Thus, India. did not receive the MTBE liability as domestic demand begins to level off, Consumption of fuel ethanol, like protection that they had petitioned for. some experts see a significant production, is also dominated by the Refiners responded by removing MTBE possibility that exports will become United States and Brazil. The U.S. and replacing its use with ethanol. As more relevant in market share terms. dominates world fuel ethanol a result, the demand for ethanol Lastly, Brazil has large land areas for consumption, with 9.6 billion gallons increased at unprecedented rates as potential expansion for sugarcane. A consumed in 2008 (domestic production most refiners replaced MTBE with study commissioned by the Brazilian plus imports).119 Brazil is second in ethanol. The dramatic increase in crude government produced an analysis in consumption, with about 4.9 billion oil costs at this time also made ethanol which Brazil’s arable land was gallons projected to be consumed in more economical by comparison. evaluated for its suitability for cane.125 2007/2008.120 The EU is also a By the end of 2006, almost all MTBE Setting aside areas protected by significant consumer of ethanol; was phased out of gasoline. However, environmental regulations and those however, consumption for the EU crude oil prices remained high, allowing with a slope greater than 12% (those not countries was only approximately 0.7 ethanol imports to the U.S. to remain suitable for mechanized farming), billion gallons in 2007.121 economical in comparison to the past. tripling ethanol production (a goal set Although not as high as the volume of by the Brazilian government by 2020) b. Historic/Current Domestic Imports ethanol imported in 2006, the U.S. would require only an additional 14 Ethanol imports have traditionally continued to import ethanol in 2007 million acres. This additional acreage played a relatively small role in the U.S. (425–450 million gallons). In 2008, the would only be about 2% of suitable land transportation fuel market due to U.S. imported 519–556 million for sugarcane production. Refer to historically low crude prices and the gallons.123 As the data show, the Section 1.5 of the DRIA for more details. tariff on imported ethanol. While low volume of imported ethanol can Although Brazil is in an excellent crude prices made it difficult for both fluctuate greatly. By looking at historical position to help meet the growing global domestic and imported ethanol to import data it is difficult to project the demand for ethanol, several constraints compete with gasoline, the addition of potential volume of future imports to could limit the expansion of ethanol the federal excise tax credit made it the U.S. Rather, it is necessary to assess production. As Brazil’s government has possible for domestic ethanol to be future import potential by analyzing the adopted plans to meet global demand by economically competitive. major players for foreign biofuels tripling production by 2020,126 this Between 2000 and 2003, the total production and consumption. would mean a total capacity of about volume of fuel ethanol imports into the c. Projected Domestic Imports 12.7 billion gallons, to be achieved United States remained relatively stable through a combination of efficiency 122 In our assessment of foreign ethanol at 46–68 million gallons. During this gains, greenfield projects, and production and consumption, we period of time, mostly Brazilian-based infrastructure expansions. Estimates for analyzed the following countries or ethanol entered the U.S. primarily the investment required tend to range group of countries: Brazil, the EU, through the Caribbean Basin Initiative from $2 to $4 billion a year.127 In Japan, India, and China. Our analyses (CBI) countries where it could avoid the addition, Brazil will need to improve its indicate that Brazil would likely be the tariff. From 2004–2005, with rising current ethanol infrastructure (i.e. only nation able to supply any crude oil prices, most estimates show improvements in power, transportation, meaningful amount of ethanol to the U.S. fuel ethanol imports increased storage, distribution logistics, and U.S. in the future. Depending on slightly to 135–164 million gallons, or communications). It is estimated that whether the mandates and goals of the about 4% of the total U.S. fuel ethanol Brazil will need to invest $1 billion each EU, Japan, India, and China are enacted consumption (3.5 to 4.0 billion gallons). year for the next 15 years in or met in the future, it is likely that this The volume of imports rose infrastructure to keep pace with group of countries would consume any dramatically in 2006 to 654–720 million capacity expansion and export growth in their own production and be gallons, or about 13% of the 2006 total demand.128 Refer to Section 1.5 of the net importers of ethanol, thus ethanol consumption of 5.4 billion DRIA for further details on the competing with the U.S. for Brazilian gallons. The largest volume of imports improvements needed for Brazil to in 2006 was from direct Brazilian ethanol exports. Brazil is expected to supply the increase ethanol production capacity. imports. This increase in ethanol Due to uncertainties in the future majority of future ethanol demand and imports was mainly due to the demand for ethanol domestically and to expand their capacity for several withdrawal of MTBE from the fuel pool internationally as well as uncertainties reasons. First, Brazil has over 30 years which increased the price of ethanol. in the actual investments made in the experience in developing the research MTBE was used in gasoline to fulfill the Brazilian ethanol industry, there and technologies for producing oxygenate requirements set by Congress appears to be a wide range of Brazilian sugarcane ethanol. As a result, in the 1990 Clean Air Act Amendments. production and domestic consumption Brazilians have been able to improve EPAct further accelerated the estimates. The most current and agricultural and conversion processes so withdrawal of MTBE because gasoline complete estimates indicate that total marketers were no longer required to that sugarcane ethanol is currently the least costly method for producing 124 Agra FNP, ‘‘Sugar and Ethanol in Brazil: A 119 Ibid. biofuels. See Section VIII for further Study of the Brazilian Sugar Cane, Sugar and 120 UNICA, ‘‘Sugarcane Industry in Brazil: discussion on the production costs for Ethanol Industries,’’ 2007. Ethanol Sugar, Bioelectricity’’ Brochure, 2008. sugarcane ethanol. 125 CGEE, ABDI, Unicamp, and NIPE, Scaling Up 121 European Bioethanol Fuel Association (eBio), Second, it is believed that domestic the Ethanol Program in Brazil, n.d. as quoted in ‘‘The EU Market: Production and Consumption,’’ demand for ethanol in Brazil will begin Rothkopf, Garten, ‘‘A Blueprint for Green Energy in the Americas,’’ 2006. http://www.ebio.org/EUmarket.php, March 31, to slow as most of the national fleet of 2009. 126 Rothkopf, Garten, ‘‘A Blueprint for Green 122 Values given report USITC and RFA data, vehicles will have transitioned to flex- Energy in the Americas,’’ 2006. however, EIA reports slightly lower numbers prior 127 Ibid. to 2004. 123 USITC and EIA import data reported. 128 Ibid.

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Brazilian ethanol exports will likely Generally speaking, Brazilian ethanol recently, however, Senate reach 3.8–4.2 billion gallons by exporters will seek routes to countries Representative Charles Grassley from 2022.129 130 131 As this volume of ethanol with the lowest transportation costs, Iowa included a provision into the Farm export is available to countries around taxes, and tariffs. With respect to the Bill of 2008 that ended such refunds. the world, only a portion of this will be U.S., the most likely route is through the The provision states that ‘‘any duty paid available exclusively to the United Caribbean Basin Initiative (CBI).132 under subheading 9901.00.50 of the States. If the balance of the EISA Brazilian ethanol entering the U.S. Harmonized Tariff Schedule of the advanced biofuel requirement not met through the CBI countries is not United States on imports of ethyl with cellulosic biofuel and biomass- currently subject to the 54 cent alcohol or a mixture of ethyl alcohol based diesel were to be met with imported ethanol tariff and yet receives may not be refunded if the exported imported sugarcane ethanol alone, it the 45 cent ethanol blender tax subsidy. article upon which a drawback claim is would require 3.2 billion gallons (see Due to the economic incentive of based does not contain ethyl alcohol or Table V.A.2–1), or approximately 80% transporting ethanol through the CBI, a mixture of ethyl alcohol.’’ 136 The of total Brazilian ethanol export we expect the majority of the tariff rate provision is effective on or after October estimates. quota (TRQ) to be met or exceeded, 1, 2008 and companies have until The amount of Brazilian ethanol perhaps 90% or more. The TRQ is set October 1, 2010 to apply for a duty each year as 7% of the total domestic drawback on prior transactions. With available for shipment to the U.S. will ethanol consumed in the prior year. If the loophole closed, it is anticipated be dependent on the biofuels mandates we assume that 90% of the TRQ is met that there may be less ethanol directly and goals set by other foreign countries and that total domestic ethanol (corn exported from Brazil in the future.137 (i.e., the EU, Japan, India, and China) in and cellulosic ethanol) consumed in the For our distribution and air quality addition to U.S. policies to promote the prior year was 28.5 Bgal, then analyses, we had to make a use of renewable fuels. Our estimates approximately 1.8 Bgal of ethanol could determination as to where the projected show that there could be a potential enter the U.S. through CBI countries. imported ethanol would likely enter the demand for imported ethanol of 4.6– The rest of the Brazilian ethanol exports United States. To do so, we started by 14.6 billion gallons by 2020/2022 from not entering the CBI will compete on the looking at 2006 ethanol import data and these countries. This is due to the fact open market with the rest of the world made assumptions as to which countries that some countries are unable to demanding some portion of direct would likely contribute to the CBI produce large volumes of ethanol Brazilian ethanol. We calculated the ethanol volumes in Table V.B.3–1, and because of land constraints or low amount of direct Brazilian ethanol to what extent.138 We estimated that, on production capacity. As such, foreign exports in 2022 to the U.S. as the total average, in future years, 30% would countries may have limited domestic imported ethanol required (3.14 billion come from Jamaica, 20% each would biofuel production capability and may gallons) to meet the RFS2 volume come from El Salvador and Costa Rica, therefore require importation of biofuels requirements subtracted by imported and 15% each would originate from in order to meet their mandates and ethanol from CBI countries (1.8 billion Trinidad & Tobago and the Virgin goals. Refer to Section 1.5 of the DRIA gallons), or equal to 1.34 billion gallons. Islands. Even though to date there have for further details. Therefore, if other In the past, companies have also not been a lot of ethanol imports from foreign country mandates and goals are avoided the ethanol import tariff the Virgin Islands, we believe that they to be met, then Brazil may need to either through a duty drawback.133 The could become a comparable importer to increase production much more than its drawback is a loophole in the tax rules Trinidad & Tobago in the future under government projects or export less which allowed companies to import the proposed RFS2 program. ethanol to the U.S. This suggests that ethanol and then receive a rebate on From there, we looked at 2006–2007 the U.S. may be competing for Brazilian taxes paid on the ethanol when jet fuel import data and estimated the general ethanol exports if supplies are limited is sold for export within three years. destination of Brazilian ethanol and the in the future. For our analysis we The drawback considered ethanol and five contributing CBI countries’ assumed that the U.S. would consume jet fuel as similar commodities (finished domestic imports. Based on these the majority of Brazilian exports (i.e. petroleum derivatives).134 135 Most countries’ geographic locations and 80% of export estimates in 2022). This import histories, we estimated that in is aggressive, yet within the bounds of 132 Other preferential trade agreements include 2022 about 75% of the ethanol would be reason, therefore, we have made this the North American Free Trade Agreement imported to the East and Gulf Coasts simplifying assumption for the purposes (NAFTA) which permits tariff-free ethanol imports from Canada and Mexico and the Andean Trade and the remainder would go to the West of further analysis. We seek comment on Promotion and Drug Eradication Act (ATPDEA) Coast and Hawaii. To estimate import the legitimacy of this assumption given which allows the countries of Columbia, Ecuador, locations, we considered coastal port the ethanol export deals and Bolivia, and Peru to import ethanol duty-free. cities that had received ethanol or Currently, these countries export or produce commitments that Brazil has made or relatively small amounts of ethanol, and thus we finished gasoline imports in 2006 and may potentially make with other nations have not assumed that the U.S. will receive any distributed the ethanol accordingly in the future. substantial amounts from these countries in the based on ethanol demand. For more future for our analyses. information on this analysis, refer to 133 Rapoza, Kenneth, ‘‘UPDATE: Tax Loophole 129 EPE, ‘‘Plano Nacional de Energia 2030,’’ Helps US Import Ethanol ‘Duty Free’—ED&F,’’ INO Section 1.5 of the DRIA. Presentation from Mauricio Tolmasquim, 2007. News, Dow Jones Newswires, March 2008. http:// 130 UNICA, ‘‘Sugarcane Industry in Brazil: news.ino.com/. 136 Public Law Version 6124 of the Farm Bill. Ethanol, Sugar, Bioelectricity,’’ 2008. 134 Peter Rhode, ‘‘Senate Finance May Take Up 2008. http://www.usda.gov/documents/ 131 USEPA International Visitors Program Meeting Drawback Loophole As Part of Energy Bill,’’ Bill_6124.pdf. October 30, 2007, correspondence with Mr. EnergyWashington Week, April 18, 2007. As sited 137 Lundell, Drake, ‘‘Brazilian Ethanol Export Rodrigues, Technical Director from UNICA Sao in Yacobucci, Brent, ‘‘Ethanol Imports and the Surge to End; U.S. Customs Loophole Closed Oct. Paulo Sugarcane Agro-industry Union, stated Caribbean Basin Initiative,’’ CRS Report for 1,’’ Ethanol and Biodiesel News, Issue 45, approximately 3.7 billion gallons probable by 2017/ Congress, Order Code RS21930, Updated March 18, November 4, 2008. 2020; Consistent with brochure ‘‘Sugarcane 2008. 138 Source: EIA data on company-level imports Industry in Brazil: Ethanol Sugar, Bioelectricity’’ 135 Perkins, Jerry, ‘‘BRAZIL: Loophole Hurt U.S. (http://www.eia.doe.gov/oil_gas/petroleum/ from UNICA (3.25 Bgal export in 2015 and 4.15 Ethanol Prices,’’ DesMoinesRegister.com, October data_publications/company_level_imports/ Bgal export in 2020). 18, 2007. cli_historical.html).

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4. Biodiesel & Renewable Diesel purposes of complying with its volume a. Historic and Projected Production mandates.140 Biodiesel and renewable diesel are i. Biodiesel replacements for petroleum diesel that In general, plant and animal oils are As of September 2008, the aggregate are made from plant or animal fats. valuable commodities with many uses production capacity of biodiesel plants Biodiesel consists of fatty acid methyl other than transportation fuel. Therefore in the U.S. was estimated at 2.6 billion esters (FAME) and can be used in low- we expect the primary limiting factor in gallons per year across approximately concentration blends in most types of the supply of both biodiesel and 176 facilities.141 Biodiesel plants exist diesel engines and other combustion renewable diesel to be feedstock in nearly all states, with the largest equipment with no modifications. The availability and price. Expansion of density of plants in the Midwest and term renewable diesel covers fuels made their market volumes is dependent on Southeast where agricultural feedstocks by hydrotreating plant or animal fats in being able to compete on price with the are most plentiful. processes similar to those used in petroleum diesel they are displacing, Table V.B.4–1 gives U.S. biodiesel refining petroleum. Renewable diesel is which will depend largely on production capacity, sales, and capacity chemically analogous to blendstocks continuation of current subsidies and utilization in recent years. The figures already used in petroleum diesel, thus other incentives. suggest that the industry has grown out its use can be transparent and its blend Other biomass-based diesel fuel of proportion with actual biodiesel level essentially unlimited. The goal of plants are either already built or being demand. Reasons for this include both biodiesel and renewable diesel considered for construction. Cello various state incentives to build plants, conversion processes is to change the along with state and federal incentives Energy has already started up a 20 properties of a variety of feedstocks to to blend biodiesel, which have given million gallon per year catalytic more closely match those of petroleum rise to an optimistic industry outlook diesel (such as its density, viscosity, and depolymerization plant that is over the past several years. Since the energy content) for which the engines producing diesel fuel from cellulose and cost of capital is relatively low for the and distribution system have been other feedstocks, and Cello intends on biodiesel production process (typically designed. Both processes can produce building several 50 million gallon per four to six percent of the total per-gallon suitable fuels from biogenic sources, year plants to be started up in 2010. cost), this industry developed a more though we believe some feedstocks lend Also, numerous other companies are grassroots profile in comparison to the themselves better to one process or the planning on building biomass to liquids ethanol industry, and, with median size other. The definition of biodiesel given (BTL) plants that produce diesel fuel less than 10 million gallons/yr, consists in applicable regulations is sufficiently through the syngas and Fischer Tropsch of a large number of small plants.142 broad to be inclusive of both fuels.139 pathway. However, for our analysis for These small plants, with relatively low However, the EISA stipulates that this proposed rulemaking, we did not operating costs other than feedstock, renewable diesel that is co-processed project that biomass-based diesel fuel have generally been able to survive with petroleum diesel cannot be would be produced from these producing below their nameplate counted as ‘‘biomass-based diesel’’ for processes. capacities.

TABLE V.B.4–1—U.S. BIODIESEL CAPACITY AND PRODUCTION VOLUMES [Million gallons] 143

Utilization Year Capacity Production (percent)

2003 ...... 150 21 14% 2004 ...... 245 36 15 2005 ...... 395 115 29 2006 ...... 792 241 30 2007 ...... 1,809 499 28 2008 ...... 2,610 700 27

Some of this industry capacity may In 2004–5, demand for biodiesel grew overcapacity situation. According to a not be dedicated specifically to fuel rapidly, but the trend of increasing survey conducted by Biodiesel production, instead being used to make capacity utilization was quickly Magazine staff, more than 1 in 5 plants oleochemical feedstocks for further overwhelmed by additional plant starts. were already idle or defunct as of late conversion into products such as Since then, high commodity prices 2007 (though this likely varies by surfactants, lubricants, and soaps. These followed by reduced demand for products do not show up in renewable transportation fuel have caused fuel sales figures. additional economic strain beyond the

139 See Section 1515 of the Energy Policy Act of 2008 (http://biodiesel.org/pdf_files/fuelfactsheets/ modeling of biodiesel production costs can be 2005. More discussion of the definitions of Producers%20Map%20-%20existing.pdf). This found in Bioresource Technology 97(2006) 671–8. biodiesel and renewable diesel are given in the information was current at the time these analyses 143 Capacity data taken from National Biodiesel preamble of the Renewable Fuel Standard were being done. More recent data maintained by Board. Production figures taken from F.O. Licht rulemaking, Section III.B.2, as published in the Biodiesel Magazine suggests that by April 2009 the Federal Register Vol. 72, No. 83, p. 23917. industry had contracted to approximately 137 World Ethanol and Biofuels Report, vol. 6, no. 11, 140 For more detailed discussion of the definition plants with aggregate capacity of 2.3 billion gal/yr p S271, except 2008, which is an estimate taken of coprocessing and its implications for compliance (see http://www.biodieselmagazine.com/plant- from National Biodiesel Board (http:// with EISA, see Section III.B.1 of this preamble. list.jsp). www.biodiesel.org/pdf_files/fuelfactsheets/ 141 Figures here were taken from National 142 Capital figures derived from USDA production Production_graph_slide.pdf). Biodiesel Board fact sheet dated September 29, cost models. A publication describing USDA

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region).144 A significant portion of the certified.146 Going forward producers chemical processes similar to those 2007 and 2008 production was exported will compete for feedstocks and markets employed in petroleum hydrotreating. to Europe or Asia where fuel prices and will consolidate. During this period the These processes remove oxygen and additional tax subsidies on top of those number of operating plants is expected saturate olefins, converting the provided in the U.S. help cover to shrink, with surviving plants adding triglycerides and fatty acids into transportation overseas and offset high feedstock segregation and pre-treatment paraffins. Renewable diesel typically feedstock costs. The Energy Information capabilities, giving them flexibility to has higher cetane, lower nitrogen, and Administration is beginning to collect process any mix of feedstocks available lower aromatics than petroleum diesel data on biodiesel imports and exports, in their area. By the end of this period fuel, while also meeting stringent sulfur but reports are not expected until later we project a mix of large regional plants standards. in 2009. Therefore precise figures are and some smaller plants taking In comparison to biodiesel, renewable not available on what fraction of advantage of local market niches, with diesel has improved storage, stability, production was consumed domestically, an overall average capacity utilization and shipping properties as a result of but sources familiar with the industry around 80% for dedicated fuel plants. the oxygen and olefins in the feedstock suggest exports may have been as much Table V.B.4–2 summarizes this forecast. being removed. This allows renewable as 200 million gallons in 2007 and See Section 1.5.4 of the DRIA for more 145 diesel fuel to be shipped in existing likely more in 2008. We do not details. petroleum pipelines used for account for any biodiesel exports in our transporting fuels, thus avoiding one analysis, though there will be sufficient TABLE V.B.4–2—SUMMARY OF PRO- significant issue with distribution of plant capacity to produce material JECTED BIODIESEL INDUSTRY CHAR- biodiesel. For more on fuel distribution, beyond the volumes required in the ACTERIZATION USED IN OUR ANAL- refer to Section V.C. EISA should an export market exist. 147 To perform our distribution and YSES Considering that this industry is still emission impacts analyses for this in development and that there are no 2008 2022 proposal, it was necessary to forecast long-term projections of production the state of the biodiesel industry in the Total production capacity volume, we base our production timeframe of the fully-phased-in RFS. In on-line (million gal/yr) .... 2,610 1,050 estimates primarily on the potential general, this consisted of reducing the Number of operating volume of feedstocks for this process, in over-capacity to be much closer to the plants ...... 176 35 the context of recent industry project amount demanded, which we assumed Median plant size (million announcements involving proven to be equal to the requirement under the gal/yr) ...... 5 30 technology. We project that EISA given uncertainties about Total biodiesel production approximately two-thirds of renewable feedstock prices and changes in tax (million gal) ...... 700 810 diesel will be produced at existing Average plant utilization ... 0.27 0.77 incentives in the long term. This was petroleum refineries, and half will be accomplished by considering as co-processed with petroleum (thus screening factors the current production ii. Renewable Diesel prohibiting it from counting as and sales incentives in each state as Renewable diesel is a fuel (or ‘‘biomass-based diesel’’ under the well as each plant’s primary feedstock blendstock) produced from animal fats, EISA). Tables V.B.4–3 and V.B.4–4 type and whether it was BQ–9000 vegetable oils, and waste greases using summarize these volumes.

TABLE V.B.4–3—PROJECTED RENEWABLE DIESEL VOLUMES BY PRODUCTION CATEGORY [Million gallons in 2022]

Existing facility New facility

Co-processed with petroleum ...... 188 — Not co-processed with petroleum ...... 63 125

b. Feedstock Availability prices to rise as demand increases for biofuel via simple transesterification The primary feedstock for domestic biofuels and food uses worldwide. The due to their homogeneity of biodiesel production has historically output of these models suggests that composition and lack of contaminants. been soybean oil, with other plant and domestic soy oil production could Another source of feedstock which animal fats as well as recycled greases support about 550 million gallons per could provide increasing and significant making up a smaller but significant year in 2022. This material is most volume is oil extracted from corn or its portion of the biodiesel pool. likely to be processed by biodiesel co-products in the dry mill ethanol Agricultural commodity modeling we plants due to the large available production process. Sometimes referred have done for this proposal (see Section capacity of these facilities and their to as corn fractionation or dry IX.A) suggests that soybean oil proximity to soybean production. separation, these processes get production will stay relatively flat in the Compared to other feedstocks, virgin additional products of value from the future, causing supplies to tighten and plant oils are more easily processed into dry milling process. This idea is not

144 Derived from figures published in Biodiesel 30, 2008, at http://www.eere.energy.gov/afdc/fuels/ 147 Industry data for 2008 taken from National Magazine, May 2008, p. 39. biodiesel_laws.html. Information on feedstock and Biodiesel Board fact sheets at http:// 145 Staff-level communication with National BQ–9000 status was taken from Biodiesel Board fact www.biodiesel.org/buyingbiodiesel/ _ Biodiesel Board (April 2008). sheet, accessed July 30, 2008, at http:// producers marketers/Producers%20Map- Existing.pdf and http://www.biodiesel.org/pdf_files/ 146 biodiesel.org/pdf_files/fuelfactsheets/ Information on state incentives was taken from fuelfactsheets/Production_graph_slide.pdf (both Producers%20Map%20-%20existing.pdf. U.S. Department of Energy Web site, accessed July accessed April 27, 2009).

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new, as existing wet mill plants create expect this material to be processed in economic sense. Recent market shifts several product streams from their corn biodiesel plants. and changes in tax subsidies enacted input, including oil. Corn fractionation Rendered animal fats and reclaimed after analyses were done for this NPRM can be seen as a way to get some of this cooking oils and greases are another have affected the relative economics of added value without incurring the larger potentially significant source of using waste fats and greases for capital costs and potentially lower biodiesel feedstock. We estimate that biodiesel versus renewable diesel. We ethanol yields associated with wet mill just two to four percent of biodiesel in will reevaluate our assumptions in the plants. More detailed discussion of 2007 was produced from waste cooking FRM. oils and greases, though this number is these processes and how they affect the Our analysis of the countries with the likely higher more recently.149 Tyson co-product stream(s) can be found in most potential to produce and consume Foods, in joint efforts with DRIA Section 1.4.1.3. biodiesel in the future suggests that ConocoPhilips and Syntroleum, supplies of finished biodiesel will be The corn oil process on which we announced construction plans in 2008 tight, and prices of its feedstocks will have chosen to focus for cost and for renewable diesel production remain high. Supplies to the U.S. will volume estimates in this proposal is one facilities to begin operating in 2010 and be limited by biofuel mandates and that extracts oil from the thin stillage producing up to 175 million gallons targets of other countries, preferential annually (combined capacity). By the after fermentation (the non-ethanol shipment of biodiesel to European and end of our projection period, as much as liquid material that typically becomes Asian nations, and the speed at which 30% of rendered fats and waste grease part of distillers’ grains with solubles). non-traditional crops such as jatropha could be converted to biofuel while still We believe installation of this type of can be developed. Thus, we cannot at supporting production of pet food, equipment will be attractive to industry this time project more than negligible because it can be added onto an existing soaps and detergents, and other oleochemicals.150 We request comment amounts of biodiesel or its feedstocks dry mill plant and does not impact being available for import into the U.S. ethanol yields since it does not process from members of these industries on any potential impacts of diversion of in the future. For more discussion of the corn prior to fermentation. international movement of biodiesel and Depending on the configuration, such a rendered materials to biofuel. Under this assumption, this material its feedstocks, refer to Section 1.1 of the system can extract 20–50% of the oil could make approximately 500 million DRIA. from the co-product streams, and gallons of biofuel (though we have not Table V.B.4–4 shows the projected produces a distressed corn oil (non- chosen to allocate all of it in our potential contribution of these sources food-grade, with some free fatty acids analyses here). We estimate this type of we have chosen to quantify. Other and/or oxidation by-products) product material could be most economically potential, but less certain, sources for stream which can be used as feedstock made into renewable diesel in the long biodiesel feedstocks include conversion by biodiesel facilities. Since it offers term, as that process does not have the of some existing croplands used for another stream of revenue, we believe it same sensitivities to free fatty acids and soybeans to higher-yielding oilseed is reasonable to expect about 40% of other contaminates typically present in crops. Production of oil from algae projected total ethanol production to waste greases as the biodiesel process; farms is also being investigated by a implement some type of oil extraction however, some amount of this material number of companies and universities process by 2022, generating may continue to be processed in as a source of biofuel feedstock. For approximately 150 million gallons per biodiesel plants that have acid additional discussion of such sources, year of corn oil biofuel feedstock.148 We pretreatment capabilities where it makes refer to Section 1.1 of the DRIA.

TABLE V.B.4–4—ESTIMATED POTENTIAL BIODIESEL AND RENEWABLE DIESEL VOLUMES IN 2022 [Million gallons of fuel]

Biomass-based diesel Other advanced biofuel Renewable Biodiesel diesel Renewable diesel

Virgin plant oils ...... 660 — — Corn fractionation ...... 150 — — Rendered fats and greases ...... — 188 188

C. Renewable Fuel Distribution of biofuel distribution, we took into facilitate the movement of petroleum- account the projected size and location based fuels. Consequently, there are The following discussion pertains to of biofuel production facilities and very efficient pipeline-terminal the distribution of biofuels. A where we project biofuels would be networks that move large volumes of discussion of the distribution of biofuel used.151 petroleum-based fuels from production/ feedstocks and co-products is contained The current motor fuel distribution import centers on the Gulf Coast and the in Section 1.3.3 and 5.1 of the DRIA Northeast into the heartland of the respectively. In conducting our analysis infrastructure has been optimized to

148 See Table 3 in Mueller, Steffen. An analysis 149 Based on plant capacities reported by the 151 The location of biofuel production facilities of the projected energy use of future dry mill corn National Biodiesel Board and data reported by F.O. and where biofuels would be used is discussed in ethanol plants (2010–2030). October 10, 2007. Licht. Sections 1.5 and 1.7 of the DRIA respectively and Available at http://www.chpcentermw.org/pdfs/ 150 Based on statements from the National earlier in this Section V of the preamble. 2007CornEthanolEnergySys.pdf. Renderer’s Association.

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country. In contrast, the majority of EPA will continue to participate/ existing pipelines for biofuel renewable fuel is expected to be monitor these efforts as appropriate to distribution.158 produced in the heartland of the keep abreast of potential problems in country and will need to be shipped to the biofuel distribution system which 1. Overview of Ethanol Distribution the coasts, flowing roughly in the might interfere with the use of the Pipelines are the preferred method of opposite direction of petroleum-based volumes of biofuels that we project will shipping large volumes of petroleum fuels. This limits the ability of be needed to comply with the RFS2 products over long distances because of renewable fuels to utilize the existing standards. The 2008 Farm Act (Title IX) the relative low cost and reliability. fuel distribution infrastructure. requires USDA, DOE, DOT, and EPA to Ethanol is currently not commonly The modes of distributing renewable conduct a biofuels infrastructure study shipped by pipeline because it can fuels to the end user vary depending on that will assess infrastructure needs, constraints arising from their physical/ analyze alternative development cause stress corrosion cracking in chemical nature and their point of approaches, and provide pipeline walls and its affinity for water origination. Some fuels are compatible recommendations for specific and solvency can result in product 159 with the existing fuel distribution infrastructure development actions to be contamination concerns. Shipping system, while others currently require taken.154 ethanol in pipelines that carry distillate fuels as well as gasoline also presents segregation from other fuels. The Considerations related to the location of renewable fuel production distribution of ethanol, biodiesel, and unique difficulties in coping with the plants is also often dictated by the need renewable diesel are discussed in the volumes of a distillate-ethanol mixture 160 to be close to the source of the following sections as well as the which would typically result. It is not feedstocks used rather than to fuel changes to each segment in the possible to re-process this mixture in demand centers or to take advantage of distribution system that would be the way that diesel-gasoline mixtures the existing petroleum product needed to support the volumes of these resulting from pipeline shipment are distribution system. Hence, the biofuels that we project would be used currently handled.161 Substantial testing distribution of renewable fuels raises to satisfy the RFS2 standards.155 We and analysis is currently underway to unique concerns and in many instances request comments on the challenges that resolve these concerns so that ethanol requires the addition of new will be faced by the fuel distribution may be shipped by pipeline either in a transportation, storage, blending, and system under the RFS2 standards and batch mode or blended with petroleum- retail equipment. on what steps will be necessary to based fuel.162 By the time of the Significant challenges must be faced facilitate making the necessary publication of this proposal, results of in reconfiguring the distribution system accommodations in a timely fashion.156 these evaluations may be available to accommodate the large volumes of To the extent that biofuels other than regarding what actions are necessary by ethanol and to a lesser extent biodiesel ethanol and biodiesel are produced in multi-product pipelines to overcome that we project will be used. While response to the RFS2 standards, this safety and product contamination some uncertainties remain, particularly might lessen the need for added concerns associated with shipping 10% with respect to the ability of the market segregation during distribution. ethanol blends. A short gasoline to support the use of the volume of E85 Distillate fuel produced from cellulosic needed, no technical barriers appear to pipeline in Florida has begun shipping feedstocks might be treated as be insurmountable. The response of the petroleum-based diesel fuel blendstocks 158 transportation system to date to the The projected location of biofuel plants would or a finished distillate fuel in the not be affected by the choice of whether they are unprecedented increase in ethanol use distribution system. Likewise, bio- designed to produce ethanol, distillate fuel, bio- is encouraging. A U.S. Department of gasoline or bio-butanol could gasoline, or butanol. Proximity to the feedstock Agriculture (USDA) report concluded would continue to be the predominate potentially be treated as petroleum- that logistical concerns have not consideration. The use of pipelines is being based gasoline blendstocks.157 This also considered for the shipment of bio-oils hampered the growth in ethanol might open the possibility for additional manufactured from cellulosic feedstocks to production, but that concerns may arise transport by pipeline. However, the refineries where they could be converted into about the adequacy of transportation renewable diesel fuel or renewable gasoline. The location of plants that produce such infrastructure as the growth in ethanol distribution of biofuel feedstocks is discussed in biofuels relative to petroleum pipeline production continues.152 Section 1.3 of the DRIA. origination points would continue to be 159 Stress corrosion cracking could lead to a Considerable efforts are underway by an issue limiting the usefulness of pipeline leak. The potential impacts on water from individual companies in the fuel today’s proposal are discussed in Section X of distribution system, consortiums of today’s preamble. such companies, industry associations, biofuel distribution from a broad range of 160 Different grades of gasoline and diesel fuel are governmental agencies. (2) The National typically shipped in multi-product pipelines in independent study groups, and inter- Commission on Energy Policy, an independent batches that abut each other. To the extent possible, agency governmental organizations to advisory group, has formed a task group of fuel products are sequenced in a way to allow the evaluate what steps may be necessary to distribution experts to make recommendations on interface mixture between batches to be cut into one facilitate the necessary upgrades to the the steps needed to facilitate the distribution of of the adjoining products. In cases where diesel fuel biofuels. (3) The Association of Oil Pipelines is abuts gasoline in the pipeline, the resulting mixture distribution system to support conducting research to evaluate what steps are must typically be reprocessed into its component 153 compliance with the RFS2 standards. necessary to allow the distribution of ethanol parts by distillation for resale as gasoline and diesel blends by pipeline. fuel. 152 ‘‘Ethanol Transportation Backgrounder, 154 http://www.ers.usda.gov/FarmBill/2008/ 161 Gasoline-ethanol mixtures can be blended into Expansion of U.S. Corn-based Ethanol from the Titles/TitleIXEnergy.htm#infrastructure. finished gasoline. Agricultural Transportation Perspective’’, USDA, 155 Additional discussion can be found in Section 162 Association of Oil Pipelines: http://aopl.org/ September 2007, http://www.ams.usda.gov/tmd/ 1.6 of the DRIA. go/searchresults/888/?q=ethanol&sd=&ed=. TSB/EthanolTransportationBackgrounder09-17- 156 The costs associated with making the ‘‘Hazardous Liquid Pipelines Transporting Ethanol, 07.pdf. necessary changes to the fuel distribution Ethanol Blends, and Other Biofuels’’, Notice of 153 For example: (1) The Biomass Research and infrastructure are discussed in Section VIII.B of policy statement and request for comment, Pipeline Development Board, a government study group, has today’s preamble. and Hazardous Materials Safety Administration, formed a task group on biofuels distribution 157 Biogasoline might also potentially be treated Department of Transportation, August 10, 2007, 72 infrastructure that is composed of experts on as finished fuel. FR 45002.

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batches of ethanol.163 Thus, existing concentrated in the Midwest due to the ethanol production facilities for petroleum pipelines in some areas of the siting of cellulosic ethanol plants, this shipment by unit train. Regional (Class country might play a role in the would tend to help justify the cost of 2) railroad companies are an important shipment of ethanol from the points of installing a dedicated ethanol pipeline. link bringing ethanol to gathering production/importation to petroleum Substantial issues would need to be facilities for assembly into unit trains terminals. addressed before construction on such a for long-distance shipment by larger However, the location of ethanol pipeline could proceed, including those (Class 1) railroads. Ethanol is sometimes plants in relation to existing pipeline associated with securing new rights-of- carried by multiple modes before finally origination points will limit the role of ways and establishing sufficient surety arriving at the terminal where it is existing pipelines in the shipment of regarding the return on the several blended into gasoline. For example, ethanol.164 Current corn ethanol billion dollar investment. some ethanol is currently shipped from production facilities are primarily Due to the uncertainties regarding the the Midwest to a hub terminal on the located in the Midwest far from the degree to which pipelines will be able East Coast by unit train where a portion origination points of most existing to participate in the transportation of is further shipped to satellite terminals product pipelines and the primary ethanol, we assumed that ethanol will by barge or tank truck. gasoline demand centers. We project continue to be transported by rail, barge, Ethanol is blended into gasoline at that a substantial fraction of future and truck to the terminal where it will either 10 or 85 volume percent at cellulosic ethanol plants will also be be blended into gasoline. The terminals (to produce E10 and E85) for located in the Midwest, although a distribution by these modes can be delivery to retail and fleet facilities by greater proportion of cellulosic plants further optimized primarily through the tank truck. Special retail delivery are expected to be dispersed throughout increased shipment by unit train and hardware is needed for E85 which can the country compared to corn ethanol installation of additional hub delivery be used in flexible fuel vehicles only.169 plants. The projected locations for this terminals that can accept large volumes The large volume of ethanol that we subset of future cellulosic ethanol plants of ethanol for further distribution to project will be used by 2022 means that more closely coincide with the satellite terminals. To the extent that more ethanol will need to be used than origination points of product pipelines pipelines do eventually play a role in can be accommodated by blending to in the Gulf Coast.165 Imported ethanol the distribution of ethanol, this could the current legal limit of 10% in all of could also be brought into ports near the tend to reduce distribution costs and the gasoline used in the country. This origination point of product pipelines in improve reliability in supply. will require the installation of a the Gulf Coast and the Northeast. USDA estimated that in 2005 substantial number of new E85 refueling Nevertheless, the majority of ethanol approximately 60% of ethanol was facilities and the addition of a will continue to be produced at transported by rail, 30% was substantial number of flex-fuel vehicles locations distant from the origination transported by tank truck, and 10% was to the fleet. Concerns have been raised points of product pipelines and gasoline transported by barge.167 Denatured regarding the inducements that would demand centers. The gathering of ethanol is shipped from production/ be necessary for retailers to install the ethanol from production facilities import facilities to petroleum terminals needed E85 facilities and for consumers located in the Midwest and shipment by where it is blended with gasoline. When to purchase E85.170 As discussed in barge down the Mississippi for practicable, shipment by unit train is Section V.D. of today’s preamble, this is introduction to pipelines in the Gulf the preferred method of rail shipment prompting many to evaluate whether a Coast is under consideration. However, rather than shipping on a manifest rail mid-level ethanol blend (e.g. E15) might the additional handling steps to bring car basis. The use of unit trains, be allowed for use in existing (non-flex- the ethanol to the pipeline origin points sometimes referred to as a virtual fuel) vehicles. Current refueling in this manner could negate any pipeline, substantially reduces shipping equipment (not designed for E85) is potential benefit of shipment by existing costs and improves reliability. Unit only certified for ethanol blends up to petroleum pipelines compared to direct trains are composed entirely of 70–100 10 volume percent (E10).171 Hence, if a shipment by rail. ethanol tank cars, and are dedicated to mid-level ethanol blend were to be Evaluations are also currently shuttle back and forth to large hub introduced, fuel retail facilities would underway regarding the feasibility of terminals.168 Manifest rail car shipment need to ensure that the equipment used constructing a new dedicated ethanol refers to the shipment of ethanol in rail to store/dispense mid-level ethanol pipeline from the Midwest to the East tank cars that are incorporated into Coast.166 Under such an approach, trains which are composed of a variety 169 The cost of retail dispensing hardware which ethanol would be gathered from a of other commodities. Unit trains can be is tolerant to ethanol blends greater than E10 is discussed in Section VIII.B. of today’s preamble and number of Midwest production facilities assembled at a single ethanol discussed in more detail in Section 4.2 of the DRIA. to provide sufficient volume to justify production plant or if a group of plants 170 See Section V.D of today’s preamble for a pipeline operation. To the extent that is not large enough to support such discussion of issues related to use of the projected ethanol production would be further service individually, can be formed at a volumes of ethanol that would be produced to central facility which gathers ethanol comply with the RFS2 standards. 171 Underwriters Laboratory certifies retail 163 Article on shipment of ethanol in Kinder from a number of producers. The Manly refueling equipment. UL stated that they have data Morgan pipeline: http://www.ethanolproducer.com/ _ Terminal in Iowa, which is the first which indicates that the use of fuel dispensers article.jsp?article id=5149. such ethanol gathering facility, accepts certified for up to E10 blends to dispense blends up 164 Some small petroleum product refineries are ethanol from a number of nearby to a maximum ethanol content of 15 volume currently limited in their ability to ship products percent would not result in critical safety concerns by pipeline because their relatively low volumes (http://www.ul.com/newsroom/newsrel/ were not sufficient to justify connection to the 167 ‘‘Ethanol Transportation Backgrounder, nr021909.html). Based on this, UL stated that it pipeline distribution system. Expansion of U.S. Corn-based Ethanol from the would support authorities having jurisdiction who 165 A discussion of the projected location of Agricultural Transportation Perspective’’, USDA, decide to permit legacy equipment originally cellulosic ethanol plants is contained in Section 1.5 September 2007, http://www.ams.usda.gov/tmd/ certified for up to E10 blends to be used to dispense of the DRIA. TSB/EthanolTransportationBackgrounder09-17- up to 15 volume percent ethanol. The UL 166 Magellan and Poet joint assessment of 07.pdf. announcement did address the compatibility of dedicated ethanol pipeline: http:// 168 Hub ethanol receipt terminals can be located underground storage tank systems with greater than www.magellanlp.com/news/2009/20090316_5.htm. at large petroleum terminals or at rail terminals. E10 blends.

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blends is compatible with the mid-level feedstocks shipped to biodiesel plants 3. Overview of Renewable Diesel ethanol blend.172 Underwriters relative to ethanol plants, and has Distribution Laboratories has one certification allowed some biodiesel plants to be We believe that renewable diesel fuel standard for fuel retail equipment that located adjacent to petroleum terminals. will be confirmed to be sufficiently covers ethanol blends up to 10%, and a Biodiesel production facilities are more similar to petroleum-based diesel fuel separate certification standard for geographically dispersed than ethanol blendstocks with respect to distribution equipment that dispenses ethanol facilities and the production volumes system compatibility. Hence, renewable 173 blends above 10% (including E85). also tend to be smaller than ethanol diesel fuel could be treated in the same Should other biofuels be introduced facilities.175 These characteristics in manner as any petroleum-based diesel that do not require differentiation from combination with the smaller volumes fuel blendstock with respect to transport diesel fuel or gasoline in place of some of biodiesel that we project will be used in the existing petroleum distribution of the volume of ethanol that we project under the RFS2 standards compared to system. Approximately two-thirds of would be used under the RFS2 renewable diesel fuel is projected to be standards, this may tend to reduce the ethanol allow relatively more biodiesel to be used within trucking distance of produced at petroleum refineries.177 need for changes at fuel retail facilities The transport of such renewable diesel and the need for flex-fuel vehicles. the production facility. However, we project that there will continue to be a fuel would not differ from petroleum- Concerns about the difficulties/costs based diesel fuel since it would be associated with expanding the ethanol strong and growing demand for biodiesel as a blending component in blended to produce a finished diesel distribution infrastructure and adding a fuel before leaving the refinery. The sufficient number of vehicles capable of heating oil which could not be satisfied alone by local sources of production. It other one-third of renewable diesel fuel using 10% ethanol to fleet is generating is projected to be produced at stand- is likely that state biodiesel mandates increased industry interest in renewable alone facilities located more closely to will also need to be satisfied in part by diesel and gasoline which would be sources of feedstocks. We anticipate that more transparent to the existing fuel out-of-state production. Fleets are also such renewable diesel fuel would be distribution system. likely to continue to be a substantial shipped by tank truck to nearby biodiesel user, and these will not always 2. Overview of Biodiesel Distribution petroleum terminals where it would be be located close to biodiesel producers. blended directly into diesel fuel storage Biodiesel is currently transported Thus, we are assuming that a substantial from production plants by truck, tanks. Because of its high cetane and fraction of biodiesel will continue to be value, we anticipate that all renewable manifest rail car, and by barge to shipped long distances to market. petroleum terminals where it is blended diesel fuel would likely be blended with Downstream of the petroleum terminal, petroleum based diesel fuel prior to use. with petroleum-based diesel fuel. B2 and B5 can be distributed in the Unblended biodiesel must be Downstream of the terminal, renewable/ same manner as petroleum diesel. transported and stored in insulated/ petroleum diesel fuel mixtures would be heated containers in colder climes to Concerns remain regarding the distributed the same as petroleum prevent gelling. Insulated/heated shipment of biodiesel by pipeline diesel. containers are not needed for biodiesel (either by batch mode or in blends with 4. Changes in Freight Tonnage that has been blended with petroleum- diesel fuel) related to the contamination Movements of other products (particularly jet fuel), based diesel fuel (i.e., B2, B5). Biodiesel To evaluate the magnitude of the plants are not as dependent on being the solvency of biodiesel, and challenge to the distribution system up located close to feedstock sources as are compatibility with pipeline gaskets and to the point of receipt at the terminal, 174 176 corn and cellulosic ethanol plants. seals. The smaller anticipated we compared the growth in freight Biodiesel feedstocks are typically volumes of biodiesel and the more tonnage for all commodities from the preprocessed to oil prior to shipment to dispersed and smaller production AEO 2007 reference case to the growth biodiesel production facilities. This can facilities relative to ethanol also make in freight tonnage under the RFS2 substantially reduce the volume of biodiesel a less attractive candidate for standards in which ethanol increases, as shipment by pipeline. Due to the does the feedstock (corn) and co- 172 Although it has yet to be established, most uncertainties regarding the suitability of underground steel storage tanks themselves would products (distillers grains). We did not likely be compatible with ethanol blends greater transporting biodiesel by pipeline, we include a consideration of the than 10 percent. The compatibility of piping, assumed that biodiesel which needs to distribution of cellulosic ethanol submersed pumps, gaskets, and seals associated be transported over long distance will feedstocks on freight tonnage for the with these tanks with ethanol blends greater than be carried by manifest rail car and to a 10% would also need to be evaluated. Some proposal. We intend to evaluate this in fiberglass tanks are incompatible and would need lesser extent barge. Due to the relatively the final rule. For purposes of this to be replaced. It is difficult and sometimes small plant size and dispersion of analysis, we focused on only the ethanol impossible to verify the suitability of underground biodiesel plants, we anticipate the portion of the renewable fuel goals for storage tanks and tank-related equipment for E85 use. The State of California prohibits the conversion volumes of biodiesel that can be ease of calculation and because ethanol of underground storage tanks to E85 use. Significant gathered at a single location will represents the vast majority of the total changes to dispensers, including hoses, nozzles, continue to be insufficient to justify volume of biofuel. The resulting and other miscellaneous fittings would be needed shipment by unit train. To the extent calculations serve as an indicator of to ensure they are compatible with ethanol blends greater than 10 percent. that pipelines do eventually play a role changes in freight tonnages associated 173 Joint UL/DOE Legacy System Certification in the distribution of biodiesel, this with increases in renewable fuels. We Clarification http://www.ul.com/global/eng/ could tend to reduce distribution costs calculated the freight tonnage for the documents/offerings/industries/chemicals/ and improve reliability in supply. total of all modes of transport as well as flammableandcombustiblefluids/development/ the individual cases of rail, truck, and UL_DOE_LegacySystemCertification.pdf. 174 Biodiesel feedstocks are typically 175 Section 1.2 contains a discussion of our barge. preprocessed to oil prior to shipment to biodiesel projections regarding the location of biodiesel production facilities. This can substantially reduce production facilities. 177 Either co-processed with crude oil or the volume of feedstocks shipped to biodiesel 176 Industry evaluations are currently underway processed in separate units at the refinery for plants relative to ethanol plants. to resolve these concerns. blending with other refinery diesel blendstocks.

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In calculating the reference case ORNL study did identify localized areas The City of Chicago commissioned its percent growth rate in total freight where significant upgrades to the rail own analysis of rail capacity and tonnage, we used data compiled by the distribution system would likely be congestion, which found that the lack of Federal Highway Administration to needed. rail capacity is ‘‘no longer limited to a calculate the tonnages associated with few choke points, hubs, and heavily 5. Necessary Rail System these commodities.178 We then utilized corridors.’’ Instead, the report Accommodations calculated the growth in freight tonnage finds, the lack of rail capacity is for 2022 under the RFS2 standards and Many improvements to the freight rail ‘‘nationwide, affecting almost all the compared the difference with the system will be required in the next 15 nation’s critically important trade reference case. The comparisons years to keep pace with the large gateways, rail hubs, and intercity freight indicate that across all transport modes, increase in the overall freight demand. corridors.’’ the incremental increase in freight Improvements to the freight railroad Significant private and public tonnage of ethanol and accompanying infrastructure will be driven largely by resources are focused on making the feedstocks and co-products associated competition in the burgeoning inter- modifications to the rail system to cope with the increased ethanol volume model transport sector. As inter-model with the increase in demand. Rail under the RFS2 standards are small. The freight represents the vast majority of all carriers report that they typically invest percent increase for total freight across freight hauled by these railroads, the $16 to $18 billion a year in all modes (including pipeline) by 2022 biofuels transport sector can be infrastructure improvements.181 is 0.9 percent. Because pipelines expected to benefit from the Substantial government loans are also currently do not carry ethanol, and the infrastructure build-out resulting from available to small rail companies to help increase in the volume of ethanol used inter-model transport sector make needed improvements by way of in motor vehicles displaces a competition. As such, most of the the Railroad Rehabilitation and corresponding volume of gasoline, needed upgrades to the rail freight Improvement Finance (RRIF) Program, pipelines showed a decrease in the total system are not specific to the transport administered by Federal Railroad tonnage carried due to a decrease in the of renewable fuels and would be needed Administration (FRA), as well as volume of gasoline carried by pipeline. irrespective of today’s proposed rule. Section 45G Railroad Track The displaced gasoline also resulted in We also expect that the excess rail Maintenance Credits, offered by the some decrease in tonnage in other capacity associated with inter-model Internal Revenue Service (IRS). The modes that slightly reduced the overall build-out to be adequately large to American Association of State Highway increases in tonnage reflected in the absorb potential increases in truck Transportation Officials (AASHTO) totals. transport associated with fuel cost estimates that between $175 billion and To further evaluate the magnitude of increases. The modifications required to $195 billion must be invested over a 20- the increase in freight tonnage under the satisfy the increase in demand include year period to upgrade the rail system RFS2 standards, we calculated the upgrading tracks to allow the use of to handle the anticipated growth in portion of the total freight tonnage for heavier trains at faster speeds, the freight demand, according to the rail, barge, and truck modes made up of modernization of train braking systems report’s base-case scenario.182 The ethanol-related freight for both the 2022 to allow for increased traffic on rail report suggests that railroads should be and control cases. The freight associated lines, the installation of rail sidings to able to provide up to $142 billion from with ethanol constitutes only a very facilitate train staging and passage revenue and borrowing, but that the small portion of the total freight tonnage through bottlenecks. remainder would have to come from for all commodities. Specifically, Some industry groups 180 and other sources including, but not limited, ethanol freight represents approximately governmental agencies in discussions to loans, tax credits, sale of assets, and 0.5% and 2.5% of total freight for the with EPA, and in testimony provided other forms of public-sector reference case and RFS2 standards case, for the Surface Transportation Board participation. Given the reported respectively. The results of this analysis (STB) expressed concerns about the historical investment in rail suggest that it should be feasible for the ability of the rail system to keep pace infrastructure, it may be reasonable to distribution infrastructure upstream of with the large increase in demand even assume that rail carriers would be able the terminal to accommodate the under the reference case (27% by 2022). to manage the $7.1 billion in annual additional freight associated with this For example, the electric power investment from rail carriers that RFS2 standards especially given the industry has had difficulty keeping AASHTO projects would be needed to lead time available. Specific issues sufficient stores of coal in inventory at keep pace with the projected increase in related to transportation by rail, barge, power plants due to rail transport freight demand. and tank truck are discussed in the difficulties and has expressed concerns However, the Government Accounting following sections. We intend to that this situation will be exacerbated if Office (GAO) found that it is not incorporate the results of a recently rail congestion worsens. One of the possible to independently confirm completed study by Oak Ridge National more sensitive bottleneck areas with statements made by Class I rail carriers Laboratory (ORNL) on the potential respect to the movement of ethanol from regarding future investment plans.183 In constraints in ethanol distribution into the Midwest to the East coast is Chicago. the analysis for the final rule.179 The 181 ‘‘The Importance of Adequate Rail ORNL study concluded that the increase 180 Industry groups include the Alliance of Investment’’, Association of American Railroads, _ in ethanol transport would have Automobile Manufacturers, American Chemistry http://www.aar.org/GetFile.asp?File ID=150. 182 minimal impacts on the overall Council, and the National Industrial Transportation AASHTO Freight-Rail Bottom-Line Report, League; governmental agencies include the Federal 2003. transportation system. However, the Railroad Administration (FRA), the Government 183 The railroads interviewed by GAO were Accountability Office (GAO), and the American generally unwilling to discuss their future 178 http://www.ops.fhwa.dot.gov/freight/ Association of State Highway Transportation investment plans with the GAO. Therefore, GAO freight_analysis/faf/index.htm. Officials (AASHTO). Testimony for the STB public was unable to comment on how Class I freight rail 179 ‘‘Analysis of Fuel Ethanol Transportation hearings includes Ex Parte No. 671, Rail Capacity companies are likely to choose among their Activity and Potential Distribution Constraints’’, and Infrastructure Requirements and Ex Parte No. competing investment priorities for the future, prepared for EPA by Oak Ridge National 672, Rail Transportation and Resources Critical to including those of the rail infrastructure, GAO Laboratory, March 2009. the Nation’s Energy Supply. Continued

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addition, questions persist regarding number of ethanol-specific fashion. A recently completed report by allocation of these investments, with the modifications will be needed. For ORNL identifies specific segments of the Alliance of Automobile Manufacturers, instance, a number of additional rail rail system which would likely see the American Chemistry Council, National terminals are likely to be configured for most significant increase in traffic due Industrial Transportation League, and receipt of unit trains of ethanol for to increased shipments of ethanol under others expressing concern that their further distribution by tank truck or the EISA.186 infrastructural needs may be neglected other means to petroleum terminals. 6. Necessary Marine System by the Class I railroads in favor of more The placement of ethanol unit train Accommodations lucrative intermodal traffic. Moreover, receipt facilities at rail terminals would the GAO has raised questions regarding be particularly useful in situations The American Waterway’s the competitive nature and extent of where petroleum terminals might find it Association has expressed concerns Class I freight rail transport. This raises difficult or impossible to install their about the need to upgrade the inland some concern that providing sufficient own ethanol rail receipt capability. We waterway system in order to keep pace resources to facilitate the transport of anticipate that ethanol storage will with the anticipated increase in overall increasing volumes of ethanol and typically be installed at rail terminal freight demand. The majority of these biodiesel might not be a first priority for ethanol receipt hubs over the long run. concerns have been focused on the need rail carriers. In response to GAO We do not anticipate that the rail to upgrade the river lock system on the concerns, the Surface Transportation industry will experience substantial Mississippi River to accommodate Board (STB) agreed to undertake a difficulty in installing such ethanol- longer barge tows and on dredging rigorous analysis of competition in the specific facilities once a clear long term inland waterways to allow for freight railroad industry.184 demand for ethanol in the target markets movement of fully loaded vessels. We Given the broad importance to the has been established to justify the do not anticipate that a substantial U.S. economy of meeting the anticipated investment. However, the need for long- fraction of renewable/alternative fuels increase in freight rail demand, and the term demand to be established prior to will be transported via these arteries. substantial resources that seem likely to the construction of such facilities will Thus, we do not believe that the ability be focused on this cause, we believe that likely mean that the needed facilities to ship ethanol/biodiesel by inland overall freight rail capacity would not will, at best, come on-line on a just-in- marine will represent a serious barrier be a limiting factor to the successful time basis. This may lead to use of less to the implementation of implementation of the biofuel efficient means of ethanol transport in implementation of the requirements requirements to meet the RFS2 the short term. The ability to rely on under RFS2 standards. Substantial standards. Evidence from the recent transloading while ethanol storage quantities of the corn ethanol co- ramp up of ethanol use has also shown facilities at rail terminal ethanol receipt product dried distiller grains (DDG) is that rail carriers are enthusiastically hub facilities are constructed will speed expected to be exported from the pursuing the shipment of ethanol. Class the optimization of the distribution of Midwest via the Mississippi River as the 2 railroads have been particularly active ethanol by rail by allowing the U.S. demand for DDG becomes in gathering sufficient numbers of construction of ethanol storage at rail saturated. We anticipate that the volume ethanol cars to allow Class 1 railroads terminal hubs to be delayed. of exported DDG would take the place to ship ethanol by unit train. Likewise, We estimate that a total of 44,000 rail of corn that would be shifted from we believe that that Class 2 railroads cars would be needed to distribute the export to domestic use in the and, to a lesser extent, the trucking volumes of ethanol and biodiesel that production of ethanol. Thus, we do not industry, will play a key role in the we project would be used in 2022 to expect the increase in DDG exports to transportation of DDGs and other satisfy the RFS2 requirements.185 Our result in a substantial increase in river byproducts from regions with analysis of ethanol and biodiesel rail car freight traffic. We request comment on concentrated ethanol production production capacity indicates that the extent to which marine transport facilities to those with significant access to these cars should not represent may be used in the transport of livestock operations. Based on this a serious impediment to meeting the cellulosic ethanol feedstocks. recent experience, we believe that requirements under the RFS2 standards. 7. Necessary Accommodations to the ethanol will be able to compete Ethanol tank car production has Road Transportation System successfully with other commodities in increased approximately 30% per year Concerns have been raised regarding securing its share of freight rail service. since 2003, with over 21,000 tank cars While many changes to the overall the ability of the trucking industry to expected to be produced in 2007. The attract a sufficient number of drivers to freight rail system are expected to occur volume of these newly-produced tank irrespective of today’s proposed rule, a handle the anticipated increase in truck cars, coupled with that of an existing freight.187 The American Trucking tank car fleet already dedicated to Association projected the need for testimony Before the Subcommittee on Surface ethanol and biodiesel transport, suggests Transportation and Merchant Marine, Senate additional 54,000 drivers each year. We Committee on Commerce, Science, and that an adequate number of these tank estimate that the growth in the use of Transportation, U.S. Senate, Freight Railroads cars will be in place to transport the biofuels through 2022 due to the RFS2 Preliminary Observations on Rates, Competition, proposed renewable fuel volume standards would result in the need for and Capacity Issues, Statement of JayEtta Z. Hecker, requirements in the time available. a total of approximately 3,000 Director, Physical Infrastructure Issues, GAO, GAO– We request comment on the extent to 06–898T (Washington, DC: June, 21, 2006). 184 GAO, Freight Railroads: Industry Health Has which the rail system will be able to 186 ‘‘Analysis of Fuel Ethanol Transportation Improved, but Concerns about Competition and deliver the additional volumes of Activity and Potential Distribution Constraints’’, Capacity Should Be Addressed, GAO–07–94 ethanol and biodiesel that we anticipate prepared for EPA by Oak Ridge National (Washington, DC: Oct. 6, 2006); GAO, Freight would be used in response to the RFS2 Laboratory, March 2009. Railroads: Updated Information on Rates and Other 187 ‘‘The U.S. Truck Driver Shortage: Analysis and Industry Trends, GAO–07–291R Freight Railroads standards in a timely and reliable Forecasts’’, Prepared by Global Insights for the (Washington, DC: Aug. 15, 2007). STB’s final report, American Trucking Association, May 2005. http:// entitled Report to the U.S. STB on Competition and 185 A discussion of how we arrived at the www.truckline.com/NR/rdonlyres/E2E789CF–F308– Related Issues in the U.S. Freight Railroad Industry, estimated number of tank cars needed is contained 463F–8831–0F7E283A0218/0/ is expected to be completed November, 1, 2008. in Section 4.2 of the DRIA. ATADriverShortageStudy05.pdf.

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additional trucks drivers. Given the used in spark ignition motor vehicles is place where it is sold. We understand relatively small number of new truck expected to remain relatively constant that some parties may be blending drivers needed to transport the volumes through 2022. Thus, much of the butanes and or pentanes into gasoline of biofuels needed to comply with the demand for new ethanol and biodiesel before it is blended with denatured RFS2 standards through 2022 compared storage could be accommodated by ethanol in order to meet ASTM to the total expected increase in demand modifying storage tanks previously used minimum volatility specifications for for drivers over the same time period for the gasoline and petroleum-based E85 that were set to ensure proper (>750,000), we do not expect that the diesel fuels that would displaced by drivability, particularly in the winter.190 implementation of the RFS2 standards ethanol and biodiesel. The areas served If terminal operators add blendstocks to would substantially impact the potential by existing terminals also often overlap. finished gasoline for use in for a shortage of truck drivers. However, In such cases, one terminal might be manufacturing E85, the terminal specially certified drivers are required space constrained while another serving operator would need to register as a to transport ethanol and biodiesel the same area may be able to install the refiner with EPA and meet all because these fuels are classified as additional capacity to meet the increase applicable standards for refiners. hazardous liquids. Thus, there may be a in demand. Terminals with limited Recent testing has shown that much heightened level of concern about the ethanol storage (or no access to rail/ of in-use E85 does not meet minimum ability to secure a sufficient number of barge ethanol shipments) could receive ASTM volatility specifications.191 such specially certified tank truck truck shipments of ethanol from However, it is unclear if noncompliance drivers to transport ethanol and terminals with more substantial ethanol with these specifications has resulted in biodiesel. The trucking industry is storage (and rail/barge receipt) capacity. a commensurate adverse impact on involved in efforts to streamline the The trend towards locating ethanol drivability. This has prompted a re- certification of drivers for hazardous receipt and storage capability at rail evaluation of the fuel volatility liquids transport and more generally to terminals located near petroleum requirements for in-use E85 vehicles attract and retrain a sufficient number of terminals is likely to be an important and whether the ASTM E85 volatility new truck drivers. factor in reducing the need for large specifications might be relaxed.192 For Truck transport of biofuel feedstocks volume ethanol receipt and storage the purpose of our analysis, we are to production plants and finished facilities at petroleum terminals. In assuming that certified gasoline biofuels and co-products from these cases where it is impossible for existing currently on hand at terminals can be plants is naturally concentrated on terminals to expand their storage used to make up the non-ethanol routes to and from these production capacity due to a lack of adjacent portion of E85.193 plants. This may raise concerns about available land or difficulties in securing We request comment on the extent the potential impact on road congestion the necessary permits, new satellite that this will be the case in light of the and road maintenance in areas in the storage or new separate terminal projected outcome of the ASTM process. proximity of these facilities. We do not facilities may be needed for additional Comment is requested on the fraction of expect that such potential concerns ethanol and biodiesel storage. However, terminals that currently have butane/ would represent a barrier to the we believe that there would be few such pentane blending capability and the implementation of the RFS2 standards. situations. logistical/cost implications of adding The potential impact on local road Another question is whether the such capability including sourcing and infrastructure and the ability of the road storage tank construction industry transportation issues associated with network to be upgraded to handle the would be able to keep pace with the supplying these blending components to increased traffic load is an inherent part increased demand for new tanks that the terminal for the purpose of blending in the placement of new biofuel would result from today’s proposal. The E85 to ASTM specifications. We also production facilities. Consequently, we storage tank construction industry seek comment on whether we should expect that any issues or concerns recently experienced a sharp increase in include a separate section in the RFS2 would be dealt with at the local level. demand after years of relatively slack regulations to specify the requirements We request comment on the extent to demand for new tankage. Much of this for producing E85, and whether we which satisfying the requirements under increase in demand was due to the should provide E85 manufacturers who the RFS2 standards might exacerbate the unprecedented increase in the use of use blendstocks to produce E85 with anticipated shortage of truck drivers or ethanol. Storage tank construction any flexibilities in complying with the lead to localized road congestion and companies have been increasing their refiner requirements.194 condition problems. Comment is further capabilities which had been pared back requested on the means to mitigate such during lean times.189 Given the 190 ‘‘Specification for Fuel Ethanol (Ed75–Ed85) potential difficulties to the extent they projected gradual increase in the need for Spark-Ignition Engines’’, American Society for might exist. Testing and Materials standard ASTM D5798. for biofuel storage tanks, it seems 191 Coordinating Research Council (CRC) report 8. Necessary Terminal Accommodations reasonable to conclude that the storage No. E–79–2, Summary of the Study of E85 Fuel in tank construction industry would be the USA Winter 2006–2007, May 2007. http:// Terminals will need to install able to keep pace with the projected www.crcao.org/reports/recentstudies2007/E–79–2/ additional storage capacity to E–79– demand. 2%20E85%20Summary%20Report%202007.pdf. accommodate the volume of ethanol/ The RFG and anti-dumping biodiesel that we anticipate will be used 192 CRC Cold Start and Warm-up E85 Driveability regulations currently require certified Program, http://www.crcao.com/about/ in response to the RFS2 standards. gasoline to be blended with denatured Annual%20Report/2007%20Annual%20Report/ Questions have been raised about the ethanol to produce E85. The gasoline Perform/CM–133.htm. ability of some terminals to install the must meet all applicable RFG and anti- 193 This is different from the approach taken in the refinery modeling which assumed that special needed storage capacity due to space dumping standards for the time and constraints and difficulties in securing blendstocks would be used to blend E85. A discussion of the refinery modeling can be found 188 permits. Overall demand for fuel 189 It currently may take 4 to 8 months to begin in Section 4 of the DRIA. construction of a storage tank after a contract is 194 Certain accommodations for butane blenders 188 The Independent Fuel Terminal Operators signed due to tightness in construction assets and into gasoline were provided in a direct final rule Association represents terminals in the Northeast. steel supply. Continued

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A significant challenge facing RFS2 standards.196 On average, this uncertainty regarding the type of terminals and one that is currently equates to approximately 1,960 new E85 equipment that will be needed for limiting the volume of ethanol that can facilities that would need to be added compliance with the E85 equipment be used is the ability to receive ethanol each year from 2009 through 2022 in certification requirements, and the by rail. Only a small fraction of order to satisfy this goal. This is a very associated costs. Nevertheless, we petroleum terminals currently have rail ambitious timeline given that there are believe that the E85 equipment that is receipt capability and a number likely less than 2,000 E85 retail facilities in eventually certified for use will not be have space constraints or are located too service today. Nevertheless, we believe substantially different from that on far from the rail system which prevents the addition of these numbers of new which our cost estimates are based.202 the installation of such capability. The E85 facilities may be possible for the Petroleum retailers expressed trend to locate ethanol unit train industries that manufacture and install concerns about their ability to bear the destinations at rail terminals will help E85 retail equipment. Underwriters cost installing the needed E85 refueling to alleviate these concerns. Petroleum Laboratories recently finalized its equipment. Today’s proposal does not terminals within trucking distance of certification requirements for E85 retail contain a requirement for retailers to each other are also likely to cooperate so equipment.197 Equipment manufactures carry E85. We understand that retailers that only one would need to install rail are currently evaluating the changes that will only install E85 facilities if it is receipt capability. Given the timeframe will be needed to meet these economically advantageous for them to 198 during which the projected volumes of requirements. However, we do so and that they will price their E85 ethanol ramp up, we believe that these anticipate the needed changes will not and E10 in a manner to recover these means can be utilized to ensure that a substantially increase the difficulty in costs. While the $3 billion total cost for E85 refueling facilities is a substantial sufficient number of terminals have the manufacture of such equipment sum, it equates to just 1.5 cents per access to ethanol shipped by rail compared to equipment which is gallon of E85 throughput.203 Therefore, although some will need to rely on specifically manufactured for dispensing E85 today. we do not believe that the cost of secondary shipment by truck from large We estimate that the cost of installing installing E85 refueling equipment will ethanol hub receipt facilities. We E85 refueling equipment will average represent an undue burden to retailers request comment on the current rail $122,000 per facility which equates to given the very large projected consumer receipt capability at terminals and the $3 billion by 2022.199 These costs demand for E85. extent to which petroleum terminals can include the installation of an Petroleum retailers also expressed be expected to install such capability. underground storage tank, piping, concern regarding their ability to Comment is also requested on the extent dispensers, leak detection, and other discount the price of E85 sufficiently to to which the installation of ethanol ancillary equipment that is compatible persuade flexible fuel vehicle owners to receipt facilities at rail terminals can with E85.200 Our E85 facility cost choose E85 given the lower energy help to meet the need to bring ethanol estimates are based on input from fuel density of ethanol. This issue is by rail to petroleum terminals. Our retailers and other parties with discussed in Section V.D.2.e. of today’s current analysis estimated that half of familiarity in installing E85 compatible preamble. the new ethanol rail receipt capability equipment. We understand that a D. Ethanol Consumption needed to support the use of the certification has yet to be finalized by projected ethanol volumes under the Underwriters Laboratories for a 1. Historic/Current Ethanol EISA would be installed at petroleum complete equipment package necessary Consumption terminals, and half would be installed at to store/dispense E85 at a retail Ethanol and ethanol-gasoline blends rail terminals. A recently completed 201 facility. Thus, there is some have a long history as automotive fuels. study by ORNL estimated that all new However, cheap gasoline/blendstocks ethanol rail receipt capability would be 196 See Section 1.6 of the DRIA for a discussion kept ethanol from making a significant of the projected number of E85 refueling facilities installed at existing rail terminals given presence in the transportation sector the limited ability to install such that would be needed. There would need to be a 195 total of 28,750 E85 retail facilities, 4,500 of which until the end of the 20th century when capability at petroleum terminals. We are projected to have been placed in service absent environmental regulations and tax intend to review our estimates regarding the RFS2 standards. 197 incentives helped to stimulate growth. the location of the additional ethanol See http://ulstandardsinfonet.ul.com/ In 1978, the U.S. passed the Energy rail receipt facilities for the final rule in outscope/0087A.html. 198 All dispenser equipment except the hose used Tax Act which provided an excise tax light of the ORNL study. to dispense fuel to the vehicle has been evaluated exemption for ethanol blended into 9. Need for Additional E85 Retail by UL. Once suitable hoses have been evaluated, a gasoline that would later be modified complete E85 dispenser system can be certified by 204 Facilities UL. through subsequent regulations. In 199 See Section 4.2 of the DRIA for a discussion the 1980s, EPA initiated a phase-out of We estimate that an additional 24,250 of E85 facility costs. These costs include the leaded gasoline which created some E85 retail facilities would be needed to installation of 2 pumps with 4 E85 refueling interest in ethanol as a gasoline facilitate the consumption of the positions at 40% of new facilities, and 1 pump with 2 refueling positions at 60% of new facilities. A additional amount of ethanol that we sensitivity case was evaluated where it was 202 All retail dispenser components except the project would be used by 2022 in assumed that all new E85 facilities would install 3 hose that connects the nozzle to the dispenser have response to the requirements under the pumps with 6 refueling positions. The cost per been evaluated by UL. Once such hoses have been facility under this sensitivity case is $166,000. evaluated by UL, a certification for the complete 200 40 CFR 280.32 requires that underground fuel dispenser assembly may be finalized by UL. published on December 15, 2005 entitled, storage tank systems must be made of or lined with 203 E85 facility costs were amortized over 15 years ‘‘Modifications to Standards and Requirements for materials that are compatible with the substance at 7% and the costs spread over the projected Reformulated and Conventional Gasoline Including stored in the system. volume of E85 dispensed. Butane Blenders and Attest Engagements’’, 70 FR 201 Underwriters Laboratories recently finalized 204 Gasohol, a fuel containing at least 10% 74552. their requirements for the certification of E85 biomass-derived ethanol, received a partial 195 ‘‘Analysis of Fuel Ethanol Transportation compatible equipment. No certifications have been exemption from the federal gasoline excise tax. This Activity and Potential Distribution Constraints’’, completed to date, because of the time needed to exemption was implemented in 1979 and a prepared for EPA by Oak Ridge National complete the application for certification including blender’s tax credit and a pure alcohol fuel credit Laboratory, March 2009. necessary testing. were added to the mix in 1980.

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oxygenate. Upon passage of the 1990 RFS2 program. For a summary of the currently refueling on conventional CAA amendments, states implemented growth in U.S. ethanol usage over the gasoline (E0 or E10) due to limited E85 winter oxygenated fuel (‘‘oxyfuel’’) past decade, refer to Table V.D.1.–1. availability and the fact that E85 is programs to monitor carbon monoxide typically priced 20–30 cents per gallon emissions. EPA also established the TABLE V.D.1–1—U.S. ETHANOL higher than gasoline on an energy reformulated gasoline (RFG) program to CONSUMPTION (INCLUDING IMPORTS) equivalent basis. As such, we are not help reduce emissions of smog-forming currently tapping into the full ethanol and toxic pollutants. Both the oxyfuel Total ethanol use a Year consumption potential of our FFV fleet. and RFG programs called for oxygenated However, we expect refueling patterns gasoline. However, petroleum-derived Trillion BTU Bgal to change in the future under the RFS2 ethers, namely methyl tertiary butyl 1999 ...... 120 1.4 program. ether (MTBE), dominated oxygenate use 2000 ...... 138 1.6 until drinking water contamination 2001 ...... 144 1.7 2. Increased Ethanol Use under RFS2 concerns prompted a switch to ethanol. 2002 ...... 171 2.0 Additional support came in 2004 with 2003 ...... 233 2.8 To meet the RFS2 standards, ethanol the passage of the Volumetric Ethanol 2004 ...... 292 3.5 consumption will need to be much Excise Tax Credit (VEETC). The VEETC 2005 ...... 334 4.0 higher than both today’s levels and 2006 ...... 451 5.3 provided domestic ethanol blenders 2007 ...... 566 6.7 those projected to occur absent RFS2. with a $0.51/gal tax credit, replacing the 2008 ...... 792 9.4 The Energy Information Administration patchwork of existing subsidies.205 The (EIA) projected that under business-as- a phase-out of MTBE and the introduction EIA Monthly Energy Review March 2009 usual conditions, ethanol usage would (Table 10.2). of the VEETC along with state mandates grow to just over 13 billion gallons by and tax incentives created a growing Through the years, there have also 2022.209 This represents significant demand for ethanol that surpassed the been several policy initiatives to growth from today’s usage, however, traditional oxyfuel and RFG markets. By increase the number of flexible fuel this volume of ethanol is capable of the end of 2004, not only was ethanol vehicles (FFVs) capable of consuming being consumed by today’s vehicle fleet up to 85 volume percent ethanol blends the lead oxygenate, it was found to be albeit with some fuel infrastructure blended into a growing number of (E85). The Alternative Motor Vehicle improvements.210 Although EIA states’ conventional gasoline.206 Fuels Act of 1988 provided automakers In the years that followed, rising with Corporate Average Fuel Economy projected a small percentage of ethanol crude oil prices and other favorable (CAFE) credits for producing to be blended as E85 in 2022, 13 billion market conditions continued to drive alternative-fuel vehicles, including gallons of ethanol could also be ethanol usage. In May 2007, EPA FFVs as well as CNG and propane consumed by displacing about 90% of promulgated a Renewable Fuel Standard vehicles. Furthermore, the Energy our country’s forecasted gasoline energy (‘‘RFS1’’) in response to EPAct. The Policy Act of 1992 required government demand with E10. The maximum RFS1 program set a floor for renewable fleets to begin purchasing alternative- amount of ethanol our country is fuel use reaching 7.5 billion gallons by fuel vehicles, and the majority of fleets capable of consuming as E10 compared 2012, the majority of which was chose FFVs.207 As a result of these two to the projected RFS2 ethanol volumes ethanol. The country is currently on policy measures, there are over 7 is shown below in Figure V.D.2–1.211 track for exceeding the RFS1 million FFVs on the road today.208 requirements and meeting the These vehicles increase our nation’s introductory years of today’s proposed ethanol consumption potential beyond what is capable with conventional 204 Gasohol, a fuel containing at least 10% vehicles. However, most FFVs are biomass-derived ethanol, received a partial exemption from the federal gasoline excise tax. This exemption was implemented in 1979 and a 206 Based on 2004 Federal Highway Association blender’s tax credit and a pure alcohol fuel credit (FHWA) State Gasohol Report less estimated RFG 208 Source: DOE Energy Efficiency and Renewable were added to the mix in 1980. and oxyfuel ethanol usage based on EPA’s 2004 Energy (worksheet available at 205 The 2008 Farm Bill, discussed in more detail RFG Fuel Survey results and knowledge of state www.eere.energy.gov/afdc/data/index.html.) in Section V.B.2.b, replaces the $0.51/gal ethanol oxyfuel programs and fuel oxygenates. For more on 209 blender credit with a $0.45/gal corn ethanol blender historical ethanol usage by state and fuel type, refer Source: EIA Annual Energy Outlook 2007, credit and also introduces a $1.01/gal cellulosic to Section 1.7.1.1 of the DRIA. Table 17. biofuel producer credit. Both credits are effective 207 Source: June 23, 2008 Federal Times, Special 210 For more information on distribution January 1, 2009. Report: Fleet Management. accommodations, refer to Section V.C.

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As shown in Figure V.D.2–1, under future.213 In addition, from an ethanol numerous actions that would need to be the proposed RFS2 program, we are consumption standpoint, we have taken to bring mid-level ethanol blends projected to hit the E10 ‘‘blend wall’’ of focused on an E10/E85 world. While E0 to market. In addition, mid-level ethanol about 14.5 billion gallons of ethanol by is capable of co-existing with E10 and blends alone (even if made available 2013. This volume corresponds to 100% E85 for a while, we assumed that E10 nationwide) are not capable of fulfilling E10 nationwide. However, if gasoline would replace E0 as expeditiously as the RFS2 requirements in later years. demand falls, or if E10 cannot get possible and that all subsequent ethanol We would essentially hit another blend distributed nationwide, the nation could growth would come from E85. wall 1–6 years later depending on the hit the blend wall sooner. Regardless, to Furthermore, for our primary analysis, intermediate blend, how quickly it get beyond the blend wall and consume we assumed that no ethanol could be brought to market, and how more than 14–15 billion gallons of consumption would come from the mid- widely mid-level ethanol blends were ethanol, we are going to need to see level ethanol blends (i.e., E15 or E20) as distributed at retail stations nationwide. they are not currently approved for use significant increases in the number Nevertheless, this time could be very in non-FFVs. However, in Section V.D.3 FFVs on the road, the number of E85 valuable when it comes to expanding below, we discuss the potential retailers, and the FFV E85 refueling approval pathways for mid-level ethanol E85/FFV infrastructure and/or frequency. In the subsections that blends and the volume implications. commercializing other non-ethanol follow, we will highlight the variables cellulosic biofuels. We acknowledge that, if approved, that impact our nation’s ethanol mid-level ethanol blends could help the Regardless, our primary analysis consumption potential and, more nation meet the proposed RFS2 volume focuses on an E10/E85 world because specifically, what measures the market requirements. First, non-FFVs could mid-level ethanol blends are not may need to take in order to consume consume more ethanol per gallon of currently approved for use in 34 billion gallons of ethanol by 2022 ‘‘gasoline’’. This could result in greater conventional gasoline vehicles and (assuming the cellulosic biofuel ethanol consumption nationwide. In nonroad equipment. Before usage could standard and the majority of the addition, mid-level blends could allow be legalized, as discussed more in advanced biofuel standard are met with gasoline retailers to continue to price Section V.D.3 below, EPA would need ethanol). ethanol relative to gasoline (as it to grant a waiver declaring that mid- As explained in Section V.A.2, our currently is for E10). For these reasons, level blends are substantially similar or primary RFS2 analysis focuses on it is possible that mid-level ethanol ‘‘sub-sim’’ to gasoline or perhaps even ethanol as the main biofuel in the blends could help the nation get beyond reinterpret the meaning of ‘‘sub-sim’’. the E10 blend wall. However, as While such a waiver has not yet been 211 The maximum E10 volumes are a function of explained in Section V.D.3.b, there are granted, several organizations/agencies the gasoline energy demand reported in EIA’s are performing vehicle emission testing Annual Energy Outlook 2009, Table 2 adjusted with 213 For consideration of other biofuels, refer to and investigating other impacts of mid- lower heating values. Section V.D.3.d.

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level blends.214 Therefore, as a of FFVs that will be manufactured and the majority of non-domestic FFV sensitivity analysis, we have analyzed purchased in future years is uncertain. production would be trucks. With what might need to be done to bring For our cost analysis, we examined respect to timing, we expect that the mid-level ethanol blends to market several different FFV production non-domestic automakers would ramp (should a sub-sim waiver be approved) scenarios. But for our ethanol usage up FFV production later than The and the extent to which such blends analysis, we focused on one primary Detroit 3. For analysis purposes, we could help our nation meet the RFS2 FFV scenario, described in more detail assumed that non-domestic automakers ethanol standards, at least in the near below.219 would ramp up FFV production term. Finally we end our ethanol usage In response to President Bush’s ‘‘20- beginning in 2013, and like The Detroit discussion by looking at other strategies in-10’’ plan of reducing American 3, it would take about five years for for getting beyond the E10 blend wall. gasoline usage by 20% in 10 years, them to reach their FFV production a. Projected Gasoline Energy Demand domestic automakers responded with goals (or in this case, the assumed 25% aggressive FFV production goals. production level) The maximum amount of ethanol our General Motors, Ford and Chrysler Based on these FFV assumptions and country is capable of consuming in any (referred to hereafter as ‘‘The Detroit 3’’) forecasted vehicle phase-out, VMT, and given year is a function of the total announced plans to produce 50% FFVs fuel economy estimates provided by gasoline energy demanded by the by 2012.220 And despite the current EPA’s MOVES Model, we calculate that transportation sector. Our nation’s state of the economy and the auto the maximum percentage of fuel gasoline energy demand is dependent industry, it appears U.S. automakers are (gasoline/ethanol mix) that could on the number of gasoline-powered still moving forward with their FFV feasibly be consumed by FFVs in 2022 vehicles on the road, their average fuel production plans.221 Assuming that The would be about 30%. For more economy, vehicle miles traveled (VMT), Detroit 3 continue to maintain 50% information on our FFV analysis, refer and driving patterns. For analysis market share and that total vehicle sales to Section 1.7.1.2.2 of the DRIA. purposes, we relied on the gasoline remain around 16 million per year, at c. Projected Growth in E85 Access energy projections reported by EIA in least 4 million FFVs will be produced 215 AEO 2008. Unlike AEO 2007, AEO by the 2012 model year. Based on 2008 According to the National Ethanol 2008 takes the fuel economy offerings, we assumed that Vehicle Coalition (NEVC), there are improvements set by EISA into approximately 80% of The Detroit 3’s currently over 1,900 retailers offering consideration and also assumes a slight FFV production commitment would be E85 in 45 states plus the District of dieselization of the vehicle fleet. The met by light-duty trucks and the Columbia.225 While this represents result is a 15% reduction in the remaining 20% would be cars.222 223 We significant industry growth, it still only projected 2022 gasoline energy demand also assumed that all the FFVs in translates to about 1% of U.S. retail 216 from AEO 2007 to AEO 2008. EIA existence today were produced by The stations nationwide carrying the fuel.226 basically has gasoline energy demand Detroit 3 (and therefore share the same As a result, most FFV owners clearly do (petroleum-based gasoline plus ethanol) aforementioned car/truck ratio) and that not have reasonable access to E85. For flattening out, and even slightly production would ramp up linearly our FFV/E85 analysis, we have defined decreasing, as we move into the future beginning in 2008 to reach the 2012 ‘‘reasonable access’’ as one-in-four and implement the EISA vehicle commitment. pumps offering E85 in a given area.227 217 standards. Although non-domestic automakers Accordingly, just over 4% of the nation b. Projected Growth in Flexible Fuel have not made any official FFV currently has reasonable access to E85, Vehicles production commitments, Nissan, up from 3% in 2007 (based on a mid- Mercedes, Izuzu, and Mazda all year NEVC E85 pump estimate).228 According to DOE’s Department of included at least one flexible fuel There are a number of states Energy Efficiency and Renewable vehicle in their 2008 model year promoting E85 usage by offering FFV/ Energy, there are currently over 7 offerings.224 E85 awareness programs and/or retail million FFVs on the road today capable And we anticipate that additional FFVs (or FFV options) will be pump incentives. A growing number of of consuming E85.218 And that number added in the future. Ultimately, we states are also offering infrastructure is growing steadily. Automakers are predict that non-domestic FFV grants to help expand E85 availability. incorporating more and more FFVs into production could be as high as 25%, or Currently, nine Midwest states have their light-duty production plans. While about 2 million FFVs per year. While we adopted a progressive Energy Security the FFV system (i.e., fuel tank, sensor, 229 are not forecasting an official FFV and Climate Stewardship Platform. delivery system, etc.) used to be an production commitment from the non- option on some vehicles, most FFV 225 domestic automakers, we believe that NEVC FYI Newsletter: Volume 15, Issue 5: producers are moving in the direction of March 9, 2009. this represents an aggressive, yet 226 converting entire product lines over to Based on National Petroleum News gasoline reasonable FFV production estimate for E85-capable systems. Still, the number station estimate of 161,768 in 2008. analysis purposes. Furthermore, based 227 For a more detailed discussion on how we on current offerings, we assumed that derived our one-in-four reasonable access 214 For more information on mid-level ethanol assumption, refer to Section 1.6 of the DRIA. For blends testing, refer to Section V.D.3.b. the distribution cost implications as well as the cost 219 215 For blend wall discussions, we rely on the For more on the FFV production scenarios we impacts of assuming reasonable access is greater most recent AEO 2009 projections. However for our considered, refer to Section 1.7.1.2.2 of the DRIA. than one-in-four pumps, refer to Section 4.2 of the detailed ethanol consumption analysis presented in 220 Ethanol Producer Magazine, ‘‘View From the DRIA. this section (and in more detail in Section 1.7.1 of Hill.’’ July 2007. 228 Computed as percent of stations with E85 the DRIA), we relied on AEO 2008. 221 Ethanol Producer Magazine, ‘‘Automakers (1,963/161,768 as of March 2009 or 1,251/164,292 216 EIA Annual Energy Outlook 2007 & 2008, Maintain FFV Targets in Bailout Plans.’’ February as of July 2007) divided by 25% (one-in-four Table 2. 2009. stations). 217 For more information on gasoline energy 222 NEVC 2008 Purchasing Guide for Flexible 229 The following states have adopted the plan: projections, refer to Section 1.7.1.2.1 of the DRIA. Fuel Vehicles. Indiana, Kansas, Michigan, Minnesota, Ohio, South 218 DOE Energy Efficiency and Renewable Energy 223 Several of the FFV assumptions may need to Dakota, Wisconsin, Iowa, and most recently, North August 2008 estimate (worksheet available at be revised for the FRM in light of recent events. Dakota. For more information, visit: http:// www.eere.energy.gov/afdc/data/index.html). 224 Ibid. Continued

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The platform includes a Regional 100% of the time, this would translate little further to find an E85 station, and Biofuels Promotion Plan with a goal of to about 6.5 billion gallons of E85 depending on the retail configuration, making E85 available at one third of all use.232 However, E85 usage was only wait in longer lines to fill up on E85. stations by 2025. In addition, on July 31, around 12 million gallons in 2008.233 To comply with the proposed RFS2 2008, Congresswoman Stephanie This means that, on average, FFV program and consume 34 billion gallons Herseth Sandlin (D–SD) and John owners were only tapping into about of ethanol by 2022, not only would we Shimkus (R–IL) introduced The E85 and 0.2% of their vehicles’ E85/ethanol need more FFVs and more E85 retailers, Biodiesel Access Act that would amend usage potential last year. Assuming that we would need to see a significant IRS tax code and increase the existing only 4% of the nation had reasonable increase in the current FFV E85 federal income tax credit from $30,000 one-in-four access to E85 in 2008 (as refueling frequency. Based on the FFV or 30% of the total cost of discussed above), this equates to an and retail assumptions described above improvements to $100,000 or 50% of estimated 5% E85 refueling frequency in subsections (b) and (c), our analysis the total cost of needed alternative fuel for those FFVs that had reasonable suggests that FFV owners with equipment and dispensing access to the fuel. reasonable access to E85 in 2022 would improvements.230 While not signed into There are several reasons for today’s need to fill up on it 74% of the time, law, such a tax credit could provide a low E85 refueling frequency. For a significant increase from today’s significant retail incentive to expand starters, many FFV owners may not estimated 5% refueling frequency. Were E85 infrastructure. know they are driving a vehicle that is there to be fewer FFVs in the fleet, the Given the growing number of state capable of handling E85. As mentioned E85 refueling frequency would need to infrastructure incentives and the earlier, more and more automakers are be even higher. Similarly, with more proposed Federal alternative fuel starting to produce FFVs by engine/ FFVs in the fleet, the E85 refueling infrastructure subsidy, it is clear that product line, e.g., all 2008 Chevy frequency could be lower and still meet E85 infrastructure will continue to Impalas are FFVs.234 Consequently, the proposed RFS2 requirements. expand in the future. However, the consumers (especially brand loyal However, even with an FFV mandate, extent to which nationwide E85 access consumers) may inadvertently buy a our analysis suggests that we would will grow is difficult to predict, let alone flexible fuel vehicle without making a need to see an increase from today’s quantify. For analysis purposes, as a conscious decision to do so. And average FFV E85 refueling frequency. In practical upper bound, we have selected without effective consumer awareness order for this to be possible, there will 70% by 2022. This is roughly equivalent programs in place, these FFV owners need to be an improvement in the to all urban areas in the United States may never think to refuel on E85. In current E85/gasoline price relationship. offering reasonable (one-in-four-station) addition, FFV owners with reasonable e. Market Pricing of E85 Versus Gasoline access to E85.231 We are not concluding access to E85 and knowledge of their that the percentage of the nation with vehicle’s E85 capabilities may still not According to a recent online fuel reasonable access to E85 could not choose to refuel on E85. They may feel price survey, E85 is currently priced exceed 70% (as a sensitivity, we also inconvenienced by the increased E85 almost 30 cents per gallon higher than modeled the cost impacts of nationwide refueling requirements. Based on its conventional gasoline on an energy- access to E85) or that availability would lower energy density, FFV owners will equivalent basis.236 To increase our necessarily be concentrated in urban need to stop to refuel 21% more often nation’s E85 refueling frequency to the areas. However, for analysis purposes, when filling up on E85 over E10 (and levels described above, E85 needs to be we believe that 70% is a good surrogate likewise, 24% more often when priced competitively with (if not lower for a practical portion of the country refueling on E85 over conventional than) conventional gasoline based on its that could have reasonable one-in-four gasoline).235 In addition, some FFV reduced energy content, increased time access to E85 by 2022 under the owners may be deterred from refueling spent at the pump, and limited proposed RFS2 program. On average, on E85 out of fear of reduced vehicle availability. Our analysis, described in this translates to about 18% of retail performance or just plain unfamiliarity more detail in Section 1.7.1.2.5 of the stations nationwide offering E85. As with the new motor vehicle fuel. DRIA, suggests that E85 would need to discussed in Section V.C, we believe However, as we move into the future, be priced about one-third lower than this is feasible based on our assessment we believe the biggest determinant will gasoline at retail (based on 2006 prices) of the distribution infrastructure be price—whether E85 is priced in order for it to be cost-competitive. As capabilities. For more information on competitively with gasoline based on its expected, higher crude prices could the projected growth in E85 access, refer reduced energy density and the fact that make E85 look slightly more attractive to Section 1.7.1.2.3 of the DRIA. you need to stop more often, drive a while lower crude oil prices could make E85 look less attractive. d. Required Increase in E85 Refueling 232 In Brazil, charts are posted at gas Rates Based on the assumption that FFV owners travel approximately 12,000 miles per year and get stations informing flex-fuel vehicle As mentioned above, there were about 18 miles per gallon on average under actual owners whether it makes sense to fill up approximately 7 million FFVs on the in-use driving conditions. For more information, refer to Section 1.7.1.2.4 of the DRIA. on ‘‘gasoline’’ (containing 20–25% 237 road in 2008. If all FFVs refueled on E85 233 EIA Annual Energy Outlook 2009, Table 17. denatured anhydrous ethanol) or 234 NEVC, ‘‘2008 Purchasing Guide for Flexible ‘‘alcohol’’ (100% denatured hydrous www.midwesterngovernors.org/resolutions/ Fuel Vehicles.’’ Refers to all mass produced 3.5 and ethanol) based on the price and relative Platform.pdf. 3.9L Impalas. However, it is our understanding that energy density of each. However, in the 230 A copy of House Rule 6734 can be accessed consumers may still place special orders for non- at: http://www.e85fuel.com/news/2008/ FFVs. U.S., FFV owners will likely be on their 080108_shimkus_release/shimkus.pdf. 235 Based on our assumption that denatured 231 For this analysis, we’ve defined ‘‘urban’’ as the ethanol has an average lower heating value of 236 Based on average E85 and regular unleaded top 150 metropolitan statistical areas according to 77,930 BTU/gal and conventional gasoline (E0) has gasoline prices reported at http:// the U.S. census and/or counties with the highest average lower heating value of 115,000 BTU/gal. www.fuelgaugereport.com/ on April 23, 2009. VMT projections according the EPA MOVES model, For analysis purposes, E10 was assumed to contain 237 The government-mandated gasoline ethanol all RFG areas, winter oxy-fuel areas, low-RVP areas, 10 vol% ethanol and 90 vol% gasoline. Based on content was 25% as of July 2007. Source: F.O. Licht and other relatively populated cities in the EIA’s AEO 2008 report, E85 was assumed to contain World Ethanol & Biofuels Report Vol. 5 No. 21 July Midwest. 74 vol% ethanol and 26 vol% gasoline on average. 9, 2007.

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own for figuring out which fuel is more ensure adequate ethanol use levels to by 2015.240 A similar FFV bill was economical. facilitate compliance. One potential introduced by Eliot Engel (D–NY) in the Although in some areas of the country action that refiners might take to ensure House on July 22, 2008.241 E85 is already priced significantly lower a sufficient RIN supply would be to Since a future congressional mandate than gasoline, this is a far cry from a subsidize the price of the ethanol used on FFV production in being discussed, nationwide trend. And as we move into to manufacture E85. Such a subsidy we have modeled the impact that such the future and incorporate cellulosic might be financed by an increase in a mandate could have on the RFS2 ethanol (a fuel that is currently more their selling price of gasoline. In program. For our sensitivity analysis, expensive to produce than corn addition, refiners with marketing arms we found that if automakers were ethanol), it may be even more difficult could adjust the retail price relationship required to make all light-duty vehicles to produce ethanol for a price that the of E10 in E85 in way that encourages E85-capable by 2015 (and our same E85 market would accept. However, a E85 throughput while still maintaining infrastructure growth assumptions number of measures could be taken to the same average net profit. However, a applied), FFV owners with reasonable help encourage FFV E85 refueling. relatively small proportion of refiners one-in-four access to E85 would only The first is increased consumer market their own gasoline and thus have need to refuel on it 33% of the time. awareness. To maximize ethanol usage, the ability to make retail price This represents a smaller increase from it is important that FFV owners are adjustments. Consequently, relying today’s estimated 5% refueling rate. aware of their vehicle’s fueling solely on market mechanisms may However, implementing such a FFV capabilities, i.e., that their vehicle is create some competitive concerns. We mandate would have significant cost capable of refueling on E85. It is equally request comment on viable and implications on the auto industry and important that FFV owners are aware of cooperative ways refiners and gasoline would still not provide certainty that E85 refueling outlets that may be retailers could promote E85 throughput FFV owners would fuel on E85. For available to them. Automakers and/or to meet the proposed RFS2 more information on this analysis, as car dealerships could notify FFV owners requirements. well as other FFV production scenarios of E85 stations in their area. Together, we considered, refer to Section 1.7.1.2.2 increased automaker and retail 3. Other Mechanisms for Getting of the DRIA. awareness could help increase our Beyond the E10 Blend Wall b. Waiver of Mid-Level Ethanol Blends nation’s E85 throughput potential. a. Mandate for FFV Production However, in order for consumers to (E15/E20) actually choose E85 over conventional One way to increase ethanol usage For our primary ethanol usage gasoline on a regular basis, there needs under RFS2 would be if there were more analysis, we considered that there to be a marked price incentive at the FFVs in the fleet. As described above, would only be two fuels in the future, pump. our primary analysis is based on the E10 and E85. And as explained in Current federal and most state tax assumption that The Detroit 3 would Section V.D.2, we believe it is feasible code does not differentiate between follow through with their commitment to consume 34 billion gallons of ethanol ethanol sold as E10 and as E85. As of to produce 50% FFVs by 2012 and the by 2022 given growth in FFV July 2008, state excise taxes were non-domestic automakers would ramp production and E85 availability and reported to account for more than $0.18 up FFV production beginning in 2013 projected improvements in the current per gallon of gasoline (on average).238 and produce 25% FFVs by 2017. Based E10/E85 price relationship. However, there are a number of states on the projected number of FFVs in the However, several organizations and (e.g., Illinois, Indiana, North Dakota, fleet (and our E85 infrastructure growth government entities are interested in and South Dakota) that currently waive assumptions), FFV owners with increasing the concentration of ethanol or discount excise taxes on E85. This reasonable one-in-four access to E85 beyond the current 10% limit in the type of fuel tax structure helps would need to refuel on it 74% of the commercial gasoline pool. Section contribute to a retail price relationship time. To achieve this optimistic 211(f)(1) of the Clean Air Act prohibits that favors E85 over conventional refueling frequency, we believe there the introduction into commerce, or 239 gasoline. If states continue to waive/ would need to be significant increase in the concentration in use of, gasoline or gasoline additives for use in reduce E85 fuel taxes under RFS2, this improvements to the E10/E85 price motor vehicles unless they are could help increase the FFV E85 relationship. refueling frequency. As expected, this substantially similar to the gasoline or would have the greatest impact on One way to reduce the required FFV gasoline additives used in the ethanol consumption in the areas of the E85 refueling frequency (and in turn certification of new motor vehicles or country with the most FFVs. decrease some of the pressure off E85 motor vehicle engines. EPA may grant a The E10/E85 price relationship could prices) would be to further increase the waiver of this prohibition under Section also be modified by the refining number of FFVs in the fleet. While EPA 211(f)(4) provided that the fuel or fuel industry. Under the proposed program, does not have the authority to require additive ‘‘will not cause or contribute to gasoline refiners (as well as importers) automakers to produce FFVs, there are a failure of any emission control device would be required to purchase RINs to a number of bills in Congress that are set or system (over the useful life of the demonstrate that sufficient volumes of out to do just that. On July 22, 2008 motor vehicle, motor vehicle engine, renewable/alternative fuels were used to Senator Sam Brownback (R–KS) on nonroad engine or nonroad vehicle in meet their volume obligations. This behalf of himself and Senators Susan which the device or system is used) to could provide an incentive for these Collins (R–ME), Joseph Lieberman (I– achieve compliance by the vehicle or parties to take the steps necessary to CT), Ken Salazar (D–CO), and John engine with the emission standards to Thune (R–SD) introduced the Open Fuel 238 Source: The American Petroleum Institute July Standard Act of 2008, a bill that calls for 240 Refer to Senate Bill 3303 which can be found 2008 Gasoline Tax Report available at: http:// 50% of the U.S. vehicle fleet to be FFVs at: http://thomas.loc.gov/cgi-bin/query/ www.api.org/statistics/fueltaxes/upload/July_2008_ capable of using high blends of ethanol z?c110:S.3303. gasoline_and_diesel_summary_pages.pdf. 241 Refer to House Rule 6559 which can be found 239 Source: DOE Energy Efficiency and Renewable or methanol (in addition to gasoline) by at: http://thomas.loc.gov/cgi-bin/bdquery/ Energy Web site (http://www.eere.energy.gov/). 2012. This number would grow to 80% z?d110:H.R.6559.

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which it has been certified.’’ The most comprehensive testing program to comment on all aspects of it. Refer to 74 recent ‘‘substantially similar’’ investigate the potential impacts of mid- FR 18228 (April 21, 2009). interpretive rule for unleaded gasoline level blends of ethanol. Initial testing While the current Growth Energy presently allows oxygen content up to was conducted on a limited number of waiver application is still under review, 2.7% by weight for certain ethers and high-volume vehicles and small non- as a sensitivity, we considered the 242 alcohols. E10 contains approximately road engines and a preliminary report implications that adding E15 or E20 to 245 3.5% oxygen by weight, which makes a was published in October, 2008. In the marketplace could have on ethanol gasoline-ethanol blend with ten% addition, DOE is in the process of usage and the supporting fuel ethanol not ‘‘substantially similar’’ to leveraging existing EPA vehicle and infrastructure should such blends be certification fuel under the current small engine test programs (originally permitted. For each case, we assumed 243 interpretation. Since any mid-level designed to test up to 10% ethanol) to that E10 would need to continue to blend would have a greater than add mid-level ethanol blends to the fuel remain in existence to meet the demand allowed oxygen content, any mid-level matrix. DOE’s comprehensive test of legacy vehicle and non-road engine blend would need to have a waiver program is intended to evaluate a wide owners. This would also provide under Section 211(f)(4) of the CAA in range of emission, performance, and consumer choice. Experience in past order to be sold commercially. durability issues associated with mid- fuel programs has shown that many Before EPA grants a 211(f)(4) waiver level ethanol blends (additional reports consumers will not be comfortable for a new fuel or fuel additive, an forthcoming). refueling on higher ethanol blends and applicant must prove that the new fuel DOE is not alone in pursuing mid- will blame any problems that may occur or fuel additive will meet the waiver level blends. In 2005, the State of on the new fuel (regardless of the actual requirements outlined in the statute. Minnesota, a large producer of corn cause of the vehicle problems) causing EPA has required that applicants ethanol, passed a law requiring that by a backlash against the new fuel provide vehicle/engine testing for 2015, 20% of gasoline (by volume) must requirements. Therefore, we believe it is tailpipe emissions, evaporative be replaced by ethanol. While this level emissions, materials compatibility, and could be achieved with a high critical to continue to allow consumers driveability. Testing needs to include percentage of E85 usage by FFVs, the the choice between mid-level ethanol emissions over the full useful life of state has also expressed an interest in blends and conventional gasoline vehicle and equipment. Several moving to 20% ethanol blends. Several (assumed to be E10 in the future). interested parties are investigating the other states and organizations have also For our optimistic mid-level ethanol impact that mid-level ethanol blends expressed interest in increasing ethanol blends scenario, we assumed that E15 or (e.g., E15 or E20) may have on these use by adopting E15 or E20. The E20 could be available at all retail areas among others (i.e. catalyst, engine, Renewable Fuels Association (RFA) and stations nationwide by the time the and fuel system durability, and onboard the American Coalition for Ethanol nation hits the E10 blend wall, or diagnostics). In order to use the (ACE) have been working with various around 2013. This assumes a number of information collected for waiver government entities to investigate the actions are taken to bring mid-level application purposes, the mid-level impact of mid-level blends blends to market (explained in more ethanol blend testing will need to On March 6, 2009, Growth Energy and detail below).246 We assumed that E10 consider the different engines and fuel 54 ethanol manufacturers submitted an would be marketed as premium-grade systems currently in service that could application for a waiver of the gasoline, the mid-level ethanol blend be exposed to mid-level ethanol blends prohibition of the introduction into (E15 or E20) would serve as regular, and and the long-term impact of using such commerce of certain fuels and fuel like today, midgrade would be blended blends.244 After receiving a waiver additives set forth in section 211(f) of from the two fuels. Those vehicles and application, EPA must give public the Act. This application seeks a waiver equipment which are unable to refuel notice and comment and has 270 days for ethanol-gasoline blends of up to 15 on mid-level ethanol blends (or choose to grant or deny the waiver request. percent by volume ethanol. The statute not to) could continue to fill up on E10. The Department of Energy (DOE) has directs the Administrator of EPA to This mid-level ethanol blends scenario, developed and initiated a grant or deny this application within described in more detail in Section 270 days of receipt by EPA, in this 1.7.1.3 of the DRIA, concluded that if 242 73 FR 22277 (April 25, 2008). instance December 1, 2009. EPA mid-level ethanol blends were to be 243 Gas Plus, Inc. submitted an application for a recently issued a federal register notice distributed at all retail stations 211(f)(4) waiver for E10 which was granted, see 44 announcing receipt of the Growth FR 20777 (April 6, 1979). nationwide, they could help increase 244 EPA has expressed what such a waiver testing Energy waiver application and soliciting ethanol usage to over 19 billion gallons program might look like, see Karl Simon, ‘‘Mid (with E15) and 25 billion gallons (with Level Ethanol Blend Experimental Framework: Epa 245 Effects of Intermediate Ethanol Blends on E20). Staff Recommendations,’’ June 2008, and Ed Nam Legacy Vehicles and Small Non-Road Engines, ‘‘Vehicle Selection & Sample Size Issues for Report 1, Prepared by Oak Ridge National Catalyst and Evap Durability Testing,’’ November Laboratory for the Department of Energy, October 246 Results for other cases are discussed in 2008, in the docket (EPA–HQ–OAR–2005–0161). 2008. Section 1.7.1.3 of the DRIA.

