biointermediate used to produce renewable fuel for which RINs were
generated. This is true both where any errors could be characterized as
having been made in good faith, and in situations involving deliberate
fraud.
    This approach has been used extensively in other EPA fuels programs
(e.g., gasoline and diesel programs) where it is presumed that
violations that occur at downstream locations (e.g., a retail station
selling gasoline) were caused by all parties that produced,
distributed, or carried the fuel. If, for example, a biointermediate
producer were to use feedstocks that do not meet the definition of a
renewable biomass, then both the biointermediate producer and the
renewable fuel producer could be liable for the violation. Another
example is if a party generated a RIN for a product as a renewable fuel
and then sold that product as a biointermediate to a renewable fuel
producer who also generated a RIN for the product. In such a case, both
the original producer of the biointermediate and the renewable fuel
producer will be liable under this approach.
b. Prohibited Activities
    We are finalizing as proposed several amendments and additions to
the prohibited activities related to the production, distribution, and
use of biointermediates.\242\ Specifically, we are finalizing the
following prohibited activities:
---------------------------------------------------------------------------

    \242\ The prohibited activities related to the production,
distribution, and use of biointermediates, as well as other
prohibited activities under the RFS, are located at 40 CFR 80.1460.
---------------------------------------------------------------------------

     No person may introduce into commerce for use in the
production of a renewable fuel any biointermediate produced from a
feedstock or through a process that is not described in the person's
EPA-accepted registration information;
     No person may produce a renewable fuel at more than one
facility unless the person uses a biointermediate as defined under
Sec.  80.1401 or the renewable biomass is not substantially altered;
\243\
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    \243\ The allowable form changes, i.e., form changes that do not
result in substantial alteration of the renewable biomass feedstock,
are described in the regulations at 40 CFR 80.1460(k)(2).
---------------------------------------------------------------------------

     No person may transfer a biointermediate from a
biointermediate production facility to a facility other than the
renewable fuel production facility specified in the biointermediate
producer's EPA-accepted registration information;
     No person may isolate or concentrate non-characteristic
components of the feedstock to yield a biointermediate not identified
in a registration accepted by EPA; and
     No person may generate a RIN for fuel that was produced
from a biointermediate for which the fuel and biointermediate were not
audited under an EPA-approved quality assurance plan.
     No person may transfer a biointermediate without complying
with the PTD requirements in 40 CFR 80.1453(f).
    We are modifying from our proposal the prohibited act that ``no
person may isolate or concentrate non-characteristic components of the
feedstock to yield an intermediate product not contemplated by EPA in
establishing an approved pathway that the biointermediate producer and
the renewable fuel producer are using to convert renewable biomass to
renewable fuel.'' \244\ The purpose of this proposed prohibited act was
to ensure that a biointermediate producer will not isolate or
concentrate certain components of feedstocks to produce a
biointermediate that will no longer comport with the EPA-approved
pathway identified in the biointermediate producer's accepted
registration submission. For example, if a party is registered to
produce a biointermediate for the production of cellulosic biofuel, the
party would be prohibited from removing all cellulosic material from a
cellulosic feedstock and still representing the biointermediate as
being cellulosic. However, we recognize that the proposed language did
not clearly communicate our intent or the prohibited act. We are
therefore rewording the prohibited act to say that no person may
isolate or concentrate non-characteristic components of the feedstock
to yield a biointermediate not identified in a registration accepted by
EPA. The purpose of this clarification is to state that biointermediate
producers may not deviate from the processes and feedstocks for the
production of biointermediates that EPA has accepted and registered
them to use. We note that using a biointermediate or other feedstock
that is inconsistent with a facility's registration information is
prohibited regardless of this specifically enumerated prohibited act as
it is a violation of the RFS regulations for a party to fail to meet
any requirement of 40 CFR part 80, subpart M.\245\ The inclusion of
this prohibited act is for emphasis and clarity.
---------------------------------------------------------------------------

