million gallons of non-BBD advanced biofuels beyond the BBD standard
would have been needed to meet the advanced biofuel volume requirement.
---------------------------------------------------------------------------

    \154\ 77 FR 59458, 59462 (September 27, 2012).
    \155\ 594 million advanced ethanol RINs were generated in 2012.
---------------------------------------------------------------------------

    The only advanced biofuel other than BBD available in appreciable
quantities in 2012 and 2013 was advanced ethanol, the vast majority of
which was imported sugarcane ethanol. EPA had significant concerns as
to whether or not the supply of advanced ethanol could increase this
significantly (750 million gallons) in a single year. These concerns
were heightened by the approaching E10 blendwall, which had the
potential to increase the challenges associated with supplying
increasing volumes of ethanol to the U.S. If neither BBD volumes nor
advanced ethanol volumes increased sufficiently, EPA was concerned that
some obligated parties might be unable to acquire the advanced biofuel
RINs necessary to demonstrate compliance with their RVOs in 2013.
Therefore, as discussed above, EPA increased the volume requirement for
BBD in 2013 to help create greater certainty for BBD producers (by
ensuring demand for their product above the 1.0 billion gallon
statutory minimum) and obligated parties (by ensuring that sufficient
RINs would be available to satisfy their advanced biofuel RVOs). Since
2013, however, EPA has gained significant experience implementing the
RFS program. As discussed above, RIN generation data has consistently
demonstrated that the advanced biofuel volume requirement, and to a
lesser degree the total renewable fuel volume requirement, are capable
of incentivizing the supply of BBD above and beyond the BBD volume
requirement. The RIN generation data also show that while EPA has
consistently preserved the opportunity for fuels other that BBD to
contribute towards satisfying the required volume of advanced biofuel,
these other advanced biofuels have not been supplied in significant
quantities since 2013.

                Table VI.B.1-2--Opportunity for and RIN Generation of ``Other'' Advanced Biofuels
                                                 [Million RINs]
----------------------------------------------------------------------------------------------------------------
                                                                                Available BBD
                                                                    Opportunity                    (D4) RINs in
                                                                   for ``other''     Available    excess of  the
                                                                     advanced     advanced  (D5)        BBD
                                                                   biofuels \a\        RINs         requirement
                                                                                \b\
----------------------------------------------------------------------------------------------------------------
2011............................................................             150             225             283
2012............................................................             500             597             -35
2013............................................................             829             552             421
2014 \c\........................................................             192             143               2
2015 \c\........................................................             162             147             -24
2016............................................................             530              97             903
2017............................................................             969             144             570
2018 \d\........................................................             852             121             590
----------------------------------------------------------------------------------------------------------------
\a\ The required volume of ``other'' advanced biofuel is calculated by subtracting the number of cellulosic
  biofuel and BBD RINs required each year from the number of advanced biofuel RINs required. This portion of the
  advanced standard can be satisfied by advanced (D5) RINs, BBD RINs in excess of those required by the BBD
  standard, or cellulosic RINs in excess of those required by the cellulosic standard.
\b\ The available BBD (D4) RINs in excess of the BBD requirement is calculated by subtracting the required BBD
  volume (multiplied by 1.5 to account for the equivalence value of biodiesel) required each year from the
  number of BBD RINs available for compliance in that year. This number does not include carryover RINs, nor do
  we account for factors that may impact the number of BBD RINs that must be retired for compliance, such as
  differences between the projected and actual volume of obligated gasoline and diesel.
\c\ The 2014 and 2015 volume requirements were established in November 2015 and were set equal to the number of
  RINs projected to be available for each year.
\d\ Available Advanced RINs and available D4 RINs in excess of the BBD requirement are projected based on data
  through September 2018.

    In 2014 and 2015, EPA set the BBD and advanced standards at actual
RIN generation, and thus the space between the advanced biofuel
standard and the biodiesel standard was unlikely to provide an
incentive for ``other'' advanced biofuels. EPA now has data on the
amount of ``other'' advanced biofuels produced in 2016 and 2017 as
shown in the table above. For 2016 and 2017, the gap between the BBD
standard and the advanced biofuel provided an opportunity for ``other''
advanced biofuels to be generated to satisfy the advanced biofuel
standard. While the RFS volumes created the opportunity for up to 530
million and 969 million gallons of ``other'' advanced for 2016 and 2017
respectively to be used to satisfy the advanced biofuel obligation,
only 97 million and 144 million gallons of ``other'' advanced biofuels
were generated. This is significantly less than the volumes of
``other'' advanced available in 2012-2013. Despite creating space
within the advanced biofuel standard for ``other'' advanced, in recent
years, only a small fraction of that space has been filled with
``other'' advanced, and BBD continues to fill most of the gap between
the BBD standard and the advanced standard.
    Thus, while the advanced biofuel standard is sufficient to drive
biodiesel volume separate and apart from the BBD standard, there would
not appear to be a compelling reason to increase the ``space''
maintained for ``other'' advanced biofuel volumes. The overall

volume of non-cellulosic advanced biofuel in this final rule increases
by 500 million gallons for 2019. Increasing the BBD volume by the same
amount would preserve the space already available for other advanced
biofuels to compete.
    At the same time, the rationale for preserving the ``space'' for
``other'' advanced biofuels remains. We note that the BBD industry in
the U.S. and abroad has matured since EPA first increased the required
volume of BBD beyond the statutory minimum in 2013. To assess the
maturity of the biodiesel industry, EPA compared information on BBD RIN
generation by company in 2012 and 2017 (the most recent year for which
complete RIN generation by company is available). In 2012, the annual
average RIN generation per company producing BBD was about 11 million
RINs (about 7.3 million gallons) with approximately 50 percent of
companies producing less than 1 million gallons of BBD a year.\156\ The
agency heard from multiple commenters during the 2012 and 2013
rulemakings that higher volume requirements for BBD would provide
greater certainty for the emerging BBD industry and encourage further
investment. Since that time, the BBD industry has matured in a number
of critical areas, including growth in the size of companies, the
consolidation of the industry, and more stable funding and access to
capital. In 2012, the BBD industry was characterized by smaller
companies with dispersed market share. By 2017, the average BBD RIN
generation per company had climbed to almost 33 million RINs (22
million gallons) annually, a 3-fold increase. Only 33 percent of the
companies produced less than 1 million gallons of BBD in 2017.\157\
---------------------------------------------------------------------------

    \156\ ``BBD RIN Generation by Company 2012, 2016, and 2017
CBI,'' available in EPA docket EPA-HQ-OAR-2018-0167.
    \157\ Id.
---------------------------------------------------------------------------

    We are conscious of public comments claiming that BBD volume
requirements that are a significant portion of the advanced volume
requirements effectively disincentivize the future development of other
promising advanced biofuel pathways.\158\ A variety of different types
of advanced biofuels, rather than a single type such as BBD, would
increase energy security (e.g., by increasing the diversity of
feedstock sources used to make biofuels, thereby reducing the impacts
associated with a shortfall in a particular type of feedstock) and
increase the likelihood of the development of lower cost advanced
biofuels that meet the same GHG reduction threshold as BBD.\159\
---------------------------------------------------------------------------

    \158\ See, e.g., Comments from Advanced Biofuel Association,
available in EPA docket EPA-HQ-2018-0167-1277.
    \159\ All types of advanced biofuel, including BBD, must achieve
lifecycle GHG reductions of at least 50 percent. See CAA section
211(o)(1)(B)(i), (D).
---------------------------------------------------------------------------

    We received comments from stakeholders suggesting that the BBD
volume standard is unique, as it is required to be set 14 months prior
to beginning of the compliance year, in contrast to the advanced
standard which is often modified only a month prior to the compliance
year. These commenters suggested that EPA should therefore increase the
BBD standard to allow for industry to utilize the 14-month notice to
make investments. EPA acknowledges this unique aspect of the BBD
volume, but still believes a volume of 2.43 billion appropriately
provides a floor for guaranteed BBD volume, while also providing space
for other advanced biofuels to compete in the market. Based on our
review of the data, and the nested nature of the BBD standard within
the advanced standard, we conclude that the advanced standard continues
to drive the ultimate volume of BBD supplied. However, given that BBD
has been the predominant source of advanced biofuel in recent years and
the 500 million gallon increase in non-cellulosic advanced biofuel we
are finalizing in this rule, we are setting a volume of 2.43 billion
gallons of BBD for 2020.
    We recognize that the space for other advanced biofuels in 2020
will ultimately depend on the 2020 advanced biofuel volume. While EPA
is not establishing the advanced biofuel volume for 2020 in this
action, we anticipate that the non-cellulosic advanced biofuel volume
for 2020, when established, will be greater than 3.65 billion gallons
(equivalent to 2.43 billion gallons of BBD, after applying the 1.5
equivalence ratio). This expectation is consistent with our actions in
previous years. Accordingly, we expect that the 2020 advanced biofuel
volume, together with the 2020 BBD volume established today, will
continue to preserve a considerable portion of the advanced biofuel
volume that could be satisfied by either additional gallons of BBD or
by other unspecified and potentially less costly types of qualifying
advanced biofuels.