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As shown in Figure V.D.2–2, in this fuel distribution system.247 A number of stated that it would not expand listings optimistic phase-in scenario, adding changes would be needed to EPA for in-use fuel retail equipment E15 could postpone the blend wall by regulations including those pertaining originally listed for E10 blends to cover about three years to 2016 and adding to reformulated gasoline, anti-dumping, greater than E10 blends.248 EPA’s Office E20 could postpone it another three and gasoline deposit control additives to of Underground Storage Tanks (OUST) years to 2019. Although mid-level accommodate and mid-level ethanol requires that UST systems must be ethanol blends will fall short of meeting blends. Such changes would need to be compatible with the fuel stored in the the RFS2 requirements, they could made through the notice and comment system. These requirements pertain to provide interim relief while the county process similar to today’s action. In all components of the system including ramps up E85/FFV infrastructure and/or addition, most states require that fuel the storage tank, connecting piping, finds other non-ethanol alternatives comply with the applicable ASTM pumps, seals and leak detection (e.g., cellulosic diesel or biobutanol) to International (formally known as the equipment. reach the RFS2 volumes. American Standards for Testing and States typically adopt fire safety codes Our nation’s whole system of gasoline Materials) specification. The from either the National Fire Protection fuel regulation, fuel production, fuel development of an ASTM International Association (NFPA) or the International distribution, and fuel use is built around specification for mid-level ethanol Code Council (ICC). These organizations gasoline with ethanol concentrations blends through an industry consensus currently do not have provisions that limited to E10. As a result, while a process is currently being initiated. would allow the mid-level ethanol waiver may legalize the use of mid-level There are a number of requirements blends to be stored/dispensed from regarding the fire and leak protection ethanol blends under the CAA, there are existing equipment at retail. Local safety safety of retail fuel dispensing and a number of other actions that would officials (e.g. fire marshals) referred to as storage equipment. The Occupational have to occur to bring mid-level blends ‘‘Authorities Having Jurisdiction’’ Safety and Health Administration to retail. The time needed to take these (AHJ’s) often require a UL certification (OSHA) requires that retail fuel actions could delay the penetration of for fuel retail storage/dispensing handling equipment be listed with an mid-level ethanol blends into the equipment although some will accept independent standards body such as market. The CAA only provides a 1 Underwriters Laboratories (UL). No 248 pound RVP waiver for ethanol blends of UL stated that they have data which indicates independent standards body has listed that the use of fuel dispensers certified for up to 10 volume percent or less. Lacking such fuel handling equipment for mid-level E10 blends to dispense blends up to a maximum an RVP waiver, a special low-RVP ethanol content of 15 volume percent would not ethanol blends. Furthermore, UL has gasoline blendstock would be needed at result in critical safety concerns (http:// www.ul.com/newsroom/newsrel/nr021909.html). terminals to allow the formulation of 247 It may be possible for refiners to formulate a Based on this, UL stated that it would support mid-level ethanol blends that are gasoline blendstock that would be suitable for authorities having jurisdiction who decide to complaint with EPA RVP requirements. manufacturing mid-level ethanol blends and E10 at permit legacy equipment originally certified for up Providing such a separate gasoline the terminal. While this would avoid the logistical to E10 blends to be used to dispense up to 15 problems associated with maintaining separate volume percent ethanol. The UL announcement did blendstock would present significant blendstocks, there could be significant additional address the compatibility of underground storage logistical challenges and costs to the refining costs. tank systems with greater than E10 blends.

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other substantiation of equipment safety Finally, all vehicles and nonroad aspects, both legal and technical, as to such as a manufacture certification. Fuel equipment currently in use are only the possibility that a section 211(f)(4) retailers must also satisfy the warranted for ethanol levels not waiver might be granted, in a partial requirements of the insurance company exceeding E10 (except for FFVs), and way with conditions, such that the use that they are insured through which the owner’s manuals are written to of mid-level blends would be restricted may be more stringent than the legal reflect this. Before widespread to a subset of the gasoline vehicles or requirements. Given the liability acceptance of mid-level ethanol blends engines covered by the waiver concerns associated with leaks from by consumers can occur, these warranty provision, while those nonroad engines underground storage tanks, these issues issues would need to be addressed. and vehicles not covered by the waiver would continue using fuels with blends have to be resolved in order to facilitate c. Partial Waiver for Mid-Level Blends the widespread use of mid-level ethanol no greater than E10. blends. CAA section 211(f)(4), the waiver Any waiver approval, either fully or The Department of Energy and EPA provision, states that the Administrator partially, is likely to elicit a market are currently working with industry to may grant a fuel waiver if a fuel response to add E15 blends to E10 and evaluate what changes may be necessary manufacturer can demonstrate that the E0 blends in the marketplace, rather to underground storage tank systems, fuel ‘‘will not cause or contribute to a than replace them. Thus consumers fuel dispensers, and refueling vapor failure of any emission control device or would merely have an additional choice recovery equipment at fuel retail system (over the useful life of the motor of fuel. facilities to handle a mid-level ethanol vehicle, motor vehicle engine, nonroad Experience in past fuel programs has blend. If existing equipment proves engine or nonroad vehicle in which shown that even with consumer tolerant to a mid-level ethanol blend, such device or system is used) to education and fuel implementation this could substantially facilitate its achieve compliance by the vehicle or efforts, there sometimes continues to be introduction at retail. If the data engine with the emission standards with public concern for new fuel supports the suitability of legacy retail respect to which it has been certified.’’ requirements. Several examples include equipment to store/dispense a mid-level For reasons discussed below, it may be the phasedown of the amount of lead blend, then the process of seeking possible that these criteria for a mid- allowed in gasoline in the 1980s and the acceptance by the standard bodies level blend waiver may be met for a introduction of reformulated gasoline discussed above could commence. The subset of gasoline vehicles or engines (RFG) in 1995. Some segments of the normal processes used by these but not for all gasoline vehicles or public were convinced that the new engines. The waiver criteria are applied standards bodies can be lengthy. For fuels caused vehicle problems or over the useful life of ‘‘the motor example, the NFPA has a 3 year cycle decreases in fuel economy. Although vehicle, motor vehicle engine, nonroad for evaluating changes to its codes with substantial test data proved otherwise, engine or nonroad vehicle in which these concerns lingered in some cases proposals for the current cycle due this such device or system is used.’’ for several years. As a direct result of June. Thus, apart from the need to Assuming the criteria is met for a these experiences, EPA wants to be technically evaluate the suitability of certain subset of vehicles, and that assured that prior to potentially granting legacy retail equipment to handle a mid- adequate measures could be put in place a waiver for mid-level blends, sufficient level ethanol blend, the need to secure to ensure that a waiver fuel were only testing has been conducted to recognition from standards bodies could used in that subset of vehicles or demonstrate the compatibility of a delay the introduction of a mid-level engines, one interpretation of this waiver fuel with engine, fuel and ethanol blend at retail should a waiver provision is that the waiver could apply emission control system components. be granted by EPA. only to that subset of vehicles or EPA has previously granted waivers If some components of the above- engines. with certain restrictions or conditions. ground existing retail hardware are One potential outcome from a review Among other things, these restrictions found to be incompatible with a mid- of the entire body of scientific and have included requiring fuels to meet level ethanol blend, it may be possible technical information available may be certain voluntary consensus-based for them to be replaced through normal an indication that mid-level ethanol gasoline standards such as those attrition. For example the ‘‘hanging blends could meet the criteria of a developed by the American Society of hardware’’ which includes the nozzle section 211(f)(4) waiver for some Testing and Materials (ASTM and hose from the dispenser is typically vehicles and engines but not for others. standards), requirements that replaced every 3 to 5 years. It is also It may be that certain vehicles and precautions be taken to prevent using possible that only minor changes might engines operate as intended using mid- the waiver fuel as a base fuel for adding be needed to equipment that has a level blends but others may be more oxygenates, and that certain corrosion longer service life which might be susceptible to emissions increases or inhibitors be utilized when producing accomplished without too much durability problems. For example, the waived fuel.250 However, in those difficulty/cost. However, if extensive vehicles or engines without newer waivers, the conditions placed upon the new equipment is needed and technology that do not readily adjust for fuel manufacturer were directly related particularly if this involves the breaking the higher oxygen level in the fuel may to manufacturing the fuel itself. Here, of concrete, we believe that it is unlikely experience problems, while newer the conditions placed upon the fuel that fuel retailer would opt to install technology vehicles such as those manufacturer would be on the use of the equipment specifically for a mid-level meeting our Tier 2 standards may be fuel in certain vehicles or engines. In ethanol blend given the projected future able to adjust for such changes as a other words, the fuel manufacturer need for retail equipment capable of result of more advanced emissions and would have to ensure that the mid-level handling E85.249 fuel control equipment. Nonroad blend was only used in that particular engines, which are typically small, are subset of vehicles or engines to be able 249 As discussed previously, significant likely to be most susceptible given the penetration of E85 is projected to be needed to to legally manufacture and sell the fuel facilitate the use of the volumes of ethanol we less sophisticated technology associated project would be needed to satisfy the requirements with such engines. Given this potential 250 See, for example, 53 FR 3636, February 8, of the EISA. outcome, EPA requests comment on all 1988, and 53 FR 33846, September 1, 1988.

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under the terms of the waiver. Since it utilized transponder mechanisms to mid-level blends, the aforementioned would become the fuel manufacturer’s record sales. Similar transponder infrastructure challenges would be responsibility to prevent misfueling, the systems could be utilized in place of present and additional costs would be following discussion highlights some of transaction cards. associated with measures adopted for the ideas that the fuel manufacturer The above discussion is not meant to the prevention of releases due to could implement, based on particular be an exhaustive list of possible material incompatibility, as well as subsets of vehicles,251 to prevent approaches for ensuring compliance those associated with misfueling. EPA misfueling. with a partial waiver, nor does it therefore seeks comment on the If a partial waiver covered only newly explore all the facets of any single compatibility of the existing retail fuel manufactured vehicles, methods approach. EPA recognizes that there storage/dispensing equipment with mid- focused on the manufacturing of the may be legal and practical limitations level ethanol blends. Further, adoption vehicle could be utilized to inform the on what a fuel manufacturer may be of such a waiver would mean that fewer buyer that the vehicle was capable of able to do to ensure compliance with vehicles/engines would be able to operating on the waiver fuel. In this the conditions of the partial waiver. utilize mid-level blends and, therefore, case, approaches such as the use of EPA has not previously imposed this the full impact of mid-level blends on vehicle fueling inlet labels and owner’s type of ‘‘downstream’’ condition on the the E10 blend wall under such a manuals could be utilized in tandem fuel manufacturer as part of a section scenario would not be as significant as with retail station fuel dispenser labels. 211(f)(4) waiver. EPA does, however, full unrestricted utilization of such Such an approach depends on the have experience with compliance blends. attention of the vehicle operator to problems occurring when two types of d. Non-Ethanol Cellulosic Biofuel ensure compliance with the waiver. gasoline have been available at service Production Additionally, retail station attendants stations. Beginning in the mid-1970s could be trained to provide guidance to with the introduction of unleaded While our analysis describes possible operators on which vehicles are covered gasoline and continuing into the 1980s pathways by which the market could under the waiver. as leaded gasoline was phased out, there meet the RFS2 requirements with 34 If only vehicles of certain model years was significant intentional misfueling billion gallons of ethanol as E10 and were covered, owners would know if by consumers. At the time most service E85, our analysis of the required FFV they could utilize the mid-level blends stations had pumps dispensing both and E85 infrastructure growth as well as simply by knowing the model year leaded and unleaded gasoline and a the required changes to the E10/E85 (again, in tandem with pump labeling). price differential as small as a few cents price relationship suggests some Alternatively, if some portion of the per gallon was enough to cause some inherent challenges. Furthermore, we existing fleet, not based upon model- consumers to misfuel. Higher price conclude that the introduction of mid- year (such as vehicles meeting EPA Tier differentials could occur if, as expected, level ethanol blends (contingent upon 2 emission standards), would also be mid-level ethanol blends were to be waiver approval) would by itself not covered, the approach would have to marketed as the regular grade and E0 or allow the country to achieve the RFS2 include some means by which the E10 as the premium grade. The Agency standards. Another means of achieving operator of such a vehicle would be seeks comment regarding whether this the RFS2 volume requirements would made aware that the vehicle being is a reasonable or practical condition for be through the introduction of non- fueled was covered or not covered by this type of waiver. EPA acknowledges ethanol cellulosic biofuels. The growing the waiver. Such an approach would that the issue of misfueling would be spread in gasoline and diesel pricing likely involve notification of owners of challenging in a situation where a implies that we are currently moving in covered vehicles, through direct contact partial waiver is granted. Therefore, the direction of being oversupplied with or education campaigns, and would EPA solicits comments on what gasoline and undersupplied with likely require the assistance of the measures a fuel manufacturer, EPA or diesel.253 As such, it makes sense that vehicle manufacturers. This approach, others in the gasoline distribution the market might preferentially as with other approaches, would require network could take for ensuring investigate diesel fuel replacements, pump labeling. compliance with a partial waiver. e.g., cellulosic diesel via Fischer- Other approaches may bring about While EPA has not analyzed the Tropsch synthesis, pyrolysis, or tighter control of misfueling situations specific cost of a conditional waiver, catalytic depolymerization. These fuels but may present additional challenges. such a waiver would likely carry a cost would meet the definition of cellulosic For example, one approach might be to similar to the costs described above in biofuel (as well as advanced biofuel) provide owners of covered vehicles with Section V.D.3.b. Because existing under the proposed RFS2 program and a transaction card similar to a credit equipment in retail stations is certified help reduce the ethanol blend wall card that could be swiped at the by Underwriters Laboratories only up to impacts associated with this rule. dispenser to allow for the dispensing of ten percent ethanol, existing equipment Although for our analysis we assumed a waived mid-level blend. Presumably, would need to be evaluated for its that the cellulosic biofuel standard software and/or hardware at dispensing acceptability for use with mid-level would be met with ethanol, the market pumps may be able to be adjusted to blends (and deemed to be acceptable if could choose a significant volume of accommodate such an approach. Some possible) or it would have to be other non-ethanol renewable fuels. DOE retail station chains have already modified/replaced before any ethanol and other agencies are currently blend greater than ten percent could be providing grants to support critical 251 Although it is not possible at this time to effectuated in the marketplace.252 If know the contours of a partial waiver with existing retail equipment is found not to 253 According to EIA, gasoline and diesel prices conditions, or even if one might be appropriate, the were pretty similar on average for a decade from remainder of this discussion will refer only to be acceptable for storing/dispensing 1995–2004. However, over the past four years, vehicles covered by the waiver (and not engines) diesel prices have begun to track consistently since newer vehicles are more likely to have more 252 See previous discussion in Section V.D.3.b of higher than gasoline prices. To date in 2008, diesel sophisticated emissions and fuel control this preamble regarding the issues that would need has been priced more than $0.50/gallon higher than equipment, while certain engines might be more to be addressed to facilitate the introduction of mid- gasoline on average. Source: http:// affected for the reasons stated above. level ethanol blends at retail. tonto.eia.doe.gov/oog/info/gdu/gasdiesel.asp.

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research into these second-generation However, parties who have raised this dumping Q&A it was noted that the cellulosic feedstock conversion option have suggested that the Agency’s maximum oxygen range for the simple technologies. DOE is also providing loan previous treatment of the oxygenate and complex models was 4.0% by guarantees to help with the content of gasoline may provide a weight. This range was implemented to commercialization of such technologies. precedent that would allow for a higher once again continue to allow the For more information on non-ethanol measurement tolerance for ethanol blending of ethanol up to the 10 vol% cellulosic biofuels, refer to Section V.A. content. limit in cases where an extremely low or Section 1.4.3 of the DRIA. Prior to and after 1981, several gasoline density might increase the waivers issued by the Agency allowed calculated weight percent oxygen e. Measurement Tolerance For E10 the use of various alcohols and ethers in content for E10 above the more typical Some stakeholders have suggested unleaded gasoline. In 1981, the 3.5–3.7 wt% range. that the implementation of a tolerance ‘‘substantially similar’’ interpretive rule Although we acknowledge that the in the measurement of the ethanol for unleaded gasoline allowed certain currently specified test method ASTM content of gasoline could allow more alcohols and ethers at up to 2.0% D–5599–00 includes some variability, ethanol to be used in existing vehicles oxygen by weight. In 1991 the limit was ethanol is different than many other fuel without the need for a formal waiver increased to 2.7% oxygen by weight. For properties and components that are and without the need for more FFVs. each of these waivers, the unleaded controlled in other fuel programs in one Such a tolerance could allow ethanol gasoline base to which the oxygenate important respect. Fuel properties such contents slightly higher than 10 volume was to be added was to be initially free as RVP, and components such as sulfur percent while still treating such blends of oxygenate. With the exception of and benzene, are natural characteristics as meeting the 10 volume percent ethanol, oxygenates, mostly MTBE, were of gasoline as a result of the chemical limitation on the ethanol content of blended at the refinery, with the refiner nature of crude oil and the refining gasoline. in control of the gasoline used for process. Their level or concentration in Although there is no explicit written blending. This enabled the refiner to gasoline is unknown until measured, precedent for permitting ethanol ensure that it was free of oxygenate and then is dependent upon accuracy of contents higher than 10 vol%, some prior to blending. Ethanol was primarily the test method. In contrast, ethanol is have speculated that current vehicles blended at terminals. In order to ensure intentionally added in known amounts would not exhibit any noticeable change that gasoline blended with ethanol at using equipment designed to ensure a in performance, durability, or emissions the terminal was free of other specific concentration within a small if a small measurement tolerance for oxygenates, the ethanol blender first had fraction of one percent. Parties that ethanol content of gasoline were to check for the presence of other blend ethanol into gasoline therefore allowed. The current specified test oxygenates in the base gasoline. In the have precise control over the final method for oxygen content ASTM D– mid-1980’s ethanol blenders informed concentration. Thus, a measurement 5599–00 includes estimates of the EPA that they were having difficulty tolerance for ethanol would be less measurement reproducibility that could finding oxygenate-free gasoline. Much appropriate than measurement be used to inform the determination of of gasoline had at least trace amounts of tolerances for other fuel properties and an appropriate tolerance for ethanol MTBE due to commingling of gasolines components. content in gasoline. For instance, based with different oxygenates in the fungible We request comment on whether a on the provided reproducibility, a pipeline system. In order to continue to measurement tolerance should be measurement as high as 11 vol% allow the blending of ethanol up to the allowed for the ethanol content of ethanol in gasoline might be possible for gasoline, the basis for such a tolerance, 10 vol% limit, EPA issued a letter gasoline that was blended to meet a 10 and what tolerance if any would be stating that it would not consider it to vol% ethanol requirement. Historically, appropriate. We also request comment be a violation of the ethanol sub-sim however, EPA has always enforced the on whether such a tolerance would fit waiver if up to 10% by volume ethanol 10 vol% waiver at the 10 vol% level within the existing Underwriters were added to unleaded gasoline without any tolerance. Laboratories, Inc. (UL) approval for the containing no more than 2% by volume The 1978 gasohol waiver application safety of equipment at refueling stations, MTBE. However, the MTBE must have requested a blend of 90% unleaded including underground storage tanks, been present only as a result of gasoline and 10% anhydrous ethanol. pumps, piping, seals, etc. Although not specified in the commingling during storage or transport application, the convention and the and not purposefully added as an f. Redefining ‘‘Substantially Similar’’ to practical approach for blending ethanol additional component to the ethanol Allow Mid-Level Ethanol Blends into gasoline in 1978 was by volume, blend. Section 211(f)(1) prohibits the and it has continued to be by volume. Subsequently, two other statements introduction into commerce, or increase Thus, the limit on ethanol in gasoline by EPA provided guidance on the in the concentration in use of, gasoline under the waiver is 10% by volume. allowable oxygen content of oxygenated or gasoline additives for use in motor This is approximately 3.5% oxygen by fuels. For instance, in a memorandum vehicles unless they are substantially weight. The waiver request did not dated October 5, 1992, EPA provided similar to the gasoline or gasoline apply to a level of ethanol in gasoline interim guidance for states that allowed additives used in the certification of 254 beyond 10%, and since the application averaging programs. This guidance new motor vehicles or motor vehicle was approved by default after 180 days allowed the oxygen content of ethanol engines. EPA may grant a waiver of this due to the fact that the Administrator to be as high as 3.8% by weight, but did prohibition under section 211(f)(4) of did not make an explicit decision in this not indicate that the ethanol the Clean Air Act provided that the fuel timeframe, there is no formal approval concentration could be higher than 10 or fuel additive ‘‘will not cause or that could have indicated what vol%. Also, in a 1995 RFG/Anti- contribute to a failure of any emission measurement tolerances might have control device or system (over the useful 254 Memorandum from Mary T. Smith, Director of been acceptable. Thus it has historically the Field Operations and Support Division, to State/ life of the motor vehicle, motor vehicle been enforced at the 10 vol% limit Local Oxygenated Fuels Contacts, October 5, 1992. engine, nonroad engine or nonroad without any enforcement tolerance. Subject: ‘‘Testing Tolerance’’. vehicle in which the device or system

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is used) to achieve compliance by the state of Alaska to improve cold starting technology vehicles represent an ever vehicle or engine with the emission for vehicles during the winter months in growing proportion of the in-use fleet. standards to which it has been Alaska.259 Thus the ‘‘substantially DOE is currently conducting various test certified.’’ similar’’ interpretive rule for unleaded programs to ascertain the impacts of EPA first interpreted the term gasoline presently allows oxygen higher level ethanol blends on vehicles ‘‘substantially similar’’ for unleaded content up to 2.7% by weight for certain and equipment. gasoline and its additives in 1978.255 ethers and alcohols. EPA seeks comment on all of the Recognizing that this interpretation was A waiver of the substantially similar issues involved with reconsidering its too limited, EPA updated it in 1980, and prohibition was provided by operation interpretation of the term ‘‘substantially again in 1981.256 EPA set the limits of law in 1979 under CAA section similar’’ to include gasoline blended contained in the interpretation based on 211(f)(4), allowing a gasoline-alcohol with ethanol to contain up to 4.5% the physical and chemical similarities of fuel blend with up to 10% ethanol by oxygen by weight. If EPA revised the the fuel or fuel additives to those used volume (E10) (‘‘E10 Waiver’’). E10 has substantially similar interpretation in in the motor vehicle certification an oxygen content which typically this manner, gasoline blended with up process. EPA also considered ranges between 3.5 and 3.7% by weight, to 12% ethanol by volume (E12) would information available regarding the depending on the specific gravity of the be considered ‘‘substantially emission effects that such fuels and gasoline. Any ethanol blends with similar.’’ 262 Given the possibility, based additives would exhibit relative to the greater than 10% ethanol by volume upon engineering judgment, of a varying emissions performance of the would have an oxygen content which impact of a mid-level ethanol blends on certification fuels and fuel additives. exceeds the 2.7% by weight allowed different technology vehicles, EPA The 1981 interpretative rule identified under the current interpretation of invites comment on limiting such an the characteristics and specifications ‘‘substantially similar.’’ Therefore, interpretation to gasoline intended for that EPA determined would make a fuel under the 1991 interpretive rule, mid- use in Tier 2 and later motor vehicles. or fuel additive ‘‘substantially similar’’ level ethanol blends would not be We estimate that defining E12 as to those used in certification. Under this considered substantially similar and ‘‘substantially similar’’ for Tier 2 and rule, a fuel or fuel additive would be would require a CAA section 211(f)(4) later motor vehicles could delay the considered substantially similar if it waiver. saturation of the gasoline market with satisfied certain limits on fuel and fuel It has been suggested to EPA that we ethanol for up to a year, allowing for additive composition, did not exceed a should update the interpretive rule such more comprehensive testing on higher maximum allowable oxygen content of that mid-level ethanol blends would be blend levels to be carried out. However, fuel at 2.0% by weight, and met certain considered substantially similar. As in before EPA could determine whether it ASTM specifications. Comments on this the past, this would involve was appropriate to revise the consideration of the physical and interpretative rule requested that EPA interpretation of ‘‘substantially similar’’ chemical similarities of such mid-level increase the maximum oxygen for gasoline to include gasoline-alcohol blends to fuels used in the certification concentration up to 3.5% oxygen by fuels blended with up to 12% ethanol, process, as well as information about weight, but EPA rejected this information would need to be provided the expected emissions effects of such recommendation, stating that it would to EPA that would allow for a robust mid-level blends.260 EPA invites keep the limit at 2.0% because of assessment of the impact of E12 over the comment on whether mid-level blends concerns over emissions, material full useful life of Tier 2 and later motor of ethanol are physically and chemically vehicles addressing emissions (both compatibility, and drivability from use similar enough to the fuels used in the tailpipe and evaporative emissions), of various alcohols at higher oxygen motor vehicle certification process such materials compatibility, and drivability. contents. that they could be considered Furthermore, E12 would still need to In 1991, EPA amended the ‘‘substantially similar’’ to the fulfill registration requirements (i.e. interpretive rule by revising the oxygen certification fuels used by EPA. With speciation and health effects testing content criteria to allow fuels containing respect to the emissions effects of mid- found at 40 CFR 79.52 and 40 CFR aliphatic ethers and/or alcohols level blends on emissions performance, 79.53). (excluding methanol) to contain up to EPA recognizes that there may be EPA also seeks comments on 257 2.7% by weight oxygen. EPA based different impacts depending on the kind additional regulatory and this increase in the oxygen content on of motor vehicle involved. For example, implementation issues that would arise its review of information on a wide it has been suggested that older as a result of changing the ‘‘substantially variety of alcohol and ether blends, technology motor vehicles and engines similar’’ definition to allow for E12. leading it to determine that ‘‘unleaded may have emissions and durability These issues as identified for mid-level gasolines with such oxygen content are impacts from ethanol blends higher than blends in the discussion in Section chemically and physically substantially 10 percent, while Tier 2 and later V.D.3.b include, but are not necessarily similar to, and have been shown to have technology vehicles—2004 and later limited to, the applicability of the 1.0 emissions properties substantially model year vehicles—may have fewer psi RVP waiver with regard to 10% similar to, unleaded gasolines used in such impacts.261 These more recent ethanol blends found at 40 CFR light-duty vehicle certification.’’ 258 Finally, in 2008, EPA amended the 259 73 FR 22277 (April 25, 2008). emissions effects and durability problems when interpretive rule to allow flexibility for 260 One point to be clear on is that the using mid-level blends. the vapor/liquid ratio specification for substantially similar provision relates to fuels used 262 As mentioned earlier, EPA has typically used fuel introduced into commerce in the in certification. It is not an issue of whether mid- the oxygen weight percent convention when level blends are substantially similar to a fuel that interpreting the ‘‘substantially similar’’ provision. A has received a waiver of this prohibition. See 46 FR change in the ‘‘substantially similar’’ interpretation 255 43 FR 11258 (March 17, 1978), 43 FR 24131 38582, 38583 (July 28, 1981). The fuels used in to allow for up to 4.5% oxygen by weight in the (June 2, 1978). certification include the test fuels used for exhaust form of ethanol would essentially accommodate 256 45 FR 67443 (October 10, 1980), 46 FR 38582 testing, test fuels for evaporative emissions testing, ethanol blends up to 12% by volume since the vast (July 28, 1981). and the fuels used in the durability process. majority of gasolines blended at 12% by volume 257 56 FR 5352 (February 11, 1991). 261 It has also been suggested that nonroad ethanol would not exceed this oxygen weight 258 56 FR at 5353. engines and equipment may experience greater percent limit.

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80.27(d), Clean Air Act section 211(h); and use including production/extraction and our overall methodology so as to the accommodation of ethanol blends in of the feedstock, feedstock assure the most robust assessment of making calculations utilizing the transportation, fuel production, fuel lifecycle GHG performance for the final complex model for reformulated and transportation and distribution, and rule. conventional gasoline at 40 CFR 80.45; tailpipe emissions.263 This section EPA believes that compliance with and detergent certification requirements describes and seeks comment on the the EISA mandate—determining the found at 40 CFR 80 (Subpart G). methodology developed by EPA to aggregate GHG emissions related to the Emissions speciation and health effects determine the lifecycle greenhouse gas full fuel lifecycle, including both direct testing is required for oxygenate-specific (GHG) emissions of biofuels fuels as emissions and significant indirect blends under 40 CFR 79 (Subpart F). required by EISA as well as the emissions such as land use changes— Such testing is currently underway for petroleum-based transportation fuels makes it necessary to assess those direct 10% ethanol blends but not for ethanol being replaced. While much of the and indirect impacts that occur not just levels higher than 10 percent. discussion below focuses on those within the United States and also those Additionally, if E12 was allowed under portions of lifecycle assessment that occur in other countries. This the ‘‘substantially similar’’ definition, particularly important to biofuel applies to determining the lifecycle presumably such a blend would have to production, the basic methodology was emissions for petroleum-based fuels, to meet one of the volatility classes of the same for analyzing both petroleum- determine the baseline, as well as the ASTM D4814–88, which is not now the based fuels and biofuels. This lifecycle emissions for biofuels. For case with some blends of 10% ethanol methodology was utilized to determine biofuels, this includes evaluating blended under the E10 Waiver. Any which biofuels (both domestic and significant emissions from indirect land change in the allowable maximum imported) qualify for the four different use changes that occur in other ethanol level in motor fuels will impact GHG reduction thresholds established countries as a result of the increased these and, potentially, other motor fuel in EISA. This threshold assessment production and importation of biofuels regulations. compares the lifecycle emissions of a in the U.S. As detailed below, we have Furthermore, there are also particular biofuel including its included the GHG emission impacts of implications beyond EPA’s motor fuel production pathway against the international indirect land use changes. regulations. Existing equipment in retail lifecycle emissions of the petroleum- We recognize the significance of stations is certified by Underwriters based fuel it is replacing (e.g., ethanol including international land use Laboratories only up to 10% ethanol. replacing gasoline or biodiesel replacing emissions impact and in our analysis Thus, either existing equipment would diesel). This section also seeks comment presentation we have been transparent need to be recertified for E12 (if on the Agency’s proposal to utilize the in breaking out the various sources of possible) or it would have to be replaced discretion provided in EISA to adjust GHG emissions so that the reader can before E12 could be effectuated in the these thresholds downward should readily see the impact of including marketplace. In addition, the certain conditions be met. We also international land use impacts. substantially similar prohibition applies explain how feedstocks and fuel types In addition to the many technical to the fuel manufacturer, and if the not included in our analysis will be issues addressed in this proposal, this reinterpretation only applied to gasoline addressed and incorporated in the section also discusses the emissions used with Tier 2 and later motor future. The overall GHG benefits of the decreases and increases associated with vehicles, then the manufacturer of a RFS program, which are based on the the different parts of the lifecycle mid-level blend could not introduce it same methodology presented here, are emissions of various biofuels, and the timeframes in which these emissions into commerce for use with any other provided in Section VI.F. changes occur. Determining a single motor vehicles. This means that the fuel As described in detail below, EPA has lifecycle value that best represents this distribution system would need to be analyzed the lifecycle GHG impacts of combination of emissions increases and structured in such a way that the fuel the range of biofuels currently expected decreases occurring over time led EPA manufacturer could appropriately to contribute significantly to meeting to consider various alternative ways to ensure that the fuel was only used in the volume mandates of EISA through analyze the timeframe of emissions Tier 2 or later motor vehicles. 2022. In these analyses we have used the best science available. Our analysis related to biofuel production and use as Preventing the misfueling of mid-level relies on peer reviewed models and the well as options for adjusting or blends into vehicles and engines not best estimate of important trends in discounting these emissions to specified in the interpretive rule, and agricultural practices and fuel determine their net present value. ensuring the availability of fuels for production technologies as these may Several variations of time period and other vehicles and engines, poses a impact our prediction of individual discount rate are discussed. The major problem with reinterpreting biofuel GHG performance through 2022. analytical time horizon and the choice ‘‘substantially similar’’ to include mid- We have identified and highlighted whether to discount GHG emissions level blends with a restriction for use in assumptions and model inputs that and, if so, at what appropriate rate can Tier 2 and later motor vehicles. (For a particularly influence our assessment have a significant impact on the final more detailed discussion on this issue, and seek comment on these assessment of the lifecycle GHG see Section V.D.3.c above). We seek assumptions, the models we have used emissions impacts of individual biofuels comment on these logistical and as well as the overall GHG impacts of regulatory concerns as well. 263 In this preamble, we are considering ‘‘lifecycle these EISA provisions and this rule. VI. Impacts of the Program on analysis’’ in the context of estimating GHG We believe that our lifecycle analysis emissions, as required by EISA. More generally, the is based on the best available science, Greenhouse Gas Emissions term ‘‘lifecycle analysis’’ or ‘‘assessment’’ has been defined as an evaluation of all the environmental and recognize that in some aspects it A. Introduction impacts across the range of media/exposure represents a cutting edge approach to Lifecycle modeling, often referred to pathways that are associated with a ‘‘cradle to addressing lifecycle GHG emissions. as fuel cycle or well-to-wheel analysis, grave’’ view of a product or set of policies. For more Because of this, varying degrees of information on this broader context, please see the assesses the net impacts of a fuel 2006 EPA publication ‘‘Life Cycle Assessment: uncertainty are in our analysis. For this throughout each stage of its production Principles and Practice (EPA/600/R–06/060). proposal, we conducted a number of

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sensitivity analyses which focus on key biomass-based diesel and advanced moving the fuel to market, and parameters and demonstrate how our biofuels must achieve a 50% reduction, combusting the fuel.) EPA used this assessments might change under and cellulosic biofuels a 60% reduction, approach for the lifecycle modeling alternative assumptions. By focusing unless these thresholds are adjusted conducted for the RFS1 program in attention on these key parameters, the according to the provisions in EISA. To 2005. However, it has become comments we receive as well as EPA’s knowledge, the GHG reduction increasingly apparent that this type of additional investigation and analysis by thresholds presented in EISA are the first order or attributional lifecycle EPA will allow narrowing of uncertainty first lifecycle GHG performance modeling has notable shortcomings, concerns for the final rule. In addition requirements included in federal law. especially when evaluating the to this sensitivity analysis approach, we These thresholds, in combination with implications of biofuel policies.265 In will also explore options for more the renewable fuel volume mandates, fact, the main criticism EPA received in formal uncertainty analyses for the final are designed to ensure significant GHG reaction to our previous RFS1 lifecycle rule to the extent possible. emission reductions from the use of analysis was that we did not include Because lifecycle analysis is a new renewable fuels and encourage the use important secondary, indirect, or part of the RFS program, in addition to of GHG-reducing renewable fuels. consequential impacts of biofuel the formal comment period on the The definition of lifecycle greenhouse production and use. proposed rule, EPA is making multiple gas emissions established by Congress is Several studies and analyses efforts to solicit public and expert also critical. Congress specified that: conducted since the completion of RFS1 feedback on our proposed approach. As The term ‘lifecycle greenhouse gas have contributed to our understanding discussed in Section XI, EPA plans to emissions’ means the aggregate quantity of of the lifecycle GHG emissions of hold a public workshop during the greenhouse gas emissions (including direct biofuel production. These studies, and comment period focused specifically on emissions and significant indirect emissions others, have highlighted the potential our lifecycle analysis to help ensure full such as significant emissions from land use impacts of biofuel production on the understanding of the analyses changes), as determined by the agricultural sector and have specifically conducted, the issues addressed and Administrator, related to the full fuel identified land use change impacts as an lifecycle, including all stages of fuel and options that should be considered. We feedstock production and distribution, from important consideration when expect that this workshop will help feedstock generation or extraction through determining GHG impacts of ensure that we receive the most the distribution and delivery and use of the biofuels.266 267 In the meantime, the thoughtful and useful comments to this finished fuel to the ultimate consumer, where dramatic increase in U.S. production of proposal and that the best methodology the mass values for all greenhouse gases are biofuels has heightened the concern and assumptions are used for adjusted to account for their relative global about the impacts biofuels might have 264 calculating GHG emissions impacts of warming potential. on land use and has increased the fuels for the final rule. Additionally we This definition requires EPA to look importance of considering these indirect will conduct peer-reviews of key broadly at lifecycle analyses and to impacts in lifecycle analysis. components of our analysis. As develop a methodology that accounts for Based on the evolution of lifecycle explained in more detail in the all the important factors that may analysis and the new requirements of following sections, EPA is specifically significantly influence this assessment, EISA, we have developed a seeking peer review of: Our use of including the secondary or indirect comprehensive methodology for satellite data to project future land use impacts of expanded biofuels use. EPA’s estimating the lifecycle GHG emissions changes; the land conversion GHG analysis described below indicates that associated with renewable fuels. emissions factors estimated by Winrock; the assessment of lifecycle GHG Through dozens of meetings with a our estimates of GHG emissions from emissions for biofuels is significantly wide range of experts and stakeholders, foreign crop production; methods to affected by the secondary agricultural EPA has shared and sought input on account for the variable timing of GHG sector GHG impacts from increased this methodology. We also have relied emissions; and how models are used biofuel feedstock production (e.g., on the expertise of the U.S. Department together to provide overall lifecycle changes in livestock emissions due to of Agriculture (USDA) and the GHG estimates. changes in agricultural commodity Department of Energy (DOE) to help The regulatory purpose of the prices) and also by the international inform many of the key assumptions lifecycle greenhouse gas emissions impact of land use change from and modeling inputs for this analysis. analysis is to determine whether increased biofuel feedstock production. Dialogue with the State of California renewable fuels meet the GHG Thus, these factors must be and the European Union on their thresholds for the different categories of appropriately incorporated into EPA’s parallel, on-going efforts in GHG renewable fuel. lifecycle methodology to properly assess 1. Definition of Lifecycle GHG full lifecycle GHG performance of 265 See also, Conceptual and Methodological Emissions biofuels in accordance with the EISA Issues in Lifecycle Analysis of Transportation definition. Fuels, Mark A. Delucchi, Institute of Transportation The GHG provisions in EISA are Studies, University of California, Davis, 2004, UCD– notable for the GHG thresholds 2. History and Evolution of GHG ITS–RR–04–45 for a description of issues with Lifecycle Analysis traditional lifecycle analysis used to model GHG mandated for each category of impacts of biofuels and biofuel policies. renewable fuel and also the mandated Traditionally, the GHG lifecycle 266 Fargione, J., J. Hill, D. Tilman, S. Polasky, and lifecycle approach to those thresholds. analysis of fuels has involved P. Hawthorne. 2008. Land clearing and the biofuel Renewable fuel must, unless calculating the emissions associated carbon debt. Science 319:1235–1238. See http:// www.sciencemag.org/cgi/reprint/319/5867/ ‘‘grandfathered’’ as discussed in Section with each individual stage in the 1235.pdf. II.B.3., achieve at least 20% reduction in production and use of the fuel (e.g., 267 Searchinger, T., R. Heimlich, R.A. Houghton, lifecycle greenhouse gas emissions growing or extracting the feedstock, F. Dong, A. Elobeid, J. Fabiosa, S. Tokgoz, D. Hayes, compared to the average lifecycle moving the feedstock to the processing and T.-H. Yu. 2008. Use of U.S. croplands for biofuels increases greenhouse gases through greenhouse gas emissions for gasoline or plant, processing the feedstock into fuel, emissions from land-use change. Science 319:1238– diesel sold or distributed as 1240. See http://www.sciencemag.org/cgi/reprint/ transportation fuel in 2005. Similarly, 264 Clean Air Act Section 211(o)(1). 319/5867/1238.pdf.

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lifecycle analysis has also helped inform section describes the biofuels-related crop yields, energy costs, or production EPA’s methodology. As part of this methodologies and identifies important plant efficiencies, both domestically and discussion, we have identified several of issues for comment. Assessing the internationally, are reflected in both the key drivers associated with these complete lifecycle GHG impact for each scenarios. We focused our analyses on lifecycle GHG emissions estimates, individual biofuel mandated by EISA 2022 results for three reasons. First, it including assumptions about requires that a number of key would require an extremely complex international land use change and the methodological issues be addressed— assessment and administratively timing of GHG emissions over time. The from the choice of a baseline to the difficult implementation program to inputs we have received through these selection of the most credible technique track how biofuel production might interactions are reflected throughout for predicting international land use continuously change from month to this section. conversion due to the increase in U.S. month or year to year. Instead, it seems Specifically EPA has worked closely renewable fuels demand, to accounting appropriate that each biofuel be with the California Air Resources Board for the time dimension of changes in assessed a level of GHG performance (CARB) regarding their development of GHG emissions. In this section, we first that is constant over the implementation transportation fuels lifecycle GHG describe the scenarios we have analyzed of this rule, allowing fuel providers to impacts. California Executive Order S– for this proposal. Second, we discuss anticipate how these GHG performance 1–07, the Low Carbon Fuel Standard the scope of our analysis and what is assessments should affect their (LCFS) (issued on January 18, 2007), included in our estimates. Third, we production plans. Second, it is calls for a reduction of at least 10 provide details on the tools and models appropriate to focus on 2022, the final percent in the carbon intensity of we used to quantify the GHG emissions year of ramp up in the required volumes California’s transportation fuels by associated with the different fuels. of renewable fuel as this year. 2020. CARB has worked to develop Fourth, we discuss the uncertainties Assessment in this year allows the lifecycle GHG impacts of different fuels associated with lifecycle analysis and complete fuel volumes specified in for this Executive Order rulemaking. how we have addressed them. Fifth, we EISA to be incorporated. Third, since More information about this rulemaking describe the different components of the the GHG assessment compares and the lifecycle analysis conducted by lifecycle that we have analyzed and the performance between a business as California can be found at http:// key questions we have addressed in this usual case and the mandated volumes www.arb.ca.gov/fuels/lcfs/lcfs.htm. EPA analysis. case, many of the factors that change will continue to coordinate with over time such as crop yield per acre are California on this rulemaking and the 1. Scenario Description reflected in both cases. Therefore the biofuels lifecycle GHG analysis work. To quantify the lifecycle GHG differences in these parallel assessments Because this lifecycle GHG emissions emissions associated with the increase are unlikely to vary significantly over analysis is complex and requires the use in renewable fuel mandated by EISA, time. of sophisticated computer models, we we compared the differences in total EPA requests comment on its have taken several steps to increase the GHG emissions between two future proposal to adopt fixed assessments of transparency associated with our scenarios. The first assumed a ‘‘business fuels meeting the GHG thresholds based analysis. For example, we have updated as usual’’ volume of a particular on a 2022 performance assessment. the model documentation for the Forest renewable fuel based on what would Additional information on the scenarios and Agricultural Sector Optimization likely be in the fuel pool in 2022 modeled and the supplemental analyses Model (FASOM), which is included in without EISA, as predicted by the that will be conducted for the final rule the docket. In addition, we have Energy Information Agency’s Annual is included in Chapter 2 of the DRIA. highlighted key assumptions in FASOM Energy Outlook (AEO) for 2007 (which In the existing Renewable Fuel and the Food and Agricultural Policy took into account the economic and Standard rules adopted in response to Research Institute (FAPRI) models that policy factors in existence in 2007 the Energy Policy Act of 2005, biofuels impact the results of our analysis. before EISA). The second assumed the and RINs associated with them are not Finally, this NPRM provides an higher volume of renewable fuels as based on regional differences of where important opportunity for the Agency to mandated by EISA for 2022. For each the feedstock was grown or the biofuel present our work and to receive input individual biofuel, we analyzed the was produced. In effect, the RINs apply from stakeholders and experts in this incremental GHG emission impacts of to a national average of the fuel type. field. We will also continue to refine our increasing the volume of that fuel to the Similarly, this proposal does not analysis between the proposed and final total mix of biofuels needed to meet the distinguish biofuel on the basis of where rules, and we will add or update EISA requirements. Rather than focus within the country the biofuel feedstock information to the docket as it becomes on the impacts associated with a was grown or the biofuel produced. available. specific gallon of fuel and tracking Thus, for example, ethanol produced from corn starch using the same B. Methodology inputs and outputs across different lifecycle stages, we determined the production technology will receive the This section describes EPA’s overall aggregate impacts across sections same GHG lifecycle assessment methodology for assessing the lifecycle of the economy in response to a given regardless of where the corn was grown GHG emissions associated with each volume change in the amount of biofuel or at what facility the biofuel was biofuel evaluated as well as the produced. There are regional differences produced.268 petroleum-based gasoline and diesel This analysis is not a comparison of in soil types, weather conditions, and fuel these biofuels would replace. biofuel produced today versus biofuel other factors which could affect, for Whereas lifecycle GHG emission produced in the future. Instead, it is a example, the amount of fertilizer methodologies have been well studied comparison of two future scenarios. Any applied and thus the GHG impact of and established for petroleum-based projected changes in factors such as corn production. Such factors could gasoline and diesel fuel, much of EPA’s vary somewhat across a region, within work has focused on newly developing 268 We then normalize those impacts for each a state and even within a county. The lifecycle methodologies for biofuels. gallon of fuel (or Btu) by dividing total impacts over agricultural models used to conduct this Therefore, much of the following the given volume change. analysis do distinguish crop production

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by region domestically and by country producer, the production of renewable outside the U.S. play a major part of the internationally. However, biofuel fuel, the distribution of the finished fuel full fuel lifecycle of baseline and feedstocks such as corn or soybean oil to the consumer, and the use of the fuel renewable fuels. For example, for are well traded commodities including by the consumer as transportation fuel. baseline fuels (i.e., gasoline and diesel internationally. So, for example, if corn Similarly, direct emissions associated fuels used as transportation fuel in in a certain location in Iowa is used to with the baseline fuel would include 2005), GHG emissions associated with produce ethanol, corn from all other extraction of the crude oil, distribution extraction and delivery of crude oil regions will be used to replace that corn of the crude oil to the refinery, the imported to the U.S. all have occurred for all its other potential uses. production of gasoline and diesel from overseas. In addition, for imported Therefore, it is not appropriate to the crude oil, the distribution of the gasoline or diesel, all of the crude ascribe the indirect affects, both finished fuel to the consumer, and the extraction and delivery emissions, as domestically and internationally, to use of the fuel by the consumer. Indirect well as the emissions associated with corn grown in one area differently to emissions would include other refining and distribution of the finished corn (or other biofuel feedstock) grown emissions impacts that result from fuel product to the U.S., would have in another area. Our national treatment production or use, such as changes in occurred overseas. For imported of biofuel feedstock also pertains to livestock emissions resulting from renewable fuel all of the emissions fuels produced in other countries. Thus changes in livestock numbers, or shifts associated with feedstock production for example, sugarcane-based ethanol in acreage between different crop types. and distribution, processing of the produced in Brazil is all treated the The definition of indirect emissions feedstock into renewable fuel, and same regardless of where the sugarcane specifically includes ‘‘land use delivery of the finished renewable fuel was grown in Brazil. Nevertheless, changes’’ which would include changes to the U.S. would have occurred comments are invited on the option of in the kind of usage that land is put to overseas. The definition of lifecycle differentiating biofuels in the future such as changes in forest, pasture, greenhouse gas emissions makes it clear based on the location of their feedstock savannah, and crop use.269 that EPA is to determine the aggregate production within a country. In considering how to address land emissions related to the ‘‘full’’ fuel use changes in our lifecycle analysis, lifecycle, including ‘‘all stages of fuel 2. Scope of the Analysis two distinct questions have been and feedstock production and a. Legal Interpretation of Lifecycle raised—whether to account for distribution.’’ Thus, EPA could not, as Greenhouse Gas Emissions emissions that occur outside of the U.S., a legal matter, ignore those parts of a As described in VI.A.1, the definition and under what circumstances land use fuel lifecycle that occur overseas. of lifecycle greenhouse gas emissions change should properly be included in Drawing a distinction between GHG refers to the ‘‘aggregate quantity of GHG the lifecycle analysis. emissions that occur inside the U.S. as On the question of considering GHG emissions’’ that are ‘‘related to the full compared to emissions that occur emissions that occur outside of the U.S., fuel lifecycle.’’ The fuel lifecycle outside the U.S. would dramatically it is important to be clear that including includes ‘‘all stages of fuel and alter the lifecycle analysis in a way that such emissions in the lifecycle analysis feedstock production and distribution, bears no apparent relationship to the does not exercise regulatory authority from feedstock generation or extraction purpose of this provision. The purpose over activities that occur solely outside through * * * use of the finished fuel of including lifecycle GHG thresholds in the U.S., and does not raise questions of to the ultimate consumer.’’ The this statutory provision is to require the extra-territorial jurisdiction. EPA’s aggregate quantity of GHG emissions use of renewable fuels that achieve regulatory action involves classification includes ‘‘direct emissions’’ and reductions in GHG emissions compared of products either produced in the U.S. ‘‘significant indirect emissions such as to the baseline. Drawing a distinction or imported into the U.S. EPA is simply significant emission from land use between domestic and international assessing whether the use of these changes.’’ This provision is written in emissions would ignore a large part of products in the U.S. satisfies generally broad and expansive terms, the GHG emission associated with the requirements under the Clean Air Act such as ‘‘aggregate quantity’’, ‘‘related different fuels, and would result in a for the use of designated volumes of to’’, ‘‘full fuel lifecycle’’, and ‘‘all GHG analysis of baseline renewable renewable fuel, cellulosic biofuel, stages’’ of production and distribution. fuels that bears no relationship to the biomass-based diesel and advanced At the same time, these and other terms real world emissions impact of the fuels. biofuel, as those terms are defined in the are not themselves defined and provide The baseline would be significantly Act. Considering international discretion to the Administrator in understated, given the large amount of emissions in determining the lifecycle implementing this definition. For imported crude used to produce GHG emissions of the domestically example, the word ‘‘significant,’’ which gasoline and diesel, and the importation produced or imported fuel does not is used to modify ‘‘indirect emissions,’’ of finished gasoline and diesel, in 2005. change the fact that the actual regulation is not defined. Likewise, the emissions associated with of the product involves its use solely The definition includes both ‘‘direct’’ imported renewable fuel would be inside the U.S. and ‘‘significant indirect’’ emissions understated, as it would only consider When looking at the issue of related to the full fuel lifecycle. We the emissions from distribution of the international versus domestic consider direct emissions as those that fuel to the consumer and the use of the emissions, it is important to recognize are emitted from each stage of the full fuel by the consumer, and would ignore that a large variety of different activities fuel lifecycle, and indirect emissions as both the emissions that occurred those from second order effects that 269 Arguably shifts in acreage between different overseas as well as the emissions occur as a consequence of the full fuel crops also could be considered a land use change, reductions from the intake of CO2 from lifecycle. For example, direct emissions but we believe there will be less confusion if the growing of the feedstock. While large for a renewable fuel would include term land use change is used with respect to percentages of GHG emissions would be changes in land such as changing from savannah or those from the growing of renewable forest to cropland. There is no difference in result, ignored, this would take place in a fuel feedstock, the distribution of the as in both cases the emissions need to be context where the global warming feedstock to the renewable fuel significant. impact of emissions is irrespective of

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where the emissions occur. Thus taking fuel lifecycle. The term ‘‘related to’’ is promote the objectives of this provision, such an approach would essentially generally interpreted as providing a as compared to ignoring or not undermine the provision, and would be broad and expansive scope for a accounting for these indirect emissions. an arbitrary interpretation of the broadly provision. It has routinely been b. System Boundaries phrased text used by Congress. interpreted as meaning to have a While the emissions discussed above connection to or refer to a matter. To It is important to establish clear would more typically be considered determine whether an indirect emission system boundaries in this analysis. By direct emissions related to the full fuel has the appropriate connection to the determining a common set of system lifecycle, there would also be no basis full fuel lifecycle, we must look at both boundaries, different fuel types can then to cover just foreign direct emissions the objectives of this provision as well be validly compared. As described in while excluding foreign indirect as the nature of the relationship. the previous section, we have assessed emissions. The text of the statute draws In this case, EPA has used a global the direct and indirect GHG impacts in no such distinction, nor is there a model that projects a variety of each stage of the full fuel lifecycle for distinction in achieving the purposes of agricultural impacts that stem from the biofuels and petroleum fuels. the provision. GHG emissions impact use of feedstocks to produce renewable To capture the direct emissions global warming wherever they occur, fuel. We have estimated shifts in types impacts of feedstock production in our and if the purpose is to achieve some of crops planted and increases in crop analysis, we included the agricultural reduction in GHG emissions in order to acres planted. There is a direct inputs (e.g., the fuel used in the tractor, help address global warming, then relationship between these shifts in the the energy used to produce and ignoring GHG emissions because they agricultural market as a consequence of transport fertilizer to the field) needed are emitted outside our borders versus the increased demand for biofuels in the to grow crops directly used in biofuel inside our borders interferes with the U.S. Increased U.S. demand for biofuel production. We also included the N2O ability to achieve this objective. feedstocks diverts these feedstocks from emissions associated with agricultural For example, domestic production of other competing uses, and also increases sector practices used in biofuel a renewable fuel could lead to indirect the price of the feedstock, thus spurring production (including direct and emissions, whether from land use production. To the extent feedstocks indirect N2O emissions from synthetic changes or otherwise, some occurring like corn and soybeans are traded fertilizer application, N fixing crops, within the U.S. and some occurring in internationally, this combined impact of crop residue, and manure management), other countries. Similarly, imported lower supply from the U.S. and higher as well as the land use change renewable fuel could have resulted in commodity prices encourages associated with converting land to grow the same indirect emissions whether international production to fill the gap. crops directly used in biofuel occurring in the country that produced Our analysis uses country specific production. To capture the indirect, or the biofuel or in other countries. It information to determine the amount, secondary, GHG emissions that result would be arbitrary to assign the indirect location, and type of land use change from biofuel feedstock production, we emissions to the domestic renewable that would occur to meet this change in relied on the internationally accepted fuel but not to assign the identical production patterns. The linkages are lifecycle assessment standards indirect emissions that occur overseas to generally close, and are not extended or developed by the International an imported product. overly complex. While there is clearly Organization for Standardization (ISO). Based on the above, EPA believes that significant uncertainty in determining Examples of significant secondary the definition of lifecycle greenhouse the specific degree of land use change impacts include the agricultural inputs gas emissions is properly interpreted as and the specific impact of those associated with crops indirectly including all direct and significant changes, there is considerable overall impacted by the use of feedstock for indirect GHG emissions related to the certainty as to the existence of the land biofuel production (domestically and full fuel lifecycle, whether or not they use changes in general, the fact that internationally), the emissions occur in the U.S. This applies to both GHG emissions will result, and the associated with land use change that are the baseline lifecycle greenhouse cause and effect linkage of these indirectly impacted by using feedstocks emissions as well as the lifecycle emissions impacts to the increased use for biofuel production (e.g., to make up greenhouse gas emissions for various of feedstock for production of renewable for lost U.S. exports), changes in renewable fuels. fuels. livestock herd numbers that result from EPA recognizes, as discussed later, Overall, EPA is confident that it is higher feed costs, and changes in rice our estimates of domestic indirect appropriate to consider the estimated methane emissions indirectly impacted emissions are more certain than our emissions from land use changes as well by shifts in acres to produce feedstocks estimate of international indirect as the other indirect emissions as for biofuel production. These indirect or emissions. The issue of how to evaluate ‘‘related to’’ the full fuel lifecycle, based secondary impacts would not have and weigh the various elements of the on the reasonable technical basis occurred if it were not for the use of lifecycle analysis, and properly account provided by the modeling for the biomass to produce a biofuel. for uncertainty in our estimates, is a connection between the full fuel We did not include the infrastructure different issue, however. The issue here lifecycle and the indirect emissions, as related GHG emissions (e.g., the energy is whether the definition of lifecycle well as for the determination that the needed to manufacture the tractor used greenhouse gas emissions is properly emissions are significant. EPA believes on the farm) or the facility construction- interpreted as including direct and uncertainty in the resulting aggregate related emissions (e.g., steel or concrete significant indirect emissions that occur GHG estimates should be taken into needed to construct a refinery). As part outside the U.S. as well as those that consideration, but that it would be of the GHG analysis performed for occur inside the U.S. inappropriate to exclude indirect RFS1, we performed a sensitivity As to the question of which land use emissions estimates from this analysis. analysis on expanding the corn changes should be included in our Developing a reasonable estimate of production system to include farm lifecycle analyses, a central element to these kinds of indirect emissions will equipment production to determine the focus on is the requirement that such allow for a reasoned evaluation of total impact it has on the overall results of indirect emissions be related to the full GHG impacts, which is needed to our analysis. We found that including

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farm equipment production energy use composite lifecycle assessment results. associated emissions, we used the and emissions increases corn ethanol As this is a new application of these FASOM model, developed by Texas lifecycle energy use and GHG emissions modeling tools, EPA plans to organize A&M University and others. FASOM is and decreases the corn ethanol lifecycle peer review of our modeling approach. a partial equilibrium economic model of GHG benefit as compared to petroleum The individual models are described in the U.S. forest and agricultural sectors. gasoline by approximately 1%. the following sections and in more EPA selected the FASOM model for this Furthermore, to be consistent in the detail in Chapter 2 of the DRIA. analysis for several reasons. FASOM is modeling if system boundaries are To quantify the emissions factors a comprehensive forestry and expanded to include production of associated with different steps of the agricultural sector model that tracks farming equipment they should also be production and use of various fuels over 2,000 production possibilities for expanded to include producing other (e.g., extraction of petroleum products, field crops, livestock, and biofuels for material inputs to both the ethanol and transport of feedstocks), we used the private lands in the contiguous United petroleum lifecycles. The net effect of spreadsheet analysis tool developed by States. It accounts for changes in CO2, this would be a slight increase in both Argonne National Laboratories, the methane, and N2O from most the ethanol and petroleum fuel lifecycle Greenhouse gases, Regulated Emissions, agricultural activities and tracks carbon results and a smaller or negligible effect and Energy use in Transportation sequestration and carbon losses over on the comparison of the two. (GREET) model. This analysis tool time. Another advantage of FASOM is For this proposal, we have not yet includes the GHG emissions associated that it captures the impacts of all crop incorporated secondary energy sector with the production and combustion of production, not just biofuel feedstock. impacts, however we plan to have this fossil fuels (diesel fuel, gasoline, natural Thus, as compared to some earlier analysis complete for the final rule. gas, coal, etc.). These fossil fuels are assessments of lifecycle emissions, Additional details on the system used both in the production of biofuels, using FASOM allows us to determine boundaries are included in the DRIA (e.g., diesel fuel used in farm tractors secondary agricultural sector impacts, Chapter 2. and natural gas used at ethanol plants) such as crop shifting and reduced and could also be displaced by 3. Modeling Framework demand due to higher prices. It also renewable fuel use in the transportation captures changes in the livestock market Currently, no single model can sector. GREET also estimates the GHG (e.g., smaller herd sizes that result from capture all of the complex interactions emissions estimates associated with higher feed costs) and U.S. export associated with estimating lifecycle electricity production required for changes. FASOM also has been used by GHG emissions for biofuels, taking into biofuel and petroleum fuel production. EPA to consider U.S. forest and account the ‘‘significant indirect For the agricultural sector, we also agricultural sector GHG mitigation emissions such as significant emissions relied upon GREET to provide GHG 270 from land use change’’ required by options. emissions associated with the To estimate the impacts of biofuels EISA. For example, some analysis tools production and transport of agricultural feedstock production on international used in the past focus on process inputs such as fertilizer, herbicides, agricultural and livestock production, modeling—the energy and resultant pesticides, etc. While GREET provides we used the integrated FAPRI emissions associated with the direct direct GHG emissions estimates international models, developed by production of a fuel at a petroleum associated with the extraction-through- Iowa State University and the refinery or biofuel production facility. combustion phases of fuel use, it does University of Missouri. These models But this is only one component in the not capture some of the secondary capture the biological, technical, and production of the fuel. Clearly in the impacts associated with the fuel, such case of biofuels, impacts from and on economic relationships among key as changes in the composition of feed variables within a particular commodity the agricultural sector are important, used for animal production, which because this sector produces feedstock and across commodities. FAPRI is a would be expected due to changes in worldwide agricultural sector economic for biofuel production. Commercial cost. EPA addresses these secondary agricultural operations make many of model that was run by the Center for impacts through other models described Agricultural and Rural Development their decisions based on an economic later in this section. GREET has been (CARD) at Iowa State University on assessment of profit maximization. under development for several years behalf of EPA. The FAPRI models have Assessment of the interactions and has undergone extensive peer been previously employed to examine throughout the agricultural sector review through multiple updates. Of the the impacts of World Trade requires an analysis of the commodity available sources of information on Organization proposals and changes in markets using economic models. lifecycle GHG emissions of fossil energy the European Union’s Common However, existing economy wide consumed, we believe that GREET offers Agricultural Policy, to analyze farm bill general equilibrium economic models the most comprehensive treatment of proposals since 1984, and to evaluate are not detailed enough to capture the emissions from the covered sources. specific agricultural sector interactions For some steps in the production of the impact of biofuel development in critical to our analysis (e.g., changes in biofuels, we used more detailed models the United States. In addition, the acres by crop type) and would not to capture some of the dynamic market FAPRI models have been used by the provide the types of outputs needed for interactions that result from various USDA Office of Chief Economist, a thorough GHG analysis. As a result, policies. Here, we briefly describe the Congress, and the World Bank to EPA has used different tools that have different models incorporated into our examine agricultural impacts from different strengths for each specific analysis to provide specific details for government policy changes, market component of the analysis to create a various lifecycle components. developments, and land use shifts. more comprehensive estimate of GHG To estimate the changes in the Although FASOM predicts land use emissions. Where no direct links domestic agricultural sector (e.g., and export changes in the U.S. due to between the different models exist, changes in crop acres resulting from 270 Greenhouse Gas Mitigation Potential in U.S. specific components and outputs of increased demand for biofuel feedstock Forestry and Agriculture, EPA Document 430–R– each are used and combined to provide or changes in the number of livestock 05–006. See http://www.epa.gov/sequestration/ an analytical framework and the due to higher corn prices) and their greenhouse_gas.html.

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greater demand for domestic biofuel emissions from fertilizer application, 271 scale analysis, from fine-scale analysis feedstock, it does not assess how we are working with the CENTURY and to national inventory estimation. international agricultural production DAYCENT models, developed by Finally, for the FRM we intend to use might respond to these changes in Colorado State University, to update our an EPA version of the Energy commodity prices and U.S. exports. The assessments. The DAYCENT model Information Administration’s National FAPRI model does predict how much simulates plant-soil systems and is Energy Modeling System (NEMS) to crop land will change in other countries capable of simulating detailed daily soil estimate the secondary impacts on the but does not predict what type of land water and temperature dynamics and energy market associated with increased such as forest or pasture will be trace gas fluxes (CH4, N2O, NOX and N2). renewable fuel production. NEMS is a affected. We used data analyses The CENTURY model is a generalized modeling system that simulates the behavior of energy markets and their provided by Winrock International to plant-soil ecosystem model that interactions with the U.S. economy by estimate what land types will be simulates plant production, soil carbon dynamics, soil nutrient dynamics, and explicitly representing the economic converted into crop land in each soil water and temperature. We decision-making involved in the country and the GHG emissions anticipate the results of this new production, conversion, and associated with the land conversions. modeling work will be reflected in our consumption of energy products. NEMS Winrock has used 2001–2004 satellite assessments for the final rule. More can reflect the secondary impacts that data to analyze recent land use changes description of this ongoing work is greater renewable fuel use may have on around the world that have resulted included in the Chapter 2 of the DRIA. the prices and quantities of other from the social, economic, and political To estimate the GHG emissions sources of energy, and the greenhouse forces that drive land use. Winrock has associated with renewable fuel gas emissions associated with these then combined the recent land use production, we used detailed ASPEN- changes in the energy sector. It was not change patterns with various estimates based process models developed by possible to complete this analysis in of carbon stocks associated with USDA and DOE’s National Renewable time for the NPRM different types of land at the state level. Energy Laboratory (NREL). While While EPA is using state-of-the-art This international land use assessment GREET contains estimates for renewable tools available today for each of the is an important consideration in our fuel production, these estimates are lifecycle components considered, using lifecycle GHG assessment and is based on existing technology. We expect multiple models necessitates integrating explained in more detail later in this biofuel production technology to these models and, where possible, section. improve over time, and we projected applying a common set of assumptions. To test the robustness of the FASOM, improvements in process technology As discussed later in this section, this FAPRI and Winrock results, we are also over time based on available is particularly important for the two agricultural sector models, FASOM and evaluating the Global Trade Analysis information. These projections are FAPRI, which are being used in Project (GTAP) model, a multi-region, discussed in DRIA Chapter 4. We then utilized the ASPEN-based process combination to describe the agricultural multi-sector, computable general models to assess the impacts of these sector impacts domestically and equilibrium model that estimates improvements. We also cross-checked internationally. As described in more changes in world agricultural the ASPEN-based process model detail in the DRIA Chapter 5, we have production. Maintained through Purdue predictions by comparing them to a worked with the FAPRI and FASOM University, GTAP projects international number of industry sources and other models to align key assumptions. As a land use change based on the economics modeling efforts that estimate potential result, the projected agricultural impacts of land conversion, rather than using the improvements in ethanol production described in Section IX are relatively historical data approach applied by over time, including the Biofuel Energy consistent across both models. One FAPRI/Winrock. GTAP is designed to Systems Simulator (BESS) model. BESS outstanding issue is the differences project changes in international land is a software tool developed by the between the modeling results associated use as a result of the change in U.S. University of Nebraska that calculates with increased soybean-based biodiesel biofuel policies, based on the relative the energy efficiency, greenhouse gas production. We intend to further refine land use values of cropland, forest, and (GHG) emissions, and natural resource the soybean biodiesel scenarios for the pastureland. The GTAP design has the requirements of corn-to-ethanol biofuel final rule. Additional details on all of advantage of explicitly modeling the production systems. We used the the models used can be found in DRIA competition between different land GREET model to estimate the GHG Chapter 2. Finally, as noted earlier, we types due to a change in policy. As emissions associated with current are planning to have a number of further discussed in Section VI.B.5.iv, technology as used by petroleum aspects of our modeling framework peer GTAP has several disadvantages, some refineries, because we do not expect reviewed before finalizing these of which prevented its use for the significant changes in petroleum regulations. In the sections below, we proposal. We expect to correct several of refinery technology. have identified specific peer review these shortcomings between the We used the EPA-developed Motor plans. Vehicle Emission Simulator (MOVES) to proposed and final rules and therefore 4. Treatment of Uncertainty continue to evaluate how the GTAP estimate vehicle tailpipe GHG model could be used as part of the final emissions. The MOVES modeling While EPA believes the methodology rule. system estimates emissions for on-road presented here represents a robust and and nonroad sources, covers a broad scientifically credible approach, we The assessments provided in this range of pollutants, and allows multiple recognize that some calculations of GHG proposal use the values provided by the emissions are relatively straight- Intergovernmental Panel on Climate 271 Crutzen, P. J., Mosier, A. R., Smith, K. A., and forward, while others are not. The Change (IPCC) to estimate the impacts of Winiwarter, W.: N2O release from agro-biofuel direct, domestic emissions are relatively N2O emissions from fertilizer production negates global warming reduction by well known. These estimates are based application. However, due to concern replacing fossil fuels, Atmos. Chem. Phys., 8, 389– 395, 2008. See http://www.atmos-chem-phys.net/8/ on well-established process models that that this may underestimate N2O 389/2008/acp-8-389-2008.pdf. can relatively accurately capture

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emissions impacts. For example, the crop land increases as a result of this have used sensitivity analyses to test the energy and GHG emissions used by a rule. Furthermore, the conversion of impact of changing these assumptions natural gas-fired ethanol plant to crop land will lead to GHG emission on our results. produce one gallon of ethanol can be from land conversion that must be i. Domestic Agricultural Sector Impacts calculated through direct observations, accounted for in the calculation of though this will vary somewhat between lifecycle GHG emissions. As discussed Agricultural Sector Inputs: GHG individual facilities. The indirect above, we believe that uncertainty in the emissions from agricultural sector domestic emissions are also fairly well effects and extent of land use changes is inputs (chemical and energy) are understood; however, these results are not a sufficient reason for ignoring land determined based on output from sensitive to a number of key use change emissions. Although FASOM combined with default factors assumptions (e.g., current and future uncertainties are associated with these for GHG emissions from GREET. Fuel corn yields). We address uncertainty in estimates, it would be far less use emissions from GREET include both this area by testing the impact of scientifically credible to ignore the the upstream emissions associated with changing these assumptions on our potentially significant effects of land use production of the fuel and downstream results. Finally, the indirect, change altogether than it is to use the combustion emissions. Inputs are based international emissions are the best approach available to assess these on historic rates by region and include component of our analysis with the known emissions. We anticipate that projected increases to account for yield highest level of uncertainty. For comment and information received in improvements over time. This yield example, identifying what type of land response to this proposal as well as increase does not capture changes due is converted internationally and the additional analyses will improve our to cropping practices such as shifts to emissions associated with this land assessment of land use impacts for the corn-after-corn rotations. conversion are critical issues that have final rule. Finally, we note that further N2O Emissions: FASOM estimates a large impact on the GHG emissions research on key variables will result in N2O emissions from fertilizer estimates. We address this uncertainty a more robust assessment of these application and nitrogen fixing crops by using sensitivity analyses to test the impacts in the future. based on the amount of fertilizer used robustness of the results based on 5. Components of the Lifecycle GHG and different regional factors to different assumptions. We also identify Emissions Analysis represent the percent of nitrogen (N) areas of additional work that will be fertilizer applied that result in N O As described previously, GHG 2 completed prior to the final rulemaking. emissions. This approach is consistent emissions from many stages of the full For example, while we utilized an with IPCC guidelines for calculating fuel lifecycle are included within the approach using comprehensive N O emissions from the agricultural system boundaries of this analysis. 2 agricultural sector models and recent 272 273 Details on how these emissions were sector. A recent paper raised the satellite data to determine the emissions calculated are included in the DRIA question of whether N2O emissions are resulting from international land use Section 2. This section highlights the significantly higher than previously impacts, we are also considering an key questions that we have attempted to estimated. To better understand this alternative methodology (the analyses address in our analysis. In addition, this issue, we are working with Colorado using GTAP) that estimates changes in section identifies some of the key State University to analyze N2O land use based on the relative land use assumptions that influence the GHG emissions. Specifically, Colorado State values of cropland, forest, and emissions estimates in the following University will provide several key pastureland. Additionally, we are section. refinements for a re-analysis of land use considering country-specific and cropping trends and GHG emissions information which may allow us to a. Feedstock Production in the FASOM assessment, including: • better predict specific trends in land use Our analysis addresses the lifecycle Direct N2O emissions based on such as the degree to which marginal or GHG emissions from feedstock DAYCENT simulations with an abandoned pasture land will need to be production by capturing both the direct accounting of all N inputs to replaced if used instead for crop and indirect impacts of growing corn, agricultural soils, including mineral N production. In addition to the soybeans, and other renewable fuel fertilizer, organic amendments, sensitivity analysis approach, we will feedstocks. For both domestic and symbiotic N fixation, asymbiotic N also explore options for more formal international agricultural feedstock fixation, crop residue N, and uncertainty analyses for the final rule to production, we analyzed four main mineralization of soil organic matter. the extent possible. However, formal sources of GHG emissions: agricultural Colorado State University will provide uncertainty analyses generally include inputs (e.g., fertilizer and energy use), (1) the total emission rate on an acre an assumption of a statistically based fertilizer N2O, livestock, and rice basis for each simulated bioenergy crop distribution of likely outcomes. In the methane. (Emissions related to land use in the 63 FASOM regions and (2) a total time available for developing this change are discussed in the next emissions for each N source. proposal, we have not developed an section). • Indirect N2O emissions on a per analytical technique which allows us to As described in Section IX.A, EPA acre basis using results from DAYCENT determine the likelihood of a range of uses FASOM to model domestic simulations of volatilization, leaching possible outcome across the wide range agricultural sector impacts and uses and runoff of N from each bioenergy of critical factors affecting lifecycle GHG FAPRI to model international crop included in the analysis for the 63 assessment. We specifically ask for agricultural sector impacts. However, FASOM regions, combined with IPCC recommendations on how best to we also recognize that these emission conduct a sound, statistically based estimates rely on a number of key 272 2006 Intergovernmental Panel on Climate uncertainty analysis for the final rule. assumptions, including crop yields, Change (IPCC) Guidelines for National Greenhouse Despite the uncertainty associated fertilizer application rates, use of Gas Inventories, Volume 4, Chapter 11, N2O emissions from Managed Soils, and CO2 Emissions with international land use change, we distiller grains and other co-products, from lime and Urea Application. See http:// would expect at least some international and fertilizer N2O emission rates. As www.ipcc-nggip.iges.or.jp/public/2006gl/vol4.html. land use change to occur as demand for described in the following sections, we 273 Crutzen et al., 2008.

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factors for the N2O emission associated ii. International Agricultural Sector used the FAPRI model to predict with the simulated N losses. GHG Impacts changes in international rice production as a result of the increase in biofuels The analyses with updated N2O Agricultural Sector Inputs: The FAPRI estimates are not yet complete and are model does not directly provide an demand in the U.S. Since FAPRI does not included in this proposal. We assessment of the GHG impacts of not have GHG emissions factors built expect to complete these analyses for changes in international agricultural into the model, we applied IPCC default the final rule. practices (e.g., changes in fertilizer load factors by country based on predicted changes in rice acres. We seek Livestock Emissions: GHG emissions and fuels usage), however it does comments on this methodology. from livestock have two main sources: predict changes in the land area and enteric fermentation and manure production by crop type and by country. b. Land Use Change management. Enteric fermentation We therefore determined international produces methane emissions as part of fertilizer and energy use based on We are also addressing GHG the normal digestive processes in international data collected by the Food emissions associated with land use animals. The FASOM modeling reflects and Agriculture Organization (FAO) of changes that occur domestically and changes in livestock enteric the United Nations and the International internationally as a result of the increase fermentation emissions due to changes Energy Agency (IEA). We used the in renewable fuels demand in the U.S. in livestock herds. As more corn is used historical trends based on these FAO Key questions we address in this in producing ethanol the price of corn and IEA data to project chemical and analysis include the land area converted increases, driving changes in livestock energy use in 2022. Additional details to crop production, where those acreage production costs and demand. The on the data used are included in DRIA changes occur, lands types converted, FASOM model predicts reductions in Chapter 2. We intend to review input and the GHG emission impacts livestock herds. IPCC factors for changes required to increase yields for associated with different types of land different livestock types are applied to the final rule and request comment on conversion. the extent to which historic trends herd values to get GHG emissions. The EPA recognizes that analyzing adequately project what could occur in management of livestock manure can international impacts of land use change 2022 or what alternative assumptions produce methane and N2O emissions. can introduce additional uncertainty to should be made and the bases for these Methane is produced by the anaerobic the GHG emissions estimates. At this assumptions. For example, will changes decomposition of manure. N2O is time, we do not have the same quality in farming practices or seed varieties produced as part of the nitrogen cycle of data for international crop production likely result in significantly different through the nitrification and and projected future trends as we do for impacts on fertilizer use internationally denitrification of the organic nitrogen in the United States. For example, than suggested by recent trends? livestock manure and urine. FASOM prediction of the economic and Additionally, we intend to have the calculates these manure management geographic development of developing emissions based on IPCC default factors selection and application of this data peer reviewed before the final rule. country agricultural systems is far more for emissions factors from the different difficult than prediction of future U.S. N2O Emissions: For international N2O types of livestock and management agricultural development. The U.S. has methods. Manure management emissions from crops, we apply the IPCC emissions factors based on total a very mature agriculture system in emissions are projected to be reduced as which the high quality agricultural amount of fertilizer applied and N2O a result of lower livestock animal lands are already under production and numbers. Use of distiller grains (DGs), impacts of crop residue by type of crop produced. As noted above, we are also the infrastructure to move crops to as discussed in Section VI.B.5.b, has market is already in place. This is not been shown to decrease methane working with Colorado State University to update these factors as part of the necessarily the case in other countries. produced from enteric fermentation if Some very large countries expected to 274 final rule analysis. Additional details on replacing corn as animal feed. This play a significant role in future effect is not currently captured in the the factors used are included in DRIA Chapter 2. agricultural production are still models but will be considered for the developing their agricultural system. final rule. Livestock Emissions: Similar to domestic livestock impacts associated Brazil, for example, has vast areas of Methane from Rice: Most of the with an increase in biofuel production, land that may be suitable for world’s rice, and all rice in the United FAPRI model predicts international commercial agricultural production that States, is grown in flooded fields. When changes in livestock production due to would allow for significant expansion in fields are flooded, aerobic changes in commodity prices. The GHG crop lands. One of the restraints on decomposition of organic material impacts of these livestock changes, expansion is the relative lack of gradually depletes most of the oxygen including enteric fermentation and infrastructure (e.g., road and rail present in the soil, causing anaerobic manure management GHG emissions, systems) that would allow shipment of soil conditions. Once the environment were included in our analysis. Unlike expanded crop production to market. becomes anaerobic, methane is FASOM, the FAPRI model does not Identifying what type of land is produced through anaerobic have GHG emissions built in and converted internationally and the decomposition of soil organic matter by therefore livestock GHG impacts were emissions associated with this land methanogenic bacteria. FASOM predicts based on activity data provided by the conversion can significantly affect our changes in rice acres resulting from the FAPRI model (e.g., number and type of assessment of GHG impacts. We present RFS2 program and calculates changes in livestock by country) multiplied by a range of results for differences in these methane emissions using IPCC factors. IPCC default factors for GHG emissions. and other assumptions in Section We seek comments on the extent to VI.C.2, and we seek comment on our 274 Salil Arora, May Wu, and Michael Wang, which the use of this methodology is approach so that the final rule will use ‘‘Update of Distillers Grains Displacement Ratios for Corn Ethanol Life-Cycle Analysis,’’ September appropriate. the best science to provide credible 2008. See http://www.transportation.anl.gov/pdfs/ Rice Emissions: To estimate rice estimates of lifecycle GHG emissions for AF/527.pdf. emission impacts internationally, we each biofuel.

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i. Amount of Land Converted expected future uses of DGs and their assume a trend wherein some The main question regarding the displacement ratios. productivity-enhancing practices may Crop Yields: Assumptions about amount of new land needed to meet an become profitable if commodity prices yields and how they may change over increasing demand for biofuels hinges are high enough such as might occur as time can also influence land use change on assumptions about the the result of increased biofuel predictions. Domestic yields were based intensification of existing production production, it is not clear that farmers on USDA projections, extrapolated out versus expansion of production to other would find significant increases in to 2022. In 2022, we estimate that the lands. This interaction is driven by the production per acre profitable. If crop U.S. average corn yield will be relative costs and returns associated yields either domestically or approximately 180 bushels/acre (a 1.6% international are significantly impacted with each option, but there are other annual increase consistent with recent by higher commodity prices driven by factors as described below. trends) and average U.S. soybean yields Co-Products: One factor determining general increase in worldwide demand, will be approximately 50 bushels per the amount of new crop acres required this could affect our assessment of land acre (a 0.4% annual increase).276 Using use impacts and the resulting GHG under an increased biofuel scenario is the FASOM model, we conducted a emissions due to increased biofuel the treatment of co-products. For sensitivity analysis on the impact of demand in the U.S. However, as example, distillers grains (DGs) are the higher and lower yields in the U.S. described in Section IX, the change in major co-product of dry mill ethanol Details on this scenario are included in commodity prices associated with the production that is also used as animal DRIA Chapter 5.1. International yields increase in U.S. biofuel as a result of the feed. Therefore, using the DGs as an changes are also based on the historic EISA mandates are very small and animal feed to replace the use of corn trends. The FAPRI model contains perhaps not large enough to induce tends to offset the loss of corn to ethanol projected yields and yield growths that significant increased yield changes. We production, and reduces the need to are generally lower in other countries invite comment on projected yields and grow additional corn to feed animals. As compared to the U.S. We request the potential impact of increased use of the renewable fuels industry expands, comment on the projected increase in marginal lands and price induced yield the handling and use of co-products is crop yields in the U.S (including changes. For the final rule we plan to also expanding. Some uncertainty is consideration of how emerging seed explicitly model the impact of price associated with how these co-products types might be expected to increase induced yield changes. will be used in the future (e.g., whether average crop yields). We also request Land Conversion Costs: The assumed it can be reformulated for higher comment on the use of historical trends cost associated with different types of incorporation into pork and poultry to predict future agricultural production land conversion can also play a key role diets, whether it will be dried and in other countries and request in determining how much land will be shipped long distances, whether information on alternative converted. In FASOM, the decision to fractionation will become widespread). methodologies and supporting data that convert land from pasture or forest to Both our FASOM and FAPRI models would allow us to base our predictions cropland is based on whether the account for the use of DGs in the on alternative assumptions. landowner can increase the net present agricultural sector. The FASOM and The FASOM and FAPRI models value of expected returns through FAPRI models both assume that a currently do not take into account conversion (including any costs of pound of co-product would displace changes in productivity as crop conversion). Among other things, the roughly a pound of feed. However, a production shifts to marginal acres or decision to convert land depends on recent paper by Argonne National the impact of price induced yield regional yields, costs, and other factors Laboratory 275 estimates that 1 pound of changes on land use change. We would affecting profitability and on the returns DGs can displace more than a pound of expect these two factors could work in to alternative land uses. In other words, feed due to the higher nutritional value opposite directions and therefore could FASOM assumes that land conversion is of DGs compared to corn. tend to offset each other’s impacts. based on maximizing profits rather than The Argonne replacement ratios do Marginal acres in fully developed minimizing costs. Additional details on not take into account the dynamic least agricultural systems are expected to land conversions costs incorporated in cost feed decisions faced by livestock have lower yields, because most FASOM are included in DRIA Chapter producers. The actual use of DGs will productive acres are already under 2. depend on the maximum inclusion rates cultivation. This may not be the case in FAPRI does not explicitly model land for each type of animal (based on the developing systems where prime conversion costs, however the digestibility of DGs), the displacement agricultural lands are not currently in international production supply curves ratio for each type of animal (based on full production due to, for example, lack used by the FAPRI model implicitly DGs energy and protein content), and of supporting infrastructure. Changes in take into account conversion costs. the adoption rate (based on the feed agricultural inputs (e.g., fertilizer, FAPRI’s supply curves are based on value relative to price). Furthermore, as pesticides) can also change crop yield historical responses to price changes, world vegetable oil prices increase, dry per acre. Higher commodity prices which take into account the conversion mill ethanol producers will have an might provide an incentive to increase costs of land, based on expected future incentive to extract the corn oil from the production in existing acres. If the costs returns associated with land conversion. DGs. This step changes the nutritional of increasing productivity on existing Thus, we believe that our assessments of content of the DGs, which results in land were minimal relative to the value international land use changes are based different replacement rates than the of the increased production, then on economic land-use decisions. ones currently used in FASOM or agricultural landowners would ii. Where Land is Converted described by Argonne. As we plan to presumably adopt these productivity- evaluate and incorporate a least cost enhancing actions under the reference The first step in determining what feed rationing approach for the final case. Although it is reasonable to domestic and international land will be rule, we invite comment on the converted due to biofuels production is 276 Note that these same assumptions apply in to estimate the extent to which the 275 Salil et al., 2008. both the reference case and the control cases. increased demand for biofuel feedstock

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will be met through increased U.S. rule, EPA will work, in particular, to land would be converted to increased agriculture production or reductions in resolve the differences in soybean agriculture based on the rates of return U.S. exports. production impact between the models. for different land types for the 63 This question has several This, too, may modify our assessment of regions in FASOM. For this draft implications. For example, U.S. the biodiesel lifecycle GHG emissions. proposal we incorporated the agriculture production is typically more Due to the wide range of carbon and agricultural component (which includes energy and input intensive but has biomass properties associated with land both existing cropland and pasture) of higher yields than agricultural in different parts of the world, the the FASOM model, but not the forestry production in other parts of the world. location of crop conversion is also component (see Section IX.A for This implies that increased production important to our lifecycle analysis. For explanation). Therefore, this analysis in the U.S. has higher input GHG example, an average acre of forest in assumes that all additional cropland emission impacts but lower land use Southeast Asia stores a much larger predicted by FASOM comes from change impacts compared to overseas quantity of carbon than a typical acre of pasture. As we incorporate the forestry production. In addition, the types of forest in Northern Europe. The FAPRI component for the final rule analysis we land where agriculture would expand model provides estimates of the acreage would expect to see more interaction would be different in the U.S. vs. other change by country and crop that result between the forestry and agriculture parts of the world. from a decrease in U.S. exports due to sector such that there may be EPA’s analysis relies on FASOM the increase in U.S. biofuel demand. conversion of forest to agriculture based predictions to represent changes in the These estimates are based on historic on additional cropland needed. While U.S. agricultural sector, including land responsiveness to changes in prices in we do not know if forest will be use, and on FAPRI to predict the other countries. Implicit in these supply converted to cropland or the extent that resulting international agricultural curves are the costs associated with this might occur, if domestic forests sector impacts including the amount of converting new land to crop production were converted to cropland, we would additional cropland needed under and the relative competitiveness of each expect domestic GHG emissions would different scenarios. The impact on the country to increase production based on increase. This work will be incorporated international agricultural sector is production costs, yields, transportation for our final rule. highly dependent on the U.S. export costs, and currency fluctuations. FAPRI International: Basing land use change assumptions. As the FASOM model was also includes in its baseline projections on the economics and rates of return of used to represent domestic agricultural of future population growth, GDP different land uses offers advantages for sector impacts with an assumed export growth, and other macroeconomic capturing potential future land use picture, the international agricultural changes. FAPRI also takes into account changes. However, the only model sector impacts from FAPRI needed to be the fact that not all U.S. exports will potentially capable of fully based on a consistent set of export need to be made up in international incorporating this calculation assumptions. We worked with FASOM production, as there is a small decreases internationally, GTAP, is still in the and FAPRI modelers to ensure this in demand due to shifts in crop process of being updated and modified consistency. This involved coordinating production and higher prices. for this purpose. Thus, EPA has chosen crop yields, ethanol yields and co- to use historical patterns as identified iii. What Type of Land is Converted product use, assumptions regarding CRP by satellite images to estimate future acres, a consistent export response, and In the same way that the location of land conversion. This approach is a consistent livestock demand and feed land conversion is important, the type referred to here as the FAPRI/Winrock use in both models. of land that is converted is critical to the approach because it relies on the As shown in Chapter 2 of the DRIA, magnitude of impact on the GHG integration of each of these tools. coordination of assumptions has emissions associated with biofuel EPA believes that FAPRI/Winrock is a generated a consistent export picture production. For example, the scientifically credible modeling response from both the FASOM and conversion of rainforest results in a approach at this time. However, we will FAPRI model for the majority of biofuel much larger increase in GHG emissions continue to work with the GTAP model and feedstock scenarios considered. than the conversion of grassland. There to help test the results generated by our Differences in responses in the biodiesel are several options for determining what primary approach. scenario remain between the two type of land will be converted to crop models. FASOM assumes more acreage. One option is to model land FAPRI/Winrock biodiesel will come from new soybean rental rates for different types of land Since FAPRI does not contain acres (but total domestic acres are (e.g., forest, pasture, and crop information on what type of land is relatively constant as reductions in production), and allow the model to being converted into cropland, we other crops offset the increase in choose the type of land that is expected worked with Winrock International, a soybean acres). In comparison, FAPRI to have the highest net returns. This global nonprofit organization, to address contains more types of oil seed crops approach is used by FASOM on the this question. A key advantage of and has a more elastic demand in the domestic side. Another option is to use Winrock is that they can accurately soybean oil market. The FAPRI model historical land conversion trends in a measure and monitor trends in forest also allows for some corn oil given country or region. The FAPRI/ and land use change, forest carbon fractionation from DGs, which can be Winrock approach uses this approach content, biodiversity, and the impact of used as a substitute for soybean oil. The for international land use conversion. infrastructure development. FASOM model predicts a larger change Domestic: The FASOM model Furthermore, several of the Winrock in net exports than the FAPRI model. includes competition between land staff were involved in the development Since we are using the FAPRI model as types, agriculture, pasture, and forest of the IPCC land use change good the basis for estimating international land. The interaction is based on practice guidance and are widely land use changes, we may be providing the highest rate of return recognized as the leaders in this field. underestimating the international land across the different land types. Using satellite data from 2001–2004, use change emissions associated with Therefore domestically we have the Winrock provided a breakdown of the soybean based biodiesel. For the final ability to explicitly model what types of types of land that have been converted

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into cropland for a number of key for this analysis are forest, cropland, addresses this question by calculating agriculturally producing countries based grassland, savanna, and shrubland. The the weighted average type of land that on the International Geosphere- rest of the IGBP categories not of interest was converted to cropland between Biosphere Programme (IGBP).277 The to this analysis were reclassified into 2001 and 2004. Essentially, we are using IGBP land cover list includes eleven the background. The satellite data the Winrock data to determine the type classes of natural vegetation, three represents different types of land cover, of land that is most likely to be classes of developed and mosaic lands, which we are using as a proxy for land converted to cropland, should and three classes of non-vegetated use. additional acres be needed as predicted lands. The natural vegetation units A key strength of this approach is that by FAPRI. distinguish evergreen and deciduous, satellite information is based on empirical data instead of modeled Table VI.B.5–1 shows the percentage broadleaf and needle-leaf forests, mixed predictions. Furthermore, it is of land converted to cropland between forests, where mixtures occur; closed reasonable to assume that recent land 2001 and 2004 according to the Winrock shrublands and open shrublands; use changes have been driven largely by satellite data analysis for the countries savannas and woody savannas; economics and recent historical patterns currently available. We use these grasslands; and permanent wetlands of will continue in the future absent major percentages to calculate a weighted large areal extent. The three classes of economic or land use regime shifts average of the types of land converted developed and mosaic lands distinguish caused, for example, by changes in into cropland. For example, if FAPRI among croplands, urban and built-up government policies. We are using the predicts that one additional acre of lands, and cropland/natural vegetation FAPRI model to predict where in the cropland will be brought into mosaics. Classes of non-vegetated land world, based on economic conditions, production in Argentina, we used the cover units include snow and ice; the most likely increase in agriculture Winrock data to estimate that 8% on barren land; and water bodies. Winrock production will occur as a result of the average of that acre will come from aggregated these categories into five EISA mandates. We are then using the forest, 40% of that acre will come from similar classes: five classes of forest historical satellite data to address the grassland, 45% of that land will come were combined into one, two classes of key question: If additional land is from savanna, and 8% of that land will savanna were combined into one, and needed for crop production in a come from shrubland. Using GTAP two classes of shrubland were combined particular country, what type of land might result in different percentage into one. The final land cover categories will be used? The Winrock analysis weights.

TABLE VI.B.5–1—TYPES OF LAND CONVERTED TO CROPLAND BY COUNTRY [In percent]

Country Forest Grassland Savanna Shrub

Argentina ...... 8 40 45 8 Brazil ...... 4 18 74 4 China ...... 17 38 23 21 EU ...... 27 16 36 21 India ...... 7 7 33 53 Indonesia ...... 34 5 58 4 Malaysia ...... 74 3 19 3 Nigeria ...... 4 56 36 4 Philippines ...... 49 5 44 3 South Africa...... 10 22 53 15 Source: Winrock Satellite Data (2001–2004).

We are assuming that the weighted changes stemming just from increased As a result, the Winrock data also average, resulting from agriculture agricultural demand. For example, it is does not distinguish between the land- demand as well as other possible likely that in some cases trees are being use impacts associated with one crop drivers, is a reasonable estimate of the removed from forests for the value of the versus another. Indeed, at least in the land use change attributable to wood. However, having removed case of sugarcane production in Brazil, increased agricultural demand. A valuable wood, additional clearing may a number of researchers argue that shortcoming of this approach is that it occur to allow the land to be used for expanded sugarcane production is likely assumes that when new crop acres are pasture or cropland. In that case the to occur in significant part through the needed to meet increased agricultural GHG emissions associated with the use of degraded or abandoned pasture demand these crop acres will follow the removal of the trees would not occur as land without additional land use average pattern of recent historical land a consequence of increased agricultural impact.278 These research reports conversion, recognizing that this pattern demand, but as a consequence of suggest that general historical trends in is based on a variety of drivers of land increased demand for the wood, while land use change to grow crops in Brazil use change, not all of which are the GHG emissions associated with the may not pertain to expected growth in associated with agricultural demand. additional clearing would occur as a sugarcane production. Ideally, an This approach is not able to isolate from consequence of the agricultural demand. analysis of a U.S. biofuels policy’s the historical pattern the land use influence on land use change would

277 U.S. Geological Survey MODIS Data Set 278 See for example ‘‘Mitigation of GHG emissions Impacts on Direct and Indirect Land Use Changes— Documentation. See http://edcdaac.usgs.gov/modis/ using sugarcane bio-ethanol—Working Paper’’ by Working Paper’’ by Andre Nassar et al., both mod12q1v4.asp. Isaias C. Macedo and Joaquim E. A. Seabra, and received by EPA October 13, 2008. ‘‘Prospects of the Sugarcane Expansion in Brazil:

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model the marginal impact that U.S. is a significant amount of pastureland Conservation Reserve Program (CRP) biofuel would have on land use and that could be used more intensively for land due to legislative changes in the land use change in addition to baseline grazing purposes. For example, as noted program) is added compared to current land use change. Use of historic land above, in Brazil almost all of the direct levels. Thus FASOM only models shifts use change data is capturing some of land conversion associated with in the use of this land. this baseline land use change. expanding sugarcane production is Changes in the agricultural sector due Comments are requested on our coming out of existing pasture land, in to increased corn used for ethanol have approach of assuming historical land some cases, depleted, low value pasture impacts on land use change in a number use changes will continue to be land, that may have relatively low levels of ways. FASOM explicitly models followed in response to increased of stored carbon compared to other land. change in soil carbon from increased agricultural demand associated with our Also in Brazil there is a trend toward crop production acres and from biofuel policy. We also invite comment more intensive use of existing pasture different types of crop production. on what alternative methodologies and land by grazing higher numbers of cattle FASOM also models changes in soil data are available, if any, to better link per unit of pasture, decreasing the need carbon from converting non crop land the impacts of biofuels to land use to replace pasture converted to into crop production. Land converted to change. To the extent additional cropland. This more intensive use of crop land could include pasture land. information or data may be available for pasture is encouraged by two factors: As recommended by USDA, we are certain countries such as the example of improved grasses which can sustain assuming that 32 million acres of CRP Brazil, we also ask how this country- more intensive grazing and lack of land will remain in that program even specific data and similar information transportation infrastructure which if crop prices increase and thus increase might best be integrated with the tends to constrain geographic expansion land values. This assumption is modeling results otherwise available. of pasture lands. However, we also note consistent with the 2008 Farm Bill, Furthermore, to the extent different that depleted cropland in Brazil might which limits CRP acres to 32 million. A government policies can shift land use also be suitable for other crop sensitivity analysis on this assumption patterns (e.g., through regulations, production. To extend sugarcane limits is included in Chapter 5 of the DRIA. financial supports), these weighted to production of these other crops on For the international impacts, we averages could change in the future. We this land, the indirect effect could be used the 2006 IPCC Agriculture, request comment on whether these that these crops move into other areas Forestry, and Other Land Use (AFOLU) government policies and regulations of Brazil and resulting in increased Guidelines 281 and the Winrock should be incorporated into the future emissions due to land use change. We provided GHG emissions factors for land use change calculations and the invite comment on alternative each country based on the weighted best methodology for taking into methodologies for predicting land use average type of land converted. GHG account these changes. changes in particular in other countries. emissions estimates were based on The Winrock data and analyses Some alternative methodologies are immediate releases (e.g., changes in present an aggregate picture of land use described in more detail in Chapter 2 of biomass carbon stocks, soil carbon changes; they cannot predict the nature the DRIA. stocks, and non-CO2 emissions of the land use change that will result The FAPRI model results have been assuming the land is cleared with fire) due to an additional acre of corn used in peer reviewed literature in and foregone forest sequestration (the planted in a country versus an conjunction with satellite data to assess future growth in vegetation and soil additional acre of sugarcane or land use changes 280 and we also believe carbon). Additional details on these soybeans. In reality, sugarcane may be it is an appropriate method for calculations are included in Chapter 2 more suitable for planting in different projecting biofuel induced land use of the DRIA. For the emissions factors regions with different soil types changes. However, we recognize the presented, we assume forests cleared compared to corn or soybeans. However, uncertainty associated with this would have continued to sequester because we are using weighted averages approach and, in addition to seeking carbon for another 80 years, based on to characterize the type of land that is public comment, we plan to conduct an the amount of time it takes for forests to converted to crop acres, all additional expert peer review of the data and reach a general equilibrium stage. We crop acres in a particular country are methods used, including the request comment on whether it is treated identically. appropriateness of using historic appropriate to include foregone Winrock also provides information on satellite data to project future land use sequestration in the GHG emissions land conversions between other changes. estimates. Carbon soil calculations 282 categories (e.g., forest to savanna). For take into account the annual changes in iv. What Are the GHG Emissions one set of GHG analyses, we assumed carbon content in the top 30 centimeters Associated With Different Types of that land taken out of actively managed of soil over the first 20 years, based on Land Conversion? use 279 (e.g., pasture used for livestock IPCC recommendations.283 We also production) would have to be replaced Our estimates of domestic land use request comment on whether soil with new pasture acreage, thereby change GHG emissions are based on carbon calculations should be based on capturing some of the domino effect outputs of the FASOM model. As we are the top 30 centimeters of soil. These associated with converting previously just using the agricultural portion of the emission factors do not include credits productive land into cropland. FASOM model for this analysis the land for harvested wood products, based on Therefore, in addition to land use change GHG emissions are limited the expectation that they would have a conversion shown in Table VI.B.5–1, we to changes in land use for existing crop also include land conversion to replace and pasture land. Some of that crop 281 2006 IPCC Guidelines for National Greenhouse some of the grassland and savanna that land could currently be fallow and some Gas Inventories, Volume 4, Agriculture, Forestry is used as pasture. An alternative of the pasture land could currently be and Other Land Use (AFOLU). See http://www.ipcc- approach would be to assume that no unused. However, no new crop or nggip.iges.or.jp/public/2006gl/vol4.html. 282 See ftp://www.daac.ornl.gov/data/global_soil/ additional land is necessary, since there pasture land (beyond some IsricWiseGrids. 283 2006 IPCC Guidelines for National Greenhouse 279 GTAP Land Cover Data (2000–2001). 280 Searchinger et al., 2008. Gas Inventories, Volume 4, Section 5.3.3.4.