    \244\ 86 FR 72495.
    \245\ See 40 CFR 80.1460(f).
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    We are also adding a prohibited activity that states that no person
may transfer a biointermediate without complying with the PTD
requirements at 40 CFR 80.1453(f). As described in Section VII.C.6, the
PTD requirements for biointermediates are an integral aspect of
ensuring that renewable fuel producers have the necessary information
to generate valid RINs. PTDs are also a fundamental component of our
oversight and verification provisions for biointermediates and
renewable fuels produced from biointermediates. We also received a
comment that asked EPA to clarify the treatment of RINs for renewable
fuels produced from biointermediates that were not accompanied by PTDs
or were accompanied by incomplete or non-compliant PTDs. The commenter
noted that because PTD review would be part of the QAP process for
biointermediates

and renewable fuels produced from biointermediates, they believed it
likely that the issue of RINs being generated from biointermediates
without compliant PTDs would occur and that EPA should identify how
those RINs would be treated. Under the scenario outlined by the
commenter, the RINs would be invalid under 40 CFR 80.1431 because the
regulations at 40 CFR 80.1426(a)(1)(iii) require that the renewable
fuel producer meet the applicable recordkeeping requirements, which
include maintaining copies of all applicable PTDs. Again, we note that
regardless of the inclusion in the regulations of this specifically
enumerated prohibited act, it is a violation of the RFS regulations for
a party to fail to meet any requirement of 40 CFR part 80, subpart M,
including the requirements to transfer and maintain compliance
PTDs.\246\
---------------------------------------------------------------------------

    \246\ See 40 CFR 80.1460(f).
---------------------------------------------------------------------------

    We believe that these prohibited activities will provide certainty
to regulated parties with regard to the production, distribution and
use of biointermediates and renewable fuels made from biointermediates.
These provisions will help to provide strong incentives on the part of
renewable fuel producers to diligently be involved in overseeing the
production, transfer, and use of biointermediates. Finally, these
provisions are necessary to address the increased complexity of
allowing renewable fuels to be processed at more than one production
facility.
c. Invalid RINs From Biointermediates
    We are finalizing as proposed provisions that address the treatment
of invalid RINs generated on renewable fuels produced from
biointermediates. Due to the potential complexity involved in
determining the validity of RINs generated for renewable fuel produced
from a biointermediate, we are requiring that if any of the RINs in any
batch of renewable fuel produced from a biointermediate are deemed
invalid, then all RINs generated for that batch of renewable fuel will
be considered invalid except to the extent that EPA, in its sole
discretion, determines that some of these RINs would be valid.
Circumstances in which invalid RINs generated on renewable fuels
produced from biointermediates could arise include: where multiple
biointermediates and/or non-biointermediate feedstocks are
simultaneously processed to make renewable fuel with the same D-code;
where biointermediates and/or non-biointermediate feedstocks are
simultaneously processed that result in multiple D-codes; and where
biointermediates are co-processed with non-renewable biomass (e.g.,
crude oil). Given the range of scenarios utilizing biointermediates to
produce renewable fuels that would be permitted under this action and
based on discussions with parties that have expressed interest in using
various types of biointermediates in the future, we believe it is
important to address such circumstances clearly in the regulations as
apportioning which RINs were tied to which gallons of renewable fuel
made in these situations is complicated.
    In all cases where a RIN is generated for a batch of renewable fuel
produced using a biointermediate is invalid, we are requiring that all
RINs generated from the renewable fuel be presumed invalid unless EPA,
in its sole discretion, determines that a portion of the RINs should
remain valid. This means that even if multiple, different RIN batches
would be generated in EMTS for apportioned volumes of the batch of
renewable fuel, all RIN batches in their entirety would be invalid if
any amount of non-qualifying biointermediate was used to generate any
RIN on any volume of the renewable fuel. This will also include
situations where the multiple RIN batches were for different D-codes or
where multiple types of biointermediates were used. We believe this
provision is appropriate to avoid having to determine specifically
which RINs are invalid in situations where biointermediates are
processed simultaneously with other feedstocks, as apportioning RINs
based on the constituent components of a renewable fuel is highly
complex when multiple biointermediates and other feedstocks, all with
differing feedstock energies and volumes, are used. This provision will
provide a strong incentive for renewable fuel producers to conduct due
diligence oversight procedures on the biointermediate producer to avoid
the invalidation of an entire batch of RINs.
    We are also finalizing that, where the renewable fuel is a
renewable diesel, renewable gasoline, renewable diesel blendstock, or
renewable gasoline blendstock, if a RIN is invalid under 40 CFR
80.1431(a)(1), the gallon of gasoline or diesel fuel for which the RIN
was generated would incur an RVO. The regulations for calculating RVOs
at 40 CFR 80.1407(f)(1) already exclude ``[a]ny renewable fuel as
defined in Sec.  80.1401'' from the volume of gasoline or diesel fuel
produced or imported used to calculate an obligated party's annual RVO.
In many cases, RINs are determined to be invalid because the renewable
fuel was not made from renewable biomass, the RINs were multiple-
counted, or were otherwise invalidly generated. In such cases, any
volume of renewable gasoline or renewable diesel fuel will no longer be
considered renewable fuel and therefore cannot be excluded from an
obligated party's RVO.
10. Foreign Biointermediate Producers
    We are finalizing provisions for the use of biointermediates
produced by foreign biointermediate producers. In general, foreign
biointermediate producers are subject to the same regulatory
requirements (e.g., recordkeeping, reporting, registration, and PTD
requirements) as domestic biointermediate producers. However, we are
finalizing requirements for additional requirements for foreign
biointermediates in two main areas.
    For the first requirement, under the biointermediates program,
foreign biointermediate producers must comply with requirements similar
to those for foreign renewable fuel producers as described in 40 CFR
80.1466 related to inspection and audit, agent appointment for service
of process, and the application of U.S. substantive and procedural laws
to any civil or criminal enforcement action.\247\ These requirements
for foreign biointermediate producers will allow EPA to monitor the
producers and carry out enforcement actions should a violation occur
outside the U.S.
---------------------------------------------------------------------------