C. Consideration of Statutory Factors Set Forth in CAA Section
211(o)(2)(B)(ii)(I)-(VI) for 2020 and Determination of the 2020
Biomass-Based Diesel Volume

    The BBD volume requirement is nested within the advanced biofuel
requirement, and the advanced biofuel requirement is, in turn, nested
within the total renewable fuel volume requirement.\160\ This means
that any BBD produced beyond the mandated BBD volume can be used to
satisfy both these other applicable volume requirements. The result is
that in considering the statutory factors we must consider the
potential impacts of increasing or decreasing BBD in comparison to
other advanced biofuels.\161\ For a given advanced biofuel standard,
greater or lesser BBD volume requirements do not change the amount of
advanced biofuel used to displace petroleum fuels; rather, increasing
the BBD requirement may result in the displacement of other types of
advanced biofuels that could have been used to meet the advanced
biofuels volume requirement. EPA is increasing the BBD volume for 2020
to 2.43 billion gallons from 2.1 billion gallons in 2019 based on our
review of the statutory factors and the other considerations noted
above and in the 2020 BBD Docket Memorandum. This increase, in
conjunction with the statutory increase of 500 million gallons of non-
cellulosic advanced biofuel in 2019, would preserve a gap for ``other''
advanced biofuels, that is the difference between the advanced biofuel
volume and the sum of the cellulosic biofuel and BBD volumes. This
would allow other advanced biofuels to continue to compete with excess
volumes of BBD for market share under the advanced biofuel standard,
while also supporting further growth in the BBD industry.
---------------------------------------------------------------------------

    \160\ See CAA section 211(o)(2)(B)(i)(IV), (II).
    \161\ While excess BBD production could also displace
conventional renewable fuel under the total renewable standard, as
long as the BBD applicable volume is lower than the advanced biofuel
applicable volume our action in setting the BBD applicable volume is
not expected to displace conventional renewable fuel under the total
renewable standard, but rather other advanced biofuels. We
acknowledge, however, that under certain market conditions excess
volumes of BBD may also be used to displace conventional biofuels.
---------------------------------------------------------------------------

    Consistent with our approach in setting the final BBD volume
requirement for 2019, EPA's primary assessment of the statutory factors
for the 2020 BBD applicable volume is that because the BBD requirement
is nested within the advanced biofuel volume requirement, we expect
that the 2020 advanced volume requirement, when set next year, will
determine the level of BBD use, production and imports that occur in
2020.\162\ Therefore, EPA

continues to believe that approximately the same overall volume of BBD
would likely be supplied in 2020 even if we were to mandate a somewhat
lower or higher BBD volume for 2020 in this final rule. Thus, we do not
expect our 2020 BBD volume requirement to result in a significant
difference in the factors we consider pursuant to CAA section
211(o)(2)(B)(ii)(I)-(VI) in 2020.
---------------------------------------------------------------------------

    \162\ Even though we are not establishing the 2020 advanced
biofuel volume requirement as part of this rulemaking, we expect
that, as in the past, the 2020 advanced volume requirement will be
higher than the 2020 BBD requirement, and, therefore, that the BBD
volume requirement for 2020 would not be expected to impact the
volume of BBD that is actually used, produced and imported during
the 2020-time period.
---------------------------------------------------------------------------

    As an additional assessment, we considered in the 2020 BBD docket
memorandum \163\ the potential impacts on the statutory factors of
selecting an applicable volume of BBD other than 2.43 billion gallons
in 2020 and also in the longer term. While BBD volumes and resulting
impact on the statutory factors found in 211(o)(2)(B)(ii), will not
likely be significantly impacted by the 2020 BBD standard in the short
term, leaving room for growth of other advanced could have a beneficial
impact on certain statutory factors in the long term. Even if BBD
volumes were to be impacted by the 2020 BBD standard, setting a
requirement higher or lower than 2.43 billion gallons in 2020 would
only be expected to affect BBD volumes and the statutory factors found
in CAA section 211(o)(2)(B)(ii)(I)-(VI) minimally in 2020. However, we
find that over a longer timeframe, providing support for other advanced
biofuels could have beneficial effects for a number of the statutory
factors.
---------------------------------------------------------------------------

    \163\ ``Memorandum to docket: Statutory Factors Assessment for
the 2020 Biomass-Based Diesel (BBD) Applicable Volumes.'' See Docket
EPA-HQ-OAR-2018-0167.
---------------------------------------------------------------------------

    With the considerations discussed above in mind, as well as our
analysis of the factors specified in the statute, we are setting the
applicable volume of BBD at 2.43 billion gallons for 2020. This
increase, in conjunction with the statutory increase of 500 million
gallons of non-cellulosic advanced biofuel in 2019, would continue to
preserve a significant gap between the advanced biofuel volume and the
sum of the cellulosic biofuel and BBD volumes. This would allow other
advanced biofuels to continue to compete with excess volumes of BBD for
market share under the advanced biofuel standard. We believe this
volume sets the appropriate floor for BBD, and that the volume of
advanced biodiesel and renewable diesel actually used in 2020 will be
driven by the level of the advanced biofuel and total renewable fuel
standards that the Agency will establish for 2020. It also recognizes
that while maintaining an opportunity for other advanced biofuels is
important, the vast majority of the advanced biofuel used to comply
with the advanced biofuel standard in recent years has been BBD. Based
on information now available from 2016 and 2017, despite providing a
significant degree of space for ``other'' advanced biofuels, smaller
volumes of ``other'' advanced have been utilized to meet the advanced
standard. EPA believes that the BBD standard we are finalizing today
still provides sufficient incentive to producers of ``other'' advanced
biofuels, while also acknowledging that the advanced standard has been
met predominantly with biomass-based diesel. Our assessment of the
required statutory factors, as well as the implementation of the
program, supports a volume of 2.43 billion gallons.

VII. Percentage Standards for 2019

    The renewable fuel standards are expressed as volume percentages
and are used by each obligated party to determine their Renewable
Volume Obligations (RVOs). Since there are four separate standards
under the RFS program, there are likewise four separate RVOs applicable
to each obligated party. Each standard applies to the sum of all non-
renewable gasoline and diesel produced or imported.
    Sections II through V provide our rationale and basis for the final
volume requirements for 2019.\164\ The volumes used to determine the
percentage standards are shown in Table VII-1.
---------------------------------------------------------------------------

    \164\ The 2019 volume requirement for BBD was established in the
2018 final rule.

  Table VII-1--Volumes for Use in Determining the Final 2019 Applicable
                          Percentage Standards
------------------------------------------------------------------------

------------------------------------------------------------------------
Cellulosic biofuel.............  Million ethanol-                    418
                                  equivalent gallons.
Biomass-based diesel...........  Billion gallons........             2.1
Advanced biofuel...............  Billion ethanol-                   4.92
                                  equivalent gallons.
Renewable fuel.................  Billion ethanol-                  19.92
                                  equivalent gallons.
------------------------------------------------------------------------

    For the purposes of converting these volumes into percentage
standards, we generally use two decimal places to be consistent with
the volume targets as given in the statute, and similarly two decimal
places in the percentage standards. However, for cellulosic biofuel we
use three decimal places in both the volume requirement and percentage
standards to more precisely capture the smaller volume projections and
the unique methodology that in some cases results in estimates of only
a few million gallons for a single producer.

A. Calculation of Percentage Standards

    To calculate the percentage standards, we are following the same
methodology for 2019 as we have in all prior years. The formulas used
to calculate the percentage standards applicable to producers and
importers of gasoline and diesel are provided in 40 CFR 80.1405. The
formulas rely on estimates of the volumes of gasoline and diesel fuel,
for both highway and nonroad uses, which are projected to be used in
the year in which the standards will apply. The projected gasoline and
diesel volumes are provided by EIA, and include projections of ethanol
and biodiesel used in transportation fuel. Since the percentage
standards apply only to the non-renewable gasoline and diesel produced
or imported, the volumes of renewable fuel are subtracted out of the
EIA projections of gasoline and diesel.
    Transportation fuels other than gasoline or diesel, such as natural
gas, propane, and electricity from fossil fuels, are not currently
subject to the standards, and volumes of such fuels are not used in
calculating the annual percentage standards. Since under the
regulations the standards apply only to producers and importers of
gasoline and diesel, these are the transportation fuels used to set the
percentage standards, as well as to determine the annual volume
obligations of an individual gasoline or diesel producer or importer
under 40 CFR 80.1407.
    As specified in the RFS2 final rule,\165\ the percentage standards
are based on energy-equivalent gallons of renewable fuel, with the
cellulosic biofuel, advanced biofuel, and total renewable fuel
standards based on ethanol equivalence and the BBD standard based on
biodiesel equivalence. However, all RIN generation is based on ethanol-
equivalence. For example, the