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very small impact on our estimates of model was developed to explicitly lcfs/lcfs.htm. Furthermore, researchers land use change emissions. However, model global competition among from Purdue University have released a we intend to analyze the impact of different land types (e.g., forest, report on work using GTAP to look at wood product credits for the final rule. agricultural land, pasture) and different land use change associated with corn We invite comment on whether it is qualities of land based on the relative ethanol production scenarios.286 This appropriate to include wood product value of the alternative land-uses. More work was partially funded by Argonne credits in the GHG emissions estimates. recently, it was modified to include National Lab for possible inclusion in GHG emissions associated with land biofuel substitutes for gasoline and the GREET model. We anticipate use changes vary significantly based on diesel. In simulating land use changes additional refinements will be made to the type of land and the geographic due to biofuels production, GTAP the GTAP model between the proposal region. For example, the GHG emissions explicitly models land-use conversion and final rule and we will include this associated with converting an acre of decisions, as well as land management information and results in the docket as grassland to cropland in China are lower intensification. For example, it allows they become available. We invite than the emissions associated with for price-induced yield changes (e.g., comments in this NPRM on the use of converting an acre of shrubland to farmers can reallocate inputs to increase the GTAP model in helping to establish cropland in China. Similarly, the GHG yields when commodity prices are high) the GHG emissions estimates for the emissions associated with converting an and considers the marginal productivity final rule. acre of forest to cropland in Malaysia of additional land (e.g., expansion of v. Assessing GHG Emissions Impacts are larger than the emissions associated crop land onto lower quality land as a Over Time and Potential Application of with converting an acre of forest in result of the increased use of biofuels). a GHG Discount Rate Nigeria to cropland. Where country Most importantly, in contrast to other specific emission factors were not models, GTAP is designed with the When comparing the lifecycle GHG available in time for the proposal, we framework of predicting the amount and emissions associated with biofuels to used world average. For the proposal, types of land needed in a region to meet those associated with gasoline or diesel we focused on the countries with the demands for both food and fuel emissions, it is critical to take into largest projected changes in crop production. The GTAP framework also consideration the time profile associated acreage. The Winrock data currently allows predictions to be made about the with each fuel’s GHG emissions stream. covers 63% of total land use change types of land available in the region to With gasoline, a majority of the lifecycle acres associated with corn ethanol, 53% meet the needed demands, since it GHG emissions associated with of the acres associated with biodiesel, explicitly represents different land types extraction, conversion, and combustion 57% of the acres associated with within the model. are likely to be released over a short switchgrass, and 87% of the acres The global modeling of land-use period of time (i.e., annually) as crude associated sugarcane ethanol. We will competition and land management oil is converted into gasoline or diesel continue to add additional countries for decisions is relatively new, and fuel which quickly pass to market. This our analysis for the final rule. Two evolving.285 GTAP does not yet contain means that the lifecycle GHG emissions changes that may impact these results cellulosic feedstocks in the model. In of a gallon of gasoline produced one for the final rule include the addition of addition, GTAP does not currently year are unlikely to vary much from the perennial crops and the conversion on contain unmanaged land, which could lifecycle GHG emissions of a similar land with peat soils. We request be a major factor driving current GTAP gallon of gasoline produced in a comment on our calculation of emission land use projections and is a significant subsequent year. factors due to land use change; potential source of GHG emissions. We In contrast, the lifecycle GHG improved data and assumptions are expect to update GTAP with cellulosic emissions from the production of a specifically requested. Additionally, we feedstocks and unmanaged land in time typical biofuel may continue to occur plan to have the calculation of these for the final rule. over a long period of time. As with emissions factors reviewed by experts in Our proposal is therefore based on the petroleum based fuels, renewable fuel this field. Details on the Winrock FAPRI/Winrock estimates. There are lifecycle GHG emissions are associated estimates are included in the DRIA advantages and disadvantages with the conversion and combustion of Chapter 2. associated with any model choice and biofuels in every year they are GTAP Approach: we have chosen the FAPRI/Winrock produced. In addition, GHG emissions GTAP is an economy-wide general combination as the best approach could be released through time if new equilibrium model that was originally available for preparing the proposal. acres are needed to produce corn, developed for addressing agricultural Although we have not relied on the soybeans or other crops as a trade issues among countries. The current version of GTAP for the replacement for crops that are directly databases and versions of the model are principal analyses in this proposal, used for biofuel production or displaced widely used internationally.284 Since its others have used versions of the current due to biofuels production. The GHG inception in 1993, GTAP has rapidly model to assess land use changes which emissions associated with converting become a common ‘‘language’’ for many could result from expanded biofuel land into crop production would of those conducting global economic demand. The California Air Resources accumulate over time with the largest analysis. For example, the WTO and the Board as part of the analysis for their release occurring in the first few years World Bank co-sponsored two low carbon fuel standard used GTAP to due to clearing with fire or biomass conferences on the so-called model indirect land use change for decay. After the land is converted, Millennium Round of Multilateral Trade biofuels. More information on their moderate amounts of soil carbon would talks in Geneva. Here, virtually all of the program and GTAP analysis can be continue to be released for quantitative, global economic analyses found at http://www.arb.ca.gov/fuels/ were based on the GTAP framework. 286 Land Use Change Carbon Emissions due to US 285 See Hertel, Thomas, Steven Rose, Richard Tol Ethanol Production, Wallace E. Tyner, Farzad Over the past few years, a version of the (eds.), (in press). Economic Analysis of Land Use in Taheripour, Uris Baldos, January 2009. Available at Global Climate Change Policy, Routledge http://www.agecon.purdue.edu/papers/biofuels/ 284 https://www.gtap.agecon.purdue.edu. Publishing. Argonne-GTAP_Revision%204a.pdf.

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approximately 20 years.287 Furthermore, recent estimates suggest that old growth that offer an annual GHG benefit relative there would be foregone sequestration forests accumulate carbon for up to 800 to the petroleum product they replace, associated with forest clearing as this years.290 The foregone sequestration these benefits may be small compared to forest would have continued to methods used in this proposal are the upfront release of GHG emissions sequester carbon had it not been cleared within the range supported by the from land use change. Depending on the for approximately 80 years. scientific literature and the 2006 IPCC specific biofuel in question, it can take Therefore, we have included an guidelines. Details of the foregone many years for the benefits of the analysis which considers GHG sequestration estimates are included in biofuel to make up for the large initial emissions from land use change that DRIA Chapter 2. We seek comment on releases of carbon that result from land may continue for up to 80 years, based our estimate of the average length of conversion (e.g., the payback period). As on our estimate of the average length of annual foregone forest sequestration for shown in Figure VI.B.5–1, the payback foregone sequestration after a forest is consideration in biofuel lifecycle GHG cleared. Annual foregone sequestration analysis. period for a natural gas-fired dry mill rates were estimated by ecological Figure VI.B.5–1 shows how lifecycle corn ethanol plant which begins region using growth rates for forests GHG emissions vary over time for a operation in 2022 would be greater then 20 years old from the 2006 natural gas fired dry mill corn ethanol approximately 33 years. We present a IPCC guidelines for Agriculture, plant assuming that all land use change similar payback period calculation for Forestry and Other Land Use.288 Studies occurs in 2022. While biomass the full range of biofuels analyzed in have estimated that new forests grow for feedstocks grown each year on new Section VI.C. 90 years to over 120 years.289 More cropland can be converted to biofuels

As required by EISA, our analysis capturing the full stream of emissions to corn ethanol produced in the first must demonstrate whether biofuels and benefits over time. There are at least year, and none of those emissions to reduce GHG emissions by the required two necessary criteria for the accounting corn ethanol produced the following percentage relative to the 2005 methods we have considered. First, they years even though this land use change petroleum baseline. A payback period must provide an estimate of renewable is central to the production over these alone cannot answer that question. fuel lifecycle GHG emissions that is following years. Second, the accounting Since the payback period alone is not consistent over time. Otherwise, for method must also provide a common sufficient for our analysis, we have example, all of the upfront emissions metric that allows for a direct considered accounting methods for due to land clearing would be assigned comparison of biofuels to gasoline or

287 Following Section 5.3.3.4 of the IPCC AFOLU 288 Table 4.9 from the 2006 GL AFOLU was used R–05–006 for a discussion of the time required for guidelines, the total difference in soil carbon stocks to estimate the lost C sequestration of forests that forests to reach carbon saturation. before and after conversion was averaged over 20 were converted to another land use. 290 Luyassert, S et al., 2008. Old-growth forests as years. 289 See Greenhouse Gas Mitigation Potential in global carbon sinks. Nature 455: 213–215. Link: U.S. Forestry and Agriculture, EPA Document 430– http://www.nature.com/nature/journal/v455/n7210/ abs/nature07276.html.

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diesel. When accounting for the time land conversion first takes place.291 For which has been used in the literature to profile of lifecycle GHG emissions, the example, physical changes in carbon estimate the greenhouse gas impacts of two most important assumptions in the stocks on unmanaged lands may not biofuels.292 293 Since a time period such determination of whether a biofuel slow until after 100 years, and optimal as 30 years would truncate the potential meets the specified emissions reduction forest rotation ages can influence GHG benefits that accumulate over time, thresholds include: (1) The time period greenhouse gas emissions for 100 years this second option would reduce the considered and (2) the discount rate on managed lands. Similarly, a 100 year GHG benefits of biofuels relative to (which could be zero) applied to future time frame would allow estimating the gasoline or diesel compared to assuming emissions streams. future changes in the land should the a longer time frame for biofuel need for these changes due to biofuel production such as 100 years. Time Periods Considered production cease. For example, as One advantage of using a shorter time discussed in more detail below, if period is that it is more ‘‘conservative’’ The illustration of the payback period production of a biofuel ended, then the from a climate change policy in Figure VI.B.5–1 demonstrates the land use impacts associated with that perspective. In general, the further out importance of the time period over biofuel would also tend to go away in into the future an analysis projects, the which to consider both the lifecycle a process known as land use reversion. more uncertainty is introduced into the GHG emissions increases associated A longer time frame would allow results. For example, with a longer time with the production of a biofuel as well assessment of the impacts of that land period for analysis, it is more likely that as the benefits from using the biofuel. use reversion. significant changes in market factors or As mentioned above, based on our For a number of reasons we believe policies will change the incentives for lifecycle GHG analysis for this proposed that biofuel production could continue producing biofuels. If a biofuel only has rule we estimate that the payback period for a long time into the future. As greenhouse benefits when considered in for corn ethanol produced in a natural biofuel technologies advance and an extended future time frame, it is not gas-fired dry mill is approximately 33 production costs are decreased, it is clear that these benefits will be realized years. In this case, if we measure GHG likely that renewable fuels will become due to the inherent uncertainty of the impacts over a time period of less than increasingly competitive with future. Also, potential irreversible 33 years we will determine that the total petroleum-based fuels. Another reason climate change impacts or future actions corn ethanol produced over this time for expecting long term biofuel in other sectors of the economy, such as period increases lifecycle GHG production is that, unlike a specific reductions from stationary sources, emissions. Conversely, total corn facility that has an expected lifetime, could influence the relative importance ethanol production will reduce net the RFS program does not have a of renewable fuel GHG impacts. The lifecycle GHG emissions if we look specified expiration date. The timing and severity of these potential beyond 33 years, with net emissions expectation that renewable fuel irreversible climate change impacts are reductions increasing the further into production will continue for a long time clearly uncertain as is the degree to which near-term lifecycle emissions the future we extend our analysis. To provides justification for using a longer related to biofuel production influences inform our decision of which time time frame for analysis, such as 100 these climate change impacts. Given period for analysis is most appropriate, years. Another reason for considering an these uncertainties, it may be we must consider a number of factors inter-generational time period such as 100 years for lifecycle GHG analysis is appropriate to limit our analysis horizon including but not limited to the length to a much shorter time period such as of time over which we expect a that climate change is a long-term environmental problem that may require 30 years. particular biofuel to be produced, the Several disadvantages are also GHG emissions reductions for many time over which biofuel production associated with choosing the 30 year decades. continues to impact GHG emissions into time frame to represent both emissions The 100 year time frame also has the future, the importance of achieving impacts as well as emissions benefits. drawbacks. A general concern with near-term GHG emissions reductions, One key disadvantage is that it ignores projecting impacts over a very long time and the increasing uncertainty of the potential sources of GHG emissions period is that uncertainty increases the projecting GHG emissions impacts into impacts of producing biofuel after 30 further the analysis is extended into the the future. Based on these years such as foregone sequestration future. For example, a 100 year analysis considerations, our discussion of from forests that may have been presumes that production of a particular lifecycle analyses prepared for this removed which could have continuing biofuel will continue for at least 100 proposed rule focuses on time periods impacts even after production of a years. Although we expect renewable of 100 years and 30 years. biofuel has ended. Thus, it doesn’t fuel production as a whole to continue account for the full land use emissions There are advantages and for a long time, it is possible that due ‘‘signature’’ of biofuels. In addition, disadvantages to using the 100 and 30 to changing market conditions or other even if second generation fuels start to year time frames to represent both factors, the use of first generation dominate new construction, building a emissions impacts as well as emissions biofuels (e.g., corn ethanol) could see a first generation fuel production facility benefits of use of biofuels over time. decline in use over a shorter period of such as a corn ethanol refinery There are several principal reasons for time. represents a significant capital using the 100 year time frame. First, For this proposal, we are also showing investment. Once the facility is built greenhouse gases are chemically stable the results of analyzing both GHG and financed, it may continue compounds and persist in the emissions impacts of producing a biofuel as well as benefits from using atmosphere over long time scales that 292 Searchinger et al., 2008. span two or more generations. Second, the biofuel over 30 years, a time frame 293 M. Delucchi, ‘‘A multi-country analysis of the 100 year time frame captures the lifecycle emissions from transportation fuels and emissions associated with land use 291 Luyassert, S et al., 2008. Old-growth forests as motor vehicles’’ (UCD–ITS–RR–05–10, University change that may continue for a long global carbon sinks. Nature 455: 213–215. Link: of California at Davis, Davis, CA 2005). See also http://www.nature.com/nature/journal/v455/n7210/ http://www.its.ucdavis.edu/people/faculty/ period of time after biofuel-induced abs/nature07276.html. delucchi/.

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producing biofuel as long as it is ethanol production from corn starch ethanol modeled for the rule. The covering its operating costs. This reaches 15 billion gallons) as a indirect impacts of maintaining 15 suggests that, once a plant is built, if the reasonable estimate of when corn will billion gallons of corn ethanol variable cost of corn ethanol production no longer be used for ethanol production would similarly be reduced. is less than the cost to produce gasoline, production due to advances in other EPA intends to more carefully model then corn ethanol production at that biofuels and the competing demand to these transitions in particular to better facility may continue. This economic use corn for food rather than biofuel account for future land use impacts and advantage may contribute to the feedstock. We specifically ask whether a we invite comments on methodology, longevity of first generation biofuel 30 year estimate of continued corn sources of data, factors that should be production and usage far into the future. starch ethanol production (i.e., through considered in assessing whether and An appropriate time frame for 2045) is a reasonable estimate for when a particular biofuel such as analysis could also be different for assessing the stream of GHG benefits ethanol from corn starch, for example, different biofuels. While we could from corn ethanol use while 100 years will no longer be produced and assume that corn ethanol would be would be appropriate for assessing recommendations on how to improve on phased out after a shorter time period impacts of the land use change. Under our assessment of the likely stream of such as 30 years, it might be more such an assumption a 100 time horizon GHG emissions after 2022 that will appropriate to use a longer time period would capture the longer term emission result from the EISA mandates. over which to analyze the benefits of impacts of corn ethanol production A complicating consideration in this other advanced biofuels such as (including indirect land use impacts) analysis arises in determining future use cellulosic biofuels. It could be while the benefits from 31 through 100 of the land (post-biofuel production) is reasonably assumed that cellulosic years would be zero since corn ethanol the fact that perhaps significant land use biofuels will be produced for more than would be modeled as no longer in use. change occurred as a result of biofuel 30 years, perhaps for 100 years or In that scenario, we would have to production and that land is now more longer. However, even if cellulosic consider the lifecycle GHG impacts after easily suited for alternative uses biofuels are expected to be produced for the production of corn ethanol ends. compared to its pre-biofuel state. For 100 years or longer, a shorter time This would include the issue of land example, the demand created by biofuel period, such as 30 years, may still be the reversion, or what happens to the land production may have justified clearing most relevant period over which to used to produce a biofuel feedstock after forested lands and turning them into assess GHG emissions, given the its use for biofuel production has productive cropland. Even if the need importance of near-term emissions ceased. A full accounting of land for the land to produce crops in reductions and the increasing reversion would involve economic response to biofuel demand ceases uncertainty of future events. We modeling to determine how long we when the biofuel production ends, the specifically seek comments on the 100 expect production of a particular biofuel land will still be in an altered form year and 30 year time frames discussed to last, and to determine the land use making it, for example, more in this proposal. We also seek general changes after that biofuel production economically available for other crop comments on the most appropriate time ends. Ideally this modeling would production than when it had been periods for analysis of biofuels, and extend well beyond 2022 to the point forested. How this land is subsequently whether we should use different time where land reversion is complete, and it used can affect its impact on GHG periods for different types of renewable would include projections for global emissions. If it is used for intensive crop fuels. crop yield improvements, population production, the land will have a much Another way to look at the time trends, food demand, and other key different carbon sequestration profile, period issue, which we have not factors. For this proposal, we have not for example, than if it returned to its specifically analyzed for this proposed projected the GHG emissions associated pre-biofuel forested state. EPA asks for rule, would separate the time period with land reversion, but we plan to suggestions on how to best treat these into two parts. The first part would consider land reversion in our final rule lingering effects of land use change consider how long we expect analysis and we seek comments on when attributing the effects of biofuel production of a particular biofuel to methodologies and approaches for doing demand to uses of land even after continue into the future. We refer to this this. We also seek comment on the biofuel production ends. concept, which is similar to the project related issue of how best to estimate For the determination of whether lifetime often considered in traditional how long each type of biofuel is most biofuels meet the GHG emissions cost benefit analysis, as the ‘‘project’’ likely to continue to be produced, and reduction required by EISA, we present time horizon. The second part would whether production of these biofuels is the results for a range of time periods, address the length over which to likely to end abruptly or phase out including both 100 years and 30 years account for the changes in GHG gradually. in Section VI.C and specifically invite emissions due to land use changes Agricultural and economic models comment on whether use of a 100 year which result from biofuel production. that look beyond 2022 would not only time frame, a 30 year time frame, or We call this the ‘‘impact’’ time horizon. help to estimate the impacts of land some other time frame, would be most Our analysis for this proposed rule reversion after biofuel production ends, appropriate. has not considered a scenario where the they would also help to project how In addition to this general issue of the project time horizon is shorter than evolving agricultural conditions could appropriate time frames for analysis, impact time horizon. However, we are influence the lifecycle GHG emissions several more specific issues exist. Since considering this option for the final of biofuels beyond 2022. For example, it would be likely that corn starch rule. For example, we could look at a corn yields per acre are expected to ethanol production will phase out scenario where corn ethanol production continue increasing after 2022; this gradually rather than stopping all of a continues for 30 years and land use increase in yields per acre will decrease sudden in 2045, we also are evaluating related GHG emissions are estimated for the amount of land required to produce options for estimating the phase out of 100 years. Specifically, we are a bushel of corn. At higher yields, fewer corn starch ethanol production. One considering whether to use 30 years acres are required to grow the corn used simplifying assumption would have after 2015 (as an approximation of when for the 15 billion gallons of corn starch corn ethanol production phase out

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linearly between 2022 and 2045 as Another reason to give more weight to converting lifecycle GHG emissions into production of other biofuels such as near-term emissions changes is that the monetized impacts may be inconsistent cellulosic biofuels continue to expand. risks associated with climate change in with the EISA definition of lifecycle Comments are requested on the option the future include the possibility of GHG emissions provided above in of linearly phasing out corn ethanol extreme climate change and threshold Section VI.A.1, which stipulates that production from 2022 through 2045 and impacts (e.g., species and ecosystem lifecycle GHG emissions are the other approaches for estimating this thresholds, catastrophic events). ‘‘aggregate quantity of greenhouse gas transition in corn ethanol production. Increased GHG emissions in the near- emissions * * * where the mass values Finally, its not only corn starch ethanol term may be more important in terms of for all greenhouse gases are adjusted to that might be replaced in future years. physical damage to the world’s account for their relative global For example, the use of soy oil for environment. Some scientists, for warming potential.’’ biodiesel fuel production might be example, believe that effects on factors Another argument against discounting replaced by other non-food oils such as such as arctic summer ice, Himalayan- GHG emissions changes is the concept oil from algae. Comments are requested Tibetan Glaciers, and the Greenland ice of inter-generational equity, which on whether other biofuels will similarly sheet are more likely to be effected by argues that benefits or damages affecting phase out of use and therefore the land near-term GHG emissions, causing non- future generations merit just as much use change impacts need to be similarly linearities in the effects attributable to weight as impacts felt by current considered. GHG emissions.296 Long-term GHG generations. It is argued that this would In addition to seeking comments on reductions may be too late to mitigate invalidate the practice of discounting all of the issues related to the time these irreversible impacts, providing emissions impacts that could affect periods for lifecycle analysis, EPA plans further justification for discounting future generations. to convene a peer review of the range of GHG emissions changes that are Finally, earlier in this section we time periods considered in this expected in the distant future. Under discussed the possible ranges of time proposed rule. This peer review will this perspective, it would be appropriate frames for analyzing the GHG emissions also seek expert feedback on all of the to discount the physical quantities of impacts. For shorter time frames such as issues raised above in this section, future emissions, and especially in a 30 years, there would be less including how to determine the most long term analysis of lifecycle GHG uncertainty in the emissions stream so appropriate time periods for emissions. Thus in our analysis with a the benefit of discounting to address consideration in the final rule. 100 year time frame, or impact horizon, uncertainty is also lessoned. Discounting of Lifecycle GHG Emissions we discount the value of future GHG Comments are requested on the emissions changes. concept of discounting a stream of GHG Economic theory suggests that in Despite the rationale for discounting emissions for the purpose of estimating general consumers have a time future GHG emissions changes lifecycle GHG emissions from preference for benefits received today discussed above, there are reasons to be transportation fuels as specified in versus receiving them in the future. cautious about the application of EISA. Therefore, future benefits are often discounting in lifecycle GHG analysis. valued at a discounted rate. Although One argument is that it may only be Appropriate Level of Discount Rate discount rates are most often applied to appropriate to discount monetized As described in more detail in Section the monetary valuation of future versus values. Our lifecycle analysis estimates IX on GHG emission reduction benefits, present benefits, a discounting approach GHG emission impacts, not their GHG emissions have primarily can also be used to compare physical monetary value, and under this consumption effects and inter- quantities (i.e., total GHG emissions per argument emissions should not be generational impacts, as changes in gallon of fuel used). directly discounted. Rather, the physical GHG emissions today will continue to The concept of weighting physical GHG emissions should be converted have impacts on climate change for units accruing at different times has into monetary impacts, where these decades to centuries. If a discount rate been used in the environmental and monetary impacts are also a function of is applied to future GHG emissions, an resource economics literature,294 and is climate science. The resulting climate appropriate discount rate should be analogous to valuing the monetary cost impacts would then have to be based on a consumption-based discount and benefits of a policy, only that in this translated into monetary values. This rate given that monetized climate case the metric that we ‘value’ is the presents significant challenges for change impacts are primarily reduction in GHG emissions. 295 An lifecycle GHG analysis because it is consumption effects (i.e., impacts on important part of the economic theory of difficult to translate dynamic GHG household purchases of goods and time is the idea that benefits expected emissions into a single estimate of services). A consumption-based to accrue in the long term are less physical impacts, much less a single discount rate reflects the implied certain than benefits in the near term. estimate of monetized impacts. This is tradeoffs between consumption today This is true in the case of GHG the case for a number of reasons, and in the future. Discount rates of 3% emissions changes from biofuel including the complex physical systems or less are considered appropriate for production which are dependent upon associated with climate change (e.g., the discounting climate change impacts, how long biofuel production will relationship between atmospheric since they reflect the long run continue, how technologies will degradation rates with atmospheric uncertainty in economic growth and develop over time, and other factors. carbon stocks) that may create non- interest rates and the risk of high impact constant marginal damages from GHG 294 Herzog et al. 2003 (See http:// climate damages that could reduce 297 sequestration.mit.edu/pdf/climatic_change.pdf), emissions over time. Furthermore, economic growth. Richards 1997, Stavins and Richards 2005 (See http://www.pewclimate.org/docUploads/ 296 Ramanathan and Feng, 2008. On avoiding 297 Technical Support Document on Benefits of Sequest_Final.pdf). dangerous anthropogenic interference with the Reducing GHG Emissions, U.S. Environmental 295 Sunstein and Rowell, 2007, On Discounting climate system: Formidable challenges ahead. Protection Agency, June 12, 2008, Regulatory Benefits: Risk, Money, and Proceedings of the National Academy of Sciences www.regulations.gov (search phrase ‘‘Technical Intergenerational Equity, Chicago Law Review. 105:143245–14250. Continued

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When analyzing the GHG emissions discounting have been discussed in the rulemaking.305 This approach is based associated with a 100 year time period, economic literature, such as dealing on the ratio of the cumulative radiative we examined a variety of alternative with uncertainty by using a non- forcing between the biofuel and the discount rates (e.g., 0, 2, 3, 7 percent) to constant, declining, or negative discount gasoline case over a specified time show the sensitivity of greenhouse gas rate.304 Comments could consider how frame. emissions estimates to the choice of the discounting appropriately reflects the The EISA definition of lifecycle GHG discount rate. A zero discount rate uneven emission of greenhouse gases emissions stipulates that the mass estimates GHG emission impacts as if from biofuels over time, the uncertainty values for all greenhouse gas emissions each ton of GHG emissions is treated in predicting emissions in more distant shall be adjusted to account for their equally through time. Previous futures and the impacts these emissions relative GWP. We are proposing to use methodologies of lifecycle GHG benefits could have on climate change. the standard 100-year GWP’s published have presented results using a zero Alternative approaches for inter- in the IPCC Second Assessment discount rate.298 However, some of the generational discounting are described Report.306 307 We invite comment on climate change literature supports using in Chapter 5.3 of the DRIA. whether it is appropriate to discount a higher discount rate, as described in Because we are considering not GWP-weighted emissions and how such Section IX.C. We show the 7% discount discounting GHG emissions and in discounting might appropriately apply rate for illustrative purposes; however particular since the justifications for across the several greenhouse gases. climate change benefit analyses from discounting physical emissions are not Furthermore, if alternative time global long-run growth models typically as strong for shorter time periods, in periods for the production of biofuels use discount rates well under 7% for Section VI.C.2, we also present the GHG and the GHG impacts of biofuel standard analysis.299 High discount emissions reductions associated with production are considered as discussed rates imply very low values for the biofuels using a 30 year time period and above, and the choice is made to future GHG emission impacts resulting no discount rate. Using a zero percent discount GHG emissions, the question from today’s actions on the welfare of or no discount rate implies that all that arises is: What discount rate or future generations. Therefore, lower emission releases and uptakes during combination of discount rates should be discount rates such as 2–3% are this time period are valued equally. For considered? For example, if ethanol considered more appropriate for a shorter time period such as thirty production is assumed to occur for 30 years and the GHG impacts are assumed discounting long term climate change years, we are relatively certain of the 300 to span across 80–100 years, should a impacts. emission trends. Furthermore, all of single discount rate be applied to the In the analysis for this proposal we these emissions occur in a relatively emissions stream or alternative discount use a 2% discount rate to assess the short period of time so their impact on rates based upon the different time present value of GHG emissions changes climate change and the consequences of frames? EPA is taking comment on which occur over a 100 year time frame. that climate change could all be whether and how to apply discounting This discount rate is consistent with the considered the same regardless of Office of Management and Budget when different time frames between the whether those emissions occurred early (OMB) 301 and EPA 302 guidance and is production and long-run GHG impacts or late in this 30-year time period. one of the discount rates that has been are utilized to analysis biofuels. We specifically invite comment on used in the literature to monetize the Specifically, EPA is considering and our use of a 2% discount rate with a 100 impacts of climate change.303 EPA has requests comment on the option of considered this issue previously, and year time period for analysis of lifecycle using either no discount rate or a 3% after weighing the pros and cons of GHG emissions, and our use of no discount rate to assess those emissions different values, set forth a guidance discount rate in our analysis of GHG that occur during the relatively shorter document recommending using a range emissions over 30 years. We also invite time frame for biofuel use which could of consumption based discount rates of comments on whether using physical phase out within 30 years as in our corn 0.5–3%. OMB and EPA guidance on science metrics such as the actual ethanol example and a 2% discount rate inter-generational discounting suggests quantities of climate forcing gasses in over the reminder of the 100 years in using a low but positive discount rate if the atmosphere, actual quantities of assessing the longer term GHG there are important inter-generational climate forcing gasses in the atmosphere emissions impacts resulting from land benefits and costs. In selecting a 2% weighted by global warming potential use changes related to biofuel discount rate coupled with a 100 year (GWP), or cumulative radiative forcing production (including land reversion emission stream estimate, EPA would be should be used to evaluate emissions considerations). recognizing the long term nature of the over time. Specifically, we seek EPA is considering a range of emission impacts of biofuel production, comment on an approach for comparing discount rates including zero or no the uncertainty in estimating these GHG emissions based on the time discounting for reasons as described emission impacts and their profile of the greenhouse gas emissions above and requests comments on the consequences plus the significance of in the atmosphere, and whether this appropriate discount rate to use when nearer term emission changes in approach would be consistent with the assessing the stream of GHG emission avoiding future consequences. Other legal definition of lifecycle GHG changes that are likely to result from options for intergenerational emissions in EISA. One such method is biofuel production and use. Other the Fuel Warming Potential as outlined 305 Support Document on Benefits of Reducing GHG in a memo to the EPA from the Union See Memo to EPA, Office of Transportation Emissions’’). of Concerned Scientists which is and Air Quality from Union of Concerned Scientists, Re: Treatment of Time in Life Cycle 298 Searchinger et al., 2008. available on the public docket for this Accounting, February 18, 2009. 299 Tol, 2005. 306 See http://www.ipcc.ch/ipccreports/ 300 Newell and Pizer, 2003. 304 Newell and Pizer, 2003, Weitzman (1999, assessments-reports.htm. 301 OMB Circular A–4, 2003 provides a range of 2001), Nordhaus (2008), Guo et al., (2006), Saez, 307 O’Hare, Plevin, Martin, Jones, Kendal and 1–3% for consumption based discount rates. C.A. and J.C. Requena, ‘‘Reconciling sustainability Hopson; ‘‘Proper accounting for time increases 302 EPA Guidelines for Preparing Economic and discounting in Cost-Benefit Analysis: A crop-based biofuel’s greenhouse gas deficit versus Analyses, 2000. methodological proposal’’, Ecological Economics, petroleum’’; Environmental Research Letters, 4 303 Tol (2005, 2007). 2007, vol. 60, issue 4, pages 712–725. (2009) 024001.

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options for intergenerational of when the current analysis was included, etc. For our analysis we discounting have been discussed in the completed we were not able to considered different pathways for corn economic literature, such as dealing incorporate this updated transportation ethanol production. Our focus was to with uncertainty by using a non- information into our lifecycle analysis differentiate between facilities based on constant, declining, or negative discount but plan to do that for the final rule. the key differences between plants, rate.308 Comments could consider how Furthermore, the transportation namely the type of plant and the type discounting appropriately reflects the modes and distances assumed for corn of fuel used. One other key difference uneven release of greenhouse gases from and DGs do not account for the we modeled between plants was the biofuels over time, the uncertainty in secondary or indirect transportation treatment of the co-products DGs. One predicting emissions in more distant impacts. For example, decreases in of the main energy drivers of ethanol futures and the impacts these emissions exports might reduce overall domestic production is drying of the DGs. Plants could have on climate change. agricultural commodity transport and that are co-located with feedlots have Alternative approaches for inter- emissions but might increase the ability to provide the co-product generational discounting are described transportation of commodities without drying. This has a big enough in Chapter 5.3 of the DRIA. internationally. We plan to consider impact on overall results that we EPA recognizes that the time horizon these secondary transportation impacts defined a specific category for wet vs. for analysis and the treatment of future in our final rule analysis. dry co-product. One additional factor emissions including the appropriateness d. Processing that appears to have a significant impact of applying discount factors are key on GHG emissions is corn oil factors in determining biofuel lifecycle The GHG emissions estimates fractionation from DGs. Therefore, this GHG impacts; therefore, we plan to associated with the processing of category is also broken out as a separate organize an expert peer review of these renewable fuels is dependent on a category in the following section. See issues before the final rule. number of assumptions and varies DRIA Chapter 1.4 for a discussion of significantly based on a number of key c. Feedstock Transport corn oil fractionation. variables. The ethanol yield impacts the Furthermore, as our analysis was The GHG impacts of transporting corn total amount of corn used and based on a future timeframe, we from the field to the ethanol facility and associated agricultural sector GHG modeled future plant energy use to transporting the co-product DGs from emissions. The amount of DGs and other represent plants that would be built to the ethanol facility to the point of use co-products produced will also impact meet requirements of increased ethanol were included in this analysis. The the agricultural sector emissions in production, as opposed to current or GREET default of truck transportation of terms of being used as a feed historic data on energy used in ethanol 50 miles was used to represent corn replacement. Finally the energy used by production. The energy use at dry mill transportation from farm to plant. the ethanol plant will result in GHG plants was based on ASPEN models Transportation assumptions for DGs emissions, both from producing the fuel developed by USDA and updated to transport were 14% shipped by rail 800 used and through direct combustion reflect changes in technology out to miles, 2% shipped by barge 520 miles, emissions. 2022 as described in DRIA Chapter 4.1. and 86% shipped by truck 50 miles. The As mentioned above, in traditional The GHG emissions from renewable percent shipped by mode was from data lifecycle analyses, the energy consumed fuel production are calculated by provided by USDA and based on and emissions generated by a renewable multiplying the Btus of the different Association of American Railroads, fuel plant must be allocated not only to types of energy inputs by emissions Army Corps of Engineers, Commodity the renewable fuel, but also to each of factors for combustion of those fuel Freight Statistics, and industry the by-products. For corn ethanol sources. The emission factors for the estimates. The distances DGs were production, our analysis avoids the different fuel types are from GREET and shipped were based on GREET defaults need to allocate by accounting for the are based primarily on assumed carbon for other commodities shipped by those DGs and other co-products directly in contents of the different process fuels. transportation modes. The GHG the FASOM and FAPRI agricultural The emissions from producing emissions from transport of corn and sector modeling described above. DGs electricity are also taken from GREET DGs are based on GREET default are considered a partial replacement for and represent average U.S. grid emission factors for each type of vehicle corn and other animal feed and thus electricity production emissions. The including capacity, fuel economy, and reduce the need to make up for the corn emissions from combustion of biomass type of fuel used. Similar detailed production that went into ethanol fuel source are not assumed to increase analyses were conducted for the production. Since FASOM takes the net atmospheric CO2 levels the CO2 transport of cellulosic biofuel feedstock benefits from the production and use of emitted from biomass-based fuels and biomass-based diesel feedstock. DGs into account (e.g., displacing the combustion does not increase As part of this rulemaking analysis we need to grow additional crops for feed atmospheric CO2 concentrations, have conducted a more detailed analysis and therefore reducing GHG emissions assuming the biogenic carbon emitted is of biofuel production locations and in the agricultural sector), no further offset by the uptake of CO2 resulting transportation distances and modes of allocation was needed at the ethanol from the growth of new biomass. transport used in the criteria pollutant plant and all plant emissions are Therefore, CO2 emissions from biomass emissions inventory calculations accounted for here. combustion as a process fuel source are described in DRIA Chapter 1.6 and for In terms of the energy used at not included in the lifecycle GHG the cost analysis of this rule described renewable fuel facilities, there is a lot of inventory of the ethanol plant. in DRIA Chapter 4.2. Given the timing variation between plants based on the process type (e.g., wet vs. dry milling) e. Fuel Transport 308 Newell and Pizer, 2003, Weitzman (1999, and the type of fuel used (e.g., coal vs. Transportation and distribution of 2001), Nordhaus (2008), Guo et al., (2006), Saez, natural gas). There can also be variation ethanol, biomass-based diesel, C.A. and J.C. Requena, ‘‘Reconciling sustainability and discounting in Cost-Benefit Analysis: A between the same type of plants using petroleum diesel and gasoline were also methodological proposal’’, Ecological Economics, the same fuel source based on the age included in this analysis based on 2007, vol. 60, issue 4, pages 712–725. of the plant and types of processes GREET defaults. The GREET defaults for

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both ethanol and gasoline transport GREET has assumptions on energy comment on whether—strictly for from plant/refinery to bulk terminals efficiency for different finished purposes of assessing the benefits of the were used. The GREET defaults for both petroleum products as well as for rule (and not for purposes of ethanol and gasoline distribution from different types of crude oil. determining whether certain renewable the bulk terminal to the service station We are using the latest version of the fuel pathways meet the GHG reduction were also used. GREET model for this analysis (Version thresholds set forth in EISA), we should As with feedstock transport we have 1.8b) which includes recent updates to assess benefits based on a marginal conducted a more detailed analysis of the energy efficiencies of petroleum displacement approach and, if so, what fuel transport and distribution impacts refining. To represent baseline assumptions we should use for the for use in criteria pollutant inventories petroleum fuels we have used the 2005 marginal displacements. (see DRIA Chapter 1.6) and for our cost estimates of actual gasoline and diesel In December 2008, the U.S. analysis described in DRIA Chapter 4.2. fuel used. For 2005, 86% of gasoline Department of Energy’s National Energy Due to the timing of this analysis we and 92% of diesel fuel was produced Technology Laboratory (NETL) released were not able to incorporate the results domestically with the rest imported a report that estimates the average in our proposed lifecycle calculation but finished product. To represent lifecycle GHG emissions from plan to do that for the final rule. international production we assume the petroleum-based fuels sold or same GHG refinery emissions from distributed in 2005.309 The estimates in f. Tailpipe Combustion GREET as used domestically. We did the report are based on a slightly Combustion CO2 emissions for not include indirect land use impacts in different methodology than EPA’s ethanol, biomass-based diesel, assessing the lifecycle GHG performance analysis of lifecycle GHG emissions for petroleum diesel and gasoline were of the 2005 baseline fuel pool as we the petroleum baseline. The NETL based on the carbon content of the fuel. believe these would insignificantly report is available on the docket for this However, over the full lifecycle of the impact the average performance rulemaking. We invite comments on fuel, the CO2 emitted from biomass- assessment of the baseline. whether NETL’s analysis has significant based fuels combustion does not Additionally, consistent with our implications for how EPA is estimating increase atmospheric CO2 assessment of energy security impacts, petroleum baseline lifecycle GHG concentrations, assuming the biogenic we did not include as an indirect GHG emissions. carbon emitted is offset by the uptake of impact the potential impact of 7. Energy Sector Indirect Impacts CO2 resulting from the growth of new maintaining a military presence. biomass. As a result, CO2 emissions GREET also has assumptions on the Increased demand for natural gas to from biomass-based fuels combustion mix of energy sources used to provide power corn ethanol plants could have are not included in their lifecycle the energy input, which determine GHG additional impacts on the U.S. energy emissions results. Net carbon fluxes emissions. For example if coal, natural sector. As demand for natural gas from changes in biogenic carbon gas, or purchased electricity is used as increases, the use of natural gas in other reservoirs in wooded or crop lands are an energy source. The GHG emissions sectors (e.g., electric generation) could accounted for separately in the land use associated with petroleum fuel decrease. For this analysis, we are using change analysis as outlined in the production are based on the emissions the NEMS model to project the agricultural sector modeling above. from producing and combusting the secondary or indirect impacts on the When calculating combustion GHG input energy sources needed, like GHG energy sector. However, we were not emissions, however, the methane and emissions from using natural gas at the able to include this analysis in the GHG N2O emitted during biomass-based fuels petroleum refinery. Non-combustion emissions estimates presented in this combustion are included in the analysis. GHG sources like fugitive methane proposal. We hope to have this analysis Unlike CO2 emissions, the combustion emissions are added in where for the final rule. Additional details on of biomass-based fuels does result in net applicable. the methodology are included in the additions of methane and N2O to the Based on the EISA requirements, we DRIA Chapter 2, and we invite atmosphere. Therefore, combustion used the 2005 mix of crude as the comments on this approach. methane and N2O emissions are petroleum baseline. We developed We are assuming, for the proposal, included in the lifecycle GHG emissions emissions factors for those crude types that a gallon of renewable fuel replaces results for biomass-based fuels. since they are not currently included in an energy equivalent gallon of Combustion related methane and N2O GREET. In 2005, 5% of crude was petroleum fuel. This analysis presumes emissions for both biomass-based fuels Canadian tar sand, 1% was Venezuela that petroleum-based fuels as they are and petroleum-based fuels are based on extra heavy, and 23% was heavy crude. currently produced will continue to be EPA MOVES model results. For this proposal, we are using the used for transportation fuels and will be average GHG emissions associated with replaced on a Btu for Btu basis. Many 6. Petroleum Baseline the 2005 petroleum baseline, as required factors could affect this assumption To establish the lifecycle greenhouse by EISA. However, we recognize that an including advances in petroleum fuel gas emissions associated with the additional gallon of renewable fuel technology, availability of other fossil petroleum baseline against which the replaces the marginal gallon of fuels for transportation use, and of renewable fuels were compared, we petroleum fuel. To the extent that the course the supply and cost of used an updated version of the GREET marginal gallon is from oil sands or petroleum. We have not tried to analyze model. Lifecycle energy use and other types of crude oil that are these potential impacts in this rule. associated emissions for petroleum- associated with higher than average However we invite comment on such an based fuels in GREET is calculated GHG emissions, replacing these fuels approach. based on an energy efficiency metric for could have a larger GHG benefit. We have also not assessed whether the different processes involved with Conversely to the extent the marginal expanded use of biofuels in the U.S. petroleum-based fuels production. The gallon displaced is from imported energy efficiency metric is a measure of gasoline produced from light crude, 309 DOE/NETL. 2008. Development of Baseline Data and Analysis of Life Cycle Greenhouse Gas how many Btus of input energy are replacing these fuels would have a Emissions of Petroleum-Based Fuels. DOE/NETL– needed to make a Btu of product. smaller GHG benefit. We solicit 2009/1346.

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will impact the energy markets in other account for the variable timing of GHG variables. The sensitivity of the time countries. For example, reducing emissions; and how models are used period and discount rate are discussed demand for petroleum-based fuel in the together to provide overall lifecycle below. In the rest of this section we U.S. may reduce worldwide petroleum GHG estimates. focus on two sets of lifecycle GHG prices and impact the use of petroleum In addition to the refinements to the results. One set of results that uses a 100 in other countries. We invite comment methodology that we plan to undertake year time period and 2% discount rate on how best to assess these potential for the final rule, we also intend to and a parallel set of results using a 30 impacts and will attempt to do so for the update our results periodically. EPA year time period and a 0% discount final rule. recognizes that the state of the science rate. In Section IV.C.2 which follows, for lifecycle GHG analysis will continue we also present the results for some C. Fuel Specific GHG Emissions to evolve over time as new data and Estimates additional combinations of time horizon modeling techniques become available for assessing GHG emission changes as While the results presented in this and as there are improvements in well as assuming other discount rates. section represent the most up-to-date agricultural and renewable fuel Additional pathways, not included in information currently available, this production practices as well as new the results presented in this section, analysis is part of an ongoing process. feedstocks. We invite comments on the distinguishing other combinations of Because lifecycle analysis is a new part appropriate amount of time for periodic feedstock and processing technologies of the RFS program, in addition to the review of the lifecycle assessment have been evaluated. These additional formal comment period on the proposed methodology, but we propose that pathways are described in detail in the rule, EPA is making multiple efforts to performing an update of the solicit public and expert feedback on DRIA and are included in these methodology every 3–5 years would be proposed regulations. our proposed approach. As discussed in appropriate. We would expect the first Section XI, EPA plans to hold a public update to this analysis would occur a. Corn Ethanol workshop focused specifically on closer to 3 years. This timeframe would lifecycle analysis during the comment allow us to undergo a formal review Table VI.C.1–1 presents the breakout period to assure full understanding of process after the final rule to ensure that of the net present value of lifecycle GHG the analyses conducted, the issues this methodology takes into account the emissions per million British thermal addressed and options that should be most state-of-the-art science and reflects unit (mmbtu) of corn ethanol and considered. We expect that this the input of appropriate experts in this gasoline. The results are broken out by workshop will allow the most field. However, any change in lifecycle lifecycle stage. Values are shown for a thoughtful and useful comments to this methodology as contemplated here standard dry mill corn ethanol plant in proposal and assure the best would not affect the eligibility of 2022 using natural gas for process methodology and assumptions are used biofuels produced at facilities covered energy and drying the co-product of for calculating GHG emissions impacts by the grandfathering provisions of distillers grains (DGs). Results indicate of fuels for the final rule. Additionally EISA at section 211(o)(4)(g). where the major contributions of GHG we will conduct peer-reviews of key emissions are across the fuel lifecycle. components of our analysis. As part of 1. Greenhouse Gas Emissions Fuel processing and indirect land use ongoing analysis for the final rule, EPA Reductions Relative to the 2005 change are the main contributors to corn will seek peer review of: Our use of Petroleum Baseline ethanol lifecycle GHG emissions. Net satellite data to project future land use In this section we present detailed domestic and international agricultural changes; the land conversion GHG lifecycle GHG results for several specific impacts (w/o land use change) include emissions factors estimated by Winrock; biofuels representing a range biofuel direct and indirect impacts, such as our estimates of GHG emissions from pathways. This section also includes the reductions in livestock enteric foreign crop production; methods to results of sensitivity analysis for key fermentation.

TABLE VI.C.1–1—ABSOLUTE LIFECYCLE GHG EMISSIONS FOR CORN ETHANOL AND THE 2005 PETROLEUM BASELINE

[CO2-eq/mmBtu]

Natural gas Natural gas 2005 Gasoline dry mill with 2005 Gasoline dry mill with baseline dry DGs baseline dry DGs

Lifecycle Stage 100 yr 2% 30 yr 0%

Net Domestic Agriculture (w/o land use change) ...... N/A ¥499,029 N/A ¥347,365 Net International Agriculture (w/o land use change) ...... N/A 452,118 N/A 314,711 Domestic Land Use Change ...... N/A 79,547 N/A 92,575 International Land Use Change ...... N/A 310 1,911,391 N/A 1,910,822 Fuel Production 311 ...... 823,262 1,404,083 573,058 977,358 Fuel and Feedstock Transport ...... (see footnote 174,327 ...... 121,346 321) Tailpipe Emissions 312 ...... 3,417,311 37,927 2,378,800 26,400

Net Total Emissions ...... 4,240,674 3,560,365 2,951,858 3,095,846

310 312 For this proposal, our preliminary analysis of petroleum-based fuel production for the final Ethanol tailpipe emissions include CH4 and suggests land use impacts of petroleum production rule and invite comment and information that N2O emissions but not CO2 emissions as these are for the fuels used in the U.S. in 2005 would not would support such an analysis. assumed to be offset by feedstock carbon uptake. have an appreciable impact on the 2005 baseline 311 2005 petroleum baseline fuel production GHG emissions assessment. However, we expect to includes crude oil extraction, transportation, more carefully consider potential land use impacts refining, and transport of finished product.

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Table VI.C.1–1 demonstrates the In Table VI.C.1–1, we project a a 2% discount rate, and a 6% reduction importance of the discount rate and standard dry mill ethanol plant in 2022 over 30 years with no discounting. In time period analyzed as well as the using corn as its feedstock, using natural addition, advanced technologies such as importance of significance of including gas for process energy, and drying the membrane separation and raw starch GHG emissions from international land co-product of distillers grains (DGs). hydrolysis could improve the emissions use changes. Assuming 100 years of Different corn ethanol production associated with corn ethanol production corn ethanol produced in a basic dry technologies will have different even more substantially. Combining all mill ethanol production facility and lifecycle GHG results. For example, due of these technologies in a state-of-the-art using a 2% discount rate results in corn to its high carbon content, using coal as natural gas powered corn ethanol ethanol having a 16% reduction in GHG the process energy source significantly facility would produce ethanol that has emissions compared to the 2005 worsens the lifecycle GHG impact of approximately 35% less lifecycle GHG baseline gasoline assumed to be ethanol produced at such a facility. On emissions than an energy equivalent replaced. In contrast, assuming 30 years the other hand, replacing natural gas amount of baseline gasoline displaced of corn ethanol production and use and with renewable biomass as the process over 100 years using a 2% discount rate no discounting of the GHG emission energy source greatly improves the GHG and, by comparison a 14% reduction impacts results in predicting that corn assessment. when accounting for 30 years of ethanol will have a 5% increase in GHG Other technology options are emission changes but applying no emissions compared to petroleum available to improve the efficiency of discounting. Details on these different gasoline. ethanol facilities. Table VI.C.1–2 shows technologies are included in the DRIA As discussed in Section VI.B.2.a, the impact that different corn ethanol Chapter 1.5. EPA’s interpretation of the EISA statute production process pathways will have compels us to include significant on the overall lifecycle GHG results. Table VI.C.1–2 also shows that the indirect emission impacts including Table VI.C.2–2 shows that currently choice of drying DGs can have a those due to land use changes in other available technologies could be applied significant impact on the GHG countries. The data in Table VI.C.1–1 to corn ethanol plants to reduce their emissions associated with an ethanol indicate that excluding the international net GHG emissions. plan, since drying the ethanol land use change would result in corn For example, a combined heat and byproduct is an energy intensive ethanol having an approximately 60% power (CHP) configuration, used in process. However, wet DGs are only reduction in lifecycle GHG emissions combination with corn oil fractionation, suitable where a local market is compared to petroleum gasoline would result in a GHG emissions available such as a dairy farm or cattle regardless of the timing or discount rate reduction of 27% relative to the 2005 feedlot, since wet DGs are highly used.313 petroleum baseline over 100 years using perishable.

TABLE VI.C.1–2—LIFECYCLE GHG EMISSIONS CHANGES FOR VARIOUS CORN ETHANOL PATHWAYS IN 2022 RELATIVE TO THE 2005 PETROLEUM BASELINE

Percent change from Percent Corn ethanol production plant type 2005 petro- change from leum baseline 2005 baseline (100 yr 2%) (30 yr 0%)

Natural Gas Dry Mill with dry DGs ...... ¥16 +5 Natural Gas Dry Mill with dry DGs and CHP ...... ¥19 +2 Natural Gas Dry Mill with dry DGs, CHP, and Corn Oil Fractionation ...... ¥27 ¥6 Natural Gas Dry Mill with dry DGs, CHP, Corn Oil Fractionation, and Membrane Separation ...... ¥30 ¥10 Natural Gas Dry Mill with dry DGs, CHP, Corn Oil Fractionation, Membrane Separation, and Raw Starch Hy- drolysis ...... ¥35 ¥14 Natural Gas Dry Mill with wet DGs ...... ¥27 ¥6 Natural Gas Dry Mill with wet DGs and CHP ...... ¥30 ¥9 Natural Gas Dry Mill with wet DGs, CHP, and Corn Oil Fractionation ...... ¥33 ¥12 Natural Gas Dry Mill with wet DGs, CHP, Corn Oil Fractionation, and Membrane Separation ...... ¥36 ¥15 Natural Gas Dry Mill with wet DGs, CHP, Corn Oil Fractionation, Membrane Separation, and Raw Starch Hy- drolysis ...... ¥39 ¥18 Coal Fired Dry Mill with dry DGs ...... +13 +34 Coal Fired Dry Mill with dry DGs and CHP ...... +10 +31 Coal Fired Dry Mill with dry DGs, CHP, and Corn Oil Fractionation ...... ¥5 +15 Coal Fired Dry Mill with dry DGs, CHP, Corn Oil Fractionation, and Membrane Separation ...... ¥13 +8 Coal Fired Dry Mill with dry DGs, CHP, Corn Oil Fractionation, Membrane Separation, and Raw Starch Hydrol- ysis ...... ¥21 ¥1 Coal Fired Dry Mill with wet DGs ...... ¥9 +12 Coal Fired Dry Mill with wet DGs and CHP ...... ¥11 +10 Coal Fired Dry Mill with wet DGs, CHP, and Corn Oil Fractionation ...... ¥17 +3 Coal Fired Dry Mill with wet DGs, CHP, Corn Oil Fractionation, and Membrane Separation ...... ¥25 ¥4 Coal Fired Dry Mill with wet DGs, CHP, Corn Oil Fractionation, Membrane Separation, and Raw Starch Hy- drolysis ...... ¥30 ¥9 Biomass Fired Dry Mill with dry DGs ...... ¥39 ¥18 Biomass Fired Dry Mill with wet DGs ...... ¥40 ¥19 Natural Gas Fired Wet Mill ...... ¥7 +14

313 The treatment of emissions over time is not are excluded because the results without land use overall lifecycle GHG results do not vary with time critical if international land use change emissions change are consistent over time. Therefore the or discount rate assumptions.

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TABLE VI.C.1–2—LIFECYCLE GHG EMISSIONS CHANGES FOR VARIOUS CORN ETHANOL PATHWAYS IN 2022 RELATIVE TO THE 2005 PETROLEUM BASELINE—Continued

Percent change from Percent Corn ethanol production plant type 2005 petro- change from leum baseline 2005 baseline (100 yr 2%) (30 yr 0%)

Coal Fired Wet Mill ...... +20 +41 Biomass Fired Wet Mill ...... ¥47 ¥26

As described in Sections VI.A and pathway and does not distinguish the EISA. To address whether the GHG VI.B, there are a number of parameters emission performance between biofuel emissions vary significantly over time, and modeling assumptions that could production plants using the same basic we also calculated corn ethanol lifecycle impact the overall renewable fuel GHG production technology and type of GHG emissions estimates in 2012 and results. The estimates in Table VI.C.1– feedstock. Thus it does not account for 2017. As shown in Table VI.C.1–3, corn 2 are based on the GHG emissions for any incremental differences in facility ethanol’s lifecycle GHG emissions a specific change in volumes analyzed design or operation which may affect reductions are fairly consistent in 2022 (12.3 to 15 Bgal). These volumes the lifecycle GHG performance at that regardless of which base year is represent the change in corn ethanol facility. Second, by focusing on 2022, analyzed. This may be due to production that would occur in 2022 this analysis does not track how biofuel countervailing forces that stabilize land without and then with EISA mandates GHG emission performance may change use change emissions over the period of in place. The GHG impact is then over time between now and 2022. Third, normalized to a per gallon or Btu basis the results presented here are based on our analysis. Crop yields increase over in relation to gasoline. These values are the GHG impacts of the volumes time (therefore reducing land use used to represent every gallon of corn analyzed. pressure), but there is also increasing ethanol produced throughout the For this proposal, we believe that production of other renewable fuels that program. using the emissions assessment from a require land for feedstock production There are several important typical 2022 facility for each major (therefore increasing land use pressure). implications associated with this technology pathway captures the Although we are proposing to use 2022 methodology. First, this analysis focuses appropriate level of detail needed to as the base year for our lifecycle GHG on the average impact of an increase in determine whether a particular biofuel emissions estimates, we invite fuel produced using a technology meets the threshold requirements in comments on this approach.

TABLE VI.C.1–3—CORN ETHANOL LIFECYCLE GHG EMISSIONS CHANGES IN 2012, 2017, AND 2022

Percent Percent change from change from Scenario Description 2005 petro- 2005 petro- leum baseline leum baseline (100 yr 2%) (30 yr 0%)

Corn Ethanol Natural Gas Dry Mill in 2012 with dry DGs ...... ¥16 ¥3 Corn Ethanol Natural Gas Dry Mill in 2017 with dry DGs ...... ¥13 +9 Corn Ethanol Natural Gas Dry Mill in 2022 with dry DGs ...... ¥16 +5

We also tested the impact of analyzing analyzed. Based on this scenario, the reductions. Additional details on these a larger change in corn ethanol volumes GHG emissions estimates associated sensitivity analyses are included in the on the GHG emissions estimates. Table with a larger change (6.3 Bgal) in corn DRIA Chapter 2. VI.C.1–4 shows the sensitivity of our ethanol volumes (8.7 Bgal to 15 Bgal) analysis to the volume changes results in lower GHG emission

TABLE VI.C.1–4—CORN ETHANOL LIFECYCLE GHG EMISSIONS CHANGES ASSOCIATED WITH DIFFERENT VOLUME CHANGES

Percent Percent Change from Change from 2005 2005 Scenario Description Petroleum Petroleum Baseline Baseline (100 yr 2%) (30 yr 0%)

Corn Ethanol Natural Gas Dry Mill in 2022 with dry DGs; 2.7 Bgal change in corn ethanol volumes ...... ¥16 +5 Corn Ethanol Natural Gas Dry Mill in 2022 with dry DGs; 6.3 Bgal change in corn ethanol volumes ...... ¥6 +14

The results presented in previous (i.e., land actively used for livestock cropland would be replaced with new tables assume that managed pasture grazing) converted from pasture to pasture in other areas. The area of

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managed pasture converted to cropland 5). Finally, the third row of Table that has been converted to crop was estimated using satellite data from VI.C.1–5 includes lifecycle GHG results production. We note that the best Winrock and land cover data from assuming that all of the land converted decision on pasture land replacement GTAP. As a sensitivity analysis, we also to cropland would come from pasture may vary by country or region due to analyzed a scenario in which none of and that none of that pasture would be such factors as the current intensity of the pastureland converted to cropland replaced, which is counter to the land use of pasture land as well as trends in would be replaced if, for example, use trends identified by the Winrock demand for pasture. DRIA Chapter 2 livestock production could be more satellite data. As can be seen, the includes more details about the intensively developed on the remaining assumption of pastureland replacement treatment of pasture conversion, and pasture (see first row in Table VI.C.1–5). can have a significant effect on the sensitivity analysis of the types land use Similarly, we also calculated results results. We ask for comment on the best changes induced by corn ethanol assuming that all pasture acres would be assumptions to be made when production. replaced (second row in Table VI.C.1– considering the need to replace pasture

TABLE VI.C.1–5—CORN ETHANOL LIFECYCLE GHG EMISSIONS CHANGES ASSOCIATED WITH DIFFERENT ASSUMPTIONS ON LAND USE CHANGES

Percent Percent Change from Change from Scenario Description 2005 Petro- 2005 Petro- leum Baseline leum Baseline (100 yr 2%) (30 yr 0%)

Corn Ethanol Natural Gas Dry Mill in 2022 with dry DGs; 0% pastureland replaced ...... ¥34 ¥19 Corn Ethanol Natural Gas Dry Mill in 2022 with dry DGs; 100% pastureland replaced ...... ¥2 +24 Corn Ethanol Natural Gas Dry Mill in 2022 with dry DGs; grassland only conversion and 0% pastureland re- placed ...... ¥48 ¥38

DRIA Chapter 2 includes results for production. Applying the proposed assumptions of type conversion additional sensitivity analysis of corn FAPRI/Winrock methodology to patterns. As a sensitivity analysis, ethanol lifecycle GHG emissions. We sugarcane ethanol production in Brazil shows results for a scenario where none also intend to conduct additional predicts a large increase in new acres of the grassland converted to cropland sensitivity analysis for the final rule. We planted, which has a relatively large in Brazil would be replaced if, for invite comment on these assumptions. impact on overall GHG emissions. The example, livestock production could be impact is from both new sugarcane more intensively developed on the b. Imported Ethanol production acres in Brazil resulting in remaining pasture (see second row in Table VI.C.1–6 presents the breakout land use change but also reduced Table VI.C.1–6). The third row of Table of lifecycle GHG emissions for commodity exports from Brazil resulting VI.C.1–6 includes lifecycle GHG results sugarcane ethanol compared to a 2005 in land use change in other countries. assuming that in Brazil all of the land petroleum baseline under different The proposed FAPRI/Winrock converted to cropland would come from discount rate and time horizon methodology predicts that new crop grassland and that none of that scenarios and land use assumptions. acreage is converted from a range of grassland would be replaced. As can be This assessment was based on applying land types. In contrast, some studies seen in the table, the assumption of the same methodology as for other suggest that sugarcane ethanol pastureland replacement can have an biofuels including the assessment of production can increase in Brazil by important effect on the results. DRIA both direct and indirect impacts using relying on existing excess pasture lands Chapter 2 includes more details about the combination of FASOM, FAPRI and and will not significantly impact other the treatment of pasture conversion, and Winrock modeling results. Virtually all land types.314 Table VI.C.1–6 provides sensitivity analysis of the types land use the ethanol from sugarcane is expected the range of lifecycle GHG emission changes induced by sugarcane ethanol to be imported from Brazilian reduction results under these different production.

TABLE VI.C.1–6—SUGARCANE ETHANOL GHG EMISSION CHANGES UNDER VARIED LAND USE ASSUMPTIONS AND VARIED DISCOUNT RATES AND TIME HORIZONS RELATIVE TO 2005 PETROLEUM BASELINE

Land Use Change Scenario Description (100 yr 2%) (30 yr 0%)

FAPRI/Winrock estimate with managed pasture replacement ...... ¥44 ¥26 FAPRI/Winrock estimate with no pasture replacement in Brazil ...... ¥59 ¥45 Only grassland conversion in Brazil and no pasture replacement in Brazil ...... ¥64 ¥52

We are aware that recent land use Brazil land use enforcement policy enforcement and other assumptions for enforcement policies in Brazil may shift impacts. We are conducting more the final rule. State level production cropland expansion patterns (see also detailed economic modeling of the data could be used in conjunction with Section VI.B.5.b.iii). We seek comment Brazilian agricultural sector by state for Winrock’s state level satellite data, on both pasture conversion patterns and inclusion in FAPRI to address pasture, which may substantially change the

314 Goldemberg, J.; Coelho, ST.; Guardabassi, PM. sugarcane. Energy Policy. 2008. doi:10.1016/ The sustainability of ethanol production from j.enpol.2008.02.028.

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estimates of the location and type of c. Cellulosic Ethanol on acres where stover is removed; land being converted in Brazil for the however, increased stover removal was final rule. Given that commercially-viable also associated with higher rates of cellulosic ethanol production is not yet reduced tillage or no tillage practices We have also assumed that sugarcane a reality, analysis of this pathway relies ethanol production relies on burning which results in soil carbon increase. upon significant assumptions regarding See Section IX.A for details. In addition, bagasse as an energy source and that the the development of production cellulosic ethanol was assumed to be process produces excess electricity. We technologies. As described in the produced using the biochemical process factor in credits from this excess previous section, our analysis assumed which is expected to produce more electricity based on offsetting the corn stover required no international electricity from the lignin in the Brazilian electricity grid. As Brazil land use changes, since corn stover does feedstock than is required to power the implements limits on field burning of not compete with other crops for ethanol plant, so excess electricity can bagasse there may be additional bagasse acreage in the U.S. Therefore, using corn be sold back to the grid. See DRIA used at sugarcane ethanol plants and stover as a feedstock for cellulosic Chapter 2 for additional details. This additional electricity production. We biofuel production would not have an electricity provides a GHG benefit, plan to look at this further for the final impact on U.S. exports. We assumed which results in GHG emissions rule analysis. some of the nutrients would have to be reductions from fuel production as replaced through higher fertilizer rates shown in Table VI.C.1–7.

TABLE VI.C.1–7—ABSOLUTE LIFECYCLE GHG EMISSIONS FOR CORN STOVER CELLULOSIC ETHANOL AND THE 2005 PETROLEUM BASELINE

[CO2-eq/mmBtu]

Corn stover Corn stover 2005 ethanol (sell- 2005 ethanol (sell- Petroleum ing excess Petroleum ing excess baseline electricity to baseline electricity to grid) grid)

Lifecycle Stage (100 yr 2%) (30 yr 0%)

Net Domestic Agriculture (w/o land use change) ...... 178,862 N/A 124,503 Net International Agriculture (w/o land use change) ...... 0 N/A ...... Domestic Land Use Change ...... ¥78,448 N/A ¥91,925 International Land Use Change ...... 0 N/A 0 Fuel Production ...... 823,262 ¥875,424 573,058 ¥609,367 Fuel and Feedstock Transport ...... 107,214 ...... 74,629 Tailpipe Emissions ...... 3,417,311 37,927 2,378,800 26,400

Net Total Emissions ...... 4,240,674 ¥629,870 2,951,858 ¥475,130

Although switchgrass must compete to corn. In addition, FASOM predicts cellulosic ethanol from corn stover, with other crops for land in the U.S., that switchgrass would generally be switchgrass ethanol is also assumed to average switchgrass ethanol yields are grown on more marginally productive produce excess electricity that can be on average higher than corn ethanol land. Since switchgrass is not projected sold to the grid, therefore switchgrass yields (approximately 580 gallons/acre to displace crop acres with high yields, cellulosic ethanol results in relatively compared to 480 gallons/acre). new switchgrass acres generally would large lifecycle GHG reductions Therefore, switchgrass would need not have a large impact on exports. compared to the replaced petroleum approximately 20% less land to produce Therefore, the international land use gasoline as shown in Table VI.C.1–8. the same amount of ethanol compared change impacts are modest. Like

TABLE VI.C.1–8—ABSOLUTE GHG EMISSIONS FOR SWITCHGRASS CELLULOSIC ETHANOL AND THE 2005 PETROLEUM BASELINE

[CO2-eq/mmBtu]

Switchgrass Switchgrass 2005 ethanol (sell- 2005 ethanol (sell- Petroleum ing excess Petroleum ing excess baseline electricity to baseline electricity to grid) grid)

Lifecycle Stage (100 yr 2%) (30 yr 0%)

Net Domestic Agriculture (w/o land use change) ...... ¥470,620 ...... ¥327,590 Net International Agriculture (w/o land use change) ...... ¥356,712 ...... ¥248,301 Domestic Land Use Change ...... ¥65,318 ...... ¥76,015 International Land Use Change ...... 423,097 ...... 424,094 Fuel Production ...... 823,262 ¥874,599 573,058 ¥608,793 Fuel and Feedstock Transport ...... 136,663 ...... 95,129 Tailpipe Emissions ...... 3,417,311 37,927 2,378,800 26,400

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TABLE VI.C.1–8—ABSOLUTE GHG EMISSIONS FOR SWITCHGRASS CELLULOSIC ETHANOL AND THE 2005 PETROLEUM BASELINE—Continued

[CO2-eq/mmBtu]

Switchgrass Switchgrass 2005 ethanol (sell- 2005 ethanol (sell- Petroleum ing excess Petroleum ing excess baseline electricity to baseline electricity to grid) grid)

Net Total Emissions ...... 4,240,674 ¥1,169,561 2,951,858 ¥715,076

Cellulosic ethanol does not have biofuels. As the land use issue is not using enzymatic processing, reduced nearly as significant an impact on land critical for the cellulosic feedstock fuels lifecycle GHG emissions by significantly use as other biofuels, therefore we did in the scenarios we analyzed, the impact more than the 60% threshold for not calculate sensitivity impacts of, for of timing and discount rates also do not cellulosic biofuel. Table VI.C.1–9 example, assuming full replacement of have a significant impact on the overall summarizes the lifecycle GHG results pasture versus no pasture replacement results for cellulosic ethanol. Both of the for cellulosic ethanol fuel pathways. which could be important in the cellulosic ethanol pathways we lifecycle GHG assessment of other examined, switchgrass and corn stover

TABLE VI.C.1–9—CELLULOSIC ETHANOL GHG EMISSION CHANGES FROM DIFFERENT FEEDSTOCKS AND VARIED DISCOUNT RATES AND TIME HORIZONS RELATIVE TO 2005 PETROLEUM BASELINE [In percent]

Assumption—feedstock type (100 yr 2%) (30 yr 0%)

Corn Stover ...... ¥115 ¥117 Switchgrass ...... ¥128 ¥121

d. Biodiesel still significantly lower for biodiesel lifecycle GHG emissions could be EPA’s modeling predicts that than for ethanol (approximately 97 gal/ greatly reduced with the adoption of soybean-based biodiesel production has acre ethanol equivalent). Furthermore, policies and agricultural practices that a large land use impact for two major our analysis suggests that due to high limit the amount of tropical reasons. Soybean biodiesel has a world wide demand for soybeans for deforestation induced by soy-based relatively low gallon per acre yield food, cooking and other non-biofuel biodiesel production. DRIA Chapter 2 (approximately 65 gal/acre for soybean uses, soybean and other edible oils used includes sensitivity analyses about the biodiesel versus 480 gal/acre for corn for biofuel are generally replaced by types of land converted to crops as a ethanol). Thus, the impact of any land- production in other countries including result of soy-based biodiesel production. use change tends to be magnified with production in tropical climates where Table VI.C.1–10 presents the breakout of soybean biodiesel. Even when the the GHG emissions released per acre of the absolute lifecycle GHG emissions for higher Btu value of biodiesel is taken converted land are highest. This soybean biodiesel and the petroleum into consideration, Btu/acre yields are indicates that soy-based biodiesel diesel fuel baseline by lifecycle stage.

TABLE VI.C.1–10—ABSOLUTE LIFECYCLE GHG EMISSIONS FOR SOYBEAN BIODIESEL AND THE 2005 PETROLEUM BASELINE

[CO2-eq/mmBtu]

2005 Petro- Soybean 2005 Petro- Soybean leum baseline biodiesel leum baseline biodiesel

Lifecycle Stage (100 yr 2%) (30 yr 0%)

Net Domestic Agriculture (w/o land use change) ...... ¥423,206 ...... ¥294,586 Net International Agriculture (w/o land use change) ...... 195,304 ...... 135,948 Domestic Land Use Change ...... ¥8,980 ...... ¥10,451 International Land Use Change ...... 2,474,074 ...... 2,469,574 Fuel Production ...... 749,132 838,490 521,458 583,658 Fuel and Feedstock Transport ...... 149,258 ...... 103,896 Tailpipe Emissions ...... 3,424,635 30,169 2,383,828 21,000

Net Total Emissions ...... 4,173,768 3,255,109 2,905,286 3,009,039

Our analysis is based on a change in conducted for corn-ethanol, we plan to of using different volumes for the final biodiesel volumes from 0.4 Bgal to 0.7 run a sensitivity analysis on the impact rule. Bgal. Similar to the analysis we

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As discussed in Section VI.B.2.a, treatment of emissions over time is not purpose of using for cooking and the EPA’s interpretation of the EISA statute critical if international land use change land required to produce this cooking compels us to include significant emissions are excluded because the oil is properly attributed to that use. indirect emission impacts including results without land use change are Gathering and re-using the left over those due to land use changes in other consistent over time. Therefore the waste cooking oil would have no countries. The data in Table VI.C.1–10 overall lifecycle GHG results do not vary additional land use impact. This lack of indicate that excluding the international with time or discount rate assumptions. land use impact greatly influences the land use change would result in soy- In contrast, GHG emissions from lifecycle GHG analysis. Table VI.C.1–11 based biodiesel having an waste oil and greases are assumed to presents the breakout of the absolute approximately 80% reduction in have no land use impacts. We assumed lifecycle GHG emissions for waste lifecycle GHG emissions compared to any land use change was attributed to grease biodiesel and the petroleum petroleum gasoline regardless of the the original use of the feedstock, for diesel fuel baseline by lifecycle stage. timing or discount rate used. The example, soy oil was produced for the

TABLE VI.C.1–11—ABSOLUTE LIFECYCLE GHG EMISSIONS FOR WASTE GREASE BIODIESEL AND THE 2005 PETROLEUM BASELINE

[CO2-eq/mmBtu]

2005 2005 Petroleum Waste grease Petroleum Waste grease baseline biodiesel baseline biodiesel

Lifecycle Stage (100 yr 2%) (30 yr 0%)

Net Domestic Agriculture (w/o land use change) ...... 0 ...... 0 Net International Agriculture (w/o land use change) ...... 0 ...... 0 Domestic Land Use Change ...... 0 ...... 0 International Land Use Change ...... 0 ...... 0 Fuel Production ...... 749,132 658,198 521,458 458,160 Fuel and Feedstock Transport ...... 149,258 ...... 103,896 Tailpipe Emissions ...... 3,424,635 30,169 2,383,828 21,000

Net Total Emissions ...... 4,173,768 837,626 2,905,286 583,056

Table VI.C.1–12 summarizes the impact the choice of timing or discount large land use impact the choice of lifecycle GHG results for biodiesel fuel rate does not impact the waste grease timing and discount rate has a big pathways. As the waste grease biodiesel biodiesel results. However, as the impact on the soybean biodiesel results. is not assumed to have any land use soybean biodiesel is found to have a

TABLE VI.C.1–12—BIODIESEL LIFECYCLE GHG EMISSION CHANGES FROM DIFFERENT FEEDSTOCKS AND VARIED DISCOUNT RATES AND TIME HORIZONS RELATIVE TO 2005 PETROLEUM BASELINE

Assumption—feedstock type (100 yr 2%) (30 yr 0%)

Soybean ...... ¥22% +4% Waste Grease ...... ¥80% ¥80%

Table VI.C.1–13 shows the sensitivity compared to an assumption that none of analysis for the pasture replacement of our assessment for soy oil biodiesel this grassland is replaced for livestock assumptions. assuming 100% of the grassland grazing. DRIA Section 2.8.2.4 provides converted to cropland is replaced more information about sensitivity

TABLE VI.C.1–13—SOY-BASED BIODIESEL GHG EMISSION CHANGES UNDER VARIED LAND USE ASSUMPTIONS AND VARIED DISCOUNT RATES AND TIME HORIZONS RELATIVE TO 2005 PETROLEUM BASELINE

Assumption—land types available for conversion (100 yr 2%) (30 yr 0%)

100% Pasture Replacement ...... ¥4% +27% No Pasture Replacement ...... ¥45% ¥27%

2. Treatment of GHG Emissions Over Since there is a large release of carbon associated with several types of biofuels Time in the first year of land conversion, it and fuel production pathways. A As described in Section VI.B.5, can take many years for the benefits of payback period of 0 indicates that these changes in indirect land use associated the biofuel to make up for these early pathways do not have land use change with increased biofuel production result carbon emissions, depending on the impacts and therefore reduce emissions in GHG emissions increases that specific biofuel in question. Table in the first year that they are produced. accumulate over a long time period. VI.C.2–1 contains the payback period Assessments are made in comparison to

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the baseline transportation fuel used in The percent reduction goal is the compared to the baseline petroleum fuel 2005 in the U.S. as mandated by EISA. lifecycle GHG emissions of the biofuel it is replacing.

TABLE VI.C.2–1—PAYBACK PERIOD [in years]

Payback period (years) Fuel type Reduction Reduction Reduction Reduction goal: 0% goal: 20% goal: 50% goal: 60%

Corn Ethanol 2022 Base Dry Mill NG 315 ...... 33 54 316 N/A N/A Corn Ethanol 2022 Best Case Dry Mill NG 317 ...... 23 31 N/A N/A Corn Ethanol 2022 Base Dry Mill Coal 318 ...... 75 >100 N/A N/A Corn Ethanol 2022 Base Dry Mill Biomass 319 ...... 22 31 N/A N/A Soybean Biodiesel ...... 32 46 105 N/A Waste Grease Biodiesel ...... 0 0 0 N/A Sugarcane Ethanol ...... 18 26 61 N/A Switchgrass Ethanol ...... 3 3 4 5 Corn Stover Ethanol ...... 0 0 0 0

As described in Section VI.B.5, we emissions with a 2% discount rate. In GHG impacts assuming 100 years with have focused our lifecycle GHG analysis the other set of results we consider 30 a 2% discount rate and 30 years with no on two ways of accounting for GHG years of GHG emissions with no discount rate, Table VI.C.2–2 shows the emissions over time. In one set of results discounting of future emissions (i.e., 0% lifecycle GHG emissions reductions we consider lifecycle GHG emissions discount rate). Whereas the discussion estimates with a variety of time periods over 100 years and discount future immediately above focused on lifecycle and discount rates. TABLE VI.C.2–2—LIFECYCLE GHG EMISSIONS CHANGES OF SELECT BIOFUELS RELATIVE TO THE 2005 PETROLEUM BASELINE

Lifecycle GHG emissions changes of select biofuels relative to the 2005 petroleum baseline Time horizon 30 Years 50 Years 100 Years Discount rate 0% 2% 3% 7% 0% 2% 3% 7% 0% 2% 3% 7%

Corn Ethanol Dry Mill NG 5% 18% 25% 54% ¥17% ¥2% 7% 44% ¥36% ¥16% ¥4% 41% Corn Ethanol Best Case Dry Mill NG ¥14% ¥1% 6% 35% ¥36% ¥21% ¥12% 25% ¥55% ¥35% ¥23% 22% Corn Ethanol Dry Mill Coal 34% 46% 53% 83% 11% 27% 35% 72% ¥8% 13% 24% 69% Corn Ethanol Dry Mill Biomass ¥18% ¥6% 1% 31% ¥41% ¥25% ¥17% 20% ¥60% ¥39% ¥28% 16% Soybean Biodiesel ...... 4% 20% 29% 68% ¥24% ¥4% 7% 55% ¥48% ¥22% ¥7% 51% Waste Grease Biodiesel ...... ¥80% ¥80% ¥80% ¥80% ¥80% ¥80% ¥80% ¥80% ¥80% ¥80% ¥80% ¥80% Sugarcane Ethanol ...... ¥27% ¥17% ¥11% 12% ¥45% ¥32% ¥26% 3% ¥61% ¥44% ¥35% 1% Switchgrass Ethanol ...... ¥124% ¥122% ¥121% ¥115% ¥128% ¥125% ¥124% ¥117% ¥131% ¥128% ¥126% ¥117% Corn Stover Ethanol ...... ¥116% ¥117% ¥117% ¥118% ¥115% ¥116% ¥116% ¥117% ¥114% ¥115% ¥115% ¥117%

D. Thresholds adopted in this rule, this threshold only discounting these emissions 2%. pertains to renewable fuel produced at Therefore, based on this assessment, we EISA established GHG thresholds for plants to be constructed in the future. believe that an adjustment to the 20% each category of renewable fuel that it EPA is permitted to adjust this threshold would be unnecessary and we mandates. EISA also provided EPA with threshold to as low as 10%, based on are proposing to maintain it at the 20% the authority to adjust the threshold the ‘‘maximum achievable level, taking level if we adopt the 100 year, 2% levels for each category of renewable cost into consideration, for natural gas discounting methodology. fuels if certain requirements are met. fired corn-based ethanol plants allowing On the other hand, based on our Renewable fuels must achieve a 20% for the use of a variety of technologies.’’ current analyses, if we adopt an reduction in lifecycle greenhouse gas Based on our analysis, there are a assessment methodology which assesses emissions compared to the average number of corn ethanol natural gas emissions over just 30 years, then no lifecycle greenhouse gas emissions for plant configurations that could meet the currently analyzed natural gas-fired gasoline or diesel sold or distributed as 20% reduction in GHG emissions corn ethanol pathway will meet the transportation fuel in 2005. Due to the thresholds in 2022 if modeling emission 20% threshold. However, some of the grandfathering provisions of EISA as over a 100 year time frame and then natural gas corn ethanol pathways do

315 Dry Mill corn ethanol plant using natural gas corn ethanol does not qualify under EISA as a 318 Dry Mill corn ethanol plant using coal with with 2022 energy use and dry DDGS. potential advanced biofuel. 2022 energy use and dry DDGS. 316 Payback periods were not calculated for 317 Dry Mill corn ethanol plant using natural gas 319 Dry Mill corn ethanol plant using biomass ethanol made from corn starch for the advanced with 2022 energy use and w/CHP, Fractionation, with 2022 energy use and dry DDGS. Membrane Separation, and Raw Starch Hydrolysis biofuel reduction goals of 50% and 60% since this (wet DGS).

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have lifecycle GHG emission benefits in impacts over 30 years whether the E. Assignment of Pathways to the 10% to 20% range. Corn ethanol is emissions are discounted or not. Even if Renewable Fuel Categories expected to be the major biofuel EPA adjusted the biomass-based diesel The lifecycle analyses that we contributing to meeting the renewable standard to the minimum allowable conducted for a variety of fuel pathways fuel standards through at least the level of 40%, soybean-based biodiesel formed the basis for our determination middle of the next decade. Therefore, if would still not meet the GHG emissions of which pathways would be permitted we adopt a 30 year timeframe for reductions threshold for biomass based to generate RINs, and to which of the emissions assessment and do not diesel fuel. One option for meeting the four renewable fuel categories discount the results, we may adjust the volumetric requirement and the (cellulosic biofuel, biomass-based renewable fuel thresholds to the emissions reduction threshold, diesel, advanced biofuel, and renewable minimum level as necessary to assuming a 100 year timeframe and a fuel) those RINs should be assigned. incorporate at least a few of the best 2% discount rate for GHG emission This determination involved comparing GHG pathways for corn ethanol. While impacts would be to allow biodiesel the lifecycle GHG performance this adjusted threshold level could be producers to average the emissions estimates to the GHG thresholds revised based on pathway analyses done reductions from a blend of soy oil or associated with each renewable fuel for the final rule, at this time we would food grade vegetable oil-based biodiesel category, discussed in Section VI.D intend to allow a full 10% adjustment with waste oil based biodiesel, as above. In addition, each of the four of the renewable fuel threshold, down to discussed in more detail in Section VI.E. renewable fuel categories is defined in a threshold value of 10% reduction However, this approach may still be EISA to include or exclude certain types compared to the 2005 gasoline baseline. insufficient to ensure that the required Cellulosic biofuels must meet a 60% of feedstocks and production processes, volumes of biomass-based diesel can be and these definitions also played a role reduction in GHG emissions relative to produced unless other sources of the petroleum baseline. EPA is in determining the appropriate category biomass-based diesel become available. for each pathway. This section describes permitted to adjust this threshold to as Therefore, we invite comments on low as 50% if it is ‘‘not commercially our proposed assignments of pathways whether it be appropriate to both reduce to one of the four renewable fuel feasible for fuels made using a variety of the threshold to 40% and allow feedstocks, technologies, and processes’’ categories. The GHG lifecycle values biodiesel producers to average their used in this assignment of fuel to achieve the 60% threshold. Our emissions to meet the one billion gallon initial analysis indicates that cellulosic pathways to the four renewable fuel volumetric requirement as discussed categories were based on the lifecycle biofuels from corn stover, switchgrass, below in Section VI.E.3.c. and bagasse will all meet the 60% analysis results over a 100-year Advanced biofuels must achieve a threshold regardless of whether we use timeframe and using a 2% discount rate, 50% reduction in GHG emissions. EPA to 100 year, 2% discount methodology as described in Section VI.C. Different is permitted to adjust this threshold to or the 30 year analysis time frame assignments of pathways to the four as low as 40% if it is ‘‘not commercially without discounting. Furthermore, we renewable fuel categories would occur feasible for fuels made using a variety of believe most fuels made from other with different lifecycle results, but we feedstocks, technologies, and processes’’ cellulosic feedstocks would as well. propose that the same assignment to achieve the 50% threshold. Our Therefore we do not believe it is methodology would be followed current lifecycle analysis suggests that necessary to adjust the threshold for regardless. sugarcane based ethanol only offers an cellulosic biofuel at this time. 1. Statutory Requirements Biomass-based diesel must achieve a estimated 44% reduction in GHG 50% reduction in GHG emissions emissions relative to the gasoline it EISA establishes requirements that are relative to petroleum-based diesel. EPA replaces when assessing 100 years of common to all four categories of is permitted to adjust this threshold to emission impacts and discounting these renewable fuel in addition to as low as 40% if it is ‘‘not commercially emissions 2%, and an estimated 27% requirements that are unique to each of feasible for fuels made using a variety of reduction when assessing 30 years of the four categories. The common feedstocks, technologies, and processes’’ emission impacts with no discounting. requirements determine which fuels are to meet the 50% level. For biomass- Therefore, it would not qualify as an valid for generating RINs under the based diesel, our analysis indicates that advanced biofuel if we did not adjust RFS2 program. For instance, all biodiesel from waste oils such as yellow the 50% GHG threshold. We are also renewable fuel must be made from grease and tallow would meet the 50% unaware of other renewable fuels that renewable biomass, which defines the threshold, and we anticipate that may be available in sufficient volumes types of feedstocks that can be used to biodiesel from chicken waste and non- over the next several years to allow the produce renewable fuel that is valid food grade corn oil fractionation would statutory volume requirements for under the RFS2 program, and also as well regardless of whether we use a advanced biofuel to be met. As a result, defines the types of land on which crops 100 year, 2% discount methodology or we are proposing that the GHG can be grown if those crops are used to the 30 year analysis time frame without threshold for advanced biofuels be produce valid renewable fuel under the discounting. However, our current adjusted to 44% or potentially as low as RFS2 program. See Section III.B.4 for a analysis indicates that there is 40% depending on the results from the more detailed discussion of renewable insufficient feedstock from waste grease analyses that will be conducted for the biomass. Moreover, all renewable fuel and fats to meet the one billion gallon final rule. Based on our current analysis must displace fossil fuel present in volumetric requirement under EISA. of the lifecycle GHG impacts of transportation fuel, or be used as home Biodiesel from soy oil (and we believe sugarcane ethanol, such an adjustment heating oil or jet fuel. biodiesel from other food grade would help ensure that the volume The requirements that are unique to vegetable oils) would reduce GHG mandates for advanced biofuel can be each of the four categories provide a emissions by no more than 22% using met. basis for assigning each pathway to a a 100 year, 2% discount methodology We invite comments on these category. For each of the four categories and would be estimated to increase proposed thresholds and our basis for of renewable fuel, EISA provides a GHG emissions if we analyze emission them. definition, specifies the associated GHG

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thresholds, lists the allowable some cases provides exclusions. Table as we are applying them under the feedstocks and/or fuel types, and in VI.E.1–1 summarizes these requirements proposed RFS2 program.

TABLE VI.E.1–1—REQUIREMENTS FOR RENEWABLE FUEL CATEGORIES

Cellulosic biofuel Biomass-based diesel Advanced biofuel Renewable fuel

GHG threshold ...... 60% ...... 50% a ...... 40–44% a ...... 20% a, b. Eligible Inclusions ...... Renewable fuel made Any renewable fuel that All cellulosic biofuel and biomass- All advanced biofuel, from cellulose, hemi- is a diesel fuel sub- based diesel, as well as other and any other fuel cellulose, or lignin. stitute. renewable fuels including eth- made from renewable anol from sugar, starch, or biomass that is used waste materials, biogas, and bu- to replace or reduce tanol and other alcohols. the quantity of fossil fuel present in a trans- portation fuel. Exclusions ...... Any renewable fuel Ethanol derived from corn starch. made from coproc- essing with petroleum. a As discussed in Section VI.D, we are seeking comment on the need to adjust the thresholds, and are proposing that the GHG threshold for advanced biofuels be adjusted to as low as 40%. b 20% threshold does not apply to grandfathered volumes. See discussion in Section III.B.3.

2. Assignments for Pathways Subjected GHG thresholds shown in Table discussion of these other determinations to Lifecycle Analyses VI.E.1–1 would be met under the is provided in Section VI.E.3 below. There are a wide variety of pathways assumption of a 100-year timeframe and For pathways that we subjected to (unique combinations of feedstock, fuel discount rate of 2%. For other pathways lifecycle analysis, we were able to type, and fuel production process) that that we have not yet subjected to assign each pathway to one of the four could result in renewable fuel that lifecycle analyses, there were some renewable fuel categories defined in would be valid under the RFS2 cases in which we could nevertheless EISA by comparing the descriptions of program. As described earlier in this still make moderately confident each pathway and its associated GHG section, we conducted lifecycle analyses determinations as to the likely GHG performance to the requirements shown for some of these pathways, and these impacts by making comparisons to the in Table VI.E.1–1. The results are shown analyses allowed us to determine if the pathways that we did analyze. A in Table VI.E.2–1.

TABLE VI.E.2–1—PROPOSED ASSIGNMENT OF PATHWAYS TO ONE OF THE FOUR RENEWABLE FUEL CATEGORIES FOR PATHWAYS SUBJECTED TO LIFECYCLE ANALYSES

Cellulosic biofuel pathways ...... Ethanol produced from corn stover or switchgrass in a process that uses enzymes to hydro- lyze the cellulose and hemicellulose. Biomass-based diesel pathways ...... Biodiesel (mono alkyl esters) produced from waste grease and waste oils. Advanced biofuel pathways ...... Ethanol produced from sugarcane sugar in a process that uses sugarcane bagasse for proc- ess heat. a Renewable fuel pathways ...... Ethanol produced from corn starch in a process that uses biomass for process heat. Ethanol produced from corn starch in a process that includes: —Dry mill plant. —Process heat derived from natural gas. —Combined heat and power (CHP). —Fractionation of feedstocks. —All distillers grains are dried. Ethanol produced from corn starch in a process that includes: —Dry mill plant. —Process heat derived from natural gas. —All distillers grains are wet. Ethanol produced from corn starch in a process that includes: —Dry mill plant. —Process heat derived from coal. —Combined heat and power (CHP). —Fractionation of feedstocks. —Membrane separation of ethanol. —Raw starch hydrolysis. —All distillers grains are dried. Ethanol produced from corn starch in a process that includes: —Dry mill plant. —Process heat derived from coal. —Combined heat and power (CHP). —Fractionation of feedstocks. —Membrane separation of ethanol. —All distillers grains are wet.

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TABLE VI.E.2–1—PROPOSED ASSIGNMENT OF PATHWAYS TO ONE OF THE FOUR RENEWABLE FUEL CATEGORIES FOR PATHWAYS SUBJECTED TO LIFECYCLE ANALYSES—Continued Biodiesel (mono alkyl esters) produced from soybean oil. a Our current analysis concludes that ethanol from sugarcane sugar would have a GHG performance of 44% in comparison to gasoline under our assumed 100-year timeframe and 2% discount rate. Since this falls short of the 50% GHG threshold for advanced biofuel, we have cat- egorized it as general renewable fuel. However, we request comment on lowering the applicable GHG threshold for advanced biofuel so that eth- anol from sugarcane sugar could be categorized as advanced biofuel. See further discussion in Section VI.D.

In addition, our lifecycle analyses also time for this proposed rulemaking. for ethanol produced from corn starch identified pathways that did not meet Instead, we focused the lifecycle GHG also be applied to ethanol produced the minimum 20% GHG threshold emissions analysis on the feedstocks from other sources of starch. under an assumed 100-year timeframe that, based on FASOM predictions and The lifecycle analyses conducted for and 2% discount rate, and thus would other information, we anticipate could this proposal only examined cases in be prohibited from generating RINs contribute the largest volumes to the which a corn-ethanol facility dried unless a facility met the prerequisites renewable fuel pool and the production 100% of its distiller’s grains or left for grandfathering as described in processes representing the largest shares 100% of its distiller’s grains wet. The Section III.B.3. These prohibited of the market. As more information treatment of the distiller’s grains for pathways all involved the production of becomes available, we anticipate that corn-ethanol facilities impacts the ethanol from corn starch in a process we will be updating the lifecycle determination of whether the 20% GHG that uses natural gas or coal for process methodology and expanding the list of threshold for renewable fuel has been heat, but which does not meet any of the emission factors. met. However, in practice some process technology requirements listed Beyond the pathways that we facilities may dry only a portion of their in Table VI.E.2–1. Our proposal for explicitly subjected to lifecycle analysis, distiller’s grains and leave the temporary D codes in § 80.1416 would there are additional pathways that may remainder wet. As described in Section explicitly prohibit the generation of not currently be significant contributors III.D.3, we are proposing that a facility RINs for these pathways. to the volume of renewable fuel that dried only a portion of its distiller’s The proposed assignments of produced, but their volumes could grain would be treated as if it dried individual pathways to one of the four increase in the future. Moreover, we 100% of its grains, and would thus need renewable fuel categories shown in the believe it is important that as many to implement additional GHG-reducing table above assumed a 100-year pathways as possible be included in the technologies as described in the lookup timeframe and discount rate of 2% for lookup table in the regulations to help table in order to qualify to generate lifecycle GHG emission impacts. The ensure that the volume requirements in RINs. However, we are also taking assignments would be different if we EISA can be met and to encourage the comment on whether a selection of had assumed a different timeframe and development of new fuels. To this end, pathways should be included in the discount rate. By comparing the relative we evaluated these additional pathways lookup table that represent corn-ethanol GHG emission reductions shown in to determine if they could be deemed facilities that dry only a portion of their Table VI.C.1–2 to the thresholds in valid for generation of RINs, and if so distiller’s grains. We also request Table VI.E.1–1, a variety of different which of the four renewable fuel comment on whether RINs could be assignments is possible covering categories they would fall into. This assigned to only a portion of the timeframes of 30, 50, and 100 years, and section describes our evaluation of these facility’s ethanol in cases wherein only discount rates of 0%, 2%, 3%, and 7%. additional pathways and the resulting a portion of the distiller’s grains are For instance, under the assumption of proposed assignment to one or more of dried. 30 years and no discounting, the four renewable fuel categories. b. Renewable Fuels from Cellulosic switchgrass ethanol and corn stover a. Ethanol From Starch Biomass ethanol would continue to be categorized as cellulosic biofuel and Our lifecycle analysis focused on In analyzing the lifecycle GHG biodiesel made from waste grease would ethanol from corn starch. However, impacts of cellulosic ethanol, we continue to be categorized as biomass- there are a variety of other sources of determined that ethanol produced from based diesel. However, sugarcane starch that use or could use a very corn stover or switchgrass through a ethanol could no longer be potentially similar process for conversion to process using enzymatic hydrolysis categorized as advanced biofuel but ethanol. These include wheat, barley, followed by fermentation of the instead would be categorized as oats, rice, and sorghum. Some existing resulting sugars met the GHG threshold renewable fuel. Moreover, some corn-ethanol facilities already use small of 60% for cellulosic biofuel by a wide pathways would not meet the minimum amounts of starch from these other margin (regardless of the discount rate threshold of 20% for renewable fuel, plants along with corn in their and the time period over which the and so could not generate RINs if the production of ethanol. lifecycle GHG emissions are volume was not grandfathered. This Although we have not explicitly discounted). However, there are many would include soybean biodiesel and all analyzed the land use or processing other potential sources of cellulosic of the corn starch ethanol pathways impacts of these other starch plants on biomass, and other processing shown in Table VI.E.2–1 produced from their lifecycle GHG performance, we mechanisms to convert cellulosic newly constructed plants not meeting believe it would be reasonable to biomass into fuel. For some of these the grandfathering criteria discussed in assume similar impacts to corn in terms cases, we believe that we can make Section III.B.3. of the types of land that would be determinations regarding whether the displaced and other aspects of GHG thresholds shown in Table VI.E.1– 3. Assignments for Additional Pathways producing and transporting the 1 are likely to be met. In addition, as the We were not able to conduct lifecycle feedstock. Therefore, we propose that forestry component of the FASOM modeling for all potential pathways in the pathways shown in Table VI.E.2–1 model is incorporated into the analysis,

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we will analyze pathways using planted request comment on the land use producer’s discretion. See further trees, tree residue, and slash and pre- impacts of miscanthus and planted discussion of this issue in Section commercial thinnings from forestland, trees. III.D.2.a. We request comment on our as qualify under the renewable biomass Renewable fuels can also be produced proposed assignment of categories for definition, for feedstock. from cellulosic biomass through various renewable fuels produced through a Cellulosic biomass sources include thermochemical processes rather than thermochemical process, as well as data waste biomass such as corn stover, and enzymatic hydrolysis followed by and other information relating to the crops grown specifically for fuel fermentation. One example of such various types of thermochemical fuel production such as switchgrass. While thermochemical processes would be production processes. cellulosic crops grown for the purpose biomass gasification to produce c. Biodiesel of fuel production could have land use ‘‘syngas’’ (a mixture of hydrogen and Our lifecycle analysis of biodiesel implications in a lifecycle GHG carbon monoxide) which is then (mono alkyl esters) produced from analysis, waste materials produced catalytically synthesized through a waste greases/oils demonstrated that the during the harvesting of some other type Fischer-Tropsch process to produce 50% GHG threshold for biomass-based of crop would not. Given that the GHG ethanol, diesel, gasoline, or other diesel would be met. Much of the GHG impacts of a fermentation-based fuel transportation fuels. Another example benefit of these waste greases/oils production process are likely to be very would be a catalytic depolymerization similar for cellulose from a variety of derives from the fact that they have no process in which the biomass is first land use impacts. While we did not feedstocks, we believe it would be catalytically cracked to smaller reasonable to conclude that any subject corn oil that is non-food grade molecules and then polymerized under cellulosic feedstock from a waste source to lifecycle analysis, it is likely that it specific combinations of temperature, that is subjected to enzymatic would also have no land use impacts. pressure, and residence time to produce hydrolysis followed by fermentation of Moreover, such non-food grade corn oil a transportation fuel. We have not the resulting sugars would be very likely would require nearly the same process conducted a lifecycle analysis of these to meet the 60% GHG threshold for energy to convert it into biodiesel. pathways, but we believe that we can cellulosic biofuel. Therefore, we Therefore, we propose that the pathway nonetheless make a reasonable propose that cellulosic ethanol shown in Table VI.E.2–1 for biodiesel determination regarding the appropriate produced through an enzymatic produced from waste greases/oils also renewable fuel category. For instance, hydrolysis process followed by be applied to biodiesel produced from fermentation using any eligible waste we would expect that the GHG non-food grade corn oil. We intend to cellulosic feedstock would be emissions produced during fuel analyze this pathway in more depth for determined to meet the 60% GHG production would be higher for a the final rule. threshold for cellulosic biofuel. This thermochemical process than for Our lifecycle analysis of biodiesel would include such wastes as wheat enzymatic hydrolysis due to the need produced from soybean oil may also be straw, rice straw, sugarcane bagasse, for greater process heat produced applicable to biodiesel produced from forest slash and thinnings, and yard through the combustion of fossil fuels. other types of virgin (not waste) oils. waste. However, the yield of fuel produced per This would include canola oil, rapeseed As stated earlier, cellulosic crops ton of biomass is likely to be greater for oil, sunflower oil, and peanut oil. While grown for the purpose of fuel thermochemical processing due to the we have not conducted a detailed production could have land use conversion of the lignin to fuel in assessment of the land use impacts of implications in a lifecycle GHG addition to the cellulose and these other virgin oils, it is possible that analysis. However, the only cellulosic hemicellulose. Thus, while the lifecycle they would meet the 20% threshold for crop that we subjected to lifecycle GHG analyses we conducted for corn generic renewable fuel. Therefore, we analysis was switchgrass which had a stover and switchgrass demonstrated propose that the pathway shown in relatively small impact of land-use. that the 60% GHG threshold for Table VI.E.2–1 for biodiesel produced Other cellulosic crops that have been cellulosic biofuel would be met by a from soybean oil also be applied to considered for fuel production include wide margin, this margin may be biodiesel produced from other these miscanthus and trees such as poplar and smaller if a thermochemical process was virgin oils. We request comment on willow. It is possible that the land use used. While we intend to conduct whether this is appropriate. impacts of miscanthus and planted trees further analyses of this family of Although our proposed list of RIN- could be different from that for pathways for the final rule, we believe generating pathways would allow switchgrass. For instance, while that a change from enzymatic hydrolysis biodiesel made from waste greases/oils switchgrass can be grown on marginal to a thermochemical process would be to qualify as biomass-based diesel, it is lands, planted trees may require more expected to meet the 60% GHG likely that there would be insufficient arable land to thrive. However, threshold associated with cellulosic quantities of these feedstocks to reach according to our lifecycle analysis for biofuel. Therefore, we propose that the the 1.0 billion gallon requirement by switchgrass, the land use impacts could use of corn stover or other waste 2012. Biodiesel produced from soybean significantly increase and the 60% cellulosic biomass, switchgrass, or oil would not qualify as biomass-based threshold for cellulosic biofuel would planted trees in a thermochemical diesel, but instead would be categorized still be met. Therefore, we propose that process would qualify as cellulosic as generic renewable fuel based on our the pathways shown in Table VI.E.2–1 biofuel under the RFS2 program. This current analysis of its lifecycle GHG for ethanol produced from switchgrass would include pathways that produce performance. However, biodiesel through an enzymatic hydrolysis ethanol, cellulosic diesel, or cellulosic production facilities can process either process followed by fermentation also gasoline. Since cellulosic diesel fuel soybean oil or waste grease with be applied to ethanol produced from produced in this way would also meet relatively minor changes in operations, miscanthus and planted trees. We the requirements for biomass-based and many facilities that formerly used intend to examine this pathway more diesel, we propose to allow it to be soybean oil have recently switched to closely for the final rule to determine if categorized as either cellulosic biofuel waste grease due to its more favorable this categorization is appropriate, and or biomass-based diesel at the economics. Since the GHG performance

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of biodiesel made from waste greases/ process a consistent mixture of waste each day to continue to assign a D code oils met the 50% GHG threshold by a grease and soybean oil every day. of 2 to their biodiesel. wide margin, and since it is common Therefore, we request comment on An obligated party could use any industry practice for biodiesel facilities alternative approaches. For instance, if combination of RINs with a D code of to use these two feedstock sources, we a biodiesel production facility processed 2, 3, or 4 in order to comply with the believe it may be appropriate to allow only waste grease for the first 175 days biomass-based diesel standard. a biodiesel production facility to (48% × 365 days) of a calendar year, we However, he would also be subject to an average the GHG benefit generated could allow it to designate any biodiesel additional requirement that the ratio of through the use of waste grease with the produced from soybean oil for the D=3 RINs to D=4 RINs must be less than lower GHG performance of biodiesel remainder of the year as biomass-based 1.08. This criterion would ensure that a produced from soybean oil at the same diesel. However, this may be difficult minimum of 47 RINs representing facility. for some producers who must contend biodiesel from waste grease would be We recognize that an approach in with cold temperature storage and used for compliance purposes for every which we allow a biodiesel production blending issues in the early part of a 53 RINs representing biodiesel from facility to average the GHG benefit of calendar year by processing only soybean oil that are also used for waste grease with that from soybean oil soybean oil. Alternatively, we could compliance. raises questions about whether similar allow a company to average the We request comment on these averaging could be allowed for other production at all of its facilities, where alternative approaches to the treatment combinations of feedstocks, other types one facility processed only waste grease of biodiesel. of fuel, or across multiple facilities and another processed only soybean oil. d. Renewable Diesel Through within the same company. While we Finally, we request comment on an Hydrotreating believe that the circumstances alternative approach in which an surrounding biodiesel production are obligated party, rather than the biodiesel We did not conduct a lifecycle somewhat unique—two different production facility, would demonstrate analysis for the production of non-ester feedstocks subjected to essentially the that a minimum number of waste renewable diesel through a same production process in a single grease-based biodiesel RINs is used to hydrotreating process. However, we facility—we nevertheless request meet the biomass-based diesel standard believe that our analysis of biodiesel comment on the appropriateness of such in comparison to the number of soybean provides sufficient information to allow an averaging approach for biodiesel. oil-based biodiesel RINs. In essence, the us to designate the renewable fuel Based on our lifecycle analyses, averaging would be carried out by the category for various pathways leading to biodiesel produced from waste grease obligated party instead of the biodiesel the production of renewable diesel. has a GHG performance of 80% producer. In this approach, biodiesel Renewable diesel is generally made reduction from the conventional diesel RINs would not be placed into biomass- from the same feedstocks as biodiesel, baseline, while biodiesel produced from based diesel category shown in Table namely soybean oil, waste greases/oils, soybean oil has a GHG performance of VI.E.1–1, but instead would be placed tallow, and chicken fat. Therefore, the 22% reduction. In order to meet the into two separate categories as waste GHG impacts associated with GHG threshold of 50% for biomass- grease RINs or soybean oil RINs. This producing/collecting the feedstock and based diesel, a biodiesel production designation would require that the list transporting it to the production facility facility would need to use a minimum of applicable D codes for use in the RIN would be the same regardless of of 48% waste grease and a maximum of be expanded from four to six as shown whether the final product is biodiesel or 52% soybean oil. Thus, a pathway that in Table VI.E.3.c–1. renewable diesel. would allow a biodiesel production The fossil energy requirements of the facility to designate all of its biodiesel TABLE VI.E.3.C–1—ALTERNATIVE AP- production process contribute a relatively small amount to the overall as biomass-based diesel would include PROACH TO D CODES FOR AVER- GHG performance for biodiesel. For a requirement that the producer AGING WASTE GREASE AND SOY- demonstrate that every batch has been example, the 50% GHG threshold would BEAN OIL BIODIESEL RINSINCOM- produced from no less than 48% waste still be met for biodiesel produced from grease and no more than 52% soybean PLIANCE waste grease even if the fossil energy oil. requirements doubled. As a result, D Alternative ap- Although this approach would allow value Proposal meaning proach meaning compared to the transesterification the total volume of biomass-based diesel process used to produce biodiesel, any to be larger than if waste greases/oils 1 ...... Cellulosic biofuel Cellulosic biofuel small variations in fossil energy alone qualified, it is still possible than 2 ...... Biomass-based Biomass-based requirements for renewable diesel the 1.0 billion gallon requirement would diesel. diesel production in a hydrotreater would be not be met due to limits on the 3 ...... Advanced biofuel Biodiesel made unlikely to change compliance with the availability of waste greases and oils. from soybean broad categories created by the GHG oil thresholds for biomass-based diesel and For instance, we estimate that the total 4 ...... Renewable fuel ... Biodiesel made volume of waste greases and oils may be from waste generic renewable fuel. Therefore, we no larger than 0.3–0.4 billion gallons. As grease believe that it would be appropriate to a result, we request comment on 5 ...... (Not applicable) .. Advanced biofuel assign applicable renewable fuel whether it would also be appropriate to 6 ...... (Not applicable) .. Renewable fuel categories to renewable diesel pathways lower the GHG threshold for biomass- in parallel with the assignments we are based diesel. If this GHG threshold were Since other types of renewable fuel proposing for biodiesel, including the lowered to 40%, a biodiesel production may still qualify as biomass-based potential for averaging of soyoil and facility would only need to use a diesel, we would retain a separate D waste grease derived volumes. minimum of 31% waste greases/oils code for this category under this Renewable diesel produced from waste instead of 48%. approach. This could allow biodiesel grease, tallow, or chicken fat in a We recognize that it may be difficult producers who choose the process a hydrotreater that does not coprocess for a biodiesel production facility to minimum of 48% waste greases/oils petroleum feedstocks would be

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categorized as biomass-based diesel. 4. Summary would be adjusted should we adopt Renewable diesel produced from waste Based on the discussion above, we other time frames or discount rates grease, tallow, or chicken fat in a have identified 15 pathways that we (including a zero discount rate) for the hydrotreater that does coprocess propose could be used to produce fuel final rule. Each pathway would be petroleum feedstocks would be that would meet the volume assigned a D code for use in generating categorized as advanced biofuel. requirements in EISA assuming a 100 RINs that corresponds to one of the four Finally, renewable diesel produced from year analysis time frame and renewable fuel categories. Our proposed soybean oil in a hydrotreater would be discounting GHG emissions over time list of allowable pathways is shown in categorized as generic renewable fuel. by 2%. As noted above, these pathways Table VI.E.4–1.