    \247\ The primary difference between the foreign renewable fuel
producer requirements under 40 CFR 80.1466 and the foreign
biointermediate producer requirements under 40 CFR 80.1478 is that
foreign biointermediate producers do not have to post a bond. Bonds
are required in cases where a foreign party generates or owns RINs
(i.e., foreign RIN-generating foreign producers and foreign RIN
owners). Since foreign biointermediate producers are not generating
RINs, we are not requiring them to post a bond. However, if a
foreign biointermediate producer would otherwise be required to post
as bond by either generating or owning RINs, the bonding provisions
under 40 CFR 80.1466 would apply.
---------------------------------------------------------------------------

    For the second requirement, we are finalizing a requirement that
foreign biointermediate producers may only transfer their
biointermediates to domestic and foreign RIN-generating renewable fuel
producers. This means that foreign biointermediate producers will not
be allowed to transfer their biointermediate to non-RIN-generating
foreign producers. This limitation serves three purposes. One, non-RIN
generating renewable fuel producers are not subject to certain
requirements for registration that we believe are necessary to
effectively oversee the production of biointermediates. RIN-generating
renewable fuel producers are required to provide in EMTS the type

and volume of the biointermediate used and the registration number of
the biointermediate production facility as well as obtain a bond based
on the number of RINs they produce. The existence of foreign
biointermediate producer's information in EMTS allows EPA to oversee
all parties in the chain of RIN generation. This information is not
available if foreign biointermediates are transferred to foreign non-
RIN generation renewable fuel producers. The bond provides financial
assets for EPA to leverage should an issue with the validity of the
RINs come into question. Without these controls, we cannot effectively
oversee and enforce potential issues with foreign produced renewable
fuels made from biointermediates.
    Two, it is unreasonable for the importer of a renewable fuel
produced from a biointermediate to maintain formal contractual
relationships with the biointermediate producer,\248\ each party
outside of the United States that distributed the biointermediate
outside of the United States, and the foreign renewable fuel producer.
Importers of renewable fuel are typically domestic companies that
specialize in the importation and distribution of products into the
U.S. and often lack the foreign presence to effectively and
independently oversee biointermediate production, transfer, and use by
foreign parties. We have structured the biointermediates program to
provide incentives (e.g., through the treatment of invalid RINs
discussed in Section VII.C.9) for renewable fuel producers to ensure
that biointermediate producer complies with applicable EPA regulatory
requirements. We believe the chain of parties involved in the
production of renewable fuel from a biointermediate outside the U.S. is
too attenuated for the importer of the renewable fuel to reasonably
conduct due diligence without the safeguards imposed by EPA for RIN-
generating foreign producers discussed previously.
---------------------------------------------------------------------------

    \248\ The requirements regarding the distribution of foreign
renewable fuels are described at Sec.  80.1466 and for foreign
biointermediates at Sec.  80.1478.
---------------------------------------------------------------------------