RFS regulations provide that production or import of a gallon of
qualifying biodiesel will lead to the generation of 1.5 RINs. The
formula specified in the regulations for calculation of the BBD
percentage standard is based on biodiesel-equivalence, and thus assumes
that all BBD used to satisfy the BBD standard is biodiesel and requires
that the applicable volume requirement be multiplied by 1.5 in order to
calculate a percentage standard that is on the same basis (i.e.,
ethanol-equivalent) as the other three standards. However, BBD often
contains some renewable diesel, and a gallon of renewable diesel
typically generates 1.7 RINs.\166\ In addition, there is often some
renewable diesel in the conventional renewable fuel pool. As a result,
the actual number of RINs generated by biodiesel and renewable diesel
is used in the context of our assessment of the applicable volume
requirements and associated percentage standards for advanced biofuel
and total renewable fuel, and likewise in obligated parties'
determination of compliance with any of the applicable standards. While
there is a difference in the treatment of biodiesel and renewable
diesel in the context of determining the percentage standard for BBD
versus determining the percentage standard for advanced biofuel and
total renewable fuel, it is not a significant one given our approach to
determining the BBD volume requirement. Our intent in setting the BBD
applicable volume is to provide a level of guaranteed volume for BBD,
but as described in Section VI.B, we do not expect the BBD standard to
be binding in 2019. That is, we expect that actual supply of BBD, as
well as supply of conventional biodiesel and renewable diesel, will be
driven by the advanced biofuel and total renewable fuel standards.
---------------------------------------------------------------------------

    \165\ See 75 FR 14670 (March 26, 2010).
    \166\ Under 40 CFR 80.1415(b)(4), renewable diesel with a lower
heating value of at least 123,500 Btu/gallon is assigned an
equivalence value of 1.7. A minority of renewable diesel has a lower
heating value below 123,500 BTU/gallon and is therefore assigned an
equivalence value of 1.5 or 1.6 based on applications submitted
under 40 CFR 80.1415(c)(2).
---------------------------------------------------------------------------

B. Small Refineries and Small Refiners

    In CAA section 211(o)(9), enacted as part of the Energy Policy Act
of 2005, and amended by the Energy Independence and Security Act of
2007, Congress provided a temporary exemption to small refineries \167\
through December 31, 2010. Congress provided that small refineries
could receive a temporary extension of the exemption beyond 2010 based
either on the results of a required DOE study, or based on an EPA
determination of ``disproportionate economic hardship'' on a case-by-
case basis in response to small refinery petitions. In reviewing
petitions, EPA, in consultation with the Department of Energy,
determines whether the small refinery has demonstrated disproportionate
economic hardship, and may grant refineries exemptions upon such
demonstration.
---------------------------------------------------------------------------

    \167\ A small refiner that meets the requirements of 40 CFR
80.1442 may also be eligible for an exemption.
---------------------------------------------------------------------------

    EPA has granted exemptions pursuant to this process in the past.
However, at this time no exemptions have been approved for 2019, and
therefore we have calculated the percentage standards for 2019 without
any adjustment for exempted volumes. We are maintaining our approach
that any exemptions for 2019 that are granted after the final rule is
released will not be reflected in the percentage standards that apply
to all gasoline and diesel produced or imported in 2019.

C. Final Standards

    The formulas in 40 CFR 80.1405 for the calculation of the
percentage standards require the specification of a total of 14
variables covering factors such as the renewable fuel volume
requirements, projected gasoline and diesel demand for all states and
territories where the RFS program applies, renewable fuels projected by
EIA to be included in the gasoline and diesel demand, and exemptions
for small refineries. The values of all the variables used for this
final rule are shown in Table VII.C-1.\168\
---------------------------------------------------------------------------

    \168\ To determine the 49-state values for gasoline and diesel,
the amount of these fuels used in Alaska is subtracted from the
totals provided by EIA because petroleum-based fuels used in Alaska
do not incur RFS obligations. The Alaska fractions are determined
from the June 29, 2018 EIA State Energy Data System (SEDS), Energy
Consumption Estimates.

    Table VII.C-1--Values for Terms in Calculation of the Final 2019
                             Standards \169\
                            [Billion gallons]
------------------------------------------------------------------------
              Term                     Description             Value
------------------------------------------------------------------------
RFVCB..........................  Required volume of                0.418
                                  cellulosic biofuel.
RFVBBD.........................  Required volume of                 2.10
                                  biomass-based diesel.
RFVAB..........................  Required volume of                 4.92
                                  advanced biofuel.
RFVRF..........................  Required volume of                19.92
                                  renewable fuel.
G..............................  Projected volume of              142.62
                                  gasoline.
D..............................  Projected volume of               56.31
                                  diesel.
RG.............................  Projected volume of               14.53
                                  renewables in gasoline.
RD.............................  Projected volume of                2.75
                                  renewables in diesel.
GS.............................  Projected volume of                   0
                                  gasoline for opt-in
                                  areas.
RGS............................  Projected volume of                   0
                                  renewables in gasoline
                                  for opt-in areas.
DS.............................  Projected volume of                   0
                                  diesel for opt-in
                                  areas.
RDS............................  Projected volume of                   0
                                  renewables in diesel
                                  for opt-in areas.
GE.............................  Projected volume of                0.00
                                  gasoline for exempt
                                  small refineries.
DE.............................  Projected volume of                0.00
                                  diesel for exempt
                                  small refineries.
------------------------------------------------------------------------

    Projected volumes of gasoline and diesel, and the renewable fuels
contained within them, were provided by EIA in a letter to EPA that is
required under the statute, and represent consumption values from the
October 2018 version of EIA's Short-Term Energy Outlook.\170\
---------------------------------------------------------------------------

    \169\ See ``Calculation of final % standards for 2019'' in
docket EPA-HQ-OAR-2018-0167.
    \170\ ``EIA letter to EPA with 2019 volume projections 10-12-
18,'' available in docket EPA-HQ-OAR-2018-0167.
---------------------------------------------------------------------------

    Using the volumes shown in Table VII.C-1, we have calculated the
final percentage standards for 2019 as shown in Table VII.C-2.

           Table VII.C-2--Final Percentage Standards for 2019
------------------------------------------------------------------------

------------------------------------------------------------------------
Cellulosic biofuel......................................           0.230
Biomass-based diesel....................................            1.73
Advanced biofuel........................................            2.71

Renewable fuel..........................................           10.97
------------------------------------------------------------------------

VIII. Administrative Actions

A. Assessment of the Domestic Aggregate Compliance Approach

    The RFS regulations specify an ``aggregate compliance'' approach
for demonstrating that planted crops and crop residue from the U.S.
complies with the ``renewable biomass'' requirements that address lands
from which qualifying feedstocks may be harvested.\171\ In the 2010
RFS2 rulemaking, EPA established a baseline number of acres for U.S.
agricultural land in 2007 (the year of EISA enactment) and determined
that as long as this baseline number of acres was not exceeded, it was
unlikely that new land outside of the 2007 baseline would be devoted to
crop production based on historical trends and economic considerations.
The regulations specify, therefore, that renewable fuel producers using
planted crops or crop residue from the U.S. as feedstock in renewable
fuel production need not undertake individual recordkeeping and
reporting related to documenting that their feedstocks come from
qualifying lands, unless EPA determines through one of its annual
evaluations that the 2007 baseline acreage of 402 million acres
agricultural land has been exceeded.
---------------------------------------------------------------------------

    \171\ 40 CFR 80.1454(g).
---------------------------------------------------------------------------

    In the 2010 RFS2 rulemaking, EPA committed to make an annual
finding concerning whether the 2007 baseline amount of U.S.
agricultural land has been exceeded in a given year. If the baseline is
found to have been exceeded, then producers using U.S. planted crops
and crop residue as feedstocks for renewable fuel production would be
required to comply with individual recordkeeping and reporting
requirements to verify that their feedstocks are renewable biomass.
    The Aggregate Compliance methodology provided for the exclusion of
acreage enrolled in the Grassland Reserve Program (GRP) and the
Wetlands Reserve Program (WRP) from the estimated total U.S.
agricultural land. However, the 2014 Farm Bill terminated the GRP and
WRP as of 2013 and USDA established the Agriculture Conservation
Easement Program (ACEP) with wetlands and land easement components. The
ACEP is a voluntary program that provides financial and technical
assistance to help conserve agricultural lands and wetlands and their
related benefits. Under the Agricultural Land Easements (ACEP-ALE)
component, USDA helps Indian tribes, state and local governments, and
non-governmental organizations protect working agricultural lands and
limit non-agricultural uses of the land. Under the Wetlands Reserve
Easements (ACEP-WRE) component, USDA helps to restore, protect and
enhance enrolled wetlands. The WRP was a voluntary program that offered
landowners the opportunity to protect, restore, and enhance wetlands on
their property. The GRP was a voluntary conservation program that
emphasized support for working grazing operations, enhancement of plant
and animal biodiversity, and protection of grassland under threat of
conversion to other uses.
    USDA and EPA concur that the ACEP-WRE and ACEP-ALE represent a
continuation in basic objectives and goals of the original WRP and GRP.
Therefore, in preparing this year's assessment of the total U.S. acres
of agricultural land, the acreage enrolled in the ACEP-WRE and ACEP-ALE
was excluded.
    Based on data provided by the USDA Farm Service Agency (FSA) and
Natural Resources Conservation Service (NRCS), we have estimated that
U.S. agricultural land reached approximately 381 million acres in 2018,
and thus did not exceed the 2007 baseline acreage. This acreage
estimate is based on the same methodology used to set the 2007 baseline
acreage for U.S. agricultural land in the RFS2 final rulemaking, with
the GRP and WRP substitution as noted above. Specifically, we started
with FSA crop history data for 2018, from which we derived a total
estimated acreage of 381,694,332 acres. We then subtracted the ACEP-ALE
and ACEP-WRE enrolled areas by the end of Fiscal Year 2018, 798,023
acres, to yield an estimate of 380,896,309 acres or approximately 381
million acres of U.S. agricultural land in 2018. The USDA data used to
make this derivation can be found in the docket to this
rule.172 173
---------------------------------------------------------------------------