TABLE VI.E.4–1—APPLICABLE CATEGORIES FOR EACH FUEL PATHWAY a

Fuel type Feedstock Production process requirements Category

Ethanol ...... Starch from corn, wheat, barley, —Process heat derived from bio- Renewable fuel. oats, rice, or sorghum. mass. Ethanol ...... Starch from corn, wheat, barley, —Dry mill plant ...... Renewable fuel. oats, rice, or sorghum. —Process heat derived from nat- ural gas. —Combined heat and power (CHP). —Fractionation of feedstocks. —Some or all distillers grains are dried. Ethanol ...... Starch from corn, wheat, barley, —Dry mill plant ...... Renewable fuel. oats, rice, or sorghum. —Process heat derived from nat- ural gas. —All distillers grains are wet. Ethanol ...... Starch from corn, wheat, barley, —Dry mill plant ...... Renewable fuel. oats, rice, or sorghum. —Process heat derived from coal. —Combined heat and power (CHP). —Fractionation of feedstocks. —Membrane separation of eth- anol. —Raw starch hydrolysis. —Some or all distillers grains are dried. Ethanol ...... Starch from corn, wheat, barley, —Dry mill plant ...... Renewable fuel. oats, rice, or sorghum. —Process heat derived from coal. —Combined heat and power (CHP). —Fractionation of feedstocks. —Membrane separation of eth- anol. —All distillers grains are wet. Ethanol ...... Cellulose and hemicellulose from —Enzymatic hydrolysis of cel- Cellulosic biofuel. corn stover, switchgrass, lulose. miscanthus, wheat straw, rice straw, sugarcane bagasse, for- est waste, yard waste, or plant- ed trees. —Fermentation of sugars. —Process heat derived from lignin. Ethanol ...... Cellulose and hemicellulose from —Thermochemical gasification of Cellulosic biofuel. corn stover, switchgrass, biomass. miscanthus, wheat straw, rice straw, sugarcane bagasse, for- est waste, yard waste, or plant- ed trees. —Fischer-Tropsch process. Ethanol ...... Sugarcane sugar ...... —Process heat derived from sug- Advanced biofuel. arcane bagasse. Biodiesel (mono alkyl ester) ...... Waste grease, waste oils, tallow, —Transesterification ...... Biomass-based diesel. chicken fat, or non-food grade corn oil. Biodiesel (mono alkyl ester) ...... Soybean oil and other virgin plant —Transesterification ...... Renewable fuel. oils.

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TABLE VI.E.4–1—APPLICABLE CATEGORIES FOR EACH FUEL PATHWAY a—Continued

Fuel type Feedstock Production process requirements Category

Cellulosic diesel ...... Cellulose and hemicellulose from —Thermochemical gasification of Cellulosic biofuel or biomass- corn stover, switchgrass, biomass. based diesel. miscanthus, wheat straw, rice straw, sugarcane bagasse, for- est waste, yard waste, or plant- ed trees. —Fischer-Tropsch process. —Catalytic depolymerization. Non-ester renewable diesel ...... Waste grease, waste oils, tallow, —Hydrotreating. chicken fat, or corn oil. —Dedicated facility that proc- Biomass-based diesel. esses only renewable biomass. Non-ester renewable diesel ...... Waste grease, waste oils, tallow, —Hydrotreating ...... Advanced biofuel. chicken fat, or non-food grade corn oil. —Coprocessing facility that also processes petroleum feed- stocks. Non-ester renewable diesel ...... Soybean oil and other virgin plant —Hydrotreating ...... Renewable fuel. oils. Cellulosic gasoline ...... Cellulose and hemicellulose from —Thermochemical gasification of Cellulosic biofuel. corn stover, switchgrass, biomass. miscanthus, wheat straw, rice straw, sugarcane bagasse, for- est waste, yard waste, or plant- ed trees. —Fischer-Tropsch process. —Catalytic depolymerization. a Under our assumed 100-year timeframe and 2% discount rate.

As stated earlier, there may be other described in previous sections. The change in 2022 of these two volume potential pathways that could lead to same system boundaries apply such that scenarios of renewable fuels to qualifying renewable fuel. While we do this analysis includes the effects of three determine overall GHG impacts of the not have sufficient information at this main areas: (a) emissions related to the rule. The reference case for the GHG time to evaluate the likely lifecycle GHG production of biofuels, including the emission comparisons was taken from impact and thus assign those pathways growing of feedstock (corn, soybeans, the AEO 2007 projected renewable fuel to one of the four renewable fuel etc.) with associated domestic and production levels for 2022 prior to categories, we do plan on doing these international land use change impacts, enactment of EISA. This scenario evaluations for the final rule. Pathways transport of feedstock to fuel production provided a point of comparison for that we intend to subject to lifecycle plants, fuel production, and distribution assessing the impacts of the RFS2 analysis include butanol from starches of finished fuel; (b) emissions related to standard volumes on GHG emissions. or oils and renewable diesel from the extraction, production and We ran these multi-fuel scenarios biomass using pyrolysis or catalytic distribution of petroleum gasoline and through our FASOM and FAPRI models reforming. We request comment on the diesel fuel that is replaced by use of and applied the Winrock land use inputs necessary to apply lifecycle biofuels; and (c) difference in tailpipe change assumptions to determine to analysis to these pathways. We also combustion of the renewable and overall GHG impacts. We were only able request comment on other pathways petroleum based fuels. As discussed in to analyze 2022 reference and control that should be analyzed and the data the previous sections we will be cases. However, in reality the impacts of that would be necessary for those updating our lifecycle approach for the corn ethanol and soybean biodiesel will analyses. final rule and there are some areas that be experienced beginning in 2009, with For pathways that are not included in we were not able to quantify at this the impacts of cellulosic ethanol and the lookup table in the final rule, we are time, such as secondary impacts in the sugarcane ethanol growing in later years also proposing a regulatory mechanism energy sector. We are working to as their volumes increase. whereby a producer could temporarily include this for our final rule analysis. The main difference between this assign their renewable fuel to one of the Consistent with the fuel volume overall impacts analysis and the four renewable fuel categories under feasibility analysis and criteria pollutant analysis conducted to develop the certain conditions. For further emissions, our analysis of the GHG threshold values for the individual fuels discussion of this issue, see Section impacts of increased renewable fuel use is that we analyzed the total change in III.D.5. was conducted by comparing the renewable fuels in one scenario as impacts of the 2022 36 Bgal of opposed to looking at individual fuel F. Total GHG Emission Reductions renewable fuel volumes required by impacts. When analyzing the impact of Our analysis of the overall GHG EISA to a projected 2022 reference case the total 36 billion gallons of renewable emission impacts of this proposed of approximately 14 Bgal of renewable fuel, we also took into account the rulemaking was performed in parallel fuel volumes. Similar to what was done agricultural sector interactions with the lifecycle analysis performed to to calculate lifecycle thresholds for necessary to produce the full develop the individual fuel thresholds individual fuels we considered the complement of feedstock. We also

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considered a mix of plant types and rates will have a significant impact on using renewable fuels over time configurations for the 2022 renewable results. replacing petroleum fuel use. Based on fuel production representing the mix of • We estimate the largest overall the volume scenario considered, the one plants we project to be in operation in agricultural sector impact is an increase time land use change impacts result in 2022. This is based on the same analysis in land use change impacts, reflecting 448 million metric tons of CO2–eq. used in the plant location and fuel the shift of crop production emissions increase. There are, however, feasibility analysis described in Section internationally to meet the biofuel based on the biofuel use replacing V.B. demand in the U.S. Increased crop petroleum fuels, GHG reductions in For this overall impacts analysis we production internationally resulted in each year. When modeling the program used a different petroleum baseline fuel land use change emissions associated as if all fuel volume changes occur in that is offset from renewable fuel use. with converting land into crop 2022, and considering 100 years of The lifecycle threshold values are production. emission impacts that are discounted by • required by EISA to be based on a 2005 Our analysis indicates that overall 2% per year, we get an estimated total petroleum fuel baseline. For this domestic agriculture emissions would discounted NPV reduction in GHG inventory analysis of the overall impacts increase. There is a relatively small emissions of 6.8 billion tons over 100 of the rule we considered the crude oil increase in total domestic crop acres years. Totaling the emissions impacts and finished product that would be however, there are additional inputs over 30 years but assuming a 0% replaced in 2022. Displaced petroleum required due to the removal of crop discount rate over this 30 year period product analysis was consistent with residues. The assumption is that would result in an estimated total NPV work performed for the energy security removal will require more inputs to reduction in GHG emissions of 4.5 analysis described in Section IX.B. For make up for lost residue nutrients. billion tons over 30 years. this analysis we consider that 25% of These additional inputs result in GHG This total NPV reduction can be displaced gasoline will be imported emissions from production and from converted into annual average GHG gasoline. For the domestic production N2O releases from application. This reductions, which can be used for the we assumed replacement of the 2022 effect is somewhat offset by reductions calculations of the monetized GHG crude mix which is projected to include due to lower livestock production. benefits as shown in Section IX.C.4. 7.6% tar sands and 3.8% Venezuelan These results are dependent on our This annualized value is based on heavy crude which is higher then the agricultural sector input and emission converting the lump sum present values projected mix in 2005 which includes assumptions that are being updated for described above into their annualized 5% tar sands and 1% Venezuelan heavy the final rule (e.g., N2O emission factor equivalents. For this analysis we crude. work). • convert the NPV results for the 100 year Given these many differences, simply In particular due to this 2% discount rate into an annualized adding up the individual lifecycle international impact, the potential average such that the NPV of the overall GHG emission reductions of results determined in Section VI.C. annualized average emissions will equal biofuels produced from food crops such multiplied by their respective volumes the NPV of the actual emission stream as corn ethanol and soy biodiesel are would yield a different assessment of over 100 years with a 2% discount rate. significantly impacted. Large near term the overall rule impacts. The two This results in an annualized average emission increases due to land use analyses are separate in that the overall emission reduction of approximately160 change require a number of years before rule impacts capture interactions million metric tons of CO2–eq. the emission reductions due to corn between the different fuels that can not emissions. A comparable value ethanol and soy biodiesel use will offset be broken out into per fuels impacts, assuming 30 years of GHG emissions the near term emission increase as while the threshold values represent changes but not applying a discount rate discussed in the threshold calculation impacts of specific fuels but do not to those emissions results in an section. account for all the interactions. estimated annualized average emission For example, when we consider the • Cellulosic biofuels contribute by far reduction of approximately 150 million combined impact of the different fuel the most to the total emission metrics tons of CO2–eq. emissions. volumes when analyzed separately, the reductions due to both their superior overall land use change is 9.0 million per gallon emission reductions and the G. Effects of GHG Emission Reductions acres. However, when we analyze the large volume of these fuels anticipated and Changes in Global Temperature volume changes all together, the overall to be used by 2022. and Sea Level The timing of the impact of land use land use change is approximately 10% 1. Introduction higher. change and ongoing renewable fuels The primary reason for the difference benefits were discussed in the previous The reductions in CO2 and other in acre change between the sum of the lifecycle fuel threshold section. The GHGs associated with the proposal will individual fuel scenarios and the issue is slightly different for this affect climate change projections. combined fuel scenarios is that when analysis since we are considering Because GHGs mix well in the looking at individual fuels there is some absolute tons of emissions and not atmosphere and have long atmospheric interaction between different crops (e.g., determining a threshold comparison to lifetimes, changes in GHG emissions corn replacing soybeans), but with petroleum fuels. However the results will affect future climate for decades to combined volume scenario when all can be presented in a similar manner to centuries. One common indicator of mandates need to be met there is less our individual fuels analysis in that we climate change is global mean surface opportunity for crop replacement (e.g., can determine net benefits over time temperature and sea level rise. This both corn and soybean acres needed) with different discount rates and over a section estimates the response in global and therefore more land is required. different time frame for consideration. mean surface temperature projections to Important findings of our analysis As discussed in previous sections on the estimated net global GHG emissions include: lifecycle GHG thresholds there is an reductions associated with the proposed • As with the threshold lifecycle initial one time release from land rulemaking (See Section VI.F for the calculations, assumptions about timing conversion and smaller ongoing releases estimated net reductions in global to consider impacts over and discount but there are also ongoing benefits of emissions over time by GHG).

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2. Estimated Projected Reductions in the proposed rule, a simple climate Table VI.G.2 provides our estimated Global Mean Surface Temperatures model such as MAGICC is reasonable reductions in projected global mean EPA estimated changes in projected for estimating the climate response. surface temperatures and sea level global mean surface temperatures to EPA applied the estimated annual associated with the proposed increase in 2100 using the MiniCAM (Mini Climate GHG emissions changes for the proposal renewable fuels in 2022. To capture Assessment Model) integrated to the MiniCAM U.S. Climate Change some of the uncertainty in the climate assessment model 320 coupled with the Science Program (CCSP) Synthesis and system, we estimated the changes in MAGICC (Model for the Assessment of Assessment Product baseline projected temperatures and sea level 322 Greenhouse-gas Induced Climate emissions. Specifically, the CO2, across the most current 321 Change) simple climate model. N2O, and CH4 annual emission changes Intergovernmental Panel on Climate MiniCAM was used to create the from 2022–2121 from Section VI.F were Change (IPCC) range of climate globally and temporally consistent set of applied as net reductions to the sensitivities, 1.5 °C to 6.0 °C.323 To climate relevant variables required for MiniCAM CCSP global baseline net illustrate the time profile of the running MAGICC. MAGICC was then emissions for each GHG. Post-2121, we estimated reductions in projected global used to estimate the change in the global assumed no change in emissions from mean surface temperatures and sea mean surface temperature over time. the baseline. This assumption is more level, we have also provided Figures Given the magnitude of the estimated conservative than allowing the VI.G.2–1 and VI.G.2–2. emissions reductions associated with emissions reductions to continue.

TABLE VI.G.2–1—ESTIMATED REDUCTIONS IN PROJECTED GLOBAL MEAN SURFACE TEMPERATURE AND GLOBAL MEAN SEA LEVEL FROM BASELINE IN 2030, 2050, 2100, AND 2200 FOR THE PROPOSED STANDARD IN 2022

Climate sensitivity 1.5 2 3 4.5 6

Change in global mean surface temperatures (degrees Celsius)

2030 ...... 0.000 0.000 ¥0.001 ¥0.001 ¥0.001 2050 ...... ¥0.001 ¥0.002 ¥0.002 ¥0.002 ¥0.003 2100 ...... ¥0.003 ¥0.004 ¥0.005 ¥0.006 ¥0.007 2200 ...... ¥0.003 ¥0.004 ¥0.006 ¥0.008 ¥0.009

Change in global mean sea level rise (centimeters)

2030 ...... ¥0.002 ¥0.002 ¥0.003 ¥0.003 ¥0.003 2050 ...... ¥0.012 ¥0.014 ¥0.017 ¥0.020 ¥0.022 2100 ...... ¥0.045 ¥0.052 ¥0.063 ¥0.074 ¥0.082 2200 ...... ¥0.077 ¥0.091 ¥0.114 ¥0.143 ¥0.172

The results in Table VI.G.2–1 and estimate’’ temperature increases by 2100 decrease projected annual temperature Figures VI.G.2–1 and VI.G.2–2 show of 1.8 °C to 4.0 °C.324 Although IPCC and sea level for all climate sensitivities. small, but detectable, reductions in the does not issue ‘‘best estimate’’ sea level This means that the distribution of global mean surface temperature and sea rise projections, the model-based range potential temperatures in any particular level rise projections across all climate across SRES scenarios is 18 to 59 cm by year is shifting down. However, the shift sensitivities. Overall, the reductions are 2099.325 Both figures illustrate that the is not uniform. The magnitude of the small relative to the IPCC’s ‘‘best overall emissions reductions can decrease is larger for higher climate

320 MiniCAM is a long-term, global integrated Research. Department of Energy, Office of 322 Clarke et al., 2007. assessment model of energy, economy, agriculture Biological & Environmental Research, Washington, 323 In IPCC reports, equilibrium climate and land use, that considers the sources of DC., USA, 154 pp. sensitivity refers to the equilibrium change in the emissions of a suite of greenhouse gases (GHG’s), 321 MAGICC consists of a suite of coupled gas- annual mean global surface temperature following emitted in 14 globally disaggregated global regions cycle, climate and ice-melt models integrated into a doubling of the atmospheric equivalent carbon (i.e., U.S., Western Europe, China), the fate of a single framework. The framework allows the user dioxide concentration. The IPCC states that climate emissions to the atmosphere, and the consequences to determine changes in GHG concentrations, sensitivity is ‘‘likely’’ to be in the range of 2 °C to of changing concentrations of greenhouse related global-mean surface air temperature and sea-level 4.5 °C and described 3 °C as a ‘‘best estimate.’’ The gases for climate change. MiniCAM begins with a resulting from anthropogenic emissions of carbon representation of demographic and economic dioxide (CO2), methane (CH4), nitrous oxide (N2O), IPCC goes on to note that climate sensitivity is ‘‘very unlikely’’ to be less than 1.5 °C and ‘‘values developments in each region and combines these reactive gases (e.g., CO, NOX, VOCs), the with assumptions about technology development to halocarbons (e.g. HCFCs, HFCs, PFCs) and sulfur substantially higher than 4.5 °C cannot be describe an internally consistent representation of dioxide (SO2). MAGICC emulates the global-mean excluded.’’ IPCC WGI, 2007, Climate Change energy, agriculture, land-use, and economic temperature responses of more sophisticated 2007—The Physical Science Basis, Contribution of developments that in turn shape global emissions. coupled Atmosphere/Ocean General Circulation Working Group I to the Fourth Assessment Report Brenkert A, S. Smith, S. Kim, and H. Pitcher, 2003: Models (AOGCMs) with high accuracy. Wigley, of the IPCC, http://www.ipcc.ch/. Model Documentation for the MiniCAM. PNNL– T.M.L. and Raper, S.C.B. 1992. Implications for 324 IPCC WGI, 2007. The baseline increases by 14337, Pacific Northwest National Laboratory, Climate and Sea-Level of Revised IPCC Emissions 2100 from our MiniCAM–MAGICC runs are 2 °C to Richland, Washington. For a recent report and Scenarios Nature 357, 293–300. Raper, S.C.B., 5 °C for global mean surface temperature and 35 to detailed description and discussion of MiniCAM, Wigley T.M.L. and Warrick R.A. 1996. in Sea-Level 74 centimeters for global mean sea level. see Clarke, L., J. Edmonds, H. Jacoby, H. Pitcher, J. Rise and Coastal Subsidence: Causes, Consequences Reilly, R. Richels, 2007. Scenarios of Greenhouse and Strategies J.D. Milliman, B.U. Haq, Eds., Kluwer 325 ‘‘Because understanding of some important Gas Emissions and Atmospheric Concentrations. Academic Publishers, Dordrecht, The Netherlands, effects driving sea level rise is too limited, this Sub-report 2.1A of Synthesis and Assessment pp. 11–45. Wigley, T.M.L. and Raper, S.C.B. 2002. report does not assess the likelihood, nor provide Product 2.1 by the U.S. Climate Change Science Reasons for larger warming projections in the IPCC a best estimate or an upper bound for sea level Program and the Subcommittee on Global Change Third Assessment Report J. Climate 15, 2945–2952. rise.’’ IPCC Synthesis Report, p. 45

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sensitivities. Thus, the probability of a 185% by 2200. The same pattern increase and sea level rise are reduced higher temperature or sea level in any appears in the reductions in the sea and the probabilities of the largest year is lowered more than the level rise projections.326 Also temperature increases and sea level rise probability of a lower temperature or sea noteworthy in Figures VI.G.2–1 and are reduced even more. For the Final level. For instance, in 2100, the VI.G.2–2 is that the size of the decreases Rulemaking, we hope to more explicitly reduction in projected temperature for grows over time due to the cumulative estimate the shapes of the distributions climate sensitivities of 3 and 6 is effect of a lower stock of GHGs in the and the estimated shifts in the shapes in 327 approximately 65% and 140% greater atmosphere (i.e., concentrations). response to the Rulemakings. than the reduction for a climate The bottom line is that the risk of BILLING CODE 6560–50–P sensitivity of 1.5. This difference grows climate change is being lowered, as the over time, to approximately 80% and probabilities of any level of temperature

326 In 2100, the reduction in projected sea level 327 For global average temperature after 2100, the climate system from the earlier emissions rise for climate sensitivities of 3 and 6 is growth in the size of the decrease noticeable slows. reductions. However, unlike temperature, after approximately 40% and 80% greater than the This is because the emissions changes associated 2100, the size of the decrease in sea level rise reduction for a climate sensitivity of 1.5. This with the policy were only estimated for 100 years. increases as the projected reduction in warming has Note that even with emissions reductions stopping difference grows over time, to approximately 50% a continued effect on ice melt and ocean thermal after 100 years, there continues to be a decrease in and 120% by 2200. projected temperatures due to reduced inertia in the expansion.

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BILLING CODE 6560–50–C fuels are displaced by biofuels. Analysis of criteria and toxic emission VII. How Would the Proposal Impact Emission impacts of tailpipe and impacts was performed for calendar Criteria and Toxic Pollutant Emissions evaporative emissions for on and off year 2022, since this year reflects the and Their Associated Effects? road sources have been estimated by full implementation of today’s proposal. incorporating ‘‘per vehicle’’ fuel effects Our 2022 projections account for A. Overview of Impacts from recent research into mobile source projected growth in vehicle travel and Today’s proposal would influence the emission inventory estimation methods. the effects of applicable emission and fuel economy standards, including Tier emissions of ‘‘criteria’’ pollutants (those For today’s proposal we are 2 and Mobile Source Air Toxics (MSAT) pollutants for which a National Ambient presenting two sets of emission impacts Air Quality Standard has been rules for cars and light trucks and meant to present a range of the possible established), criteria pollutant recently finalized controls on spark- effects of ethanol blends on light-duty precursors,328 and air toxics, which may ignited off-road engines. The impacts vehicle emissions. This approach is affect overall air quality and health. were analyzed relative to three different carried forward from analysis Emissions would be affected by the reference case ethanol volumes, ranging supporting the first RFS rule, which processes required to produce and from 3.64 to 13.2 billion gallons per presented ‘‘primary’’ and ‘‘sensitivity’’ distribute large volumes of biofuels year, in order to understand the impacts fuel effects cases differentiated by E10 proposed in today’s action and the of today’s proposal in different contexts. effects on cars and trucks. For this direct effects of these fuels on vehicle To assess the total impact of the RFS analysis we also analyze two fuel effects and equipment emissions. As detailed program, emissions were analyzed scenarios, now termed ‘‘less sensitive’’ in Chapter 3 of the Draft Regulatory relative to the RFS1 rule base case of and ‘‘more sensitive,’’ referring to the Impact Analysis (DRIA), we have 3.64 billion gallons in 2004. To assess sensitivity of car and truck exhaust estimated emissions impacts of the impact of today’s proposal relative emissions to both E10 and E85 blends. production and distribution-related to the current mandated volumes, we As detailed in Section VII.C, the ‘‘less emissions using the life cycle analysis analyzed impacts relative to RFS1 sensitive’’ case does not apply any E10 methodology described in Section VI mandate of 7.5 billion gallons of effects to NOx or HC emissions for later with emission factors for criteria and renewable fuel use by 2012, which was model year vehicles, or E85 effects for toxic emissions for each stage of the life estimated to include 6.7 billion gallons any pollutant, while the ‘‘more cycle, including agriculture, feedstock of ethanol.329 In order to assess the sensitive’’ case assumes that later model transportation, and the production and impact of today’s proposal relative to year vehicles have lower fuel sensitivity distribution of biofuel; included in this the level of ethanol projected to already than earlier model vehicles. EPA and analysis are the impacts of reduced be in place by 2022, the AEO2007 other parties are in the midst of gasoline and diesel refining as these projection of 13.2 billion gallons of gathering additional data to help clarify

328 emissions impacts of ethanol on light- 329 NOX and VOC are precursors to the criteria For this analysis these RFS1 base and pollutant ozone; we group them with criteria duty vehicles, and should be able to mandated ethanol levels were assumed constant to pollutants in this chapter for ease of discussion. reflect the new data for the final rule. 2022.

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ethanol in 2022 was analyzed. For this from ethanol plants and evaporative the total U.S. inventory. Overall we analysis our modeling was based on the emissions from cars, and reflect offsets project the proposed program will result differences between the AEO2007 such as decreased emissions from in significant increases in ethanol and reference case and the control case; to gasoline refineries. The location and acetaldehyde emissions—increasing the generate impacts for the RFS1 base and composition of emissions from these total U.S. inventories of these pollutants mandated volumes we simply scaled the disparate sources may strongly by 30–40% in 2022 relative to the RFS1 modeled AEO2007-based impacts up influence the air quality and health mandate case. We project more modest according to the larger increases in impacts of today’s proposed action, and increases in NOx, HC, PM, SO2, renewable fuel volumes relative to the full-scale photochemical air quality formaldehyde, and acrolein relative to other reference cases. For the final rule modeling is necessary to accurately the RFS1 mandate case. We project a we plan to directly model the RFS1 assess this. These localized impacts will decrease in ammonia (NH3) emissions mandate reference case as well as the be assessed in the final rule as discussed due to reductions in livestock AEO2007 case. in Section VII.D. agricultural activity, CO (due to impacts For the proposal we have only Our projected emission impacts for of ethanol on exhaust emissions from estimated the change in national the ‘‘less sensitive’’ and ‘‘more vehicles and nonroad equipment), and emission totals that would result from sensitive’’ cases are shown in Table benzene (due to displacement of today’s proposal. These totals may not VII.A–1 and VII.A–2 for 2022. Shown gasoline with ethanol in the fuel pool). be a good indication of local or regional relative to each reference case are the As shown, the direction of changes for air quality and health impacts. These expected emission changes for the U.S. 1,3-butadiene and naphthalene depends results are aggregated across highly in that year, and the percent on whether it is the ‘‘less sensitive’’ or localized sources, such as emissions contribution of this impact relative to ‘‘more sensitive’’ case.

TABLE VII.A–1—RFS2 ‘‘LESS SENSITIVE’’ CASE EMISSION IMPACTS IN 2022 RELATIVE TO EACH REFERENCE CASE

RFS1 base RFS1 mandate AEO2007 Pollutant Percent of Percent of Percent of Annual short total U.S. Annual short total U.S. Annual short total U.S. tons inventory tons inventory tons inventory

NOx ...... 312,400 2.8 274,982 2.5 195,735 1.7 HC ...... 112,401 1.0 72,362 0.6 ¥8,193 ¥0.07 PM10 ...... 50,305 1.4 37,147 1.0 9,276 0.3 PM2.5 ...... 14,321 0.4 11,452 0.3 5,376 0.16 CO ...... ¥2,344,646 ¥4.4 ¥1,669,872 ¥3.1 ¥240,943 ¥0.4 Benzene ...... ¥2,791 ¥1.7 ¥2,507 ¥1.5 ¥1,894 ¥1.1 Ethanol ...... 210,680 36.5 169,929 29.4 83,761 14.5 1,3-Butadiene ...... 344 2.9 255 2.1 65 0.5 Acetaldehyde ...... 12,516 33.7 10,369 27.9 5,822 15.7 Formaldehyde ...... 1,647 2.3 1,348 1.9 714 1.0 Naphthalene ...... 5 0.03 3 0.02 ¥1 ¥0.01 Acrolein ...... 290 5.0 252 4.4 174 3.0 SO2 ...... 28,770 0.3 4,461 0.05 ¥47,030 ¥0.5 NH3 ...... ¥27,161 ¥0.6 ¥27,161 ¥0.6 ¥27,161 ¥0.6

TABLE VII.A–2—RFS2 ‘‘MORE SENSITIVE’’ CASE EMISSION IMPACTS IN 2022 RELATIVE TO EACH REFERENCE CASE

RFS1 base RFS1 Mandate AEO2007 Pollutant Percent of Percent of Percent of Annual short total U.S. Annual short total U.S. Annual short total U.S. tons inventory tons inventory tons inventory

NOx ...... 402,795 3.6 341,028 3.0 210,217 1.9 HC ...... 100,313 0.9 63,530 0.6 ¥15,948 ¥0.14 PM10 ...... 46,193 1.3 33,035 0.9 5,164 0.15 PM2.5 ...... 10,535 0.3 7,666 0.2 1,589 0.05 CO ...... ¥3,779,572 ¥7.0 ¥3,104,798 ¥5.8 ¥1,675,869 ¥3.1 Benzene ...... ¥5,962 ¥3.5 ¥5,494 ¥3.3 ¥4,489 ¥2.7 Ethanol ...... 228,563 39.6 187,926 32.5 105,264 18.2 1,3-Butadiene ...... ¥212 ¥1.8 ¥282 ¥2.4 ¥430 ¥3.6 Acetaldehyde ...... 16,375 44.0 14,278 38.4 9,839 26.5 Formaldehyde ...... 3,373 4.7 3,124 4.3 2,596 3.6 Naphthalene ...... ¥175 ¥1.2 ¥178 ¥1.3 ¥187 ¥1.3 Acrolein ...... 253 4.4 218 3.8 143 2.5 SO2 ...... 28,770 0.3 4,461 0.05 ¥47,030 ¥0.5 NH3 ...... ¥27,161 ¥0.6 ¥27,161 ¥0.6 ¥27,161 ¥0.6

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The breakdown of these results by the Other updates and enhancements to RFS1 rule itself was much simpler and fuel production/distribution (‘‘well-to- the GREET model assumptions include inconsistent with the new modeling, so pump’’ emissions) and vehicle and updated feedstock energy requirements it would be inappropriate to use those equipment (‘‘pump-to-wheel’’) and estimates of excess electricity estimates. Thus, we plan to conduct emissions is discussed in the following available for sale from new cellulosic additional agricultural modeling sections. ethanol plants, based on modeling by specifically for the RFS1 mandate case B. Fuel Production & Distribution the National Renewable Energy prior to finalizing this rule. Impacts of the Proposed Program Laboratory (NREL). EPA also updated The fuel production and distribution the fuel and feedstock transport Fuel production and distribution impacts of the proposed program on emission factors to account for recent VOC are mainly due to increases in emission impacts of the proposed EPA emission standards and modeling, emissions connected with biofuel program were estimated in conjunction such as the diesel truck standards production, countered by decreases in with the development of life cycle GHG published in 2001 and the locomotive emissions associated with gasoline emission impacts and the GHG emission and commercial marine standards production and distribution as ethanol inventories discussed in Section VI. finalized in 2008. Emission factors for displaces some of the gasoline. Increases These emissions are calculated new corn ethanol plants continue to use according to the breakdowns of the values developed for the RFS1 rule, in NOX, PM2.5, and SOX are driven by agriculture, feedstock transport, fuel which were based on data submitted by combustion emissions from the production, and fuel distribution; the states for dry mill plants. There are no substantial increase in corn and basic calculation is a function of fuel new standards planned at this time that cellulosic ethanol production. Ethanol volumes in the analysis year and the would offer any additional control of plants (corn and cellulosic) tend to have emission factors associated with each emissions from corn or cellulosic greater combustion emissions relative to process or subprocess. Additionally, the ethanol plants. In addition, GREET does petroleum refineries on a per-BTU of emission impact of displaced petroleum not include air toxics or ethanol. Thus fuel produced basis. Increases in SOX is estimated, using the same domestic/ emission factors for ethanol and the emissions are primarily due to corn import shares discussed in Section VI following air toxics were added: ethanol production. Ammonia above. benzene, 1,3-butadiene, formaldehyde, emissions are expected to decrease In general the basis for this life cycle acetaldehyde, acrolein and naphthalene. substantially due to lower livestock evaluation was the analysis conducted counts, which more than offsets Results of these calculations relative as part of the Renewable Fuel Standard increased ammonia from fertilizer use. (RFS1) rulemaking, but enhanced to each of the reference cases for 2022 significantly. While our approach for are shown in Table VII.B–1 for the Ethanol vapor and most air toxic the RFS1 was to rely heavily on the criteria pollutants, ammonia, ethanol emissions associated with fuel ‘‘Greenhouse Gases, Regulated and individual air toxic pollutants. It production and distribution are Emissions, and Energy Use in should be noted that the impacts projected to increase. Relative to the Transportation’’ (GREET) model, relative to the two RFS1 reference cases U.S. total reference case emissions with developed by the Department of (3.64 and 6.7 billion gallons) rely on RFS1 mandate ethanol volumes, Energy’s Argonne National Laboratory applying ethanol volume proportions to increases of 10–20% for acetaldehyde (ANL), we are now able to take the modeling results of the AEO2007 and ethanol vapor are especially advantage of additional information and reference case (13.2 billion gallons). Due significant because they are driven models to significantly strengthen and to the complex interactions involved in directly by the increased ethanol expand our analysis for this proposed projections in the agricultural modeling, production and distribution. rule. In particular, the modeling of the we did not attempt to adjust the Formaldehyde and acrolein increases agriculture sector was greatly expanded agricultural inputs of the AEO reference are smaller, on the order of 1–5%. beyond the RFS1 analysis, employing case for the other two reference cases. Benzene emissions are estimated to economic and agriculture models to So the fertilizer and pesticide quantities, decrease by 1% due to decreased consider factors such as land-use livestock counts, and total agricultural gasoline production. There are also very impact, agricultural burning, fertilizer, acres were the same for all three small increases in 1,3-butadiene and pesticide use, livestock, crop allocation, reference cases. The agricultural decreases in naphthalene relative to the and crop exports. modeling that had been done for the U.S. total emissions.

TABLE VII.B–1—FUEL PRODUCTION AND DISTRIBUTION IMPACTS IN 2022 RELATIVE TO EACH REFERENCE CASE

RFS1 base RFS1 mandate AEO2007 Pollutant Percent of Percent of Percent of Annual total U.S. Annual total U.S. Annual total U.S. short tons inventory short tons inventory short tons inventory

NOX ...... 241,041 2.1 222,732 2.0 183,951 1 .6 HC ...... 77,295 0 .7 46,702 0.4 ¥17,501 ¥0.2 PM10 ...... 50,482 1.4 37,324 1 .1 9,453 0.3 PM2.5 ...... 14,419 0.4 11,550 0.3 5,473 0.16 CO ...... 186,559 0 .3 179,855 0.3 165,656 ¥0 .5 Benzene ...... ¥1,670 ¥1 .0 ¥1,686 ¥1.0 ¥1,719 ¥1.0 Ethanol ...... 115,187 19.9 100,134 17.3 68,379 11 .8 1,3-Butadiene ...... 16 0.13 16 0.14 17 0 .14 Acetaldehyde ...... 7,460 20 .1 6,680 18 .0 5,029 13 .5 Formaldehyde ...... 877 1 .2 800 1 .1 638 0.9 Naphthalene ...... ¥6 ¥0.04 ¥5 ¥0.04 ¥4 ¥0.03 Acrolein ...... 278 4.8 244 4.2 174 3.0

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TABLE VII.B–1—FUEL PRODUCTION AND DISTRIBUTION IMPACTS IN 2022 RELATIVE TO EACH REFERENCE CASE— Continued

RFS1 base RFS1 mandate AEO2007 Pollutant Percent of Percent of Percent of Annual total U.S. Annual total U.S. Annual total U.S. short tons inventory short tons inventory short tons inventory

SO2 ...... 28,770 0 .3 4,461 0 .05 ¥47,030 ¥0.5 NH3 ...... ¥27,161 ¥0.6 ¥27,161 ¥0 .6 ¥27,161 ¥0 .6

C. Vehicle and Equipment Emission emissions for Tier 1 and later vehicles comparatively small. While the two fuel Impacts of Fuel Program using E10 relative to E0. The E10 effects effect scenarios only differ with respect The effects of the fuel program on are consistent with the ‘‘sensitivity’’ to exhaust emissions from cars and case from the RFS1 rule. For RFS2 this vehicle and equipment emissions are a trucks, the totals shown below reflect case also includes E85 effects reflecting direct function of the effects of these the net impacts from all mobile sources, significant increases in acetaldehyde, fuels on exhaust and evaporative including car and truck evaporative formaldehyde and ethanol emissions, emissions from vehicles and off-road emissions, off road emissions, and and reductions in PM and CO. portable fuel containers, using the same equipment, and evaporation of fuel from EPA and other parties are in the midst portable containers. To assess these emissions impacts for these sources in of gathering additional data on the both cases. Additional breakdowns by impacts we conducted separate analyses emission impacts of ethanol fuels on to quantify the emission impacts of mobile source category can be found in later model vehicles, which we plan to Chapter 3 of the DRIA. additional E10 due to today’s proposal consider in updating our final rule on gasoline vehicles, nonroad spark- analysis. As shown in Tables VII.C–1 and ignited engines and portable fuel We have also estimated the E10 VII.C–2, the vehicle and equipment containers; E85 on cars and light trucks; effects on permeation emissions from ethanol impacts vary widely between biodiesel on diesel vehicles; and light-duty vehicles based on testing the two fuel effects cases. Under the increased refueling events due to lower previously completed by the ‘‘less sensitive’’ case, CO and benzene energy density of biofuels.330 Coordinating Research Council (CRC). are projected to decrease in 2022 under For the proposal we have analyzed Nonroad spark ignition (SI) emission today’s proposal, while NOX, HC and inventory impacts for two fuel effects impacts of E10 were based on EPA’s the other air toxics (except acrolein) are scenarios to attempt to bound the NONROAD model and show trends projected to increase due to the impacts potential impacts on ethanol on similar to light duty vehicles. Biodiesel of E10. For the ‘‘more sensitive’’ case, gasoline-fueled vehicle exhaust effects for this analysis were based on a NOX impacts are higher and HC impacts emissions: new analysis of recent biodiesel testing, lower due to the E10 effects on cars and (1) ‘‘Less Sensitive’’: No exhaust VOC detailed in the DRIA, showing a 2% trucks, and the inclusion of E85 effects or NOX emission impact on Tier 1 and increase in NOX with a 20% biodiesel leads to larger reductions in CO, later vehicles due to E10, and no impact blend, a 16% decrease in PM, and a benzene and 1,3-butadiene but more due to E85. This was termed the 14% decrease in HC. These results significant increases in ethanol, ‘‘primary’’ case in the RFS1 rule. essentially confirm the results of an acetaldehyde and formaldehyde. The (2) ‘‘More Sensitive’’: VOC and NOX earlier EPA analysis. impacts on acrolein emissions in both emission impacts due to E10 based on Summarized vehicle and equipment cases, and on naphthalene in the ‘‘more limited test data from newer technology emission impacts in 2022 are shown in sensitive’’ case depend on which vehicles that were analyzed as part of Table VII.C–1 and VII.C–2 for the ‘‘less reference case is considered, with small the RFS1 rule. This data showed a 7% sensitive’’ and ‘‘more sensitive’’ cases. increases relative to the RFS1 base and reduction in exhaust VOC emissions Table VII.C–3 shows the biodiesel mandate cases and a decrease relative to and an 8% increase in per-vehicle NOX contribution to these impacts, which are the AEO reference case.

TABLE VII.C–1—2022 VEHICLE AND EQUIPMENT ‘‘LESS SENSITIVE’’ CASE EMISSION IMPACTS BY FUEL TYPE RELATIVE TO EACH REFERENCE CASE

RFS1 base RFS1 mandate AEO2007 Pollutant Percent of Percent of Percent of Annual short total U.S. Annual short total U.S. Annual short total U.S. tons inventory tons inventory tons inventory

NOX ...... 71,359 0.6 52,250 0.5 11,784 0.11 HC ...... 35,106 0.3 25,659 0.2 9,308 0.08 PM10 ...... ¥177 0.00 ¥177 0.00 ¥177 0.00 PM2.5 ...... ¥98 0.00 ¥98 0.00 ¥98 0.00 CO ...... ¥2,531,205 ¥4.7 ¥1,849,728 ¥3.4 ¥406,599 ¥0.8 Benzene ...... ¥1,122 ¥0.7 ¥821 ¥0.5 ¥174 ¥0.1 Ethanol ...... 95,493 16.5 69,795 12.1 15,383 2.7 1,3-Butadiene ...... 328 2.7 238 2.0 48 0.4 Acetaldehyde ...... 5,057 13.6 3,689 9.9 793 2.1

330 The impact of renewable diesel was not impact on criteria and toxic emissions due to the emission effects relative to conventional diesel are estimated for the proposal; we expect little overall relatively small volume change, and because presumed to be negligible.

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TABLE VII.C–1—2022 VEHICLE AND EQUIPMENT ‘‘LESS SENSITIVE’’ CASE EMISSION IMPACTS BY FUEL TYPE RELATIVE TO EACH REFERENCE CASE—Continued

RFS1 base RFS1 mandate AEO2007 Pollutant Percent of Percent of Percent of Annual short total U.S. Annual short total U.S. Annual short total U.S. tons inventory tons inventory tons inventory

Formaldehyde ...... 771 1.1 548 0.8 76 0.11 Naphthalene ...... 10 0.07 8 0.05 3 0.02 Acrolein ...... 12 0.2 8 0.14 ¥0.4 ¥0.01 SO2 ...... 0 0.0 0 0.0 0 0.0 NH3 ...... 0 0.0 0 0.0 0 0.0

TABLE VII.C–2—2022 VEHICLE AND EQUIPMENT ‘‘MORE SENSITIVE’’ CASE EMISSION IMPACTS BY FUEL TYPE RELATIVE TO EACH REFERENCE CASE

RFS1 base RFS1 mandate AEO2007 Pollutant Percent of Percent of Percent of Annual short total U.S. Annual short total U.S. Annual short total U.S. tons inventory tons inventory tons inventory

NOX ...... 161,754 1.4 118,295 1.1 26,266 0.2 HC ...... 23,018 0.2 16,828 0.15 1,553 0.01 PM10 ...... ¥4,289 ¥0.12 ¥4,289 ¥0.12 ¥4,289 ¥0.12 PM2.5 ...... ¥3,884 ¥0.12 ¥3,884 ¥0.12 ¥3,884 ¥0.12 CO ...... ¥3,966,131 ¥7.4 ¥3,284,654 ¥6.1 ¥1,841,524 ¥3.4 Benzene ...... ¥4,293 ¥2.6 ¥3,808 ¥2.3 ¥2,770 ¥1.6 Ethanol ...... 113,376 19.6 87,792 15.2 36,886 6.4 1,3-Butadiene ...... ¥228 ¥1.9 ¥298 ¥2.5 ¥446 ¥3.7 Acetaldehyde ...... 8,915 24.0 7,598 20.4 4,809 12.9 Formaldehyde ...... 2,497 3.5 2,324 3.2 1,958 2.7 Naphthalene ...... ¥170 ¥1.2 ¥172 ¥1.2 ¥182 ¥1.3 Acrolein ...... ¥25 ¥0.4 ¥27 ¥0.5 ¥31 ¥0.5 SO2 ...... 0 0.0 0 0.0 0 0.0 NH3 ...... 0 0.0 0 0.0 0 0.0

TABLE VII.C–3—2022 VEHICLE AND impact emissions of criteria and air as of December 16, 2008, approximately EQUIPMENT BIODIESEL EMISSION IM- toxic pollutants. We first present current 88 million people live in the 39 areas PACTS RELATIVE TO ALL REFERENCE levels of PM2.5, ozone and air toxics and that are designated as nonattainment for CASES then discuss the national-scale air the 1997 PM2.5 National Ambient Air quality modeling analysis that will be [these impacts are included in Tables VII.C–1 Quality Standard (NAAQS) and and VII.C–2] performed for the final rule. approximately 132 million people live 1. Current Levels of PM2.5, Ozone and in the 57 areas that are designated as Biodiesel Air Toxics nonattainment for the 1997 8-hour impacts ozone NAAQS. The 1997 PM2.5 NAAQS Pollutant This proposal may have impacts on Annual 331 was recently revised and the 2006 24- levels of PM2.5, ozone and air toxics. short tons hour PM2.5 NAAQS became effective on Nationally, levels of PM2.5, ozone and 332 333 December 18, 2006. Area designations NOX ...... 418 air toxics are declining. However, for the 2006 24-hour PM2.5 NAAQS are HC ...... ¥753 expected to be promulgated in 2009 and PM10 ...... ¥177 331 The proposed standards may also impact PM2.5 ...... ¥98 levels of ambient CO, a criteria pollutant (see Table become effective 90 days after CO ...... ¥1,275 VII.A–1 above for co-pollutant emission impacts). publication in the Federal Register. In Benzene ...... ¥9.4 For this analysis, however, we focus on the addition, the majority of Americans Ethanol ...... 0.0 proposal’s impacts on ambient PM2.5 and ozone continue to be exposed to ambient ¥ formation, since CO is a relatively minor problem 1,3-Butadiene ...... 5.1 concentrations of air toxics at levels Acetaldehyde ...... ¥21 in comparison to some of the other criteria Formaldehyde ...... ¥57 pollutants. For example, as of August 15, 2008 there which have the potential to cause are approximately 675,000 people living in 3 areas Naphthalene ...... ¥0.12 adverse health effects.334 The levels of ¥ (which include 4 counties) that are designated as Acrolein ...... 2.7 nonattainment for CO. air toxics to which people are exposed SO2 ...... 0.0 332 U.S. EPA (2003) National Air Quality and vary depending on where people live NH3 ...... 0.0 Trends Report, 2003 Special Studies Edition. Office and work and the kinds of activities in of Air Quality Planning and Standards, Research which they engage, as discussed in D. Air Quality Impacts Triangle Park, NC. Publication No. EPA 454/R–03– 005. http://www.epa.gov/air/airtrends/aqtrnd03/ Although the purpose of this proposal http://www.epa.gov/air/airtrends/aqtrnd03/. is to implement the renewable fuel 333 U.S. EPA (2007) Final Regulatory Impact Analysis: Control of Hazardous Air Pollutants from requirements established by the Energy 334 Mobile Sources, Office of Transportation and Air U.S. Environmental Protection Agency (2007). Independence and Security Act (EISA) Quality, Ann Arbor, MI, Publication No. EPA420– Control of Hazardous Air Pollutants from Mobile of 2007, this proposed rule would also R–07–002. http://www.epa.gov/otaq/toxics.htm Sources; Final Rule. 72 FR 8434, February 26, 2007.

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detail in U.S. EPA’s recent Mobile change emissions of ozone precursor report for version 4.7 (described below) Source Air Toxics Rule.335 species and thus could affect ozone is currently being finalized.340 EPA has already adopted many concentrations. Section 3.3 of the DRIA CMAQ includes many science emission control programs that are for this proposed rule provides more modules that simulate the emission, expected to reduce ambient PM2.5, detail on the atmospheric chemistry and production, decay, deposition and ozone and air toxics levels. These potential changes in ozone formation transport of organic and inorganic gas- control programs include the Small SI due to increased usage of ethanol fuels. phase and particle-phase pollutants in and Marine SI Engine Rule (73 FR Section VII.A above presents the atmosphere. We intend to use the 59034, October 8, 2008), Locomotive projections of the changes in air toxics most recent CMAQ version (version 4.7) which was officially released by EPA’s and Commercial Marine Rule (73 FR emissions due to the proposed Office of Research and Development 25098, May 6, 2008), Mobile Source Air standards. The substantial increase in (ORD) in December 2008, and reflects Toxics Rule (72 FR 8428, February 26, emissions of ethanol and acetaldehyde updates to earlier versions in a number 2007), Clean Air Interstate Rule (70 FR suggests a likely increase in ambient of areas to improve the underlying 25162, May 12, 2005), Clean Air levels of acetaldehyde from both direct science. These include (1) enhanced Nonroad Diesel Rule (69 FR 38957, June emissions and secondary formation as secondary organic aerosol (SOA) 29, 2004), Heavy Duty Engine and ethanol breaks down in the atmosphere. mechanism to include chemistry of Vehicle Standards and Highway Diesel Formaldehyde and acrolein emissions isoprene, sesquiterpene, and aged in- Fuel Sulfur Control Requirements (66 would also increase somewhat, while cloud biogenic SOA in addition to FR 5002, Jan. 18, 2001) and the Tier 2 emissions of benzene and 1,3-butadiene Motor Vehicle Emissions Standards and terpene; (2) improved vertical would decrease as a result of the convective mixing; (3) improved Gasoline Sulfur Control Requirements proposed standards. Full-scale (65 FR 6698, Feb. 10, 2000). As a result heterogeneous reaction involving nitrate photochemical modeling is necessary to formation; and (4) an updated gas-phase of these programs, the ambient provide the needed spatial and temporal concentration of air toxics, PM2.5 and chemistry mechanism, Carbon Bond 05 detail to more completely and (CB05), with extensions to model ozone in the future is expected to accurately estimate the changes in decrease. explicit concentrations of air toxic ambient levels of these pollutants. species as well as chlorine and mercury. 2. Impacts of Proposed Standards on For the final rule, EPA intends to use This mechanism, CB05-toxics, also Future Ambient Concentrations of a 2005-based Community Multi-scale computes concentrations of species that PM2.5, Ozone and Air Toxics Air Quality (CMAQ) modeling platform are involved in aqueous chemistry and The atmospheric chemistry related to as the tool for the air quality modeling. that are precursors to aerosols. Section ambient concentrations of PM2.5, ozone The CMAQ modeling system is a 3.3.3 of the DRIA for this proposal and air toxics is very complex, making comprehensive three-dimensional grid- discusses SOA formation and details predictions based solely on emissions based Eulerian air quality model about the improvements made to the changes extremely difficult. For the designed to estimate the formation and SOA mechanism within this recent final rule, a national-scale air quality fate of oxidant precursors, primary and release of CMAQ. secondary PM concentrations and modeling analysis will be performed to E. Health Effects of Criteria and Air deposition, and air toxics, over regional analyze the impacts of the proposed Toxic Pollutants standards on ambient concentrations of and urban spatial scales (e.g., over the 336 337 338 PM2.5, ozone, and selected air toxics contiguous U.S.). The CMAQ 1. Particulate Matter (i.e., benzene, formaldehyde, model is a well-known and well- a. Background acetaldehyde, ethanol, acrolein and 1,3- established tool and is commonly used by EPA for regulatory analyses, for Particulate matter (PM) represents a butadiene). The length of time needed to broad class of chemically and physically prepare necessary inventory and model instance the recent ozone NAAQS proposal, and by States in developing diverse substances. It can be principally updates has precluded us from characterized as discrete particles that performing air quality modeling for this attainment demonstrations for their State Implementation Plans.339 The exist in the condensed (liquid or solid) proposal. phase spanning several orders of The air quality modeling we plan to CMAQ model (version 4.6) was peer- magnitude in size. PM is further perform (described more specifically reviewed in February of 2007 for EPA as reported in ‘‘Third Peer Review of described by breaking it down into size below), will allow us to account for fractions. PM CMAQ Model,’’ and the peer review 10 refers to particles changes in the spatial distribution of PM generally less than or equal to 10 and PM precursors, and changes in VOC micrometers (μm) in aerodynamic speciation which could impact 336 U.S. Environmental Protection Agency, Byun, D.W., and Ching, J.K.S., Eds, 1999. Science diameter. PM2.5 refers to fine particles, secondary PM formation. For example, generally less than or equal to 2.5 μm in reductions in aromatics in gasoline may algorithms of EPA Models-3 Community Multiscale Air Quality (CMAQ modeling system, EPA/600/R– aerodynamic diameter. Inhalable (or reduce ambient PM concentrations by 99/030, Office of Research and Development). ‘‘thoracic’’) coarse particles refer to reducing secondary PM formation. 337 Byun, D.W., and Schere, K.L., 2006. Review of those particles generally greater than 2.5 Section 3.3 of the Draft Regulatory the Governing Equations, Computational μm but less than or equal to 10 μm in Impact Analysis (DRIA) for this Algorithms, and Other Components of the Models- 3 Community Multiscale Air Quality (CMAQ) aerodynamic diameter. Ultrafine PM proposal contains more information on Modeling System, J. Applied Mechanics Reviews, refers to particles less than 100 aromatics and secondary aerosol 59 (2), 51–77. nanometers (0.1 μm) in aerodynamic formation. 338 Dennis, R.L., Byun, D.W., Novak, J.H., diameter. Larger particles tend to be Galluppi, K.J., Coats, C.J., and Vouk, M.A., 1996. In addition, air quality modeling will removed by the respiratory clearance account for changes in fuel type and The next generation of integrated air quality modeling: EPA’s Models-3, Atmospheric mechanisms (e.g., coughing), whereas spatial distribution of fuels that would Environment, 30, 1925–1938. 339 U.S. EPA (2007). Regulatory Impact Analysis 340 Aiyyer, A., Cohan, D., Russell, A., Stockwell, 335 U.S. Environmental Protection Agency (2007). of the Proposed Revisions to the National Ambient W., Tanrikulu, S., Vizuete, W., Wilczak, J., 2007. Control of Hazardous Air Pollutants from Mobile Air Quality Standards for Ground-Level Ozone. Final Report: Third Peer Review of the CMAQ Sources; Final Rule. 72 FR 8434, February 26, 2007. EPA document number 442/R–07–008, July 2007. Model. p. 23.

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smaller particles are deposited deeper in 2. Ozone may also become more rapid and the lungs. a. Background shallow than normal, thereby limiting a Fine particles are produced primarily person’s activity. Ozone can also by combustion processes and by Ground-level ozone pollution is aggravate asthma, leading to more transformations of gaseous emissions typically formed by the reaction of asthma attacks that require medical volatile organic compounds (VOC) and attention and/or the use of additional (e.g., SOX, NOX and VOC) in the atmosphere. The chemical and physical nitrogen oxides (NOX) in the lower medication. In addition, there is atmosphere in the presence of heat and suggestive evidence of a contribution of properties of PM2.5 may vary greatly with time, region, meteorology and sunlight. These pollutants, often ozone to cardiovascular-related referred to as ozone precursors, are morbidity and highly suggestive source category. Thus, PM2.5 may include a complex mixture of different emitted by many types of pollution evidence that short-term ozone exposure pollutants including sulfates, nitrates, sources, such as highway and nonroad directly or indirectly contributes to non- organic compounds, elemental carbon motor vehicles and engines, power accidental and cardiopulmonary-related and metal compounds. These particles plants, chemical plants, refineries, mortality, but additional research is can remain in the atmosphere for days makers of consumer and commercial needed to clarify the underlying to weeks and travel hundreds to products, industrial facilities, and mechanisms causing these effects. In a thousands of kilometers. smaller area sources. recent report on the estimation of ozone- The science of ozone formation, related premature mortality published b. Health Effects of PM transport, and accumulation is by the National Research Council (NRC), complex.345 Ground-level ozone is a panel of experts and reviewers Scientific studies show ambient PM is produced and destroyed in a cyclical set associated with a series of adverse concluded that short-term exposure to of chemical reactions, many of which ambient ozone is likely to contribute to health effects. These health effects are are sensitive to temperature and discussed in detail in the 2004 EPA premature deaths and that ozone-related sunlight. When ambient temperatures mortality should be included in Particulate Matter Air Quality Criteria and sunlight levels remain high for Document (PM AQCD), and the 2005 estimates of the health benefits of several days and the air is relatively 348 PM Staff Paper.341 342 Further discussion reducing ozone exposure. Animal stagnant, ozone and its precursors can toxicological evidence indicates that of health effects associated with PM can build up and result in more ozone than also be found in the DRIA for this rule. with repeated exposure, ozone can typically occurs on a single high- inflame and damage the lining of the Health effects associated with short- temperature day. Ozone can be lungs, which may lead to permanent term exposures (hours to days) to transported hundreds of miles changes in lung tissue and irreversible ambient PM include premature downwind from precursor emissions, reductions in lung function. People who mortality, increased hospital resulting in elevated ozone levels even are more susceptible to effects admissions, heart and lung diseases, in areas with low local VOC or NOX associated with exposure to ozone can increased cough, adverse lower- emissions. include children, the elderly, and respiratory symptoms, decrements in b. Health Effects of Ozone individuals with respiratory disease lung function and changes in heart rate such as asthma. Those with greater rhythm and other cardiac effects. The health and welfare effects of exposures to ozone, for instance due to Studies examining populations exposed ozone are well documented and are time spent outdoors (e.g., children and to different levels of air pollution over assessed in EPA’s 2006 Ozone Air outdoor workers), are also of particular a number of years, including the Quality Criteria Document (ozone concern. Harvard Six Cities Study and the AQCD) and 2007 Staff Paper.346 347 The 2006 ozone AQCD also examined American Cancer Society Study, show Ozone can irritate the respiratory relevant new scientific information that associations between long-term system, causing coughing, throat has emerged in the past decade, exposure to ambient PM2.5 and both irritation, and/or uncomfortable including the impact of ozone exposure total and cardiovascular and respiratory sensation in the chest. Ozone can on such health effects as changes in mortality.343 In addition, a reanalysis of reduce lung function and make it more lung structure and biochemistry, the American Cancer Society Study difficult to breathe deeply; breathing inflammation of the lungs, exacerbation shows an association between fine and causation of asthma, respiratory particle and sulfate concentrations and 345 U.S. EPA Air Quality Criteria for Ozone and illness-related school absence, hospital lung cancer mortality.344 Related Photochemical Oxidants (Final). U.S. Environmental Protection Agency, Washington, admissions and premature mortality. D.C., EPA 600/R–05/004aF–cF, 2006. This Animal toxicological studies have 341 U.S. EPA (2004) Air Quality Criteria for document is available in Docket EPA–HQ–OAR– suggested potential interactions between Particulate Matter (Oct. 2004), Volume I Document 2005–0161. This document may be accessed ozone and PM, with increased responses No. EPA600/P–99/002aF and Volume II Document electronically at: http://www.epa.gov/ttn/naaqs/ No. EPA600/P–99/002bF. This document is standards/ozone/s_o3_cr_cd.html. observed to mixtures of the two available in Docket EPA–HQ–OAR–2005–0161. 346 U.S. EPA Air Quality Criteria for Ozone and pollutants compared to either ozone or 342 U.S. EPA (2005) Review of the National Related Photochemical Oxidants (Final). U.S. PM alone. The respiratory morbidity Ambient Air Quality Standard for Particulate Environmental Protection Agency, Washington, DC, observed in animal studies along with Matter: Policy Assessment of Scientific and EPA 600/R–05/004aF–cF, 2006. This document is the evidence from epidemiologic studies Technical Information, OAQPS Staff Paper. EPA– available in Docket EPA–HQ–OAR–2005–0161. 452/R–05–005. This document is available in This document may be accessed electronically at: supports a causal relationship between Docket EPA–HQ–OAR–2005–0161. http://www.epa.gov/ttn/naaqs/standards/ozone/ acute ambient ozone exposures and 343 Dockery, D.W.; Pope, C.A. III: Xu, X.; et al. s_o3_cr_cd.html. increased respiratory-related emergency 1993. An association between air pollution and 347 U.S. EPA (2007) Review of the National room visits and hospitalizations in the mortality in six U.S. cities. N Engl J Med 329:1753– Ambient Air Quality Standards for Ozone, Policy 1759. Assessment of Scientific and Technical warm season. In addition, there is 344 Pope, C.A., III; Burnett, R.T.; Thun, M.J.; Calle, Information. OAQPS Staff Paper.EPA–452/R–07– E.E.; Krewski, D.; Ito, K.; Thurston, G.D. (2002) 003. This document is available in Docket EPA– 348 National Research Council (NRC), 2008. Lung cancer, cardiopulmonary mortality, and long- HQ–OAR–2005–0161. This document is available Estimating Mortality Risk Reduction and Economic term exposure to fine particulate air pollution. J. electronically at: http:www.epa.gov/ttn/naaqs/ Benefits from Controlling Ozone Air Pollution. The Am. Med. Assoc. 287:1132–1141. standards/ozone/s_o3_cr_sp.html.. National Academies Press: Washington, DC.

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suggestive evidence of a contribution of emission inventories and air quality acrolein could not be determined ozone to cardiovascular-related (Chapter 3). because the available data were inadequate. No information was morbidity and non-accidental and a. Acetaldehyde cardiopulmonary mortality. available on the carcinogenic effects of Acetaldehyde is classified in EPA’s acrolein in humans and the animal data 3. Carbon Monoxide IRIS database as a probable human provided inadequate evidence of carcinogen, based on nasal tumors in carcinogenicity.360 The IARC Carbon monoxide (CO) forms as a rats, and is considered toxic by the result of incomplete fuel combustion. determined in 1995 that acrolein was inhalation, oral, and intravenous not classifiable as to its carcinogenicity CO enters the bloodstream through the routes.353 Acetaldehyde is reasonably in humans.361 lungs, forming carboxyhemoglobin and anticipated to be a human carcinogen by Acrolein is extremely acrid and reducing the delivery of oxygen to the the U.S. DHHS in the 11th Report on irritating to humans when inhaled, with body’s organs and tissues. The health Carcinogens and is classified as possibly acute exposure resulting in upper threat from CO is most serious for those carcinogenic to humans (Group 2B) by respiratory tract irritation, mucus who suffer from cardiovascular disease, the IARC.354 355 EPA is currently hypersecretion and congestion. Levels particularly those with angina or conducting a reassessment of cancer risk considerably lower than 1 ppm (2.3 mg/ peripheral vascular disease. Healthy from inhalation exposure to m3) elicit subjective complaints of eye individuals also are affected, but only at acetaldehyde. and nasal irritation and a decrease in higher CO levels. Exposure to elevated The primary noncancer effects of the respiratory rate.362 363 Lesions to the CO levels is associated with impairment exposure to acetaldehyde vapors lungs and upper respiratory tract of rats, of visual perception, work capacity, include irritation of the eyes, skin, and rabbits, and hamsters have been manual dexterity, learning ability and respiratory tract.356 In short-term (4 observed after subchronic exposure to performance of complex tasks. Carbon week) rat studies, degeneration of acrolein. Based on animal data, monoxide also contributes to ozone olfactory epithelium was observed at individuals with compromised nonattainment since carbon monoxide various concentration levels of respiratory function (e.g., emphysema, reacts photochemically in the acetaldehyde exposure.357 358 Data from asthma) are expected to be at increased atmosphere to form ozone.349 these studies were used by EPA to risk of developing adverse responses to Additional information on CO related develop an inhalation reference strong respiratory irritants such as health effects can be found in the concentration. Some asthmatics have acrolein. This was demonstrated in mice Carbon Monoxide Air Quality Criteria been shown to be a sensitive with allergic airway disease by Document (CO AQCD).350 subpopulation to decrements in comparison to non-diseased mice in a functional expiratory volume (FEV1 study of the acute respiratory irritant 4. Air Toxics test) and bronchoconstriction upon effects of acrolein.364 acetaldehyde inhalation.359 The agency The intense irritancy of this carbonyl The population experiences an is currently conducting a reassessment has been demonstrated during elevated risk of cancer and noncancer of the health hazards from inhalation controlled tests in human subjects, who health effects from exposure to the class exposure to acetaldehyde. suffer intolerable eye and nasal mucosal of pollutants known collectively as ‘‘air b. Acrolein sensory reactions within minutes of toxics.’’351 Fuel combustion contributes exposure.365 to ambient levels of air toxics that can EPA determined in 2003 that the include, but are not limited to, human carcinogenic potential of c. Benzene acetaldehyde, acrolein, benzene, 1,3- The EPA’s IRIS database lists benzene butadiene, formaldehyde, ethanol, 353 U.S. EPA. 1991. Integrated Risk Information as a known human carcinogen (causing naphthalene and peroxyacetyl nitrate System File of Acetaldehyde. Research and leukemia) by all routes of exposure, and Development, National Center for Environmental (PAN). Acrolein, benzene, 1,3- Assessment, Washington, DC. This material is concludes that exposure is associated butadiene, formaldehyde and available electronically at. with additional health effects, including naphthalene have significant 354 U.S. Department of Health and Human contributions from mobile sources and Services National Toxicology Program 11th Report 360 U.S. EPA. 2003. Integrated Risk Information on Carcinogens available at: ntp.niehs.nih.gov/ were identified as national or regional System File of Acrolein. Research and index.cfm?objectid=32BA9724-F1F6-975E- Development, National Center for Environmental risk drivers in the 1999 National-scale 7FCE50709CB4C932. Assessment, Washington, DC. This material is Air Toxics Assessment (NATA).352 355 International Agency for Research on Cancer available at http://www.epa.gov/iris/subst/ PAN, which is formed from precursor (IARC). 1999. Re-evaluation of some organic 0364.htm. chemicals, hydrazine, and hydrogen peroxide. IARC 361 compounds by atmospheric processes, International Agency for Research on Cancer Monographs on the Evaluation of Carcinogenic Risk (IARC). 1995. Monographs on the evaluation of is not assessed in NATA. Emissions and of Chemical to Humans, Vol 71. Lyon, France. carcinogenic risk of chemicals to humans, Volume ambient concentrations of compounds 356 U.S. EPA. 1991. Integrated Risk Information 63, Dry cleaning, some chlorinated solvents and are discussed in the DRIA chapter on System File of Acetaldehyde. This material is other industrial chemicals, World Health available electronically at http://www.epa.gov/iris/ Organization, Lyon, France. subst/0290.htm. 362 Weber-Tschopp, A.; Fischer, T.; Gierer, R.; et 349 U.S. EPA (2000). Air Quality Criteria for 357 Appleman, L. M., R. A. Woutersen, V. J. Feron, al. (1977) Experimentelle reizwirkungen von Carbon Monoxide, EPA/600/P–99/001F. This R. N. Hooftman, and W. R. F. Notten. 1986. Effects Acrolein auf den Menschen. Int Arch Occup document is available in Docket EPA–HQ–OAR– of the variable versus fixed exposure levels on the Environ Hlth 40(2):117–130. In German. 2005–0161. toxicity of acetaldehyde in rats. J. Appl. Toxicol. 6: 363 Sim, V.M.; Pattle, R.E. (1957) Effect of possible 350 U.S. EPA (2000). Air Quality Criteria for 331–336. smog irritants on human subjects. J Am Med Assoc Carbon Monoxide, EPA/600/P–99/001F. This 358 Appleman, L.M., R.A. Woutersen, and V.J. 165(15):1908–1913. document is available in Docket EPA–HQ–OAR– Feron. 1982. Inhalation toxicity of acetaldehyde in 364 Morris J.B., Symanowicz P.T., Olsen J.E., et al. 2005–0161. rats. I. Acute and subacute studies. Toxicology. 23: 2003. Immediate sensory nerve-mediated 351 U. S. EPA. 1999 National-Scale Air Toxics 293–297. respiratory responses to irritants in healthy and Assessment. http://www.epa.gov/ttn/atw/nata1999/ 359 Myou, S.; Fujimura, M.; Nishi, K.; Ohka, T.; allergic airway-diseased mice. J Appl Physiol risksum.html and Matsuda, T. 1993. Aerosolized acetaldehyde 94(4):1563–1571. 352 U.S. EPA. 2006. National-Scale Air Toxics induces histamine-mediated bronchoconstriction in 365 Sim V.M., Pattle R.E. Effect of possible smog Assessment for 1999. http://www.epa.gov/ttn/atw/ asthmatics. Am. Rev. Respir. Dis. 148 (4 Pt 1): 940– irritants on human subjects. JAMA 165:1980–2010, nata1999 3. 1957.

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genetic changes in both humans and previously known.375 376 377 378 EPA’s ovarian atrophy observed in a lifetime animals and increased proliferation of IRIS program has not yet evaluated bioassay of female mice.383 bone marrow cells in mice.366 367 368 EPA these new data. e. Ethanol states in its IRIS database that data d. 1,3-Butadiene indicate a causal relationship between EPA is conducting an assessment of benzene exposure and acute EPA has characterized 1,3-butadiene the cancer and noncancer effects of lymphocytic leukemia and suggest a as carcinogenic to humans by exposure to ethanol, a compound which relationship between benzene exposure inhalation.379 380 The IARC has is not currently listed in EPA’s IRIS. A and chronic non-lymphocytic leukemia determined that 1,3-butadiene is a description of these effects to the extent and chronic lymphocytic leukemia. The human carcinogen and the U.S. DHHS that information is available will be International Agency for Research on has characterized 1,3-butadiene as a presented, as required by Section 1505 381 382 Carcinogens (IARC) has determined that known human carcinogen. There of EPAct, in a report to Congress on benzene is a human carcinogen and the are numerous studies consistently public health, air quality and water U.S. Department of Health and Human demonstrating that 1,3-butadiene is resource impacts of fuel additives. We Services (DHHS) has characterized metabolized into genotoxic metabolites expect to release that report in 2009. Extensive data are available regarding benzene as a known human by experimental animals and humans. adverse health effects associated with carcinogen.369 370 The specific mechanisms of 1,3- butadiene-induced carcinogenesis are the ingestion of ethanol while data on A number of adverse noncancer unknown; however, the scientific inhalation exposure effects are sparse. health effects including blood disorders, evidence strongly suggests that the As part of the IRIS assessment, such as preleukemia and aplastic carcinogenic effects are mediated by pharmacokinetic models are being anemia, have also been associated with genotoxic metabolites. Animal data evaluated as a means of extrapolating 371 372 long-term exposure to benzene. suggest that females may be more across species (animal to human) and The most sensitive noncancer effect sensitive than males for cancer effects across exposure routes (oral to observed in humans, based on current associated with 1,3-butadiene exposure; inhalation) to better characterize the data, is the depression of the absolute there are insufficient data in humans health hazards and dose-response lymphocyte count in blood.373 374 In from which to draw conclusions about relationships for low levels of ethanol addition, recent work, including studies sensitive subpopulations. 1,3-butadiene exposure in the environment. sponsored by the Health Effects Institute also causes a variety of reproductive and The IARC has classified ‘‘alcoholic (HEI), provides evidence that developmental effects in mice; no beverages’’ as carcinogenic to humans biochemical responses are occurring at human data on these effects are based on sufficient evidence that lower levels of benzene exposure than available. The most sensitive effect was malignant tumors of the mouth, pharynx, larynx, esophagus, and liver 366 U.S. EPA. 2000. Integrated Risk Information 375 Qu, O.; Shore, R.; Li, G.; Jin, X.; Chen, C.L.; are causally related to the consumption System File for Benzene. This material is available Cohen, B.; Melikian, A.; Eastmond, D.; Rappaport, of alcoholic beverages.384 The U.S. electronically at http://www.epa.gov/iris/subst/ S.; Li, H.; Rupa, D.; Suramaya, R.; Songnian, W.; DHHS in the 11th Report on 0276.htm. Huifant, Y.; Meng, M.; Winnik, M.; Kwok, E.; Li, Y.; 367 International Agency for Research on Cancer Mu, R.; Xu, B.; Zhang, X.; Li, K. (2003) HEI Report Carcinogens also identified ‘‘alcoholic (IARC). 1982. Monographs on the evaluation of 115, Validation & Evaluation of Biomarkers in beverages’’ as a known human carcinogenic risk of chemicals to humans, Volume Workers Exposed to Benzene in China. carcinogen (they have not evaluated the 29, Some industrial chemicals and dyestuffs, World 376 Qu, Q., R. Shore, G. Li, X. Jin, L.C. Chen, B. cancer risks specifically from exposure Health Organization, Lyon, France, p. 345–389. Cohen, et al. (2002) Hematological changes among to ethanol), with evidence for cancer of 368 Irons, R.D.; Stillman, W.S.; Colagiovanni, D.B.; Chinese workers with a broad range of benzene Henry, V.A. 1992. Synergistic action of the benzene exposures. Am. J. Industr. Med. 42:275–285. the mouth, pharynx, larynx, esophagus, 385 metabolite hydroquinone on myelopoietic 377 Lan, Qing, Zhang, L., Li, G., Vermeulen, R., et liver and breast. There are no studies stimulating activity of granulocyte/macrophage al. (2004) Hematotoxicity in Workers Exposed to reporting carcinogenic effects from colony-stimulating factor in vitro, Proc. Natl. Acad. Low Levels of Benzene. Science 306:1774–1776. inhalation of ethanol. EPA is currently Sci. 89:3691–3695. 378 Turtletaub, K.W. and Mani, C. (2003) Benzene evaluating the available human and 369 International Agency for Research on Cancer metabolism in rodents at doses relevant to human (IARC). 1987. Monographs on the evaluation of exposure from Urban Air. Research Reports Health animal cancer data to identify which carcinogenic risk of chemicals to humans, Volume Effect Inst. Report No. 113. cancer type(s) are the most relevant to 29, Supplement 7, Some industrial chemicals and 379 U.S. EPA (2002) Health Assessment of 1,3– an assessment of risk to humans from a dyestuffs, World Health Organization, Lyon, France. Butadiene. Office of Research and Development, low-level oral and inhalation exposure 370 U.S. Department of Health and Human National Center for Environmental Assessment, Services National Toxicology Program, 11th Report Washington Office, Washington, DC. Report No. to ethanol. on Carcinogens, available at: http:// EPA600–P–98–001F. This document is available Noncancer health effects data are ntp.niehs.nih.gov/go/16183. electronically at http://www.epa.gov/iris/supdocs/ available from animal studies as well as 371 Aksoy, M. (1989). Hematotoxicity and buta-sup.pdf. epidemiologic studies. The carcinogenicity of benzene. Environ. Health 380 U.S. EPA (2002) Full IRIS Summary for 1,3- epidemiologic data are obtained from Perspect. 82:193–197. butadiene (CASRN 106–99–0). Environmental 372 Goldstein, B.D. (1988). Benzene toxicity. Protection Agency, Integrated Risk Information studies of alcoholic beverage Occupational medicine. State of the Art Reviews. System (IRIS), Research and Development, National 3:541–554. Center for Environmental Assessment, Washington, 383 Bevan, C.; Stadler, J.C.; Elliot, G.S.; et al. 373 Rothman, N., G.L. Li, M. Dosemeci, W.E. DC, http://www.epa.gov/iris/subst/0139.htm. (1996) Subchronic toxicity of 4-vinylcyclohexene in Bechtold, G.E. Marti, Y.Z. Wang, M. Linet, L.Q. Xi, 381 International Agency for Research on Cancer rats and mice by inhalation. Fundam. Appl. W. Lu, M.T. Smith, N. Titenko-Holland, L.P. Zhang, (IARC) (1999) Monographs on the evaluation of Toxicol. 32:1–10. W. Blot, S.N. Yin, and R.B. Hayes (1996) carcinogenic risk of chemicals to humans, Volume 384 International Agency for Research on Cancer Hematotoxicity among Chinese workers heavily 71, Re-evaluation of some organic chemicals, (IARC). 1988. Monographs on the evaluation of exposed to benzene. Am. J. Ind. Med. 29:236–246. hydrazine and hydrogen peroxide and Volume 97 carcinogenic risk of chemicals to humans, Volume 374 U.S. EPA (2002) Toxicological Review of (in preparation), World Health Organization, Lyon, 44, Alcohol Drinking, World Health Organization, Benzene (Noncancer Effects). Environmental France. Lyon, France. Protection Agency, Integrated Risk Information 382 U.S. Department of Health and Human 385 U.S. Department of Health and Human System (IRIS), Research and Development, National Services (2005) National Toxicology Program, 11th Services. 2005. National Toxicology Program 11th Center for Environmental Assessment, Washington Report on Carcinogens, available at: http:// Report on Carcinogens available at: DC. This material is available electronically at ntp.niehs.nih.gov/index.cfm?objectid=32BA9724– ntp.niehs.nih.gov/index.cfm?objectid=32BA9724- http://www.epa.gov/iris/subst/0276.htm. F1F6–975E–7FCE50709CB4C932. F1F6-975E-7FCE50709CB4C932.

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consumption. Effects include lymphohematopoietic malignancies Naphthalene emissions have been neurological impairment, such as leukemia among workers measured in larger quantities in both developmental effects, cardiovascular exposed to formaldehyde.396 397 NCI is gasoline and diesel exhaust compared effects, immune system depression, and currently performing an update of these with evaporative emissions from mobile effects on the liver, pancreas and studies. A recent National Institute of sources, indicating it is primarily a reproductive system.386 There is Occupational Safety and Health product of combustion. EPA released an evidence that children prenatally (NIOSH) study of garment workers also external review draft of a reassessment exposed via mothers’ ingestion of found increased risk of death due to of the inhalation carcinogenicity of alcoholic beverages during pregnancy leukemia among workers exposed to naphthalene based on a number of are at increased risk of hyperactivity formaldehyde.398 Extended follow-up of recent animal carcinogenicity and attention deficits, impaired motor a cohort of British chemical workers did studies.403 The draft reassessment coordination, a lack of regulation of not find evidence of an increase in completed external peer review.404 social behavior or poor psychosocial nasopharyngeal or Based on external peer review functioning, and deficits in cognition, lymphohematopoietic cancers, but a comments received, additional analyses mathematical ability, verbal fluency, continuing statistically significant are being undertaken. This external and spatial excess in lung cancers was reported.399 review draft does not represent official memory.387 388 389 390 391 392 393 394 In some Recently, the IARC re-classified agency opinion and was released solely people, genetic factors influencing the formaldehyde as a human carcinogen for the purposes of external peer review metabolism of ethanol can lead to (Group 1).400 and public comment. Once EPA differences in internal levels of ethanol Formaldehyde exposure also causes a evaluates public and peer reviewer and may render some subpopulations range of noncancer health effects, comments, the document will be more susceptible to risks from the including irritation of the eyes (burning revised. The National Toxicology effects of ethanol. and watering of the eyes), nose and Program listed naphthalene as throat. Effects from repeated exposure in ‘‘reasonably anticipated to be a human f. Formaldehyde humans include respiratory tract carcinogen’’ in 2004 on the basis of Since 1987, EPA has classified irritation, chronic bronchitis and nasal bioassays reporting clear evidence of formaldehyde as a probable human epithelial lesions such as metaplasia carcinogenicity in rats and some carcinogen based on evidence in and loss of cilia. Animal studies suggest evidence of carcinogenicity in mice.405 humans and in rats, mice, hamsters, and that formaldehyde may also cause California EPA has released a new risk monkeys.395 EPA is currently reviewing airway inflammation—including assessment for naphthalene, and the recently published epidemiological eosinophil infiltration into the airways. IARC has reevaluated naphthalene and data. For instance, research conducted There are several studies that suggest re-classified it as Group 2B: possibly by the National Cancer Institute (NCI) that formaldehyde may increase the risk carcinogenic to humans.406 Naphthalene found an increased risk of of asthma—particularly in the also causes a number of chronic non- nasopharyngeal cancer and young.401 402 cancer effects in animals, including abnormal cell changes and growth in g. Naphthalene 386 U.S. Department of Health and Human respiratory and nasal tissues.407 Services. 2000. 10th Special Report to the U.S. Naphthalene is found in small Congress on Alcohol and Health. June 2000. quantities in gasoline and diesel fuels. h. Peroxyacetyl Nitrate (PAN) 387 Goodlett CR, KH Horn, F Zhou. 2005. Alcohol teratogenesis: mechanisms of damage and strategies Peroxyacetyl nitrate (PAN) has not for intervention. Exp. Biol. Med. 230:394–406. 396 Hauptmann, M.; Lubin, J. H.; Stewart, P. A.; been evaluated by EPA’s IRIS program. 388 Riley EP, CL McGee. 2005. Fetal alcohol Hayes, R. B.; Blair, A. 2003. Mortality from Information regarding the potential spectrum disorders: an overview with emphasis on lymphohematopoietic malignancies among workers carcinogenicity of PAN is limited. As changes in brain and behavior. Exp. Biol. Med. in formaldehyde industries. Journal of the National 230:357–365. Cancer Institute 95: 1615–1623. noted in the EPA air quality criteria 389 Zhang X, JH Sliwowska, J Weinberg. 2005. 397 Hauptmann, M.; Lubin, J. H.; Stewart, P. A.; Prenatal alcohol exposure and fetal programming: Hayes, R. B.; Blair, A. 2004. Mortality from solid 403 U.S. EPA. 2004. Toxicological Review of effects on neuroendocrine and immune function. cancers among workers in formaldehyde industries. Naphthalene (Reassessment of the Inhalation Exp. Biol. Med. 230:376–388. American Journal of Epidemiology 159: 1117–1130. Cancer Risk), Environmental Protection Agency, 390 Riley EP, CL McGee, ER Sowell. 2004. 398 Pinkerton, L. E. 2004. Mortality among a Integrated Risk Information System, Research and Teratogenic effects of alcohol: a decade of brain cohort of garment workers exposed to Development, National Center for Environmental imaging. Am. J. Med. Genet. Part C: Semin. Med. formaldehyde: an update. Occup. Environ. Med. 61: Assessment, Washington, DC. This material is Genet. 127:35–41. 193–200. available electronically at http://www.epa.gov/iris/ 391 Gunzerath L, V Faden, S Zakhari, K Warren. 399 Coggon, D, EC Harris, J Poole, KT Palmer. subst/0436.htm. 2004. National Institute on Alcohol Abuse and 2003. Extended follow-up of a cohort of British 404 Oak Ridge Institute for Science and Education. Alcoholism report on moderate drinking. Alcohol. chemical workers exposed to formaldehyde. J (2004). External Peer Review for the IRIS Clin. Exp. Res. 28:829–847. National Cancer Inst. 95:1608–1615. Reassessment of the Inhalation Carcinogenicity of 392 World Health Organization (WHO). 2004. 400 International Agency for Research on Cancer Naphthalene. August 2004. http://cfpub.epa.gov/ Global status report on alcohol 2004. Geneva, (IARC). 2006. Formaldehyde, 2-Butoxyethanol and ncea/cfm/recordisplay.cfm?deid=84403. Switzerland: Department of Mental Health and 1-tert-Butoxypropan-2-ol. Volume 88. (in 405 National Toxicology Program (NTP). (2004). Substance Abuse. Available: http://www.who.int/ preparation), World Health Organization, Lyon, 11th Report on Carcinogens. Public Health Service, substance_abuse/publications/ France. U.S. Department of Health and Human Services, global_status_report_2004_overview.pdf. 401 Agency for Toxic Substances and Disease Research Triangle Park, NC. Available from: 393 Chen W–JA, SE Maier, SE Parnell, FR West. Registry (ATSDR). 1999. Toxicological profile for http://ntp-server.niehs.nih.gov. 2003. Alcohol and the developing brain: Formaldehyde. Atlanta, GA: U.S. Department of 406 International Agency for Research on Cancer neuroanatomical studies. Alcohol Res. Health Health and Human Services, Public Health Service. (IARC). (2002). Monographs on the Evaluation of 27:174–180. http://www.atsdr.cdc.gov/toxprofiles/tp111.html. the Carcinogenic Risk of Chemicals for Humans. 394 Driscoll CD, AP Streissguth, EP Riley. 1990. 402 WHO (2002) Concise International Chemical Vol. 82, Lyon, France. Prenatal alcohol exposure comparability of effects Assessment Document 40: Formaldehyde. 407 U.S. EPA. 1998. Toxicological Review of in humans and animal models. Neurotoxicol. Published under the joint sponsorship of the United Naphthalene, Environmental Protection Agency, Teratol. 12:231–238. Nations Environment Programme, the International Integrated Risk Information System, Research and 395 U.S. EPA (1987) Assessment of Health Risks Labour Organization, and the World Health Development, National Center for Environmental to Garment Workers and Certain Home Residents Organization, and produced within the framework Assessment, Washington, DC. This material is from Exposure to Formaldehyde, Office of of the Inter-Organization Programme for the Sound available electronically at http://www.epa.gov/iris/ Pesticides and Toxic Substances, April 1987. Management of Chemicals. Geneva. subst/0436.htm.

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document for ozone and related impairment, atmospheric deposition, 1999 the regional haze rule (64 FR photochemical oxidants, cytogenetic and materials damage and soiling, as 35714) was put in place to protect studies indicate that PAN is not a potent well as environmental effects associated visibility in mandatory class I federal mutagen, clastogen (a compound that with the presence of ozone in the areas. Visibility can be said to be can cause breaks in chromosomes), or ambient air, such as impacts on plants, impaired in both PM2.5 nonattainment DNA-damaging agent in mammalian including trees, agronomic crops and areas and mandatory class I federal cells either in vivo or in vitro. Some urban ornamentals, and environmental areas. studies suggest that PAN may be a weak effects associated with air toxics. bacterial mutagen at high concentrations 2. Atmospheric Deposition 1. Visibility much higher than exist in present urban atmospheres.408 Visibility can be defined as the degree Wet and dry deposition of ambient Effects of ground-level smog causing to which the atmosphere is transparent particulate matter delivers a complex intense eye irritation have been to visible light.412 Airborne particles mixture of metals (e.g., mercury, zinc, attributed to photochemical oxidants, degrade visibility by scattering and lead, nickel, aluminum, cadmium), including PAN.409 Animal toxicological absorbing light. Visibility is important organic compounds (e.g., POM, dioxins, information on the inhalation effects of because it has direct significance to furans) and inorganic compounds (e.g., the non-ozone oxidants has been limited people’s enjoyment of daily activities in nitrate, sulfate) to terrestrial and aquatic to a few studies on PAN. Acute all parts of the country. Individuals ecosystems. The chemical form of the exposure to levels of PAN can cause value good visibility for the well-being compounds deposited depends on a changes in lung morphology, behavioral it provides them directly, where they variety of factors including ambient modifications, weight loss, and live and work, and in places where they conditions (e.g., temperature, humidity, susceptibility to pulmonary infections. enjoy recreational opportunities. oxidant levels) and the sources of the Human exposure studies indicate minor Visibility is also highly valued in material. Chemical and physical pulmonary function effects at high PAN natural areas such as national parks and transformations of the particulate concentrations, but large inter- wilderness areas and special emphasis compounds occur in the atmosphere as individual variability precludes is given to protecting visibility in these well as the media onto which they 410 areas. For more information on visibility definitive conclusions. deposit. These transformations in turn see the final 2004 PM AQCD as well as influence the fate, bioavailability and i. Other Air Toxics the 2005 PM Staff Paper.413 414 In addition to the compounds EPA is pursuing a two-part strategy to potential toxicity of these compounds. described above, other compounds in address visibility. First, to address the Atmospheric deposition has been gaseous hydrocarbon and PM emissions welfare effects of PM on visibility, EPA identified as a key component of the from vehicles will be affected by today’s has set secondary PM2.5 standards environmental and human health proposed action. Mobile source air toxic which act in conjunction with the hazard posed by several pollutants compounds that will potentially be establishment of a regional haze including mercury, dioxin and PCBs.416 impacted include ethylbenzene, program. In setting this secondary Adverse impacts on water quality can polycyclic organic matter, standard EPA has concluded that PM2.5 occur when atmospheric contaminants propionaldehyde, toluene, and xylene. causes adverse effects on visibility in deposit to the water surface or when Information regarding the health effects various locations, depending on PM material deposited on the land enters a of these compounds can be found in concentrations and factors such as waterbody through runoff. Potential 411 EPA’s IRIS database. chemical composition and average impacts of atmospheric deposition to relative humidity. Second, section 169 F. Environmental Effects of Criteria and waterbodies include those related to of the Clean Air Act provides additional both nutrient and toxic inputs. Adverse Air Toxic Pollutants authority to address existing visibility effects to human health and welfare can In this section we discuss some of the impairment and prevent future visibility occur from the addition of excess environmental effects of PM and its impairment in the 156 national parks, precursors, such as visibility forests and wilderness areas categorized particulate nitrate nutrient enrichment, as mandatory class I federal areas (62 FR which contributes to toxic algae blooms 408 U.S. EPA. 2006. Air Quality Criteria for Ozone 38680–81, July 18, 1997).415 In July and zones of depleted oxygen, which and Related Photochemical Oxidants (Ozone CD). can lead to fish kills, frequently in Research Triangle Park, NC: National Center for 412 National Research Council, 1993. Protecting coastal waters. Particles contaminated Environmental Assessment; report no. EPA/600/R– Visibility in National Parks and Wilderness Areas. 05/004aF–cF.3v. page 5–78. Available at http:// with heavy metals or other toxins may National Academy of Sciences Committee on Haze cfpub.epa.gov/ncea/. lead to the ingestion of contaminated in National Parks and Wilderness Areas. National 409 U.S. EPA. 2006. Air Quality Criteria for Ozone Academy Press, Washington, DC. This document is fish, ingestion of contaminated water, and Related Photochemical Oxidants (Final). U.S. available in Docket EPA–HQ–OAR–2005–0161. damage to the marine ecology, and Environmental Protection Agency, Washington, DC, This book can be viewed on the National Academy limits to recreational uses. Several EPA 600/R–05/004aF–cF. pages 5–63. This Press Web site at http://www.nap.edu/books/ document is available in Docket EPA–HQ–OAR– 0309048443/html/. studies have been conducted in U.S. 2005–0161. This document may be accessed 413 U.S. EPA (2004) Air Quality Criteria for coastal waters and in the Great Lakes electronically at: http://www.epa.gov/ttn/naaqs/ Particulate Matter (Oct 2004), Volume I Document _ _ _ Region in which the role of ambient PM standards/ozone/s o3 cr cd.html. No. EPA600/P–99/002aF and Volume II Document 410 U.S. EPA. 2006. Air Quality Criteria for Ozone No. EPA600/P–99/002bF. This document is deposition and runoff is and Related Photochemical Oxidants (Final). U.S. available in Docket EPA–HQ–OAR–2005–0161. Environmental Protection Agency, Washington, DC, 414 U.S. EPA (2005) Review of the National wilderness areas and memorial parks exceeding EPA 600/R–05/004aF–cF. pages 5–78. This Ambient Air Quality Standard for Particulate 5,000 acres, and all international parks which were document is available in Docket EPA–HQ–OAR– Matter: Policy Assessment of Scientific and in existence on August 7, 1977. 2005–0161. This document may be accessed Technical Information, OAQPS Staff Paper. EPA– 416 U.S. EPA (2000) Deposition of Air Pollutants electronically at: http://www.epa.gov/ttn/naaqs/ 452/R–05–005. This document is available in to the Great Waters: Third Report to Congress. standards/ozone/s_o3_cr_cd.html. Docket EPA–HQ–OAR–2005–0161. Office of Air Quality Planning and Standards. EPA– 411 U.S. EPA. Integrated Risk Information System 415 These areas are defined in CAA section 162 as (IRIS) database is available at: www.epa.gov/iris. those national parks exceeding 6,000 acres, 453/R–00–0005. This document is available in Docket EPA–HQ–OAR–2005–0161.

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investigated.417 418 419 420 421 In addition, The deposition of airborne particles leaves can result in a loss of aesthetic the process of acidification affects both can reduce the aesthetic appeal of value in areas of special scenic freshwater aquatic and terrestrial buildings and culturally important significance like national parks and ecosystems. Acid deposition causes articles through soiling and can wilderness areas. The final 2006 Ozone acidification of sensitive surface waters. contribute directly (or in conjunction Air Quality Criteria Document presents The effects of acid deposition on aquatic with other pollutants) to structural more detailed information on ozone systems depend largely upon the ability damage by means of corrosion or effects on vegetation and ecosystems. erosion.422 Particles affect materials of the ecosystem to neutralize the 4. Welfare Effects of Air Toxics additional acid. As acidity increases, principally by promoting and aluminum leached from soils and accelerating the corrosion of metals, by Fuel combustion emissions contribute sediments, flows into lakes and streams degrading paints, and by deteriorating to ambient levels of pollutants that and can be toxic to both terrestrial and building materials such as concrete and contribute to adverse effects on aquatic biota. The lower pH limestone. Particles contribute to these vegetation. PAN is a well-established concentrations and higher aluminum effects because of their electrolytic, phytotoxicant causing visible injury to levels resulting from acidification make hygroscopic, and acidic properties and leaves that can appear as metallic it difficult for some fish and other their ability to adsorb corrosive gases glazing on the lower surface of leaves aquatic organisms to survive, grow, and (principally sulfur dioxide). The rate of with some leafy vegetables exhibiting reproduce. metal corrosion depends on a number of particular sensitivity (e.g., spinach, factors, including: The deposition rate lettuce, chard).423 424 425 PAN has been Adverse impacts on soil chemistry and nature of the pollutant; the demonstrated to inhibit photosynthetic and plant life have been observed for influence of the metal protective and non-photosynthetic processes in areas heavily influenced by atmospheric corrosion film; the amount of moisture plants and retard the growth of young deposition of nutrients, metals and acid present; variability in the navel orange trees.426 427 In addition to species, resulting in species shifts, loss electrochemical reactions; the presence its oxidizing capability, PAN of biodiversity, forest decline and and concentration of other surface contributes nitrogen to forests and other damage to forest productivity. Potential electrolytes; and the orientation of the vegetation via uptake as well as dry and impacts also include adverse effects to metal surface. wet deposition to surfaces. As noted in human health through ingestion of 3. Plant and Ecosystem Effects of Ozone Section X, nitrogen deposition can lead contaminated vegetation or livestock (as to saturation of terrestrial ecosystems in the case for dioxin deposition), Ozone contributes to many and research is needed to understand reduction in crop yield, and limited use environmental effects, with impacts to the impacts of excess nitrogen of land due to contamination. Research plants and ecosystems being of most deposition experienced in some areas of on effects of acid deposition on forest concern. Ozone can produce both acute the country on water quality and ecosystems has come to focus and chronic injury in sensitive species ecosystems.428 increasingly on the biogeochemical depending on the concentration level Volatile organic compounds (VOCs), processes that affect uptake, retention, and the duration of the exposure. Ozone some of which are considered air toxics, and cycling of nutrients within these effects also tend to accumulate over the have long been suspected to play a role ecosystems. Decreases in available base growing season of the plant, so that even in vegetation damage.429 In laboratory cations from soils are at least partly lower concentrations experienced for a experiments, a wide range of tolerance attributable to acid deposition. Base longer duration have the potential to to VOCs has been observed.430 cation depletion is a cause for concern create chronic stress on vegetation. Decreases in harvested seed pod weight because of the role these ions play in Ozone damage to plants includes visible acid neutralization and because injury to leaves and a reduction in food 423 Nouchi I, S Toyama. 1998. Effects of ozone calcium, magnesium and potassium are production through impaired and peroxyacetyl nitrate on polar lipids and fatty essential nutrients for plant growth and photosynthesis, both of which can lead acids in leaves of morning glory and kidney bean. to reduced crop yields, forestry Plant Physiol. 87:638–646. physiology. Changes in the relative 424 production, and use of sensitive Oka E, Y Tagami, T Oohashi, N Kondo. 2004. proportions of these nutrients, A physiological and morphological study on the especially in comparison with ornamentals in landscaping. In addition, injury caused by exposure to the air pollutant, aluminum concentrations, have been the reduced food production in plants peroxyacetyl nitrate (PAN), based on the quantitative assessment of the injury. J Plant Res. associated with declining forest health. and subsequent reduced root growth and storage below ground can result in 117:27–36. 425 other, more subtle plant and ecosystems Sun E-J, M-H Huang. 1995. Detection of 417 U.S. EPA (2004) National Coastal Condition peroxyacetyl nitrate at phytotoxic level and its Report II. Office of Research and Development/ impacts. These include increased effects on vegetation in Taiwan. Atmos. Env. Office of Water. EPA–620/R–03/002. This document susceptibility of plants to insect attack, 29:2899–2904. is available in Docket EPA–HQ–OAR–2005–0161. disease, harsh weather, interspecies 426 Koukol J, WM Dugger, Jr., RL Palmer. 1967. 418 Gao, Y., E.D. Nelson, M.P. Field, et al. 2002. competition and overall decreased plant Inhibitory effect of peroxyacetyl nitrate on cyclic Characterization of atmospheric trace elements on vigor. The adverse effects of ozone on photophosphorylation by chloroplasts from black PM2.5 particulate matter over the New York-New valentine bean leaves. Plant Physiol. 42:1419–1422. Jersey harbor estuary. Atmos. Environ. 36: 1077– forest and other natural vegetation can 427 Thompson CR, G Kats. 1975. Effects of 1086. potentially lead to species shifts and ambient concentrations of peroxyacetyl nitrate on 419 Kim, G., N. Hussain, J.R. Scudlark, and T.M. loss from the affected ecosystems, navel orange trees. Env. Sci. Technol. 9:35–38. Church. 2000. Factors influencing the atmospheric resulting in a loss or reduction in 428 Bytnerowicz A, ME Fenn. 1995. Nitrogen depositional fluxes of stable Pb, 210Pb, and 7Be deposition in California forests: A Review. Environ. into Chesapeake Bay. J. Atmos. Chem. 36: 65–79. associated ecosystem goods and Pollut. 92:127–146. 420 Lu, R., R.P. Turco, K. Stolzenbach, et al. 2003. services. Last, visible ozone injury to 429 U.S. EPA. 1991. Effects of organic chemicals Dry deposition of airborne trace metals on the Los in the atmosphere on terrestrial plants. EPA/600/3– Angeles Basin and adjacent coastal waters. J. 422 U.S. EPA (2005). Review of the National 91/001. Geophys. Res. 108(D2, 4074): AAC 11–1 to 11–24. Ambient Air Quality Standards for Particulate 430 Cape JN, ID Leith, J Binnie, J Content, M 421 Marvin, C.H., M.N. Charlton, E.J. Reiner, et al. Matter: Policy Assessment of Scientific and Donkin, M Skewes, DN Price, AR Brown, AD 2002. Surficial sediment contamination in Lakes Technical Information, OAQPS Staff Paper. This Sharpe. 2003. Effects of VOCs on herbaceous plants Erie and Ontario: A comparative analysis. J. Great document is available in Docket EPA–HQ–OAR– in an open-top chamber experiment. Environ. Lakes Res. 28(3): 437–450. 2005–0161. Pollut. 124:341–343.

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have been reported for the more VIII. Impacts on Cost of Renewable ton (all 2006$). These estimates are sensitive plants, and some studies have Fuels, Gasoline, and Diesel taken from agricultural economics reported effects on seed germination, We have assessed the impacts of the modeling work done for this proposal flowering and fruit ripening. Effects of renewable fuel volumes required by using the Forestry and Agricultural individual VOCs or their role in EISA on their costs and on the costs of Sector Optimization Model (see Section conjunction with other stressors (e.g., the gasoline and diesel fuels into which IX.A). acidification, drought, temperature the renewable fuels will be blended. For natural gas-fired ethanol extremes) have not been well studied. In More details of feedstock costs are production producing dried co-product a recent study of a mixture of VOCs addressed in Section X.A. (currently describes the largest fraction including ethanol and toluene on A. Renewable Fuel Production Costs of the industry), in the policy case corn herbaceous plants, significant effects on feedstock minus DDGS sale credit seed production, leaf water content and 1. Ethanol Production Costs represents about 57% of the final per- photosynthetic efficiency were reported a. Corn Ethanol gallon cost, while utilities, facility, and 431 labor comprise about 22%, 11%, and for some plant species. A significant amount of work has 4%, respectively. Thus, the cost of Research suggests an adverse impact been done in the last decade surveying ethanol production is most sensitive to of vehicle exhaust on plants, which has and modeling the costs involved in the prices of corn and the primary co- in some cases been attributed to producing ethanol from corn in order to product, DDGS, and relatively aromatic compounds and in other cases serve business and investment purposes insensitive to economy of scale over the to nitrogen oxides.432 433 434 The impacts as well as to try to educate energy policy decisions. Corn ethanol costs for our range of plant sizes typically seen (40– of VOCs on plant reproduction may 100 MMgal/yr). have long-term implications for work were estimated using models biodiversity and survival of native developed and maintained by USDA. We expect that several process fuels species near major roadways. Most of Their work has been described in a will be used to produce corn ethanol the studies of the impacts of VOCs on peer-reviewed journal paper on cost (see DRIA Section 1.4), which are presented by their projected 2022 vegetation have focused on short-term modeling of the dry-grind corn ethanol volume production share in Table exposure and few studies have focused process, and compares well with cost information found in surveys of existing VIII.A.1–1a and cost impacts for each in on long-term effects of VOCs on plants.435 436 Table VIII.A.1–1b.437 We request vegetation and the potential for For our policy case scenario, we used comment on the projected mix of plant metabolites of these compounds to corn prices of $3.34/bu in 2022 with fuel sources in the future as well as the affect herbivores or insects. corresponding DDGS prices of $139.78/ cost impacts of various technologies.