    Three, similar to the concerns highlighted for importers, we do not
believe that the RFS QAP provisions would effectively cover a situation
with three parties--a foreign biointermediate producer, non-RIN-
generating foreign producer, and renewable fuel importer--in the chain.
As discussed in Section VII.C.5, RIN-generating renewable fuel
producers that use biointermediates must participate in the RFS QAP and
that the same QAP auditor must verify both the foreign biointermediate
producer and RIN-generating foreign producer. Adding a third-party in
this chain would significantly increase the complexity of the QAP
verification process and would necessitate further amendments to the
RFS QAP program and associated implementation measures to verify RINs
generated from such a production chain. To accommodate these three-
party verification schemes (i.e., verification of the biointermediate
producer, the foreign renewable fuel producer, and the renewable fuel
importer), we would require consider time to develop our systems and
review quality assurance plans, which could significantly delay
implementation of the program and acceptance of foreign
biointermediates into the program.
    We received comments suggesting that we exempt foreign ethanol
producers that produce undenatured ethanol used as a biointermediate
from the transfer limits discussed in Section VII.C.4. Specifically,
commenters suggested that we exempt foreign ethanol producers that
designate their undenatured ethanol as a biointermediate from the batch
segregation requirement and the limit on biointermediate producers
supplying only a single renewable fuel production facility.\249\ As
explained above, these requirements are in place to ensure that
biointermediates are produced using qualifying renewable biomass under
an EPA-approved pathway and are not multiple-counted for RIN
generation. Commenters said that they believed that existing provisions
for foreign ethanol producers under the RFS coupled with TTB
requirements for the control and tracking of undenatured ethanol in the
U.S. rendered the biointermediate provisions unnecessary. They noted
that the proposed biointermediate provisions would likely make the
transfer of foreign undenatured ethanol for use as a biointermediate
infeasible. Finally, some commenters noted that foreign ethanol
producers cannot meet the proposed foreign biointermediate provisions
under their current production and distribution practices.
---------------------------------------------------------------------------

    \249\ Under the biointermediates program, foreign undenatured
ethanol is not presumed to be a biointermediate. Under the
provisions for foreign undenatured ethanol, the importer of the
undenatured ethanol must denature the ethanol and generate RINs for
the denatured fuel ethanol as a renewable fuel. However, under the
biointermediates program, for any undenatured ethanol (foreign or
domestic) to be used as a biointermediate, the producer of the
undenatured ethanol must designate the undenatured ethanol as a
biointermediate and comply with the applicable provisions for the
production, transfer, and use of the undenatured ethanol as a
biointermediate.
---------------------------------------------------------------------------

    We are not finalizing any changes to the requirements for foreign
biointermediate producers as they apply to foreign undenatured ethanol
producers at this time. While we appreciate commenters' concerns
regarding how the foreign ethanol producer provisions intersect with
the biointermediates provisions, we believe that the tracking afforded
by the biointermediate provisions is necessary to ensure that
undenatured ethanol, including foreign undenatured ethanol, is properly
produced (i.e., produced from qualifying renewable biomass under an
EPA-approved pathway), distributed (i.e. not commingled with non-
qualifying undenatured ethanol), and used (i.e., only used as a
biointermediate and not double-counted as renewable fuel and a
biointermediate). We do not believe it is appropriate at this time to
create disparate regulatory regimes for different biointermediates. One
of the primary goals of establishing a common regulatory framework that
applies to all biointermediates is to help ensure consistency and
fairness in the treatment of renewable fuels produced at multiple
locations while at the same time ensuring the valid generation of RINs.
Creating a separate regulatory regime for foreign undenatured ethanol
is not consistent with our intent to create a common regulatory
framework that could address the use of many different types of
biointermediate.
    Commenters failed to explain how TTB requirements, which are
largely designed to ensure that undenatured ethanol is appropriately
taxed, would effectively ensure that undenatured ethanol used as a
biointermediate to produce renewable fuel was produced from qualifying
renewable biomass and used under an EPA-approved pathway consistent
with the RFS program requirements. We also note that TTB requirements
only apply to domestic undenatured ethanol and do nothing to
effectively track and oversee undenatured ethanol produced and
distributed outside of the U.S. While we appreciate that TTB
requirements for undenatured ethanol could help ensure the tracking of
undenatured ethanol in the U.S., we do not believe those requirements
are substitutes for the biointermediate provisions, especially as they
apply to foreign biointermediate producers.
    Furthermore, as mentioned above, the foreign biointermediate
producer provisions largely mirror the requirements that already apply
to foreign renewable fuel producers, including foreign ethanol
producers. Therefore, we believe that foreign

ethanol producers should already be meeting the requirements as
specified in 40 CFR 80.1466, and the foreign biointermediate producer
provisions should not impose any additional burden on parties that are
already complying with the regulations.