    \172\ USDA also provided EPA with 2018 data from the
discontinued GRP and WRP programs. Given this data, EPA estimated
the total U.S. agricultural land both including and omitting the GRP
and WRP acreage. In 2018, combined land under GRP and WRP totaled
2,975,165 acres. Subtracting the GRP, WRP, ACEP-WRE, and ACEP-ALE
acreage yields an estimate of 377,921,144 acres or approximately 378
million total acres of U.S. agricultural land in 2018. Omitting the
GRP and WRP data yields approximately 381 million acres of U.S.
agricultural land in 2018.
    \173\ In providing the 2018 agricultural land data to EPA, USDA
provided updated data from 2017. An explanation of this data and a
revised estimate of 2017 total U.S. agricultural land can be found
in the docket to this rule.
---------------------------------------------------------------------------

B. Assessment of the Canadian Aggregate Compliance Approach

    The RFS regulations specify a petition process through which EPA
may approve the use of an aggregate compliance approach for planted
crops and crop residue from foreign countries.\174\ On September 29,
2011, EPA approved such a petition from the Government of Canada.
---------------------------------------------------------------------------

    \174\ 40 CFR 80.1457.
---------------------------------------------------------------------------

    The total agricultural land in Canada in 2018 is estimated at 118.5
million acres; below the 2007 baseline of 123 million acres. This total
agricultural land area includes 96.3 million acres of cropland and
summer fallow, 12.4 million acres of pastureland and 9.8 million acres
of agricultural land under conservation practices. This acreage
estimate is based on the same methodology used to set the 2007 baseline
acreage for Canadian agricultural land in EPA's response to Canada's
petition. The data used to make this calculation can be found in the
docket to this rule.

IX. Public Participation

    Many interested parties participated in the rulemaking process that
culminates with this final rule. This process provided opportunity for
submitting written public comments following the proposal that we
published on July 3, 2018 (83 FR 31098), and we also held a public
hearing on July 18, 2018, at which many parties provided both verbal
and written testimony. All comments received, both verbal and written,
are available in Docket ID No. EPA-HQ-OAR-2018-0167 and we considered
these comments in developing the final rule. Public comments and EPA
responses are discussed throughout this preamble and in the
accompanying RTC document, which is available in the docket for this
action.

X. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review

    This action is an economically significant regulatory action that
was submitted to the Office of Management and Budget (OMB) for review.
Any changes made in response to OMB recommendations have been
documented in the docket. EPA prepared an analysis of illustrative
costs associated with this action. This analysis is presented in
Section V of this preamble.

B. Executive Order 13771: Reducing Regulations and Controlling
Regulatory Costs

    This action is considered an Executive Order 13771 regulatory
action. Details on the estimated costs of this final rule can be found
in EPA's analysis of the illustrative costs associated with this
action. This analysis is presented in Section V of this preamble.

C. Paperwork Reduction Act (PRA)

    This action does not impose any new information collection burden
under the PRA. OMB has previously approved the information collection
activities contained in the existing regulations and has assigned OMB
control numbers 2060-0637 and 2060-0640. The final standards will not
impose new or different reporting requirements on regulated parties
than already exist for the RFS program.

D. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA. In
making this determination, the impact of concern is any significant
adverse economic impact on small entities. An agency may certify that a
rule will not have a significant economic impact on a substantial
number of small entities if the rule relieves regulatory burden, has no
net burden, or otherwise has a positive economic effect on the small
entities subject to the rule.
    The small entities directly regulated by the RFS program are small
refiners, which are defined at 13 CFR 121.201. We have evaluated the
impacts of this final rule on small entities from two perspectives: As
if the 2019 standards were a standalone action or if they are a part of
the overall impacts of the RFS program as a whole.
    When evaluating the standards as if they were a standalone action
separate and apart from the original rulemaking which established the
RFS2 program, then the standards could be viewed as increasing the
cellulosic biofuel volume by 130 million gallons and the advanced
biofuel and total renewable fuel volume requirements by 630 million
gallons between 2018 and 2019. To evaluate the impacts of the volume
requirements on small entities relative to 2018, we have conducted a
screening analysis \175\ to assess whether we should make a finding
that this action will not have a significant economic impact on a
substantial number of small entities. Currently available information
shows that the impact on small entities from implementation of this
rule will not be significant. We have reviewed and assessed the
available information, which shows that obligated parties, including
small entities, are generally able to recover the cost of acquiring the
RINs necessary for compliance with the RFS standards through higher
sales prices of the petroleum products they sell than would be expected
in the absence of the RFS program.\176\ This is true whether they
acquire RINs by purchasing renewable fuels with attached RINs or
purchase separated RINs. The costs of the RFS program are thus
generally being passed on to consumers in the highly competitive
marketplace. Even if we were to assume that the cost of acquiring RINs
were not recovered by obligated parties, and we used the maximum values
of the illustrative costs discussed in Section V of this preamble and
the gasoline and diesel fuel volume projections and wholesale prices
from the October 2018 version of EIA's Short-Term Energy Outlook, and
current wholesale fuel prices, a cost-to-sales ratio test shows that
the costs to small entities of the RFS standards are far less than 1
percent of the value of their sales.
---------------------------------------------------------------------------

    \175\ ``Screening Analysis for the Final Renewable Fuel
Standards for 2019,'' memorandum from Dallas Burkholder, Nick
Parsons, and Tia Sutton to EPA Air Docket EPA-HQ-OAR-2018-0167.
    \176\ For a further discussion of the ability of obligated
parties to recover the cost of RINs see ``Denial of Petitions for
Rulemaking to Change the RFS Point of Obligation,'' EPA-420-R-17-
008, November 2017.
---------------------------------------------------------------------------

    While the screening analysis described above supports a
certification that this rule will not have a significant economic
impact on small refiners, we continue to believe that it is more
appropriate to consider the standards as a part of ongoing
implementation of the overall RFS program. When considered this way,
the impacts of the RFS program as a whole on small entities were
addressed in the RFS2 final rule, which was the rule that implemented
the entire program as required by EISA 2007.\177\ As such, the Small
Business Regulatory Enforcement Fairness Act (SBREFA) panel process
that took place prior to the 2010 rule was also for the entire RFS
program and looked at impacts on small refiners through 2022.
---------------------------------------------------------------------------

    \177\ 75 FR 14670 (March 26, 2010).
---------------------------------------------------------------------------

    For the SBREFA process for the RFS2 final rule, we conducted
outreach, fact-finding, and analysis of the potential impacts of the
program on small refiners, which are all described in the Final
Regulatory Flexibility Analysis, located in the rulemaking docket (EPA-
HQ-OAR-2005-0161). This analysis looked at impacts to all refiners,
including small refiners, through the year 2022 and found that the
program would not have a significant economic impact on a substantial
number of small entities, and that this impact was expected to decrease
over time, even as the standards increased. For gasoline and/or diesel
small refiners subject to the standards, the analysis included a cost-
to-sales ratio test, a ratio of the estimated annualized compliance
costs to the value of sales per company. From this test, we estimated
that all directly regulated small entities would have compliance costs
that are less than one percent of their sales over the life of the
program (75 FR 14862, March 26, 2010).
    We have determined that this final rule will not impose any
additional requirements on small entities beyond those already
analyzed, since the impacts of this rule are not greater or
fundamentally different than those already considered in the analysis
for the RFS2 final rule assuming full implementation of the RFS
program. This final rule increases the 2019 cellulosic biofuel volume
requirement by 130 million gallons and the advanced biofuel and total
renewable fuel volume requirements by 630 million gallons relative to
the 2018 volume requirements, but those volumes remain significantly
below the statutory volume targets analyzed in the RFS2 final rule.
Compared to the burden that would be imposed under the volumes that we
assessed in the screening analysis for the RFS2 final rule (i.e., the
volumes specified in the Clean Air Act), the volume requirements
proposed in this rule reduce burden on small entities. Regarding the
BBD standard, we are increasing the volume requirement for 2020 by 330
million gallons relative to the 2019 volume requirement we finalized in
the 2018 final rule. While this volume is an increase over the
statutory minimum value of 1 billion gallons, the BBD standard is a
nested standard within the advanced biofuel category, which we are
significantly reducing from the statutory volume targets. As discussed
in Section VI, we are setting the 2020 BBD volume requirement at a
level below what is anticipated will be produced and used to satisfy
the reduced advanced biofuel requirement. The net result of the
standards being finalized in this action is a reduction in burden as
compared to implementation of the statutory volume targets as was
assumed in the RFS2 final rule analysis.
    While the rule will not have a significant economic impact on a
substantial number of small entities, there are compliance
flexibilities in the program that can help to reduce impacts