TABLE VIII.A.1–1a—PROJECTED 2022 BREAKDOWN OF FUEL TYPES USED TO ESTIMATE PRODUCTION COST OF CORN ETHANOL, PERCENT SHARE OF TOTAL PRODUCTION VOLUME

Fuel type Total by plant type Plant type Biomass Coal Natural gas Biogas All fuels (percent) (percent) (percent) (percent) (percent)

Coal/Biomass Boiler ...... 11 0 ...... 11 Coal/Biomass Boiler + CHP ...... 10 4 ...... 14 Natural Gas Boiler ...... 49 14 63 Natural Gas Boiler + CHP ...... 12 ...... 12

Total by Fuel Type ...... 21 4 61 14 100

TABLE VIII.A.1–1b—PROJECTED 2022 BREAKDOWN OF COST IMPACTS BY FUEL TYPE USED IN ESTIMATING PRODUCTION COST OF CORN ETHANOL, DOLLARS PER GALLON RELATIVE TO NATURAL GAS BASELINE

Fuel type Total by Plant type plant type a b Biomass Coal Natural gas Biogas All fuels

Coal/Biomass Boiler ...... ¥$0.02 ¥$0.02 ...... Coal/Biomass Boiler + CHP ...... +$0.14 +$0.14 ...... Natural Gas Boiler ...... baseline +$0.00 ......

431 Cape JN, ID Leith, J Binnie, J Content, M 434 Kammerbauer H, H Selinger, R Rommelt, A 437 Projected fuel mix was taken from Mueller, S., Donkin, M Skewes, DN Price, AR Brown, AD Ziegler-Jons, D Knoppik, B Hock. 1987. Toxic Energy Research Center at the University of Sharpe. 2003. Effects of VOCs on herbaceous plants components of motor vehicle emissions for the Chicago; An Analysis of the Projected Energy Use in an open-top chamber experiment. Environ. spruce Pciea abies. Environ. Pollut. 48:235–243. of Future Dry Mill Corn Ethanol Plants (2010– Pollut. 124:341–343. 435 Kwaitkowski, J.R., Macon, A., Taylor, F., 2030); cost estimates were derived from 432 Viskari E-L. 2000. Epicuticular wax of Norway modifications to the USDA process models. We are spruce needles as indicator of traffic pollutant Johnston, D.B.; Industrial Crops and Products 23 deposition. Water, Air, and Soil Pollut. 121:327– (2006) 288–296. aware that the cost impacts of CHP are likely 337. 436 Shapouri, H., Gallagher, P.; USDA’s 2002 overestimated here and will be revised in the final 433 Ugrekhelidze D, F Korte, G Kvesitadze. 1997. Ethanol Cost-of-Production Survey (published July rulemaking. Uptake and transformation of benzene and toluene 2005). by plant leaves. Ecotox. Environ. Safety 37:24–29.

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TABLE VIII.A.1–1b—PROJECTED 2022 BREAKDOWN OF COST IMPACTS BY FUEL TYPE USED IN ESTIMATING PRODUCTION COST OF CORN ETHANOL, DOLLARS PER GALLON RELATIVE TO NATURAL GAS BASELINE—Continued

Fuel type Total by Plant type plant type a b Biomass Coal Natural gas Biogas All fuels

Natural Gas Boiler + CHP ...... +$0.16 ......

Total by Fuel Type ...... $0.04 a Assumes biomass has same plant-delivered cost as coal. b Assumes biogas has same plant-delivered cost as natural gas.

Based on energy prices from EIA’s rate of 37% of ethanol production by of the cellulosic feedstocks, comprising Annual Energy Outlook (AEO) 2008 2022.439 According to economic about 61% of the total biomass baseline case ($53/bbl crude oil), we analyses done by USDA based on the GS feedstock inventory. Forest residues arrive at a production cost of $1.49/gal. Cleantech corn oil extraction process, make up about 25% of the total, and In the case of EIA’s high price scenario the capital cost to install the system for MSW makes up the remaining 14%. At ($92/bbl crude), this figure increases by a 50 MMgal/yr ethanol plant is present, there are no commercial sized 6 cents per gallon. More details on the approximately $6 million. The system is cellulosic ethanol plants in the U.S. ethanol production cost estimates can capable of extracting about one third of Likewise, there are no commercially be found in Chapter 4 of the DRIA. This the corn oil entering the plant, and proven, fully-integrated feedstock estimate represents the full cost to the produces a low-quality corn oil co- supply systems dedicated to providing plant operator, including purchase of product stream. In our analysis, we any of the feedstocks we mentioned to feedstocks, energy required for assumed the value of this additional co- ethanol facilities of any size, although operations, capital depreciation, labor, product to be 70% that of soy oil (the certain biomass is harvested for other overhead, and denaturant, minus same as yellow grease, $0.27/lb), purposes. For this reason, our feedstock revenue from sale of co-products. The resulting in a credit per gallon of cost estimates are projections and not capital cost for a 65 MMgal/yr natural ethanol of $0.04 for a 50 MMgal/yr plant based on any existing market data. gas fired dry mill plant is estimated at operating such a system. Our feedstock costs include an $89MM (this the projected average size Note that the ethanol production cost additional preprocessing cost that many of such plants in 2022). Similarly, coal given here does not account for any other feedstock cost estimates do not and biomass fired plants were assumed subsidies on production or sale of include—thus our costs may seem to be 110 MGY in capacity, with an ethanol, and is independent of the higher. We used biofuel plant cost estimated capital cost of $200MM.438 market price of ethanol. estimates provided by NREL which no longer includes the cost for finely On average, ethanol produced in a b. Cellulosic Ethanol facility using coal or biomass as a grinding the feedstock prior to feeding primary energy source results in a per- i. Feedstock Costs it to the biofuel plant. Thus, our gallon cost $0.02/gal lower compared to Cellulosic Feedstock Costs feedstock costs include an $11 per dry production using natural gas. ton cost to account for the costs of this To estimate the cost of producing grinding operation, regardless of In this cost estimation work, we did cellulosic biofuels, it was first necessary not assume any pelletizing of DDGS. whether this operation occurs in the to estimate the cost of harvesting, field or at the plant gate. Pelletizing is expected to improve ease storing, processing and transporting the of shipment to more distant markets, feedstocks to the biofuel production Crop Residue and Energy Crops which may become more important at facilities. Ethanol or other cellulosic Crop residue harvest is currently a the larger volumes projected for the biofuels can be produced from crop secondary harvest; that is they are future. However, while many in residues such as corn stover, wheat, harvested or gathered only after the industry are aware of this technology, rice, oat, and barley straw, sugar cane prime crop has been harvested. In most those we spoke with are not employing bagasse, and sorghum, from other northern areas, the harvest periods will it in their plants, and do not expect cellulosic plant matter such as forest be short due to the onset of winter widespread use in the foreseeable thinnings and forest-fuel removal, weather. In some cases, it may be future. According to USDA’s model, pulping residues, and from the necessary to gather a full year’s worth of pelletizing adds $0.035/gal to the cellulosic portions of municipal solid residue within just a few weeks. ethanol production cost. We request waste (MSW). Currently, there are no Consequently, to accomplish this comment on whether pelletizing should energy crops such as switchgrass nor hundreds of pieces of farm equipment be included in our program cost short rotation woody crops (SRWC will be required for a few weeks each estimates. poplars, etc.) grown specifically for year to complete a harvest. Winter In support of our biodiesel and energy production. conditions in the South make it renewable diesel volume feasibility Our feedstock supply analysis somewhat easier to extend the harvest estimates, we included recovery of corn projected that crop residue, primarily periods; in some cases, it may be oil from distillers’ grains streams in our corn stover, will be the most abundant possible to harvest a residue on an as ethanol production cost estimates at a needed basis. 439 Although some oil extraction may be done as During the corn grain harvest, 438 Capital costs for a natural gas fired plant were front-end fractionation of the kernel, we believe the generally only the cob and the leaves taken from USDA cost model; incremental costs to majority will be produced via separation from use coal as the primary energy source were derived distillers’ grains streams. For more discussion of above the cob are taken into the from conversations with ethanol plant construction corn oil extraction and fractionation, see Chapter 4 harvester. Thus, the stover harvest contractors. of the DRIA. would likely require some portion of the

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standing-stalks be mowed or shredded, other crop residues, we estimate that 60 chipped before transport to the biofuel following which the entire residue, or more secondary storage sites would plant. including that discharged from the be necessary to minimize the combined In general, most operators in the near combine residue-spreader, would need transportation and storage costs for a future would be expected to chip at to be raked. Balers, likely a mix of large 100 million gallon per year plant. We roadside in the forest, blowing the chips round and large square balers, would estimated it would cost about $14 per directly into a chip van. When the van follow the rakes. The bales would then dry ton to haul the feedstock from the is full it will be hauled to an end user’s be removed from the field, usually to satellite storage to the processing plant. facility and a new van will be moved the field-side in the first operation of the Adding up all the costs, corn stover is into position at the chipper. The process actual harvest, following which they estimated to cost $88 per dry ton might change in the future as baling would then be hauled to a satellite delivered to the cellulosic biofuel plant. systems become economically feasible facility for intermediate storage. For our A more detailed discussion of our corn or as roll-off containers are proven as a analysis we assumed that bales would stover feedstock cost analysis is way to handle logging slash. At present, then be hauled by truck and trailer to contained in Chapter 4.1 of the DRIA. most of the chipping for biomass the processing plant on an as needed Energy crops such as switchgrass and production is done in connection with basis. miscanthus would be harvested, baled, forest thinning treatments as part of a The small grain straws (wheat, rice, stored and transported very similar to forest fire prevention strategy. The oats, barley, sorghum) are cut near the crop residues. Because of their higher major problem associated with ground at the time of grain harvest and production density per acre, though, we collecting logging residues and biomass thus likely won’t require further would expect that the ‘‘farm gate’’ costs from small trees is handling the material mowing or shredding. They will likely to be slightly lower than crop residues in the forest before it gets to the chipper. need to be raked into a windrow prior (we estimate the costs to be about $1 per Specially-built balers and roll-off to baling. Because small grain straws dry ton lower). Also, the higher containers offer some promise to reduce this cost. Whether the material is have been baled and stored for many production density would allow for years, we don’t expect unusual collected from a forest thinning fewer secondary storage facilities requirements for handling these operation or a commercial logging compared to crop residue and a shorter residues. Their harvest and storage costs operation, chips from residues will be transportation distance. For example, will likely be less than those for corn dirty and will require screening or some we estimate that switchgrass would stover, but their overall quantity is type of filtration at the end-user’s require less than 30 secondary storage much less than corn stover (corn stover facility.440 facilities which would help to lower the makes up about 71% of all the crop Results from a study in South Georgia feedstock costs for a 100 million gallon residues), so we don’t expect their lower show that under the right conditions, a per year plant compared to crop costs to have, individually or small chipper could be added to a larger residues. As a result the secondary collectively, a huge effect on the overall operation to obtain additional chip storage and transportation costs are feedstock costs. Thus, we project that production without adversely impacting estimated to be $9 per ton lower than for several years, the feedstock costs roundwood production, and that the crop residue such as corn stover. Thus, will be largely a function of the cost to chips could be produced from limbs and we estimate that cellulosic feedstock harvest, store, and haul corn stover. tops of harvested trees at costs ranging costs sourced from switchgrass would For the crop residues, we relied on from $11 per ton and up. Harvesting be about $78 per dry ton. Chapter 4.1 of the FASOM agricultural cost model for understory (the layer formed by grasses, the DRIA contains a more in-depth farm harvesting and collection costs. shrubs, and small trees under the discussion of the feedstock costs for FASOM estimates it would cost $33 per canopy of larger trees and plants) for use energy crops such as switchgrass. dry ton to mow, rake, bale, and field in making fuel chips was estimated to haul the bales and replace nutrients. We Forestry Residue be about $1 per ton more expensive. added $10 per dry ton as a farmer Per-ton costs decrease as the volume payment, which we believe is a Harvest and transport costs for woody chipped increases per acre. Some necessary reimbursement to farmers to biomass in its different forms vary due estimates suggest that if no more than 10 cover their costs associated with this to tract size, tree species, volumes loads of roundwood are produced before additional harvest. Thus, $43 per dry removed, distance to the wood-using/ a load of chips is made, that chipper- ton covers the cost of making the crop storage facility, terrain, road condition, modified system could break even. Cost residue available at the farm gate. This and other many other considerations. projections suggest that removing only farm gate cost could be lower if new There is a significant variation in these limbs and tops may be marginal in equipment is developed that would factors within the United States, so terms of cost since one load of chips is allow the farmer to harvest the corn timber harvest and delivery systems produced for about every 15 loads of stover at the same time as the corn. We must be designed to meet constraints at roundwood. also conducted our own independent the local level. Harvesting costs also Instead of conducting our own analysis of the farm gate feedstock costs depend on the type of equipment used, detailed cost estimate for making forest for corn stover, and our farm gate cost season in which the operation occurs, residue chips available at the edge of the estimate for stover feedstock is very along with a host of other factors. Much harvested forests, we instead relied similar to FASOM’s. For the steps of the forest residue is already being upon the expertise of the U.S. Forest involved in moving the corn stover from harvested by logging operations, or is Service. The U.S. Forest Service the farm gate to the cellulosic ethanol available from milling operations. provided us a cost curve for different plant, we relied upon our own cost However, the smaller branches and categories of forest residue, including analysis. Our cost analysis estimates smaller trees proposed to be used for logging residue, other removals (i.e., that an additional $32 per dry ton biofuel production are not collected for clearing trees for new building would be required to haul the bales to their lumber so they are normally left construction), timberland trimmings satellite storage, pay for the storage behind. Thus, this forest residue would facilities, and grind the residue. Because have to be collected and transported out 440 Personal Communication, Eini C. Lowell, of the low density of corn stover and of the forest, and then most likely Research Scientist, USDA Forest Service.

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(forest fire prevention strategy) and mill plant and cause an expensive waste probably require sorting at the residues. They recommended that we stream for biofuel producers. generation site—the home or business— choose $45 per dry ton as the price Thus, accessing sorted MSW would which would likely be more costly since point for our cost analysis. This seemed likely be a requirement for firms many more people in society would reasonable since this price point was planning on using MSW for producing then have to be involved and special roughly the same as the farm gate crop cellulosic biofuels. In a confidential trucks would need to be used. Also, residue discussed above, and so we conversation, a potential producer who widespread participation is difficult used this price point for our analysis. plans to use MSW to produce ethanol when a change in human behavior is Assuming that the wood chips would be indicated that their plant plans are required as some may not be so willing ground further in the field adds an based on obtaining cellulosic biowaste to participate. Offering incentives could additional $11 per dry ton to the which has already been sorted at the help to speed the transition to curbside feedstock cost. waste source (e.g., at the curbside, recycling (i.e., charging a fee for Delivery of woody biomass from the where the refuse hauler picks up waste nonsorted waste, or paying a small harvesting site to a conversion facility, already sorted by the generating home- amount for sorted tree trimmings and like delivery of more conventional forest owner or business). For example, in a construction and demolition waste). products, accounts for a significant tract of homes, one refuse truck would Assuming that curbside sorting is portion of the delivered cost. In fact, pick up glass, plastic, and perhaps other involved, at least in a minor way, total transportation of wood fiber (including types of waste destined for a specific sorting costs might be in the $30 to $40 hauling within the forest) accounts for disposal depot, whereas a different per ton range. We request comment on about 25 to 50% of the total delivered truck would follow to pick up wood, the costs incurred for sorting cellulosic costs and highly depends on fuel prices, paper, and other cellulosic materials to material from the rest of MSW waste. haul distance, material moisture be hauled to a depot that supplies an These sorting costs would be offset by content, and vehicle capacity and ethanol plant. However, only a small the cost savings for not disposing of the utilization. Also, beyond a certain fraction of the MSW generated today is waste material. Most landfills charge distance, transportation becomes the sorted at the curbside. tipping fees, the cost to dump a load of limiting factor and the costs become Another alternative would be to sort waste into a landfill. In the United directly proportional to haul the waste either at a sorting facility, or States, the national average nominal distance.441 Based on our own cost at the landfill, prior to dumping. There tipping fee increased fourfold from 1985 analysis, we anticipate that hauling are two prominent options here. The to 2000. The real tipping fee almost woody biomass to plant will cost about first is that there is no sorting at the doubled, up from a national average (in $14 per ton, for a total delivered price waste creation site, the home or 1997 dollars) of about $12 per ton in of about $70 per dry ton. Chapter 4.1 of business, and thus a single waste stream 1985 to just over $30 in 2000. Equally the DRIA contains a more detailed must be sorted at the facility. This important, it is apparent that the tipping discussion on the feedstock costs for operation would likely be done by hand fees are much higher in densely forest residue. or by automated equipment at the populated regions and for areas along facility. To do so by hand is very labor Municipal Solid Waste the U.S. coast. For example, in 2004, the intensive and somewhat slower than tipping fees were $9 per ton in Denver Millions of tons of municipal solid using an automated system. In most and $97 per ton in Spokane. Statewide waste (MSW) continue to be disposed of cases the ‘by-hand’ system produces a averages also varied widely, from $8 a in landfills across the country, despite slightly cleaner stream, but the high cost ton in New Mexico to $75 in New recent large gains in waste reduction of labor usually makes the automated Jersey. Tipping fees ranged from $21 to and diversion. The biomass fraction of system more cost-effective. Perhaps the 98 per ton in 2006 for MSW and $18/ this total stream represents a potentially best approach for low cost and a clean ton to $120/ton for construction and significant resource for renewable stream is the combination of hand demolition waste. It is likely that the energy (including electricity and sorting with automated sorting. tipping fees are highest for biofuels). Because this waste material is The third option is a combination of contaminated waste that requires the already being generated, collected and the two which requires that there is at disposal of the waste in more expensive transported (it would only need to be least some sorting at the home or waste sites that can accept the transported to a different location), its business which helps to prevent contaminated waste as opposed to a use is likely to be less expensive than contamination of the waste material, but composting site. However, this same other cellulosic feedstocks. One then the final sorting occurs contaminated material would probably important difficulty facing those who downstream at a sorting site, or at the not be desirable to biofuel producers. plan to use MSW fractions for fuel landfill. Presuming that only the production is that in many places, even We have little data and few estimates noncontaminated cellulosic waste (yard today, MSW is a mixture of all types of for the cost to sort MSW. One estimate trimmings, building construction and wastes, including biomaterials such as generated by our Office of Solid Waste demolition waste and some paper) is animal fats and grease, tin, iron, for a combination of mechanically and collected as feedstocks for biofuel aluminum, and other metals, painted manually sorting a single waste stream plants, the handling and tipping fees are woods, plastics, and glass. Many of downstream of where the waste is likely much lower, in the $30 per ton these materials can’t be used in generated puts the cost in the $20 to $30 range.442 biochemical and thermochemical per ton range. There is a risk, though, The avoidance of tipping fees, ethanol production, and, in fact, would that the waste stream could still be however, is a complex issue since inflate the transportation costs, impede contaminated and this would increase landfills are generally not owned by the operations at the cellulosic ethanol the cost of both transporting the municipalities anymore. Both large and material and using this material at the small municipalities recognized their 441 Ashton, S.; B. Jackson; R. Schroeder. Cost biofuel plant due to the toxic ash Factors in Harvesting and Transporting Woody produced which would require disposal Biomass, 2007. Module 4: Introduction to 442 We plan on conducting a more thorough Harvesting, Transportation, and Processing:: Fact at a toxic waste facility. If a less analysis of tipping fees by waste type for the final Sheet 4.7. contaminated stream is desired it would rulemaking.

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inability to handle the new and complex lower overall cost and the production of with sizable trailers to make transport solid waste regulations at a reasonable the most cost-effective types of biofuels. more cost-effective. We estimate that the cost. Only 38 out of the 100 largest cities We request comment on the costs cost to transport the cellulosic biomass own their own landfills. To deal with avoided for diverting cellulosic material sourced from MSW to the biofuel plant the solid waste, large private companies from landfills. be $15 per ton. built massive amounts of landfill Once the cellulosic biomass has been A significant advantage of MSW over capacity. The economic incentive is for sorted from the rest of MSW, it would other cellulosic biomass is that it can be private landfill operators to fill their have to be transported to the biofuels generated year-round in many parts of landfills with garbage as early as plant. Transporting is different for MSW the U.S. If a steady enough stream of possible to pay off their capital biomass compared to forest and crop this material is available, then investment (landfill site) quickly. Also, residues. Forest and crop residues are secondary storage would not be the longer the landfill is operating the collected from forests and farms, which necessary, thus avoiding the need to greater is its exposure to liability due to are both rural sites, and transported to install secondary storage. We assumed leakages and leaching. Furthermore, the biofuel plant which likely is located that no secondary storage costs would landfills can more cost-effectively at a rural site. The trucks which be incurred for MSW-sourced cellulosic transport the forest and crop residues manage the waste as the scale of the biomass. landfill is enlarged. As a result, there are can be large over-the-road trucks which fewer landfills and landfill owners, and can average moderate speeds because of The total costs for MSW-sourced the lower amount of traffic that they cellulosic biomass is estimated to be $30 an expansion of market share by large ¥ private waste management firms, thus experience. Conversely, MSW is being $40 per ton for sorting costs, a savings decreasing the leverage a biofuel collected throughout urban areas and of $30 per ton for tipping costs avoided, producer may have.443 Many waste would have to transported through $15 per ton for transportation costs and management firms have been proactive those urban areas to the plant site. If the $11 per ton for grinding the cellulose to by using the waste material to produce cellulosic biomass is being collected at prepare it as a feedstock—resulting in a biogas, another fuel type that would curbside, it would likely be collected in total feedstock cost of $26 to $36 per qualify under RFS2. Yet other parties more conventional refuse trucks. If the ton. In our cost analysis, we assumed an interested in procuring MSW are waste- plant is nearby, then the refuse trucks average cost of $31 per ton. Chapter 4.1 to-energy (WTE) facilities, which burn could transport the cellulosic biomass of the DRIA contains a more detailed as much waste material as possible to directly to the plant. However, if the discussion of the feedstock costs for produce electricity. These three plant is located far away from a portion MSW. different interests may compete for of the urban area, then the refuse trucks Table VIII.A.1–2 below summarizes MSW for producing biofuels. This would probably have to be offloaded to major cost components for each competition is desirable, resulting in more conventional over-the-road trucks cellulosic feedstock.

TABLE VIII.A.1–2—SUMMARY OF CELLULOSIC FEEDSTOCK COSTS [$53/ton crude oil costs]

Ag residue Switchgrass Forest residue MSW 60% of total feedstock 1% of total feedstock 25% of total feedstock 14% of total feedstock

Mowing, Raking, Baling, Hauling, Mowing, Raking, Baling, Hauling, Harvesting, Hauling to Forest Sorting, Contaminant Removal, Nutrients and Farmer Payment Nutrients and Farmer Payment Edge, Chipping $45/ton. Tipping Fees Avoided $0–$10/ $43/ton. $42/ton. ton. Hauling to Secondary Storage, Hauling to Secondary Storage, Grinding, Hauling to Plant $25/ton Grinding, Hauling to Plant $26/ Secondary Storage, Hauling to Secondary Storage, Hauling to ton. Plant $45/ton. Plant $37/ton.

Total $88/ton ...... Total $77/ton ...... Total $70/ton ...... Total Avg $31/ton.

Weighting the cellulosic feedstock ethanol. At a DOE sponsored workshop Notwithstanding the fact that all costs by their supply quantities results in 2005, a DOE biochemical expert cellulosic biomass is made up of some in an average cellulosic feedstock cost of commented that the challenges of combination of cellulose, hemicellulose, $71 per ton which we used at the converting cellulosic biomass to ethanol lignin, and trace amounts of other reference crude oil price of $53/bbl. We are very closely linked to solving the organic and inorganic chemicals and estimate that this average cost increases problems associated with both the minerals, there are significant to $76 per ton at the high crude oil price hydrolysis and the fermentation of the differences among the molecular of $92/bbl due to more expensive carbohydrates in the feedstocks. He then structures of different plants. For harvesting and transportation costs. stated that the resistance of cellulosic example, a corn stalk is relatively ii. Production Costs feedstock to bioprocessing will remain lighter, more porous, and much more the central problem and will likely be flexible than a tree branch of similar In this section, we discuss the cost to the limiting factor in creating an diameter. The tree branch (in most biochemically and thermochemically economy based on cellulosic ethanol cases) is harder or denser and less convert cellulosic feedstocks into fuel production.444 porous throughout the stem and the

443 Osamu Sakamoto, The Financial Feasibility requirement for the degree of Master of Science, Roadmap Resulting from the Biomass to Biofuels Analysis of Municipal Solid Waste to Ethanol Department of Agricultural Economics, 2004 Workshop Sponsored by the U.S. Department of Conversion, Michigan State University, Plan B 444 Breaking the Biological Barriers to Cellulosic Energy, December 7–9, 2005, Rockville, Maryland; Master Research Paper in partial fulfillment of the Ethanol: A Joint Research Agenda, A Research DOE/SC–0095, Publication Date: June 2006

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outside or bark is less permeable and poplars will preferentially be fed to Because of the complexities in flexible. thermochemical units. digesting cellulosic biomass, the These differences among the Biochemically, it is much more residence time is longer to digest the difficult to convert cellulosic plant cellulosic feedstock plant structures, cellulose and perform the fermentation. matter into ethanol than it is to convert e.g., density, rigidity, hardness, etc., Thus, the cellulosic plant capital costs the starch from corn grain into ethanol. suggest that different conversion are higher than those of corn (starch) Corn starch consists of long ethanol plants. However, because corn processes, namely biochemical and polysaccharide chains that are weakly is a food source with an intrinsic food thermochemical may be necessary to attracted to each other, quite flexible, value, corn ethanol’s feedstock costs are convert into ethanol as much of the and tend to curl up to form tiny particle- almost two times higher per ton (more available plant material as possible. For like bundles. This loose, flexible than two times higher in the case for example, if wood chips, e.g., poplar structure permits water and water-borne cellulose from MSW) than the trees, are to be treated biochemically, hydrolyzing enzymes to easily penetrate feedstocks of a cellulosic ethanol plant. the chips must be reduced in size to 1- the polymer during the process stage It is conceivable that depending on the mm or less in order to increase the known as hydrolysis. Once hydrolyzed, cellulosic plant technology which surface area for contact with acid, the corn starch sugar residues are easily drives its capital and operating costs enzymes, etc. Breaking up a 5-in stem to fermentable. that cellulosic ethanol plants’ lower such small pieces would consume a The hydrolysis of cellulosic biomass feedstock costs could offset its higher large amount of energy. On the other is much more challenging. Unlike capital costs resulting in lower hand, processing corn stover into starch, cellulosic plant matter is made production costs than corn-based cellulosic ethanol has a maximum size up of three main constituents: Cellulose, ethanol. of up to 1.5 inches (28 millimeters) in hemicellulose, lignin, and minor The National Renewable Energy length because corn stover is so thin.445 amounts of various other organic and Laboratory has been evaluating the state By comparison, the particle size inorganic chemicals. of biochemical cellulosic plant requirement for a thermochemical Cellulose, the major constituent, is a technology over the past decade or so, process is around 10-mm to 100-mm in polymer made up of only b-linked and it has identified principal areas for diameter.446 Because of this, we believe glucose monosaccharides. This improvement. In 1999, it released its feedstocks such as corn stover, wheat molecular arrangement allows intra- first report on the likely design concept and rice straw, and switchgrass will molecular hydrogen bonds to develop for an nth generation biochemical likely be feedstocks for biochemical within each monomer and inter- cellulosic ethanol plant which projected processes. Biochemical plants will molecular hydrogen bonds to develop the state of technology in some future likely be constructed in those areas of between adjacent polymers to form year after the improvements were the country where these feedstocks are tight, rigid, strong, mostly straight adopted. In 2002, NREL released a most abundant, e.g., the corn belt and polymer bundles that are insoluble in follow-up report which delved deeper upper Midwest. On the other hand, water and resistant to chemical attack. into biochemical plant design in areas thermochemical plants will likely be The net result of the structural that it had identified in the 1999 report constructed in those areas of the country characteristics makes cellulose much as deserving for additional research. Again, the 2002 report estimated the where forest thinnings, forest fuel- more difficult to hydrolyze than is ethanol production cost for an nth removal operations, lumber production, hemicellulose. generation biochemical cellulosic and paper mills are most predominant, Hemicellulose contributes significantly to the total fermentable ethanol plant. These reports not only e.g., the South. Thermochemical or sugars of the lignocellulosic biomass. helped to inform policy makers on the gasification units could be constructed Unlike cellulose, hemicellulose is likely capability and cost for near starch or biochemical cellulosic chemically heterogeneous and highly biochemically converting cellulose to plants in order to take advantage of substituted. Compared to cellulose, this ethanol, but it helped to inform byproduct streams. We expect branching renders it amorphous and biochemical technology researchers on switchgrass (SG) will preferentially be relatively easy to hydrolyze to its the most likely technology fed to biochemical units since it is constituent sugars.447 improvements that could be similar to straw, whereas short-rotation Lignin, the third principle incorporated into these plant designs. woody crops (SRWC) such as willows or component, is a complex, cross-linked To comply with the RFS 2 polymeric, high molecular weight requirements, NREL assessed the likely 445 A. Aden, M. Ruth, K. Ibsen, J. Jechura, K. substance derived principally from state of biochemical cellulosic plant Neeves, J. Sheehan, and B. Wallace, National technology over the years that the RFS Renewable Energy Laboratory (NREL); L. Montague, coniferyl alcohol by extensive A. Slayton, and J. Lukas Harris Group, Seattle, condensation polymerization. While standard is being phased in. The Washington, Ethanol Process Design and cellulose and hemicellulose contribute specific years assessed by NREL were Economics Utilizing Co-Current Dilute Acid to the amount of fermentable sugars for 2010, 2015 and 2022. The year 2010 Prehydrolysis and Enzymatic Hydrolysis for Corn technology essentially represents the Stover; June 2002; NREL is a U.S. Department of ethanol production, lignin is not so Energy Laboratory operated by Midwest Research readily digestable, but can be combusted status of today’s biochemical cellulosic Institute • Battelle • Bechtel; Contract No. DE– to provide process energy in a plants. The year 2015 technology AC36–99–GO10337. biochemical plant or used as feedstock captures the expected near-term 446 Lin Wei, Graduate Research Assistant, Lester to a thermochemical process.448 improvements including the rapid O. Pordesimo, Assistant Professor, Willam D. improvements being made in enzyme Batchelor, Professor, Department of Agricultural and Biological Engineering, Mississippi State 447 Hans P. Blaschek, Professor and Thaddeus C. technology. The year 2022 technology University, MS 39762, USA, Ethanol Production Ezeji, Research Assistant, Department of Food captures the cost of mature biochemical from Wood: Comparison of Hydrolysis Science and Human Nutrition, University of cellulosic plant technology. Table Fermentation and Gasification Biosynthesis, Paper Illinois, Urbana-Champaign. Science of Alternative VIII.A.1–3 summarizes NREL’s Number: 076036, Written for presentation at the Feedstocks. 2007 ASABE Annual International Meeting. 448 Glossary of Biomass Terms, National estimated and projected production Minneapolis Convention Center, Minneapolis, MN, Renewable Energy Laboratory, Golden, CO. http:// costs for biochemical cellulosic ethanol 17–20 June 2007. www.nrel.gov/biomass/glossary.html. plant technology in these three years

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reflecting our average feedstock costs and adjusting the capital costs to a 7 percent before tax rate of return.

TABLE VIII.A.1–3—BIOCHEMICAL CELLULOSIC ETHANOL PRODUCTION COSTS PROVIDED BY NREL

Year technology ...... 2010 2015 2022 Plant Size MMgal/yr ...... 56 69 71 Capital Cost $MM ...... 232 220 199

$MM/yr c/gal $MM/yr c/gal $MM/yr c/gal

Capital Cost 7% ROI before taxes ...... 25 46 24 35 22 31 Fixed Costs ...... 9 16 9 12 8 12 Feedstock Cost...... 55 99 55 79 55 77 Other raw matl. costs ...... 17 30 4 5 16 16 Enzyme Cost...... 18 32 7 10 5 8 Enzyme nutrients ...... 8 14 2 3 2 2 Electricity ...... ¥6 ¥10 ¥7 ¥9 ¥12 ¥16 Waste disposal...... 1 2 3 4 1 1

Total Costs...... 127 229 96 139 84 131

NREL’s projected improvements in depends heavily it. Good progress has costs. It is also estimated that less production costs over time are based on been toward that end during the past nutrients would be needed to maintain improved reaction biochemistry. Before few years.449 the enzymes reactivity. Because the discussing the expected improvements Also during the past few years, production volume of ethanol will in the reaction biochemistry, we will researchers have been developing ways increase relative to the quantity of discuss the reaction pathway for to combine saccharification and feedstock, it lowers the operating costs cellulosic biochemical. fermentation into a single step through per gallon of ethanol. Between these There are two primary reaction steps the use of enzyme/microbe cocktails. various effects, the per-gallon costs for in a biochemical cellulosic ethanol DOE and the National Renewable producing cellulosic ethanol through plant. The first is hydrolysis. Hydrolysis Energy Laboratory (NREL) have also the biochemical pathway are expected breaks the polysaccharides into their supported research into more efficient, to decrease dramatically. It is through sugar residues. The pretreated slurry is less costly enzymes for SSF. With their these expected improvements that NREL fed to a hydrolysis reactor; there may be support, a less expensive, more efficient has estimated reduced production costs multiple reactors, depending on the enzyme cocktail for cellulosic biomass for biochemical cellulosic ethanol desired production rate. Dilute sulfuric fermentation has been developed.450 plants. Others have also reported some success acid is used to hydrolyze, primarily, the Thermochemical conversion is in co-fermenting glucose and xylose.451 hemicellulose polysaccharides, xylan, another reaction pathway which exists mannan, arabinan, and galactan, to As the biochemical enzymatic pathway is streamlined using more cost- for converting cellulose to ethanol. produce the mixed sugars. Very little of Thermochemical technology is based on the cellulose polysaccharide, glucan, is effective enzymes, and as these enzymes can more comprehensively saccarify the heat and pressure-based gasification hydrolyzed. or pyrolysis of nearly any biomass The second is saccharification and co- and ferment the cellulose, the conversion fraction of the cellulose to feedstock, including those we’ve fermentation. Using a cellulase enzyme highlighted as likely biochemical cocktail, saccharification of the ethanol will increase and the conversion time will decrease. An important benefit feedstocks. The syngas is converted into cellulose to glucose occurs first at an mixed alcohols, hydrocarbon fuels, elevated temperature to take advantage for these efficiency improvements is that the number and size of reaction chemicals, and power. A of increased enzyme activity, which thermochemical unit can also reduces the quantity of required enzyme vessels decrease, leading to lower capital costs and lower fixed operating complement a biochemical processing as well as the reaction time. Following plant to enhance the economics of an cellulose saccharification, both the 449 Purdue yeast makes ethanol from agricultural integrated biorefinery by converting glucose and xylose sugars are co- lignin-rich, non-fermentable material fermented. Although xylan, the waste more effectively, Purdue News, June 28, 2004 http://www.purdue.edu/UNS/html4ever/2004/ left over from high-starch or cellulosic. hemicellulose polysaccharide, is more 040628.Ho.ethanol.html. NREL has not yet estimated the cost of easily hydrolyzed than glucan (cellulose 450 GENENCOR LAUNCHES FIRST EVER COMMERCIAL ENZYME PRODUCT FOR thermochemically converting cellulose polysaccharides), the xylose sugar is to ethanol, so we did not include a cost more difficult to ferment than the CELLULOSIC ETHANOL, ROCHESTER, NY, World- Wire, October 22, 2007 Copyright© 2007. All rights estimate using this potential conversion glucose sugar. Different microbes as reserved. World-Wire is a resource provided by pathway in our analysis and based our well as different residence times and Environment News Service. http://world-wire.com/ news/0710220001.html. cost analysis entirely on the process conditions are required for each. 452 451 biochemical route. However, one Therefore, it may be necessary to Ali Mohagheghi, Kent Evans, Yat-Chen Chou, and Min Zhang, Biotechnology Division for Fuels separate the glucose and xylose and Chemicals, National Renewable Energy 452 NREL has authored a thermochemical report: monomers before fermentation. Laboratory, Golden, CO 80401, Co-fermentation of Phillips, S Thermochemical Ethanol via Indirect Because xylan can make up as much Glucose, Xylose, and Arabinose by Genomic DNA– Gasification and Mixed Alcohol Synthesis of as 25% of plant matter it is imperative Integrated Xylose/Arabinose Fermenting Strain of Lignocellulosic Biomass; April, 2007, which does Zymomonas mobilis AX101, Applied Biochemistry provide a cost estimate. However, this report only that most of be available for ethanol and Biotechnology Vols. 98–100, 2002, Copyright© hypothesized how a thermochemical ethanol plant production; the economic viability of 2002 by Humana Press Inc., All rights of any nature could achieve production costs at $1 per gallon, and biochemically produced ethanol whatsoever reserved. Continued

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report estimated that the costs are As discussed in Chapter 4 of the costs are for hydrous or anhydrous similar for converting cellulose to DRIA, our literature search of ethanol. Yet another difference could be ethanol either through either the production costs for sugar cane ethanol the slate of products the plant is biochemical or thermochemical routes. in Brazil indicates that production costs producing, for example, future plants Thus, we believe that our cellulosic tend to range from as low as $0.57 per may be dedicated ethanol facilities ethanol costs are representative of both gallon of ethanol to as high as $1.48 per while others involve the production of technologies. In Section VIII.A.3 below, gallon of ethanol. This large range for both sugar and ethanol in the same we discuss the costs for a estimating production costs is partly facility. Due to economies of scale, thermochemical route for producing due to the significant variations over production costs are also typically diesel fuel, often referred to as biomass- time in exchange rates, costs of smaller per gallon for larger facilities. to-liquids (BTL) process. sugarcane and oil products, etc. For The study by OECD (2008) entitled example, earlier estimates may ‘‘Biofuels: Linking Support to c. Imported Sugarcane Ethanol underestimate current crude and natural Performance’’, appears to provide the gas costs which influence the cost of most recent and detailed set of We based our imported ethanol fuel feedstock as well as energy costs at the assumptions and production costs. As costs on cost estimates of sugarcane plant. Another possible difference in such, our estimate of sugarcane ethanol in Brazil. Generally, ethanol production cost estimates is whether or production costs primarily relies on the from sugarcane produced in developing not the estimates are referring to assumptions made for the study, which countries with warm climates is much hydrous or anhydrous ethanol. Costs for are shown in Table VIII.A.1–4. The cheaper to produce than ethanol from anhydrous ethanol (for blending with estimate assumes an ethanol-dedicated grain or sugar beets. This is due to gasoline) are typically several cents per mill and is based off an internal rate of favorable growing conditions, relatively gallon higher than hydrous ethanol (for return of 12%, a debt/equity ratio of low cost feedstock and energy inputs, use in dedicated ethanol vehicles in 50% with an 8% interest rate and a and other cost reductions gained from Brazil).453 It is not entirely clear from selling of surplus power at $57 per years of experience. the majority of studies whether reported MWh.

TABLE VIII.A.1–4—COST OF PRODUCTION IN A STANDARD ETHANOL PROJECT IN BRAZIL

Sugarcane Productivity ...... 71.5 t/ha. Sugarcane Consumption ...... 2 million tons/year. Harvesting days ...... 167. Ethanol productivity ...... 85 liters/ton (22.5 gal/ton). Ethanol production ...... 170 million liters/year (45 MGY). Surplus power produced ...... 40 kWh/ton sugarcane. Investment cost in mill ...... USD 97 million. Investment cost for sugarcane production ...... USD 36 million. O & M (Operating & Maintenance) costs ...... $0.26/gal. Sugarcane costs ...... $0.64/gal. Capital costs ...... $0.49/gal.

Total production costs ...... $1.40/gal.

The estimate above is based on the be made in the future. As the majority 2025.456 Sugarcane quality is also costs of producing ethanol in Brazil on of learning may have already occurred, expected to improve, with sucrose average, today. However, we are it is likely that the decline in sugarcane content growing from 14.5% to 17.3% interested in how the costs of producing ethanol costs will be less drastic as the in 2025.457 All productivity gains ethanol will change by the year 2022. production process and cane practices together could allow the increase in the Although various cost estimates exist, have matured. This is in contrast to production of ethanol from 6,000 liters/ analysis of the cost trends over time younger technologies such as those used ha (at 85 liters/ton sugarcane in 2005) to shows that the cost of producing ethanol to produce cellulosic biofuels which 10,400 liters/ha (at 109 liters/ton in Brazil has been steadily declining could likely have larger cost reductions sugarcane) by 2025.458 Although not due to efficiency improvements in cane over the same period of time. In fact, reflected here, there could also be cost production and ethanol conversion there are few perspectives for and efficiency improvements related to processes. Between 1980 and 1998 (total substantial efficiency gains with the feedstock collection, storage, and span of 19 years) ethanol cost declined sugarcane processing technology. distribution. by approximately 30.8%.454 This change Industrial efficiency gains are already at Assuming that ethanol productivity in the cost of production over time in about 85% and are expected to increase increases to 100 liters/ton by 2015 and Brazil is known as the ethanol cost to 90% in 2015.455 Most of the 109 liters/ton by 2025, sugarcane costs ‘‘Learning Curve’’. productivity growth is expected to come are be expected to decrease to The change in ethanol costs will from sugarcane production, where approximately $0.51/gal from $0.64/gal depend on the likely productivity gains yields are expected to grow from the since less feedstock is needed to and technological innovations that can current 70 tons/ha, to 96 tons/ha in produce the same volume of ethanol

thus it could not be relied upon for any part of our 454 Goldemberg, J. as sited in Rothkopf, Garten, BNDES, 2006. As sited in OECD, ‘‘Biofuels: Linking real-world program cost analysis. ‘‘A Blueprint for Green Energy in the Americas,’’ Support to Performance,’’ ITF Round Tables No. 453 International Energy Agency (IEA), ‘‘Biofuels 2006. 138, March 2008. for Transport: An International Perspective,’’ 2004. 455 Unicamp ‘‘A Expansa¯o do Proalcool como 456 Ibid. Programa de Desenvolvimento Nacional’’. 457 Ibid. Powerpoint presentation at Ethanol Seminar in 458 Ibid.

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using the estimates from Table VIII.A.1– from manual harvesting to mechanical It is also important to note that 4, above. We assumed a linear decrease harvesting. ethanol production costs can increase if between data points for 2005, 2015, and As more straw is expected to be the costs of compliance with various 2025. Adding operating ($0.26/gal) and collected at future sugarcane ethanol sustainability criteria are taken into capital costs ($0.49/gal) from Table facilities, there is greater potential for account. For instance, using organic or VIII.A.1–4, to a sugarcane cost of $0.51/ production of excess electricity. The green cane production, adopting higher gal, total production costs are $1.26/gal production costs estimates in the OECD wages, etc. could increase production in 2022. costs for sugarcane ethanol.460 Such Brazil sugarcane producers are also study assumes an excess of 40kWh per ton sugarcane, however, future sustainability criteria could also be expected to move from burned cane applicable to other feedstocks, for manual harvesting to mechanical sugarcane plants are expected to 459 example, those used in corn- or soy- harvesting. As a result, large amounts of produce 135 kWh per ton sugarcane. Assuming excess electricity is sold for based biofuel production. If these straw are expected to be available. Costs measures are adopted in the future, of mechanical harvesting are lower $57 per MWh, the production of 95 kWh production costs will be higher than we compared to manually harvesting, per ton would be equivalent to a credit have projected. therefore, we would expect costs for of $0.22 per gallon ethanol produced. sugarcane to decline as greater We did not include this potential In addition to production costs, there sugarcane producers move to additional credit from greater use of are also logistical and port costs. We mechanical harvesting. However, it is bagasse and straw in our estimates at used the report from AgraFNP to important to note that diesel use this time. Our cost estimates do include, estimate such costs since it was the only increases with mechanical harvesting, however, the excess electricity resource that included both logistical and with diesel fuel prices expected to produced from bagasse that is currently and port costs. The total average increase in the future, costs may be used today (40 kWh/ton). We are asking logistical and port cost for sugarcane higher than expected. Therefore, we for comment on whether such a credit ethanol is $0.19/gal and $0.09/gal, have not assumed any changes to should be included in our production respectively, as shown in Table harvesting costs due to the switchover cost estimates. VIII.A.1–5.

TABLE VIII.A.1–5—IMPORTED ETHANOL COST AT PORT IN BRAZIL (2006 $)

Logistical Region costs U.S. Port cost U.S. ($/gal) ($/gal)

NE Sao Paulo ...... 0.146 0.094 W Sao Paulo ...... 0.204 0.094 SE Sao Paulo ...... 0.100 0.094 S Sao Paulo ...... 0.170 0.094 N Parana ...... 0.232 0.094 S Goias ...... 0.328 0.094 E Mato Grosso do sul ...... 0.322 0.094 Triangulo mineiro ...... 0.201 0.094 NE Cost ...... 0.026 0.058 Sao Francisco Valley ...... 0.188 0.058

Average ...... 0.192 0.087

Total fuel costs must also include the countries, it should be noted that there arriving in the U.S. from Caribbean cost to ship ethanol from Brazil to the would be some additional cost for Basin Initiative (CBI) countries are U.S. In 2006, this cost was estimated to shipping ethanol from Brazil to the exempt from the tariff. In addition, all be approximately $0.15 per gallon of Caribbean country. Therefore, we imports are given an ad valorem tax of ethanol.461 Costs were estimated as the assume all costs for shipping ethanol to 2.5% for undenatured ethanol and a difference between the unit value cost of be $0.15 per gallon regardless of the 1.9% tax for denatured ethanol. We insurance and freight (CIF) and the unit country importing ethanol to the U.S. assumed an ad valorem tax of 2.5% for value customs price. The average cost to Total imported ethanol fuel costs (at all ethanol. Thus, including tariffs and ship ethanol from Caribbean countries U.S. ports) prior to tariff and tax for ad valorem taxes, the average cost of (e.g., El Salvador, Jamaica, etc.) to the 2022 is shown in Table VIII.A.1–6, at imported ethanol is shown in Table U.S. in 2006 was approximately $0.12 $1.69/gallon. Direct Brazilian imports VIII.A.1–7 in the ‘‘Brazil Direct w/Tax & per gallon of ethanol. Although this may are also subject to an additional $0.54 Tariff’’ and ‘‘CBI w/Tax’’ columns for seem to be an advantage for Caribbean per gallon tariff, whereas those imports 2022.

459 Macedo. I.C., ‘‘Green house gases emissions in 460 Smeets E, Junginger M, Faaij A, Walter A, possibilities of certified production,’’ Biomass and the production and use of ethanol from sugarcane Dolzan P, Turkenburg W, ‘‘The sustainability of Bioenergy, 2008. in Brazil: The 2005/2006 Averages and a Prediction Brazilian ethanol—An Assessment of the 461 Official Statistics of the U.S. Department of for 2020,’’ Biomass and Bioenergy, 2008. Commerce, USITC.

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TABLE VIII.A.1–6—AVERAGE IMPORTED ETHANOL COSTS PRIOR TO TARIFF AND TAXES IN 2022

Transport cost Sugarcane production cost Operating cost Capital cost Logistical cost Port cost from port to Total cost ($/gal) ($/gal) ($/gal) ($/gal) ($/gal) U.S. ($/gal) ($/gal)

0.51 ...... 0.26 0.49 0.19 0.09 0.15 1.69

TABLE VIII.A.1–7—AVERAGE IMPORTED ETHANOL COSTS IN 2022

Brazil direct w/tax & tariff Brazil direct ($/gal) ($/gal) CBI ($/gal) CBI w/tax ($/gal)

1.69 ...... 2.27 1.69 1.73

2. Biodiesel and Renewable Diesel TABLE VIII.A.2–1—PRODUCTION COST TABLE VIII.A.2–2—BIODIESEL FEED- Production Costs ALLOCATION FOR SOY BIODIESEL STOCK AND PRODUCTION COSTS Biodiesel and renewable diesel DERIVED FROM THIS ANALYSIS— USED IN THIS ANALYSIS (2006$)— production costs are primarily a Continued Continued function of the feedstock cost, and to a Contribu- much lesser extent, the capital and other Soy oil Yellow operating costs of the facility. tion to grease a Cost category cost a. Biodiesel (percent) Feed- Biodiesel production costs for this stock Capital & Facility ...... 4 $/lb $0.32 $0.22 rule were estimated using two versions Labor ...... 3 Bio- of a biodiesel production facility model Utilities ...... 1 die- obtained from USDA, one using a Includes acids, bases, methanol, catalyst. sel degummed soy oil as a feedstock and $/gal $2.75 $2.47 the other using yellow grease. The Soy oil costs were generated by the FASOM agricultural model (described a Includes corn oil extracted from thin biodiesel from yellow grease model stillage/DGS, rendered fats, recycled greases, includes the acid pre-treatment steps in more detail in Section IX.A). etc. required to utilize feedstocks with high Historically, the majority of biodiesel free fatty acid content. production in the U.S. has used soy oil, A co-product of transesterification is This production model simulates a 10 a relatively high-value feedstock, but a crude glycerin. With the upswing in million gallon per year plant operating growing fraction of biodiesel is being worldwide biodiesel production in a continuous flow transesterification made from yellow grease, the name recent years, its market price is process. USDA used the SuperPro given to reclaimed or highly-processed relatively low: In our modeling we Designer chemical process simulation oil (including corn oil extracted from assume its value to be $0.03/lb. As a software to estimate heat and material distillers’ grains) that is not suitable for result, the sale of this material as a co- flowrates and equipment sizing. use in food products. This material product only reduces biodiesel Outputs from this software were then typically sells for about 70% of the production cost by about $0.02/gal. combined in a spreadsheet with value of virgin soy oil. Conversion of b. Renewable Diesel equipment, energy, labor, and chemical yellow grease into biodiesel requires an costs to generate a final estimate of additional acid pretreatment step, and Renewable diesel is produced in one production cost. The model is described therefore the processing costs are higher of three general configurations: (1) A in a 2006 publication in Bioresource than for virgin soy oil (about $0.40/gal new standalone unit located within a Technology, peer-reviewed scientific at equal feedstock costs). Table VIII.A.2– refinery, (2) co-processing in an existing journal.462 Table VIII.A.2–1 shows the 2 shows the feedstock and biodiesel refinery diesel hydrotreater, or (3) a production cost allocation for the soy costs used in our cost analysis. standalone unit at a rendering plant or oil-to-biodiesel facility as modeled in another location outside of a refinery. the 2022 policy case. TABLE VIII.A.2–2—BIODIESEL FEED- We expect that the largest fraction of the STOCK AND PRODUCTION COSTS capacity for refinery installation will be produced using the co-processing TABLE VIII.A.2–1—PRODUCTION COST USED IN THIS ANALYSIS (2006$) ALLOCATION FOR SOY BIODIESEL method, as the production costs are lower than those for a new standalone DERIVED FROM THIS ANALYSIS Soy oil Yellow grease a unit in a refinery. Thus, we speculate Contribu- that about 50% of renewable diesel tion to Reference being produced by the refinery co- Cost category cost Case ...... processing route, 17% from a new stand (percent) Feed- alone unit at a refinery and 33% at stock rendering plants or as a new site Soy Oil ...... 87 $/lb $0.23 $0.16 Other Materials a ...... 5 Bio- installation. Recent business die- partnership and construction announcements related to renewable 462 Haas, M.J., A process model to estimate sel biodiesel production costs, Bioresource Technology $/gal $2.11 $1.99 diesel production (such as involving 97 (2006) 671–678. Policy Case ...... ConocoPhillips facilities in Texas, and

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Tyson-Syntroleum facilities in the process conditions, as some of the well as the relative insensitivity of the Louisiana) generally support such a carbon backbone of the oils can be hydrotreating process to fatty acids and split. cracked to naphtha and lighter products other contaminates relative to the We derived our production cost with higher severity. For our analysis, transesterification process. Oil from estimates from documents made we assume no such cracking and predict corn fractionation, yellow grease, and available publicly by UOP, Inc., to make yields resulting in ninety-nine percent animal fat prices were assumed to be renewable diesel in a grass roots diesel fuel with the balance as propane 70% the price of soy oil (consistent with standalone production process inside a (which could also be considered historical market trends). For our 2022 463 refinery. The process has a pre- renewable fuel) and water. We assume policy case, with a yellow grease price treating unit that removes alkali and that all of the renewable diesel of $0.23/lb, the production cost is $2.47/ acidic producing compounds from feed production will take place in PADD 2, gal for biodiesel and $2.10/gal for streams, which removes the catalyst as feedstock shipping costs are reduced renewable diesel (2006$). Table poisons. We also used the UOP since most of the sources for feedstock VIII.A.2–3 shows the projected volume engineering estimate to derive costs for supply are located primarily in the contribution to the biodiesel and co-processing renewable diesel in an Midwest. Average processing cost per existing refinery’s diesel hydrotreater. gallon (in addition to the feedstock) is renewable diesel total volume, their For this, we assumed that refiners will: 41 cents for making renewable diesel production costs, and the weighted (1) revamp their existing diesel from yellow grease/animal fats, based average production cost used for hydrotreater to add capacity and (2) add on our cost methodology. biodiesel and renewable diesel in this a pre-treater to remove feedstock As with biodiesel, renewable diesel proposal. These results assume contaminants. Lastly, we derived costs cost estimates were based on soy oil feedstock prices are plant-gate and do for a standalone unit at a location feedstock prices taken from the FASOM not include any product transportation outside a refinery at a rendering plant modeling work, given in Section IX.A. costs. Note also that the volumes here other facility, using a capital cost Our cost estimates for renewable diesel include co-processed renewable diesel estimate from Syntroleum Corp.464 were focused on use of yellow grease as which does not qualify as biomass- The extent of the depolymerization a feedstock, given the project based diesel but which may be counted and hydrotreating reactions depend on announcements mentioned above, as as advanced biofuel.

TABLE VIII.A.2–3—PROJECTED COSTS AND VOLUME CONTRIBUTION FOR BIODIESEL AND RENEWABLE DIESEL [Policy case, 2006$ and million gallons]

Fuel Cost Volume

Biodiesel from virgin plant oil ...... 2.75 660 Biodiesel from oil extraction at ethanol plants, yellow grease ...... 2.47 150 Renewable diesel from fat, oil, yellow grease ...... 2.10 375 Weighted average cost & total volume ...... 2.51 1,185

Although the per-gallon cost for product produced by this process is steps of the BTL process contribute to making renewable diesel from yellow diesel fuel. its high capital cost. grease is significantly less than using There are many steps involved in a One estimate made by Iowa State the biodiesel process, there are a BTL process which makes this a capital- University estimates the total cost for a number of reasons why we believe the intensive process. The first step, like all cellulosic Fischer-Tropsch plant that latter will still be used to process some the cellulosic processes, requires that produces 35 million gallons per year yellow grease (and most of the virgin oil the feedstocks be processed to be dried diesel fuel at $2.37 per gallon. This cost feedstocks). The primary reason is that and ground to a fine size. The second estimated the capital costs to be $341 there is already sufficient biodiesel step is the syngas step, which million. These costs were estimated in capacity existing or under construction thermochemically reacts the biomass to the year 2002. We adjusted the to cover the projected volumes. carbon monoxide and hydrogen. Since operating and capital costs to a 2006 Secondly, the per-gallon capital cost to carbon monoxide production exceeds investment environment and to 2006 build new hydroprocessing capacity for the stoichiometric ideal fraction of the dollars based the costs on our average renewable diesel is expected to be mixture, a water shift reaction must be $71/dry ton feedstock costs which significantly higher than for the carried out to increase the relative increases the total cost to $2.85 per biodiesel process. The low per-gallon balance of hydrogen. The syngas gallon of diesel fuel. renewable diesel cost given here is products must then be cleaned to Initially, the estimated cost of $2.85 based on the majority of the production facilitate the following Fischer-Tropsch per gallon seems high relative to the being done by co-processing at existing reaction. The Fischer-Tropsch reaction projected cost for a year 2015 petroleum refineries. reacts the syngas to a range of biochemical cellulosic plant, which is 3. BTL Diesel Production Costs hydrocarbon compounds—a type of $1.39 per gallon of ethanol in 2006 synthetic crude oil. This hydrocarbon dollars. However, ethanol provides Biofuels-to-Liquids (BTL) processes, mixture is then hydrocracked to about half the energy content as Fischer- which are also thermochemical maximize the production of high cetane Tropsch diesel fuel. So if we double the processes, convert biomass to liquid diesel fuel, although some low octane biochemical cellulosic ethanol costs to fuels via a syngas route. The primary naphtha is also produced. The many $2.78 per diesel fuel-equivalent gallon,

463 A New Development in Renewable Fuels: 464 From Securities and Exchange Commission Green Diesel, AM–07–10 Annual Meeting NPRA, Form 8–K for Syntroleum Corp, June 25th 07. March 18–20, 2007.

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the estimated costs are very consistent A discussion of the capability of the TABLE VIII.B.1–1—ESTIMATED ETH- between the two. The cellulosic biofuel transportation system to accommodate ANOL DISTRIBUTION INFRASTRUC- tax subsidy favors the biochemical the volumes of renewable fuels TURE CAPITAL COSTS A—Continued ethanol plant, though, because it is a projected to be used under RFS2 is per-gallon subsidy regardless of the contained in Section V.C. of today’s Million $ energy content, and it therefore offsets preamble. There will be ancillary costs twice as much cost as the BTL plant associated with upgrading the basic rail, Ethanol Blending & Misc. producing diesel fuel. There is one more marine, and road transportation nets to Equipment ...... 545 issue worth considering and that is the handle the increase in freight volume Retail ...... 2,957 Mobile Facilities: relative price of diesel fuel to that of due to the RFS2. We have not sought to Rail Cars ...... 2,938 E85. Recently diesel fuel has been quantify these ancillary costs because Barges ...... 183 priced much higher than gasoline, and (1) the growth in freight traffic that is Tank Trucks ...... 223 if this trend continues to hold, it would attributable to RFS2 represents a provide a better market for selling the minimal fraction of the total anticipated Total Capital Costs ...... 12,066 BTL diesel fuel than for selling increase in freight tonnage a Relative to a 13.18 BGY 2022 reference biochemical ethanol into the E85 (approximately 2% by 2022, see Section case. market, which we believe will be a V.C.4.), and (2) we do not believe there We request comment on our basis for challenging pricing market for refiners. is an adequate way to estimate such these estimates as detailed in chapter non-direct costs. We will continue to 4. Catalytic Depolymerization Costs 4.2 of the DRIA. Comment is specifically evaluate issues associated with the requested on the extent to which expansion of the basic transportation A new technology was developed by ethanol rail receipt would be Cello Energy which catalytically net to accommodate the volumes of accommodated within petroleum depolymerizes cellulose, and then renewable fuels projected under RFS2 terminals rather than being cited at rail repolymerizes it to produce synthetic and will update our analysis for the hub terminals (to be further shipped by hydrocarbon fuels such as gasoline, jet final rule based on our findings. tank truck to petroleum terminals). Our fuel and diesel fuel The company claims 1. Ethanol Distribution Costs current analysis estimated that half of that they can produce diesel fuel for the new ethanol rail receipt capability about $0.40 per gallon by processing a. Capital Costs To Upgrade the needed to support the use of the hay, wood chips and used tires. Based Distribution System for Increased projected ethanol volumes under the on our projections of future cellulosic Ethanol Volume EISA would be installed at petroleum feedstock costs, their production costs terminals, and half would be installed at for using only cellulosic feedstocks and Table VIII.B.1–1 contains our estimates of the infrastructure changes rail terminals. A recently completed assuming the cellulosic feedstock costs study by ORNL estimated that all new developed above would likely be about and associated capital costs to support the use of the additional 21 BGY of ethanol rail receipt capability would be $1.00 per gallon. In late 2008 the installed at existing rail terminals given company started up a 20 million gallon ethanol that we project will be used under RFS2 by 2022 relative to the AEO the limited ability to install such 469 per year commercial demonstration 467 capability at petroleum terminals. plant as a first step towards 2007 forecast of 13 BGY. The total commercializing their process. We estimated capital costs are estimated at b. Ethanol Freight Costs discuss this technology and its costs in $12.1 billion which when amortized We estimate that ethanol freight costs more detail in the DRIA. equates to approximately 6.9 cents per would be 11.3 cents per gallon on a gallon of this additional ethanol national average basis. Ethanol freight B. Distribution Costs 468 volume. costs are based on those we derived for Our analysis of the costs associated the Renewable Fuel Standard final rule TABLE VIII.B.1–1—ESTIMATED ETH- with distributing the volumes of updated to reflect the projected ethanol ANOL DISTRIBUTION INFRASTRUC- use patterns and effect on distribution renewable fuels that we project will be A used under RFS2 focuses on: (1) The TURE CAPITAL COSTS patterns of increased imports and more capital cost of making the necessary dispersed domestic ethanol production upgrades to the fuel distribution Million $ locations.470 Specifically, we estimated freight costs by assessing the location of infrastructure system directly related to Fixed Facilities: production and import volumes, where handling these fuels, and (2) the Marine Import Facilities ...... 49 ongoing additional freight costs Ethanol Receipt Rail Hub Ter- ethanol would be used, and the modes associated with shipping renewable minals: and distances for transportation fuels to the point where they are Rail Car Handling & Misc. between production and use.471 We blended with petroleum-based fuels.465 Equipment ...... 1,264 intend to update our estimate of ethanol The following sections outline our Ethanol Storage Tanks ...... 354 freight costs for the final rule based on estimates of the distribution costs for Petroleum Terminals: a recently completed analysis the additional volumes of ethanol, Rail Receipt Facilities ...... 2,482 conducted for EPA by Oak Ridge Ethanol Storage Tanks ...... 1,611 FAME biodiesel, and renewable diesel National Laboratory (ORNL). The ORNL fuel that would be used in response to the RFS2 standards.466 467 See Section V.C. of today’s preamble for 469 ‘‘Analysis of Fuel Ethanol Transportation discussion of the upgrades we project will be Activity and Potential Distribution Constraints’’, needed to the distribution system to handle the prepared for EPA by Oak Ridge National 465 The anticipated ways that the renewable fuels increase in ethanol volumes under EISA. Laboratory, March 2009. projected to be used in response to the EISA will 468 These capital costs will be incurred 470 Please refer to Section 4.2 of the DRIA for be distributed is discussed in Section V.C. of incrementally through 2022 as ethanol volumes additional discussion of ethanol freight costs. today’s preamble. increase. Capital costs for tank trucks were 471 Our projections regarding the location of 466 Please refer to Section 4.2 of the DRIA for amortized over 10 years with a 7% cost of capital. ethanol production/import volumes and where additional discussion of how these estimates were Other capital costs were amortized over 15 years ethanol would be used is discussed in Sections V.B. derived. with a 7% return on capital. and V.D. of today’s preamble respectively.

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analysis contains more detailed priority regional demand was assumed diesel fuel. We further estimate the projections of which transportation to be satisfied from more distant plants terminals that receive renewable diesel modes and combination of modes (e.g., via shipment by manifest rail car. will not need to install additional unit train to barge) are best suited for Overall shipping distances were facilities to allow the receipt by tank delivery of ethanol to specific markets minimized in selecting which plants truck. would satisfy the demand for a given considering ethanol source and end use C. Reduced Refining Industry Costs locations, the current configuration and area. The amount of biodiesel that we projected evolution of the distribution project would be consumed which As renewable and alternative fuel use system, and cost considerations for the would not be directed to priority increases, the volume of petroleum- different transportation modes. demand was assumed to be used within based products, such as gasoline and trucking distance of the production diesel fuel, would decrease. This 2. Biodiesel and Renewable Diesel plant to the extent possible while reduction in finished refinery petroleum Distribution Costs maintaining biodiesel blend products is associated with reduced a. Capital Costs To Upgrade the concentrations below 5%. The refinery industry costs. The reduced Distribution System for Increased FAME remaining volume needed to match our costs would essentially be the volume of Biodiesel Volume estimated production volume was fuel displaced multiplied by the cost for producing the fuel. There is also a Table VIII.B.2–1 contains our assumed to be shipped via manifest rail reduction in capital costs which is estimates of the infrastructure changes car to the nearest areas where diesel fuel important because by not investing in and associated capital costs to support use was not already saturated with biodiesel to the 5% level. new refinery capital, more resources are the use of the additional 430 MGY of freed up to build plants that produce FAME biodiesel that we project will be c. Renewable Diesel Distribution System 472 renewable and alternative fuels. used under RFS2 by 2022. The total Capital and Freight Costs Although we conducted refinery capital costs are estimated at $381 We project that there would be no modeling for estimating the cost of million which equates to approximately additional costs associated with blending ethanol, we did not rely on the 9.8 cents per gallon of additional distributing the 250 MGY of renewable refinery model results for estimating the biodiesel volume.473 diesel fuel that we estimate will be volume of displaced petroleum. Instead 474 we conducted an energy balance around TABLE VIII.B.2–1—ESTIMATED FAME produced at refineries by 2022. This renewable diesel fuel will be blended the increased use of renewable fuels, BIODIESEL DISTRIBUTION INFRA- estimating the energy-equivalent a into finished diesel fuel at the refinery STRUCTURE CAPITAL COSTS and be distributed to petroleum volume of gasoline or diesel fuel terminals in the same way 100% displaced. This allowed us to more Million $ petroleum-based distillate fuel is easily apply our best estimates for how much of the petroleum would displace Fixed Facilities: distributed. This is based on our belief Petroleum Terminals: that renewable diesel will be confirmed imports of finished products versus Storage Tanks ...... 129 to be sufficiently similar to petroleum- crude oil for our energy security Biodiesel Blending & Misc. based diesel with respect to distribution analysis which is discussed in Section Equipment ...... 192 system compatibility. IX.B of this preamble. Mobile Facilities: We project that 125 MGY of As part of this analysis we accounted Rail Cars ...... 35 renewable diesel will be produced at for the change in petroleum demanded Barges ...... 17 by upstream processes related to Tank Trucks ...... 8 stand-alone facilities that are not connected to a refinery or petroleum additional production of the renewable fuels as well as reduced production of Total Capital Costs ...... 381 terminal. We estimate that such renewable diesel will be trucked to petroleum fuels. For example, growing a Relative to a 380 MGY 2022 reference corn used for ethanol production case. nearby petroleum terminals at a cost of 5 cents per gallon. We estimate that 8 requires the use of diesel fuel in b. Biodiesel Freight Costs additional tank trucks would be needed tractors, which reduces the volume of to carry this renewable diesel to petroleum displaced by the ethanol. We estimate that biodiesel freight Similarly, the refining of crude oil uses costs would be 9.3 cents per gallons on terminals at a total cost of approximately $1.3 million dollars. by-product hydrocarbons for heating a national average basis. Priority within the refinery, therefore the overall regional demand for biodiesel was Amortized over 10 years with a 7% cost of capital, the total capital costs equate effect of reduced gasoline and diesel estimated by reviewing State biodiesel fuel consumption is actually greater mandates/incentives and assuming a to approximately 0.2 cents per gallon of renewable diesel fuel produced at stand- because of the additional upstream demand for 2% biodiesel in most effect. We used the lifecycle petroleum heating oil used in the Northeast by alone facilities. We estimate that no further capital costs would need to be demand estimates provided for in 2022. This priority regional demand was GREET model to account for the assumed to be filled first from local incurred to handle renewable diesel fuel. This is based on the assumption upstream consumption of petroleum for plants that could ship economically by each of the renewable and alternative tank truck. The remaining fraction of that renewable diesel delivered to terminals from stand-alone production fuels, as well as for gasoline and diesel fuel. Although there may be some 472 facilities can be mixed directly into We project that by 2022 380 MGY of FAME renewable fuel used for upstream biodiesel would be used absent the requirements storage tanks that contain petroleum- under EISA and that a total of 810 MGY of FAME based diesel fuel or can be stored energy, we assumed that this entire biodiesel would be used under the EISA. separately in existing storage tanks for volume is petroleum because the 473 These capital costs will be incurred later blending with petroleum-based volume of renewable and alternative incrementally through 2022 as FAME biodiesel fuels is fixed as described in Section V volumes increase. Capital costs for tank trucks were amortized over 10 years with a 7% cost of capital. 474 This includes co-processed renewable diesel above. Other capital costs were amortized over 15 years fuel as well as renewable diesel fuel produced in For this proposed rule, we assumed with a 7% return on capital. separate processing units located at refineries. that a portion of the gasoline displaced

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by ethanol is imported, while the other imports. The rest of the ethanol, the estimated volume of domestic portion is produced from domestic including half of the ethanol presumed gasoline and diesel fuel displaced by the refineries. The assumption we made is to be used in the Northeast, is presumed wholesale price for each of these fuels, that one half of the ethanol market in to offset domestic gasoline production. which are $157 per gallon for gasoline, the Northeast, which comprises about In the case of biodiesel and renewable and $161 per gallon for diesel fuel at half of the nation’s gasoline demand, diesel, all of it is presumed to offset $53/bbl crude oil, and $267 per gallon would displace imported gasoline or domestic diesel fuel production. For for gasoline, and $335 per gallon for gasoline blend stocks. Therefore, to ethanol, biodiesel and renewable diesel, diesel fuel at $92/bbl crude oil. For the derive the portion of the new renewable the amount of petroleum fuel displaced volume of petroleum displaced is estimated based on the relative energy fuels which would offset imports (and upstream, we valued it using the contents of the renewable fuels to the not impact domestic refinery wholesale diesel fuel price. Table fuels which they are displacing. The production), we multiplied the total savings due to lower imported gasoline VIII.C.1–1 shows the net volumetric volume of petroleum fuel displaced by and diesel fuel is accounted for in the impact on the petroleum portion of 50% to represent that portion of the energy security analysis contained in gasoline and diesel fuel demand, as well ethanol which would be used in the Section IX.B. as the reduced refining industry costs Northeast, and 50% again to only For estimating the U.S. refinery for 2022. account for that which would offset industry cost reductions, we multiplied

TABLE VIII.C.1–1—REDUCED U.S. REFINERY INDUSTRY COSTS FOR THE RFS2 PROGRAM IN 2022

Total volume Cost savings at Cost savings at displaced $53/bbl crude oil $92/bbl crude oil (billion gallons) price price (billion dollars) (billion dollars)

Upstream ...... Petroleum ...... 0.8 ¥$1.3 ¥$2.7 End Use ...... Gasoline ...... 10.4 16.3 27.7 Diesel Fuel...... 0.6 0.9 1.9

Total ...... 15.9 26.9

D. Total Estimated Cost Impacts For the second step, we established a The third step, or the control case, The previous sections of this chapter 2022 future year reference case which involved the modeling of the 34 billion presented estimates of the cost of represents a business-as-usual case as gallons of ethanol and 1 billion gallons producing and distributing corn-based estimated by the 2007Annual Energy of biodiesel and renewable diesel in and cellulosic-based ethanol, imported Outlook (AEO). The refinery model 2022 to comply with EISA when the ethanol, biodiesel, and renewable assumed that the price of crude oil proposed renewable fuels program is diesel. In this section, we briefly would average about $51 per barrel, fully phased-in. All the other summarize the methodology used and though the results were later adjusted to environmental and ASTM fuel quality the results of our analysis to estimate reflect $53 and $92 per barrel crude oil constraints are assumed to apply to the the cost and other implications for prices. We also modeled the control case as well to solely model the increased use of renewable fuels to implementation of several new impact of the RFS2 standards. displace gasoline and diesel fuel. An environmental programs that will have The price of ethanol and E85 used in important aspect of this analysis is required changes in fuel quality by the refinery modeling is a critical refinery modeling which primarily was 2022, including the 30 part per million determinant of the overall economics of used to estimate the costs of blending (ppm) average gasoline sulfur standard, using ethanol. Ethanol was priced ethanol into gasoline, as well as the the 15 ppm cap standards on highway initially based on the historical average overall refinery industry impacts of the and nonroad diesel fuel, the Mobile price spread between regular grade proposed fuel program. The refinery Source Air Toxics (MSAT) 0.62 volume conventional gasoline and ethanol, but modeling was conducted by Jacobs percent benzene standard. We modeled then adjusted post-modeling to reflect Consultancy under subcontract to the implementation of EPAct of 2005, the projected production cost for both Southwest Research Institute. A detailed which by rescinding the reformulated corn and cellulosic-based ethanol. The refinery modeling assumed that all discussion of how the renewable fuel gasoline oxygenate standard, resulted in volumes affect refinery gasoline ethanol added to gasoline for E10 is the discontinued use of MTBE, and a production volumes and cost is match-blended for octane by refiners in large increase in the amount of ethanol contained in Chapter 4 of the DRIA. the reference and control cases, blended into reformulated gasoline. We although splash blending of ethanol was 1. Refinery Modeling Methodology also modeled the EISA Energy Bill assumed to be appropriate for the The refinery modeling was conducted corporate average fuel economy (cafe´) conventional gasoline for the base case in three distinct steps. The first step standards in the reference case because based on EPA gasoline data. For the involved the establishment of a 2004 it will be phasing-in, and affect the control case, E85 was assumed to be base case which calibrated the refinery phase-in of the RFS2. We modeled 13.2 priced much lower than gasoline to model against 2004 volumes, gasoline billion gallons of ethanol in the gasoline reflect its lower energy content, longer quality, and refinery capital in place. pool and 0.4 billion gallons of biodiesel refueling time and lower availability The EPA and ASTM fuel quality in the diesel pool for 2022, which is the (see Chapter 4 of the DRIA for a detailed constraints in effect by 2004 are ‘‘business-as-usual’’ volume as projected discussion for how we projected E85 imposed on the products. by AEO 2007. prices). E85 is assumed to be blended

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with gasoline blendstock designed for AEO 2008 reference case projects that case and high crude oil prices. Second, blending with E10, and a small amount crude oil will be $53 per barrel in 2022, we express the costs subtracting the of butane to bring the RVP of E85 up to so we adjusted our costs slightly to ethanol and biodiesel and renewable that of gasoline. Thus, unlike current reflect that slightly higher crude oil diesel consumption tax subsidies since practices today where E85 is blended at price. We also evaluated a higher crude some or perhaps most of the cost of the 85% in the summer and E70 in the oil price case. The high crude oil case tax subsidy may not be reflected in the winter, we assumed that E85 is blended price modeled for the AEO projects that price consumers pay at retail. In all at 85% year-round. E85 use in any one crude oil will be $92 per barrel in 2022, cases, the capital costs are amortized at market is limited to levels which we so we adjusted our cost model to also seven percent return on investment estimated would reflect the ability of estimate the program costs based on this (ROI) before taxes, and based on 2006 FFV vehicles in the area to consume the higher crude oil cost. We estimated the dollars. E85 volume. program costs based on these different The refinery model was provided crude oil prices by adjusting the a. Costs Without Federal Tax Subsidies some flexibility and also was gasoline and diesel fuel prices to reflect constrained with respect to the the cost of crude oil. The crude oil costs Table VIII.D.2–1 summarizes the costs applicable gasoline volatility standards also have a secondary impact on the without ethanol tax subsidies for each of for blending up E10. The refinery model production costs of various renewable the two control cases, including the cost allowed conventional gasoline and most and alternative fuels (e.g., petroleum for each aspect of the fuels changes, and low RVP control programs to increase used to grow corn which also has been the aggregated total and the per-gallon by 1.0 pounds per square inch (psi) in reflected in our cost analysis). costs for all the fuel changes.475 This Reid Vapor Pressure (RVP) waiver 2. Overall Impact on Fuel Cost estimate of costs reflects the changes in during the summer. However, gasoline that are occurring with the wintertime conventional gasoline was Based on the refinery modeling expanded use of renewable and conducted for today’s proposed rule, we assumed to comply with the wintertime alternative fuels. These costs include calculated the costs for consuming the ASTM RVP and Volume/Liquid (V/L) the labor, utility and other operating standards. additional 22 billion gallons of costs, fixed costs and the capital costs The costs for producing, distributing renewable fuels in 2022 relative to the and using biodiesel and renewable reference case. The costs are reported for all the fuel changes expected. The diesel are accounted for outside the separately for blending ethanol into per-gallon costs are derived by dividing refinery modeling. Their production and gasoline as E10 and E85, and for the total costs over all U.S. gasoline and distribution costs are estimated first, blending biodiesel and renewable diesel diesel fuel projected to be consumed in compared to the costs of producing with diesel fuel. The costs are expressed 2022. Note that these costs are diesel fuel, and then are added to the two different ways. First, we express the incremental only to the reference case costs estimated by the refinery cost full ‘‘engineering’’ cost of the program volumes of renewable fuels (costing out model for blending the ethanol. without the ethanol consumption tax about 20 billion gallons of new The costs were adjusted to reflect the subsidies in which the costs are based renewable fuels) and does not reflect the crude oil prices estimated by EIA in its on the total accumulated costs of each costs of the renewable fuel volumes in Annual Energy Outlook (AEO). The of the fuels changes, at both reference the reference case.

TABLE VIII.D.2–1—ESTIMATED COSTS OF THE RFS2 PROGRAM IN 2022 [2006 dollars, 7% ROI before taxes]

$53 per barrel of crude $92 per barrel of crude oil incremental to ref- oil incremental to ref- erence case erence case

Gasoline Impacts ...... $billion/yr ...... 17 .0 4 .1 c/gal ...... 10 .91 2 .65 Diesel Fuel Impacts ...... $billion/yr ...... 0.78 ¥0 .05 c/gal ...... 1 .20 ¥0.07

Total Impact ...... $billion/yr ...... 17.8 4.1

Our analysis shows, as expected, that the assumed crude oil price of $92 per renewable diesel fuel use would be the RFS2 program is more cost effective barrel, the gasoline costs are projected to much less costly to use. at the higher assumed price of crude oil. increase by $4.1 billion and the diesel The increased use of renewable and At our assumed crude oil price of $53 fuel costs are projected to decrease by alternative fuels would require capital per barrel, the gasoline and diesel fuel $0.05 billion, or increase by $4.1 billion investments in corn and cellulosic costs are projected to increase by $17.0 in total. Expressed as per-gallon costs, ethanol plants, and renewable diesel billion and $0.78 billion, respectively, these fuel changes would increase fuel plants. In addition to producing the or $17.8 billion in total. Expressed as gasoline costs by 2.65 and decrease fuels, storage and distribution facilities per-gallon costs, these fuel changes diesel fuel costs by 0.07 cents per gallon along the whole distribution chain, would increase the cost of producing at the higher crude oil price. Our including at retail, will have to be gasoline and diesel fuel by 10.91 and analysis shows that at the higher crude constructed for these new fuels. 1.20 cents per gallon, respectively. At oil price, ethanol, biodiesel and Conversely, as these renewable and

475 EPA typically assesses social benefits and cost of production of ethanol and gasoline without tend to distort the market price of agricultural costs of a rulemaking. However, this analysis is accounting for the effects of farm subsidies that commodities. more limited in its scope by examining the average

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alternative fuels are being produced, attributed to this program for 2022 are volume of imported ethanol exempted they supplant gasoline and diesel fuel $58.9 billion. One contributing reason through the Caribbean Basin Initiative demand which results in less new why the capital investments made for (CBI) would have to pay a 51 cents per investments in refineries compared to renewable fuels technologies is so much gallon tariff. We estimate that in 2022 business as usual. In Table VIII.D.2–2, more than the decrease in refining imported ethanol would receive a net 23 we list the total incremental capital industry capital investments is that a cents per gallon subsidy after we investments that we project would be large part of the decrease in petroleum account for both the subsidy and made for this proposed RFS2 gasoline supply was from reduced projected volume of imported ethanol rulemaking incremental to the AEO imports. In addition, renewable fuels subjected to the tariff. While there are 2007 reference case. technologies are more capital intensive also state ethanol tax subsidies we did per gallon of fuel produced than not consider those subsidies. A $1 per TABLE VIII.D.2–2—TOTAL PROJECTED incremental increases in gasoline and gallon subsidy currently applies to U.S. CAPITAL INVESTMENTS FOR THE diesel fuel production at refineries. biodiesel produced from virgin plant RFS2 PROGRAM b. Gasoline and Diesel Costs Reflecting oils (i.e., soy) and a 50 cent per gallon [billion dollars] the Tax Subsidies subsidy applies to biodiesel and renewable diesel fuel produced from Plant Type Capital Costs Table VIII.D.2–3 below expresses the waste fats and oils; we assume that total and per-gallon gasoline costs for these subsidies continue.476 The Corn Ethanol ...... 4.0 the two control scenarios showing the subsidies, if passed along to the Cellulosic Ethanol ...... 50 .1 effect of the Federal tax subsidies. The consumer, reduce the apparent cost of Ethanol Distribution ...... 12.4 Federal tax subsidy is 45 cents per the program to the consumer at retail Bio/Renew Diesel Fuel Pro- duction and Distribution ...... 0.25 gallon for each gallon of new corn since part of the program cost is being Refining ...... ¥7.9 ethanol blended into gasoline and $1.01 paid through taxes. The cost reduction per gallon for each gallon of cellulosic attributed to the subsidies is estimated Total ...... 58 .9 ethanol. Imported ethanol also receives by multiplying the value of the the 45 cents per gallon Federal tax subsidies times the volume of new corn Table VIII.D.2–2 shows that the total subsidy, although the portion of and cellulosic ethanol used in U.S. incremental capital investments imported ethanol which exceeds the transportation fuels.

TABLE VIII.D.2–3—ESTIMATED COSTS OF THE RFS2 PROGRAM IN 2022 [Reflecting Tax Subsidies, 2006 dollars, 7% ROI before taxes]

$53 per barrel of crude $93 per barrel of crude oil incremental to ref- oil incremental to ref- erence case erence case

Gasoline Impacts ...... $billion/yr ...... ¥0.74 ¥13 .6 c/gal ...... ¥0 .48 ¥8.74 Diesel Fuel Impacts ...... $billion/yr ...... 0.25 ¥0 .57 c/gal ...... 0 .39 ¥0.88

Total Impact ...... $billion/yr ...... ¥0.49 ¥14 .2

Our analysis shows, as expected, that by the tax subsidies, which more closely gas impacts of renewable fuels. The the overall costs of the RFS2 program represents the prices paid by consumers Food and Agricultural Policy Research appears to be lower when considering at the pump, our analysis shows that at Institute (FAPRI) at Iowa State the ethanol consumption subsidies. At lower crude oil prices that the cost of University and the University of the assumed crude oil price of $53 per the program would be very small. Missouri-Columbia maintains a number barrel, the gasoline and diesel fuel costs However, at the higher oil prices and of econometric models that are capable are projected to decrease by $0.74 including the subsidies, the program’s of providing detailed information on billion and increase $0.25 billion, costs are very negative. impacts on international agricultural ¥ respectively, or $ 0.49 billion in total. IX. Economic Impacts and Benefits of markets from the wider use of Expressed as per-gallon costs, these fuel the Proposal renewable fuels in the U.S. changes would decrease gasoline costs FASOM is a long-term economic by ¥0.48 cents per gallon and increase A. Agricultural Impacts model of the U.S. agriculture sector that diesel fuel costs by 0.39 cents per EPA used two principal tools to attempts to maximize total revenues for gallon. At the assumed crude oil price model the potential domestic and producers while meeting the demands of $92 per barrel, the gasoline and diesel international impacts of the RFS2 on the of consumers. FASOM can be utilized to fuel costs are projected to decrease by U.S. and global agricultural sectors. The estimate which crops, livestock, and $13.6 billion and $0.57 billion, Forest and Agricultural Sector processed agricultural products would respectively, or $14.2 billion in total. Optimization Model (FASOM), be produced in the U.S. given RFS2 Expressed as per-gallon costs, these fuel developed by Professor Bruce McCarl of biofuel requirements. In each model changes would decrease gasoline and Texas A&M University and others, simulation, crops compete for price diesel fuel by 8.74 and 0.88 cents per provides detailed information on sensitive inputs such as land and labor gallon, respectively. Reducing the cost domestic agricultural and greenhouse at the regional level and the cost of

476 The recent economic bailout law increased the gallon, but we were not able incorporate this change subsidy provided to renewable diesel fuel to $1 per in time for this proposed rulemaking.

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these and other inputs are used to across commodities. They are based on billion gallons from switchgrass and 1.4 determine the price and level of historical data analysis, current billion gallons from sugarcane bagasse. production of primary commodities academic research, and a reliance on Though these volumes differ slightly (e.g., field crops, livestock, and biofuel accepted economic, agronomic, and from those analyzed in Section products). FASOM also estimates prices biological relationships in agricultural V.B.2.c.iv, we will work to align the using costs associated with the production and markets. The volumes for the final rulemaking. processing of primary commodities into international modeling system includes Given the short timeframe for secondary products (e.g., converting international grains, oilseeds, ethanol, conducting this analysis, some of the livestock to meat and dairy, crushing sugar, and livestock models. In general, projected sources of biofuels analyzed soybeans to soybean meal and oil, etc.). for each commodity sector, the in the RFS2 proposal are not currently FASOM does not capture short-term economic relationship that supply modeled in FASOM and FAPRI. For fluctuations (i.e., month-to-month, equals demand is maintained by example, biodiesel from corn oil annual) in prices and production, determining a market-clearing price for fractionation is not currently accounted however, as it is designed to identify the commodity. In countries where for in FASOM. In addition, since long-term trends (i.e., five to ten years). domestic prices are not solved FASOM is a domestic agricultural sector The domestic results provided endogenously, these prices are modeled model, it can’t be utilized to examine throughout this analysis incorporate the as a function of the world price using a the impacts of the wider use of biofuel agricultural sector component of the price transmission equation. Since imports into the U.S. Also, neither of FASOM model. econometric models for each sector can The FASOM model also contains a be linked, changes in one commodity the two models used for this analysis— forestry component. Running both the sector will impact other sectors. FASOM or FAPRI—include biofuels forestry and agriculture components of Elasticity values for supply and demand derived from domestic municipal solid the model would show the interaction responses are based on econometric waste or from the U.S. forestry sector. between these two sectors. However, the analysis and on consensus estimates. Thus, for the RFS2 agricultural sector analysis for this proposal only shows Additional information on the FASOM analysis, these biofuel sources are the results from the agriculture and FAPRI models is included in the analyzed outside of the agricultural component with no interaction from the Draft Regulatory Impact Analysis (DRIA sector models. forestry sector, as the forestry Chapter 5). All the results presented in this component of the model is in the For the agricultural sector analysis section are relative to the AEO 2007 process of being updated. We plan to using the FASOM and FAPRI models of Reference Case renewable fuel volumes, utilize a complete version of the model the RFS2 biofuel volumes, we assumed which include 12.3 Bgal of grain-based for our analysis in the final rule, where 15 billion gallons (Bgal) of corn ethanol ethanol, 0.4 Bgal of biodiesel, and 0.3 agricultural land use impacts also affect would be produced for use as Bgal of cellulosic ethanol in 2022. The forestry land use, and cellulosic ethanol transportation fuel by 2022, an increase domestic figures are provided by produced from the forestry sector will of 2.7 Bgal from the Reference Case. FASOM, and all of the international affect cellulosic ethanol production in Also, we modeled 1.0 Bgal of biodiesel numbers are provided by FAPRI. The the agriculture sector. used as fuel in 2022, an increase of 0.6 detailed FASOM results, detailed FAPRI The FAPRI models are econometric Bgal from the Reference Case. In results, and additional sensitivity models covering many agricultural addition, we modeled an increase of 10 analyses are described in more detail in commodities. These models capture the Bgal of cellulosic ethanol in 2022. In the DRIA. We seek comment on this biological, technical, and economic FASOM, this volume consists of 7.5 analysis of the agricultural sector relationships among key variables billion gallons of cellulosic ethanol impacts resulting from the wider use of within a particular commodity and coming from corn residue in 2022, 1.3 renewable fuels.

TABLE IX.A.1–1—BIOFUEL VOLUMES MODELED IN 2022 [Billions of Gallons]

Biofuel Reference Case Control Case Change

Corn Ethanol ...... 12 .3 15.0 2.7 Corn Residue Cellulosic Ethanol ...... 0 7.5 7.5 Sugarcane Bagasse Cellulosic Ethanol ...... 0.3 1.4 1.1 Switchgrass Cellulosic Ethanol ...... 0 1.3 1.3 Other Ethanol ...... 0 0.2 0.2 Biodiesel ...... 0 .4 1.0 0.6

1. Commodity Price Changes $32.49 per ton by 2022. In 2022, beef TABLE IX.A.1–2—CHANGE IN U.S. prices would increase $0.93 per COMMODITY PRICES FROM THE REF- For the scenario modeled, FASOM hundred pounds (1.4%), relative to the ERENCE CASE predicts that in 2022 U.S. corn prices Reference Case price of $67.72 per [2006$] would increase by $0.15 per bushel hundred pounds. Additional price (4.6%) above the Reference Case price of impacts are included in Section 5.1.1 of % $3.19 per bushel. By 2022, U.S. soybean the DRIA. Commodity Change Change prices would increase by $0.29 per bushel (2.9%) above the Reference Case Corn ...... $0.15/bushel ...... 4.6 price of $9.97 per bushel. The price of Soybeans .. $0.29/bushel ...... 2.9 sugarcane would increase $13.34/ton Sugarcane $13.34/ton ...... 41 (41%) above the Reference Case price of

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TABLE IX.A.1–2—CHANGE IN U.S. in Section 4.1.1 of the DRIA) for the Reference Case. The rising price of corn COMMODITY PRICES FROM THE REF- final rule and invite comment on these and soybeans in the U.S. would also ERENCE CASE—Continued assumptions. have a direct impact on how corn is used. Higher domestic corn prices [2006$] 2. Impacts on U.S. Farm Income would lead to lower U.S. exports as the The increase in renewable fuel world markets shift to other sources of % production provides a significant Commodity Change Change these products or expand the use of increase in net farm income to the U.S. substitute grains. FASOM estimates that Fed Beef .... $0.93/hundred 1.4 agricultural sector. FASOM predicts that U.S. corn exports would drop 263 pounds. net U.S. farm income would increase by million bushels (¥9.9%) to 2.4 billion $7.1 billion dollars in 2022 (10.6%), bushels by 2022. In value terms, U.S. relative to the AEO 2007 Reference By 2022, the price of switchgrass is exports of corn would fall by $487 Case. $30.18 per wet ton and the farm gate million (¥5.7%) to $8 billion in 2022. feedstock price of corn stover is $32.74/ 3. Commodity Use Changes U.S. exports of soybeans would also wet ton. These prices do not include the Changes in the consumption patterns decrease under this proposal. FASOM storage, handling, or delivery costs, of U.S. corn can be seen by the estimates that U.S. exports of soybeans which would result in a delivered price increasing percentage of corn used for would decrease 96.6 million bushels to the ethanol facility of at least twice ethanol. FASOM estimates the amount (¥9.3%) to 943 million bushels by the farm gate cost, depending on the of domestically produced corn used for 2022. In value terms, U.S. exports of region. We intend to update the costs ethanol in 2022 would increase to 33%, soybeans would decrease by $691 assumptions (described in more detail relative to the 28% usage rate under the million (¥6.7%) to $9.7 billion in 2022.

TABLE IX.A.3–1—REDUCTIONS IN U.S. EXPORTS FROM THE REFERENCE CASE IN 2022

Exports Change % Change

Corn in Bushels ...... 263 million ...... ¥9.9 Soybeans in Bushels ...... 96.6 million ...... ¥9.3

Total Value of Exports Change % Change

Corn (2006$) ...... $487 million ...... ¥5.7 Soybeans (2006$) ...... $691 million ...... ¥6.7

Higher U.S. demand for corn for million tons of switchgrass. Sugarcane approximately 0.4 million acres ethanol production would cause a bagasse for cellulosic ethanol (¥0.5%), relative to the Reference Case decrease in the use of corn for U.S. production increases by 15.7 million acreage of 71.5 million acres in 2022. livestock feed. Substitutes are available tons to 19.7 million tons in 2022 relative Despite the decrease in soybean acres in for corn as a feedstock, and this market to the Reference Case. 2022, soybean oil production would is price sensitive. Several ethanol 4. U.S. Land Use Changes increase by 0.4 million tons (4.0%) by processing byproducts could also be 2022 over the Reference Case. used to replace a portion of the corn Higher U.S. corn prices would have a Additionally, FASOM predicts that used as feed, depending on the type of direct impact on the value of U.S. soybean oil exports would decrease 1.3 animal. Distillers dried grains with agricultural land. As demand for corn million tons by 2022 (¥52%) relative to solubles (DDGS) are a byproduct of dry and other farm products increases, the the Reference Case. milling ethanol production, and gluten price of U.S. farm land would also meal and gluten feed are byproducts of increase. Our analysis shows that land As the demand for cellulosic ethanol wet milling ethanol production. By prices would increase by about 21% by increases, most of the production is 2022, FASOM predicts ethanol 2022, relative to the Reference Case. derived from corn residue harvesting. byproducts used in feed would increase FASOM estimates an increase of 3.2 As demand for cellulosic ethanol from 19% to 30 million tons, compared to 25 million acre increase (3.9%) in bagasse increases, sugarcane acres million tons under the Reference Case. harvested corn acres, relative to 83.4 increase by 0.7 millions acres (55%) to million acres harvested under the 1.9 million acres by 2022. In addition, TABLE IX.A.3–2—PERCENT CHANGE Reference Case by 2022.477 Most of the some of the cellulosic ethanol comes IN ETHANOL BYPRODUCTS USE IN new corn acres come from a reduction from switchgrass, which is not FEED RELATIVE TO THE REFERENCE in existing crop acres, such as rice, produced under the Reference Case. In CASE wheat, and hay. the scenario analyzed, 2.8 million acres Though demand for biodiesel of switchgrass will be planted by 2022. Category 2022 increases, FASOM predicts a fall in U.S. As described in Section V, for both the soybean acres harvested, assuming Reference Case and the Control Case, we Ethanol Byproducts ...... 19% soybean-based biodiesel meets the EISA assume 32 million acres would remain GHG emission reduction thresholds. The EISA cellulosic ethanol in the Conservation Reserve Program According to the model, harvested (CRP). Therefore, some of the new corn, requirements result in the production of soybean acres would decrease by residual agriculture products as well as soybean, and switchgrass acres may be dedicated energy crops. By 2022, indirectly coming from former CRP land 477 Total U.S. planted acres increases to 92.2 that is not re-enrolled in the program. FASOM predicts production of 90 million acres from the Reference Case level of 89 million tons of corn residue and 18 million acres in 2022.

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TABLE IX.A.4–1—CHANGE IN U.S. costs 478 would increase by roughly $10 price and consumption of fuel and food. CROP ACRES RELATIVE TO THE per person per year by 2022, relative to We utilized the FAPRI model to assess 479 REFERENCE CASE IN 2022 the Reference Case. Total effective the impacts of the increased use of farm gate food costs would increase by renewable fuels in the U.S. on world [Millions of acres] $3.3 billion (0.2%) in 2022.480 To put agricultural markets. Crop Change % Change these changes in perspective, average The FAPRI modeling shows that U.S. per capita food expenditures in world corn prices would increase by Corn ...... 3.2 3.9 2007 were $3,778 or approximately 10% 7.5% to $3.69 per bushel in 2022, ¥ ¥ Soybeans ...... 0.4 0.5 of personal disposable income. The total relative to the Reference Case. The Sugarcane ...... 0.7 55 amount spent on food in the U.S. in impact on world soybean prices is Switchgrass ...... 2.8 N/A 481 2007 was $1.14 trillion dollars. somewhat smaller, increasing 5.6% to The additional demand for corn and 6. International Impacts $9.94 per bushel in 2022. other crops for biofuel production also Changes in the U.S. agriculture Changes to the global commodity results in increased use of fertilizer in economy are likely to have effects in trade markets and world commodity the U.S. In 2022, FASOM estimates that other countries around the world in prices result in changes in international U.S. nitrogen fertilizer use would terms of trade, land use, and the global land use. The FAPRI model provides increase 897 million pounds (3.4%) international change in crop acres as a over the Reference Case nitrogen 478 FASOM does not calculate changes in price to result of the RFS2 proposal. Brazil has fertilizer use of 26.2 billion pounds. In the consumer directly. The proxy for aggregate food the largest positive change in crop acres price change is an indexed value of all food prices 2022, U.S. phosphorous fertilizer use at the farm gate. It should be noted, however, that in 2022, followed by the U.S., Nigeria, would increase by 496 million pounds according to USDA, approximately 80% of India, Paraguay, and China. The FAPRI (8.6%) relative to the Reference Case consumer food expenditures are a result of handling model estimates that Brazil crop acres level of 5.8 billion pounds. after it leaves the farm (e.g., processing, packaging, increase by 3.1 million acres (2.0%) to storage, marketing, and distribution). These costs consist of a complex set of variables, and do not 153.6 million acres relative to the TABLE IX.A.4–2—CHANGE IN U.S. necessarily change in proportion to an increase in Reference Case. Total U.S. acres FERTILIZER USE RELATIVE TO THE farm gate costs. In fact, these intermediate steps can increase by 2.3 million acres (1.0%) in absorb price increases to some extent, suggesting 2022 to 232.6 million acres. Nigeria has REFERENCE CASE that only a portion of farm gate price changes are [Millions of pounds] typically reflected at the retail level. See http:// an increase in crop acres of 1.5 million www.ers.usda.gov/publications/foodreview/ acres (5.9%) to 27.3 million acres in Fertilizer Change % Change septdec00/FRsept00e.pdf. 2022. India’s total crop acres increase by 479 These estimates are based on U.S. Census 1.0 million acres (0.3%) to 326 million Nitrogen ...... 897 3.4 population projections of 318 million people in 2017 and 330 million people in 2022. See http:// acres in 2022. Total crop acres in Phosphorous ..... 496 8.6 www.census.gov/population/www/projections/ Paraguay increase by 0.8 million acres natsum.html. (6.9%) to 12 million acres. China’s total 5. Impact on U.S. Food Prices 480 Farm Gate food prices refer to the prices that crop acres increase by 0.4 million acres farmers are paid for their commodities. (0.2%) to 257.8 million acres in 2022. Due to higher commodity prices, 481 See www.ers.usda.gov/Briefing/ FASOM estimates that U.S. food CPIFoodAndExpenditures/Data/table15.htm. BILLING CODE 6560–50–P

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The RFS2 proposal results in higher TABLE IX.A.6–1—CHANGE IN WORLD renewable fuels on U.S. oil imports and international commodity prices, which FOOD CONSUMPTION RELATIVE TO avoided U.S. oil import expenditures. In would impact world food THE REFERENCE CASE the second section, a methodology is 482 consumption. The FAPRI model [Millions of metric tons] described for estimating the energy indicates that world consumption of security benefits of reduced U.S. oil corn for food would decrease by 1.1 Category 2022 imports. The final section summarizes million metric tons in 2022 relative to the energy security benefits to the U.S. the Reference Case. Similarly, the Corn ...... ¥1.1 associated with this proposal. ¥ FAPRI model estimates that world Wheat ...... 0.6 Vegetable Oils ...... ¥1.8 1. Implications of Reduced Petroleum consumption of wheat for food would Meat ...... ¥0.3 Use on U.S. Imports decrease by 0.6 million metric tons in 2022. World consumption of oil for food Total Food ...... ¥0.9 In 2007, U.S. petroleum imports (e.g., vegetable oils) decreases 1.8 represented 19.5% of total U.S. imports million metric tons by 2022. The model Additional information on the U.S. of all goods and services.483 In 2005, the also estimates a small change in world agricultural sector and international United States imported almost 60% of meat consumption, decreasing by 0.3 trade impacts of this proposal is the petroleum it consumed. This million metric tons in 2022. When described in more detail in the DRIA compares roughly to 35% of petroleum considering all the food uses included (Chapter 5). from imports in 1975.484 Transportation in the model, world food consumption B. Energy Security Impacts accounts for 70% of the U.S. petroleum decreases by 0.9 million metric tons by consumption. It is clear that petroleum 2022 (¥0.04%). While FAPRI provides Increasing usage of renewable fuels imports have a significant impact on the estimates of changes in world food helps to reduce U.S. petroleum imports. U.S. economy. Diversifying consumption, estimating effects on A reduction of U.S. petroleum imports transportation fuels in the U.S. is reduces both financial and strategic global nutrition is beyond the scope of expected to lower U.S. petroleum risks associated with a potential this analysis. imports. To estimate the impacts of this disruption in supply or a spike in cost proposal on the U.S.’s dependence on of a particular energy source. This reduction in risks is a measure of 483 Bureau of Economic Affairs: ‘‘U.S. improved U.S. energy security. In this International Transactions, Fourth Quarter of 2007’’ section, we estimate the monetary value by Elena L. Nguyen and Jessica Melton Hanson, April 2008. 482 of the energy security benefits of the The food commodities included in the FAPRI 484 RFS2 mandated volumes in comparison Davis, Stacy C.; Diegel, Susan W., model include corn, wheat, sorghum, barley, Transportation Energy Data Book: 25th Edition, Oak soybeans, sugar, peanuts, oils, beef, pork, poultry, to the Reference Case by estimating the Ridge National Laboratory, U.S. Department of and dairy products. impact of the expanded use of Energy, ORNL–6974, 2006.

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imported oil, we calculate avoided U.S. produce renewable fuels, gasoline and gasoline, diesel, and ethanol net imports expenditures on petroleum imports. diesel, as well as the petroleum directly by the respective AEO 2008 wholesale For the proposal, EPA analyzed two used by end-users. gasoline and distillate price forecasts, approaches to estimate the reductions in and ethanol price forecasts from the U.S. petroleum imports. The first TABLE IX.B.1–1—NET REDUCTIONS IN Food and Agricultural Policy Research approach utilizes a model of the U.S. OIL IMPORTS IN 2022 (NEMS Institute (FAPRI) for the specific energy sector, the National Energy MODEL RESULTS) analysis years. In Table IX.B.1–3, the net Modeling System (NEMS), to quantify [Millions of barrels per day] expenditures in reduced petroleum the type and volume of reduced imports and increased ethanol imports petroleum imports based on supply and Category of reduction 2022 are compared to the total value of U.S. demand for specific fuels in a given net exports of goods and services for the year. The National Energy Modeling Imports of Finished Petroleum whole economy for 2022. The U.S. net System (NEMS) is a computer-based, Products ...... 0.823 exports of goods and services estimates energy-economy modeling system of Imports of Crude Oil ...... (0.007) are taken from Energy Information U.S. energy markets through the 2030 Total Reduction ...... 0.815 Administration’s Annual Energy time period. NEMS projects U.S. Percent Reduction ...... 6.15% Outlook 2008. We project that avoided production, imports, conversion, expenditures on imported petroleum The NEMS model projects that for the consumption, and prices of energy; products due to this proposal would be year 2022 all of the reduction in subject to assumptions on world energy roughly $16 billion in 2022. Relative to petroleum imports comes out of markets, resource availability and costs, the 2022 projection, the total avoided finished petroleum products. NEMS behavioral and technological choice expenditures on liquid transportation projects that 91% of the reductions in criteria, cost and performance fuels are projected to be $12.4 billion 2022 come from reduced net imports of characteristics of energy technologies, with the RFS2 proposal. and demographics. NEMS is designed crude oil and finished petroleum products (as compared to a 9% and implemented by the Energy TABLE IX.B.1–3—CHANGES IN EX- Information Administration (EIA) of the reduction in domestic U.S. production). PENDITURES ON TRANSPORTATION U.S. Department of Energy (DOE). For The results shown in Table IX.B.1–2 this analysis, the NEMS model was run below reflect the net lifecycle FUEL NET IMPORTS with the 2007 AEO levels of biofuels in reductions in U.S. oil imports projected [Billions of 2006$] the Reference Case compared with the by the use of the Regional Gasoline biofuel volume RFS2 requirements. Market approach detailed above. Category 2022 Considering the regional nature of U.S. imports of petroleum imports, a TABLE IX.B.1–2—NET REDUCTIONS IN AEO Total Net Exports ...... 16 Expenditures on Net Petro- second approach was utilized as well to OIL IMPORTS IN 2022 (REGIONAL leum Imports ...... (15.96) estimate the impacts of the RFS2 GASOLINE MARKET APPROACH RE- Expenditures on Net Ethanol proposal on U.S. oil imports. This SULTS) and Biodiesel Imports ...... 3.52 approach is labeled ‘‘Regional Gasoline [Millions of barrels per day] Net Expenditures on Trans- Market’’ approach. This approach makes portation Fuel Imports ...... (12.44) the assumption that one half of the Category of reduction 2022 ethanol market is in the Northeast 2. Energy Security Implications region of the U.S., which also comprises Imports of Finished Petroleum about half of the nation’s gasoline Products ...... 0.250 In order to understand the energy demand. For this analysis, it is Imports of Crude Oil ...... 0.637 security implications of reducing U.S. estimated that ethanol would displace Total Reduction ...... 0.887 oil imports, EPA has worked with Oak imported gasoline or gasoline blend Percent Reduction ...... 6.17% Ridge National Laboratory (ORNL), stocks in the Northeast, but not which has developed approaches for elsewhere in the country. Therefore, to The Regional Gasoline Market evaluating the social costs and energy derive the portion of the new renewable approach projects that for 2022, 72% of security implications of oil use. In a fuels which would offset U.S. petroleum the petroleum supply displacement (on new study entitled ‘‘The Energy Security imports (and not impact domestic a volume basis) comes out of reduced Benefits of Reduced Oil Use, 2006– refinery production), we multiplied the net crude oil imports, and 28% out of 2015,’’ completed in February, 2008, total volume of petroleum fuel net imports of finished petroleum ORNL has updated and applied the displaced by 50 percent to represent products (excluding biofuels). Using our analytical approach used in the 1997 that portion of the ethanol which would two approaches for projecting total Report ‘‘Oil Imports: An Assessment of be used in the Northeast, and 50 percent petroleum import reductions (the NEMS Benefits and Costs.’’ 485 486 This new again to only account for that which and the Regional Gasoline Market), we study is included as part of the record would offset imports. The rest of the estimate that petroleum product imports in this rulemaking.487 ethanol, including half of the ethanol will fall between 0.815 to 0.887 million presumed to be used in the Northeast, barrels per day in 2022 as a result of the 485 Leiby, Paul N., Donald W. Jones, T. Randall is presumed to offset domestic gasoline RFS2 proposal. Curlee, and Russell Lee, Oil Imports: An production, which ultimately offsets Using the NEMS model, we also Assessment of Benefits and Costs, ORNL–6851, Oak crude oil inputs at refineries. Biodiesel calculated the change in expenditures in Ridge National Laboratory, November, 1997. 486 The 1997 ORNL paper was cited and its and renewable diesel are presumed to both U.S. petroleum and ethanol results used in DOT/NHTSA’s rules establishing offset domestic diesel fuel production. imports with the RFS2 proposal and CAFE standards for 2008 through 2011 model year The results shown in Table IX.B.1–1 compared these with the U.S. trade light trucks. See DOT/NHTSA, Final Regulatory below reflect the net lifecycle position measured as U.S. net exports of Impacts Analysis: Corporate Average Fuel Economy all goods and services economy-wide. and CAFE Reform MY 2008–2011, March 2006. reductions in U.S. oil imports projected 487 Leiby, Paul N. ‘‘Estimating the Energy Security by NEMS. The net lifecycle reductions Changes in fuel expenditures were Benefits of Reduced U.S. Oil Imports,’’ Oak Ridge include the upstream petroleum used to estimated by multiplying the changes in Continued

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The approach developed by ORNL security benefits. The Agency was not a. Effect of Oil Use on Long-Run Oil estimates the incremental benefits to able to conduct an analysis of biofuel Price, U.S. Import Costs, and Economic society, in dollars per barrel, of reducing supply disruption issue for this Output U.S. oil imports, called the ‘‘oil proposal. The first component of the full premium.’’ Since the 1997 publication Between today’s proposal and the economic costs of importing petroleum of the ORNL Report, changes in oil final rulemaking, EPA will attempt to into the U.S. follows from the effect of market conditions, both current and U.S. import demand on the world oil projected, suggest that the magnitude of broaden our energy security analysis to incorporate estimates of overall motor price over the long-run. Because the the oil premium has changed. U.S. is a sufficiently large purchaser of Significant driving factors that have fuel supply and demand flexibility and reliability, and impacts of possible foreign oil supplies, its purchases can been revised include: Oil prices, current affect the world oil price. This and anticipated levels of OPEC agricultural sector market disruptions (for example, a drought) for presentation monopsony power means that increases production, U.S. import levels, the in U.S. petroleum demand can cause the in the final rule. The expanded analysis estimated responsiveness of regional oil world price of crude oil to rise, and will also consider how the use of supplies and demands to price, and the conversely, that reduced U.S. petroleum likelihood of oil supply disruptions. For biofuels can alter short and long run demand can reduce the world price of this analysis, oil prices from the AEO elasticity (flexibility) in the motor fuel crude oil. Thus, one benefit of 2007 were used. Using the ‘‘oil market, with implications for robustness decreasing U.S. oil purchases is the premium’’ approach, the analysis of the fuel system in the face of diverse potential decrease in the crude oil price calculates estimates of benefits of supply shocks. As part of this analysis, paid for all crude oil purchased. ORNL improved energy security from reduced the Agency plans on analyzing those estimates this component of the energy U.S. oil imports due to this proposal. factors that can cause shifts in the prices security benefit to be $7.65/barrel of When conducting this analysis, ORNL of biofuels, and the impact these factors considered the full economic cost of U.S. oil imports reduced. A number of have on the energy security estimate. importing petroleum into the U.S. The the peer reviewers suggested a variety of full economic cost of importing EPA sponsored an independent- ways OPEC and other oil market petroleum into the U.S. is defined for expert peer review of the most recent participants might react to a decrease in this analysis to include two components ORNL study. A report compiling the the quantity of oil purchased by the U.S. in addition to the purchase price of peer reviewers’ comments is provided ORNL has attempted to reflect a variety petroleum itself. These are: (1) The in the docket.488 In addition, EPA has of possible market reactions in the higher costs for oil imports resulting worked with ORNL to address analysis, but continues to evaluate ways from the effect of U.S. import demand comments raised in the peer review and to more explicitly model OPEC and other market participants’ behavior. on the world oil price and OPEC market develop estimates of the energy security EPA welcomes comments on this issue. power (i.e., the ‘‘demand’’ or benefits associated with a reduction in ‘‘monopsony’’ costs); and (2) the risk of Based upon alternative sensitivities U.S. oil imports for this proposal. In about OPEC supply behavior, the price- reductions in U.S. economic output and response to peer reviewer comments, disruption of the U.S. economy caused responsiveness of combined non-OPEC, EPA modified the ORNL model by non-U.S. supply and demand and a by sudden disruptions in the supply of changing several key parameters imported oil to the U.S. (i.e., lower GDP elasticity with respect to involving OPEC supply behavior, the macroeconomic disruption/adjustment disrupted oil prices, the monopsony responsiveness of oil demand and costs). Maintaining a U.S. military premium ranged from $3.35–$12.45/ presence to help secure stable oil supply supply to a change in the world oil barrel of U.S. imported oil reduced. from potentially vulnerable regions of price, and the responsiveness of U.S. EPA recognizes that as the world the world was excluded from this economic output to a change in the price of oil falls in response to lower analysis because its attribution to world oil price. EPA is soliciting U.S. demand for oil, there is the particular missions or activities is comments on how to incorporate potential for an increase in oil use difficult. additional peer reviewer comments into outside the U.S. This so-called Also excluded from the prior analysis the ORNL energy security analysis. (See international oil ‘‘take back’’ or was risk-shifting that might occur as the the DRIA, Chapter 5, for more ‘‘rebound’’ effect is hard to estimate. U.S. reduces its dependency on information on how EPA responded to Given that oil consumption patterns petroleum and increases its use of peer reviewer comments.) vary across countries, there will be biofuels. The analysis to date focused on different demand responses to a change With these changes for this proposal, in the world price of crude oil. For the potential for biofuels to reduce oil ORNL has estimated that the total imports, and the resulting implications example, in Europe, the price of crude energy security benefits associated with oil comprises a much smaller portion of of lower imports for energy security. a reduction of imported oil is $12.38/ The Agency recognizes that as the U.S. the overall fuel prices seen by barrel. Based upon alternative relies more heavily on biofuels, such as consumers than in the U.S. Since sensitivities about OPEC supply corn-based ethanol, there could be Europeans pay significantly more than adverse consequences from a supply- behavior and the responsiveness of oil their U.S. counterparts for disruption associated with, for example, demand and supply to a change in the transportation fuels, a decline in the a long-term drought. While the causal world oil price, the energy security price of crude oil is likely to have a factors of a supply-disruption from premium ranged from $7.65 to $17.23/ smaller impact on demand. In many imported petroleum and, alternatively, barrel. Highlights of the analysis are other countries, particularly developing biofuels, are likely to be unrelated, described below. countries, such as China and India, oil diversifying the sources of U.S. is used more widely in industrial and transportation fuel will provide energy even electricity applications, although 488 Peer Review Report Summary: Estimating the China and India’s energy picture is National Laboratory, ORNL/TM–2007/028, Final Energy Security Benefits of Reduced U.S. Oil evolving rapidly. In addition, many Report, 2008. Imports, ICF, Inc., September 2007. countries around the world subsidize

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their oil consumption. It is not clear non-U.S. supply and demand and a premium estimates. For the monopsony how oil consumption would change due lower GDP elasticity with respect to premium, we intend to develop energy to changes in the market price of oil disrupted oil prices, the macroeconomic security premiums with alternative AEO with the current pattern of subsidies. disruption premium ranged from $2.64– oil price cases (e.g., Reference, High, Emerging trends in worldwide oil $6.96/barrel of U.S. imported oil Low), develop a dynamic analysis consumption patterns illustrates the reduced. EPA continues to review methodology (i.e., how the energy difficulty in trying to estimate the recent literature on the macroeconomic security premium evolves through overall effect of a reduction in world oil disruption premium and welcomes time), and assess and apply literature on price. However, the Agency recognizes comment on this issue. OPEC strategic behavior/gaming models that this effect is important to capture c. Costs of Existing U.S. Energy Security where possible. For the macroeconomic and is examining methodologies for Policies disruption impacts, EPA intends to quantifying this effect. EPA is exploring examine recent literature on the the development of this effect at the Another often-identified component elasticity of GDP to the oil price. Based regional and country level in an effort of the full economic costs of U.S. oil upon that literature review, we intend to to capture the net effect of different imports is the cost to the U.S. taxpayers determine whether there is a difference drivers. For example, a lower world oil of existing U.S. energy security policies. in macro disruption impacts in the pre- price might encourage consumption of The two primary examples are 2000 and post-2000 time period. oil, but a country might deploy maintaining a military presence to help Further, we intend to break down the programs and policies discouraging oil secure stable oil supply from potentially macroeconomic disruption costs by GDP consumption, which would have the net vulnerable regions of the world and losses and oil import costs. effect of lowering oil consumption to maintaining the SPR to provide buffer EPA solicits comments on the energy some level less than otherwise would be supplies and help protect the U.S. security analysis in a number of areas. expected. EPA solicits comments on economy from the consequences of Specifically, EPA is requesting comment how to estimate this effect. global oil supply disruptions. on its interpretation of ORNL’s results, U.S. military costs are excluded from ORNL’s methodology, the monopsony b. Short-Run Disruption Premium From the analysis performed by ORNL effect, and the macroeconomic Expected Costs of Sudden Supply because their attribution to particular disruption effect. Disruptions missions or activities is difficult. Most The second component of the external military forces serve a broad range of e. Total Energy Security Benefits economic costs resulting from U.S. oil security and foreign policy objectives. Total annual energy security benefits imports arises from the vulnerability of Attempts to attribute some share of U.S. associated with this proposal were the U.S. economy to oil shocks. The cost military costs to oil imports are further derived from the estimated reductions of shocks depends on their likelihood, challenged by the need to estimate how in imports of finished petroleum size, and length; the capabilities of the those costs might vary with incremental products and crude oil using an energy market and U.S. Strategic Petroleum variations in U.S. oil imports. Similarly, security premium price of $12.38/barrel Reserve (SPR), the largest stockpile of while the costs for building and of reduced U.S. oil imports. Based on government-owned emergency crude oil maintaining the SPR are more clearly these values, we estimate that the total in the world, to respond; and the related to U.S. oil use and imports, annual energy security benefits would sensitivity of the U.S. economy to historically these costs have not varied be $3.7 billion in 2022 (in 2006 dollars). sudden price increases. While the total in response to changes in U.S. oil C. Benefits of Reducing GHG Emissions vulnerability of the U.S. economy to oil import levels. Thus, while SPR is price shocks depends on the levels of factored into the ORNL analysis, the 1. Introduction both U.S. petroleum consumption and cost of maintaining the SPR is excluded. A majority of the peer reviewers The wider use of renewable fuels from imports, variation in import levels or agreed with the exclusion of military this proposal results in reductions in demand flexibility can affect the expenditures from the current premium greenhouse gas (GHG) emissions. magnitude of potential increases in oil analysis primarily because of the Carbon dioxide (CO2) and other GHGs price due to supply disruptions. difficulty in defining and measuring mix well in the atmosphere, regardless Disruptions are uncertain events, so the how military programs and of the location of the source, with each costs of alternative possible disruptions expenditures might respond to unit of emissions affecting global are weighted by disruption incremental changes in U.S. oil imports. regional climates; and therefore, probabilities. The probabilities used by One reviewer clearly opposed including influencing regional biophysical the ORNL study are based on a 2005 military costs on principle, and one peer systems. The effects of changes in GHG Energy Modeling Forum 489 synthesis of reviewer clearly supported their emissions are felt for decades to expert judgment and are used to inclusion if they could be shown to vary centuries given the atmospheric determine an expected value of with import levels. The matter of lifetimes of GHGs. This section provides disruption costs, and the change in whether military needs and programs estimates for the marginal and total those expected costs given reduced U.S. can and do vary with U.S. oil imports benefits that could be monetized for the oil imports. ORNL estimates this or consumption levels would require projected GHG emissions reductions of component of the energy security careful consideration and analysis. It the proposal. EPA requests comment on benefit to be $4.74/barrel of U.S. also calls for expertise in areas outside the approach utilized to estimate the imported oil reduced. Based upon the scope of the peer review such as GHG benefits associated with the alternative sensitivities about OPEC national security and military affairs. proposal. supply behavior, the price- EPA solicits comment in this area. responsiveness of combined non-OPEC, 2. Marginal GHG Benefits Estimates d. Anticipated Future Effort The projected net GHG emissions 489 Stanford Energy Modeling Forum, Phillip C. Beccue and Hillard G. Huntington, ‘‘An Assessment Between the proposal and the final reductions associated with the proposal of Oil Market Disruption Risks,’’ Final Report, EMF rule, EPA intends to undertake a variety reflect an incremental change to SR 8, October, 2005. of actions to improve its energy security projected total global emissions.

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Therefore, as shown in Section VI.G, the estimates are incomplete since current responsiveness, impacts modeling, as projected global climate signal will be methods are only able to reflect a partial well as the choice of discount rate. For small but discernable (i.e., accounting of the climate change instance, for 2007 emission reductions incrementally lower projected impacts identified by the IPCC and a 2% discount rate the global meta distribution of global mean surface (discussed more below). Also, domestic analysis estimates range from $¥3 to temperatures). Given that the climate estimates omit potential impacts on the $159/tCO2, while the U.S. estimates response is projected to be a marginal United States (e.g., economic or national range from $0 to $16/tCO2. For 2007 change relative to the baseline climate, security impacts) resulting from climate emission reductions and a 3% discount it is conceptually appropriate to use an change impacts in other countries. The rate, the global meta-estimates range approach that estimates the marginal global estimates were developed from a from $¥4 to $106/tCO , and the U.S. value of changes in climate change survey analysis of the peer reviewed 2 estimates range from $0 to $5/tCO .491 impacts over time as an estimate for the literature (i.e., meta analysis). U.S. 2 monetized marginal benefit of the GHG estimates, and a consistent set of global The global meta analysis mean values emissions reductions projected for this estimates, were developed from a single for 2007 emission reductions are $68 proposal. The marginal value of carbon model and are highly preliminary, and $40/tCO2 for discount rates of 2% is equal to the net present value of under evaluation, and likely to be and 3%, respectively (in 2006 real climate change impacts over hundreds revised. The latter set of estimates was dollars), while the domestic mean value of years of one additional net global developed because the peer reviewed from a single model are $4 and $1/tCO2 metric ton of GHGs emitted to the literature does not currently provide for the same discount rates. The atmosphere at a particular point in time. regional (i.e., at the U.S. or China level) estimates for future year emission This marginal value (i.e., cost) of carbon marginal benefits estimates, and it was changes will be higher as future is sometimes referred to as the ‘‘social important to have a consistent set of marginal emissions increases are cost of carbon.’’ regional and global estimates. Ranges of expected to produce larger incremental Based on the global implications of estimates are provided to capture some damages as physical and economic GHGs and the economic principles that of the uncertainties associated with systems become more stressed as the follow, EPA has developed ranges of modeling climate change impacts. magnitude of climate change global, as well as U.S., marginal benefits The range of estimates is wide due to increases.492 estimates (Table IX.C.2–1).490 It is the uncertainties relating to socio- important to note at the outset that the economic futures, climate

TABLE IX.C.2–1—MARGINAL GHG BENEFITS ESTIMATES FOR DISCOUNT RATES OF 2%, 3%, AND 7% AND YEAR OF EMISSIONS CHANGE IN 2022

[All values are reported in 2006$/tCO2]

2% 3% 7% b Low Central High Low Central High Low Central High

Meta global ...... ¥2 105 247 ¥2 62 165 n/a n/a n/a FUND global ...... ¥4 136 1083 ¥4 26 206 ¥2 ¥1 9 FUND domestic ...... a 0 7 26 a 0 2 9 a 0 a 0 a 0 a These estimates, if explicitly estimated, may be greater than zero, especially in later years. They are currently reported as zero because the explicit estimates for an earlier year were zero and were grown at 3% per year. However, we do not anticipate that the explicit estimates for these later years would be significantly above zero given the magnitude of the current central estimates for discount rates of 2% and 3% and the effect of the high discount rate in the case of 7%. b Except for illustrative purposes, the marginal benefits estimates in the peer reviewed literature do not use consumption discount rates as high as 7%.

The meta analysis ranges were and intergenerational consumption long right tails, which is consistent with developed from the Tol (2008) meta discount rates of approximately 2% and characterizations of the low probability analysis. The meta analysis range only 3%.493 Discount rates of 2% and 3% are high impact damages (see the DRIA for includes global estimates generated by consistent with EPA and OMB guidance the estimated probability density more recent peer reviewed studies (i.e., on intergenerational discount rates functions by discount rate).495 The published after 1995). In addition, the (EPA, 2000; OMB, 2003).494 The central meta estimates in Table IX.C.2– ranges only consider regional estimated distributions of the meta 1 are means, and the low and high are aggregations using simple summation global estimates are right skewed with the 5th and 95th percentiles. Means are

490 For background on economic principles and www.ipcc.ch/). For Table IX.C.1., we assumed the 3% by EPA (OMB Circular A–4, 2003; EPA the marginal benefit estimates, see Technical estimates increased at 3% per year. For the final Guidelines for Preparing Economic Analyses, 2000). Support Document on Benefits of Reducing GHG rule, we anticipate that we will explicitly estimate 495 E.g., Webster, M., C. Forest, J.M. Reilly, M.H. Emissions, U.S. Environmental Protection Agency, FUND marginal benefits values for each emissions Babiker, D.W. Kicklighter, M. Mayer, R.G. Prinn, M. June 12, 2008, www.regulations.gov (search phrase reduction year. Sarofim, A.P. Sokolov, P.H. Stone & C. Wang, 2003. ‘‘Technical Support Document on Benefits of 493 Tol (2008) is an update of the Tol (2005) meta Uncertainty Analysis of Climate Change and Policy Reducing GHG Emissions’’). analysis. Tol (2005) was used in the IPCC Working Response, Climatic Change 61(3): 295–320. Also, 491 See Table IX.C.1 for global (FUND) estimates Group II’s Fourth Assessment Report (IPCC WGII, see Weitzman, M., 2007, ‘‘The Stern Review of the consistent with the U.S. estimates. 2007). Economics of Climate Change,’’ Journal of 492 The IPCC suggests an increase of 2–4% per 494 OMB and EPA guidance on inter-generational Economic Literature. Weitzman, M., 2007, year (IPCC WGII, 2007. Climate Change 2007— discounting suggests using a low but positive ‘‘Structural Uncertainty and the Statistical Life in Impacts, Adaptation and Vulnerability. discount rate if there are important the Economics of Catastrophic Climate Change,’’ Contribution of Working Group II to the Fourth intergenerational benefits/costs. Consumption Working paper http://econweb.fas.harvard.edu/ Assessment Report of the IPCC, http:// discount rates of 1–3% are given by OMB and 0.5– faculty/weitzman/papers/ValStatLifeClimate.pdf.

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presented because, as a central statistic, low and high estimates across the monetized.501 Current estimates do not they better represent the skewed shape sensitivity runs. capture many of the main reasons for of these distributions compared to From Table IX.C.2–1, we see that, in concern about climate change, including medians. terms of the current monetized benefits, nonmarket damages (e.g., species The consistent domestic and global the domestic marginal benefits are a existence value and the value of having estimates were developed using the fraction of the global marginal benefits. the option for future use), the effects of FUND integrated assessment model (i.e., Given uncertainties and omitted climate variability, risks of potential the Climate Framework for Uncertainty, impacts, it is difficult to estimate the extreme weather (e.g., droughts, heavy Negotiation, and Distribution).496 The actual ratio of total domestic benefits to rains and wind), socially contingent ranges were generated from sensitivity total global benefits. The estimates effects (such as violent conflict or analyses where we varied assumptions suggest that an emissions reduction will humanitarian crisis), and thresholds (or with respect to climate sensitivity (1.5 have direct benefits for current and tipping points) associated with species, to 6.0 degrees Celsius),497 the socio- future U.S. populations and large ecosystems, and potential long-term economic and emissions baseline benefits for global populations. The catastrophic events (e.g., collapse of the scenarios (the FUND default baseline long-run and intergenerational West Antarctic Ice Sheet, slowing of the and three baselines from the implications of GHG emissions are Atlantic Ocean Thermohaline Intergovernmental Panel on Climate evident in the difference in results Circulation). Underestimation is even Change (IPCC) Special Report on across discount rates. In the current more likely when one considers that the Emissions Scenarios, SRES),498 and the modeling, there are substantial long-run current trajectory for GHG emissions is consumption discount rates of benefits (beyond the next two decades higher than typically modeled, which approximately 2%, 3%, and 7%, where to over 100 years) and some near-term when combined with current regional 2% and 3% are consistent with benefits as well as negative effects (e.g., population and income trajectories that 499 intergenerational discounting. agricultural productivity and heating are more asymmetric than typically Furthermore, the model was calibrated demand). High discount rates give less modeled, imply greater climate change to the EPA value of a statistical life of weight to the distant benefits in the net and vulnerability to climate change. See 500 $7.4 million (in 2006 real dollars). present value calculations, and more the DRIA for an initial, partial list of The FUND global estimates are the sum weight to near-term effects. While not impacts that are currently not modeled of the regional estimates within FUND. obvious in Table IX.C.2–1, an additional in the FUND model and are thus not The FUND global and domestic central unit of emissions in the higher climate reflected in the FUND estimates. EPA is values in Table IX.C.2–1 are weighted sensitivity scenarios, versus the lower planning to develop a full assessment of averages of the FUND estimates from the climate sensitivity scenarios, is what is not currently being captured in sensitivity analysis (see the DRIA for estimated to have a proportionally larger FUND for the final rule. In addition, details). The low and high values are the effect on the rest of the world compared EPA plans to quantify omitted impacts to the U.S. (see more detailed results in and update impacts currently 496 FUND is a spatially and temporally consistent represented to the maximum extent framework—across regions of the world (e.g., U.S., DRIA). These points are discussed more China), impacts sectors, and time. FUND explicitly below. possible for the final rule. models impacts sectors in 16 global regions. FUND The current estimates are also is one of the few models in the world that explicitly 3. Discussion of Marginal GHG Benefits deterministic in that they do not models global and regional marginal benefits Estimates account for the value people have for estimates. Numerous applications of FUND have been published in the peer reviewed literature This section briefly discusses changes in risk due to changes in the dating back to 1997. See http://www.fnu.zmaw.de/ important issues relevant to the likelihood of potential impacts FUND.5679.0.html. marginal benefits estimates in Table associated with reductions in CO2 and 497 In IPCC reports, equilibrium climate other GHG emissions (i.e., a risk sensitivity refers to the equilibrium change in the IX.C.2–1 (see the DRIA for more annual mean global surface temperature following extensive discussion). The broad range premium). This is an issue that has a doubling of the atmospheric equivalent carbon of estimates in Table IX.C.2–1 reflects concerned Weitzman and other dioxide concentration. The IPCC states that climate some of the uncertainty associated with economists.502 We plan to conduct a sensitivity is ‘‘likely’’ to be in the range of 2 °C to formal uncertainty analysis for the final 4.5 °C and described 3 °C as a ‘‘best estimate’’, estimating monetized marginal benefits which is the mode (or most likely) value. The IPCC of climate change. The meta analysis rule to attempt to account for, to the goes on to note that climate sensitivity is ‘‘very range reflects differences in these extent possible, these and other changes unlikely’’ to be less than 1.5 °C and ‘‘values assumptions as well as differences in in uncertainty. substantially higher than 4.5 °C cannot be The estimates in Table IX.C.2–1 are excluded.’’ IPCC WGI, 2007, Climate Change 2007— the modeling of changes in climate and The Physical Science Basis, Contribution of impacts considered and how they were only relevant for incremental policies Working Group I to the Fourth Assessment Report modeled. EPA considers the meta relative to the projected baselines (that of the IPCC, http://www.ipcc.ch/. analysis results to be more robust than do not reflect potential future climate 498 The IMAGE model SRES baseline data was policies) and there is substantial used for the A1b, A2, and B2 scenarios (IPCC, 2000. the single model estimates in that the Special Report on Emissions Scenarios. A special meta results reflect uncertainties in both uncertainty associated with the report of Working Group III of the models and assumptions. estimates themselves both in terms of Intergovernmental Panel on Climate Change. The current state-of-the-art for what is being modeled and what is not Cambridge University Press, Cambridge). estimating benefits is important to being modeled, with many uncertainties 499 The EPA guidance on intergenerational outside of observed variability.503 Both discounting states that ‘‘[e]conomic analyses should consider when evaluating policies. present a sensitivity analysis of alternative discount There are significant partially 501 rates, including discounting at two to three percent unquantified and omitted impact IPCC WGII, 2007. In the IPCC report, ‘‘very and seven percent as in the intra-generational case, likely’’ was defined as a greater than 90% as well as scenarios using rates in the interval one- categories not captured in the estimates likelihood based on expert judgment. half to three percent as prescribed by optimal provided above. The IPCC WGII (2007) 502 E.g, Webster et al., 2003; Weitzman, M., 2007. growth models.’’ (EPA, 2000). concluded that current estimates are http://econweb.fas.harvard.edu/faculty/weitzman/ 500 This number may be updated to be consistent ‘‘very likely’’ to be underestimated papers/ValStatLifeClimate.pdf. with recent EPA regulatory impact analyses that 503 Because some types of potential climate have used a value of $6.4 million (in 2006 real because they do not include significant change impacts may occur suddenly or begin to dollars). impacts that have yet to be Continued

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of these points are important for non- higher global net benefits for GHG OMB).509 In this multi-generation marginal emissions changes and reductions when considered.507 context, the three percent discount rate estimating total benefits. Also, the Furthermore, international effects of is consistent with observed interest rates uncertainties inherent in this kind of climate change may also affect domestic from long-term investments available to modeling, including the omissions of benefits directly and indirectly to the current generations (net of risk many important impacts categories, extent U.S. citizens value international premiums) as well as current estimates present problems for approaches impacts (e.g., for tourism reasons, of the impacts of climate change that attempting to identify an economically concerns for the existence of reflect potential impacts on consumers. In addition, rates of three percent or efficient level of GHG reductions and to ecosystems, and/or concern for others); lower are consistent with long-run positive net benefit criteria in general, U.S. international interests are affected uncertainty in economic growth and and point to the importance of (e.g., risks to U.S. national security, or interest rates, considerations of issues considering factors beyond monetized the U.S. economy from potential associated with the transfer of wealth benefits and costs. In uncertain disruptions in other nations); and/or situations such as that associated with between generations, and the risk of domestic mitigation decisions affect the high impact climate damages. Given the climate, EPA typically recommends that level of mitigation and emissions uncertain environment, analysis could analysis consider a range of benefit and changes in general in other countries also consider evaluating uncertainty in cost estimates, and the potential (i.e., the benefits realized in the U.S. the discount rate (e.g., Newell and Pizer, implications of non-monetized and non- will depend on emissions changes in 2001, 2003).510 quantified benefits. the U.S. and internationally). The For the final rulemaking, we will be Economic principles suggest that economics literature also suggests that developing and updating the FUND global benefits should also be policies based on direct domestic model as best as possible based on the considered when evaluating alternative benefits will result in little appreciable latest research and peer reviewing the GHG reduction policies.504 Typically, reduction in global GHGs (e.g., estimates. To improve upon our because the benefits and costs of most Nordhaus, 1995).508 While these estimates, we hope to evaluate several environmental regulations are marginal benefits estimates are not factors not currently captured in the predominantly domestic, EPA focuses comprehensive or economically proposed estimates due to time on benefits that accrue to the U.S. optimal, the global estimates in Table constraints. For example, we will population when quantifying the IX.C.2–1 internalize a larger portion of quantify additional impact categories as impacts of domestic regulation. the global and intergenerational is possible and provide a qualitative However, OMB’s guidance for economic externalities of reducing a unit of evaluation of the implications of what is analysis of federal regulations emissions. not monetized. We also plan to conduct specifically allows for consideration of A key challenge facing EPA is the an uncertainty analysis, consider international effects.505 GHGs are global appropriate discount rate over the complementary bottom-up analyses, and and very long-run public goods, and longer timeframe relevant for GHGs. develop estimates of the marginal benefits associated with non-CO GHGs economic principles suggest that the full With the benefits of GHG emissions 2 reductions distributed over a very long relevant to the rule (e.g., CH4, N2O, and costs to society of emissions should be 511 time horizon, benefit and cost HFC–134a). considered in order to identify the EPA solicits comment on the policy that maximizes the net benefits to estimations are likely to be very sensitive to the discount rate. When appropriateness of using U.S. and global society, i.e., achieves an efficient values in quantifying the benefits of outcome (Nordhaus, 2006).506 As such, considering climate change investments, they should be compared to similar GHG reductions and the appropriate estimates of global benefits capture application of benefits estimates given more of the full value to society than alternative investments (via the discount rate). Changes in GHG the state of the art and overall domestic estimates and will result in uncertainties. We also seek comment on emissions—both increases and our estimates of the global and U.S. reductions—are essentially long-run increase at a much faster rate, rather than increasing marginal benefits of GHG emissions investments in changes in climate and gradually or smoothly, different approaches are reductions that EPA has developed, necessary for quantifying the benefits of ‘‘large’’ the potential impacts from climate including the scientific and economic (non-incremental) versus ‘‘small’’ (incremental) change, which includes the potential for foundations, the methods employed in reductions in global GHGs. Marginal benefits significant impacts from climate change, estimates, like those presented above, can be useful developing the estimates, the discount for estimating benefits for small changes in where the exact timing and magnitude emissions. See the DRIA for additional discussion of these impacts are unknown. 509 EPA (U.S. Environmental Protection Agency), of this point. Note that even small reductions in 2000. Guidelines for Preparing Economic Analyses. global GHG emissions are expected to reduce When there are important benefits or costs that affect multiple generations of EPA 240–R–00–003. See also OMB (U.S. Office of climate change risks, including catastrophic risks. Management and Budget), 2003. Circular A–4. 504 Recently, the National Highway Traffic Safety the population, EPA and OMB allow for September 17, 2003. These documents are the Administration (NHTSA) issued the final low but positive discount rates (e.g., guidance used when preparing economic analyses Environmental Impact Statement for their proposed 0.5–3% noted by U.S. EPA, 1–3% by for all EPA rulemakings. rulemaking for average fuel economy standards for 510 Newell, R. and W. Pizer, 2001. Discounting the passenger cars and light trucks in which the benefits of climate change mitigation: How much do preferred alternative is based upon a domestic 507 Both the United Kingdom and the European uncertain rates increase valuations? PEW Center on marginal benefit estimate for carbon dioxide Commission following these economic principles in Global Climate Change, Washington, DC. Newell, R. reductions. See Average Fuel Economy Standards, consideration of the global social cost of carbon and W. Pizer, 2003. Discounting the distant future: Passenger Cars and Light Trucks, MY 2011–2015, (SCC) for valuing the benefits of GHG emission how much do uncertain rates increase valuations? Final Environmental Impact Statement http:// reductions in regulatory impact assessments and Journal of Environmental Economics and www.nhtsa.dot.gov/portal/site/nhtsa/ cost-benefit analyses (Watkiss et al. 2006). Management 46:52–71. menuitem.43ac99aefa80569eea57529cdba046a0/. 508 Nordhaus, William D. (1995). ‘‘Locational 511 Due to differences in atmospheric lifetime and 505 OMB (2003), page 15. Competition and the Environment: Should radiative forcing, the marginal benefit values of 506 Nordhaus, W., 2006, ‘‘Paul Samuelson and Countries Harmonize Their Environmental non-CO2 GHG reductions and their growth rates Global Public Goods,’’ in M. Szenberg, L. Policies?’’ in Locational Competition in the World over time will not be the same as the marginal Ramrattan, and A. Gottesman (eds), Samuelsonian Economy, Symposium 1994, ed., Horst Siebert, J. C. benefits of CO2 emissions reductions (IPCC WGII, Economics, Oxford. B. Mohr (Paul Siebeck), Tuebingen, 1995. 2007).

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rates considered, current and proposed 4. Total Monetized GHG Benefits benefits per metric ton of CO2 in that future consideration of uncertainty in Estimates year by the annualized equivalent the estimates, marginal benefits emissions reductions. For the final As described in Section VI.F, estimates for non-CO2 GHG emissions rulemaking, we plan to separate the reductions, and potential opportunities annualized equivalent GHG emissions emissions reductions by gas and use reductions associated with the RFS2 for improving the estimates. We are also CO2 and non-CO2 marginal benefits proposal in 2022 would be 160 million interested in comments on methods for estimates. Non-CO2 GHGs have different metric tons of CO equivalent quantifying benefits for non-incremental 2 climate and atmospheric implications (MMTCO eq) with a 2% discount rate, reductions in global GHG emissions. 2 and therefore different marginal climate and 155 and 136 MMCO2eq with impacts. Because the literature on SCC and our discount rates of 3% and 7%, Table IX.C.4–1 provides the estimated understanding of that literature respectively. This section provides the monetized GHG benefits of the proposal continues to evolve, EPA will continue monetized total GHG benefits estimates for 2022. The large range of values in to assess the best available information associated with the proposal in 2022. As the Table reflects some of the on the social cost of carbon and climate discussed above in Section IX.C.3, these uncertainty captured in the range of benefits, and may adjust its approaches estimates do not include significant monetized marginal benefits estimates to quantifying and presenting impacts that have yet to be monetized. presented in Table IX.C.2–1.512 All information on these areas in future Total monetized benefits in 2022 are values in this section are presented in rulemakings. calculated by multiplying the marginal 2006 real dollars.

TABLE IX.C.4–1—MONETIZED GHG BENEFITS OF THE PROPOSED RULE IN 2022 [Billion 2006$]

Marginal benefit 2% 3% 7%

Meta global ...... Low ...... ¥$0.3 ¥$0.3 n/a Central ...... 16.8 9.6 n/a High ...... 39.4 25.5 n/a FUND global ...... Low ...... ¥0.6 ¥0.6 ¥0.3 Central ...... 21.7 4.0 ¥0.1 High ...... 172.8 31.9 1.2 FUND domestic ...... Low ...... 0.0 0.0 0.0 Central ...... 1.1 0.3 0.0 High ...... 4.1 1.4 0.0

D. Co-pollutant Health and avoided or incurred premature deaths modeling and use that data to inform Environmental Impacts and other serious human health effects, the health and environmental impacts as well as other important public health analysis. Resource and time constraints This section describes EPA’s analysis and welfare effects. precluded the Agency from completing of the co-pollutant health and As can be seen in Section II.B, we this work in time for the proposal. EPA environmental impacts that can be will, however, provide a complete estimate that the proposal would lead to expected to occur as a result of this characterization of the health and both increased and decreased criteria renewable fuels proposal throughout the environmental impacts, both in terms of and air toxic pollutant emissions. period from initial implementation incidence and valuation, for the final through 2030. GHG emissions are Making predictions about human health rulemaking. predominantly the byproduct of fossil and welfare impacts based solely on This section explains what PM- and fuel combustion processes that also emissions changes, however, is ozone-related health and environmental produce criteria and hazardous air extremely difficult. Full-scale impacts EPA will quantify and monetize pollutants. The fuels that are subject to photochemical modeling is necessary to in the analysis for the final rules. EPA the proposed standard are also provide the needed spatial and temporal will base its analysis on peer-reviewed significant sources of mobile source air detail to more completely and studies of air quality and health and pollution such as direct PM, NOX, VOCs accurately estimate the changes in welfare effects and peer-reviewed and air toxics. The proposed standard ambient levels of these pollutants. EPA studies of the monetary values of public would affect exhaust and evaporative typically quantifies and monetizes the health and welfare improvements, and emissions of these pollutants from PM- and ozone-related health and will be consistent with benefits analyses vehicles and equipment. They would environmental impacts in its regulatory performed for the recent analysis of the also affect emissions from upstream impact analyses (RIAs) when possible. proposed Ozone NAAQS and the final sources such as fuel production, storage, However, we were unable to do so in PM NAAQS analysis.513 514 These and distribution and agricultural time for this proposal. EPA attempts to methods will be described in detail in emissions. Any decrease or increase in make emissions and air quality the DRIA prepared for the final rule. ambient ozone, PM2.5, and air toxics modeling decisions early in the Though EPA is characterizing the associated with the proposal would analytical process so that we can changes in emissions associated with impact human health in the form of complete the photochemical air quality toxic pollutants, we will not be able to

512 EPA notes, however, that the Ninth Circuit 513 U.S. Environmental Protection Agency. July 514 U.S. Environmental Protection Agency. recently rejected an approach of assigning no 2007. Regulatory Impact Analysis of the Proposed October 2006. Final Regulatory Impact Analysis monetized value to greenhouse gas reductions Revisions to the National Ambient Air Quality (RIA) for the Proposed National Ambient Air resulting from vehicular fuel economy. Center for Standards for Ground-Level Ozone. Prepared by: Quality Standards for Particulate Matter. Prepared Biodiversity v. NHTSA, F. 3d, (9th Cir. 2007). Office of Air and Radiation. EPA–452/R–07–008. by: Office of Air and Radiation.

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quantify or monetize the human health Please refer to Section VII for more BenMAP is a computer program effects associated with air toxic information about the air toxics developed by EPA that integrates a pollutants for either the proposal or the emissions impacts associated with the number of the modeling elements used final rule analyses. This is primarily proposed standard. in previous DRIAs (e.g., interpolation because available tools and methods to functions, population projections, 1. Human Health and Environmental assess air toxics risk from mobile health impact functions, valuation Impacts sources at the national scale are not functions, analysis and pooling adequate for extrapolation to benefits To model the ozone and PM air methods) to translate modeled air assessment. In addition to inherent quality benefits of the final rules, EPA concentration estimates into health limitations in the tools for national-scale will use the Community Multiscale Air effects incidence estimates and modeling of air quality and exposure, Quality (CMAQ) model (see Section monetized benefits estimates. there is a lack of epidemiology data for VII.D.2 for a description of the CMAQ Table IX.D.1–1 lists the co-pollutant air toxics in the general population. For model). The modeled ambient air health effect exposure-response a more comprehensive discussion of quality data will serve as an input to the functions (PM2.5 and ozone) we will use these limitations, please refer to the Environmental Benefits Mapping and to quantify the co-pollutant incidence final Mobile Source Air Toxics rule.515 Analysis Program (BenMAP).516 impacts associated with the proposal.

TABLE IX.D.1–1—HEALTH IMPACT FUNCTIONS USED IN BENMAP TO ESTIMATE IMPACTS OF PM2.5 AND OZONE REDUCTIONS

Endpoint Pollutant Study Study population

Premature Mortality: Premature mortality—daily time series ...... O3 Multi-city ...... All ages. Bell et al. (2004)—Non-accidental ...... Huang et al. (2005)—Cardiopulmonary. Schwartz (2005)—Non-accidental. Meta-analyses: Bell et al. (2005)—All cause. Ito et al. (2005)—Non-accidental. Levy et al. (2005)—All cause. Premature mortality—cohort study, all-cause ...... PM2.5 Pope et al. (2002) ...... >29 years. Laden et al. (2006) ...... >25 years. Premature mortality, total exposures ...... PM2.5 Expert Elicitation (IEc, 2006) ...... >24 years. Premature mortality—all-cause ...... PM2.5 Woodruff et al. (1997) ...... Infant (<1 year). Chronic Illness: Chronic Bronchitis ...... PM2.5 Abbey et al. (1995) ...... >26 years. Nonfatal heart attacks ...... PM2.5 Peters et al. (2001) ...... Adults (>18 years). Hospital Admissions: Respiratory ...... O3 Pooled estimate...... >64 years. Schwartz (1995)—ICD 460–519 (all resp). Schwartz (1994a; 1994b)—ICD 480–486 (pneumonia). Moolgavkar et al. (1997)—ICD 480–487 (pneumonia). Schwartz (1994b)—ICD 491–492, 494–496 (COPD). Moolgavkar et al. (1997)—ICD 490–496 (COPD). Burnett et al. (2001) ...... <2 years. PM2.5 Pooled estimate ...... >64 years. Moolgavkar (2003)—ICD 490–496 (COPD). Ito (2003)—ICD 490–496 (COPD). PM2.5 Moolgavkar (2000)—ICD 490–496 (COPD) ...... 20–64 years. PM2.5 Ito (2003)—ICD 480–486 (pneumonia) ...... >64 years. PM2.5 Sheppard (2003)—ICD 493 (asthma) ...... <65 years. Cardiovascular ...... PM2.5 Pooled estimate ...... >64 years. Moolgavkar (2003)—ICD 390–429 (all Car- diovascular). Ito (2003)—ICD 410–414, 427–428 (ischemic heart disease, dysrhythmia, heart failure). PM2.5 Moolgavkar (2000)—ICD 390–429 (all Cardio- 20–64 years. vascular). Asthma-related ER visits ...... O3 Pooled estimate ...... 5–34 years. Jaffe et al. (2003) ...... All ages. Peel et al. (2005) ...... All ages. Wilson et al. (2005). PM2.5 Norris et al. (1999) ...... 0–18 years. Other Health Endpoints:

515 U.S. Environmental Protection Agency. Analysis. Office of Air and Radiation. Office of 516 Information on BenMAP, including February 2007. Control of Hazardous Air Pollutants Transportation and Air Quality. EPA420–R–07–002. downloads of the software, can be found at http:// from Mobile Sources: Final Regulatory Impact www.epa.gov/ttn/ecas/benmodels.html.

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TABLE IX.D.1–1—HEALTH IMPACT FUNCTIONS USED IN BENMAP TO ESTIMATE IMPACTS OF PM2.5 AND OZONE REDUCTIONS—Continued

Endpoint Pollutant Study Study population

Acute bronchitis ...... PM2.5 Dockery et al. (1996) ...... 8–12 years. Upper respiratory symptoms ...... PM2.5 Pope et al. (1991) ...... Asthmatics, 9–11 years. Lower respiratory symptoms ...... PM2.5 Schwartz and Neas (2000) ...... 7–14 years. Asthma exacerbations ...... PM2.5 Pooled estimate ...... 6–18 years. Ostro et al. (2001) (cough, wheeze and shortness of breath). Vedal et al. (1998) (cough). Work loss days ...... PM2.5 Ostro (1987) ...... 18–65 years. School absence days ...... O3 Pooled estimate ...... 5–17 years. Gilliland et al. (2001). Chen et al. (2000). Minor Restricted Activity Days (MRADs) ...... O3 Ostro and Rothschild (1989) ...... 18–65 years. PM2.5 Ostro and Rothschild (1989) ...... 18–65 years.

2. Monetized Impacts incidence of health and welfare effects Table IX.D.2–1 presents the monetary associated with the RFS2 standard. values we will apply to changes in the

TABLE IX.D.2–1—VALUATION METRICS USED IN BENMAP TO ESTIMATE MONETARY BENEFITS

Valuation Endpoint Valuation method (2000$)

Premature mortality ...... Assumed Mean VSL ...... $5,500,000 Chronic Illness Chronic Bronchitis ...... WTP: Average Severity ...... 340,482 Myocardial Infarctions, Nonfatal ...... Medical Costs Over 5 Years. Varies by age and discount rate. Russell (1998) ...... Medical Costs Over 5 Years. Varies by age and discount rate. Wittels (1990) ...... Hospital Admissions Respiratory, Age 65+ ...... COI: Medical Costs + Wage Lost ...... 18,353 Respiratory, Ages 0–2 ...... COI: Medical Costs ...... 7,741 Chronic Lung Disease (less Asth- COI: Medical Costs + Wage Lost ...... 12,378 ma). Pneumonia ...... COI: Medical Costs + Wage Lost ...... 14,693 Asthma ...... COI: Medical Costs + Wage Lost ...... 6,634 Cardiovascular ...... COI: Medical Costs + Wage Lost (20–64) ...... 22,778 COI: Medical Costs + Wage Lost (65–99) ...... 21,191 ER Visits, Asthma ...... COI: Smith et al. (1997) ...... 312 COI: Standford et al. (1999) ...... 261 Other Health Endpoints Acute Bronchitis ...... WTP: 6 Day Illness, CV Studies ...... 356 Upper Respiratory Symptoms ...... WTP: 1 Day, CV Studies ...... 25 Lower Respiratory Symptoms ...... WTP: 1 Day, CV Studies ...... 16 Asthma Exacerbation ...... WTP: Bad Asthma Day, Rowe and Chestnut (1986) ...... 43 Work Loss Days ...... Median Daily Wage, County-Specific ...... Minor Restricted Activity Days ...... WTP: 1 Day, CV Studies ...... 51 School Absence Days ...... Median Daily Wage, Women 25+ ...... 75 Worker Productivity ...... Median Daily Wage, Outdoor Workers, County-Specific, Crocker and Horst ...... (1981). Environmental Endpoints Recreational WTP: 86 Class I Areas ...... Visibility. Source: Dollar amounts for each valuation method were extracted from BenMAP version 2.4.5.

3. Other Unquantified Health and air toxics (including benzene, 1,3- currently unable to quantify a number of Environmental Impacts butadiene, formaldehyde, acetaldehyde, known welfare effects, including acrolein, and ethanol), ambient ozone, reduced acid and particulate deposition In addition to the co-pollutant health and ambient PM2.5 exposures. For damage to cultural monuments and and environmental impacts we will example, we have not quantified a other materials, and environmental quantify for the analysis of the RFS2 number of known or suspected health benefits due to reductions of impacts of standard, there are a number of other effects linked with ozone and PM for eutrophication in coastal areas. For air health and human welfare endpoints which appropriate health impact toxics, the available tools and methods that we will not be able to quantify functions are not available or which do to assess risk from mobile sources at the because of current limitations in the not provide easily interpretable national scale are not adequate for methods or available data. These outcomes (i.e., changes in heart rate extrapolation to benefits assessment. In impacts are associated with emissions of variability). Additionally, we are addition to inherent limitations in the

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tools for national-scale modeling of air TABLE IX.D.3–1—UNQUANTIFIED AND toxics and exposure, there is a lack of NON-MONETIZED POTENTIAL EF- While there will be impacts epidemiology data for air toxics in the FECTS—Continued associated with air toxic pollutant general population. Table IX.D.3–1 lists emission changes that result from the these unquantified health and Pollutant/Ef- Effects not included in anal- RFS2 standard, we will not attempt to environmental impacts. fects ysis—changes in: monetize those impacts. This is primarily because currently available TABLE IX.D.3–1—UNQUANTIFIED AND Disruption of production of tools and methods to assess air toxics blood components (ben- ON ONETIZED OTENTIAL FFECTS N -M P E zene). risk from mobile sources at the national Reduction in the number of scale are not adequate for extrapolation Pollutant/Ef- Effects not included in anal- blood platelets (benzene). to incidence estimations or benefits fects ysis—changes in: Excessive bone marrow for- assessment. The best suite of tools and mation (benzene). methods currently available for Ozone Health a Chronic respiratory damage. Premature aging of the Depression of lymphocyte assessment at the national scale are lungs. counts (benzene). those used in the National-Scale Air Non-asthma respiratory Reproductive and develop- Toxics Assessment (NATA). The EPA emergency room visits. mental effects (1,3-buta- Science Advisory Board specifically diene, ethanol). Exposure to UVb (±) d. commented in their review of the 1996 Irritation of eyes and mucus Ozone Welfare Yields for: NATA that these tools were not yet membranes (formalde- —commercial forests. hyde). ready for use in a national-scale benefits —some fruits and vegeta- Respiratory irritation (form- analysis, because they did not consider bles. aldehyde). the full distribution of exposure and —non-commercial crops. Asthma attacks in risk, or address sub-chronic health Damage to urban orna- asthmatics (formalde- effects.517 While EPA has since mental plants. hyde). improved the tools, there remain critical Impacts on recreational de- Asthma-like symptoms in mand from damaged for- limitations for estimating incidence and non-asthmatics (formalde- est aesthetics. assessing benefits of reducing mobile hyde). Ecosystem functions. source air toxics. EPA continues to work ± Irritation of the eyes, skin, to address these limitations; however, Exposure to UVb ( ). and respiratory tract (acet- b PM Health .... Premature mortality—short aldehyde). we do not anticipate having methods c term exposures. Upper respiratory tract irrita- and tools available for national-scale Low birth weight. tion and congestion (acro- application in time for the analysis of Pulmonary function. lein). the final rules. Please refer to the final Chronic respiratory diseases HC/Toxics Direct toxic effects to ani- Mobile Source Air Toxics Rule RIA for other than chronic bron- Welfare f. mals. more discussion.518 chitis. Bioaccumulation in the food Non-asthma respiratory chain. E. Economy-Wide Impacts emergency room visits. Damage to ecosystem func- It is anticipated that this proposed Exposure to UVb (±). tion. rulemaking will have impacts on the PM Welfare .... Residential and recreational Odor. visibility in non-Class I U.S. economy that extend beyond the areas. a In addition to primary economic endpoints, two sectors most directly affected—the Soiling and materials dam- there are a number of biological responses transportation and agriculture sectors. age. that have been associated with ozone health Consider how the proposed rulemaking Damage to ecosystem func- effects including increased airway responsive- ness to stimuli, inflammation in the lung, acute will affect the overall U.S. economy. By tions. inflammation and respiratory cell damage, and requiring 36 billion gallons of renewable Exposure to UVb (±). increased susceptibility to respiratory infection. transportation fuels in the U.S. Nitrogen and Commercial forests due to The public health impact of these biological re- transportation sector by 2022, it is sponses may be partly represented by our Sulfate Dep- acidic sulfate and nitrate anticipated that the cost of motor osition Wel- deposition. quantified endpoints. fare. b In addition to primary economic endpoints, vehicle fuels will increase. This cost Commercial freshwater fish- there are a number of biological responses increase will impact all sectors of the that have been associated with PM health ef- economy that use motor vehicles fuels, ing due to acidic deposi- fects including morphological changes and al- tion. tered host defense mechanisms. The public as intermediate inputs to production. Recreation in terrestrial eco- health impact of these biological responses For example, manufacturing firms will systems due to acidic dep- may be partly represented by our quantified see an increase in their shipping costs. osition. endpoints. Households will also be impacted as Existence values for cur- c While some of the effects of short-term ex- posures are likely to be captured in the esti- consumers of these goods, and directly rently healthy ecosystems. as consumers of motor vehicle fuels. Commercial fishing, agri- mates, there may be premature mortality due to short-term exposure to PM not captured in culture, and forests due to Additionally, it is anticipated that the the cohort studies used in this analysis. How- production of renewable fuels will nitrogen deposition. ever, the PM mortality results derived from the Recreation in estuarine eco- expert elicitation do take into account pre- increase the demand for U.S. farm systems due to nitrogen mature mortality effects of short term expo- deposition. sures. 517 Science Advisory Board. 2001. NATA— Ecosystem functions. d May result in benefits or disbenefits. Evaluating the National-Scale Air Toxics e Passive fertilization. Many of the key hydrocarbons related to Assessment for 1996—an SAB Advisory. http:// CO Health ...... Behavioral effects. this rule are also hazardous air pollutants list- www.epa.gov/ttn/atw/sab/sabrev.html. ed in the Clean Air Act. Please refer to Sec- 518 Hydrocarbon Cancer (benzene, 1,3-buta- U.S. EPA. 2007. Control of Hazardous Air tion VII.E.4 for additional information on the Pollutants From Mobile Sources—Regulatory (HC)/Toxics diene, formaldehyde, acet- health effects of air toxics. Impact Analysis. Assessment and Standards Health e. aldehyde, ethanol). f Please refer to Section VII.E for additional Division. Office of Transportation and Air Quality. Anemia (benzene). information on the welfare effects of air toxics. EPA420R–07–002. February.

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products, and increase farm incomes. Standard program becomes revenue relative to prices for other crops, more This will have ripple effects for sectors neutral. If taxes are raised to offset the farmers are choosing to grow corn every that supply inputs to the U.S. farm revenue loss from the subsidies, the year (continuous corn). Continuous corn sector (e.g. tractors), and sectors that taxes could have a distortionary impact production results in significantly demand outputs from the farm sector. on the economy. For example, if taxes greater nitrogen losses annually than a The sum of all of these impacts will are raised on labor and capital, then corn-soybean rotation and lower yields affect the total levels of output and there will less output. To account for per acre. In response, farmers may add consumption in the U.S. economy. the potential distortionary impacts of higher rates of nitrogen fertilizer to try Because multiple markets beyond the increased taxes, as a rule of thumb, it is to match yields of corn grown in transportation sector will be affected by sometimes assumed that for each dollar rotation. Growing continuous corn also the proposed rulemaking, a general of tax revenue raised, there is a $0.25 increases the viability of pests such as equilibrium analysis is required to loss in output in the economy. We corn rootworm. Farmers may increase provide a more accurate picture of the intend to consider the impact of the use of pesticides to control these pests. social cost of the policy than a partial expansion of biofuel subsidies from the As corn acres increase, use of the equilibrium analysis. (A partial RFS2 in the context of the economy- common herbicides like atrazine and equilibrium analysis looks at the wide modeling. glyphosate (e.g. Roundup) may also impacts in one market of the economy increase. X. Impacts on Water but does not attempt to capture the full High corn prices may encourage interaction of a policy change in all A. Background farmers to grow corn on lands that are markets simultaneously, as a general As the production and price of corn marginal for row production such as hay equilibrium model does). and other biofuel feedstocks increase, land or pasture. Typically, agricultural In order to estimate the impacts of the there may be substantial impacts to both producers apply far less fertilizer and RFS2 rule on U.S. gross domestic water quality and water quantity. To pesticide on pasture land than land in product (GDP) and consumption, EPA analyze the potential water-related row crops. Corn yield on these marginal intends to use an economy-wide, impacts, EPA focused on agricultural lands will be lower and may require computable general equilibrium (CGE) corn production for several reasons. higher fertilizer rates. However since model between proposal and the final Corn acres have increased dramatically, nitrogen fertilizer prices are tied to oil prices, fertilizer costs have increased rule. This model will use detailed fuel 20% in 2007. Although corn acres sector cost estimates provided in significantly recently. It is unclear how declined seven percent in 2008, total Section VIII as inputs to determine the agricultural producers have responded corn acres remained the second highest economy-wide impacts of the to these increases in both corn and since 1946.519 Corn has the highest rulemaking. The economy-wide model fertilizer prices. EPA solicits comments fertilizer and pesticide use per acre and to be utilized for this analysis is the on the impact of corn and fertilizer accounts for the largest share of nitrogen Intertemporal General Equilibrium prices on nitrogen fertilizer use. fertilizer use among all crops.520 Corn Model (IGEM). IGEM is a model of the Tile drainage is another important generally utilizes only 40 to 60% of the U.S. economy with an emphasis on the factor in determining the losses of applied nitrogen fertilizer. The energy and environmental aspects. It is fertilizer from cropland. Tile drainage remaining nitrogen is available to leave a dynamic model, which depicts growth consists of subsurface tiles or pipes that of the economy due to capital the field and runoff to surface waters, move water from wet soils to surface accumulation, technical change and leach into ground water, or volatilize to waters quickly so crops can be planted. population change. It is a detailed the air where it can return to water Tile drainage has transformed large multi-sector model covering thirty-five through depositional processes. expanses of historic wetland soils into There are three major pathways for industries of the U.S. economy. It also productive agriculture lands. However, contaminants to reach water from depicts changes in consumption the tile drains also move fertilizers and agricultural lands: run off from the patterns due to demographic changes, pesticides more quickly to surface land’s surface, subsurface tile drains, or price and income effects. The waters without any of the attenuation leaching to ground water. A variety of substitution possibilities for both that would occur if these contaminants management factors influence the producers and consumers in IGEM are moved through soils or wetlands. The potential for contaminants such as driven by model parameters that are highest proportion of tile drainage fertilizers, sediment, and pesticides to based on observed market behavior occurs in the Upper Mississippi and the reach water from agricultural lands. revealed over the past forty to fifty Ohio-Tennessee River basins.521 years. EPA seeks comment on the These factors include nutrient and The increase in corn production and modeling approach to be utilized to pesticide application rates and prices may also have significant impacts estimate the economy-wide impacts of application methods, use of on voluntary conservation programs the RFS2 proposal. conservation practices and crop funded by the U.S. Department of An additional issue that arises is how rotations by farmers, and acreage and Agriculture (USDA) that are important biofuel subsidies are considered from an intensity of tile drained lands. to protect water quality. As land values Historically, corn has been grown in economy-wide perspective. The increase due to higher crop prices, rotation with other crops, especially Renewable Fuels Standard, by USDA payments may not keep up with soybeans. As corn prices increase encouraging the use of biofuels, will the need for farmers and tenant farmers, result in an expansion of subsidy to make an adequate return. For payments by the U.S. For example, each 519 U.S. Department of Agriculture, National Agricultural Statistics Service, ‘‘Acreage’’, 2008, example, farmland in Iowa increased an gallon of corn-based ethanol sold in the available online at: http:// U.S. qualifies for a $0.45/gallon subsidy. usda.mannlib.cornell.edu/usda/current/Acre/Acre- 521 U.S. Environmental Protection Agency, EPA One assumption that could be made is 06–30–2008.pdf. Science Advisory Board, Hypoxia in the northern that biofuel subsidies, which are a loss 520 Committee on Water Implications of Biofuels Gulf of Mexico, EPA–SAB–08–003, 275 p, available Production in the United States, National Research online at: http://yosemite.epa.gov/sab/ in revenue to the U.S. government, are Council, 2008, Water implications of biofuels sabproduct.nsf/ offset by an increase in taxes by the U.S. production in the United States, The National C3D2F27094E03F90852573B800601D93/$File/EPA– In this case, the Renewable Fuels Academies Press, Washington, DC, 88 p. SAB–08–003complete.unsigned.pdf.

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average of 18% in 2007 from 2006 There are also known impacts in over 80 of Mexico using the USGS SPARROW prices. estuaries/bays, and thousands of rivers, model. They estimated that agricultural Both land retirement programs like streams, and lakes. Waterbodies in sources contribute more than 70% of the the Conservation Reserve Program (CRP) virtually every state and territory in the delivered nitrogen and phosphorus. and working land programs like the U.S. are impacted by nutrient-related Corn and soybean production accounted Environmental Quality Incentives degradation. Reducing nutrient for 52% of nitrogen delivery and 25% Program (EQIP) can be affected. Under pollution is a priority for EPA. The of the phosphorus. CRP, USDA contracts with farmers to combustion of transportation fuels Several recent scientific reports have take land out of agricultural production results in significant loadings of estimated the impact of increasing corn and plant grasses or trees. Generally nitrogen from air deposition to acres for ethanol in the Gulf of Mexico farmers put land into CRP because it is waterbodies around the country, watershed. Donner and Kucharik’s 525 not as productive and has other including the Chesapeake Bay, Long study showed increases in nitrogen characteristics that make the cropland Island Sound, and Lake Tahoe. export to the Gulf as a result of more environmentally sensitive, such as increasing corn ethanol production from high erosion rates. CRP provides 2. Gulf of Mexico 2007 levels to 15 billion gallons in 2022. valuable environmental benefits both for Production of corn for ethanol may They concluded that the expansion of water quality and for wildlife habitat. exacerbate existing serious water quality corn-based ethanol production could Midwestern states, where much of U.S. problems in the Gulf of Mexico. make it almost impossible to meet the corn is grown, tend to have lower CRP Nitrogen fertilizer applications to corn Gulf of Mexico nitrogen reduction goals reenrollment rates than the national are already the major source of total without a ‘‘radical shift’’ in feed average. Under EQIP, USDA makes cost- nitrogen loadings to the Mississippi production, livestock diet, and share payments to farmers to implement River. A large area of low oxygen, or management of agricultural lands. The conservation practices. Some of the hypoxia, forms in the Gulf of Mexico study estimated a mean dissolved most cost-effective practices include: every year, often called the ‘‘dead inorganic nitrogen load increase of 10 to Riparian buffers; crop rotation; zone.’’ The primary cause of the 18% from 2007 to 2022 to meet the 15 appropriate rate, timing, and method of hypoxia is excess nutrients (nitrogen billion gallon corn ethanol goal. EPA’s fertilizer application; cover crops; and, and phosphorus) from the Upper Science Advisory Board report to the on tile-drained lands, treatment Midwest flowing into the Mississippi Mississippi River/Gulf of Mexico wetlands and controlled drainage. River to the Gulf. These nutrients trigger Watershed Task Force estimated that Producers may be less willing to excessive algal growth (or corn grown for ethanol will result in an participate and require higher payments eutrophication) resulting in reduced additional national annual loading of to offset perceived loss of profits sunlight, loss of aquatic habitat, and a almost 300 million pounds of nitrogen. through implementation of conservation decrease in oxygen dissolved in the An estimated 80% of that nitrogen practices. water. Hypoxia threatens commercial loading or 238 million pounds will occur in the Mississippi-Atchafalaya 1. Ecological Impacts and recreational fisheries in the Gulf because fish and other aquatic species River basin and contribute nitrogen to Nitrogen and phosphorus enrichment 526 cannot live in the low oxygen waters. the hypoxia in the Gulf of Mexico. due to human activities is one of the In 2008, the hypoxic zone was the leading problems facing our nation’s B. Upper Mississippi River Basin second largest since measurements lakes, reservoirs, and estuaries. Nutrient Analysis began in 1985—8,000 square miles, an enrichment also has negative impacts on To provide a quantitative estimate of area larger than the state of aquatic life in streams; adverse health the impact of this proposal and Massachusetts, and slightly larger than effects on humans and domestic 522 production of corn ethanol generally on animals; and impairs aesthetic and the 2007 measurement. The water quality, EPA conducted an recreational use. Excess nutrients can Mississippi River/Gulf of Mexico analysis that modeled the changes in lead to excessive growth of algae in Watershed Nutrient Task Force’s ‘‘Gulf loadings of nitrogen, phosphorus, and rivers and streams, and aquatic plants in Hypoxia Action Plan 2008’’ calls for a sediment from agricultural production all waters. For example, declines in 45% reduction in both nitrogen and in the Upper Mississippi River Basin invertebrate community structure have phosphorus reaching the Gulf to reduce (UMRB). The UMRB drains 523 been correlated directly with increases the size of the zone. An additional approximately 189,000 square miles, in phosphorus concentration. High reduction in nitrogen and phosphorus including large parts of the states of concentrations of nitrogen in the form of reduction would be necessary as a result Illinois, Iowa, Minnesota, Missouri, and ammonia are known to be toxic to of increased corn production for ethanol Wisconsin. Small portions of Indiana, aquatic animals. Excessive levels of and climate change impacts. Michigan, and South Dakota are also 524 algae have also been shown to be Alexander, et al. modeled the within the basin. EPA selected the damaging to invertebrates. Finally, fish sources of nutrient loadings to the Gulf UMRB because it is representative of the and invertebrates will experience many potential issues associated with 522 Louisiana Universities Marine Consortium, growth problems and can even die if 2008, ‘Dead zone’ again rivals record size, available ethanol production, including its either oxygen is depleted or pH online at: http://www.gulfhypoxia.net/research/ connection to major water quality increases are severe; both of these shelfwidecruises/2008/PressRelease08.pdf. conditions are symptomatic of 523 Mississippi River/Gulf of Mexico Watershed Environmental Science and Technology, v. 42, no. eutrophication. As a biologic system Nutrient Task Force, 2008, Gulf hypoxia action plan 3, p. 822–830, available online at: http:// 2008 for reducing, mitigating, and controlling pubs.acs.org/cgi-bin/abstract.cgi/esthag/2008/42/ becomes more enriched by nutrients, hypoxia in the northern Gulf of Mexico and i03/abs/es0716103.html. different species of algae may spread improving water quality in the Mississippi River 525 Donner, S. D. and Kucharik, C. J., 2008, Corn- and species composition can shift. basin, 61 p., Washington, DC, available online at: based ethanol production compromises goal of Nutrient pollution is widespread. The http://www.epa.gov/msbasin/actionplan.htm. reducing nitrogen export by the Mississippi River, 524 Alexander, R.B., Smith, R.A., Schwarz, G.E., PNAS, v. 105, no. 11, p. 4513–4518, available most widely known examples of Boyer, E.W., Nolan, J.V., and Brakebill, J.W., 2008, online at: http://www.pnas.org/content/105/11/ significant nutrient impacts include the Differences in phosphorus and nitrogen delivery to 4513.full. Gulf of Mexico and the Chesapeake Bay. the Gulf of Mexico from the Mississippi River basin, 526 U.S. EPA, supra note 4.

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concerns such as Gulf of Mexico Baseline Scenario against which to volumes of 12 billion gallons a year hypoxia, large corn production, and analyze the impact of increased corn (BGY) for 2010, and 15 BGY for 2015 to numerous ethanol production plants. production for biofuel. For simplicity’s 2022. These volumes were adjusted for For more details on the analysis, see sake, we refer to the baseline as 2005, the UMRB based on a 42.3% ratio of Chapter 6 in the DRIA. but like most water quality modeling, ethanol production capacity within the On average the UMRB contributes we had to use a range of data sets for UMRB compared to national capacity. about 39% of the total nitrogen loads the inputs. As noted above corn acres The resulting UMRB ethanol production and 26% of the total phosphorus loads did not increase significantly until the goals were converted into the to the Gulf of Mexico.527 The high 2007 crop year. While this baseline does corresponding required corn production percentage of nitrogen from the UMRB not directly quantify the impacts of this acreage, i.e. the extent of corn acreage is primarily due to the large inputs of proposal on water quality, it is useful in needed to meet those ethanol fertilizer for agriculture and the 60% of understanding the magnitude of the production goals. Annual increases in cropland that is tile drained. Although impacts of corn production for biofuels. corn yield of 1.23% were built into the nitrogen inputs to the UMRB in recent EPA plans to conduct additional future scenarios. Fewer corn acres were years is fairly level, there is a 21% analyses for the final rule that will needed to meet ethanol production decline in net inputs from humans. The compare the reference case biofuel goals after the 2015 scenario due to Science Advisory Board report volumes to the RFS2 volumes. those yield increases. attributes this decline to higher amount The SWAT model was applied (i.e., Table X.B.3–1 and Table X.B.3–2 of nitrogen removed during harvest, due calibrated) to the UMRB using 1960 to summarize the model outputs both to higher crop yields. For the same time 2001 weather data and flow and water within the UMRB and at the outlet of period, phosphorus inputs increased quality data from 13 USGS gages on the the UMRB in the Mississippi River at 12%. mainstem of the Mississippi River. The Grafton, Illinois for each of the four 1. SWAT Model 42-year SWAT model runs were scenario years: 2010, 2015, 2020, and EPA selected the SWAT (Soil and performed and the results analyzed to 2022. It is important to note that these Water Assessment Tool) model to assess establish runoff, sediment, nitrogen, and results only estimate loadings from the nutrient loads from changes in phosphorous loadings from each of the Upper Mississippi River basin, not the agricultural production in the UMRB. 131 8-digit HUC subwatersheds and the entire Mississippi River watershed. As Models are the primary tool that can be larger 4-digit subbasins, along with the noted earlier, the UMRB contributes used to predict future impacts based on total outflow from the UMRB and at the about 39% of the total nitrogen loads alternative scenarios. SWAT is a various USGS gage sites along the and 26% of total phosphorus loads to physical process model developed to Mississippi River. These results the Gulf of Mexico. Due to the timing of quantify the impact of land management provided the Baseline Scenario model this proposal, we were not able to assess practices in large, complex values to which the future alternatives the local impact in smaller watersheds watersheds.528 are compared. within the UMRB. Those impacts may 3. Alternative Scenarios be significantly different. The 2. Baseline Model Scenario decreasing nitrogen load over time is In order to assess alternative potential SWAT scenario analyses were likely attributed to the increased corn future conditions within the UMRB, performed for the years 2010, 2015, yield production, resulting in greater EPA developed a SWAT model of a 2020, and 2022 with corn ethanol plant uptake of nitrogen.

TABLE X.B.3–1—CHANGES IN NUTRIENT LOADINGS WITHIN THE UPPER MISSISSIPPI RIVER BASIN FROM THE 2005 BASELINE SCENARIO

2005 Baseline 2010 2015 2020 2022

Nitrogen ...... 1897.0 million lbs ...... +5.1% +4.2% +2.2% +1.6% Phosphorus ...... 176.6 million lbs ...... +2.3% +1.1% +0.6% +0.4%

About 24% of nitrogen and 25% of to nitrous gas, a powerful greenhouse Total sediment outflow showed very phosphorus leaving agricultural fields gas that has 300 times the climate- little change over all scenarios. This is was assimilated (taken by aquatic plants warming potential of carbon dioxide, likely due to the corn being modeled as or volatilized) before reaching the outlet the major greenhouse. Thus, a water well-managed crop in terms of sediment of the UMRB. The assimilated nitrogen pollutant becomes an air pollutant until loss, primarily due to the corn stover is not necessarily eliminated as an it is either captured through biological remaining on the fields following environmental concern. Five percent or sequestration or converted fully to harvest. more of the nitrogen can be converted elemental nitrogen.

TABLE X.B.3–2—CHANGES FROM THE 2005 BASELINE TO THE MISSISSIPPI RIVER AT GRAFTON, ILLINOIS FROM THE UPPER MISSISSIPPI RIVER BASIN

2005 Baseline 2010 2015 2020 2022

Average corn yield (bushels/acre) ...... 141 ...... 150 158 168 171

527 Mississippi River/Gulf of Mexico Watershed tool: Historical development, applications, and www.card.iastate.edu/environment/items/ Nutrient Task Force, supra note 6. future research directions. Transactions of the asabe_swat.pdf. 528 Gassman, P.W., Reyes, M.R., Green, C.H., American Society of Agricultural and Biological Arnold, J.G., 2007, The soil and water assessment Engineers, v. 50, no. 4, p. 1211–1240. http://

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TABLE X.B.3–2—CHANGES FROM THE 2005 BASELINE TO THE MISSISSIPPI RIVER AT GRAFTON, ILLINOIS FROM THE UPPER MISSISSIPPI RIVER BASIN—Continued

2005 Baseline 2010 2015 2020 2022

Nitrogen ...... 1,433.5 million lbs ...... +5.5% +4.7% +2.5% +1.8% Phosphorus ...... 132.4 million lbs ...... +2.8% +1.7% +0.98% +0.8% Sediment ...... 6.4 million tons ...... +0.5% +0.3% +0.2% +0.1%

After evaluating comments on this 2. Ethanol Production supply is a local issue, and there have proposal, if time and resources permit, There are three principal sources of been concerns with water consumption EPA may conduct additional water discharges to water from ethanol plants: as new plants go online. Some facilities quality analyses using the SWAT model Reject water from water purification, are tapping into deeper aquifers as a in the UMRB. Potential future analyses cooling water blowdown, and off-batch source of water. These deeper water could include: (1) Determination of the ethanol. Most ethanol facilities use on- resources tend to contain higher levels most sensitive assumptions in the site wells to produce the process water of minerals and this can further increase model, (2) water quality impacts from for the ethanol process. Groundwater the concentration of minerals in reverse the changes in ethanol volumes between sources are generally not suitable for osmosis reject water. Geographic impacts of water use vary. A typical the reference case and this proposal, (3) process water because of their mineral plant producing 50 million gallons of removing corn stover for cellulosic content. Therefore, the water must be ethanol per year uses a minimum of 175 ethanol, and (4) a case study of a smaller treated, commonly by reverse osmosis. million gallons of water annually. In watershed to evaluate local water For every two gallons of pure water Iowa, water consumption from ethanol quality impacts that are impossible to produced, about a gallon of brine is refining accounts for about seven discharged as reject water from this ascertain at the scale of the UMRB. percent of all industrial water use, and process. Most estimates of water EPA solicits comments on the is projected to be 14% by 2012—or consumption in ethanol production are scenarios developed for this proposal about 50 million gallons per day. and additional future analyses. At this based on the use of clean process water and neglect the water discharged as a. Distillers Grain with Solubles time, we are not able to assess the reject water. impact of these additional loadings on Distillers grain with solubles (DGS) is The largest source of wastewater the size of the Gulf of Mexico hypoxia an important co-product of ethanol discharge is reverse osmosis reject water production. About one-third of the corn zone or water quality within the UMRB. from process water purification. The EPA also solicits comments on the processed into ethanol is converted into reverse osmosis process concentrates DGS. DGS has become an increasingly significance of the modeled increases in groundwater minerals to levels where nitrogen and phosphorus loads. important feed component for confined they can have water quality impacts. livestock. DGS are higher in crude C. Additional Water Issues There is really no means of ‘‘treating’’ protein (nitrogen) and three to four these ions to reduce toxicity, other than times higher in phosphorus relative to Water quality and quantity impacts further concentration and disposal, or traditional feeds. When nitrogen and resulting from corn ethanol production use of instream dilution. Some facilities phosphorus are fed in excess of the go beyond our ability to model. The have had to construct long pipelines to animal’s needs, these nutrients are following issues are summarized to get access to dilution so they can meet excreted in the manure. When manure provide additional context about the water quality standards. Ethanol plants is applied to crops at rates above their broader range of potential impacts. See also discharge cooling water blowdown, nutrient needs or at times the crop can Chapter 6 in the DRIA for more where some water is discharged to avoid not use the nutrients, the nutrients can discussion of these issues. the buildup of minerals in the cooling runoff to surface waters or leach into system. These brines are similar to the ground waters. 1. Chesapeake Bay Watershed reject water described above. In Livestock producers can limit the addition, if off-batch ethanol product or potential pollution from manure Agricultural lands contribute more process water is discharged, the waste applications to crops by implementing nutrients to the Chesapeake Bay than stream can have high Biochemical comprehensive nutrient management. any other land use. Chesapeake Bay Oxygen Demand (BOD) levels. BOD Due to the substantially higher Program partners have pledged to directly affects the amount of dissolved phosphorus content of manure from significantly reduce nutrients to the Bay oxygen in rivers and streams. The livestock fed DGS, producers will to meet water quality goals. To estimate greater the BOD, the more rapidly potentially need significantly more the increase in nutrient loads to the Bay oxygen is depleted in the stream. The acres to apply the manure so that from changes to agricultural crop consequences of high BOD are the same phosphorus will not be applied at rates production from 2005 to 2008, the as those for low dissolved oxygen: above the needs of the crops. This is a Chesapeake Bay Program Watershed Aquatic organisms become stressed, particularly important concern in areas Model Phase 4.3 and Vortex models suffocate, and die. where concentrated livestock were utilized. Total nitrogen loads Older generation production facilities production already produces more increased by almost 2.4 million pounds used four to six gallons of process water phosphorus in the manure than can be from an increase of almost 66,000 corn to produce a gallon of ethanol, but taken up by crops or pasture land in the acres. As agriculture land use shifts newer facilities use less than three vicinity. from hay and pasture to more gallons of water in the production Several recent studies have indicated intensively fertilized row crops, this process. Most of this water savings is that DGS may have an impact on food analysis estimates that nitrogen loads gained through improved recycling of safety. Cattle fed DGS have a higher increase by 8.8 million pounds. water and heat in the process. Water prevalence of a major food-borne

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pathogen, E. coli O157, than cattle processes produce washwater that has In evaluating this option, EPA is without DGS in their diets.529 More very high BOD levels. The high strength seeking comment on whether it would research is needed to confirm these of these wastes can overload and disrupt be appropriate to find that emission studies and devise methods to eliminate municipal treatment plants. products from such transportation fuels, the potential risks. Crude glycerin is an important side including renewable fuels, are ‘‘causing product from the biodiesel process and or contributing’’ to ‘‘water pollution’’ b. Ethanol Leaks and Spills is about 10% of the final product. The and that this water pollution ‘‘may The potential for exposure to fuel rapid development of the biodiesel reasonably be anticipated to endanger components and/or additives can occur industry has caused a glut of glycerin the public health or welfare.’’ EPA is when underground fuel storage tanks production and many facilities dispose also seeking comment on whether it leak fuel into ground water that is used of glycerin. Poor handling of crude would be allowable and appropriate to for drinking water supplies or when glycerin has resulted in upset of sewage ‘‘control or prohibit the manufacture spills occur that contaminate surface treatment plants and fish kills. * * * ’’ of a fuel by requiring that drinking water supplies. Ethanol manufacturers of such fuels, such as biodegrades quickly and is not 4. Water Quantity manufacturers of a biofuel, use, or necessarily the pollutant of greatest Water demand for crop production for certify that they used, only corn concern in these occurrences. Instead, ethanol could potentially be much feedstocks grown using farming ethanol’s high biodegradability can larger than biorefinery demand. practices designed to reduce nutrient cause the plume of BTEX (benzene, According to the National Research water pollution. For example, is this a toluene, ethylbenzene and xylenes) Council, the demand for water to reasonable way to ‘‘offset’’ water compounds in fuel to extend farther (by irrigate crops for biofuels will not have pollution caused, in part, by air as much as 70%) 530 and persist longer an impact on national water use, but it deposition of nitrogen to water from in ground water, thereby increasing is likely to have significant local and combustion of transportation fuels with potential exposures to these regional impacts.531 The impact is crop reductions of nitrogen runoff to water compounds. and region specific, but could be from corn feedstock by means of such With the increasing use of ethanol in especially great in areas where new ‘‘controls’’ on the manufacture of the fuel supply nationwide, it is acres are irrigated. biofuels adopted pursuant to section important to understand the impact of 211(c). In the alternative, would this be 5. Drinking Water ethanol on the existing tank a reasonable way to attempt to offset infrastructure. Given the corrosivity of Increased corn production for ethanol water pollution caused by the ethanol, there is concern regarding the may increase the occurrence of nitrate, production of the feedstock associated increased potential for leaks from nitrite, and the herbicide atrazine in with the production of the biofuel based existing gas stations and subsequent sources of drinking water. Under the on section 211(c). impacts on drinking water supplies. In Safe Drinking Water Act, EPA has EPA is seeking comment and 2007, there were 7,500 reported releases established enforceable standards for suggestions on how biofuel from underground storage tanks. these contaminants to protect public manufacturers might establish that their Therefore, EPA is undertaking analyses health. Increases in occurrence of these biofuel feedstock was grown with designed to assess the potential impacts contaminants may raise costs to public appropriate practices to control nutrient of ethanol blends on tank infrastructure water systems through increased runoff (e.g., require a program similar to and leak detection systems and treatment needs or increased pumping the one used for compliance with the determine the resulting water quality costs where ethanol production is restrictions in the definition of impacts. accelerating the long running depletion renewable biomass on previously of aquifers. There is also a risk of cleared agricultural land). Finally, EPA 3. Biodiesel Plants decreased supplies of drinking water in is seeking comments on other Biodiesel plants use much less water communities where aquifers are being approaches, mechanisms, or authorities than ethanol plants. Water is used for depleted and potential contamination that might be adopted in the renewable washing impurities from the finished due to leaks from gasoline stations using fuels rule that are likely to have the product. Water use is variable, but is higher blends of ethanol. effect of reducing the water quality usually less than one gallon of water for impacts of biofuels. each gallon of biodiesel produced. D. Request for Comment on Options for Larger well-designed plants use water Reducing Water Quality Impacts XI. Public Participation more sparingly, while smaller producers EPA is seeking comment on how best We request comment on all aspects of use more water. Some facilities recycle to reduce the impacts of biofuels on this proposal. This section describes washwater, which reduces water water quality. EPA is seeking comment how you can participate in this process. on the use of section 211(c) of the Clean consumption. The strength of process A. How Do I Submit Comments? wastewater from biodiesel plants is Air Act, as amended by EISA, to address highly variable. Most production these water quality issues. Section We are opening a formal comment 211(c) gives the EPA administrator the period by publishing this document. We 529 Jacob, M. D., Fox, J. T., Drouillard, J. S., discretion to ‘‘control’’ the manufacture will accept comments during the period Renter, D. G., Nagaraja, T. G., 2008, Effects of dried and sale of a motor vehicle indicated under DATES in the first part distillers’ grain on fecal prevalence and growth of transportation fuel based on a finding of this proposal. If you have an interest Escherichia coli O157 in batch culture in the proposed program described in fermentations from cattle, Applied and that the fuel, or its emission product, Environmental Microbiology, v. 74, no. 1, p. 38–43, ‘‘causes or contributes’’ to air pollution this document, we encourage you to available online at: http://aem.asm.org/cgi/content/ or water pollution that may reasonably comment on any aspect of this abstract/74/1/38 be anticipated to endanger the public rulemaking. We also request comment 530 Ruiz-Aguilar, G. M. L.; O’Reilly, K.; Alvarez, on specific topics identified throughout P. J. J., 2003, Forum: A comparison of benzene and health or welfare. toluene plume lengths for sites contaminated with this proposal. regular vs. ethanol-amended gasoline, Ground 531 Committee on Water Implications of Biofuels Your comments will be most useful if Water Monitoring and Remediation, v. 23, p. 48–53. Production in the United States, supra note 2. you include appropriate and detailed

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supporting rationale, data, and analysis. C. Will There Be a Public Hearing? identification number in the subject line Commenters are especially encouraged We will hold a public hearing in on the first page of your response. It to provide specific suggestions for any Washington DC on June 9, 2009 at the would also be helpful if you provided changes to any aspect of the regulations location shown below. The hearing will the name, date, and Federal Register that they believe need to be modified or start at 10 a.m. local time and continue citation related to your comments. improved. You should send all until everyone has had a chance to comments, except those containing XII. Statutory and Executive Order speak. Reviews proprietary information, to our Air The Dupont Hotel, 1500 New Docket (see ADDRESSES in the first part Hampshire Avenue, NW., Washington, A. Executive Order 12866: Regulatory of this proposal) before the end of the DC 20036, Phone# 202–483–6000. Planning and Review comment period. If you would like to present testimony Under section 3(f)(1) of Executive You may submit comments at the public hearing, we ask that you electronically, by mail, or through hand Order (EO) 12866 (58 FR 51735, October notify the contact person listed under 4, 1993), this action is an ‘‘economically delivery/courier. To ensure proper FOR FURTHER INFORMATION CONTACT in receipt by EPA, identify the appropriate significant regulatory action’’ because it the first part of this proposal at least 8 is likely to have an annual effect on the docket identification number in the days before the hearing. You should subject line on the first page of your economy of $100 million or more. estimate the time you will need for your Accordingly, EPA submitted this action comment. Please ensure that your presentation and identify any needed comments are submitted within the to the Office of Management and Budget audio/visual equipment. We suggest (OMB) for review under EO 12866 and specified comment period. Comments that you bring copies of your statement received after the close of the comment any changes made in response to OMB or other material for the EPA panel and period will be marked ‘‘late.’’ EPA is not recommendations have been the audience. It would also be helpful required to consider these late documented in the docket for this if you send us a copy of your statement comments. If you wish to submit action. or other materials before the hearing. In addition, EPA prepared an analysis Confidential Business Information (CBI) We will make a tentative schedule for or information that is otherwise of the potential costs and benefits the order of testimony based on the associated with this action. This protected by statute, please follow the notifications we receive. This schedule instructions in Section XI.B. analysis is contained in the Draft will be available on the morning of the Regulatory Impact Analysis, which is B. How Should I Submit CBI to the hearing. In addition, we will reserve a available in the docket for this Agency? block of time for anyone else in the rulemaking and at the docket internet Do not submit information that you audience who wants to give testimony. address listed under ADDRESSES in the consider to be CBI electronically We will conduct the hearing first part of this proposal. A more through the electronic public docket, informally, and technical rules of complete assessment of the costs and www.regulations.gov, or by e-mail. evidence will not apply. We will benefits associated with this Action will Send or deliver information identified arrange for a written transcript of the be completed for the Final Rule. as CBI only to the following address: hearing and keep the official record of B. Paperwork Reduction Act U.S. Environmental Protection Agency, the hearing open for 30 days to allow Assessment and Standards Division, you to submit supplementary The information collection 2000 Traverwood Drive, Ann Arbor, MI, information. You may make requirements in this proposed rule have 48105, Attention Docket ID EPA–HQ– arrangements for copies of the transcript been submitted for approval to the OAR–2005–0161. You may claim directly with the court reporter. Office of Management and Budget information that you submit to EPA as D. Comment Period (OMB) under the Paperwork Reduction CBI by marking any part or all of that Act, 44 U.S.C. 3501 et seq. The information as CBI (if you submit CBI The comment period for this rule will Information Collection Request (ICR) on disk or CD–ROM, mark the outside end on July 27, 2009. document prepared by EPA has been of the disk or CD–ROM as CBI and then E. What Should I Consider as I Prepare assigned EPA ICR number 2333.01. A identify electronically within the disk or My Comments for EPA? draft Supporting Statement has been placed in the docket for public CD–ROM the specific information that You may find the following comment. is CBI). Information so marked will not suggestions helpful for preparing your The Agency proposes to collect be disclosed except in accordance with comments: procedures set forth in 40 CFR part 2. • Explain your views as clearly as information to ensure compliance with In addition to one complete version of possible. the provisions in this rule. This the comments that include any • Describe any assumptions that you includes a variety of requirements for information claimed as CBI, a copy of used. transportation fuel refiners, blenders, the comments that does not contain the • Provide any technical information marketers, distributors, importers, and information claimed as CBI must be and/or data you used that support your exporters. The types of information submitted for inclusion in the public views. proposed to be collected includes, but is docket. If you submit the copy that does • If you estimate potential burden or not limited to: registrations, periodic not contain CBI on disk orCD–ROM, costs, explain how you arrived at your compliance reports, product transfer mark the outside of the disk or CD–ROM estimate. documentation, transactional clearly that it does not contain CBI. • Provide specific examples to information involving RINs and Information not marked as CBI will be illustrate your concerns. associated volumes of renewable fuel, included in the public docket without • Offer alternatives. and attest engagements. We invite prior notice. If you have any questions • Make sure to submit your comment on the proposed collection of about CBI or the procedures for claiming comments by the comment period information associated with this CBI, please consult the person identified deadline identified. proposed rule. in the FOR FURTHER INFORMATION • To ensure proper receipt by EPA, Section 208(a) of the Clean Air Act CONTACT section. identify the appropriate docket requires that fuel producers provide

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information the Administrator may 20,216 respondents. The estimated validating, and verifying information, reasonably require to determine burden for fuel producers is a total processing and maintaining compliance with the regulations; estimate for both new and existing information, and disclosing and submission of the information is reporting requirements. Burden means providing information; adjust the therefore mandatory. We will consider the total time, effort, or financial existing ways to comply with any confidential all information meeting the resources expended by persons to previously applicable instructions and requirements of section 208(c) of the generate, maintain, retain, or disclose or requirements; train personnel to be able Clean Air Act. provide information to or for a Federal to respond to a collection of As shown in Table XII.B–1, the total agency. This includes the time needed information; search data sources; annual burden associated with this to review instructions; develop, acquire, complete and review the collection of proposal is about 323,922 hours and install, and utilize technology and information; and transmit or otherwise $27,073,827, based on a projection of systems for the purposes of collecting, disclose the information.

TABLE XII.B–1—ESTIMATED BURDEN FOR REPORTING AND RECORDKEEPING REQUIREMENTS

Annual Industry sector Number of Annual burden costs respondents hours ($)

Fuels: Producers of renewable fuels ...... 5,472 112,461 8,893,531 Importers of renewable fuelsa ...... 1,131 22,503 1,824,913 Obligated parties, exportersb ...... 1,410 36,796 2,868,116 RIN ownersc ...... 12,083 148,542 13,102,447 Foreign refinersd ...... 65 3,460 364,940 Foreign RIN owners ...... 30 135 18,105 Retail stations (pump label) ...... 25 25 1,775

Total ...... 20,216 323,922 27,073,827 a Includes foreign producers. b Refiners, exporters fall under this category. c Includes blenders, brokers, marketers, etc. Anyone can own RINs. d Includes small foreign refiners.

In addition to the estimates shown automated collection techniques, EPA rule subject to notice and comment above, we have separately estimated the has established a public docket for this rulemaking requirements under the costs of potential third party disclosure rule, which includes this proposed ICR, Administrative Procedure Act or any that is associated with the proposed under Docket ID number EPA–HQ– other statute unless the agency certifies registration requirements explained in OAR–2005–0161. Submit any comments that the rule will not have a significant this notice of proposed rulemaking. related to the ICR for this proposed rule economic impact on a substantial Potentially affected parties include to EPA and OMB. See ADDRESSES at the number of small entities. Small entities farmers, private forest owners, and other beginning of this notice for where to include small businesses, small biofuel feedstock producers. We submit comments to EPA. Send organizations, and small governmental estimate a total of 43,466 respondents, comments to OMB at the Office of jurisdictions. 83,633 annual burden hours, and Information and Regulatory Affairs, For purposes of assessing the impacts $5,937,943 in annual burden cost Office of Management and Budget, 725 of today’s rule on small entities, small associated with the proposed third party 17th Street, NW., Washington, DC entity is defined as: (1) A small business disclosure. These estimates are 20503, Attention: Desk Office for EPA. explained in an addendum to the draft Since OMB is required to make a as defined by the Small Business Supporting Statement, which has also decision concerning the ICR between 30 Administration’s (SBA) regulations at 13 been placed in the public docket. and 60 days after May 26, 2009, a CFR 121.201 (see table below); (2) a An agency may not conduct or comment to OMB is best assured of small governmental jurisdiction that is a sponsor, and a person is not required to having its full effect if OMB receives it government of a city, county, town, respond to a collection of information by June 25, 2009. The final rule will school district or special district with a unless it displays a currently valid OMB respond to any OMB or public population of less than 50,000; and (3) control number. The OMB control comments on the information collection a small organization that is any not-for- numbers for EPA’s regulations in 40 requirements contained in this proposal. profit enterprise which is independently owned and operated and is not CFR are listed in 40 CFR part 9. C. Regulatory Flexibility Act To comment on the Agency’s need for dominant in its field. this information, the accuracy of the 1. Overview The following table provides an provided burden estimates, and any The Regulatory Flexibility Act (RFA) overview of the primary SBA small suggested methods for minimizing generally requires an agency to prepare business categories potentially affected respondent burden, including the use of a regulatory flexibility analysis of any by this regulation:

Industry a Defined as small entity by SBA if: NAICS a codes

Gasoline and diesel fuel refiners ...... ≤1,500 employees ...... 324110 a North American Industrial Classification System.

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2. Background entities along with regulatory continues to meet those standards and Section 1501 of the Energy Policy Act alternatives that could reduce that requirements as it passes downstream of 2005 (EPAct) amended section 211 of impact. The IRFA is available for review through the distribution system to the the Clean Air Act (CAA) by adding in the docket (in Chapter 7 of the Draft ultimate end user. Registration, section 211(o) which required the Regulatory Impact Analysis) and is reporting, and recordkeeping are Environmental Protection Agency (EPA) summarized below. necessary to track compliance with the to promulgate regulations implementing As required by section 609(b) of the RFS2 requirements and transactions a renewable fuel program. EPAct RFA, as amended by SBREFA, EPA also involving RINs. As discussed above in specified that the regulations must conducted outreach to small entities Sections III.J and IV.E, the proposed ensure a specific volume of renewable and convened a Small Business compliance requirements under the fuel to be used in gasoline sold in the Advocacy Review Panel to obtain advice RFS2 program are in many ways similar to those required under the RFS1 U.S. each year, with the total volume and recommendations of representatives program, with some modifications to increasing over time. The goal of the of the small entities that potentially account for the new requirements of program was to reduce dependence on would be subject to the rule’s EISA. foreign sources of petroleum, increase requirements. Consistent with the RFA/SBREFA domestic sources of energy, and help 5. Related Federal Rules requirements, the Panel evaluated the transition to alternatives to petroleum in assembled materials and small-entity We are aware of a few other current the transportation sector. comments on issues related to elements or proposed Federal rules that are The final Renewable Fuels Standard of the IRFA. A copy of the Panel Report related to the upcoming proposed rule. (RFS1) program rule was published on is included in the docket for this The primary federal rules that are May 1, 2007, and the program began on proposed rule, and a summary of the related to the proposed RFS2 rule under September 1, 2007. Per EPAct, the RFS1 Panel process, and subsequent Panel consideration are the first Renewable program created a specific annual level recommendations, is summarized Fuel Standard (RFS1) rule (72 FR 23900, for minimum renewable fuel use that below. May 1, 2007) and the RFS1 Technical increases over time—resulting in a Amendment Direct Final Rulemaking requirement that 7.5 billion gallons of 3. Summary of Potentially Affected (73 FR 57248, October 2, 2008).533 renewable fuel be blended into gasoline Small Entities 6. Summary of SBREFA Panel Process (for highway use only) by 2012. Under The small entities that will potentially and Panel Outreach the RFS1 program, compliance is based be subject to the renewable fuel on meeting the required annual standard include: Domestic refiners that a. Significant Panel Findings renewable fuel volume percent standard produce gasoline and/or diesel and The Small Business Advocacy Review (published annually in the Federal importers of gasoline and/or diesel into Register by EPA) through the use of Panel (SBAR Panel, or the Panel) the United States. Based on 2007 data, considered regulatory options and Renewable Identification Numbers, or EPA believes that there are about 95 RINs, 38-digit serial numbers assigned flexibilities to help mitigate potential refiners of gasoline and diesel fuel. Of adverse effects on small businesses as a to each batch of renewable fuel these, EPA believes that there are produced. For obligated parties (those result of this rule. During the SBREFA currently 21 refiners producing gasoline Panel process, the Panel sought out and who must meet the annual volume and/or diesel fuel that meet the SBA percent standard), RINs must be received comments on the regulatory small entity definition of having 1,500 options and flexibilities that were acquired to show compliance. employees or less. Further, we believe The Energy Independence and presented to SERs and Panel members. that three of these refiners own The recommendations of the Panel are Security Act of 2007 (EISA) amended refineries that do not meet the section 211(o), and the RFS program, by described below and are also located in Congressional ‘‘small refinery’’ Section 9 of the SBREFA Final Panel requiring higher volumes of renewable definition.532 It should be noted that fuels, to result in 36 billion gallons of Report, which is available in the public because of the dynamics in the refining docket. renewable fuel by 2022. EISA also industry (i.e., mergers and acquisitions), expanded the purview of the RFS1 the actual number of refiners that b. Panel Process program by requiring that these ultimately qualify for small refiner As required by section 609(b) of the renewable fuels be blended into status under the RFS2 program could be RFA, as amended by SBREFA, we also gasoline and diesel fuel (both highway different than this initial estimate. conducted outreach to small entities and nonroad). This expanded the pool and convened an SBAR Panel to obtain 4. Potential Reporting, Recordkeeping, of regulated entities, so the obligated advice and recommendations of and Compliance parties under this RFS2 NPRM will now representatives of the small entities that include certain refiners, importers, and For any fuel control program, EPA potentially would be subject to the blenders of these fuels that were not must have assurance that any fuel rule’s requirements. On July 9, 2008, previously covered by the RFS1 produced meets all applicable standards EPA’s Small Business Advocacy program. In addition to the total and requirements, and that the fuel Chairperson convened a Panel under renewable fuel standard required by Section 609(b) of the RFA. In addition EPAct, EISA added standards for three 532 EPAct defined a ‘‘small refinery’’ as a refinery to the Chair, the Panel consisted of the additional types of renewable fuels to with a crude throughput of no more than 75,000 Division Director of the Assessment and the program (advanced biofuel, barrels of crude per day (at CAA section 211(o)(1)(K)). This definition is based on facility Standards Division of EPA’s Office of cellulosic biofuel, and biomass-based size and is different than SBA’s small refiner Transportation and Air Quality, the diesel) and requires compliance with all definition (which is based on company size). A Chief Counsel for Advocacy of the Small four standards. small refinery could be owned by a larger refiner Business Administration, and the Pursuant to section 603 of the RFA, that exceeds SBA’s small entity standards. SBA’s size standards were established to set apart those EPA prepared an initial regulatory businesses which are most likely to be at an 533 This Direct Final Rule corrects minor flexibility analysis (IRFA) that examines inherent economic disadvantage relative to larger typographical errors and provides clarification on the impact of the proposed rule on small businesses. existing provisions in the RFS1 regulations.