on small entities. These flexibilities include being able to comply
through RIN trading rather than renewable fuel blending, 20 percent RIN
rollover allowance (up to 20 percent of an obligated party's RVO can be
met using previous-year RINs), and deficit carry-forward (the ability
to carry over a deficit from a given year into the following year,
providing that the deficit is satisfied together with the next year's
RVO). In the RFS2 final rule, we discussed other potential small entity
flexibilities that had been suggested by the SBREFA panel or through
comments, but we did not adopt them, in part because we had serious
concerns regarding our authority to do so.
    Additionally, we realize that there may be cases in which a small
entity may be in a difficult financial situation and the level of
assistance afforded by the program flexibilities is insufficient. For
such circumstances, the program provides hardship relief provisions for
small entities (small refiners), as well as for small refineries.\178\
As required by the statute, the RFS regulations include a hardship
relief provision (at 40 CFR 80.1441(e)(2)) that allows for a small
refinery to petition for an extension of its small refinery exemption
at any time based on a showing that the refinery is experiencing a
``disproportionate economic hardship.'' EPA regulations provide similar
relief to small refiners that are not eligible for small refinery
relief (see 40 CFR 80.1442(h)). EPA has currently identified a total of
9 small refiners that own 11 refineries subject to the RFS program, all
of which are also small refineries.
---------------------------------------------------------------------------

    \178\ See CAA section 211(o)(9)(B).
---------------------------------------------------------------------------

    We evaluate these petitions on a case-by-case basis and may approve
such petitions if it finds that a disproportionate economic hardship
exists. In evaluating such petitions, we consult with the U.S.
Department of Energy and consider the findings of DOE's 2011 Small
Refinery Study and other economic factors. To date, EPA has adjudicated
petitions for exemption from 29 small refineries for the 2017 RFS
standards (8 of which were owned by a small refiner).\179\
---------------------------------------------------------------------------

    \179\ EPA is currently evaluating 7 additional 2017 petitions (1
of which is owned by a small refiner) and 15 additional 2018
petitions (7 of which are owned by a small refiner), bringing the
total number of petitions for 2017 to 36 and for 2018 to 15. More
information on Small Refinery Exemptions is available on EPA's
public website at: https://www.epa.gov/fuels-registration-reporting-and-compliance-help/rfs-small-refinery-exemptions.
---------------------------------------------------------------------------

    In sum, this final rule will not change the compliance
flexibilities currently offered to small entities under the RFS program
(including the small refinery hardship provisions we continue to
implement) and available information shows that the impact on small
entities from implementation of this rule will not be significant
viewed either from the perspective of it being a standalone action or a
part of the overall RFS program. We have therefore concluded that this
action will have no net regulatory burden for directly regulated small
entities.

E. Unfunded Mandates Reform Act (UMRA)

    This action does not contain an unfunded mandate of $100 million or
more as described in UMRA, 2 U.S.C. 1531-1538, and does not
significantly or uniquely affect small governments. This action
implements mandates specifically and explicitly set forth in CAA
section 211(o) and we believe that this action represents the least
costly, most cost-effective approach to achieve the statutory
requirements.

F. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have
substantial direct effects on the states, on the relationship between
the national government and the states, or on the distribution of power
and responsibilities among the various levels of government.

G. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments

    This action does not have tribal implications as specified in
Executive Order 13175. This action will be implemented at the Federal
level and affects transportation fuel refiners, blenders, marketers,
distributors, importers, exporters, and renewable fuel producers and
importers. Tribal governments will be affected only to the extent they
produce, purchase, or use regulated fuels. Thus, Executive Order 13175
does not apply to this action.

H. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks

    EPA interprets Executive Order 13045 as applying only to those
regulatory actions that concern environmental health or safety risks
that EPA has reason to believe may disproportionately affect children,
per the definition of ``covered regulatory action'' in section 2-202 of
the Executive Order. This action is not subject to Executive Order
13045 because it implements specific standards established by Congress
in statutes (CAA section 211(o)) and does not concern an environmental
health risk or safety risk.

I. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use

    This action is not a ``significant energy action'' because it is
not likely to have a significant adverse effect on the supply,
distribution, or use of energy. This action establishes the required
renewable fuel content of the transportation fuel supply for 2019,
consistent with the CAA and waiver authorities provided therein. The
RFS program and this rule are designed to achieve positive effects on
the nation's transportation fuel supply, by increasing energy
independence and security and lowering lifecycle GHG emissions of
transportation fuel.

J. National Technology Transfer and Advancement Act (NTTAA)

    This rulemaking does not involve technical standards.

K. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations

    EPA believes that this action does not have disproportionately high
and adverse human health or environmental effects on minority
populations, low income populations, and/or indigenous peoples, as
specified in Executive Order 12898 (59 FR 7629, February 16, 1994).
This regulatory action does not affect the level of protection provided
to human health or the environment by applicable air quality standards.
This action does not relax the control measures on sources regulated by
the RFS regulations and therefore will not cause emissions increases
from these sources.

L. Congressional Review Act (CRA)

    This action is subject to the CRA, and EPA will submit a rule
report to each House of the Congress and to the Comptroller General of
the United States. This action is a ``major rule'' as defined by 5
U.S.C. 804(2).

XI. Statutory Authority

    Statutory authority for this action comes from section 211 of the
Clean Air Act, 42 U.S.C. 7545. Additional support for the procedural
and compliance related aspects of this final rule comes from sections
114, 208, and 301(a) of the Clean Air Act, 42 U.S.C. 7414, 7542, and
7601(a).

List of Subjects in 40 CFR Part 80

    Environmental protection, Administrative practice and procedure,
Air pollution control, Diesel fuel, Fuel additives, Gasoline, Imports,
Oil imports, Petroleum, Renewable fuel.

    Dated: November 30, 2018.
Andrew R. Wheeler,
Acting Administrator.

    For the reasons set forth in the preamble, EPA is amending 40 CFR
part 80 as follows:

PART 80--REGULATION OF FUELS AND FUEL ADDITIVES

0
1. The authority citation for part 80 continues to read as follows:

    Authority: 42 U.S.C. 7414, 7521, 7542, 7545, and 7601(a).

Subpart M--Renewable Fuel Standard

0
2. Section 80.1405 is amended by adding paragraph (a)(10) to read as
follows:

Sec.  80.1405  What are the Renewable Fuel Standards?

    (a) * * *
    (10) Renewable Fuel Standards for 2019.
    (i) The value of the cellulosic biofuel standard for 2019 shall be
0.230 percent.
    (ii) The value of the biomass-based diesel standard for 2019 shall
be 1.73 percent.
    (iii) The value of the advanced biofuel standard for 2019 shall be
2.71 percent.
    (iv) The value of the renewable fuel standard for 2019 shall be
10.97 percent.
* * * * *
[FR Doc. 2018-26566 Filed 12-10-18; 8:45 am]
BILLING CODE 6560-50-P


[Federal Register Volume 88, Number 42 (Friday, March 3, 2023)]
[Rules and Regulations]
[Pages 13303-13306]
[FR Doc No: 2023-04254]

-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 39

[Docket No. FAA-2023-0168; Project Identifier MCAI-2022-00553-T;
Amendment 39-22350; AD 2023-04-03]
RIN 2120-AA64

Airworthiness Directives; Fokker Services B.V. Airplanes

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Final rule; request for comments.

-----------------------------------------------------------------------

SUMMARY: The FAA is adopting a new airworthiness directive (AD) for all
Fokker Services B.V. Model F28 Mark 0070 and 0100 airplanes. This AD
was prompted by reports of cracks at the upper and lower fastener holes
of a repair plate in the stubwing, which had been applied to repair
heat damage. This AD requires a one-time inspection of the fuselage
skin in the stubwing bay area to determine if a heat damage repair
plate is installed, an inspection of repaired areas for cracking, and
applicable corrective actions, as specified in a European Union
Aviation Safety Agency (EASA) AD, which is incorporated by reference.
The FAA is issuing this AD to address the unsafe condition on these
products.

DATES: This AD becomes effective March 20, 2023.
    The Director of the Federal Register approved the incorporation by
reference of a certain publication listed in this AD as of March 20,
2023.
    The FAA must receive comments on this AD by April 17, 2023.