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Administrator of the Office of certain criteria are met. EPA believes comment on its authority and the Information and Regulatory Affairs that providing small refineries (and appropriateness of providing extensions within the Office of Management and thus, small refiners who own small beyond those authorized by section Budget. As part of the SBAR Panel refineries) with an additional exemption 211(o)(9) for small refineries operated process, we conducted outreach with different from that provided by section by a small refiner. The Panel also representatives from representatives of 211(o)(9) raises concerns about recommended that EPA propose to small businesses that would potentially inconsistency with the intent of provide the same extension provision of be affected by the proposed rulemaking. Congress. Congress spoke directly to the 211(o)(9) to small refiners who do not We met with these Small Entity relief that EPA may provide for small own small refineries as is provided for Representatives (SERs) to discuss the refineries, including those small small refiners who do own small potential rulemaking approaches and refineries operated by small refiners, refineries. potential options to decrease the impact and limited it to a blanket exemption i. Delay in Standards of the rulemaking on their industries. through December 31, 2010, with We distributed outreach materials to the additional extensions if the criteria The RFS1 program regulations SERs; these materials included specified by Congress were met. An provide small refiners who operate background on the rulemaking, possible additional or different extension, relying small refineries as well as small refiners regulatory approaches, and possible on a more general provision in section who do not operate small refineries with rulemaking alternatives. The Panel met 211(o)(3), would raise questions about a temporary exemption from the with SERs from the industries that consistency with the intent of Congress. standard through December 31, 2010. would be directly affected by the RFS2 It was agreed that EPA should Small refiner SERs suggested that an rule on July 30, 2008 to discuss the consider the issues raised by the SERs additional temporary exemption for the outreach materials and receive feedback and discussions had by the Panel itself, RFS2 program would be beneficial to on the approaches and alternatives and that EPA should consider them in meeting the standards. EPA detailed in the outreach packet (the comments on flexibility alternatives that evaluated a temporary exemption for at Panel also met with SERs on June 3, would help to mitigate negative impacts least some of the four required RFS2 2008 for an initial outreach meeting). on small businesses to the extent legally standards for small refiners. The Panel The Panel received written comments allowable by the Clean Air Act. recommended that EPA propose a delay from the SERs following the meeting in Alternatives discussed throughout the in the effective date of the standards response to discussions had at the Panel process included those offered in until 2014 for small entities, to the meeting and the questions posed to the previous or current EPA rulemakings, as maximum extent allowed by the statute. SERs by the Agency. The SERs were well as alternatives suggested by SERs However, the Panel recognized that EPA specifically asked to provide comment and Panel members. A summary of has serious concerns about its authority on regulatory alternatives that could these recommendations is detailed to provide an extension of the help to minimize the rule’s impact on below, and a full discussion of the temporary exemption for small small businesses. regulatory alternatives and hardship refineries that is different from that In general, SERs stated that they provisions discussed and recommended provided in CAA section 211(o)(9), believed that small refiners would face by the Panel can be found in the since Congress specifically addressed an challenges in meeting the new SBREFA Final Panel Report. A complete extension for small refineries in that standards. More specifically, they discussion of the provisions for which provision. voiced concerns with respect to the RIN we are requesting comment and/or The Panel did recommend that EPA program itself, uncertainty (with the proposing in this action can be found in propose other avenues through which required renewable fuel volumes, RIN Section IV.B of this preamble. Also, the small refineries and small refiners could availability, and cost), and the desire for Panel Report includes all comments receive extensions of the temporary a RIN system review. received from SERs (Appendix B of the exemption. These avenues, as discussed The Panel’s findings and discussions Report) and summaries of the two in greater detail in Sections XII.C.6.c.v were based on the information that was outreach meetings that were held with and vi below, are a possible extension available during the term of the Panel the SERs. In accordance with the RFA/ of the temporary exemption for an and issues that were raised by the SERs SBREFA requirements, the Panel additional two years following a study during the outreach meetings and in evaluated the aforementioned materials of small refineries by the Department of their comments. One concern that was and SER comments on issues related to Energy (DOE) and provisions for case- raised by EPA with regard to provisions the IRFA. The Panel’s recommendations by-case economic hardship relief. for small refiners in the RFS2 rule is from the Final Panel Report are ii. Phase-in that this rule presents a very different discussed below. issue than the small refinery versus Small refiner SERs’ suggested that a small refiner concept from RFS1. This c. Panel Recommendations phase-in of the obligations applicable to issue deals with whether EPA has the The purpose of the Panel process is to small refiners would be beneficial for authority to provide small refineries that solicit information as well as suggested compliance, such that small refiners are operated by a small refiner with an flexibility options from the SERs, and would comply by gradually meeting the extension of time that would be the Panel recommended that EPA standards on an incremental basis over different from (and more than) the continue to do so during the a period of time, after which point they temporary exemption specified by development of the RFS2 rule. would comply fully with the RFS2 Congress in section 211(o)(9) for small Recognizing the concerns about EPA’s standards, EPA has serious concerns refineries. For those small refiners who authority to provide extensions to a about its authority to allow for such a are covered by the small refinery subset of small refineries (i.e., those that phase-in of the standards. CAA section provisions, Congress has specifically are owned by small refiners) different 211(o)(3)(B) states that the renewable adopted a relief provision aimed at their from that provided to small refineries in fuel obligation shall ‘‘consist of a single refineries. This provides a temporary section 211(o)(9), the Panel applicable percentage that applies to all extension through December 31, 2010 recommended that EPA continue to categories of persons specified’’ as and allows for further extensions only if evaluate this issue, and that EPA request obligated parties. This kind of phase-in

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approach would result in different small entities in providing them some section 211(o)(9)(B), using its discretion applicable percentages being applied to insight to the RFS program’s progress under CAA section 211(o)(3)(B). This different obligated parties. Further, as and alleviate some uncertainty would apply if EPA does not adopt an discussed above, such a phase-in regarding the RIN system. As EPA will automatic extension for small refiners, approach would provide more relief to be publishing a Federal Register notice and would allow those small refiners small refineries operated by small annually, the Panel recommended that that do not operate small refineries to refiners than that provided under the EPA include an update of RIN system apply for the same kind of extension as small refinery provision. Thus the Panel progress (e.g., RIN trading, RIN a small refinery. The Panel recommended that EPA should invite availability, etc.) in this notice and that recommended that EPA take into comment on a phase-in, but not propose the results of this evaluation be consideration the results of the annual such a provision. considered in any request for case-by- update of RIN system progress and the case hardship relief. DOE small refinery study in assessing iii. RIN-Related Flexibilities such hardship applications. The small refiner SERs requested that v. Extensions of the Temporary We invite comments on all aspects of the proposed rule contain provisions for Exemption Based on a Study of Small the proposal and its impacts on small small refiners related to the RIN system, Refinery Impacts entities. such as flexibilities in the RIN rollover The Panel recommended that EPA cap percentage and allowing all small propose in the RFS2 program the D. Unfunded Mandates Reform Act refiners to use RINs interchangeably. provision at 40 CFR 80.1141(e) Title II of the Unfunded Mandates Currently in the RFS1 program, EPA extending the RFS1 temporary Reform Act of 1995 (UMRA), P.L. 104– allows for 20% of a previous year’s RINs exemption for at least two years for any 4, establishes requirements for Federal to be ‘‘rolled over’’ and used for small refinery that DOE determines agencies to assess the effects of their compliance in the following year. A would be subject to disproportionate regulatory actions on State, local, and provision to allow for flexibilities in the economic hardship if required to tribal governments and the private rollover cap could include a higher RIN comply with the RFS2 requirements. sector. Under section 202 of the UMRA, rollover cap for small refiners for some Section 211(o)(9)(A)(ii) required that EPA generally must prepare a written period of time or for at least some of the by December 31, 2008, DOE was to statement, including a cost-benefit four standards. Since the concept of a perform a study of the economic analysis, for proposed and final rules rollover cap was not mandated by impacts of the RFS requirements on with ‘‘Federal mandates’’ that may section 211(o), EPA believes that there small refineries to assess and determine result in expenditures to State, local, may be an opportunity to provide whether the RFS requirements would and tribal governments, in the aggregate, appropriate flexibility in this area to impose a disproportionate economic or to the private sector, of $100 million small refiners under the RFS2 program hardship on small refineries, and submit or more in any one year. Before but only if it is determined in the DOE this study to EPA. Section 211(o)(9) also promulgating an EPA rule for which a small refinery study that there is a provided that small refineries found to written statement is needed, section 205 disproportionate effect warranting relief. be in a disproportionate economic of the UMRA generally requires EPA to The Panel recommended that EPA hardship situation would receive an identify and consider a reasonable request comment on increasing the RIN extension of the temporary exemption number of regulatory alternatives and rollover cap percentage for small for at least two years. adopt the least costly, most cost- refiners, and further that EPA should The Panel also recommended that effective or least burdensome alternative request comment on an appropriate EPA work with DOE in the development that achieves the objectives of the rule. level of that percentage. of the small refinery study, specifically The provisions of section 205 do not The Panel recommended that EPA to communicate the comments that apply when they are inconsistent with invite comment on allowing RINs to be SERs raised during the Panel process. applicable law. Moreover, section 205 used interchangeably for small refiners, allows EPA to adopt an alternative other but not propose this concept because vi. Extensions of the Temporary than the least costly, most cost-effective under this approach small refiners Exemption Based on Disproportionate or least burdensome alternative if the would arguably be subject to a different Economic Hardship Administrator publishes with the final applicable percentage than other While SERs did not specifically rule an explanation why that alternative obligated parties. This concept would comment on the concept of hardship was not adopted. also fail to require the four different provisions for the upcoming proposal, Before EPA establishes any regulatory standards mandated by Congress (e.g., the Panel noted that under CAA section requirements that may significantly or conventional biofuel could not be used 211(o)(9)(B) small refineries may uniquely affect small governments, instead of cellulosic biofuel or biomass- petition EPA for case-by-case extensions including tribal governments, it must based diesel). of the small refinery temporary have developed under section 203 of the exemption on the basis of UMRA a small government agency plan. iv. Program Review disproportionate economic hardship. The plan must provide for notifying With regard to the suggested program Refiners may petition EPA for this case- potentially affected small governments, review, EPA raised the concern that this by-case hardship relief at any time. enabling officials of affected small could lead to some redundancy since The Panel recommended that EPA governments to have meaningful and EPA is required to publish a notice of propose in the RFS2 program a case-by- timely input in the development of EPA the applicable RFS standards in the case hardship provision for small regulatory proposals with significant Federal Register annually, and that this refineries similar to that provided at 40 Federal intergovernmental mandates, annual process will inevitably include CFR 80.1141(e)(1). The Panel also and informing, educating, and advising an evaluation of the projected recommended that EPA propose a case- small governments on compliance with availability of renewable fuels. by-case hardship provision for small the regulatory requirements. Nevertheless, the SBA and OMB Panel refiners that do not operate small Today’s proposal contains no Federal members stated that they believe that a refineries that is comparable to that mandates (under the regulatory program review could be helpful to provided for small refineries under provisions of Title II of the UMRA) for

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State, local, or tribal governments. The implemented at the Federal level and when the Agency decides not to use rule imposes no enforceable duty on any impose compliance costs only on available and applicable voluntary State, local or tribal governments. EPA transportation fuel refiners, blenders, consensus standards. has determined that this rule contains marketers, distributors, importers, and This rulemaking proposes changes to no regulatory requirements that might exporters. Tribal governments would be the Renewable Fuel Standard (RFS) significantly or uniquely affect small affected only to the extent they purchase program at Title 40 of the Code of governments. EPA has determined that and use regulated fuels. Thus, Executive Federal Regulations, Subpart K which this proposal contains a Federal Order 13175 does not apply to this rule. already contains voluntary consensus mandate that may result in expenditures EPA specifically solicits additional standard ASTM D6751–06a ‘‘Standard of $100 million or more for the private comment on this proposed rule from Specification for Biodiesel Fuel Blend sector in any one year. EPA believes that tribal officials. Stock (B100) for Middle Distillate the proposal represents the least costly, G. Executive Order 13045: Protection of Fuels’’. This standard was developed by most cost-effective approach to achieve Children From Environmental Health ASTM International (originally known the statutory requirements of the rule. Risks and Safety Risks as the American Society for Testing and The costs and benefits associated with Materials), Subcommittee D02.E0, and the proposal are discussed above and in EPA interprets EO 13045 (62 FR was approved in August 2006. The the Draft Regulatory Impact Analysis, as 19885, April 23, 1997) as applying only standard may be obtained through the required by the UMRA. to those regulatory actions that concern ASTM Web site (www.astm.org) or by health or safety risks, such that the calling ASTM at (610) 832–9585. E. Executive Order 13132: Federalism analysis required under section 5–501 of Executive Order 13132, entitled the EO has the potential to influence the This proposed rulemaking does not ‘‘Federalism’’ (64 FR 43255, August 10, regulation. This action is not subject to propose to change this voluntary 1999), requires EPA to develop an EO 13045 because it does not establish consensus standard, and does not accountable process to ensure an environmental standard intended to involve any other technical standards. ‘‘meaningful and timely input by State mitigate health or safety risks and Therefore, EPA is not considering the and local officials in the development of because it implements specific use of any voluntary consensus regulatory policies that have federalism standards established by Congress in standards other than that described implications.’’ ‘‘Policies that have statutes. above. federalism implications’’ is defined in H. Executive Order 13211: Actions J. Executive Order 12898: Federal the Executive Order to include Concerning Regulations That Actions To Address Environmental regulations that have ‘‘substantial direct Significantly Affect Energy Supply, Justice in Minority Populations and effects on the States, on the relationship Distribution, or Use Low-Income Populations between the national government and the States, or on the distribution of This rule is not a ‘‘significant energy Executive Order (EO) 12898 (59 FR power and responsibilities among the action’’ as defined in Executive Order 7629 (Feb. 16, 1994)) establishes federal various levels of government.’’ 13211, ‘‘Actions Concerning Regulations executive policy on environmental This proposed rule does not have That Significantly Affect Energy Supply, justice. Its main provision directs federalism implications. It will not have Distribution, or Use’’ (66 FR 28355 (May federal agencies, to the greatest extent substantial direct effects on the States, 22, 2001)) because it is not likely to practicable and permitted by law, to on the relationship between the national have a significant adverse effect on the make environmental justice part of their government and the States, or on the supply, distribution, or use of energy. In mission by identifying and addressing, distribution of power and fact, this rule has a positive effect on as appropriate, disproportionately high responsibilities among the various energy supply and use. By promoting and adverse human health or levels of government, as specified in the diversification of transportation environmental effects of their programs, Executive Order 13132. Thus, Executive fuels, this rule enhances energy supply. policies, and activities on minority Order 13132 does not apply to this rule. Therefore, we have concluded that this populations and low-income In the spirit of Executive Order 13132, rule is not likely to have any adverse populations in the United States. EPA and consistent with EPA policy to energy effects. Our energy effects lacks the discretionary authority to promote communications between EPA analysis is described above in Section address environmental justice in this and State and local governments, EPA IX. proposed rulemaking since the Agency specifically solicits comment on this is implementing specific standards I. National Technology Transfer established by Congress in statutes. proposed rule from State and local Advancement Act officials. Although EPA lacks authority to modify Section 12(d) of the National today’s regulatory decision on the basis F. Executive Order 13175: Consultation Technology Transfer and Advancement of environmental justice considerations, and Coordination With Indian Tribal Act of 1995 (‘‘NTTAA’’), Public Law No. EPA nevertheless determined that this Governments 104–113, 12(d) (15 U.S.C. 272 note) proposed rule does not have a Executive Order 13175, entitled directs EPA to use voluntary consensus disproportionately high and adverse ‘‘Consultation and Coordination with standards in its regulatory activities human health or environmental impact Indian Tribal Governments’’ (65 FR unless to do so would be inconsistent on minority or low-income populations. with applicable law or otherwise 67249, November 9, 2000), requires EPA XIII. Statutory Authority to develop an accountable process to impractical. Voluntary consensus ensure ‘‘meaningful and timely input by standards are technical standards (e.g., Statutory authority for this action tribal officials in the development of materials specifications, test methods, comes from section 211 of the Clean Air regulatory policies that have tribal sampling procedures, and business Act, 42 U.S.C. 7545. Additional support implications.’’ practices) that are developed or adopted for the procedural and compliance This proposed rule does not have by voluntary consensus standards related aspects of today’s proposal, tribal implications, as specified in bodies. NTTAA directs EPA to provide including the proposed recordkeeping Executive Order 13175. This rule will be Congress, through OMB, explanations requirements, come from Sections 114,

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208, and 301(a) of the Clean Air Act, 42 80.1443 What are the opt-in provisions for subpart M (such as the terms ‘‘co- U.S.C. 7414, 7542, and 7601(a). noncontiguous states and territories? processed,’’ ‘‘cropland,’’ and ‘‘yard 80.1444–80.1448 [Reserved] waste’’). The definitions follow: List of Subjects in 40 CFR Part 80 80.1449 What are the Production Outlook Actual peak capacity means the Environmental protection, Air Report requirements? maximum annual volume of renewable pollution control, Diesel fuel, Fuel 80.1450 What are the registration requirements under the RFS program? fuels produced from a specific additives, Gasoline, Imports, 80.1451 What are the recordkeeping renewable fuel production facility on an Incorporation by reference, Labeling, requirements under the RFS program? annual basis. Motor vehicle pollution, Penalties, 80.1452 What are the reporting (1) For facilities that commenced Reporting and recordkeeping requirements under the RFS program? construction prior to December 19, 2007 requirements. 80.1453 What are the product transfer the maximum annual volume is for any document (PTD) requirements for the Dated: May 5, 2009. year prior to 2008. RFS program? Lisa P. Jackson, (2) For facilities that commenced 80.1454 What are the provisions for construction after December 19, 2007, Administrator. renewable fuel production facilities and For the reasons set forth in the importers who produce or import less and are fired with natural gas, biomass, preamble, 40 CFR part 80 is proposed to than 10,000 gallons of renewable fuel per or a combination thereof, the maximum be amended as follows: year? annual volume may be for any year after 80.1455 What are the provisions for startup over the first three years of PART 80—REGULATION OF FUELS cellulosic biofuel allowances? operation. AND FUEL ADDITIVES 80.1456–80.1459 [Reserved] Advanced biofuel means renewable 80.1460 What acts are prohibited under the fuel, other than ethanol derived from 1. The authority citation for part 80 RFS program? cornstarch, that qualifies for a D code of continues to read as follows: 80.1461 Who is liable for violations under 3 pursuant to § 80.1426(d). the RFS program? Areas at risk of wildfire are areas Authority: 42 U.S.C. 7414, 7542, 7545, and 80.1462 [Reserved] 7601(a). 80.1463 What penalties apply under the located within, or within one mile of, 2. A new Subpart M is added to part RFS program? forestland, tree plantation, or any other 80 to read as follows: 80.1464 What are the attest engagement generally undeveloped tract of land that requirements under the RFS program? is at least one acre in size with Subpart M—Renewable Fuel Standard 80.1465 What are the additional substantial vegetative cover. requirements under this subpart for Baseline volume means the greater of Sec. foreign small refiners, foreign small nameplate capacity or actual peak 80.1400 Applicability. refineries, and importers of RFS– capacity of a specific renewable fuel 80.1401 Definitions. FRFUEL? production facility. 80.1402 [Reserved] 80.1466 What are the additional 80.1403 Which fuels are not subject to the (1) For facilities that commenced requirements under this subpart for construction on or before December 19, 20% GHG thresholds? foreign producers and importers of 80.1404 [Reserved] renewable fuels? 2007, the actual peak capacity may be 80.1405 What are the Renewable Fuel 80.1467 What are the additional for any year prior to 2008. Standards? requirements under this subpart for a (2) For facilities that commenced 80.1406 To whom do the Renewable foreign RIN owner? construction after December 19, 2007, Volume Obligations apply? 80.1468 [Reserved] and are fired with natural gas, biomass, 80.1407 How are the Renewable Volume 80.1469 What are the labeling requirements or a combination thereof, the actual Obligations calculated? that apply to retailers and wholesale peak capacity may be for any year after 80.1408–80.1414 [Reserved] purchaser-consumers of ethanol fuel 80.1415 How are equivalence values startup for the facility over the first blends that contain greater than 10 three years of operation. assigned to renewable fuel? volume percent ethanol? 80.1416 Treatment of parties who produce Biomass-based diesel means a or import new renewable fuels and Subpart M—Renewable Fuel Standard renewable fuel which meets the pathways. requirements in paragraph (1) or (2) of 80.1417–80.1424 [Reserved] § 80.1400 Applicability. this definition: 80.1425 Renewable Identification Numbers (1) A transportation fuel or fuel (RINs). The provisions of this Subpart M shall 80.1426 How are RINs generated and apply for all renewable fuel produced additive which is all of the following: assigned to batches of renewable fuel by on or after January 1, 2010, for all RINs (i) Registered as a motor vehicle fuel renewable fuel producers or importers? generated after January 1, 2010, and for or fuel additive under 40 CFR part 79. 80.1427 How are RINs used to demonstrate all renewable volume obligations and (ii) A mono-alkyl ester and meets compliance? compliance periods starting with ASTM D–6751–07, entitled ‘‘Standard 80.1428 General requirements for RIN January 1, 2010. Except as provided Specification for Biodiesel Fuel distribution. Blendstock (B100) for Middle Distillate 80.1429 Requirements for separating RINs otherwise in this Subpart M, the provisions of Subpart K of this Part 80 Fuels.’’ ASTM D–6751–07 is from volumes of renewable fuel. incorporated by reference. This 80.1430 Requirements for exporters of shall not apply for such renewable fuel, renewable fuels. RINs, renewable volume obligations, or incorporation by reference was 80.1431 Treatment of invalid RINs. compliance periods. approved by the Director of the Federal 80.1432 Reported spillage or disposal of Register in accordance with 5 U.S.C. renewable fuel. § 80.1401 Definitions. 552(a) and 1 CFR Part 51. A copy may 80.1433–80.1439 [Reserved] The definitions of § 80.2 and of this be obtained from the American Society 80.1440 What are the provisions for section apply for the purposes of this for Testing and Materials, 100 Barr blenders who handle and blend less than subpart M. The definitions of this Harbor Drive, West Conshohocken, 125,000 gallons of renewable fuel per year? section do not apply to other subparts Pennsylvania. A copy may be inspected 80.1441 Small refinery exemption. unless otherwise noted. Note that many at the EPA Docket Center, Docket No. 80.1442 What are the provisions for small terms defined here are common terms EPA–HQ–OAR–2005–0161, EPA/DC, refiners under the RFS program? that have specific meanings under this EPA West, Room 3334, 1301

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Constitution Ave., NW., Washington, cultivated cropland, such as for Forestland is generally undeveloped DC, or at the National Archives and horticultural crops. land covering a minimum area of 1 acre Records Administration (NARA). For Diesel refers to any and all of the upon which the primary vegetative information on the availability of this products specified at § 80.1407(f). species are trees, including land that material at NARA, call 866–272–6272, Ecologically sensitive forestland formerly had such tree cover and that or go to: http://www.archives.gov/ means forestland that is: will be regenerated. Forestland does not federal-register/cfr/ibr-locations.html. (1) An ecological community listed in include tree plantations. (iii) Intended for use in engines that a document entitled ‘‘Listing of Forest Gasoline refers to any and all of the are designed to run on conventional Ecological Communities Pursuant to 40 products specified at § 80.1407(c). diesel fuel. CFR 80.1401,’’ (available in public Importers. An importer of (iv) Qualifies for a D code of 2 docket EPA–HQ–OAR–2005–0161); or transportation fuel or renewable fuel is: pursuant to § 80.1426(d). (2) Old growth or late successional, (1) Any party who brings (2) A non-ester renewable diesel. characterized by trees at least 200 years transportation fuel or renewable fuel (3) Renewable fuel that is co- in age. into the 48 contiguous states of the processed is not biomass-based diesel. Existing agricultural land is cropland, United States and Hawaii, from a Carbon Capture and Storage (CCS) is pastureland, or land enrolled in the foreign country or from an area that has the process of capturing carbon dioxide Conservation Reserve Program not opted in to the program from an emission source, (typically) (administered by the U.S. Department of requirements of this subpart pursuant to converting it to a supercritical state, Agriculture’s Farm Service Agency) that § 80.1443; and transporting it to an injection site, and was cleared or cultivated prior to (2) Any party who brings injecting it into deep subsurface rock December 19, 2007, and that, since transportation fuel or renewable fuel formations for long-term storage. December 19, 2007, has been into an area that has opted in to the Cellulosic biofuel means renewable continuously: program requirements of this subpart fuel derived from any cellulose, hemi- (1) Nonforested; and pursuant to § 80.1443. cellulose, or lignin that is derived from (2) Actively managed as agricultural Motor vehicle has the meaning given renewable biomass and that qualifies for land or fallow, as evidenced by any of in Section 216(2) of the Clean Air Act a D code of 1 pursuant to § 80.1426(d). the following: (42 U.S.C. 7550(2)). Combined heat and power (CHP), also (i) Records of sales of planted crops, Nameplate capacity means: known as cogeneration, refers to crop residue, or livestock, or records of (1) The maximum rated annual industrial processes in which byproduct purchases for land treatments such as volume output of renewable fuel heat that would otherwise be released fertilizer, weed control, or reseeding. produced by a renewable fuel into the environment is used for process (ii) A written management plan for production facility under specific heating and/or electricity production. agricultural purposes. conditions as indicated in applicable air Commence construction, as applied to (iii) Documented participation in an permits issued by the U.S. facilities that produce renewable fuel, agricultural management program Environmental Protection Agency, state, means that the owner or operator has all administered by a Federal, state, or local or local air pollution control agencies necessary preconstruction approvals or government agency. and that govern the construction and/or permits (as defined at 40 CFR (iv) Documented management in operation of the renewable fuel facility. 52.21(a)(10)), that for multi-phased accordance with a certification program (2) If the maximum rated annual volume output of renewable fuel is not projects, the commencement of for agricultural products. specified in any applicable air permits construction of one phase does not Export of renewable fuel means: issued by the U.S. Environmental constitute commencement of (1) Transfer of any renewable fuel to Protection Agency, state, or local air construction of any later phase, unless a location outside the contiguous 48 pollution control agencies, then each phase is mutually dependent for states and Hawaii; and nameplate capacity is the actual peak physical and chemical reasons only, and (2) Transfer of any renewable fuel from a location in the contiguous 48 capacity of the facility. has satisfied either of the following: Neat renewable fuel is a renewable (1) Begun, or caused to begin, a states to Alaska or a United States territory, unless that state or territory fuel to which only a de minimis amount continuous program of actual of gasoline (as defined in Section construction on-site (as defined in 40 has received an approval from the Administrator to opt-in to the renewable 211(k)(10)(F) of the Clean Air Act (42 CFR 52.21(a)(11)) of the facility to be U.S.C. 7550)) or diesel fuel has been completed within a reasonable time. fuel program pursuant to § 80.1443. Facility means all of the activities and added. (2) Entered into binding agreements or Non-ester renewable diesel means equipment associated with the contractual obligations, which cannot be renewable fuel which is all the production of renewable fuel starting cancelled or modified without following: substantial loss to the owner or from the point of delivery of feedstock (1) Registered as a motor vehicle fuel operator, to undertake a program of material to the point of final storage of or fuel additive under 40 CFR Part 79. actual construction of the facility to be the end product, which are located on (2) Not a mono-alkyl ester. completed within a reasonable time. one property, and are under the control (3) Intended for use in engines that Co-processed means that renewable of the same party (or parties under are designed to run on conventional biomass was simultaneously processed common control). diesel fuel. with petroleum feedstock in the same Fallow means cropland, pastureland, (4) Derived from nonpetroleum unit or units to produce a fuel that is or land enrolled in the Conservation renewable resources. partially renewable. Reserve Program (administered by the (5) Qualifies for a D code of 3 as Crop residue is the residue left over U.S. Department of Agriculture’s Farm defined in § 80.1426(d). from the harvesting of planted crops. Service Agency) that is intentionally left Nonforested land means land that is Cropland is land used for production idle to regenerate for future agricultural not forestland. of crops for harvest and includes purposes with no seeding or planting, Nonpetroleum renewable resources cultivated cropland, such as for row harvesting, mowing, or treatment during include, but are not limited to the crops or close-grown crops, and non- the fallow period. following:

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(1) Plant oils. (iv) Documented management in Tree plantation is a stand of no fewer (2) Animal fats and animal wastes, accordance with a certification program than 100 planted trees of similar age including poultry fats and poultry for silvicultural products. comprising one or two tree species or an wastes, and other waste materials. (3) Animal waste material and animal area managed for growth of such trees Nonroad vehicle has the meaning byproducts. covering a minimum of 1 acre. given in Section 216(11) of the Clean (4) Slash and pre-commercial Yard waste is leaves, sticks, pine Air Act (42 U.S.C. 7550(11)). thinnings from non-federal forestland needles, grass and hedge clippings, and Ocean-going vessel means, for this (including forestland belonging to an similar waste from residential, subpart only, a vessel propelled by a Indian tribe or an Indian individual, commercial, or industrial areas. Category 3 (C3) (as defined in 40 CFR that are held in trust by the United § 80.1402 [Reserved] 1042.901) marine engine that uses States or subject to a restriction against residual fuel (as defined at § 80.2(bbb)) alienation imposed by the United § 80.1403 Which fuels are not subject to or operates internationally. Note that States) that is not ecologically sensitive the 20% GHG thresholds? ocean-going vessels may also include forestland. (a) Pursuant to the definition of smaller engines such as Category 2 (5) Biomass (organic matter that is baseline volume in § 80.1401, the auxiliary engines. available on a renewable or recurring baseline volume of renewable fuel that Pastureland is land managed for the basis) obtained from within 200 feet of is produced from facilities which production of indigenous or introduced buildings, campgrounds, and other areas commenced construction on or before forage plants for livestock grazing or hay regularly occupied by people, or of December 19, 2007, shall not be subject production, and to prevent succession public infrastructure, such as utility to the 20 percent reduction in GHG to other plant types. corridors, bridges, and roadways, in emissions and shall be deemed Planted crops are all annual or areas at risk of wildfire. grandfathered for purposes of generating perennial agricultural crops that may be (6) Algae. RINs pursuant to § 80.1426(d)(7)(ii) if used as feedstocks for renewable fuel, (7) Separated yard waste or food the owner or operator: such as grains, oilseeds, sugarcane, waste, including recycled cooking and (1) Did not discontinue construction switchgrass, prairie grass, and other trap grease. for a period of 18 months or more after species providing that they were Renewable fuel means a fuel which December 19, 2007; and intentionally applied to the ground by meets all of the following: (2) Completed construction within 36 humans either by direct application as (1) Fuel that is produced from months of December 19, 2007. seed or nursery stock, or through renewable biomass. (b) The volume of ethanol that is intentional natural seeding by mature (2) Fuel that is used to replace or produced from facilities which plants left undisturbed for that purpose. reduce the quantity of fossil fuel present commenced construction after Planted trees are trees planted by in a transportation fuel, home heating December 19, 2007 and on or before humans from nursery stock or by seed oil, or jet fuel. December 31, 2009, shall not be subject either through direct application to the (3) Ethanol covered by this definition to the 20 percent reduction in GHG ground or by intentional natural seeding shall be denatured as required and emissions and shall be deemed by mature trees left undisturbed for that defined in 27 CFR parts 19 through 21. grandfathered for purposes of generating purpose. Any volume of denaturant added to the RINs pursuant to § 80.1426(d)(7)(ii) only Pre-commercial thinnings are trees, undenatured ethanol by a producer or if such facilities are fired with natural including unhealthy or diseased trees, importer in excess of 5 volume percent gas, biomass, or a combination thereof. primarily removed to reduce stocking to shall not be included in the volume of (c) The annual volume of renewable concentrate growth on more desirable, ethanol for purposes of determining fuel during a calendar year from healthy trees. compliance with the requirements facilities described in paragraph (a) of Renewable biomass means each of the under this subpart. this section that is beyond the baseline following: Renewable Identification Number volume shall be subject to the 20 (1) Planted crops and crop residue (RIN), is a unique number generated to percent reduction in GHG emissions harvested from existing agricultural represent a volume of renewable fuel and such volume shall not be deemed land. pursuant to §§ 80.1425 and 80.1426. grandfathered for purposes of generating (2) Planted trees and slash from a tree (1) Gallon-RIN is a RIN that represents RINs pursuant to § 80.1426(d)(7)(ii). plantation located on non-federal land an individual gallon of renewable fuel; (d) For those facilities described in (including land belonging to an Indian and paragraph (a) of this section which tribe or an Indian individual that is held (2) Batch-RIN is a RIN that represents produce ethanol and are fired with in trust by the U.S. or subject to a multiple gallon-RINs. natural gas, biomass, or a combination restriction against alienation imposed Slash is the residue, including thereof, increases in the annual volume by the U.S.) that was cleared at any time treetops, branches, and bark, left on the of ethanol above the baseline volume prior to December 19, 2007, and has ground after logging or accumulating as during a calendar year shall not be been continuously actively managed a result of a storm, fire, delimbing, or subject to the 20 percent reduction in since December 19, 2007. Active other similar disturbance. GHG emissions and shall be deemed management is evidenced by any of the Small refinery means a refinery for grandfathered for purposes of generating following: which the average aggregate daily crude RINs pursuant to § 80.1426(d)(7)(ii), (i) Records of sales of planted trees or oil throughput for calendar year 2006 provided that: slash, or records of purchases of seeds, (as determined by dividing the aggregate (1) The facility continues to be fired seedlings, or other nursery stock. throughput for the calendar year by the only with natural gas, biomass, or a (ii) A written management plan for number of days in the calendar year) combination thereof; and silvicultural purposes. does not exceed 75,000 barrels. (2) If the increases in volume at the (iii) Documented participation in a Transportation fuel means fuel for use facility are due to new construction, silvicultural program administered by a in motor vehicles, motor vehicle such new construction must have Federal, state, or local government engines, nonroad vehicles, or nonroad commenced on or before December 31, agency. engines (except for ocean-going vessels). 2009.

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(e) If there are any changes in the mix biofuel standard for 2010 shall be 0.06 (c) EPA will base the calculation of of renewable fuels produced by those percent. the standards on information provided facilities described in paragraph (d) of (2) The value of the biomass-based by the Energy Information this section, only the ethanol volume diesel standard for 2010 shall be 0.71 Administration regarding projected will not be subject to the 20 percent percent. gasoline and diesel volumes and reduction in GHG emissions and shall (3) The value of the advanced biofuel projected volumes of renewable fuels be deemed grandfathered for purposes standard for 2010 shall be 0.59 percent. expected to be used in gasoline and of generating RINs pursuant to (4) The value of the renewable fuel diesel blending for the upcoming year. § 80.1426(d)(7)(ii). standard for 2010 shall be 8.01 percent. (d) EPA will calculate the annual (b) Beginning with the 2011 § 80.1404 [Reserved] renewable fuel standards using the compliance period, EPA will calculate following equations: § 80.1405 What are the Renewable Fuel the value of the annual standards and Standards? publish these values in the Federal (a) Renewable Fuel Standards for Register by November 30 of the year 2010. (1) The value of the cellulosic preceding the compliance period.

RFV Std=∗ 100% CB, i CB, i ()− +−()−+−()+ ()− − Gii RG GS i RGS i GE iii D RD DS iRDSii DE

RFV Std=∗ 100% BBD, i BBD, i ()− +−()−+−()+ ()− − Gii RG GS i RGS i GE iii D RD DSiii RDS DE

RFV Std=∗ 100% AB, i AB, i ()− +−()−+−()+ ()− − Gii RG GS i RGS i GE iii D RD DS iRDSii DE

RFV Std=∗ 100% RF, i RF, i ()− +−()−+−()+ ()− − Gii RG GS i RGS i GE iii D RD DS iRDSii DE

Where: in the 48 contiguous states and Hawaii, § 80.1406 To whom do the Renewable

StdCB,i = The cellulosic biofuel standard for in year i, in gallons. Volume Obligations apply? GS = Amount of gasoline projected to be year i, in percent. i (a)(1) An obligated party is any refiner StdBBD,i = The biomass-based diesel standard used in Alaska or a U.S. territory, in year for year i, in percent. i, if the state or territory has opted-in or that produces gasoline or diesel fuel within the 48 contiguous states or StdAB,i = The advanced biofuel standard for opts-in, in gallons. year i, in percent. RGSi = Amount of renewable fuel blended Hawaii, or any importer that imports StdRF,i = The renewable fuel standard for year into gasoline that is projected to be gasoline or diesel fuel into the 48 i, in percent. consumed in Alaska or a U.S. territory, contiguous states or Hawaii. A party RFVCB,i = Annual volume of cellulosic in year i, if the state or territory opts-in, that simply adds renewable fuel to biofuel required by section 211(o)(2)(B) in gallons. gasoline or diesel fuel, as defined in of the Clean Air Act for year i, in gallons. DSi = Amount of diesel projected to be used § 80.1407(c) or (f), is not an obligated RFVBBD,i = Annual volume of biomass-based in Alaska or a U.S. territory, in year i, if party. diesel required by section 211(o)(2)(B) of the state or territory has opted-in or opts- the Clean Air Act for year i, in gallons. in, in gallons. (2) If the Administrator approves a RFVAB,i = Annual volume of advanced petition of Alaska or a United States RDSi = Amount of renewable fuel blended biofuel required by section 211(o)(2)(B) into diesel that is projected to be territory to opt-in to the renewable fuel of the Clean Air Act for year i, in gallons. consumed in Alaska or a U.S. territory, program under the provisions in RFVRF,i = Annual volume of renewable fuel in year i, if the state or territory opts-in, § 80.1443, then ‘‘obligated party’’ shall required by section 211(o)(2)(B) of the in gallons. also include any refiner that produces Clean Air Act for year i, in gallons. GE = The amount of gasoline projected to be G = Amount of gasoline projected to be used i gasoline or diesel fuel within that state i produced by exempt small refineries and in the 48 contiguous states and Hawaii, or territory, or any importer that imports in year i, in gallons. small refiners, in year i, in gallons in any gasoline or diesel fuel into that state or year they are exempt per §§ 80.1441 and Di = Amount of diesel projected to be used territory. 80.1442, respectively. Assumed to equal in the 48 contiguous states and Hawaii, (b) For each compliance period 0.119 * (Gi¥RGi). in year i, in gallons. starting with 2010, an obligated party is RGi = Amount of renewable fuel blended into DEi = The amount of diesel fuel projected to gasoline that is projected to be consumed be produced by exempt small refineries required to demonstrate, pursuant to in the 48 contiguous states and Hawaii, and small refiners in year i, in gallons, § 80.1427, that it has satisfied the in year i, in gallons. in any year they are exempt per Renewable Volume Obligations for that RDi = Amount of renewable fuel blended into §§ 80.1441 and 80.1442, respectively. compliance period, as specified in diesel that is projected to be consumed Assumed to equal 0.152 * (Di–RDi). § 80.1407(a).

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(c) An obligated party may comply DVi = The diesel non-renewable volume, GVi = The non-renewable gasoline volume, with the requirements of paragraph (b) determined in accordance with determined in accordance with of this section for all of its refineries in paragraphs (e) and (f) of this section, paragraphs (b), (c), and (d) of this the aggregate, or for each refinery produced in or imported into the 48 section, which is produced in or contiguous states or Hawaii by an imported into the 48 contiguous states or individually. obligated party in calendar year i, in Hawaii by an obligated party in calendar (d) An obligated party must comply gallons. year i, in gallons. with the requirements of paragraph (b) DCB,i–1 = Deficit carryover from the previous DVi = The diesel non-renewable volume, of this section for all of its imported year for cellulosic biofuel, in gallons. determined in accordance with gasoline or diesel fuel in the aggregate. (2) Biomass-based diesel. paragraphs (e) and (f) of this section, (e) An obligated party that is both a produced in or imported into the 48 RVOBBD,i = (RFStdBBD,i * (GVi + DVi)) refiner and importer must comply with contiguous states or Hawaii by an + DBBD,i–1 the requirements of paragraph (b) of this obligated party in calendar year i, in section for its imported gasoline or Where: gallons. RVOBBD,i = The Renewable Volume DRF,i-1 = Deficit carryover from the previous diesel fuel separately from gasoline or year for renewable fuel, in gallons. diesel fuel produced by its refinery or Obligation for biomass-based diesel for an obligated party for calendar year i, in refineries. (b) The non-renewable gasoline gallons. volume for an obligated party for a given (f) Where a refinery or import facility RFStdBBD,i = The standard for biomass-based is jointly owned by two or more parties, diesel for calendar year i, determined by year, GVi, specified in paragraph (a) of the requirements of paragraph (b) of this EPA pursuant to § 80.1405, in percent. this section is calculated as follows: section may be met by one of the joint GVi = The non-renewable gasoline volume, n m owners for all of the gasoline or diesel determined in accordance with =− paragraphs (b), (c), and (d) of this GVix∑∑ G RBGy fuel produced/imported at the facility, == or each party may meet the section, which is produced in or x 11y imported into the 48 contiguous states or Where: requirements of paragraph (b) of this Hawaii by an obligated party in calendar section for the portion of the gasoline or year i, in gallons. x = Individual batch of gasoline produced or imported in calendar year i. diesel fuel that it owns, as long as all of DVi = The diesel non-renewable volume, the gasoline or diesel fuel produced/ determined in accordance with n = Total number of batches of gasoline imported at the facility is accounted for paragraphs (e) and (f) of this section, produced or imported in calendar year i. produced in or imported into the 48 Gx = Volume of batch x of gasoline produced in determining the Renewable Volume or imported, as defined in paragraph (c) Obligations under § 80.1407. contiguous states or Hawaii by an obligated party in calendar year i, in of this section, in gallons. (g) The requirements in paragraph (b) gallons. y = Individual batch of renewable fuel of this section apply to the following DBBD,i-1 = Deficit carryover from the previous blended into gasoline in calendar year i. compliance periods: Beginning in 2010, year for biomass-based diesel, in gallons. m = Total number of batches of renewable fuel blended into gasoline in calendar and every year thereafter, the (3) Advanced biofuel. compliance period is January 1 through year i. RVO = (RFStd * (GV + DV )) + December 31. AB,i AB,i i i RBGy = Volume of batch y of renewable fuel D blended into gasoline, in gallons. (h) A party that exports renewable AB,i–1 fuel (pursuant to the definition of an Where: (c) All of the following products that RVOAB,i = The Renewable Volume Obligation exporter of renewable fuel in § 80.1401) for advanced biofuel for an obligated are produced or imported during a shall demonstrate, pursuant to party for calendar year i, in gallons. compliance period, collectively called § 80.1427, that it has satisfied the RFStdAB,i = The standard for advanced ‘‘gasoline’’ for the purposes of this Renewable Volume Obligations for each biofuel for calendar year i, determined section (unless otherwise specified), are compliance period as specified in by EPA pursuant to § 80.1405, in to be included (but not double-counted) § 80.1430(b). percent. in the volume used to calculate a party’s GVi = The non-renewable gasoline volume, Renewable Volume Obligations under § 80.1407 How are the Renewable Volume determined in accordance with paragraph (a) of this section, except as Obligations calculated? paragraphs (b), (c), and (d) of this provided in paragraph (d) of this (a) The Renewable Volume section, which is produced in or imported into the 48 contiguous states or section: Obligations for an obligated party are Hawaii by an obligated party in calendar (1) Reformulated gasoline, whether or determined according to the following year i, in gallons. not renewable fuel is later added to it. formulas: DVi = The diesel non-renewable volume, (2) Conventional gasoline, whether or (1) Cellulosic biofuel. determined in accordance with not renewable fuel is later added to it. paragraphs (e) and (f) of this section, RVOCB,i = (RFStdCB,i * (GVi + DVi)) + produced in or imported into the 48 (3) Reformulated gasoline blendstock DCB,i–1 contiguous states or Hawaii by an that becomes finished reformulated Where: obligated party in calendar year i, in gasoline upon the addition of oxygenate gallons. (RBOB). RVOCB,i = The Renewable Volume Obligation for cellulosic biofuel for an obligated DAB,i-1 = Deficit carryover from the previous (4) Conventional gasoline blendstock party for calendar year i, in gallons. year for advanced biofuel, in gallons. that becomes finished conventional RFStdCB,i = The standard for cellulosic (4) Renewable fuel. gasoline upon the addition of oxygenate biofuel for calendar year i, determined RVORF,i = (RFStdRF,i * (GVi + DVi)) + (CBOB). by EPA pursuant to § 80.1405, in DRF,i-1 (5) Blendstock (including butane and percent. gasoline treated as blendstock (GTAB)) Where: GVi = The non-renewable gasoline volume, that has been combined with other determined in accordance with RVORF,i = The Renewable Volume Obligation blendstock and/or finished gasoline to paragraphs (b), (c), and (d) of this for renewable fuel for an obligated party section, which is produced in or for calendar year i, in gallons. produce gasoline. imported into the 48 contiguous states or RFStdRF,i = The standard for renewable fuel (6) Any gasoline, or any unfinished Hawaii by an obligated party in calendar for calendar year i, determined by EPA gasoline that becomes finished gasoline year i, in gallons. pursuant to § 80.1405, in percent. upon the addition of oxygenate, that is

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produced or imported to comply with a section (unless otherwise specified), are section, then the company may state or local fuels program. to be included (but not double-counted) resubmit. (d) The following products are not in the volume used to calculate a party’s (3) The application must be signed included in the volume of gasoline Renewable Volume Obligations under and certified as meeting all the produced or imported used to calculate paragraph (a) of this section. applicable requirements of this subpart a party’s renewable volume obligation by a responsible corporate officer of the under paragraph (a) of this section: §§ 80.1408–80.1414 [Reserved] applicant organization. (1) Any renewable fuel as defined in § 80.1415 How are equivalence values (4) If EPA determines that the § 80.1401. assigned to renewable fuel? application is incomplete then EPA will (2) Blendstock that has not been (a)(1) Each gallon of a renewable fuel, notify the applicant in writing that the combined with other blendstock or or gallon equivalent pursuant to application is incomplete and will not finished gasoline to produce gasoline. paragraph (c) of this section, shall be be reviewed further. However, an (3) Gasoline produced or imported for amended application that corrects the use in Alaska, the Commonwealth of assigned an equivalence value by the producer or importer pursuant to omission may be re-submitted for EPA Puerto Rico, the U.S. Virgin Islands, review. Guam, American Samoa, and the paragraph (b) or (c) of this section. (2) The equivalence value is a number (5) If the fuel or pathway described in Commonwealth of the Northern that is used to determine how many the application does not meet the Marianas, unless the area has opted into gallon–RINs can be generated for a batch definition of renewable fuel in the RFS program under § 80.1443. § 80.1401, then EPA will notify the (4) Gasoline produced by a small of renewable fuel according to applicant in writing that the application refinery that has an exemption under § 80.1426. (b) All renewable fuels shall have an is denied and will not be reviewed § 80.1441 or an approved small refiner equivalence value of 1.0. further. that has an exemption under § 80.1442 (c) A gallon of renewable fuel is a (c)(1) A producer may use a until January 1, 2011 (or later, for small physically measured unit of volume for temporary D code pending EPA review refineries, if their exemption is any fuel that exists as a liquid at 60 °F of an application under paragraph (b) of extended pursuant to § 80.1441(h)). and 1 atm, but represents 77,930 Btu (5) Gasoline exported for use outside this section if the producer is producing (lower heating value) for any fuel that the 48 United States and Hawaii, and renewable fuel from a fuel type and exists as a gas at 60 °F and 1 atm. gasoline exported for use outside feedstock combination listed in Table 1 Alaska, the Commonwealth of Puerto to § 80.1426, but where the renewable § 80.1416 Treatment of parties who fuel producer’s production process is Rico, the U.S. Virgin Islands, Guam, produce or import new renewable fuels and American Samoa, and the pathways. not listed. A producer using a temporary D code, must do all the following: Commonwealth of the Northern (a)(1) Each renewable fuel producer or (i) Provide information necessary Marianas, if the area has opted into the importer that produces or imports a new under paragraph (b) of this section and RFS program under § 80.1443. renewable fuel, or uses a new pathway register under 40 CFR part 79 before (6) For blenders, the volume of that can not qualify for a D code as introducing the fuel into commerce. finished gasoline, RBOB, or CBOB to defined in § 80.1426(d), must apply to (ii) Generate RINs using the temporary which a blender adds blendstocks. use a D code as specified in paragraph D code for all renewable fuel produced (7) The gasoline portion of transmix (b) of this section. produced by a transmix processor, or (2) EPA will review the application using this combination fuel type, the transmix blended into gasoline by a and may allow the use of an appropriate feedstock, and production process. transmix blender, under § 80.84. D code for the combination of fuel type, (iii) When Table 1 to § 80.1426 has (e) The diesel non-renewable volume feedstock, and production process. been updated to include the new fuel for an obligated party for a given year, (3) Except as provided in paragraph pathway, cease to use the temporary D DVi, specified in paragraph (a) of this (c) of this section, parties that must code and use the applicable D code in section is calculated as follows: apply to use a D code pursuant to the table. paragraph (b) of this section may not (iv) For existing fuel type and n m feedstock combinations that apply to DV=−∑∑ D RBD generate RINs for that new fuel or new ix y combination fuel type, feedstock, and more than one D code, the producer x==11y production process until the Agency has must use the highest numerical value Where: reviewed the application and updated from the applicable D codes as the x = Individual batch of diesel produced or Table 1 to § 80.1426. temporary D code. imported in calendar year i. (b)(1) The application for a new (2) Except if the application is n = Total number of batches of diesel renewable fuel or pathway shall include deemed incomplete or denied pursuant produced or imported in calendar year i. all the following: to paragraph (b)(3) or (b)(4) of this Dx = Volume of batch x of diesel produced section, if Table 1 to § 80.1426 is not or imported, as defined in paragraph (f) (i) A completed facility registration of this section, in gallons. under § 80.1450(b). updated within 5 years of the initial y = Individual batch of renewable fuel (ii) A technical justification that receipt of a company’s application, the blended into diesel in calendar year i. includes a description of the renewable company must stop using the temporary m = Total number of batches of renewable fuel, feedstock(s) used to make it, and D code. fuel blended into diesel in calendar year the production process. (3) A producer whose fuel pathway is i. (iii) Any additional information that ethanol made from starches in a process RBDy = Volume of batch y of renewable fuel the Agency needs to complete a that uses natural gas or coal for process blended into diesel, in gallons. lifecycle Greenhouse Gas assessment of heat may not use a temporary D code for (f) All products meeting the definition the new fuel or pathway. their fuel pathway. of MVNRLM diesel fuel at § 80.2(qqq) (2) A company may only submit one (4) EPA may revoke the authority that are produced or imported during a application per pathway. If EPA provided by this section for use of a compliance period, collectively called determines the application to be temporary D code at any time if any of ‘‘diesel fuel’’ for the purposes of this incomplete, per paragraph (b)(4) of this the following occur:

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(i) EPA determines that the fuel or (h) SSSSSSSS is a number (4) Importers shall not import or pathway described in the application representing the first gallon-RIN generate RINs for fuel imported from a does not meet the definition of associated with a batch of renewable foreign producer that is not registered renewable fuel in § 80.1401. fuel. with EPA as required in § 80.1450. (ii) EPA discovers adverse health (i) EEEEEEEE is a number (5) Importers shall not generate RINs effects unique to the fuel or pathway. representing the last gallon-RIN for renewable fuel that has already been (iii) The information provided by the associated with a batch of renewable assigned RINs by a foreign producer. applicant on the pathway in paragraph fuel. EEEEEEEE will be identical to (b) of this section is deemed false or SSSSSSSS if the batch-RIN represents a (c) Definition of batch. For the incorrect. single gallon-RIN. Assign the value of purposes of this section and § 80.1425, (d) The application under this section EEEEEEEE as described in § 80.1426. a ‘‘batch of renewable fuel’’ is a volume shall be submitted on forms and of renewable fuel that has been assigned following procedures as prescribed by § 80.1426 How are RINs generated and a unique RIN code BBBBB within a EPA. assigned to batches of renewable fuel by calendar year by the producer or renewable fuel producers or importers? importer of the renewable fuel in §§ 80.1417–80.1424 [Reserved] (a) Regional applicability. (1) Except accordance with the provisions of this as provided in paragraph (b) of this § 80.1425 Renewable Identification section and § 80.1425. section, a RIN must be generated by a Numbers (RINs). (1) The number of gallon-RINs renewable fuel producer or importer for generated for a batch of renewable fuel Each RIN is a 38-character numeric every batch of fuel that meets the may not exceed 99,999,999. code of the following form: definition of renewable fuel that is KYYYYCCCCFFFFFBBBBBRRDSSSS produced or imported for use as (2) A batch of renewable fuel cannot SSSSEEEEEEEE represent renewable fuel produced or (a) K is a number identifying the type transportation fuel, home heating oil, or jet fuel in the 48 contiguous states or imported in excess of one calendar of RIN as follows: month. (1) K has the value of 1 when the RIN Hawaii. is assigned to a volume of renewable (2) If the Administrator approves a (d) Generation of RINs. (1) Producers fuel pursuant to §§ 80.1426(e) and petition of Alaska or a United States and importers of fuel made from 80.1428(a). territory to opt-in to the renewable fuel renewable feedstocks must determine (2) K has the value of 2 when the RIN program under the provisions in for each batch of fuel produced or has been separated from a volume of § 80.1443, then the requirements of imported whether or not the fuel is renewable fuel pursuant to § 80.1429. paragraph (a)(1) of this section shall also renewable fuel (as defined in § 80.1401), (b) YYYY is the calendar year in apply to renewable fuel produced or including a determination of whether or which the batch of renewable fuel was imported for use as transportation fuel, not the feedstock used to make the fuel produced or imported. YYYY also home heating oil, or jet fuel in that state is renewable biomass (as defined represents the year in which the RIN or territory beginning in the next § 80.1401). Except as provided in was originally generated. calendar year. paragraph (b) of this section, the (c) CCCC is the registration number (b) Cases in which RINs are not producer or importer of a batch of assigned, according to § 80.1450, to the generated. (1) Volume threshold. renewable fuel must generate a RIN for producer or importer of the batch of Renewable fuel producers that produce that batch. less than 10,000 gallons of renewable renewable fuel. (i) Domestic producers must generate (d) FFFFF is the registration number fuel each year, and importers that import less than 10,000 gallons of RINs for all renewable fuel that they assigned, according to § 80.1450, to the produce. facility at which the batch of renewable renewable fuel each year, are not fuel was produced or imported. required to generate and assign RINs to (ii) Importers must generate RINs for (e) BBBBB is a serial number assigned batches of renewable fuel. Such all renewable fuel that they import that to the batch which is chosen by the producers and importers are also has not been assigned RINs by a foreign producer or importer of the batch such exempt from the registration, reporting, producer, including any renewable fuel that no two batches have the same value and recordkeeping requirements of contained in imported transportation in a given calendar year. §§ 80.1450 through 80.1452, and the fuel. (f) RR is a number representing 10 attest engagement requirements of (iii) Foreign producers may generate times the equivalence value of the § 80.1464. However, for those producers RINs for any renewable fuel that they renewable fuel as specified in § 80.1415. and importers that own RINs or export to the 48 contiguous states of the (g) D is a number determined voluntarily generate and assign RINs, all United States or Hawaii. the requirements of this subpart apply. according to § 80.1426(d) and (2) A party generating a RIN shall identifying the type of renewable fuel, (2) Fuel producers and importers shall not generate RINs for fuel that they specify the appropriate numerical as follows: values for each component of the RIN in (1) D has the value of 1 to denote fuel produce or import for which they have accordance with the provisions of categorized as cellulosic biofuel. made a demonstration under (2) D has the value of 2 to denote fuel § 80.1451(c) that the feedstocks used to § 80.1425(a) and this paragraph (d). categorized as biomass-based diesel. produce the fuel are not renewable (3) Applicable pathways. D codes (3) D has the value of 3 to denote fuel biomass (as defined in § 80.1401). shall be used in RINs generated by categorized as advanced biofuel. (3) Fuel producers and importers may producers or importers of renewable (4) D has the value of 4 to denote fuel not generate RINs for fuel that is not fuel according to the pathways listed in categorized as renewable fuel. renewable fuel. Table 1 to this section.

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

Fuel type Feedstock Production process requirements D code

Ethanol ...... Starch from corn, wheat, barley, oats, rice, or sorghum ...... —Process heat derived from bio- 4 mass Ethanol ...... Starch from corn, wheat, barley, oats, rice, or sorghum ...... —Dry mill plant ...... 4 —Process heat derived from natural gas —Combined heat and power (CHP) —Fractionation of feedstocks —Some or all distillers grains are dried Ethanol ...... Starch from corn, wheat, barley, oats, rice, or sorghum ...... —Dry mill plant ...... 4 —Process heat derived from natural gas —All distillers grains are wet Ethanol ...... Starch from corn, wheat, barley, oats, rice, or sorghum ...... —Dry mill plant ...... 4 —Process heat derived from coal —Combined heat and power (CHP) —Fractionation of feedstocks —Membrane separation of ethanol —Raw starch hydrolysis ...... —Some or all distillers grains are dried Ethanol ...... Starch from corn, wheat, barley, oats, rice, or sorghum ...... —Dry mill plant ...... 4 —Process heat derived from coal —Combined heat and power (CHP) —Fractionation of feedstocks —Membrane separation of ethanol —All distillers grains are wet Ethanol ...... Cellulose and hemicellulose from corn stover, switchgrass, miscanthus, —Enzymatic hydrolysis of cellulose 1 wheat straw, rice straw, sugarcane bagasse, slash, pre-commercial —Fermentation of sugars ...... thinnings, yard waste, or planted trees. —Process heat derived from lignin Ethanol ...... Cellulose and hemicellulose from corn stover, switchgrass, miscanthus, —Thermochemical gasification of 1 wheat straw, rice straw, sugarcane bagasse, slash, pre-commercial biomass. thinnings, yard waste, or planted trees. —Fischer-Tropsch process Ethanol ...... Sugarcane sugar ...... —Process heat derived from sugar- 3 cane bagasse Biodiesel (mono Waste grease, waste oils, tallow, chicken fat, or non-food-grade corn oil —Transesterification ...... 2 alkyl ester). Biodiesel (mono Soybean oil and other virgin plant oils ...... —Transesterification ...... 4 alkyl ester). Cellulosic diesel .. Cellulose and hemicellulose from corn stover, switchgrass, miscanthus, —Thermochemical gasification of 1 or 2 wheat straw, rice straw, sugarcane bagasse, slash, pre-commercial biomass. thinnings, yard waste, or planted trees. —Fischer-Tropsch process —Catalytic depolymerization Non-ester renew- Waste grease, waste oils, tallow, chicken fat, or non-food-grade corn oil —Hydrotreating ...... 2 able diesel. —Dedicated facility that processes only renewable biomass. Non-ester renew- Waste grease, waste oils, tallow, chicken fat, or non-food-grade corn oil —Hydrotreating ...... 3 able diesel. —Co-processing facility that also processes petroleum feedstocks. Non-ester renew- Soybean oil and other virgin plant oils ...... —Hydrotreating ...... 4 able diesel. Cellulosic gasoline Cellulose and hemicellulose from corn stover, switchgrass, miscanthus, —Thermochemical gasification of 1 wheat straw, rice straw, sugarcane bagasse, slash, pre-commercial biomass. thinnings, yard waste, or planted trees. —Fischer-Tropsch process —Catalytic depolymerization

(4) Producers whose operations can be EV = Equivalence value for the renewable The D codes that shall be used in the described by a single pathway. fuel per § 80.1415. RINs generated within a calendar year Vs = Standardized volume of the batch of shall be the D codes specified in Table (i) The number of gallon-RINs that renewable fuel at 60 °F, in gallons, shall be generated for a given batch of calculated in accordance with paragraph 1 to this section which correspond to renewable fuel shall be equal to a (d)(10) of this section. the pathways that describe the volume calculated according to the producer’s operations throughout that (ii) The D code that shall be used in following formula: calendar year. the RINs generated shall be the D code VRIN = EV * Vs specified in Table 1 to this section (ii) If all the pathways describing the Where: which corresponds to the pathway that producer’s operations have the same D

VRIN = RIN volume, in gallons, for use in describes the producer’s operations. code, then that D code shall be used in determining the number of gallon-RINs (5) Producers whose operations can be all the RINs generated. The number of that shall be generated. described by two or more pathways. (i) gallon-RINs that shall be generated for a

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given batch of renewable fuel in this Vs = Standardized volume of the batch of that shall be generated for a batch of case shall be equal to a volume renewable fuel at 60 °F, in gallons, advanced biofuel with a D code of 3. calculated according to the following calculated in accordance with paragraph VRIN,RF = RIN volume, in gallons, for use formula: (d)(10) of this section. determining the number of gallon-RINs that shall be generated for a batch of VRIN = EV * Vs (iv) If a producer produces two or more different types of renewable fuel renewable fuel with a D code of 4. Where: = whose volumes can be measured EV Equivalence value for the renewable VRIN = RIN volume, in gallons, for use in fuel per § 80.1415. separately, then separate values for VRIN determining the number of gallon-RINs Vs,CB = Standardized volume of the batch of that shall be generated. shall be calculated for each batch of renewable fuel at 60 °F that must be EV = Equivalence value for the renewable each type of renewable fuel according to assigned a D code of 1 based on its fuel fuel per § 80.1415. formulas in Table 2 to this section: type, in gallons, calculated in accordance Vs = Standardized volume of the batch of with paragraph (d)(10) of this section. renewable fuel at 60 °F, in gallons, TABLE 2 TO § 80.1426—NUMBER OF Vs,BBD = Standardized volume of the batch of calculated in accordance with paragraph ° GALLON-RINS TO ASSIGN TO renewable fuel at 60 F that must be (d)(10) of this section. assigned a D code of 2 based on its fuel BATCH-RINS WITH D CODES DE- (iii) If the pathway applicable to a type, in gallons, calculated in accordance producer changes on a specific date, PENDENT ON FUEL TYPE with paragraph (d)(10) of this section. such that one pathway applies before Vs,AB = Standardized volume of the batch of D code to use in Number of gallon- renewable fuel at 60 °F that must be the date and another pathway applies batch-RIN RINs on and after the date, then the assigned a D code of 3 based on its fuel type, in gallons, calculated in accordance D = 1 ...... V = EV *V applicable D code used in generating RIN, CB s, CB with paragraph (d)(10) of this section. D = 2 ...... V = EV *V RINs must change on the date that the RIN, BBD s, V = Standardized volume of the batch of s,RF change in pathway occurs. The number BBD renewable fuel at 60 °F that must be D = 3 ...... V = EV *V of gallon-RINs that shall be generated RIN, AB s, RF assigned a D code of 4 based on its fuel D = 4 ...... V = EV *V for a given batch of renewable fuel in RIN, RF s, RF type, in gallons, calculated in accordance this case shall be equal to a volume with paragraph (d)(10) of this section. Where: calculated according to the following = formula: VRIN,CB RIN volume, in gallons, for use (v) If a producer produces a single determining the number of gallon-RINs VRIN = EV * Vs type of renewable fuel using two or that shall be generated for a batch of more different feedstocks which are Where: cellulosic biofuel with a D code of 1. processed simultaneously, then the V = RIN volume, in gallons, for use VRIN = RIN volume, in gallons, for use in RIN,BBD number of gallon-RINs that shall be determining the number of gallon-RINs determining the number of gallon-RINs that shall be generated for a batch with that shall be generated for a batch of generated for each batch of renewable a single applicable D code. biomass-based diesel with a D code of 2. fuel and assigned a particular D code EV = Equivalence value for the renewable VRIN,AB = RIN volume, in gallons, for use shall be determined according to the fuel per § 80.1415. determining the number of gallon-RINs formulas in Table 3 to this section.

Where: VRIN,RF = RIN volume, in gallons, for use in code of 1 under Table 1 to this section,

VRIN,CB = RIN volume, in gallons, for use in determining the number of gallon-RINs in Btu. determining the number of gallon-RINs that shall be generated for a batch of FE2 = Feedstock energy from all feedstocks that shall be generated for a batch of renewable fuel with a D code of 4. whose pathways have been assigned a D cellulosic biofuel with a D code of 1. EV = Equivalence value for the renewable code of 2 under Table 1 to this section, VRIN,BBD = RIN volume, in gallons, for use in fuel per § 80.1415. in Btu. determining the number of gallon-RINs Vs = Standardized volume of the batch of FE3 = Feedstock energy from all feedstocks that shall be generated for a batch of renewable fuel at 60 °F, in gallons, whose pathways have been assigned a D biomass-based diesel with a D code of 2. calculated in accordance with paragraph code of 3 under Table 1 to this section, VRIN,AB = RIN volume, in gallons, for use in (d)(10) of this section. in Btu. determining the number of gallon-RINs FE = Feedstock energy from all feedstocks FE = Feedstock energy from all feedstocks that shall be generated for a batch of 1 4 whose pathways have been assigned a D whose pathways have been assigned a D advanced biofuel with a D code of 3.

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code of 4 under Table 1 to this section, (7) Producers without an applicable represent the first gallon-RIN associated in Btu. pathway. (i) If none of the pathways with the volume of renewable fuel. Feedstock energy values, FE, shall be described in Table 1 to this section (ii) The value of EEEEEEEE in the calculated according to the following apply to a producer’s operations, a party batch-RIN shall represent the last formula: generating a RIN may nevertheless use gallon-RIN associated with the volume FE = M * CF * E a pathway in Table 1 to this section if of renewable fuel, based on the RIN Where: EPA allows the use of a temporary D volume determined pursuant to FE = Feedstock energy, in Btu. code pursuant to § 80.1416(c). paragraph (d)(4) of this section. M = Mass of feedstock, in pounds. (ii) If none of the pathways described (10) Standardization of volumes. In CF = Converted Fraction in annual average in Table 1 to this section apply to a determining the standardized volume of mass percent, representing that portion producer’s operations and the party a batch of renewable fuel for purposes of the feedstock that is estimated to be generating the RIN does not qualify to of generating RINs under this paragraph converted into renewable fuel by the use a temporary D code according to the (d), the batch volumes shall be adjusted producer. provisions of § 80.1416(c), the party to a standard temperature of 60 °F. E = Energy content of the fuel precursor must generate RINs if the fuel from its fraction for the feedstock in annual (i) For ethanol, the following formula average Btu/lb. facility qualifies for grandfathering as shall be used: provided in § 80.1403. Vs,e = Va,e * (¥0.0006301 * T + 1.0378) (6) Producers who co-process (A) The number of gallon-RINs that Where: renewable biomass and fossil fuels shall be generated for a given batch of simultaneously to produce a grandfathered renewable fuel shall be Vs,e = Standardized volume of ethanol at 60 °F, in gallons. transportation fuel that is partially equal to a volume calculated according renewable. (i) The number of gallon- Va,e = Actual volume of ethanol, in gallons. to the following formula: T = Actual temperature of the batch, in °F. RINs that shall be generated for a given VRIN = EV * Vs batch of partially renewable (ii) For biodiesel (mono-alkyl esters), Where: transportation fuel shall be equal to a the following formula shall be used: VRIN = RIN volume, in gallons, for use in ¥ volume calculated according to the determining the number of gallon-RINs Vs,b = Va,b * ( 0.0008008 * T + 1.0480) following formula: that shall be generated. Where: VRIN = EV * Vs * FER/(FER + FEF) EV = Equivalence value for the renewable Vs,b = Standardized volume of biodiesel at 60 Where: fuel per § 80.1415. °F, in gallons. = Vs = Standardized volume of the batch of VRIN RIN volume, in gallons, for use in ° Va,b = Actual volume of biodiesel, in gallons. determining the number of gallon-RINs renewable fuel at 60 F, in gallons, T = Actual temperature of the batch, in °F. that shall be generated. calculated in accordance with paragraph EV = Equivalence value for the renewable (d)(10) of this section. (iii) For other renewable fuels, an fuel per § 80.1415. (B) A D code of 4 shall be used in the appropriate formula commonly Vs = Standardized volume of the batch of accepted by the industry shall be used ° RINs generated under paragraph renewable fuel at 60 F, in gallons, (d)(7)(ii)(A) of this section. to standardize the actual volume to 60 calculated in accordance with paragraph °F. Formulas used must be reported to (d)(10) of this section. (8) Provisions for importers of renewable fuel. (i) The number of EPA, and may be reviewed for FER = Feedstock energy from renewable appropriateness. biomass used to make the transportation gallon-RINs that shall be generated for a fuel, in Btu. given batch of renewable fuel shall be (11)(i) A party is prohibited from generating RINs for a volume of fuel that FEF = Feedstock energy from fossil fuel used equal to a volume calculated according to make the transportation fuel, in Btu. to the following formula: it produces if: (A) The fuel has been produced from (ii) The value of FE for use in VRIN = EV * Vs a chemical conversion process that uses paragraph (d)(6)(i) of this section shall Where: another renewable fuel as a feedstock, be calculated from the following VRIN = RIN volume, in gallons, for use in and the renewable fuel used as a formula: determining the number of gallon-RINs feedstock was produced by another FE = M * CF * E that shall be generated. party; or Where: EV = Equivalence value for the renewable fuel per § 80.1415. (B) The fuel is not produced from = FE Feedstock energy, in Btu. V = Standardized volume of the batch of renewable biomass. M = Mass of feedstock, in pounds. s renewable fuel at 60 °F, in gallons, (ii) Parties who produce renewable CF = Converted Fraction in annual average calculated in accordance with paragraph mass percent, representing that portion fuel made from a feedstock which itself (d)(10) of this section. of the feedstock that is estimated to be was a renewable fuel with RINs, shall converted into transportation fuel by the (ii) The D code that shall be used in assign the original RINs to the new producer. the RINs generated by an importer of renewable fuel. E = Energy content of the fuel precursor renewable fuel shall be determined from (e) Assignment of RINs to batches. (1) fraction for the feedstock, in annual information provided by the foreign The producer or importer of renewable average Btu/lb. producer specifying the applicable fuel must assign all RINs generated to (iii) The D code that shall be used in pathway or pathways for the renewable volumes of renewable fuel. the RINs generated to represent partially fuel and the provisions of this paragraph (2) A RIN is assigned to a volume of renewable transportation fuel shall be (d). renewable fuel when ownership of the the D code specified in Table 1 to this (9) Multiple gallon-RINs generated to RIN is transferred along with the section which corresponds to the represent a given volume of renewable transfer of ownership of the volume of pathway that describes a producer’s fuel can be represented by a single renewable fuel, pursuant to § 80.1428(a). operations. In determining the batch-RIN through the appropriate (3) All assigned RINs shall have a K appropriate pathway, the contribution designation of the RIN volume codes code value of 1. of fossil fuel feedstocks to the SSSSSSSS and EEEEEEEE. (4) Any RINs generated but not production of partially renewable fuel (i) The value of SSSSSSSS in the assigned to a volume of renewable fuel shall be ignored. batch-RIN shall be 00000001 to must be counted with assigned RINs in

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the quarterly RIN and volume inventory RVOAB,i = The Renewable Volume Obligation compliance with all RVOs to which it is balance check calculation required in for advanced biofuel for the obligated applied. § 80.1428. party or renewable fuel exporter for (5) Except as provided in paragraph calendar year i, in gallons, pursuant to (a)(7)(iv) of this section, the value of § 80.1427 How are RINs used to § 80.1407 or § 80.1430. (SRINNUM) may not exceed values demonstrate compliance? i–1 (iv) Renewable fuel. determined by the following (a) Renewable Volume Obligations. (1) (SRINNUM) + (SRINNUM) ¥ = inequalities: Except as specified in paragraph (b) of RF,i RF,i 1 RVO ≤ this section or § 80.1455, each party that RF,i (SRINNUM)CB,i–1 0.20 * RVOCB,i ≤ is obligated to meet the Renewable Where: (SRINNUM)BBD,i–1 0.20 * RVOBBD,i Volume Obligations under § 80.1407, or (SRINNUM)RF,i = Sum of all owned gallon- (SRINNUM)AB,i–1 ≤ 0.20 * RVOAB,i RINs that are valid for use in complying each party that is an exporter of (SRINNUM)RF,i–1 ≤ 0.20 * RVORF,i with the renewable fuel RVO, were renewable fuels that is obligated to meet (6) Except as provided in paragraphs Renewable Volume Obligations under generated in year i, and are being applied towards the RVO , in gallons. (a)(7)(ii) and (iii) of this section, RINs § 80.1430, must demonstrate pursuant to RF,i (SRINNUM)RF,i¥1 = Sum of all owned gallon- may only be used to demonstrate § 80.1452(a)(1) that it owns sufficient RINs that are valid for use in complying compliance with the RVOs for the RINs to satisfy the following equations: with the renewable fuel RVO, were calendar year in which they were (i) Cellulosic biofuel. generated in year i¥1, and are being generated or the following calendar (SRINNUM)CB,i + (SRINNUM)CB,i¥1 = applied towards the RVORF,i, in gallons. year. RINs used to demonstrate RVOCB,i RVORF,i = The Renewable Volume Obligation compliance in one year cannot be used for renewable fuel for the obligated party to demonstrate compliance in any other Where: or renewable fuel exporter for calendar (SRINNUM)CB,i = Sum of all owned gallon- year i, in gallons, pursuant to § 80.1407 year. RINs that are valid for use in complying or § 80.1430. (7) Biomass-based diesel in 2010. (i) Prior to determining compliance with with the cellulosic biofuel RVO, were (2) Except as described in paragraph generated in year i, and are being applied the 2010 biomass-based diesel RVO, (a)(3) of this section, RINs that are valid towards the RVOCB,i, in gallons. obligated parties may reduce the value for use in complying with each (SRINNUM)CB,i¥1 = Sum of all owned gallon- of RVO by an amount equal to Renewable Volume Obligation are BBD,2010 RINs that are valid for use in complying the sum of all 2008 and 2009 RINs used with the cellulosic biofuel RVO, were determined by their D codes. for compliance purposes for calendar generated in year i¥1, and are being (i) RINs with a D code of 1 are valid year 2009 which have an RR code of 15 applied towards the RVOCB,i, in gallons. for compliance with the cellulosic or 17. RVOCB,i = The Renewable Volume Obligation biofuel RVO. (ii) For calendar year 2010 only, the for cellulosic biofuel for the obligated (ii) RINs with a D code of 2 are valid party or renewable fuel exporter for following equation shall be used to for compliance with the biomass-based calendar year i, in gallons, pursuant to determine compliance with the diesel RVO. § 80.1407 or § 80.1430. biomass-based diesel RVO instead of the (iii) RINs with a D code of 1, 2, or 3 equation in paragraph (a)(1)(ii) of this (ii) Biomass-based diesel. are valid for compliance with the (SRINNUM) + (SRINNUM) ¥ = section: BBD,i BBD,i 1 advanced biofuel RVO. RVOBBD,i (iv) RINs with a D code of 1, 2, 3, or (SRINNUM)BBD,2010 + Where: 4 are valid for compliance with the (SRINNUM)BBD,2009 + (SRINNUM)BBD,i = Sum of all owned gallon- renewable fuel RVO. (SRINNUM)BBD,2008 = RVOBBD,2010 RINs that are valid for use in complying (3) For purposes of demonstrating Where: with the biomass-based diesel RVO, were compliance for calendar year 2010, RINs generated in year i, and are being applied (SRINNUM)BBD,2010 = Sum of all owned generated in 2009 pursuant to § 80.1126 gallon-RINs that are valid for use in towards the RVOBBD,i, in gallons. that are not used for compliance complying with the biomass-based diesel (SRINNUM)BBD,i¥1 = Sum of all owned gallon-RINs that are valid for use in purposes for calendar year 2009 may be RVO, were generated in year 2010, and complying with the biomass-based diesel used for compliance in 2010, insofar as are being applied towards the RVO, were generated in year i¥1, and permissible pursuant to paragraphs RVOBBD,2010, in gallons. (SRINNUM)BBD,2009 = Sum of all owned are being applied towards the RVOBBD,i, (a)(5) and (a)(7)(iv) of this section, as in gallons. follows: gallon-RINs that are valid for use in complying with the biomass-based diesel RVOBBD,i = The Renewable Volume (i) A 2009 RIN with an RR code of 15 Obligation for biomass-based diesel for RVO, were generated in year 2009, have or 17 is deemed equivalent to a RIN not previously been used for compliance the obligated party or renewable fuel generated pursuant to § 80.1426 having exporter for calendar year i after 2010, in purposes, and are being applied towards gallons, pursuant to § 80.1407 or a D code of 2. the RVOBBD,2010, in gallons. § 80.1430. (ii) A 2009 RIN with a D code of 1 is (SRINNUM)BBD,2008 = Sum of all owned deemed equivalent to a RIN generated gallon-RINs that are valid for use in (iii) Advanced biofuel. pursuant to § 80.1426 having a D code complying with the biomass-based diesel (SRINNUM) + (SRINNUM) ¥ = AB,i AB,i 1 of 1. RVO, were generated in year 2008, have RVO AB,i (iii) All other 2009 RINs are deemed not previously been used for compliance purposes, and are being applied towards Where: equivalent to RINs generated pursuant the RVOBBD,2010, in gallons. (SRINNUM)AB,i = Sum of all owned gallon- to § 80.1426 having D codes of 4. RVOBBD,2010 = The Renewable Volume RINs that are valid for use in complying (iv) A 2009 RIN that is retired Obligation for biomass-based diesel for with the advanced biofuel RVO, were pursuant to § 80.1129(e) because the the obligated party or renewable fuel generated in year i, and are being applied associated volume of fuel is not used as exporter for calendar year 2010, in towards the RVO , in gallons. AB,i motor vehicle fuel may be reinstated gallons, pursuant to § 80.1407 or (SRINNUM) ¥ = Sum of all owned gallon- AB,i 1 pursuant to § 80.1429(f)(1). § 80.1430, as adjusted by paragraph RINs that are valid for use in complying (a)(7)(i) of this section. with the advanced biofuel RVO, were (4) A party may use the same RIN to generated in year i¥1, and are being demonstrate compliance with more than (iii) RINs generated in 2008 or 2009 applied towards the RVOAB,i, in gallons. one RVO so long as it is valid for which have not been used for

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compliance purposes for calendar years to year i+1 if allowed to do so pursuant (ii) The RIN must be recorded on a 2008 or 2009 and which have an RR to paragraph (b)(1) of this section. separate product transfer document code of 15 or 17 may be used to RVOi = The Renewable Volume Obligation transferred to the same party on the demonstrate compliance with the 2010 for the obligated party or renewable fuel same day as the product transfer exporter for calendar year i, in gallons. biomass-based diesel RVO. document used to transfer ownership of (ΣRINNUM)i = Sum of all acquired gallon- (iv) For compliance with the biomass- RINs that were generated in year i and are the volume of renewable fuel. based diesel RVO in calendar year 2010 being applied towards the RVOi, in gallons. (b) RINs separated from volumes of only, the values of (SRINNUM)2008 and (ΣRINNUM)i¥1 = Sum of all acquired renewable fuel. (1) Separated RIN, for (SRINNUM)2009 may not exceed values gallon-RINs that were generated in year i-1 the purposes of this subpart, means a determined by both of the following and are being applied towards the RVOi, in RIN with a K code of 2 that has been inequalities: gallons. separated from a volume of renewable ≤ fuel pursuant to § 80.1429. (SRINNUM)BBD,2008 0.087 * § 80.1428 General requirements for RIN RVOBBD,2010 distribution. (2) Any party that has registered pursuant to § 80.1450 can hold title to (SRINNUM)BBD,2008 + (a) RINs assigned to volumes of (SRINNUM) ≤ 0.20 * RVO a separated RIN. BBD,2009 BBD,2010 renewable fuel and RINs generated, but (3) Separated RINs can be transferred (8) A party may only use a RIN for not assigned. (1) Definitions. (i) from one party to another any number purposes of meeting the requirements of Assigned RIN, for the purposes of this of times. paragraph (a)(1) of this section if that subpart, means a RIN assigned to a (c) RIN expiration. A RIN is valid for RIN is a separated RIN with a K code of volume of renewable fuel pursuant to compliance during the year in which it 2 obtained in accordance with § 80.1426(e) with a K code of 1. was generated, or the following year. §§ 80.1428 and 80.1429. (ii) RINS generated, but not assigned Any RIN that is not used for compliance (9) The number of gallon-RINs are those RINs that have been generated associated with a given batch-RIN that purposes during the year that it was pursuant to 80.1426(a), but have not generated, or during the following year, can be used for compliance with the been assigned to a volume of renewable RVOs shall be calculated from the will be considered an expired RIN. fuel pursuant to 80.1426(e). Pursuant to § 80.1431(a)(3), an expired following formula: (2) Except as provided in § 80.1429, RIN that is used for compliance will be ¥ no party can separate a RIN that has RINNUM = EEEEEEEE SSSSSSSS + 1 considered an invalid RIN. been assigned to a batch pursuant to Where: (d) Any batch-RIN can be divided by § 80.1426(e). its owner into multiple batch-RINs, each RINNUM = Number of gallon-RINs associated (3) An assigned RIN cannot be with a batch-RIN, where each gallon-RIN representing a smaller number of gallon- transferred to another party without represents one gallon of renewable fuel RINs, if all of the following conditions simultaneously transferring a volume of for compliance purposes. are met: EEEEEEEE = Batch-RIN component renewable fuel to that same party. (1) All RIN components other than (4) No more than 2.5 assigned gallon- identifying the last gallon-RIN associated SSSSSSSS and EEEEEEEE are identical with the batch-RIN. RINs with a K code of 1 can be for the original parent and newly SSSSSSSS = Batch-RIN component transferred to another party with every formed daughter RINs. identifying the first gallon-RIN gallon of renewable fuel transferred to associated with the batch-RIN. (2) The sum of the gallon-RINs that same party. associated with the multiple daughter (b) Deficit carryovers. (1) An obligated (5)(i) On each of the dates listed in batch-RINs is equal to the gallon-RINs party or an exporter of renewable fuel paragraph (a)(5)(ii) of this section in any associated with the parent batch-RIN. that fails to meet the requirements of calendar year, the following equation paragraph (a)(1) or (a)(5) of this section must be satisfied for assigned RINs and § 80.1429 Requirements for separating for calendar year i is permitted to carry volumes of renewable fuel owned by a RINs from volumes of renewable fuel. a deficit into year i+1 under the party: (a)(1) Separation of a RIN from a following conditions: Σ(RIN)D ≤ Σ(Vsi * 2.5)D volume of renewable fuel means (i) The party did not carry a deficit termination of the assignment of the RIN Where: into calendar year i from calendar year to a volume of renewable fuel. i¥1 for the same RVO. D = Applicable date. Σ (2) RINs that have been separated (ii) The party subsequently meets the (RIN)D = Sum of all assigned gallon-RINs from volumes of renewable fuel become with a K code of 1 and all RINs requirements of paragraph (a)(1) of this separated RINs subject to the provisions section for calendar year i+1 and carries generated, but not assigned that are of § 80.1428(b). no deficit into year i+2 for the same owned on date D. (Vsi)D = Volume i of renewable fuel owned on (b) A RIN that is assigned to a volume RVO. ° of renewable fuel is separated from that (iii) For compliance with the biomass- date D, standardized to 60 F, in gallons. Σ(Vsi * 2.5)D = Sum of all volumes of volume only under one of the following based diesel RVO in calendar year 2011, renewable fuel owned on date D, conditions: the deficit which is carried over from multiplied by an equivalence value of (1) Except as provided in paragraph 2010 is no larger than 57% of the party’s 2.5. (b)(6) of this section, a party that is an 2010 biomass-based diesel RVO as obligated party according to § 80.1406 determined prior to any adjustment (ii) The applicable dates are March 31, must separate any RINs that have been applied pursuant to paragraph (a)(7)(i) June 30, September 30, and December assigned to a volume of renewable fuel of this section. 31. (2) A deficit is calculated according to (6) Any transfer of ownership of if they own that volume. the following formula: assigned RINs must be documented on (2) Except as provided in paragraph product transfer documents generated (b)(5) of this section, any party that ¥ Di = RVOi [(SRINNUM)i + pursuant to § 80.1453. owns a volume of renewable fuel must (SRINNUM)i¥1] (i) The RIN must be recorded on the separate any RINs that have been Where: product transfer document used to assigned to that volume once the

Di = The deficit, in gallons, generated in transfer ownership of the volume of volume is blended with gasoline or calendar year i that must be carried over renewable fuel to another party; or diesel to produce a transportation fuel,

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home heating oil, or jet fuel. A party renewable fuel shall change the K code k = A discrete volume of biodiesel (mono- may separate up to 2.5 RINs per gallon in the RIN from a value of 1 to a value alkyl ester) or non-ester renewable diesel of renewable fuel. of 2 prior to transferring the RIN to any fuel. (3) Any party that exports a volume of other party. VOLk = The standardized volume of discrete (d) Upon and after separation of a RIN volume k of exported biodiesel (mono- renewable fuel must separate any RINs alkyl ester) or non-ester renewable that have been assigned to the exported from its associated volume of renewable diesel, in gallons, calculated in volume. fuel, the separated RIN must be accordance with § 80.1426(d)(10). (4) Any party that produces, imports, accompanied by documentation when EVk = The equivalence value associated with owns, sells, or uses a volume of neat transferred. discrete volume k. renewable fuel, or a blend of renewable (1) When transferred, the separated S = Sum involving all volumes of biodiesel fuel and diesel fuel, must separate any RIN shall appear on documentation that (mono-alkyl ester) or non-ester RINs that have been assigned to that includes all the following information: renewable diesel exported. volume of neat renewable fuel or that (i) The name and address of the DBBD,i-1 = Deficit carryover from the previous blend if: transferor and transferee. year for biomass-based diesel, in gallons. (i) The party designates the neat (ii) The transferor’s and transferee’s (2) For exported volumes of all renewable fuel or blend as EPA company registration numbers. renewable fuels, a renewable fuel transportation fuel, home heating oil, or (iii) The date of the transfer. exporter’s Renewable Volume jet fuel: and (iv) A list of separated RINs Obligation for total renewable fuel shall (ii) The neat renewable fuel or blend transferred. be calculated according to the following is used without further blending, in the (2) [Reserved] formula: designated form, as transportation fuel, (e) Upon and after separation of a RIN RVORF,i = S(VOLk * EVk)i + DRF,i-1 home heating oil, or jet fuel. from its associated volume of renewable (5) RINs assigned to a volume of fuel, product transfer documents used to Where: biodiesel (mono-alkyl ester) can only be transfer ownership of the volume must RVORF,i = The Renewable Volume Obligation for renewable fuel for the exporter for separated from that volume pursuant to continue to meet the requirements of § 80.1453(a)(5)(iii). calendar year i, in gallons of renewable paragraph (b)(2) of this section if such fuel. biodiesel is blended into diesel fuel at (f) Any party that uses a renewable fuel in a commercial or industrial boiler k = A discrete volume of renewable fuel. a concentration of 80 volume percent VOLk = The standardized volume of discrete biodiesel (mono-alkyl ester) or less. or ocean-going vessel (as defined in volume k of exported renewable fuel, in (i) This paragraph (b)(5) shall not § 80.1401), or designates a renewable gallons, calculated in accordance with apply to obligated parties or exporters of fuel for use in a boiler or ocean-going § 80.1426(d)(10). renewable fuel. vessel, must retire any RINs received EVk = The equivalence value associated with (ii) This paragraph (b)(5) shall not with that renewable fuel and report the discrete volume k. apply to parties meeting the retired RINs in the applicable reports S = Sum involving all volumes of renewable fuel exported. requirements of paragraph (b)(4) of this under § 80.1452. Any 2009 RINs retired pursuant to § 80.1129(e) may be DRF,i-1 = Deficit carryover from the previous section. year for renewable fuel, in gallons. (6) For RINs that an obligated party reinstated by the retiring party for sale generates for renewable fuel that has not or use to demonstrate compliance with (3)(i) If the equivalence value for a been blended into gasoline or diesel to a 2010 RVO. volume of renewable fuel can be produce a transportation fuel, the determined pursuant to § 80.1415 based § 80.1430 Requirements for exporters of on its composition, then the appropriate obligated party can only separate such renewable fuels. RINs from volumes of renewable fuel if equivalence value shall be used in the (a) Any party that owns any amount calculation of the exporter’s Renewable the number of gallon-RINs separated in of renewable fuel, whether in its neat a calendar year is less than or equal to Volume Obligations. form or blended with gasoline or diesel, (ii) If the equivalence value for a a limit set as follows: that is exported from any of the regions (i) For RINs with a D code of 1, the volume of renewable fuel cannot be described in § 80.1426(a) shall acquire limit shall be equal to RVO determined, the value of EVk shall be CB. sufficient RINs to offset all applicable (ii) For RINs with a D code of 2, the 1.0. Renewable Volume Obligations (c) Each exporter of renewable fuel limit shall be equal to RVOBBD. (iii) For RINs with a D code of 3, the representing the exported renewable must demonstrate compliance with its limit shall be equal to RVO — fuel. RVOs using RINs it has acquired, AB (b) Renewable Volume Obligations. RVO —RVO pursuant to § 80.1427. CB BBD. An exporter of renewable fuel shall (iv) For RINs with a D code of 4, the determine its Renewable Volume § 80.1431 Treatment of invalid RINs. limit shall be equal to RVO — RVO . RF AB (a) Invalid RINs. An invalid RIN is a (7) For a party that has received a Obligations from the volumes of the RIN that is any of the following: small refinery exemption under renewable fuel exported. (1) For exported volumes of biodiesel (1) Is a duplicate of a valid RIN. § 80.1441 or a small refiner exemption (mono-alkyl ester) or non-ester (2) Was based on volumes that have under § 80.1442, and is not otherwise an renewable diesel, a renewable fuel not been standardized to 60 °F. obligated party, during the period of exporter’s Renewable Volume (3) Has expired, except as provided in time that the small refinery or small Obligation for biomass-based diesel § 80.1428(c). refiner exemptions are in effect, the shall be calculated according to the (4) Was based on an incorrect party may only separate RINs that have following formula: equivalence value. been assigned to volumes of renewable (5) Is deemed invalid under fuel that the party blends into gasoline RVOBBD,i = S(VOLk * EVk)i + DBBD,i-1 § 80.1467(g). or diesel to produce transportation fuel, Where: (6) Does not represent renewable fuel

or that the party used as home heating RVOBBD,i = The Renewable Volume as defined in § 80.1401. oil or jet fuel. Obligation for biomass-based diesel for (7) Was assigned an incorrect ‘‘D’’ (c) The party responsible for the exporter for calendar year i, in code value under § 80.1426(d)(3) for the separating a RIN from a volume of gallons. associated volume of fuel.

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(8) In the event that the same RIN is (1) Must be reported as a retired RIN (2) This exemption shall apply unless transferred to two or more parties, all in the applicable reports under a refiner chooses to waive this such RINs are deemed invalid, unless § 80.1452. exemption (as described in paragraph (f) EPA in its sole discretion determines (2) May not be transferred to another of this section), or the exemption is that some portion of these RINs is valid. party or used by any obligated party to extended (as described in paragraph (e) (9) Was otherwise improperly demonstrate compliance with the of this section). generated. party’s Renewable Volume Obligations. (3) For the purposes of this section, (b) In the case of RINs that are invalid, the term ‘‘refiner’’ shall include foreign §§ 80.1433–80.1439 [Reserved] the following provisions apply: refiners. (1) Upon determination by any party § 80.1440 What are the provisions for (4) This exemption shall only apply to that RINs owned are invalid, the party blenders who handle and blend less than refineries that process crude oil through must adjust its records, reports, and 125,000 gallons of renewable fuel per year? refinery processing units. (5) The small refinery exemption is compliance calculations in which the (a) Renewable fuel blenders who effective immediately, except as invalid RINs were used as necessary to handle and blend less than 125,000 specified in paragraph (b)(3) of this reflect the deletion of the invalid RINs. gallons of renewable fuel per year, and section. The party must retire the invalid RINs who do not have Renewable Volume (b)(1) A refiner owning a small in the applicable RIN transaction reports Obligations, are permitted to delegate refinery must submit a verification letter under § 80.1452(c)(2) for the quarter in their RIN-related responsibilities to the to EPA containing all of the following which the RINs were determined to be party directly upstream of them who invalid. information: supplied the renewable fuel for (i) The annual average aggregate daily (2) Invalid RINs cannot be used to blending. crude oil throughput for the period achieve compliance with the Renewable (b) The RIN-related responsibilities January 1, 2006 through December 31, Volume Obligations of an obligated that may be delegated directly upstream 2006 (as determined by dividing the party or exporter, regardless of the include all the following: aggregate throughput for the calendar party’s good faith belief that the RINs (1) The RIN separation requirements year by the number 365). were valid at the time they were of § 80.1429. (ii) A letter signed by the president, acquired. (2) The recordkeeping requirements of chief operating or chief executive officer (3) Any valid RINs remaining after § 80.1451. of the company, or his/her designee, deleting invalid RINs must first be (3) The reporting requirements of stating that the information contained in applied to correct the transfer of invalid § 80.1452. the letter is true to the best of his/her RINs to another party before applying (4) The attest engagement knowledge, and that the refinery was the valid RINs to meet the party’s requirements of § 80.1464. small as of December 31, 2006. Renewable Volume Obligations at the (c) For upstream delegation of RIN- (iii) Name, address, phone number, end of the compliance year. related responsibilities, both parties facsimile number, and e-mail address of must agree on the delegation, and a § 80.1432 Reported spillage or disposal of a corporate contact person. renewable fuel. quarterly written statement signed by (2) Verification letters must be both parties must be included with the submitted by January 1, 2010 to one of (a) A reported spillage or disposal reporting party’s reports under the addresses listed in paragraph (h) of under this subpart means a spillage or § 80.1452. this section. disposal of renewable fuel associated (1) If EPA finds that a renewable fuel (3) For foreign refiners the small with a requirement by a federal, state, or blender improperly delegated its RIN- refinery exemption shall be effective local authority to report the spillage or related responsibilities under this upon approval, by EPA, of a small disposal. subpart M, the blender will be held refinery application. The application (b) Except as provided in paragraph accountable for any RINs separated and must contain all of the elements (c) of this section, in the event of a will be subject to all RIN-related required for small refinery verification reported spillage or disposal of any responsibilities under this subpart. letters (as specified in paragraph (b)(1) volume of renewable fuel, the owner of (2) [Reserved] of this section), must satisfy the the renewable fuel must retire a number (d) Renewable fuel blenders who provisions of § 80.1465(f) through (h) of RINs corresponding to the volume of handle and blend less than 125,000 and (o), and must be submitted by spilled or disposed of renewable fuel gallons of renewable fuel per year and January 1, 2010 to one of the addresses multiplied by its equivalence value. who do not opt to delegate their RIN- listed in paragraph (h) of this section. (1) If the equivalence value for the related responsibilities will be subject to (4) Small refinery verification letters spilled or disposed of volume may be all requirements stated in paragraph (b) are not required for those refiners who determined pursuant to § 80.1415 based of this section, and all other applicable have already submitted a verification on its composition, then the appropriate requirements of this subpart M. letter under subpart K of this Part 80. equivalence value shall be used. (c) If EPA finds that a refiner provided (2) If the equivalence value for a § 80.1441 Small refinery exemption. false or inaccurate information spilled or disposed of volume of (a)(1) Transportation fuel produced at regarding a refinery’s crude throughput renewable fuel cannot be determined, a refinery by a refiner, or foreign refiner (pursuant to paragraph (b)(1)(i) of this the equivalence value shall be 1.0. (as defined at § 80.1465(a)), is exempt section) in its small refinery verification (c) If the owner of a volume of through December 31, 2010 from the letter, the exemption will be void as of renewable fuel that is spilled or renewable fuel standards of § 80.1405; the effective date of these regulations. disposed of and reported establishes and the refinery, or foreign refinery, is (d) If a refiner is complying on an that no RINs were generated to represent exempt from the requirements that aggregate basis for multiple refineries, the volume, then no RINs shall be apply to obligated parties under this any such refiner may exclude from the retired. subpart M if that refinery meets the calculation of its Renewable Volume (d) A RIN that is retired under definition of a small refinery under Obligations (under § 80.1407) paragraph (b) of this section: § 80.1401 for calendar year 2006. transportation fuel from any refinery

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receiving the small refinery exemption (1) For US mail: U.S. EPA, Attn: RFS2 presumed to be correct. In cases where under paragraph (a) of this section. Program, 6406J, 1200 Pennsylvania a company disagrees with this (e)(1) The exemption period in Avenue, NW., Washington, DC 20460. information, the company may petition paragraph (a) of this section shall be (2) For overnight or courier services: EPA with appropriate data to correct the extended by the Administrator for a U.S. EPA, Attn: RFS2 Program, 6406J, record when the company submits its period of not less than two additional 1310 L Street, NW, 6th floor, application. years if a study by the Secretary of Washington, DC 20005. (202) 343–9038. (vii) A letter signed by the president, chief operating or chief executive officer Energy determines that compliance with § 80.1442 What are the provisions for the requirements of this subpart would small refiners under the RFS program? of the company, or his/her designee, impose a disproportionate economic stating that the information contained in (a)(1) To qualify as a small refiner hardship on a small refinery. the application is true to the best of his/ under this section, a refiner must meet (2) A refiner may petition the her knowledge. all of the following criteria: (viii) Name, address, phone number, Administrator for an extension of its (i) The refiner produced facsimile number, and e-mail address of small refinery exemption, based on transportation fuel at its refineries by a corporate contact person. disproportionate economic hardship, at processing crude oil through refinery (3) In the case of a refiner who any time. processing units from January 1, 2006 acquires or reactivates a refinery that (i) A petition for an extension of the through December 31, 2006. was shut down or non-operational small refinery exemption must specify (ii) The refiner employed an average between January 1, 2005 and January 1, the factors that demonstrate a of no more than 1,500 people, based on 2006, the information required in disproportionate economic hardship the average number of employees for all paragraph (b)(2) of this section must be and must provide a detailed discussion pay periods for calendar year 2006 for provided for the time period since the regarding the hardship the refinery all subsidiary companies, all parent refiner acquired or reactivated the would face in producing transportation companies, all subsidiaries of the parent refinery. fuel meeting the requirements of companies, and all joint venture § 80.1405 and the date the refiner partners. (4) EPA will notify a refiner of its anticipates that compliance with the (iii) The refiner had a corporate- approval or disapproval of the requirements can reasonably be average crude oil capacity less than or application for small refiner status by achieved at the small refinery. equal to 155,000 barrels per calendar letter. (ii) The Administrator shall act on day (bpcd) for 2006. (5) For foreign refiners the small such a petition not later than 90 days (2) For the purposes of this section, refiner exemption shall be effective after the date of receipt of the petition. the term ‘‘refiner’’ shall include foreign upon approval, by EPA, of a small refiner application. The application (f) At any time, a refiner with an refiners. must contain all of the elements approved small refinery exemption (b) Applications for small refiner required for small refiner status under paragraph (a) of this section may status. (1) Applications for small refiner applications (as specified in paragraph waive that exemption upon notification status under this section must be (b)(2) of this section), must satisfy the to EPA. submitted to EPA by January 1, 2010. provisions of § 80.1465(f) through (h) (1) A refiner’s notice to EPA that it (2) Small refiner status applications under this section must include all the and (o), must demonstrate compliance intends to waive its small refinery with the crude oil capacity criterion of exemption must be received by following information for the refiner and for all subsidiary companies, all paragraph (a)(1)(iii) of this section, and November 1 to be effective in the next must be submitted by January 1, 2010 to compliance year. parent companies, all subsidiaries of the parent companies, and all joint venture one of the addresses listed in paragraph (2) The waiver will be effective partners: (i) of this section. beginning on January 1 of the following (i) A listing of the name and address (c) Small refiner temporary calendar year, at which point the of each company location where any exemption. (1) Transportation fuel gasoline produced at that refinery will employee worked for the period January produced by a refiner, or foreign refiner be subject to the renewable fuels 1, 2006 through December 31, 2006. (as defined at § 80.1465(a)), is exempt standard of § 80.1405 and all other (ii) The average number of employees through December 31, 2010 from the requirements that apply to obligated at each location based on the number of renewable fuel standards of § 80.1405 parties under this Subpart M. employees for each pay period for the and the requirements that apply to (3) The waiver must be sent to EPA period January 1, 2006 through obligated parties under this subpart if at one of the addresses listed in December 31, 2006. the refiner or foreign refiner meets all of paragraph (h) of this section. (iii) The type of business activities the following criteria: (g) A refiner that acquires a refinery carried out at each location. (i) The refiner produced from either an approved small refiner (iv) For joint ventures, the total transportation fuel at its refineries by (as defined under § 80.1442(a)) or number of employees includes the processing crude oil through refinery another refiner with an approved small combined employee count of all processing units from January 1, 2006 refinery exemption under paragraph (a) corporate entities in the venture. through December 31, 2006. of this section shall notify EPA in (v) For government-owned refiners, (ii) The refiner employed an average writing no later than 20 days following the total employee count includes all of no more than 1,500 people, based on the acquisition. government employees. the average number of employees for all (h) Verification letters under (vi) The total corporate crude oil pay periods for calendar year 2006 for paragraph (b) of this section, petitions capacity of each refinery as reported to all subsidiary companies, all parent for small refinery hardship extensions the Energy Information Administration companies, all subsidiaries of the parent under paragraph (e) of this section, and (EIA) of the U.S. Department of Energy companies, and all joint venture small refinery exemption waivers under (DOE), for the period January 1, 2006 partners. paragraph (f) of this section shall be sent through December 31, 2006. The (iii) The refiner had a corporate- to one of the following addresses: information submitted to EIA is average crude oil capacity less than or

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equal to 155,000 barrels per calendar (ii) The refiner has made best efforts representative (or the equivalent official day (bpcd) for 2006. to comply with the requirements of this of the territory). (2) The small refiner exemption shall subpart. (d)(1) A petition submitted under this apply to an approved small refiner (2) A refiner must apply, and be section must be received by EPA by unless that refiner chooses to waive this approved, for small refiner status under November 1 for the state or territory to exemption (as described in paragraph this section. be included in the RFS program in the (d) of this section). (3) A small refiner’s hardship next calendar year. (d)(1) A refiner with approved small application must include all the (2) A petition submitted under this refiner status may, at any time, waive following information: section should be sent to either of the (i) A plan demonstrating how the the small refiner exemption under following addresses: refiner will comply with the paragraph (c) of this section upon (i) For US Mail: U.S. EPA, Attn: RFS requirements of § 80.1405 (and all other notification to EPA. Program, 6406J, 1200 Pennsylvania requirements of this subpart applicable Avenue, NW., Washington, DC 20460. (2) A refiner’s notice to EPA that it to obligated parties), as expeditiously as (ii) For overnight or courier services: intends to waive the small refiner possible. U.S. EPA, Attn: RFS Program, 6406J, exemption must be received by (ii) A detailed description of the 1310 L Street, NW., 6th floor, November 1 of a given year in order for refinery configuration and operations Washington, DC 20005. (202) 343–9038. the waiver to be effective for the including, at a minimum, all the (e) Upon approval of the petition by following calendar year. The waiver will following information: the Administrator: be effective beginning on January 1 of (A) The refinery’s total crude (1) EPA shall calculate the standards the following calendar year, at which capacity. for the following year, including the point the refiner will be subject to the (B) Total crude capacity of any other total gasoline and diesel fuel volume for renewable fuel standards of § 80.1405 refineries owned by the same entity. the state or territory in question. and the requirements that apply to (C) Total volume of gasoline and (2) Beginning on January 1 of the next obligated parties under this subpart. diesel produced at the refinery. calendar year, all gasoline and diesel (3) The waiver must be sent to EPA (D) Detailed descriptions of efforts to fuel refiners and importers in the state at one of the addresses listed in comply. or territory for which a petition has been paragraph (j) of this section. (E) Bond rating of the entity that owns approved shall be obligated parties as (e) Refiners who qualify as small the refinery. defined in § 80.1406. refiners under this section and (F) Estimated investment needed to (3) Beginning on January 1 of the next subsequently fail to meet all of the comply with the requirements of this calendar year, all renewable fuel qualifying criteria as set out in subpart. producers in the state or territory for (4) A small refiner shall notify EPA in paragraph (a) of this section are which a petition has been approved writing of any changes to its situation disqualified as small refiners as of the shall, pursuant to § 80.1426(a)(2), be between approval of the extension effective date of this subpart, except as required to generate RINs and comply application and the end of its approved provided under paragraphs (d) and with other requirements of this subpart extension period. (e)(2) of this section. M that are applicable to producers of (5) EPA may impose reasonable renewable fuel. (1) In the event such disqualification conditions on extensions of the occurs, the refiner shall notify EPA in temporary exemption, including § 80.1444–80.1448 [Reserved] writing no later than 20 days following reducing the length of such an the disqualifying event. extension, if conditions or situations § 80.1449 What are the Production Outlook Report requirements? (2) Disqualification under this change between approval of the paragraph (e) shall not apply in the case application and the end of the approved (a) A renewable fuel producer or of a merger between two approved small extension period. importer, for each of its facilities, must refiners. (i) Applications for small refiner submit all the following information, as (f) If EPA finds that a refiner provided status, small refiner exemption waivers, applicable, to EPA annually beginning false or inaccurate information in its or extensions of the small refiner February 28, 2010: application for small refiner status temporary exemption under this section (1) The type, or types, of renewable under this subpart M, the refiner will be must be sent to one of the following fuel expected to be produced or disqualified as a small refiner as of the addresses: imported at each facility owned by the effective date of this subpart. (1) For US Mail: U.S. EPA, Attn: RFS2 renewable fuel producer or importer. (g) Any refiner that acquires a refinery Program, 6406J, 1200 Pennsylvania (2) The volume of each type of from another refiner with approved Avenue, NW., Washington, DC 20460. renewable fuel expected to be produced small refiner status under paragraph (a) (2) For overnight or courier services: or imported at each facility. (3) The number of RINs expected to be of this section shall notify EPA in U.S. EPA, Attn: RFS2 Program, 6406J, generated by the renewable fuel writing no later than 20 days following 1310 L Street, NW., 6th floor, producer or importer for each type of the acquisition. Washington, DC 20005. (202) 343–9038. renewable fuel. (h) Extensions of the small refiner § 80.1443 What are the opt-in provisions (4) Information about all the temporary exemption. (1) A small for noncontiguous states and territories? following: refiner may apply for an extension of (a) Alaska or a United States territory (i) Existing and planned production the temporary exemption of paragraph may petition the Administrator to opt- capacity. (c)(1) of this section based on a showing in to the program requirements of this (ii) Long-range plans. of all the following: subpart. (iii) Feedstocks and production (i) Circumstances exist that impose (b) The Administrator will approve processes to be used at each production disproportionate economic hardship on the petition if it meets the provisions of facility. the refiner and significantly affect the paragraphs (c) and (d) of this section. (iv) Changes to the facility that would refiner’s ability to comply with the RFS (c) The petition must be signed by the raise or lower emissions of any standards. Governor of the state or his authorized greenhouse gases from the facility.

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(5) For expanded production capacity by January 1, 2010 or 60 days prior to records to the Administrator upon that is planned or underway at each the production of any renewable fuel request. existing facility, or new production subject to this subpart, whichever is (iv) The renewable fuel producer must facilities that are planned or underway, later: retain records of the review and information on all the following: (1) A description of the types of verification, as required in (i) Strategic planning. renewable fuels and co-products § 80.1451(b)(7). (ii) Planning and front-end produced at the facility and all the (c) Importers. Importers of renewable engineering. following for each product type: fuel must provide EPA the information (iii) Detailed engineering and (i) A list of the feedstocks capable of specified under § 80.76, if such permitting. being utilized by the facility. information has not already been (iv) Procurement and construction. (ii) A description of the facility’s provided under the provisions of this (v) Commissioning and startup. renewable fuel production processes. part and must receive an EPA-issued (6) Whether capital commitments (iii) The facility’s renewable fuel company identification number prior to have been made or are projected to be production capacity. owning any RINs. Registration made. (iv) A list of the facility’s process information may be submitted to EPA (b) The information listed in energy sources. by January 1, 2010 or 60 days prior to paragraph (a) of this section shall (v) For a producer of renewable fuel engaging in any transaction involving include the reporting party’s best with a facility that commenced RINs, whichever is later. estimates for the five following calendar construction on or before December 19, (d) Registration updates. Except as years. 2007 per § 80.1403: provided in § 80.1426(b)(1): (c) Production outlook reports must (A) The location of the facility. (1) Any producer of renewable fuel provide an update of the progress in (B) Record of costs of additions, who makes changes to his facility that each of the areas listed in paragraph replacements, and repairs inclusive of will qualify his renewable fuel for a (a)(5) of this section. labor costs conducted at the facility renewable fuel category or D code as (d) Production outlook reports shall since December 19, 2007. defined in § 80.1425(g) that is not be sent to one of the following (C) The estimated life of the facility. reflected in the producer’s registration addresses: (D) A discussion of any economic or information on file with EPA must (1) For US Mail: U.S. EPA, Attn: RFS2 technical limitations the facility may update his registration information and Program-Production Outlook Reports, have in using a fuel production pathway submit a copy of an updated 6406J, 1200 Pennsylvania Avenue, NW., that will achieve a 20 percent reduction independent engineering review at least Washington, DC 20460. in GHG as compared to baseline fuel. 60 days prior to producing the new type (2) For overnight or courier services: (2) An independent third party of renewable fuel. U.S. EPA, Attn: RFS2 Program- engineering review and written (2) Any producer of renewable fuel Production Outlook Reports, 6406J, verification of the descriptions made who makes any other changes to a 1310 L Street, NW., 6th floor, pursuant to paragraph (b)(1) of this facility not affecting the renewable fuel Washington, DC 20005. (202) 343–9038. section. category for which the producer is (i) The verifications required under registered must update his registration § 80.1450 What are the registration this section must be conducted by a requirements under the RFS program? information within 7 days of the change. licensed Professional Engineer who (e) Parties who own RINs or who (a) Obligated Parties and Exporters. works in the chemical engineering field intend to own RINs. Any party who Any obligated party described in and who is licensed by the appropriate owns or intends to own RINs, but who § 80.1406, and any exporter of state agency. is not covered by paragraphs (a), (b), or renewable fuel described in § 80.1430, (ii) To be considered an independent (d) of this section, must provide EPA the must provide EPA with the information third party under this paragraph (b)(2): information specified under § 80.76, if specified for registration under § 80.76, (A) The third party shall not be such information has not already been if such information has not already been operated by the renewable fuel producer provided under the provisions of this provided under the provisions of this or any subsidiary or employee of the part and must receive an EPA-issued part. An obligated party or an exporter renewable fuel producer. company identification number prior to of renewable fuel must receive EPA- (B) The third party shall be free from owning any RINs. Registration issued identification numbers prior to any interest in the renewable fuel information must be submitted to EPA engaging in any transaction involving producer’s business. by January 1, 2010 or 60 days prior to RINs. Registration information must be (C) The renewable fuel producer shall engaging in any transaction involving submitted to EPA by January 1, 2010 or be free from any interest in the third RINs, whichever is later. 60 days prior to engaging in any party’s business. (f) Registration shall be on forms, and transaction involving RINs, whichever (D) Use of a third party that is following policies, established by the is later. debarred, suspended, or proposed for Administrator. (b) Producers. Except as provided in debarment pursuant to the Government- § 80.1426(b)(1), any foreign or domestic wide Debarment and Suspension § 80.1451 What are the recordkeeping producer of renewable fuel, regardless regulations, 40 CFR part 32, or the requirements under the RFS program? of whether RINs will be generated for Debarment, Suspension and Ineligibility (a) Beginning January 1, 2010, any that renewable fuel, must provide EPA provisions of the Federal Acquisition obligated party (as described at the information specified under § 80.76 Regulations, 48 CFR, part 9, subpart 9.4, § 80.1406) or exporter of renewable fuel if such information has not already been shall be deemed noncompliance with (as described at § 80.1430) must keep all provided under the provisions of this the requirements of this section. of the following records: part, and must receive EPA-issued (iii) The independent third party shall (1) Product transfer documents company and facility identification retain all records pertaining to the consistent with § 80.1453 and associated numbers prior to generating or assigning verification required under this section with the obligated party’s activity, if any RINs. All the following registration for a period of five years from the date any, as transferor or transferee of information must be submitted to EPA of creation and shall deliver such renewable fuel.

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(2) Copies of all reports submitted to home heating oil without further (3) Records related to the generation EPA under §§ 80.1449 and 80.1452(a). blending, in the designated form. and assignment of RINs for each facility, (3) Records related to each RIN (6) Documents associated with including all of the following: transaction, including all the following: feedstock purchases and transfers that (i) Batch volume in gallons. (i) A list of the RINs owned, identify where the feedstocks were (ii) Batch number. purchased, sold, retired, or reinstated. produced and are sufficient to verify (iii) RIN as assigned under § 80.1426. (ii) The parties involved in each RIN that feedstocks used are renewable (iv) Identification of batches by transaction including the transferor, biomass (as defined in § 80.1401) if RINs renewable category. transferee, and any broker or agent. are generated, or sufficient to verify that (v) Date of import. (iii) The date of the transfer of the feedstocks used are not renewable (vi) Results of any laboratory analysis RIN(s). biomass if no RINs are generated. of batch chemical composition or (iv) Additional information related to (i) Renewable fuel producers who use physical properties. details of the transaction and its terms. planted crops or crop residue from (vii) Additional information related to (4) Records related to the use of RINs existing agricultural land, or who use details of RIN generation. (by facility, if applicable) for planted trees or slash from actively (4) Records related to each RIN compliance, including all the following: managed tree plantations must keep transaction, including all of the (i) Methods and variables used to records that serve as evidence that the following: calculate the Renewable Volume land from which the feedstock was (i) A list of the RINs owned, Obligations pursuant to § 80.1407 or obtained was continuously actively purchased, sold, retired, or reinstated. § 80.1430. managed or fallow, and nonforested, (ii) The parties involved in each (ii) List of RINs used to demonstrate since December 19, 2007. The records transaction including the transferor, compliance. must be provided by the feedstock transferee, and any broker or agent. (iii) Additional information related to producer and consist of at least one of (iii) The date of the transfer of the details of RIN use for compliance. the following documents: Sales records RIN(s). (b) Beginning January 1, 2010, any for planted crops or trees, crop residue, (iv) Additional information related to foreign or domestic producer of a livestock, or slash; purchasing records details of the transaction and its terms. renewable fuel as defined in § 80.1401 for fertilizer, weed control, or reseeding, (5) Documents associated with must keep all of the following records: including seeds, seedlings, or other feedstock purchases and transfers, (1) Product transfer documents nursery stock; a written management sufficient to verify that feedstocks used consistent with § 80.1453 and associated plan for agricultural or silvicultural are renewable biomass (as defined in with the renewable fuel producer’s purposes; documentation of § 80.1401) if the importer generates activity, if any, as transferor or participation in an agricultural, or RINs. transferee of renewable fuel. silvicultural program sponsored by a (6) Documents associated with (2) Copies of all reports submitted to Federal, state or local government feedstock purchases and transfers, EPA under §§ 80.1449 and 80.1452(b). agency; or documentation of land sufficient to verify that feedstocks used (3) Records related to the generation management in accordance with an are not renewable biomass as defined in and assignment of RINs for each facility, agricultural or silvicultural product § 80.1401 if the importer does not including all of the following: certification program. generate RINs. (i) Batch volume in gallons. (ii) Renewable fuel producers who use (7) Copies of registration documents (ii) Batch number. any other type of renewable biomass required under § 80.1450. (iii) RIN as assigned under § 80.1426. must have written certification from (8) Records related to the import of (iv) Identification of batches by their feedstock supplier that the any volume of renewable fuel that the renewable category. feedstock qualifies as renewable importer designates for use as (v) Date of production. biomass. transportation fuel, jet fuel, or home (vi) Results of any laboratory analysis (iii) Renewable fuel producers who do heating oil. of batch chemical composition or not use renewable biomass must have (d) Beginning January 1, 2010, any physical properties. written certification from their feedstock production facility with a baseline (vii) Additional information related to supplier that the feedstock does not volume of fuel that is not subject to the details of RIN generation. qualify as renewable biomass. 20% GHG threshold, pursuant to (4) Records related to each RIN (7) Copies of registration documents § 80.1403(a), must keep all of the transaction, including all of the required under § 80.1450, including following: following: information on fuels and products, (1) Detailed engineering plans for the (i) A list of the RINs owned, feedstocks, facility production processes facility. purchased, sold, retired, or reinstated. and capacity, energy sources, and (2) Federal, State, and local (ii) The parties involved in each independent third party engineering preconstruction approvals and transaction including the transferor, review. permitting. transferee, and any broker or agent. (c) Beginning January 1, 2010, any (3) Procurement and construction (iii) The date of the transfer of the importer of a renewable fuel (as defined contracts and agreements. RIN(s). in § 80.1401) must keep all of the (4) Records of electricity consumption (iv) Additional information related to following records: and energy use. details of the transaction and its terms. (1) Product transfer documents (5) Records showing costs of (5) Records related to the production, consistent with § 80.1453 and associated additions, replacements, and repairs importation, ownership, sale or use of with the renewable fuel importer’s inclusive of labor costs conducted at the any volume of renewable fuel or blend activity, if any, as transferor or facility since December 19, 2007. of renewable fuel and gasoline or diesel transferee of renewable fuel. (6) Records estimating the life of the fuel that any party designates for use as (2) Copies of all reports submitted to existing facility. transportation fuel, jet fuel, or home EPA under §§ 80.1449 and 80.1452(b); (e) Beginning January 1, 2010, any heating oil and the use of the fuel or however, duplicate records are not party, other than those parties covered blend as transportation fuel, jet fuel, or required. in paragraphs (a) and (b) of this section,

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that owns RINs must keep all of the (i) The obligated party’s name. schedule specified in paragraph (d)(1) of following records: (ii) The EPA company registration this section. (1) Product transfer documents number. (ii) Starting January 1, 2011, consistent with § 80.1453 and associated (iii) Whether the party is complying renewable fuel production reports for with the party’s activity, if any, as on a corporate (aggregate) or facility-by- each facility owned by the renewable transferor or transferee of renewable facility basis. fuel producer or importer shall be fuel. (iv) The EPA facility registration submitted in accordance with paragraph (2) Copies of all reports submitted to number, if complying on a facility-by- (e)(2) of this section. EPA under § 80.1452(c). facility basis. (iii) The renewable fuel production (3) Records related to each RIN (v) The production volume of all of reports shall include all the following transaction by renewable fuel category, the products listed in § 80.1407(c) and information for each batch of renewable including all of the following: (f) for the reporting year. fuel produced, where ‘‘batch’’ means a (i) A list of the RINs owned, (vi) The RVOs, as defined in discrete quantity of renewable fuel purchased, sold, retired, or reinstated. § 80.1427(a) for obligated parties and produced and either assigned or not (ii) The parties involved in each RIN § 80.1430(b) for exporters of renewable assigned a unique batch-RIN per transaction including the transferor, fuel, for the reporting year. § 80.1426(b)(2): transferee, and any broker or agent. (vii) Any deficit RVOs carried over (A) The renewable fuel producer’s (iii) The date of the transfer of the from the previous year. name. RIN(s). (viii) The total current-year RINs by (B) The EPA company registration (iv) Additional information related to type of renewable fuel, as those fuels are number. details of the transaction and its terms. defined in § 80.1401 (i.e., cellulosic (C) The EPA facility registration (4) Records related to any volume of biofuel, biomass-based diesel, advanced renewable fuel that the party designated number. biofuels, and renewable fuels), used for (D) The applicable monthly reporting for use as transportation fuel, jet fuel, or compliance. home heating oil and from which RINs period. (ix) The total prior-year RINs by (E) Whether RINs were generated for were separated pursuant to renewable fuel type, as those fuels are each batch according to § 80.1426. § 80.1429(b)(4). defined in § 80.1401, used for (f) The records required under (F) The production date of each batch. compliance. paragraphs (a) through (c) of this section (G) The type of renewable fuel of each (x) A list of all RINs used for and under § 80.1453 shall be kept for batch, as defined in § 80.1401. compliance in the reporting year. (H) Information related to the volume five years from the date they were (A) For the 2010 reporting year only of denaturant and applicable created, except that records related to (January 1—December 31, 2010), a list of transactions involving RINs shall be equivalence value of each batch. all 38-digit RINs used to demonstrate (I) The volume of each batch kept for five years from the date of compliance. produced. transfer. (B) Starting January 1, 2011, RINs (g) The records required under (J) The process(es) and feedstock(s) used to meet compliance will be paragraph (d) of this section shall be used and proportion of renewable kept through calendar year 2022. conveyed via the EPA Moderated volume attributable to each process and (h) On request by EPA, the records Transaction System (EMTS) as set forth feedstock. required under this section and under in paragraph (e) of this section. (K) The type and volume of co- § 80.1453 must be made available to the (xi) Any deficit RVO(s) carried into products produced with each batch of Administrator or the Administrator’s the subsequent year. renewable fuel. authorized representative. For records (xii) Any additional information that (L) In the case that RINs were that are electronically generated or the Administrator may require. generated for the batch, a list of the RINs maintained, the equipment or software (2) The RIN transaction reports generated and a certification that the necessary to read the records shall be required under paragraph (c)(1) of this feedstock(s) used for each batch meets made available; or, if requested by EPA, section. the definition of renewable biomass as electronic records shall be converted to (3) The quarterly RIN activity reports defined in § 80.1401. paper documents. required under paragraph (c)(2) of this (M) In the case that RINs were not (i) The records required in paragraphs section. generated for the batch, an explanation (b)(6) and (b)(7) of this section must be (4) Reports required under this as to the reason for not generating RINs. provided to the importer of the paragraph (a) must be signed and (N) Any additional information the renewable fuel by any foreign producer certified as meeting all the applicable Administrator may require. not generating RINs for his renewable requirements of this subpart by the (2) The RIN transaction reports fuel. owner or a responsible corporate officer required under paragraph (c)(1) of this of the obligated party. section. § 80.1452 What are the reporting (b) Renewable fuel producers (3) The quarterly RIN activity reports requirements under the RFS program? (domestic and foreign) and importers. required under paragraph (c)(2) of this (a) Obligated parties and exporters. Any domestic producer or importer of section. Any obligated party described in renewable fuel, or foreign renewable (4) Reports required under this § 80.1406 or exporter of renewable fuel fuel producer who generates RINs, must paragraph (b) must be signed and described in § 80.1430 must submit to submit to EPA reports according to the certified as meeting all the applicable EPA reports according to the schedule, schedule, and containing all the requirements of this subpart by the and containing all the information, that information, that is set forth in this owner or a responsible corporate officer is set forth in this paragraph (a). paragraph (b). of the renewable fuel producer. (1) Annual compliance demonstration (1)(i) Until December 31, 2010, (c) All RIN-owning parties. Any party, reports for the previous compliance renewable fuel production reports for including any party specified in period shall be submitted on February each facility owned by the renewable paragraphs (a) and (b) of this section, 28 of each year and shall include all of fuel producer or importer shall be that owns RINs during a reporting the following information: submitted monthly, according to the period, must submit reports to EPA

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according to the schedule, and (v) The total current-year RINs (ii) The EPA company registration containing all the information, that is purchased. number. set forth in this paragraph (c). (vi) The total prior-year RINs (iii) The EPA facility registration (1)(i) Until December 31, 2010, RIN purchased. number. transaction reports listing each RIN (vii) The total current-year RINs sold. (iv) Whether RINs were generated for transaction shall be submitted monthly (viii) The total prior-year RINs sold. the batch, according to § 80.1426. according to the schedule in paragraph (ix) The total current-year RINs (v) The production date of the batch. (d)(1) of this section. retired. (vi) The type of renewable fuel of the (ii) Starting January 1, 2011, RIN (x) The total prior-year RINs retired. batch, as defined in § 80.1401. transaction reports listing each RIN (xi) The number of current-year RINs (vii) Information related to the volume transaction shall be submitted in owned at the end of the quarter. of denaturant and applicable accordance with paragraph (e)(3) of this (xii) The number of prior-year RINs equivalence value of each batch. section. owned at the end of the quarter. (viii) The volume of the batch. (iii) Each report required by paragraph (xiii) For parties reporting RIN (ix) The process(es) and feedstock(s) (c)(1)(i) of this section shall include all activity under this paragraph for RINs used and proportion of renewable of the following information: generated, but not assigned to a volume attributable to each process and (A) The submitting party’s name. renewable fuel volume and/or RINs feedstock. (B) The party’s EPA company assigned to a volume of renewable fuel, (x) A certification that the feedstock(s) registration number. and the volume of renewable fuel (in used for each batch meets the definition (C) [Reserved] gallons) owned at the end of the quarter. of renewable biomass as defined in (D) The applicable monthly reporting (xiv) The total 2009 retired RINs § 80.1401. period. reinstated. (xi) The type and volume of co- (E) Transaction type (i.e., RIN (xv) Any additional information that products produced with the batch of purchase, RIN sale, retired RIN, the Administrator may require. renewable fuel. reinstated 2009 RIN). (3) All reports required under this (xii) In the case that RINs were (F) Transaction date. paragraph (c) must be signed and generated for the batch, a list of the RINs (G) For a RIN purchase or sale, the certified as meeting all the applicable generated and a certification that the trading partner’s name. requirements of this subpart by the RIN feedstock(s) used for each batch meets (H) For a RIN purchase or sale, the owner or a responsible corporate officer the definition of renewable biomass as trading partner’s EPA company of the RIN owner. defined in § 80.1401. registration number. For all other (d) Report submission deadlines. The (xiii) In the case that RINs were not transactions, the submitting party’s EPA submission deadlines for monthly and generated for the batch, an explanation company registration number. as to the reason for not generating RINs. (I) RIN subject to the transaction. quarterly reports shall be as follows: (1) Monthly reports shall be submitted (xiv) Any additional information the (J) For a RIN purchase or sale, the per Administrator may require. gallon RIN price and/or the per gallon to EPA by the last day of the next calendar month following the (3) Starting January 1, 2011, each time renewable price if the RIN price is any party engages in a transaction included. compliance period (i.e., the report covering January would be due by involving RINs, all the following (K) For a retired RIN, the reason for information must be submitted to EPA retiring the RIN (e.g., invalid RIN under February 28th, the report covering February would be due by March 31st, within three (3) business days: § 80.1431, reportable spill under (i) The submitting party’s name. etc.). § 80.1432, foreign producer volume (ii) The party’s EPA company (2) Quarterly reports shall be correction under § 80.1466(e), registration number. renewable fuel used in a boiler or ocean- submitted to EPA by the last day of the (iii) [Reserved] going vessel under § 80.1429(f), second month following the compliance (iv) The applicable monthly reporting enforcement obligation, or use for period (i.e., the report covering January– period. compliance (per paragraph (a)(1)(x) of March would be due by May 31st, the (v) Transaction type (i.e., RIN this section), etc.). report covering April–June would be purchase, RIN sale, retired RIN). (L) Any additional information that due by August 31st, the report covering (vi) Transaction date. the Administrator may require. July–September would be due by (vii) For a RIN purchase or sale, the (2) Quarterly RIN activity reports shall November 30th and the report covering trading partner’s name. be submitted to EPA according to the October–December would be due by (viii) For a RIN purchase or sale, the schedule specified in paragraph (d)(2) of February 28th). trading partner’s EPA company this section. Each report shall (e) EPA Moderated Transaction registration number. For all other summarize RIN activities for the System (EMTS). (1) Each party required transactions, the submitting party’s EPA reporting period, separately for RINs to report under this section must company registration number. separated from a renewable fuel volume establish an account with EMTS by (ix) RIN subject to the transaction. and the sum of both RINs assigned to a October 1, 2010 or sixty (60) days prior (x) For a RIN purchase or sale, the per renewable fuel volume and RINs to engaging in any transaction involving gallon RIN price and/or the per gallon generated, but not assigned to a RINs, whichever is later. renewable price if the RIN price is renewable fuel volume. The quarterly (2) Starting January 1, 2011, each time included. RIN activity reports shall include all of a domestic producer or importer of (xi) For a retired RIN, the reason for the following information: renewable fuel, or foreign renewable retiring the RIN (e.g., reportable spill (i) The submitting party’s name. fuel producer who generates RINs, under § 80.1432, foreign producer (ii) The party’s EPA company produces or imports a batch of volume correction under § 80.1466(e), registration number. renewable fuel, all the following renewable fuel used in a boiler or ocean- (iii) The number of current-year RINs information must be submitted to EPA going vessel under § 80.1429(f), owned at the start of the month. within three (3) business days: enforcement obligation, or use for (iv) The number of prior-year RINs (i) The renewable fuel producer’s or compliance (per paragraph (a)(1)(x) of owned at the start of the month. importer’s name. this section), etc.).

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(xii) Any additional information that documents that include all information (2) The total allowances available will the Administrator may require. as described in paragraphs (a) and (b) of be equal to the reduced cellulosic (f) All reports required under this this section and the number of RINs biofuel volume established by EPA for section shall be submitted on forms and transferred identified by all the the compliance year. following procedures prescribed by the following: (b) Use of allowances. (1) Allowances Administrator. (1) Assignment (Assigned or are only valid for use in the compliance Separated). year that they are made available. § 80.1453 What are the product transfer (2) Type and/or D code (cellulosic (2) Allowances are nonrefundable. document (PTD) requirements for the RFS biofuel D=1, biomass-based diesel D=2, program? advanced biofuel D=3, renewable fuel (3) Allowances are nontransferable (a) On each occasion when any party D=4). except if forfeiting the allowances to transfers ownership of renewable fuels (3) RIN generation year. EPA. subject to this subpart, the transferor (c) Purchase of allowances. (1) Only must provide to the transferee § 80.1454 What are the provisions for parties with an RVO for cellulosic renewable fuel production facilities and documents identifying the renewable biofuel may purchase cellulosic biofuel fuel and any assigned RINs which importers who produce or import less than 10,000 gallons of renewable fuel per year? allowances. include all of the following information, (a) Renewable fuel production (2) Allowances shall be purchased as applicable: from EPA at the time that a party (1) The name and address of the facilities located within the United States that produce less than 10,000 submits its annual compliance report to transferor and transferee. EPA pursuant to § 80.1452(a)(1). (2) The transferor’s and transferee’s gallons of renewable fuel each year, and (3) Parties may not purchase more EPA company registration number. importers who import less than 10,000 (3) The volume of renewable fuel that gallons of renewable fuel each year, are allowances than their cellulosic biofuel is being transferred. not required to generate RINs or to RVO minus cellulosic biofuel RINs with (4) The date of the transfer. assign RINs to batches of renewable a D code of 1 that they own. (5) Whether any RINs are assigned to fuel. Except as stated in paragraph (b) of (4) Allowances may be used to meet the volume, as follows: this section, such production facilities an obligated party’s RVOs for the (i) If the assigned RINs are being and importers that do not generate and/ advanced biofuel and total renewable transferred on the same PTD used to or assign RINs to batches of renewable fuel standards. transfer ownership of the renewable fuel are also exempt from all the (d) Setting the price of allowances. (1) fuel, then the assigned RINs shall be following requirements of this subpart: The price for allowances shall be set listed on the PTD. (1) The recordkeeping requirements of equal to the greater of: (ii) If the assigned RINs are being § 80.1451. (i) $0.25 per allowance, adjusted for (2) The reporting requirements of transferred on a separate PTD from that inflation in comparison to calendar year which is used to transfer ownership of § 80.1452. (3) The attest engagement 2008; or the renewable fuel, then the PTD which (ii) $3.00 less the wholesale price of is used to transfer ownership of the requirements of § 80.1464. (4) The production outlook report gasoline per allowance, adjusted for renewable fuel shall state the number of requirements of § 80.1449. inflation in comparison to calendar year gallon-RINs being transferred as well as (b)(1) Renewable fuel production 2008. a unique reference to the PTD which is facilities and importers who produce or (2) The wholesale price of gasoline transferring the assigned RINs. import less than 10,000 gallons of (iii) If no assigned RINs are being will be calculated by averaging the most renewable fuel each year and that transferred with the renewable fuel, the recent twelve monthly values for U.S. generate and/or assign RINs to batches PTD which is used to transfer Total Gasoline Bulk Sales (Price) by All of renewable fuel are subject to the ownership of the renewable fuel shall Sellers as provided by the Energy provisions of §§ 80.1449 through state ‘‘No assigned RINs transferred’’. Information Administration that are 80.1452, and 80.1464. available as of September 30 of the year (iv) If RINs have been separated from (2) Renewable fuel production the renewable fuel or blend pursuant to preceding the compliance period. facilities and importers who produce or (3) The inflation adjustment will be § 80.1129(b)(4), then all PTDs which are import less than 10,000 gallons of at any time used to transfer ownership calculated by comparing the most recent renewable fuel each year but wish to Consumer Price Index for All Urban of the renewable fuel or blend shall own RINs will be subject to all state, ‘‘This volume of fuel must be used Consumers (CPI–U) for All Items requirements stated in paragraphs (a)(1) expenditure category as provided by the in the designated form, without further through (a)(4) of this section, and all blending.’’. Bureau of Labor Statistics that is other applicable requirements of this available as of September 30 of the year (b) Except for transfers to truck subpart M. carriers, retailers, or wholesale preceding the compliance period to the purchaser-consumers, product codes § 80.1455 What are the provisions for most recent comparable value reported may be used to convey the information cellulosic biofuel allowances? prior to December 31, 2008. When EPA required under paragraphs (a)(1) (a) If EPA reduces the applicable must set the price of allowances for a through (a)(4) of this section if such volume of cellulosic biofuel pursuant to compliance year, EPA will calculate the codes are clearly understood by each section 211(o)(7)(D)(i) of the Clean Air new amounts for paragraphs (d)(1)(i) transferee. Act (42 U.S.C. 7545(o)(7)(D)(i)) for any and (ii) of this section for each year after (c) The RIN number required under given compliance year, then EPA will 2008 and every month where data is paragraph (a)(5) of this section must provide cellulosic biofuel allowances available for the year preceding the always appear in its entirety. for purchase for that compliance year. compliance period. (d) If a RIN is traded in the EPA– (1) The price of these allowances will (e) Cellulosic biofuel allowances Moderated Trading System (EMTS) as be set by EPA on an annual basis in under this section will only be able to described in § 80.1452(e), the transferor accordance with paragraph (d) of this be purchased on forms and following must provide to the transferee section. procedures prescribed by EPA.

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§§ 80.1456–80.1459 [Reserved] § 80.1460(a) through (d) is liable for a annual compliance demonstration violation of § 80.1460(e). report required under § 80.1452(a)(1) § 80.1460 What acts are prohibited under (b) Parties liable for failure to meet the RFS program? which contains information regarding other provisions of this subpart. (1) Any all the following: (a) Renewable fuels producer or party who fails to meet a requirement of (A) The obligated party’s volume of importer violation. Except as provided any provision of this subpart is liable for finished gasoline, reformulated gasoline in § 80.1454, no party shall produce or a violation of that provision. blendstock for oxygenate blending import a renewable fuel without (2) Any party who causes another (RBOB), and conventional gasoline assigning the proper number of gallon- party to fail to meet a requirement of blendstock that becomes finished RINs or identifying it by a batch-RIN as any provision of this subpart is liable for conventional gasoline upon the addition required under § 80.1426. causing a violation of that provision. of oxygenate (CBOB) produced or (b) RIN generation and transfer (c) Parent corporation liability. Any imported during the reporting year. violations. No party shall do any of the parent corporation is liable for any (B) RVOs. following: violation of this subpart that is (C) RINs used for compliance. (1) Generate a RIN for a fuel that is not committed by any of its subsidiaries. (ii) Obtain documentation of any a renewable fuel, or for which the (d) Joint venture liability. Each partner volumes of renewable fuel used in applicable renewable fuel volume was to a joint venture is jointly and severally gasoline at the refinery or import facility not produced. liable for any violation of this subpart or exported during the reporting year; (2) Create or transfer to any party a that is committed by the joint venture compute and report as a finding the RIN that is invalid under § 80.1431. operation. total volumes of renewable fuel (3) Transfer to any party a RIN that is represented in these documents. not properly identified as required § 80.1462 [Reserved] (iii) Compare the volumes of gasoline under § 80.1425. § 80.1463 What penalties apply under the (4) Transfer to any party a RIN with reported to EPA in the report required RFS program? under § 80.1452(a)(1) with the volumes, a K code of 1 without transferring an (a) Any party who is liable for a appropriate volume of renewable fuel to excluding any renewable fuel volumes, violation under § 80.1461 is subject a to contained in the inventory the same party on the same day. civil penalty of up to $32,500, as (5) Introduce into commerce any reconciliation analysis under § 80.133, specified in sections 205 and 211(d) of and verify that the volumes reported to renewable fuel produced from a the Clean Air Act, for every day of each feedstock or through a process that is EPA agree with the volumes in the such violation and the amount of inventory reconciliation analysis. not described in the party’s registration economic benefit or savings resulting information. (iv) Compute and report as a finding from each violation. the obligated party’s or exporter’s RVOs, (c) RIN use violations. No party shall (b) Any party liable under do any of the following: and any deficit RVOs carried over from § 80.1461(a) for a violation of the previous year or carried into the (1) Fail to acquire sufficient RINs, or § 80.1460(c) for failure to meet its RVOs, use invalid RINs, to meet the party’s subsequent year, and verify that the or § 80.1460(e) for causing another party values agree with the values reported to RVOs under § 80.1427. to fail to meet their RVOs, during any (2) Fail to acquire sufficient RINs to EPA. averaging period, is subject to a separate (v) Obtain the database, spreadsheet, meet the party’s RVOs under § 80.1430. day of violation for each day in the (3) Use a validly generated RIN to or other documentation for all RINs averaging period. used for compliance during the year meet the party’s RVOs under § 80.1427, (c) Any party liable under or separate and transfer a validly being reviewed; calculate the total § 80.1461(b) for failure to meet, or number of RINs used for compliance by generated RIN, where the party causing a failure to meet, a requirement ultimately uses the renewable fuel year of generation represented in these of any provision of this subpart is liable documents; state whether this volume associated with the RIN in an for a separate day of violation for each application other than for use as information agrees with the report to day such a requirement remains EPA and report as a finding any transportation fuel (as defined in unfulfilled. § 80.1401). exceptions. (d) RIN retention violation. No party § 80.1464 What are the attest engagement (2) RIN transaction reports. (i) Obtain shall retain RINs in violation of the requirements under the RFS program? and read copies of a representative requirements in § 80.1428(a)(5). The requirements regarding annual sample, selected in accordance with the (e) Causing a violation. No party shall attest engagements in §§ 80.125 through guidelines in § 80.127, of each RIN cause another party to commit an act in 80.127, and 80.130, also apply to any transaction type (RINs purchased, RINs violation of any prohibited act under attest engagement procedures required sold, RINs retired, RINs reinstated) this section. under this subpart M. In addition to any included in the RIN transaction reports (f) Failure to meet a requirement. No other applicable attest engagement required under § 80.1452(a)(2) for the party shall fail to meet any requirement procedures, such as the requirements in compliance year. that applies to that party under this § 80.1465, the following annual attest (ii) Obtain contracts, invoices, or subpart. engagement procedures are required other documentation for the under this subpart. representative samples of RIN § 80.1461 Who is liable for violations (a) Obligated parties and exporters. transactions; compute the transaction under the RFS program? The following attest procedures shall be types, transaction dates, and RINs (a) Parties liable for violations of completed for any obligated party as traded; state whether the information prohibited acts. (1) Any party who stated in § 80.1406(a) or exporter of agrees with the party’s reports to EPA violates a prohibition under § 80.1460(a) renewable fuel that is subject to the and report as a finding any exceptions. through (d) is liable for the violation of renewable fuel standard under (3) RIN activity reports. (i) Obtain and that prohibition. § 80.1405: read copies of all quarterly RIN activity (2) Any party who causes another (1) Annual compliance demonstration reports required under § 80.1452(a)(3) person to violate a prohibition under report. (i) Obtain and read a copy of the for the compliance year.

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(ii) Obtain the database, spreadsheet, (A) If RINs were generated for a given sample, selected in accordance with the or other documentation used to generate batch of renewable fuel, verify that guidelines in § 80.127, of each RIN the information in the RIN activity feedstocks used meet the definition of transaction type (RINs purchased, RINs reports; compare the RIN transaction renewable biomass in § 80.1401. sold, RINs retired, RINs reinstated) samples reviewed under paragraph (B) If no RINs were generated for a included in the RIN transaction reports (a)(2) of this section with the given batch of renewable fuel, verify required under § 80.1452(c)(1) for the corresponding entries in the database or that feedstocks used do not meet the compliance year. spreadsheet and report as a finding any definition of renewable biomass in discrepancies; compute the total § 80.1401 or that there was another (ii) Obtain contracts, invoices, or number of current-year and prior-year reason that the fuel produced without other documentation for the RINs owned at the start and end of the RINs was not renewable fuel. representative samples of RIN quarter, purchased, sold, retired, and (2) RIN transaction reports. (i) Obtain transactions; compute the transaction reinstated, and for parties that reported and read copies of a representative types, transaction dates, and the RINs RIN activity for RINs assigned to a sample, selected in accordance with the traded; state whether this information volume of renewable fuel, the volume of guidelines in § 80.127, of each agrees with the party’s reports to EPA renewable fuel owned at the end of the transaction type (RINs purchased, RINs and report as a finding any exceptions. quarter; as represented in these sold, RINs retired, RINs reinstated) (2) RIN activity reports. (i) Obtain and documents; and state whether this included in the RIN transaction reports read copies of the quarterly RIN activity required under § 80.1452(b)(2) for the information agrees with the party’s reports required under § 80.1452(c)(2) compliance year. reports to EPA. for the compliance year. (b) Renewable fuel producers and (ii) Obtain contracts, invoices, or RIN-generating importers. The following other documentation for the (ii) Obtain the database, spreadsheet, attest procedures shall be completed for representative samples of RIN or other documentation used to generate any renewable fuel producer or RIN- transactions; compute the transaction the information in the RIN activity generating importer: types, transaction dates, and the RINs reports; compare the RIN transaction (1) Renewable fuel production reports. traded; state whether this information samples reviewed under paragraph (i) Obtain and read copies of the agrees with the party’s reports to EPA (c)(1) of this section with the renewable fuel production reports and report as a finding any exceptions. corresponding entries in the database or (3) RIN activity reports. (i) Obtain and required under §§ 80.1452(b)(1) and spreadsheet and report as a finding any read copies of the quarterly RIN activity (e)(2) for the compliance year. discrepancies; compute the total reports required under § 80.1452(b)(3) (ii) Obtain production data for each number of current-year and prior-year for the compliance year. RINs owned at the start and end of the renewable fuel batch produced or (ii) Obtain the database, spreadsheet, quarter, purchased, sold, retired, and imported during the year being or other documentation used to generate reviewed; compute the RIN numbers, the information in the RIN activity reinstated, and for parties that reported production dates, types, volumes of reports; compare the RIN transaction RIN activity for RINs assigned to a denaturant and applicable equivalence samples reviewed under paragraph volume of renewable fuel, the volume of values, and production volumes for (b)(2) of this section with the renewable fuel owned at the end of the each batch; state whether this corresponding entries in the database or quarter, as represented in these information agrees with the party’s spreadsheet and report as a finding any documents; and state whether this reports to EPA and report as a finding discrepancies; compute the total information agrees with the party’s any exceptions. number of current-year and prior-year reports to EPA. (iii) Verify that the proper number of RINs owned at the start and end of the (d) The following submission dates RINs were generated and assigned for quarter, purchased, sold, retired, and each batch of renewable fuel produced apply to the attest engagements required reinstated, and for parties that reported under this section: or imported, as required under RIN activity for RINs assigned to a § 80.1426. volume of renewable fuel, the volume of (1) For each compliance year, each (iv) Obtain product transfer renewable fuel owned at the end of the party subject to the attest engagement documents for a representative sample, quarter, as represented in these requirements under this section shall selected in accordance with the documents; and state whether this cause the reports required under this guidelines in § 80.127, of renewable fuel information agrees with the party’s section to be submitted to EPA by May batches produced or imported during reports to EPA. 31 of the year following the compliance the year being reviewed; verify that the (4) Independent Third Party year. product transfer documents contain the Engineering Review. (i) Obtain (2) [Reserved] applicable information required under documentation of independent third (e) The party conducting the § 80.1453; verify the accuracy of the party engineering review required under information contained in the product § 80.1450(b)(2). procedures under this section shall transfer documents; report as a finding (ii) Review and verify the written obtain a written representation from a any product transfer document that does verification and records generated as company representative that the copies not contain the applicable information part of the independent third party of the reports required under this required under § 80.1453. engineering review. section are complete and accurate (v) Obtain documentation, as required (c) Other parties owning RINs. The copies of the reports filed with EPA. under § 80.1451(b)(6), associated with following attest procedures shall be (f) The party conducting the feedstock purchases and transfers for a completed for any party other than an procedures under this section shall representative sample, selected in obligated party or renewable fuel identify and report as a finding the accordance with the guidelines in producer or importer that owns any commercial computer program used by § 80.127, of renewable fuel batches RINs during a calendar year: the party to track the data required by produced or imported during the year (1) RIN transaction reports. (i) Obtain the regulations in this subpart, if any. being reviewed. and read copies of a representative

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§ 80.1465 What are the additional (i) The certification shall include the shall include a description of the requirements under this subpart for foreign report of the independent third party method used to determine the identity small refiners, foreign small refineries, and under paragraph (d) of this section, and of the refinery at which the importers of RFS–FRFUEL? all the following additional information: transportation fuel was produced, (a) Definitions. The following (A) The name and EPA registration assurance that the transportation fuel additional definitions apply for this number of the refinery that produced remained segregated as specified in subpart: the RFS–FRFUEL. paragraph (j)(1) of this section, and a (1) Foreign refinery is a refinery that (B) [Reserved] description of the transportation fuel’s is located outside the United States, the (ii) The identification of the movement and storage between Commonwealth of Puerto Rico, the U.S. transportation fuel as RFS–FRFUEL. production at the source refinery and Virgin Islands, Guam, American Samoa, (iii) The volume of RFS–FRFUEL vessel loading. and the Commonwealth of the Northern being transported, in gallons. (3) The independent third party must Mariana Islands (collectively referred to (3) On each occasion when any party do all the following: in this section as ‘‘the United States’’). transfers custody or title to any RFS– (i) Be approved in advance by EPA, (2) Foreign refiner is a party that FRFUEL prior to its being imported into based on a demonstration of ability to meets the definition of refiner under the United States, it must include all the perform the procedures required in this § 80.2(i) for a foreign refinery. following information as part of the paragraph (d). (3) Foreign small refiner is a foreign product transfer document information: (ii) Be independent under the criteria refiner that has received a small refinery (i) Designation of the transportation specified in § 80.65(f)(2)(iii). exemption under § 80.1441 for one or fuel as RFS–FRFUEL. (iii) Sign a commitment that contains more of its refineries or a foreign refiner (ii) The certification required under the provisions specified in paragraph (f) that has received a small refiner paragraph (c)(2) of this section. of this section with regard to activities, exemption under § 80.1442. (d) Load port independent testing and facilities, and documents relevant to (4) RFS–FRFUEL is transportation fuel refinery identification. (1) On each compliance with the requirements of produced at a foreign refinery that has occasion that RFS–FRFUEL is loaded this paragraph (d). received a small refinery exemption onto a vessel for transport to the United (e) Comparison of load port and port under § 80.1441 or by a foreign refiner States the foreign small refiner shall of entry testing. (1)(i) Any foreign small with a small refiner exemption under have an independent third party do all refiner or foreign small refinery and any § 80.1442. the following: United States importer of RFS–FRFUEL (5) Non-RFS–FRFUEL is one of the (i) Inspect the vessel prior to loading shall compare the results from the load following: port testing under paragraph (d) of this (i) Transportation fuel produced at a and determine the volume of any tank section, with the port of entry testing as foreign refinery that has received a bottoms. reported under paragraph (k) of this small refinery exemption under (ii) Determine the volume of RFS– § 80.1441 or by a foreign refiner with a FRFUEL loaded onto the vessel section, for the volume of transportation small refiner exemption under (exclusive of any tank bottoms before fuel, except as specified in paragraph § 80.1442. loading). (e)(1)(ii) of this section. (ii) Transportation fuel produced at a (iii) Obtain the EPA-assigned (ii) Where a vessel transporting RFS– foreign refinery that has not received a registration number of the foreign FRFUEL off loads this transportation small refinery exemption under refinery. fuel at more than one United States port § 80.1441 or by a foreign refiner that has (iv) Determine the name and country of entry, the requirements of paragraph not received a small refiner exemption of registration of the vessel used to (e)(1)(i) of this section do not apply at under § 80.1442. transport the RFS–FRFUEL to the subsequent ports of entry if the United (b) General requirements for RFS– United States. States importer obtains a certification FRFUEL for foreign small refineries and (v) Determine the date and time the from the vessel owner that the small refiners. A foreign refiner must do vessel departs the port serving the requirements of paragraph (e)(1)(i) of all the following: foreign refinery. this section were met and that the vessel (1) Designate, at the time of (vi) Review original documents that has not loaded any transportation fuel production, each batch of transportation reflect movement and storage of the or blendstock between the first United fuel produced at the foreign refinery RFS–FRFUEL from the foreign refinery States port of entry and the subsequent that is exported for use in the United to the load port, and from this review port of entry. States as RFS–FRFUEL. determine: (2) If the temperature-corrected (2) Meet all requirements that apply to (A) The refinery at which the RFS– volumes determined at the port of entry refiners who have received a small FRFUEL was produced; and and at the load port differ by more than refinery or small refiner exemption (B) That the RFS–FRFUEL remained one percent, the United States importer under this subpart. segregated from Non-RFS–FRFUEL and and the foreign small refiner or foreign (c) Designation, foreign small refiner other RFS–FRFUEL produced at a small refinery shall not treat the certification, and product transfer different refinery. transportation fuel as RFS–FRFUEL and documents. (2) The independent third party shall the importer shall include the volume of (1) Any foreign small refiner must submit a report to all the following: transportation fuel in the importer’s RFS designate each batch of RFS–FRFUEL as (i) The foreign small refiner, compliance calculations. such at the time the transportation fuel containing the information required (f) Foreign refiner commitments. Any is produced. under paragraph (d)(1) of this section, to small foreign refiner shall commit to (2) On each occasion when RFS– accompany the product transfer and comply with the provisions FRFUEL is loaded onto a vessel or other documents for the vessel. contained in this paragraph (f) as a transportation mode for transport to the (ii) The Administrator, containing the condition to being approved for a small United States, the foreign small refiner information required under paragraph refinery or small refiner exemption shall prepare a certification for each (d)(1) of this section, within thirty days under this subpart. batch of RFS–FRFUEL that meets all the following the date of the independent (1) Any United States Environmental following requirements: third party’s inspection. This report Protection Agency inspector or auditor

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must be given full, complete, and or criminal enforcement action against refiner under this subpart, including immediate access to conduct the foreign refiner or any employee of conduct that violates the False inspections and audits of the foreign the foreign refiner related to the Statements Accountability Act of 1996 refinery. provisions of this section. (18 U.S.C. 1001) and section 113(c)(2) of (i) Inspections and audits may be (5) Submitting an application for a the Clean Air Act (42 U.S.C. 7413). either announced in advance by EPA, or small refinery or small refiner (h) Bond posting. Any foreign refiner unannounced. exemption, or producing and exporting shall meet the requirements of this (ii) Access will be provided to any transportation fuel under such paragraph (h) as a condition to approval location where: exemption, and all other actions to of a small foreign refinery or small (A) Transportation fuel is produced; comply with the requirements of this foreign refiner exemption under this (B) Documents related to refinery subpart relating to such exemption subpart. operations are kept; and constitute actions or activities covered (1) The foreign refiner shall post a (C) RFS–FRFUEL is stored or by and within the meaning of the bond of the amount calculated using the transported between the foreign refinery provisions of 28 U.S.C. 1605(a)(2), but following equation: and the United States, including storage solely with respect to actions instituted Bond = G * $ 0.01 tanks, vessels and pipelines. against the foreign refiner, its agents and (iii) Inspections and audits may be by employees in any court or other tribunal Where: EPA employees or contractors to EPA. in the United States for conduct that Bond = amount of the bond in United States (iv) Any documents requested that are violates the requirements applicable to dollars. related to matters covered by the foreign refiner under this subpart, G = the largest volume of transportation fuel inspections and audits must be including conduct that violates the produced at the foreign refinery and provided to an EPA inspector or auditor exported to the United States, in gallons, False Statements Accountability Act of during a single calendar year among the on request. 1996 (18 U.S.C. 1001) and section (v) Inspections and audits by EPA most recent of the following calendar 113(c)(2) of the Clean Air Act (42 U.S.C. may include review and copying of any years, up to a maximum of five calendar 7413). years: the calendar year immediately documents related to all the following: (6) The foreign refiner, or its agents or (A) The volume of RFS–FRFUEL. preceding the date the refinery’s or (B) The proper classification of employees, will not seek to detain or to refiner’s application is submitted, the calendar year the application is transportation fuel as being RFS– impose civil or criminal remedies against EPA inspectors or auditors, submitted, and each succeeding calendar FRFUEL or as not being RFS–FRFUEL. year. (C) Transfers of title or custody to whether EPA employees or EPA RFS–FRFUEL. contractors, for actions performed (2) Bonds shall be posted by: (D) Testing of RFS–FRFUEL. within the scope of EPA employment (i) Paying the amount of the bond to (E) Work performed and reports related to the provisions of this section. the Treasurer of the United States; prepared by independent third parties (7) The commitment required by this (ii) Obtaining a bond in the proper and by independent auditors under the paragraph (f) shall be signed by the amount from a third party surety agent requirements of this section, including owner or president of the foreign refiner that is payable to satisfy United States work papers. business. administrative or judicial judgments (vi) Inspections and audits by EPA (8) In any case where RFS–FRFUEL against the foreign refiner, provided may include interviewing employees. produced at a foreign refinery is stored EPA agrees in advance as to the third (vii) Any employee of the foreign or transported by another company party and the nature of the surety refiner must be made available for between the refinery and the vessel that agreement; or interview by the EPA inspector or transports the RFS–FRFUEL to the (iii) An alternative commitment that auditor, on request, within a reasonable United States, the foreign refiner shall results in assets of an appropriate time period. obtain from each such other company a liquidity and value being readily (viii) English language translations of commitment that meets the available to the United States, provided any documents must be provided to an requirements specified in paragraphs EPA agrees in advance as to the EPA inspector or auditor, on request, (f)(1) through (f)(7) of this section, and alternative commitment. within 10 working days. these commitments shall be included in (3) Bonds posted under this paragraph (ix) English language interpreters the foreign refiner’s application for a (h) shall: must be provided to accompany EPA small refinery or small refiner (i) Be used to satisfy any judicial inspectors and auditors, on request. exemption under this subpart. judgment that results from an (2) An agent for service of process (g) Sovereign immunity. By administrative or judicial enforcement located in the District of Columbia shall submitting an application for a small action for conduct in violation of this be named, and service on this agent refinery or small refiner exemption subpart, including where such conduct constitutes service on the foreign refiner under this subpart, or by producing and violates the False Statements or any employee of the foreign refiner exporting transportation fuel to the Accountability Act of 1996 (18 U.S.C. for any action by EPA or otherwise by United States under such exemption, 1001) and section 113(c)(2) of the Clean the United States related to the the foreign refiner, and its agents and Air Act (42 U.S.C. 7413); requirements of this subpart. employees, without exception, become (ii) Be provided by a corporate surety (3) The forum for any civil or criminal subject to the full operation of the that is listed in the United States enforcement action related to the administrative and judicial enforcement Department of Treasury Circular 570 provisions of this section for violations powers and provisions of the United ‘‘Companies Holding Certificates of of the Clean Air Act or regulations States without limitation based on Authority as Acceptable Sureties on promulgated thereunder shall be sovereign immunity, with respect to Federal Bonds’’; and governed by the Clean Air Act, actions instituted against the foreign (iii) Include a commitment that the including the EPA administrative forum refiner, its agents and employees in any bond will remain in effect for at least where allowed under the Clean Air Act. court or other tribunal in the United five years following the end of latest (4) United States substantive and States for conduct that violates the annual reporting period that the foreign procedural laws shall apply to any civil requirements applicable to the foreign refiner produces transportation fuel

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pursuant to the requirements of this (4) Any importer shall submit reports required for importers under this subpart. within 30 days following the date any subpart M. (4) On any occasion a foreign refiner vessel transporting RFS–FRFUEL arrives (1) Obtain listings of all tenders of bond is used to satisfy any judgment, at the United States port of entry to: RFS–FRFUEL. Agree the total volume of the foreign refiner shall increase the (i) The Administrator, containing the tenders from the listings to the bond to cover the amount used within information determined under transportation fuel inventory 90 days of the date the bond is used. paragraph (k)(3) of this section; and reconciliation analysis required in (5) If the bond amount for a foreign (ii) The foreign refiner, containing the § 80.133(b), and to the volumes refiner increases, the foreign refiner information determined under determined by the third party under shall increase the bond to cover the paragraph (k)(3)(i) of this section, and paragraph (d) of this section. shortfall within 90 days of the date the including identification of the port at (2) For each tender under paragraph bond amount changes. If the bond which the product was off loaded. (m)(1) of this section, where the amount decreases, the foreign refiner (5) Any United States importer shall transportation fuel is loaded onto a may reduce the amount of the bond meet all other requirements of this marine vessel, report as a finding the beginning 90 days after the date the subpart for any imported transportation name and country of registration of each bond amount changes. fuel that is not classified as RFS– vessel, and the volumes of RFS– (i) English language reports. Any FRFUEL under paragraph (k)(2) of this FRFUEL loaded onto each vessel. document submitted to EPA by a foreign section. (3) Select a sample from the list of refiner shall be in English, or shall (l) Truck imports of RFS–FRFUEL vessels identified per paragraph (m)(2) include an English language translation. produced at a foreign refinery. (1) Any of this section used to transport RFS– (j) Prohibitions. (1) No party may refiner whose RFS–FRFUEL is FRFUEL, in accordance with the combine RFS–FRFUEL with any Non- transported into the United States by guidelines in § 80.127, and for each RFS–FRFUEL, and no party may truck may petition EPA to use vessel selected perform all the combine RFS–FRFUEL with any RFS– alternative procedures to meet all the following: (i) Obtain the report of the FRFUEL produced at a different following requirements: independent third party, under refinery, until the importer has met all (i) Certification under paragraph (c)(2) the requirements of paragraph (k) of this paragraph (d) of this section. of this section. (A) Agree the information in these section. (ii) Load port and port of entry testing (2) No foreign refiner or other party reports with regard to vessel requirements under paragraphs (d) and identification and transportation fuel may cause another party to commit an (e) of this section. action prohibited in paragraph (j)(1) of volume. (iii) Importer testing requirements this section, or that otherwise violates (B) Identify, and report as a finding, under paragraph (k)(3) of this section. the requirements of this section. each occasion the load port and port of (2) These alternative procedures must (k) United States importer entry volume results differ by more than ensure RFS–FRFUEL remains segregated requirements. Any United States the amount allowed in paragraph (e)(2) from Non-RFS–FRFUEL until it is importer of RFS–FRFUEL shall meet the of this section, and determine whether imported into the United States. The following requirements: all of the requirements of paragraph (1) Each batch of imported RFS– petition will be evaluated based on (e)(2) of this section have been met. FRFUEL shall be classified by the whether it adequately addresses all the (ii) Obtain the documents used by the importer as being RFS–FRFUEL. following: independent third party to determine (2) Transportation fuel shall be (i) Provisions for monitoring pipeline transportation and storage of the RFS– classified as RFS–FRFUEL according to shipments, if applicable, from the FRFUEL from the refinery to the load the designation by the foreign refiner if refinery, that ensure segregation of RFS– port, under paragraph (d) of this section. this designation is supported by product FRFUEL from that refinery from all Obtain tank activity records for any transfer documents prepared by the other transportation fuel. storage tank where the RFS–FRFUEL is foreign refiner as required in paragraph (ii) Contracts with any terminals and/ stored, and pipeline activity records for (c) of this section. Additionally, the or pipelines that receive and/or any pipeline used to transport the RFS– importer shall comply with all transport RFS–FRFUEL that prohibit the FRFUEL prior to being loaded onto the requirements of this subpart applicable commingling of RFS–FRFUEL with vessel. Use these records to determine to importers. Non-RFS–FRFUEL or RFS–FRFUEL whether the RFS–FRFUEL was (3) For each transportation fuel batch from other foreign refineries. produced at the refinery that is the classified as RFS–FRFUEL, any United (iii) Attest procedures to be conducted subject of the attest engagement, and States importer shall have an annually by an independent third party whether the RFS–FRFUEL was mixed independent third party do all the that review loading records and import with any Non-RFS–FRFUEL or any following: documents based on volume RFS–FRFUEL produced at a different (i) Determine the volume of reconciliation, or other criteria, to refinery. transportation fuel in the vessel. confirm that all RFS–FRFUEL remains (4) Select a sample from the list of (ii) Use the foreign refiner’s RFS– segregated throughout the distribution vessels identified per paragraph (m)(2) FRFUEL certification to determine the system. of this section used to transport RFS– name and EPA-assigned registration (3) The petition described in this FRFUEL, in accordance with the number of the foreign refinery that section must be submitted to EPA along guidelines in § 80.127, and for each produced the RFS–FRFUEL. with the application for a small refinery vessel selected perform all the (iii) Determine the name and country or small refiner exemption under this following: of registration of the vessel used to subpart. (i) Obtain a commercial document of transport the RFS–FRFUEL to the (m) Additional attest requirements for general circulation that lists vessel United States. importers of RFS–FRFUEL. The arrivals and departures, and that (iv) Determine the date and time the following additional procedures shall be includes the port and date of departure vessel arrives at the United States port carried out by any importer of RFS– of the vessel, and the port of entry and of entry. FRFUEL as part of the attest engagement date of arrival of the vessel.

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(ii) Agree the vessel’s departure and Any application for a small refinery or (c) Designation, foreign producer arrival locations and dates from the small refiner exemption, alternative certification, and product transfer independent third party and United procedures under paragraph (l) of this documents. (1) Any approved foreign States importer reports to the section, any report, certification, or producer under this section must information contained in the other submission required under this designate each batch of renewable fuel commercial document. section shall be: as ‘‘RFS–FRRF’’ at the time the (5) Obtain separate listings of all (1) Submitted in accordance with renewable fuel is produced. tenders of RFS–FRFUEL, and perform procedures specified by the (2) On each occasion when RFS–FRRF all the following: Administrator, including use of any is loaded onto a vessel or other (i) Agree the volume of tenders from forms that may be specified by the transportation mode for transport to the the listings to the transportation fuel Administrator. United States, the foreign producer shall inventory reconciliation analysis in (2) Signed by the president or owner prepare a certification for each batch of § 80.133(b). of the foreign refiner company, or by RFS–FRRF; the certification shall (ii) Obtain a separate listing of the that party’s immediate designee, and include the report of the independent tenders under this paragraph (m)(5) shall contain the following declaration: third party under paragraph (d) of this where the transportation fuel is loaded ‘‘I hereby certify: (1) That I have section, and all the following additional onto a marine vessel. Select a sample actual authority to sign on behalf of and information: from this listing in accordance with the to bind [insert name of foreign refiner] (i) The name and EPA registration guidelines in § 80.127, and obtain a with regard to all statements contained number of the company that produced commercial document of general herein; (2) that I am aware that the the RFS–FRRF. circulation that lists vessel arrivals and information contained herein is being (ii) The identification of the departures, and that includes the port Certified, or submitted to the United renewable fuel as RFS–FRRF. and date of departure and the ports and States Environmental Protection (iii) The volume of RFS–FRRF being dates where the transportation fuel was Agency, under the requirements of 40 transported, in gallons. off loaded for the selected vessels. CFR part 80, subpart M, and that the (3) On each occasion when any party Determine and report as a finding the information is material for determining transfers custody or title to any RFS– country where the transportation fuel compliance under these regulations; and FRRF prior to its being imported into was off loaded for each vessel selected. (3) that I have read and understand the the United States, it must include all the (6) In order to complete the information being Certified or following information as part of the product transfer document information: requirements of this paragraph (m), an submitted, and this information is true, (i) Designation of the renewable fuel auditor shall do all the following: complete and correct to the best of my (i) Be independent of the foreign as RFS–FRRF. knowledge and belief after I have taken (ii) The certification required under refiner or importer. reasonable and appropriate steps to (ii) Be licensed as a Certified Public paragraph (c)(2) of this section. verify the accuracy thereof. I affirm that (d) Load port independent testing and Accountant in the United States and a I have read and understand the refinery identification. (1) On each citizen of the United States, or be provisions of 40 CFR part 80, subpart M, occasion that RFS–FRRF is loaded onto approved in advance by EPA based on including 40 CFR 80.1465 apply to a vessel for transport to the United a demonstration of ability to perform the [INSERT NAME OF FOREIGN States the foreign producer shall have procedures required in §§ 80.125 REFINER]. Pursuant to Clean Air Act an independent third party do all the through 80.127, 80.130, 80.1464, and section 113(c) and 18 U.S.C. 1001, the following: this paragraph (m). penalty for furnishing false, incomplete (i) Inspect the vessel prior to loading (iii) Sign a commitment that contains or misleading information in this and determine the volume of any tank the provisions specified in paragraph (f) certification or submission is a fine of bottoms. of this section with regard to activities up to $10,000 U.S., and/or (ii) Determine the volume of RFS– and documents relevant to compliance imprisonment for up to five years.’’. FRRF loaded onto the vessel (exclusive with the requirements of §§ 80.125 of any tank bottoms before loading). through 80.127, 80.130, 80.1464, and § 80.1466 What are the additional (iii) Obtain the EPA-assigned this paragraph (m). requirements under this subpart for foreign registration number of the foreign (n) Withdrawal or suspension of producers and importers of renewable fuels? producer. foreign small refiner or foreign small (iv) Determine the name and country refinery status. EPA may withdraw or (a) Foreign producer of renewable of registration of the vessel used to suspend a foreign refiner’s small fuel. For purposes of this subpart, a transport the RFS–FRRF to the United refinery or small refiner exemption foreign producer of renewable fuel is a States. where: party located outside the United States, (v) Determine the date and time the (1) A foreign refiner fails to meet any the Commonwealth of Puerto Rico, the vessel departs the port serving the requirement of this section; Virgin Islands, Guam, American Samoa, foreign producer. (2) A foreign government fails to and the Commonwealth of the Northern (vi) Review original documents that allow EPA inspections as provided in Mariana Islands (collectively referred to reflect movement and storage of the paragraph (f)(1) of this section; in this section as ‘‘the United States’’) RFS–FRRF from the foreign producer to (3) A foreign refiner asserts a claim of, that has been approved by EPA to assign the load port, and from this review or a right to claim, sovereign immunity RINs to renewable fuel that the foreign determine all the following: in an action to enforce the requirements producer produces and exports to the (A) The facility at which the RFS– in this subpart; or United States, hereinafter referred to as FRRF was produced. (4) A foreign refiner fails to pay a civil a ‘‘foreign producer’’ under this section. (B) That the RFS–FRRF remained or criminal penalty that is not satisfied (b) General requirements. An segregated from Non-RFS–FRRF and using the foreign refiner bond specified approved foreign producer under this other RFS–FRRF produced by a in paragraph (h) of this section. section must meet all requirements that different foreign producer. (o) Additional requirements for apply to renewable fuel producers (2) The independent third party shall applications, reports and certificates. under this subpart. submit a report to the following:

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(i) The foreign producer, containing importer shall calculate the difference be named, and service on this agent the information required under between the number of RINs originally constitutes service on the foreign paragraph (d)(1) of this section, to assigned by the foreign producer and producer or any employee of the foreign accompany the product transfer the number of RINs calculated under producer for any action by EPA or documents for the vessel. § 80.1426 for the volume of renewable otherwise by the United States related to (ii) The Administrator, containing the fuel as measured at the port of entry, the requirements of this subpart. information required under paragraph and retire that amount of RINs in (3) The forum for any civil or criminal (d)(1) of this section, within thirty days accordance with paragraph (k)(4) of this enforcement action related to the following the date of the independent section. provisions of this section for violations third party’s inspection. This report (f) Foreign producer commitments. of the Clean Air Act or regulations shall include a description of the Any foreign producer shall commit to promulgated thereunder shall be method used to determine the identity and comply with the provisions governed by the Clean Air Act, of the foreign producer facility at which contained in this paragraph (f) as a including the EPA administrative forum the renewable fuel was produced, condition to being approved as a foreign where allowed under the Clean Air Act. assurance that the renewable fuel producer under this subpart. (4) United States substantive and remained segregated as specified in (1) Any United States Environmental procedural laws shall apply to any civil paragraph (j)(1) of this section, and a Protection Agency inspector or auditor or criminal enforcement action against description of the renewable fuel’s must be given full, complete, and the foreign producer or any employee of movement and storage between immediate access to conduct the foreign producer related to the production at the source facility and inspections and audits of the foreign provisions of this section. vessel loading. producer facility. (5) Applying to be an approved (3) The independent third party must: (i) Inspections and audits may be foreign producer under this section, or (i) Be approved in advance by EPA, either announced in advance by EPA, or producing or exporting renewable fuel based on a demonstration of ability to unannounced. under such approval, and all other perform the procedures required in this (ii) Access will be provided to any actions to comply with the requirements paragraph (d); location where: of this subpart relating to such approval (ii) Be independent under the criteria (A) Renewable fuel is produced; constitute actions or activities covered specified in § 80.65(e)(2)(iii); and (B) Documents related to renewable by and within the meaning of the (iii) Sign a commitment that contains fuel producer operations are kept; and provisions of 28 U.S.C. 1605(a)(2), but the provisions specified in paragraph (f) (C) RFS–FRRF is stored or transported solely with respect to actions instituted of this section with regard to activities, between the foreign producer and the against the foreign producer, its agents facilities and documents relevant to United States, including storage tanks, and employees in any court or other compliance with the requirements of vessels and pipelines. tribunal in the United States for conduct this paragraph (d). (iii) Inspections and audits may be by that violates the requirements (e) Comparison of load port and port EPA employees or contractors to EPA. applicable to the foreign producer under of entry testing. (1)(i) Any foreign (iv) Any documents requested that are this subpart, including conduct that producer and any United States related to matters covered by violates the False Statements importer of RFS–FRRF shall compare inspections and audits must be Accountability Act of 1996 (18 U.S.C. the results from the load port testing provided to an EPA inspector or auditor 1001) and section 113(c)(2) of the Clean under paragraph (d) of this section, with on request. Air Act (42 U.S.C. 7413). the port of entry testing as reported (v) Inspections and audits by EPA (6) The foreign producer, or its agents under paragraph (k) of this section, for may include review and copying of any or employees, will not seek to detain or the volume of renewable fuel, except as documents related to the following: to impose civil or criminal remedies specified in paragraph (e)(1)(ii) of this (A) The volume of RFS–FRRF. against EPA inspectors or auditors, section. (B) The proper classification of whether EPA employees or EPA (ii) Where a vessel transporting RFS– gasoline as being RFS–FRRF. contractors, for actions performed FRRF off loads the renewable fuel at (C) Transfers of title or custody to within the scope of EPA employment more than one United States port of RFS–FRRF. related to the provisions of this section. entry, the requirements of paragraph (D) Work performed and reports (7) The commitment required by this (e)(1)(i) of this section do not apply at prepared by independent third parties paragraph (f) shall be signed by the subsequent ports of entry if the United and by independent auditors under the owner or president of the foreign States importer obtains a certification requirements of this section, including producer company. from the vessel owner that the work papers. (8) In any case where RFS–FRRF requirements of paragraph (e)(1)(i) of (vi) Inspections and audits by EPA produced at a foreign producer facility this section were met and that the vessel may include interviewing employees. is stored or transported by another has not loaded any renewable fuel (vii) Any employee of the foreign company between the refinery and the between the first United States port of producer must be made available for vessel that transports the RFS–FRRF to entry and the subsequent port of entry. interview by the EPA inspector or the United States, the foreign producer (2)(i) If the temperature-corrected auditor, on request, within a reasonable shall obtain from each such other volumes determined at the port of entry time period. company a commitment that meets the and at the load port differ by more than (viii) English language translations of requirements specified in paragraphs one percent, the number of RINs any documents must be provided to an (f)(1) through (7) of this section, and associated with the renewable fuel shall EPA inspector or auditor, on request, these commitments shall be included in be calculated based on the lesser of the within 10 working days. the foreign producer’s application to be two volumes in paragraph (e)(1)(i) of (ix) English language interpreters an approved foreign producer under this this section. must be provided to accompany EPA subpart. (ii) Where the port of entry volume is inspectors and auditors, on request. (g) Sovereign immunity. By the lesser of the two volumes in (2) An agent for service of process submitting an application to be an paragraph (e)(1)(i) of this section, the located in the District of Columbia shall approved foreign producer under this

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subpart, or by producing and exporting Accountability Act of 1996 (18 U.S.C. (ii) Use the foreign producer’s RFS– renewable fuel to the United States 1001) and section 113(c)(2) of the Clean FRRF certification to determine the under such approval, the foreign Air Act (42 U.S.C. 7413); name and EPA-assigned registration producer, and its agents and employees, (ii) Be provided by a corporate surety number of the foreign producer that without exception, become subject to that is listed in the United States produced the RFS–FRRF. the full operation of the administrative Department of Treasury Circular 570 (iii) Determine the name and country and judicial enforcement powers and ‘‘Companies Holding Certificates of of registration of the vessel used to provisions of the United States without Authority as Acceptable Sureties on transport the RFS–FRRF to the United limitation based on sovereign immunity, Federal Bonds’’; and States. with respect to actions instituted against (iii) Include a commitment that the (iv) Determine the date and time the the foreign producer, its agents and bond will remain in effect for at least vessel arrives at the United States port employees in any court or other tribunal five years following the end of latest of entry. in the United States for conduct that annual reporting period that the foreign (4) Where the importer is required to violates the requirements applicable to producer produces renewable fuel retire RINs under paragraph (e)(2) of this the foreign producer under this subpart, pursuant to the requirements of this section, the importer must report the including conduct that violates the subpart. retired RINs in the applicable reports False Statements Accountability Act of (4) On any occasion a foreign under § 80.1452. 1996 (18 U.S.C. 1001) and section producer bond is used to satisfy any (5) Any importer shall submit reports 113(c)(2) of the Clean Air Act (42 U.S.C. judgment, the foreign producer shall within 30 days following the date any 7413). increase the bond to cover the amount vessel transporting RFS–FRRF arrives at (h) Bond posting. Any foreign used within 90 days of the date the the United States port of entry to all the producer shall meet the requirements of bond is used. following: this paragraph (h) as a condition to (5) If the bond amount for a foreign (i) The Administrator, containing the approval as a foreign producer under producer increases, the foreign producer information determined under this subpart. shall increase the bond to cover the paragraph (k)(3) of this section. (1) The foreign producer shall post a shortfall within 90 days of the date the (ii) The foreign producer, containing bond of the amount calculated using the bond amount changes. If the bond the information determined under following equation: amount decreases, the foreign refiner paragraph (k)(3)(i) of this section, and Bond = G * $ 0.01 may reduce the amount of the bond including identification of the port at Where: beginning 90 days after the date the which the product was off loaded, and Bond = amount of the bond in U.S. dollars. bond amount changes. any RINs retired under paragraph (e)(2) G = the largest volume of renewable fuel (i) English language reports. Any of this section. produced at the foreign producer’s document submitted to EPA by a foreign (6) Any United States importer shall facility and exported to the United producer shall be in English, or shall meet all other requirements of this States, in gallons, during a single include an English language translation. subpart for any imported ethanol or calendar year among the most recent of (j) Prohibitions. (1) No party may other renewable fuel that is not the following calendar years, up to a combine RFS–FRRF with any Non-RFS– maximum of five calendar years: the classified as RFS–FRRF under calendar year immediately preceding the FRRF, and no party may combine RFS– paragraph (k)(2) of this section. date the refinery’s application is FRRF with any RFS–FRRF produced at (l) Truck imports of RFS–FRRF submitted, the calendar year the a different refinery, until the importer produced by a foreign producer. (1) Any application is submitted, and each has met all the requirements of foreign producer whose RFS–FRRF is succeeding calendar year. paragraph (k) of this section. transported into the United States by (2) Bonds shall be posted by any of (2) No foreign producer or other party truck may petition EPA to use the following methods: may cause another party to commit an alternative procedures to meet all the (i) Paying the amount of the bond to action prohibited in paragraph (j)(1) of following requirements: the Treasurer of the United States. this section, or that otherwise violates (i) Certification under paragraph (c)(2) (ii) Obtaining a bond in the proper the requirements of this section. of this section. amount from a third party surety agent (k) Requirements for United States (ii) Load port and port of entry testing that is payable to satisfy United States importers of RFS–FRRF. Any United under paragraphs (d) and (e) of this administrative or judicial judgments States importer shall meet all the section. against the foreign producer, provided following requirements: (iii) Importer testing under paragraph EPA agrees in advance as to the third (1) Each batch of imported RFS–FRRF (k)(3) of this section. party and the nature of the surety shall be classified by the importer as (2) These alternative procedures must agreement. being RFS–FRRF. ensure RFS–FRRF remains segregated (iii) An alternative commitment that (2) Renewable fuel shall be classified from Non-RFS–FRRF until it is results in assets of an appropriate as RFS–FRRF according to the imported into the United States. The liquidity and value being readily designation by the foreign producer if petition will be evaluated based on available to the United States provided this designation is supported by product whether it adequately addresses the EPA agrees in advance as to the transfer documents prepared by the following: alternative commitment. foreign producer as required in (i) Contracts with any facilities that (3) Bonds posted under this paragraph paragraph (c) of this section. receive and/or transport RFS–FRRF that (h) shall: (3) For each renewable fuel batch prohibit the commingling of RFS–FRRF (i) Be used to satisfy any judicial classified as RFS–FRRF, any United with Non-RFS–FRRF or RFS–FRRF from judgment that results from an States importer shall have an other foreign producers. administrative or judicial enforcement independent third party do all the (ii) Attest procedures to be conducted action for conduct in violation of this following: annually by an independent third party subpart, including where such conduct (i) Determine the volume of gasoline that review loading records and import violates the False Statements in the vessel. documents based on volume

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reconciliation to confirm that all RFS– FRRF or any RFS–FRRF produced at a (4) A foreign producer fails to pay a FRRF remains segregated. different facility. civil or criminal penalty that is not (3) The petition described in this (4) Select a sample from the list of satisfied using the foreign producer section must be submitted to EPA along vessels identified in paragraph (m)(2) of bond specified in paragraph (g) of this with the application for approval as a this section used to transport RFS– section. foreign producer under this subpart. FRRF, in accordance with the guidelines (o) Additional requirements for (m) Additional attest requirements for in § 80.127, and for each vessel selected applications, reports and certificates. producers of RFS–FRRF. The following perform the following: Any application for approval as a additional procedures shall be carried (i) Obtain a commercial document of foreign producer, alternative procedures out by any producer of RFS–FRRF as general circulation that lists vessel under paragraph (l) of this section, any part of the attest engagement required arrivals and departures, and that report, certification, or other submission for renewable fuel producers under this includes the port and date of departure required under this section shall be: subpart M. of the vessel, and the port of entry and (1) Submitted in accordance with (1) Obtain listings of all tenders of date of arrival of the vessel. procedures specified by the RFS–FRRF. Agree the total volume of (ii) Agree the vessel’s departure and Administrator, including use of any tenders from the listings to the volumes arrival locations and dates from the forms that may be specified by the determined by the third party under independent third party and United Administrator. (2) Signed by the president or owner paragraph (d) of this section. States importer reports to the of the foreign producer company, or by (2) For each tender under paragraph information contained in the that party’s immediate designee, and (m)(1) of this section, where the commercial document. shall contain the following declaration: renewable fuel is loaded onto a marine (5) Obtain a separate listing of the vessel, report as a finding the name and tenders under this paragraph (m)(5) ‘‘I hereby certify: 1) That I have actual country of registration of each vessel, where the RFS–FRRF is loaded onto a authority to sign on behalf of and to and the volumes of RFS–FRRF loaded marine vessel. Select a sample from this bind [insert name of foreign producer] onto each vessel. listing in accordance with the with regard to all statements contained (3) Select a sample from the list of guidelines in § 80.127, and obtain a herein; 2) that I am aware that the vessels identified in paragraph (m)(2) of commercial document of general information contained herein is being this section used to transport RFS– circulation that lists vessel arrivals and Certified, or submitted to the United FRRF, in accordance with the guidelines departures, and that includes the port States Environmental Protection in § 80.127, and for each vessel selected and date of departure and the ports and Agency, under the requirements of 40 perform all the following: dates where the renewable fuel was off CFR part 80, subpart M, and that the (i) Obtain the report of the loaded for the selected vessels. information is material for determining independent third party, under Determine and report as a finding the compliance under these regulations; and paragraph (d) of this section, and of the country where the renewable fuel was 3) that I have read and understand the United States importer under paragraph off loaded for each vessel selected. information being Certified or (6) In order to complete the (k) of this section. submitted, and this information is true, requirements of this paragraph (m) an (A) Agree the information in these complete and correct to the best of my auditor shall: reports with regard to vessel knowledge and belief after I have taken (i) Be independent of the foreign reasonable and appropriate steps to identification and renewable fuel producer; volume. verify the accuracy thereof. I affirm that (ii) Be licensed as a Certified Public I have read and understand the (B) Identify, and report as a finding, Accountant in the United States and a each occasion the load port and port of provisions of 40 CFR part 80, subpart M, citizen of the United States, or be including 40 CFR 80.1465 apply to entry volume results differ by more than approved in advance by EPA based on the amount allowed in paragraph (e) of [insert name of foreign producer]. a demonstration of ability to perform the Pursuant to Clean Air Act section 113(c) this section, and determine whether the procedures required in §§ 80.125 importer retired the appropriate amount and 18 U.S.C. 1001, the penalty for through 80.127, 80.130, 80.1464, and furnishing false, incomplete or of RINs as required under paragraph this paragraph (m); and (e)(2) of this section, and submitted the misleading information in this (iii) Sign a commitment that contains certification or submission is a fine of applicable reports under § 80.1452 in the provisions specified in paragraph (f) accordance with paragraph (k)(4) of this up to $10,000 U.S., and/or of this section with regard to activities imprisonment for up to five years.’’. section. and documents relevant to compliance (ii) Obtain the documents used by the with the requirements of §§ 80.125 § 80.1467 What are the additional independent third party to determine through 80.127, 80.130, 80.1464, and requirements under this subpart for a transportation and storage of the RFS– this paragraph (m). foreign RIN owner? FRRF from the foreign producer’s (n) Withdrawal or suspension of (a) Foreign RIN owner. For purposes facility to the load port, under foreign producer approval. EPA may of this subpart, a foreign RIN owner is paragraph (d) of this section. Obtain withdraw or suspend a foreign a party located outside the United tank activity records for any storage tank producer’s approval where any of the States, the Commonwealth of Puerto where the RFS–FRRF is stored, and following occur: Rico, the Virgin Islands, Guam, activity records for any mode of (1) A foreign producer fails to meet American Samoa, and the transportation used to transport the any requirement of this section. Commonwealth of the Northern Mariana RFS–FRFUEL prior to being loaded onto (2) A foreign government fails to Islands (collectively referred to in this the vessel. Use these records to allow EPA inspections as provided in section as ‘‘the United States’’) that has determine whether the RFS–FRRF was paragraph (f)(1) of this section. been approved by EPA to own RINs. produced at the foreign producer’s (3) A foreign producer asserts a claim (b) General requirement. An approved facility that is the subject of the attest of, or a right to claim, sovereign foreign RIN owner must meet all engagement, and whether the RFS– immunity in an action to enforce the requirements that apply to parties who FRRF was mixed with any Non-RFS– requirements in this subpart. own RINs under this subpart.

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(c) Foreign RIN owner commitments. of the foreign RIN owner related to the calendar year, the bond amount shall be Any party shall commit to and comply provisions of this section. based on the actual number of gallon- with the provisions contained in this (5) Submitting an application to be a RINs sold or transferred during the paragraph (c) as a condition to being foreign RIN owner, and all other actions current calendar year and the number to comply with the requirements of this held at the conclusion of the current approved as a foreign RIN owner under averaging year, plus the number of this subpart. subpart constitute actions or activities gallon-RINs sold or transferred during (1) Any United States Environmental covered by and within the meaning of the four most recent calendar years Protection Agency inspector or auditor the provisions of 28 U.S.C. 1605(a)(2), preceding the current calendar year. For must be given full, complete, and but solely with respect to actions any year for which there were fewer than immediate access to conduct instituted against the foreign RIN owner, four preceding years in which the foreign inspections and audits of the foreign its agents and employees in any court or entity sold or transferred RINs, the bond RIN owner’s place of business. other tribunal in the United States for shall be based on the total of the number (i) Inspections and audits may be conduct that violates the requirements of gallon-RINs sold or transferred during either announced in advance by EPA, or applicable to the foreign RIN owner the current calendar year and the number held at the end of the current unannounced. under this subpart, including conduct calendar year, plus the number of gallon- (ii) Access will be provided to any that violates the False Statements RINs sold or transferred during any location where documents related to Accountability Act of 1996 (18 U.S.C. calendar year preceding the current RINs the foreign RIN owner has 1001) and section 113(c)(2) of the Clean calendar year, plus the number of gallon- obtained, sold, transferred or held are Air Act (42 U.S.C. 7413). RINs expected to be sold or transferred kept. (6) The foreign RIN owner, or its during subsequent calendar years, the (iii) Inspections and audits may be by agents or employees, will not seek to total number of years not to exceed four EPA employees or contractors to EPA. detain or to impose civil or criminal calendar years in addition to the current (iv) Any documents requested that are remedies against EPA inspectors or calendar year. related to matters covered by auditors, whether EPA employees or (2) Bonds shall be posted by doing inspections and audits must be EPA contractors, for actions performed any of the following: provided to an EPA inspector or auditor within the scope of EPA employment (i) Paying the amount of the bond to on request. related to the provisions of this section. the Treasurer of the United States. (v) Inspections and audits by EPA (7) The commitment required by this (ii) Obtaining a bond in the proper may include review and copying of any paragraph (c) shall be signed by the amount from a third party surety agent documents related to the following: owner or president of the foreign RIN that is payable to satisfy United States (A) Transfers of title to RINs. owner business. administrative or judicial judgments (B) Work performed and reports (d) Sovereign immunity. By against the foreign RIN owner, provided prepared by independent auditors under submitting an application to be a foreign EPA agrees in advance as to the third the requirements of this section, RIN owner under this subpart, the party and the nature of the surety including work papers. foreign entity, and its agents and agreement. (vi) Inspections and audits by EPA employees, without exception, become (iii) An alternative commitment that may include interviewing employees. subject to the full operation of the results in assets of an appropriate (vii) Any employee of the foreign RIN administrative and judicial enforcement liquidity and value being readily owner must be made available for powers and provisions of the United available to the United States, provided interview by the EPA inspector or States without limitation based on EPA agrees in advance as to the auditor, on request, within a reasonable sovereign immunity, with respect to alternative commitment. time period. actions instituted against the foreign (3) All the following shall apply to (viii) English language translations of RIN owner, its agents and employees in bonds posted under this paragraph (e); any documents must be provided to an any court or other tribunal in the United bonds shall: EPA inspector or auditor, on request, States for conduct that violates the (i) Be used to satisfy any judicial within 10 working days. requirements applicable to the foreign judgment that results from an (ix) English language interpreters RIN owner under this subpart, including administrative or judicial enforcement must be provided to accompany EPA conduct that violates the False action for conduct in violation of this inspectors and auditors, on request. Statements Accountability Act of 1996 subpart, including where such conduct (2) An agent for service of process (18 U.S.C. 1001) and section 113(c)(2) of violates the False Statements located in the District of Columbia shall the Clean Air Act (42 U.S.C. 7413). Accountability Act of 1996 (18 U.S.C. be named, and service on this agent (e) Bond posting. Any foreign entity 1001) and section 113(c)(2) of the Clean constitutes service on the foreign RIN shall meet the requirements of this Air Act (42 U.S.C. 7413). owner or any employee of the foreign paragraph (e) as a condition to approval (ii) Be provided by a corporate surety RIN owner for any action by EPA or as a foreign RIN owner under this that is listed in the United States otherwise by the United States related to subpart. Department of Treasury Circular 570 the requirements of this subpart. (1) The foreign entity shall post a ‘‘Companies Holding Certificates of (3) The forum for any civil or criminal bond of the amount calculated using the Authority as Acceptable Sureties on enforcement action related to the following equation: Federal Bonds’’. provisions of this section for violations Bond = G * $ 0.01 (iii) Include a commitment that the of the Clean Air Act or regulations bond will remain in effect for at least promulgated thereunder shall be Where: five years following the end of latest governed by the Clean Air Act, Bond = amount of the bond in U.S. dollars. reporting period in which the foreign including the EPA administrative forum G = the total of the number of gallon-RINs the RIN owner obtains, sells, transfers, or foreign entity expects to sell or transfer where allowed under the Clean Air Act. during the first calendar year that the holds RINs. (4) United States substantive and foreign entity is a RIN owner, plus the (4) On any occasion a foreign RIN procedural laws shall apply to any civil number of gallon-RINs the foreign entity owner bond is used to satisfy any or criminal enforcement action against expects to sell or transfer during the next judgment, the foreign RIN owner shall the foreign RIN owner or any employee four calendar years. After the first increase the bond to cover the amount

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used within 90 days of the date the (1) A foreign RIN owner fails to meet and 18 U.S.C. 1001, the penalty for bond is used. any requirement of this section, furnishing false, incomplete or (f) English language reports. Any including, but not limited to, the bond misleading information in this document submitted to EPA by a foreign requirements. certification or submission is a fine of RIN owner shall be in English, or shall (2) A foreign government fails to up to $10,000 U.S., and/or include an English language translation. allow EPA inspections as provided in imprisonment for up to five years.’’. (g) Prohibitions. (1) A foreign RIN paragraph (c)(1) of this section. owner is prohibited from obtaining, (3) A foreign RIN owner asserts a § 80.1468 [Reserved] selling, transferring, or holding any RIN claim of, or a right to claim, sovereign § 80.1469 What are the labeling that is in excess of the number for immunity in an action to enforce the requirements that apply to retailers and which the bond requirements of this requirements in this subpart. wholesale purchaser-consumers of ethanol section have been satisfied. (4) A foreign RIN owner fails to pay fuel blends that contain greater than 10 (2) Any RIN that is sold, transferred, a civil or criminal penalty that is not volume percent ethanol? or held that is in excess of the number satisfied using the foreign RIN owner (a) Any retailer or wholesale for which the bond requirements of this bond specified in paragraph (e) of this purchaser-consumer who sells, section have been satisfied is an invalid section. dispenses, or offers for sale or (j) Additional requirements for RIN under § 80.1431. dispensing, ethanol fuel blends that applications, reports and certificates. (3) Any RIN that is obtained from a contain greater than 10 volume percent Any application for approval as a party located outside the United States ethanol must prominently and foreign RIN owner, any report, that is not an approved foreign RIN conspicuously display in the immediate certification, or other submission owner under this section is an invalid area of each pump stand from which required under this section shall be: RIN under § 80.1431. such fuel is offered for sale or (4) No foreign RIN owner or other (1) Submitted in accordance with procedures specified by the dispensing, the following legible label party may cause another party to in block letters of no less than 24-point commit an action prohibited in this Administrator, including use of any forms that may be specified by the bold type in a color contrasting with the paragraph (g), or that otherwise violates background: the requirements of this section. Administrator. (h) Additional attest requirements for (2) Signed by the president or owner CONTAINS MORE THAN 10 VOLUME foreign RIN owners. The following of the foreign RIN owner company, or PERCENT ETHANOL additional requirements apply to any by that party’s immediate designee, and shall contain the following declaration: For use only in flexible-fuel gasoline foreign RIN owner as part of the attest vehicles. engagement required for RIN owners ‘‘I hereby certify: 1) That I have actual May damage non-flexible fuel under this subpart M. authority to sign on behalf of and to vehicles. (i) The attest auditor must be bind [insert name of foreign RIN owner] independent of the foreign RIN owner. with regard to all statements contained WARNING (ii) The attest auditor must be herein; 2) that I am aware that the Federal law prohibits use in non- licensed as a Certified Public information contained herein is being flexible fuel vehicles. Accountant in the United States and a Certified, or submitted to the United (b) Alternative labels to those citizen of the United States, or be States Environmental Protection specified in paragraph (a) of this section approved in advance by EPA based on Agency, under the requirements of 40 may be used as approved by EPA. a demonstration of ability to perform the CFR part 80, subpart M, and that the Requests for approval of alternative procedures required in §§ 80.125 information is material for determining labels shall be sent to one of the through 80.127, 80.130, and 80.1464. compliance under these regulations; and following addresses: (iii) The attest auditor must sign a 3) that I have read and understand the (1) For US mail: U.S. EPA, Attn: commitment that contains the information being Certified or Alternative fuel dispenser label request, provisions specified in paragraph (c) of submitted, and this information is true, 6406J, 1200 Pennsylvania Avenue, NW., this section with regard to activities and complete and correct to the best of my Washington, DC 20460. documents relevant to compliance with knowledge and belief after I have taken (2) For overnight or courier services: the requirements of §§ 80.125 through reasonable and appropriate steps to U.S. EPA, Attn: Alternative fuel 80.127, 80.130, and 80.1464. verify the accuracy thereof. I affirm that dispenser label request, 6406J, 1310 L (i) Withdrawal or suspension of I have read and understand the Street, NW., 6th floor, Washington, DC foreign RIN owner status. EPA may provisions of 40 CFR part 80, subpart M, 20005. (202) 343–9038. withdraw or suspend its approval of a including 40 CFR 80.1467 apply to foreign RIN owner where any of the [insert name of foreign RIN owner]. [FR Doc. E9–10978 Filed 5–22–09; 8:45 am] following occur: Pursuant to Clean Air Act section 113(c) BILLING CODE 6560–50–P

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Reader Aids Federal Register Vol. 74, No. 99 Tuesday, May 26, 2009

CUSTOMER SERVICE AND INFORMATION CFR PARTS AFFECTED DURING MAY

Federal Register/Code of Federal Regulations At the end of each month, the Office of the Federal Register General Information, indexes and other finding 202–741–6000 publishes separately a List of CFR Sections Affected (LSA), which aids lists parts and sections affected by documents published since Laws 741–6000 the revision date of each title. Presidential Documents 3 CFR 301...... 22318 Executive orders and proclamations 741–6000 305...... 22318 Proclamations: The United States Government Manual 741–6000 318...... 22318 7562 (superseded by 319...... 22318 Other Services 8380) ...... 23603 330...... 22318 Electronic and on-line services (voice) 741–6020 8366...... 20403 352...... 22318 Privacy Act Compilation 741–6064 8367...... 20861 457...... 23660 Public Laws Update Service (numbers, dates, etc.) 741–6043 8368...... 20863 930...... 22112 TTY for the deaf-and-hard-of-hearing 741–6086 8369...... 21241 945...... 23958 8370...... 21243 983...... 20630 8371...... 21527 ELECTRONIC RESEARCH 1150...... 23359 8372...... 21529 World Wide Web 8373...... 22085 9 CFR Full text of the daily Federal Register, CFR and other publications 8374...... 22089 93...... 22090 is located at: http://www.gpoaccess.gov/nara/index.html 8375...... 22417 Federal Register information and research tools, including Public 8376...... 22419 Proposed Rules: Inspection List, indexes, and links to GPO Access are located at: 8377...... 22815 201...... 22841 http://www.archives.gov/federallregister 8378...... 22817 10 CFR E-mail 8379...... 23107 FEDREGTOC-L (Federal Register Table of Contents LISTSERV) is 8380...... 23603 Proposed Rules: an open e-mail service that provides subscribers with a digital 8381...... 23605 37...... 20235 form of the Federal Register Table of Contents. The digital form 8382...... 23607 50...... 23254 of the Federal Register Table of Contents includes HTML and 8383...... 24689 52...... 23254 PDF links to the full text of each document. 8384...... 24691 440...... 23804 600...... 20427 To join or leave, go to http://listserv.access.gpo.gov and select Executive Orders: Online mailing list archives, FEDREGTOC-L, Join or leave the list 13508...... 23099 (or change settings); then follow the instructions. 12 CFR PENS (Public Law Electronic Notification Service) is an e-mail Administrative Orders: Memorandums: 41...... 22639 service that notifies subscribers of recently enacted laws. Memo. of May 1, 222...... 22639 To subscribe, go to http://listserv.gsa.gov/archives/publaws-l.html 226...... 23289 and select Join or leave the list (or change settings); then follow 2009 ...... 20865 Memo. of May 5, 229...... 21245 the instructions. 334...... 22639 FEDREGTOC-L and PENS are mailing lists only. We cannot 2009 ...... 21531 Memo. of April 30, 571...... 22639 respond to specific inquiries. 717...... 22639 Reference questions. Send questions and comments about the 2009 ...... 22637 Memo. of May 15, Proposed Rules: Federal Register system to: [email protected] 226...... 20784 The Federal Register staff cannot interpret specific documents or 2009 ...... 23787 Notices: 227...... 20804 regulations. 535...... 20804 Reminders. Effective January 1, 2009, the Reminders, including Notice of May 14, 611...... 23961 Rules Going Into Effect and Comments Due Next Week, no longer 2009 ...... 23287 613...... 23961 appear in the Reader Aids section of the Federal Register. This Notice of May 19, 615...... 23961 information can be found online at http://www.regulations.gov. 2009 ...... 23935 619...... 23961 CFR Checklist. Effective January 1, 2009, the CFR Checklist no Memo. of May 20, 620...... 23961 longer appears in the Federal Register. This information can be 2009 ...... 24693 706...... 20804 found online at http://bookstore.gpo.gov/. 5 CFR 913...... 22842 925...... 22848 FEDERAL REGISTER PAGES AND DATE, MAY 300...... 23109 531...... 23937 1204...... 22842 20201–20404...... 1 24695–25144...... 26 532...... 20405, 22421 1263...... 22848 20405–20558...... 4 550...... 23937 1282...... 20236 20559–20864...... 5 Proposed Rules: 1702...... 22842 20865–21244...... 6 300...... 21771 13 CFR 21245–21532...... 7 21533–21766...... 8 6 CFR 121...... 20577 21767–22088...... 11 Proposed Rules: Proposed Rules: 22089–22416...... 12 5...... 23957 313...... 20647 22417–22636...... 13 315...... 20647 7 CFR 22637–22818...... 14 22819–23108...... 15 305...... 23609 14 CFR 23109–23286...... 18 319...... 23609 25 ...... 21533, 22819, 23612 23287–23604...... 19 1487...... 22089 39 ...... 20580, 20867, 21246, 23605–23788...... 20 1755...... 20559 21249, 21251, 21254, 21544, 23789–23936...... 21 Proposed Rules: 22091, 22422, 22424, 22426, 23937–24694...... 22 51...... 23128 22429, 22432, 22435, 22646,

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23109, 23110, 23305, 23614, 416...... 21563 686...... 20210 24738, 24743, 24753 23617, 23619, 23622, 23625, 690...... 20210 23938 21 CFR 691...... 20210 45 CFR 47...... 22819 510 ...... 20582, 21767, 21768, Proposed Rules: 302...... 23798 61...... 22649, 22819 22821 Chap. VI...... 24728 303...... 23798 63...... 22649, 22819 520...... 21767, 21768 307...... 23798 36 CFR 65...... 22649, 22819 522...... 20582 Proposed Rules: 71 ...... 20410, 20867, 20868, 524...... 22821 Proposed Rules: 94...... 21610 20869, 22093, 22820, 22821 589...... 20583 242...... 22867 73...... 20201 601...... 20583 46 CFR 38 CFR 91 ...... 20202, 22649, 24695 1308...... 23789, 23790 2...... 20416 97...... 22668, 22670 Proposed Rules: 3...... 21258, 22103 8...... 20416, 21554 120...... 22649 601...... 20663 17...... 22832 189...... 20416 121...... 22649 38...... 20225 135 ...... 20202, 22649, 24695 22 CFR Proposed Rules: 47 CFR Proposed Rules: 215...... 20871 21...... 21565 1 ...... 22104, 22696, 23328 25...... 20427 36...... 22145 2...... 22696 39 ...... 20431, 20659, 20661, 24 CFR 39 CFR 36...... 23955 21274, 21278, 21281, 21284, 3500...... 22822 64...... 20892 21285, 21561, 21772, 22123, 111...... 22835 73 ...... 20419, 20420, 20601, 22125, 22127, 22712, 23129, 26 CFR 955...... 20590 20893, 22710 23131, 23664, 23668, 23671, 1...... 21256, 21438 3001...... 20834, 23113 74...... 23650 24712, 24715 20...... 21438 3050...... 20834 80...... 23329 71 ...... 20443, 23370, 23371 25...... 21438 40 CFR 90 ...... 20602, 23329, 23799 93...... 22714, 22717 95...... 22696 Proposed Rules: 50...... 23307 135...... 20263 1 ...... 21295, 21519, 23134 Proposed Rules: 145...... 21287 51...... 22693 20...... 21519 52 ...... 20599, 20601, 20872, 1...... 21613 15 CFR 25...... 21519 20874, 20877, 20880, 21550, 2...... 22491 22693, 22837, 23632, 23952, 64...... 23815 730...... 23941 29 CFR 73 ...... 20444, 20445, 22498 734...... 23941 24703 2550...... 23951 60...... 23313 74...... 22498 738...... 23941 4022...... 22826 90...... 23816 740...... 23941 61...... 23313 Proposed Rules: 63...... 22437 95...... 22491 742...... 23941 403...... 23811 743...... 23941 174...... 23635 48 CFR 408...... 23811 180 ...... 20883, 20887, 21260, 744...... 23941 1601...... 23674 5...... 22810 746...... 23941 22456, 22460, 22464, 23046, 1602...... 23674 23640, 24705 25...... 22810 772...... 23941 1603...... 23674 52...... 22810 774...... 20870, 23941 239...... 20227 1607...... 23674 258...... 20227 501...... 21272 16 CFR 1610...... 23674 271 ...... 22469, 23328, 23645 525...... 20894 1611...... 23674 745...... 21554 537...... 20605 3...... 20205 1614...... 23674 549...... 21272 4...... 20205 Proposed Rules: 1625...... 23674 51...... 22147 552 ...... 20605, 20894, 21272 641...... 22639 1690...... 23674 904...... 23120 680...... 22639 52 ...... 20665, 20895, 20896, 20897, 21295, 21568, 21578, 952...... 23120 681...... 22639 30 CFR 970...... 23120 698...... 22639 21588, 21594, 21599, 21604, 938...... 21768 22147, 23678, 23812, 23965 Proposed Rules: Proposed Rules: 19...... 23373 425...... 22720 31 CFR 60...... 21136, 23372 61...... 23372 52...... 20666 596...... 23111 541...... 23374 17 CFR 63...... 21136, 22478 Proposed Rules: 80...... 23678, 24904 552...... 23374 200...... 20411 103...... 22129 93...... 23024 230...... 21255 49 CFR 180...... 22478 232...... 21255 32 CFR 271 ...... 22490, 23373, 23679 209...... 23329 239...... 21255 199...... 21547 211...... 23329 274...... 21255 706...... 24695 42 CFR 571...... 22348 Proposed Rules: Proposed Rules: 585...... 22348 1...... 21290, 23962 33 CFR 50...... 21610 1002...... 20607 30...... 23962 100 ...... 21550, 22095, 22672 84...... 23814, 23815 1580...... 23656 150...... 23964 117 ...... 20585, 23628, 23629, 412...... 21052, 24080 Proposed Rules: 24696 571...... 20445 18 CFR 413...... 24080 165 ...... 20412, 20414, 20586, 415...... 24080 Proposed Rules: 20588, 21550, 22100, 22685, 431...... 21232 50 CFR Chap. I...... 23810, 24718 22687, 22689, 22691, 22828, 433...... 21230 17...... 23476 22830, 23112, 23113, 23630, 440...... 21232 92...... 23336 19 CFR 23793, 23796, 24697, 24699, 441...... 21232 229...... 23349 10...... 23949 24701 483...... 22208 300...... 21194 101...... 23110 Proposed Rules: 489...... 24080 402...... 20421 361...... 22094 100...... 22142 622 ...... 20229, 21558, 22476, Proposed Rules: 110...... 24718 44 CFR 22710 101...... 23133 165 ...... 20270, 21564, 22722, 64...... 21267, 23115 648 ...... 20230, 20423, 20528, 23139, 24722 65...... 21271 21559 20 CFR 67...... 23117 660...... 20610, 20620 Proposed Rules: 34 CFR Proposed Rules: 679 ...... 22477, 23127, 23657, 404...... 21563 668...... 20210 67 ...... 22151, 23140, 24729, 23658, 23659

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The text of laws is not S. 735/P.L. 111–20 enacted public laws. To published in the Federal Protecting Incentives for the subscribe, go to http:// LIST OF PUBLIC LAWS Register but may be ordered Adoption of Children with listserv.gsa.gov/archives/ in ‘‘slip law’’ (individual Special Needs Act of 2009 publaws-l.html pamphlet) form from the (May 15, 2009; 123 Stat. This is a continuing list of 1616) public bills from the current Superintendent of Documents, Note: This service is strictly U.S. Government Printing Last List May 13, 2009 session of Congress which for E-mail notification of new Office, Washington, DC 20402 have become Federal laws. It laws. The text of laws is not (phone, 202–512–1808). The may be used in conjunction available through this service. text will also be made Public Laws Electronic with ‘‘P L U S’’ (Public Laws PENS cannot respond to Update Service) on 202–741– available on the Internet from Notification Service specific inquiries sent to this 6043. This list is also GPO Access at http:// (PENS) available online at http:// www.gpoaccess.gov/plaws/ address. www.archives.gov/federal- index.html. Some laws may PENS is a free electronic mail register/laws.html. not yet be available. notification service of newly

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