ADDRESSES: You may send comments, using the procedures found in 14 CFR
11.43 and 11.45, by any of the following methods:
     Federal eRulemaking Portal: Go to regulations.gov. Follow
the instructions for submitting comments.
     Fax:<PHONE_NUMBER>.
     Mail: U.S. Department of Transportation, Docket
Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New
Jersey Avenue SE, Washington, DC 20590.
     Hand Delivery: Deliver to Mail address above between 9
a.m. and 5 p.m., Monday through Friday, except Federal holidays.
    AD Docket: You may examine the AD docket at regulations.gov under
Docket No. FAA-2023-0168; or in person at Docket Operations between 9
a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD
docket contains this AD, the mandatory continuing airworthiness
information (MCAI), any comments received, and other information. The
street address for Docket Operations is listed above.
    Material Incorporated by Reference:
     For EASA material incorporated by reference (IBR) in this
AD, contact EASA, Konrad-Adenauer-Ufer 3, 50668 Cologne, Germany;
telephone +49 221 8999 000; email [email protected]; website
easa.europa.eu. You may find this material on the EASA website at
ad.easa.europa.eu.
     You may view this service information at the FAA,
Airworthiness Products Section, Operational Safety Branch, 2200 South
216th St., Des Moines, WA. For information on the availability of this
material at the FAA, call<PHONE_NUMBER>.

FOR FURTHER INFORMATION CONTACT: Dan Rodina, Aerospace Engineer, Large
Aircraft Section, FAA, International Validation Branch, 3960 Paramount
Boulevard, Lakewood, CA 90712-4137; telephone<PHONE_NUMBER>; email
[email protected].

SUPPLEMENTARY INFORMATION:

Comments Invited

    The FAA invites you to send any written data, views, or arguments
about this final rule. Send your comments to an address listed under
ADDRESSES. Include ``Docket No. FAA-2023-0168; Project Identifier MCAI-
2022-00553-T'' at the beginning of your comments. The most helpful
comments reference a specific portion of the final rule, explain the
reason for any recommended change, and include supporting data. The FAA
will consider all comments received by the closing date and may amend
this final rule because of those comments.
    Except for Confidential Business Information (CBI) as described in
the following paragraph, and other

information as described in 14 CFR 11.35, the FAA will post all
comments received, without change, to regulations.gov, including any
personal information you provide. The agency will also post a report
summarizing each substantive verbal contact received about this final
rule.

Confidential Business Information

    CBI is commercial or financial information that is both customarily
and actually treated as private by its owner. Under the Freedom of
Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public
disclosure. If your comments responsive to this AD contain commercial
or financial information that is customarily treated as private, that
you actually treat as private, and that is relevant or responsive to
this AD, it is important that you clearly designate the submitted
comments as CBI. Please mark each page of your submission containing
CBI as ``PROPIN.'' The FAA will treat such marked submissions as
confidential under the FOIA, and they will not be placed in the public
docket of this AD. Submissions containing CBI should be sent to Dan
Rodina, Aerospace Engineer, Large Aircraft Section, FAA, International
Validation Branch, 3960 Paramount Boulevard, Lakewood, CA 90712-4137;
telephone<PHONE_NUMBER>; email [email protected]. Any commentary that
the FAA receives which is not specifically designated as CBI will be
placed in the public docket for this rulemaking.

Background

    EASA, which is the Technical Agent for the Member States of the
European Union, has issued EASA AD 2022-0070, dated April 21, 2022
(EASA AD 2022-0070) (also referred to as the MCAI), to correct an
unsafe condition for all Fokker Services B.V. Model F28 Mark 0070 and
0100 airplanes. The MCAI states that cracks have been reported at the
upper and lower fastener holes of a repair plate, located within the
boundaries of the stubwing, which had been applied to repair heat
damage. The cracks were found about 32,000 flight cycles after the
repair plate was installed--earlier than expected, suggesting reduced
resistance to crack growth due to overheated aluminum. This condition,
if not detected and corrected, could lead to reduced structural
integrity of the airplane. You may examine the MCAI in the AD docket at
regulations.gov under Docket No. FAA-2023-0168.

Related Service Information Under 1 CFR Part 51

    EASA AD 2022-0070 specifies procedures for a one-time inspection of
the fuselage skin in the stubwing bay area to determine whether a heat
damage repair plate is installed within the boundaries of the stubwing.
EASA AD 2022-0070 also specifies procedures for a high-frequency eddy-
current (HFEC) inspection for cracks of any repaired area, damage
tolerance inspections, crack repair, and reporting of inspection
results to Fokker. This material is reasonably available because the
interested parties have access to it through their normal course of
business or by the means identified in the ADDRESSES section.

FAA's Determination

    This product has been approved by the aviation authority of another
country and is approved for operation in the United States. Pursuant to
the FAA's bilateral agreement with this State of Design Authority, it
has notified the FAA of the unsafe condition described in the MCAI
described above. The FAA is issuing this AD after determining that the
unsafe condition described previously is likely to exist or develop on
other products of the same type design.

Requirements of This AD

    This AD requires accomplishing the actions specified in EASA AD
2022-0070 described previously, except for any differences identified
as exceptions in the regulatory text of this AD.

Explanation of Required Compliance Information

    In the FAA's ongoing efforts to improve the efficiency of the AD
process, the FAA developed a process to use some civil aviation
authority (CAA) ADs as the primary source of information for compliance
with requirements for corresponding FAA ADs. The FAA has been
coordinating this process with manufacturers and CAAs. As a result,
EASA AD 2022-0070 is incorporated by reference in this AD. This AD
requires compliance with EASA AD 2022-0070 in its entirety through that
incorporation, except for any differences identified as exceptions in
the regulatory text of this AD. Using common terms that are the same as
the heading of a particular section in EASA AD 2022-0070 does not mean
that operators need comply only with that section. For example, where
the AD requirement refers to ``all required actions and compliance
times,'' compliance with this AD requirement is not limited to the
section titled ``Required Action(s) and Compliance Time(s)'' in EASA AD
2022-0070. Service information required by EASA AD 2022-0070 for
compliance will be available at regulations.gov under Docket No. FAA-
2023-0168 after this AD is published.

FAA's Justification and Determination of the Effective Date

    Section 553(b)(3)(B) of the Administrative Procedure Act (APA) (5
U.S.C. 551 et seq.) authorizes agencies to dispense with notice and
comment procedures for rules when the agency, for ``good cause,'' finds
that those procedures are ``impracticable, unnecessary, or contrary to
the public interest.'' Under this section, an agency, upon finding good
cause, may issue a final rule without providing notice and seeking
comment prior to issuance. Further, section 553(d) of the APA
authorizes agencies to make rules effective in less than thirty days,
upon a finding of good cause.
    There are currently no domestic operators of these products.
Accordingly, notice and opportunity for prior public comment are
unnecessary, pursuant to 5 U.S.C. 553(b)(3)(B). In addition, for the
forgoing reason(s), the FAA finds that good cause exists pursuant to 5
U.S.C. 553(d) for making this amendment effective in less than 30 days.

Regulatory Flexibility Act (RFA)

    The requirements of the RFA do not apply when an agency finds good
cause pursuant to 5 U.S.C. 553 to adopt a rule without prior notice and
comment. Because the FAA has determined that it has good cause to adopt
this rule without notice and comment, RFA analysis is not required.

Costs of Compliance

    Currently, there are no affected U.S.-registered airplanes. If an
affected airplane is imported and placed on the U.S. Register in the
future, the FAA provides the following cost estimates to comply with
this AD:

                  Estimated Costs for Required Actions
------------------------------------------------------------------------
                                                             Cost per
              Labor cost                   Parts cost        product
------------------------------------------------------------------------
9 work-hours x $85 per hour = $765....              $0             $765
------------------------------------------------------------------------

    The FAA estimates the following costs to do on-condition HFEC
inspections that would be required based on the results of any required
actions. The FAA has no way of determining the number of aircraft that
might need these inspections:

                 Estimated Costs of On-Condition Actions
------------------------------------------------------------------------
                                                             Cost per
              Labor cost                   Parts cost        product
------------------------------------------------------------------------
17 work-hours x $85 per hour = $1,445.              $0           $1,445
------------------------------------------------------------------------

    The FAA has received no definitive data on which to base the cost
estimates for the damage tolerance inspections and repairs specified in
this AD.

Paperwork Reduction Act

    A federal agency may not conduct or sponsor, and a person is not
required to respond to, nor shall a person be subject to a penalty for
failure to comply with a collection of information subject to the
requirements of the Paperwork Reduction Act unless that collection of
information displays a currently valid OMB Control Number. The OMB
Control Number for this information collection is 2120-0056. Public
reporting for this collection of information is estimated to take
approximately 1 hour per response, including the time for reviewing
instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection of information. All responses to this collection of
information are mandatory. Send comments regarding this burden estimate
or any other aspect of this collection of information, including
suggestions for reducing this burden, to: Information Collection
Clearance Officer, Federal Aviation Administration, 10101 Hillwood
Parkway, Fort Worth, TX 76177-1524.

Authority for This Rulemaking

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

Regulatory Findings

    This AD will not have federalism implications under Executive Order
13132. This AD will not have a substantial direct effect on the States,
on the relationship between the national government and the States, or
on the distribution of power and responsibilities among the various
levels of government.
    For the reasons discussed above, I certify that this AD:
    (1) Is not a ``significant regulatory action'' under Executive
Order 12866, and
    (2) Will not affect intrastate aviation in Alaska.

List of Subjects in 14 CFR Part 39

    Air transportation, Aircraft, Aviation safety, Incorporation by
reference, Safety.

The Amendment

    Accordingly, under the authority delegated to me by the
Administrator, the FAA amends 14 CFR part 39 as follows:

PART 39--AIRWORTHINESS DIRECTIVES

0
1. The authority citation for part 39 continues to read as follows:

    Authority:  49 U.S.C. 106(g), 40113, 44701.

Sec.  39.13  [Amended]

0
2. The FAA amends Sec.  39.13 by adding the following new airworthiness
directive:

2023-04-03 Fokker Services B.V.: Amendment 39-22350; Docket No. FAA-
2023-0168; Project Identifier MCAI-2022-00553-T.

(a) Effective Date

    This airworthiness directive (AD) is effective March 20, 2023.

(b) Affected ADs

    None.

(c) Applicability

    This AD applies to all Fokker Services B.V. Model F28 Mark 0070
and 0100 airplanes, certificated in any category.

(d) Subject

    Air Transport Association (ATA) of America Code 53, Fuselage.

(e) Unsafe Condition

    This AD was prompted by reports of cracks at the upper and lower
fastener holes of a repair plate in the stubwing, which had been
applied to repair heat damage, found earlier than expected. The FAA
is issuing this AD to address reduced resistance to crack growth due
to overheated aluminum. This condition, if not detected and
corrected, could lead to reduced structural integrity of the
airplane.

(f) Compliance

    Comply with this AD within the compliance times specified,
unless already done.

(g) Requirements

    Except as specified in paragraph (h) of this AD: Comply with all
required actions and compliance times specified in, and in
accordance with, European Union Aviation Safety Agency (EASA) AD
2022-0070, dated April 21, 2022 (EASA AD 2022-0070).

(h) Exceptions to EASA AD 2022-0070

    (1) Where EASA AD 2022-0070 refers to its effective date, this
AD requires using the effective date of this AD.
    (2) Paragraph (5) of EASA AD 2022-0070 specifies to report
inspection results to

Fokker Services B.V. within a certain compliance time. For this AD,
report inspection results at the applicable time specified in
paragraph (h)(2)(i) or (ii) of this AD.
    (i) If the inspection was done on or after the effective date of
this AD: Submit the report within 30 days after the inspection.
    (ii) If the inspection was done before the effective date of
this AD: Submit the report within 30 days after the effective date
of this AD.
    (3) This AD does not adopt the ``Remarks'' section of EASA AD
2022-0070.

(i) Additional AD Provisions

    The following provisions also apply to this AD:
    (1) Alternative Methods of Compliance (AMOCs): The Manager,
International Validation Branch, FAA, has the authority to approve
AMOCs for this AD, if requested using the procedures found in 14 CFR
39.19. In accordance with 14 CFR 39.19, send your request to your
principal inspector or responsible Flight Standards Office, as
appropriate. If sending information directly to the International
Validation Branch, send it to the attention of the person identified
in paragraph (j) of this AD. Information may be emailed to: [email protected]. Before using any approved AMOC, notify your
appropriate principal inspector, or lacking a principal inspector,
the manager of the responsible Flight Standards Office.
    (2) Contacting the Manufacturer: For any requirement in this AD
to obtain instructions from a manufacturer, the instructions must be
accomplished using a method approved by the Manager, International
Validation Branch, FAA; or EASA; or Fokker Services B.V.'s EASA
Design Organization Approval (DOA). If approved by the DOA, the
approval must include the DOA-authorized signature.

(j) Additional Information

    For more information about this AD, contact Dan Rodina,
Aerospace Engineer, Large Aircraft Section, FAA, International
Validation Branch, 3960 Paramount Boulevard, Lakewood, CA 90712-
4137; telephone<PHONE_NUMBER>; email [email protected].

(k) Material Incorporated by Reference

    (1) The Director of the Federal Register approved the
incorporation by reference of the service information listed in this
paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
    (2) You must use this service information as applicable to do
the actions required by this AD, unless this AD specifies otherwise.
    (i) European Union Aviation Safety Agency (EASA) AD 2022-0070,
dated April 21, 2022.
    (ii) [Reserved]
    (3) For EASA AD 2022-0070, contact EASA, Konrad-Adenauer-Ufer 3,
50668 Cologne, Germany; telephone +49 221 8999 000; email
[email protected]; website easa.europa.eu. You may find this EASA
AD on the EASA website at ad.easa.europa.eu.
    (4) You may view this material at the FAA, Airworthiness
Products Section, Operational Safety Branch, 2200 South 216th St.,
Des Moines, WA. For information on the availability of this material
at the FAA, call<PHONE_NUMBER>.
    (5) You may view this material that is incorporated by reference
at the National Archives and Records Administration (NARA). For
information on the availability of this material at NARA, email
[email protected], or go to: www.archives.gov/federal-register/cfr/ibr-locations.html.

    Issued on February 15, 2023.
Christina Underwood,
Acting Director, Compliance & Airworthiness Division, Aircraft
Certification Service.
[FR Doc. 2023-04254 Filed 3-2-23; 8:45 am]
BILLING CODE 4910-13-P


[Federal Register: February 25, 2008 (Volume 73, Number 37)]
[Notices]
[Page 10084-10086]
[DOCID:fr25fe08-133]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-57349; File No. SR-NYSEArca-2008-22]

Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing
and Immediate Effectiveness of Proposed Rule Change To List and Trade
the Opta Exchange-Traded Notes Due 2038

February 19, 2008
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(``Act'') \1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that
on February 19, 2008, NYSE Arca, Inc. (``NYSE Arca'' or ``Exchange''),
through its wholly owned subsidiary, NYSE Arca Equities, Inc. (``NYSE
Arca Equities''), filed with the Securities and Exchange Commission
(``Commission'') the proposed rule change as described in Items I and
II below, which Items have been substantially prepared by the Exchange.
NYSE Arca filed the proposal pursuant to Section 19(b)(3)(A) of the Act
\3\ and Rule 19b-4(f)(6) thereunder,\4\ which renders the proposal
effective upon filing with the Commission. The Commission is publishing
this notice to solicit comments on the proposed rule change from
interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.196-4.
    \3\ 15 U.S.C. 78s(b)(3)(A).
    \4\ 17 CFR 240.19b-4(f)(6).
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    The Exchange proposes to list and trade the Opta Exchange-Traded
Notes due 2038 (``Notes''). The Notes are linked to the S&P Listed
Private Equity Index[supreg] Net Return (U.S. dollar) (``Index''). The
text of the proposed rule change is available at the Exchange, the
Commission's Public Reference Room, and http://www.nyse.com.

II. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, the Exchange included statements
concerning the purpose of, and basis for, the proposed rule change and
discussed any comments it received on the proposed rule change. The
text of these statements may be examined at the places specified in
Item IV below. The Exchange has prepared summaries, set forth in
Sections A, B, and C below, of the most significant aspects of such
statements.

A. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change

1. Purpose
    The Exchange proposes to list and trade the Notes, which are linked
to the Index, pursuant to NYSE Arca Equities Rule 5.2(j)(6).\5\ The
Notes are senior unsecured debt obligations of Lehman Brothers Holdings
Inc. (``Lehman''). The Index is comprised of stocks of the 30 leading
listed private equity companies that meet certain size, liquidity,
exposure, and activity requirements (each an ``Index Component'' and,
collectively, the ``Index Components''). The Index is designed to
provide tradable exposure to the leading publicly listed companies in
the private equity sector. The Index includes North American, European,
and Asia-Pacific region private equity stocks that are trading on
developed market exchanges.
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    \5\ NYSE Arca Equities Rule 5.2(j)(6) sets forth the Exchange's
generic listing standards for, among others, Equity Index-Linked
Securities, which are securities that provide for the payment at
maturity of a cash amount based on the performance of an underlying
index or indexes of equity securities. See NYSE Arca Equities Rule
5.2(j)(6).
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    The Exchange submits this proposed rule change because the Index
does not meet all of the ``generic'' listing requirements of NYSE Arca
Equities Rule 5.2(j)(6)(B)(I) applicable to the listing of Equity
Index-Linked Securities.\6\ The Index meets all such requirements,
except for those set forth in NYSE Arca Equities Rule
5.2(j)(6)(B)(I)(1)(b)(ii).\7\ The Exchange represents that: (1) Except
for NYSE Arca Equities Rule 5.2(j)(6)(B)(I)(1)(b)(ii), the Notes
currently satisfy all of the generic listing standards under NYSE Arca
Equities Rule 5.2(j)(6); (2) the continued listing standards under NYSE
Arca Equities Rules 5.2(j)(6) shall apply to the Notes; and (3) Lehman
is required to comply with Rule 10A-3 under the Act \8\; for the
initial and continued listing of the Notes. In addition, the Exchange
represents that the Notes will comply with all other requirements
applicable to Equity Index-Linked Securities including, but not limited
to, requirements relating to the dissemination of key information
(e.g., the Index value and intraday indicative value), Exchange rules
governing the trading of equity securities, trading hours, trading
halts, surveillance, and Information Bulletin to ETP Holders, as set
forth in prior Commission orders approving the generic listing rules,
and amendments thereto, applicable to the listing and trading of Index-
Linked Securities, generally, and Equity Index-Linked Securities, in
particular.\9\
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    \6\ The generic listing requirements under NYSE Arca Equities
Rule 5.2(j)(6)(B)(I) permit the listing and trading of Equity Index-
Linked Securities pursuant to Rule 19b-4(e) under the Act (17 CFR
240.19b-4(e)). Rule 19b-4(e) provides that the listing and trading
of a new derivative securities product by a self-regulatory
organization (``SRO'') shall not be deemed a proposed rule change,
pursuant to Rule 19b-4(c)(1), if the Commission has approved,
pursuant to Section 19(b) of the Act, the SRO's trading rules,
procedures, and listing standards for the product class that would
include the new derivatives securities product, and the SRO has a
surveillance program for the product class.
    \7\ NYSE Arca Equities Rule 5.2(j)(6)(B)(I)(1)(b)(ii) provides
that each component security of the underlying index must have
trading volume in each of the last six months of not less than
1,000,000 shares per month, except that for each of the lowest
dollar-weighted component securities in the index that, in the
aggregate, account for no more than 10% of the dollar weight of the
index, the trading volume must be at least 500,000 shares per month
in each of the last six months. The Exchange represents that, GIMV
NV, a component security which represented 1.4% of the dollar weight
of the Index as of January 31, 2008, had a trading volume of 461,498
shares in September 2007, which is below the 500,000 shares
requirement.
    \8\ 17 CFR 240.10A-3.
    \9\ See, e.g., Securities Exchange Act Release Nos. 56637
(October 10, 2007), 72 FR 58704 (October 16, 2007) (SR-NYSEArca-
2007-92) (approving conforming amendments to the generic listing
standards for Equity Index-Linked Securities); 57132 (January 11,
2008), 73 FR 3300 (January 17, 2008) (SR-NYSEArca-2007-125)
(approving amendments to the continued listing standards for Equity
Index-Linked Securities); 56838 (November 26, 2007), 72 FR 67774
(November 30, 2007) (SR-NYSEArca-2007-118) (approving amendments
relating to indexes underlying Equity Index-Linked Securities); and
56879 (December 3, 2007), 72 FR 69271 (December 7, 2007) (SR-
NYSEArca-2007-110) (approving amendments to the initial listing and
trading standards for Equity Index-Linked Securities).
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    The Exchange states that detailed descriptions of the Notes, the
Index (including the methodology used to determine the composition of
the Index), fees, redemption procedures and payment at redemption,
payment at maturity, taxes, and risk factors relating to the Notes will
be available in the Registration Statement \10\ or on the Web site for
the Notes (http://www.optaetn.com), as applicable.
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    \10\ See Pricing Supplement to Registration Statement filed by
Lehman on February 14, 2008 (File No. 333-134553).
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2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent
with Section 6(b) of the Act,\11\ in general, and furthers the
objectives of Section 6(b)(5) of the Act,\12\ in particular, in that it
is designed to prevent fraudulent and manipulative acts and practices,
to promote just and equitable principles of trade, to foster
cooperation and coordination with persons engaged in facilitating
transactions in securities, and to remove impediments to and perfect
the mechanism of a free and open market and a national market system.
The Exchange believes that it has developed adequate trading rules,
procedures, surveillance programs, and listing standards for the
listing and trading of the Notes, which promote investor protection and
the public interest. The Exchange notes that the Notes will be subject
to all applicable requirements of NYSE Arca Equities Rule 5.2(j)(6),
with the single exception as noted above.
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    \11\ 15 U.S.C. 78f(b).
    \12\ 15 U.S.C. 78f(b)(5).
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B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange does not believe that the proposed rule change will
impose any burden on competition that is not necessary or appropriate
in furtherance of the purposes of the Act.

C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants, or Others

    The Exchange states that written comments on the proposed rule
change were neither solicited nor received.

III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action

    Because the foregoing proposed rule change: (1) Does not
significantly affect the protection of investors or the public
interest; (2) does not impose any significant burden on competition;
and (3) by its terms does not become operative for 30 days after the
date of this filing, or such shorter time as the Commission may
designate if consistent with the protection of investors and the public
interest, the proposed rule change has become effective pursuant to
Section 19(b)(3)(A) of the Act \13\ and Rule 19b-4(f)(6)
thereunder.\14\
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    \13\ 15 U.S.C. 78s(b)(3)(A).
    \14\ 17 CFR 240.19b-4(f)(6). In addition, Rule 19b-4(f)(6)(iii)
requires a self-regulatory organization to provide the Commission
with written notice of its intent to file the proposed rule change,
along with a brief description and text of the proposed rule change,
at least five business days prior to the date of filing of the
proposed rule change, or such shorter time as designated by the
Commission. The Exchange has fulfilled this requirement.

---------------------------------------------------------------------------

    A proposed rule change filed under Rule 19b-4(f)(6) normally does
not become operative for 30 days after the date of filing. However,
Rule 19b-4(f)(6)(iii) permits the Commission to designate a shorter
time if such action is consistent with the protection of investors and
the public interest. The Exchange requests that the Commission waive
the 30-day operative delay so that the Exchange can list and trade the
Notes immediately. The Exchange states that the proposed rule change
does not significantly affect the protection of investors or the public
interest and does not impose any significant burden on competition. The
Exchange further believes that the proposal is non-controversial
because, although the Index fails to meet the requirements set forth in
NYSE Arca Equities Rule 5.2(j)(6)(B)(I)(1)(b)(ii) by a small amount,
the Notes currently satisfy all of the other applicable generic listing
standards under NYSE Arca Equities Rule 5.2(j)(6) and all other
requirements applicable to Equity Index-Linked Securities, as set forth
in prior Commission orders approving the generic listing rules,
including amendments thereto, relating to the listing and trading of
Index-Linked Securities, generally, and Equity Index-Linked Securities,
in particular. The Exchange notes that it has developed adequate
trading rules, procedures, surveillance programs, and listing standards
for the listing and trading of the Notes.
    The Commission believes that waiving the 30-day operative delay is
consistent with the protection of investors and the public
interest.\15\ Given that the Notes comply with all of NYSE Arca's
generic listing standards for Equity Index-Linked Securities (except
for narrowly missing the requirement of NYSE Arca Equities Rule
5.2(j)(6)(B)(I)(1)(b)(ii)), the listing and trading of the Notes by
NYSE Arca does not appear to present any novel or significant
regulatory issues or impose any significant burden on competition. For
these reasons, the Commission designates the proposed rule change as
operative upon filing.
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    \15\ For purposes only of waiving the 30-day operative delay,
the Commission has also considered the proposed rule's impact on
efficiency, competition, and capital formation. See 15 U.S.C.
78c(f).
---------------------------------------------------------------------------

    At any time within 60 days of the filing of the proposed rule
change, the Commission may summarily abrogate such rule change if it
appears to the Commission that such action is necessary or appropriate
in the public interest, for the protection of investors, or otherwise
in furtherance of the purposes of the Act.

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and
arguments concerning the foregoing, including whether the proposed rule
change is consistent with the Act. Comments may be submitted by any of
the following methods:

Electronic Comments

     Use the Commission's Internet comment form (http://
www.sec.gov/rules/sro.shtml); or
     Send an e-mail to<EMAIL_ADDRESS>Please include
File Number SR-NYSEArca-2008-22 on the subject line.

Paper Comments

     Send paper comments in triplicate to Nancy M. Morris,
Secretary, Securities and Exchange Commission, 100 F Street, NE.,
Washington, DC 20549-1090.

All submissions should refer to File Number SR-NYSEArca-2008-22. This
file number should be included on the subject line if e-mail is used.
To help the Commission process and review your comments more
efficiently, please use only one method. The Commission will post all
comments on the Commission's Internet Web site (http://www.sec.gov/
rules/sro.shtml). Copies of the submission, all subsequent amendments,
all written statements with respect to the proposed rule change that
are filed with the Commission, and all written communications relating
to the proposed rule change between the Commission and any person,
other than those that may be withheld from the public in accordance
with the provisions of 5 U.S.C. 552, will be available for inspection
and copying in the Commission's Public Reference Room, 100 F Street,
NE., Washington, DC 20549, on official business days between the hours
of 10 a.m. and 3 p.m. Copies of the filing also will be available for
inspection and copying at the principal office of the Exchange. All
comments received will be posted without change; the Commission does
not edit personal identifying information from submissions. You should
submit only information that you wish to make available publicly. All
submissions should refer to File Number SR-NYSEArca-2008-22 and should
be submitted on or before March 17, 2008.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\16\
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    \16\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Deputy Secretary.
[FR Doc. E8-3465 Filed 2-22-08; 8:45 am]

BILLING CODE 8011-01-P