D. Other Considerations Related to Biointermediates

1. C-14 Testing and Mass Balance for RIN Generation
    We are finalizing provisions that ensure for the accurate
measurement of renewable content in cases where biointermediates are
co-processed with petroleum feedstocks at a renewable fuel production
facility. Specifically, we are finalizing three options: (1) C-14
measurement using Method B of ASTM D6866, (2) C-14 measurement using
Method C of ASTM D6866 (with some restrictions as explained below), and
(3) facility-specific, alternative methods for measuring renewable
content as approved by EPA. Under this approach, we would not allow the
use of mass balance as specifically described in the regulations at 40
CFR 80.1426(f)(4)(i)(A) (i.e., ``Method A''); however, we may consider
other mass balance approaches when considering facility-specific,
alternative methods.
    We proposed that only C-14 testing, specifically Method B
(accelerator mass spectrometry) of ASTM D6866, be used in cases where
biointermediates are co-processed with petroleum feedstocks at a
renewable fuel production facility. We explained that we were proposing
to require C-14 testing because we believed that the volume of
biointermediate co-processed with petroleum at a crude refinery would
likely be a small fraction of the refinery's throughput, which would
make it difficult to rely on a mass balance approach for RIN
generation.\250\ Our primary concern was, and still is, that the co-
processed fuel would contain little or no renewable content from the
biointermediate and that using the mass balance approach, which
determines renewable content based on assumptions rather than direct
measurement, could overestimate renewable content and therefore result
in the generation of RINs for the nonrenewable portion of the co-
processed fuel. Thus, in order to determine if and how much renewable
content is actually present, we believed C-14 testing of the finished
fuel would be necessary. We also sought comment on potential
alternatives to direct C-14 measurement of renewable content of co-
processed fuels.
---------------------------------------------------------------------------

    \250\ See Martin R. Haverly et al., Biobased Carbon Content
Quantification through AMS Radiocarbon Analysis of Liquid Fuels, 237
Fuel, 1108, (2019).
---------------------------------------------------------------------------

    We received a range of comments on our proposal. Some commenters
recognized that Method B of ASTM D6866 is the most accurate way to
measure renewable content in processed fuels, and with the support of
these comments and for the reasons set out in the proposed rule, we are
finalizing the use of Method B of ASTM D6866 as one option for the
measurement of renewable content of co-processed renewable fuels from
biointermediates.
    Other commenters mentioned that mass balance could be more accurate
than direct C-14 measurement in some circumstances, especially at lower
concentrations of renewable content or when samples are contaminated
with artificial C14 (the latter of which would make the test not
compliant with ASTM D6866-22). However, commenters did not provide any
new data or information suggesting how mass balance could more
accurately measure low concentrations of renewable content.
Specifically, commenters did not address how ``Method A'' as specified
in the regulations at 40 CFR 80.1426(f)(4)(i)(A) could produce accurate
results at low renewable fuel concentrations. As explained above, we
are concerned that a mass-balance approach may not accurately estimate
renewable content in a finished fuel when very small amounts of
biointermediates are co-processed with petroleum fuels and are
therefore finalizing our proposal that ``Method A'' cannot be used to
determine renewable content for co-processed renewable fuels produced
from biointermediates.
    In the NPRM, we also sought comment on the potential use of Method
C of ASTM D6866. We received comments asserting that this method is
more cost-effective than method B. While some comments expressed
concern that Method C is less accurate, especially at lower
concentrations of biogenic content, other commenters stated that it
should be allowed for use as it has a similar absolute uncertainty as
Method B of ASTM D6866. While we appreciate that Method C is cheaper
and more widely available, we still have concerns about its efficacy at
lower concentrations of renewable content in co-processed fuels. Based
on commenters' suggestions, we are finalizing provisions that allow for
the use of Method C of ASTM D6866 when the renewable content of the co-
processed fuel is at or above 10 percent. ASTM D6866-10 discusses how
the increased accuracy of Method B, relative to Method C, is
recommended when measuring below 10 percent renewable content, so
limiting Method C to circumstances in which the renewable content at or
above 10 percent balances the concern for accuracy with the cost of
analysis.\251\
---------------------------------------------------------------------------

    \251\ See ASTM D6866-10, ``Standard Test Methods for Determining
the Biobased Content of Solid, Liquid, and Gaseous Samples Using
Radiocarbon Analysis,'' available in the docket for this action.
---------------------------------------------------------------------------

    We received several suggestions in response to our request for
other potential alternatives. Commenters suggested that statistical
models could be developed based on initial C-14 validation testing
which could be approved as facility-specific approaches. Other
commenters requested that we allow the use of a performance-based
approach to approving new methods for renewable content measurements
similar to what we allow under our performance-based measurement system
(PBMS) under the 40 CFR part 1090 fuel quality regulations.
    While we continue to believe that direct C-14 measurement,
specifically Method B of ASTM D6866, is the most accurate and precise
way to determine the renewable content of co-processed fuels, we
recognize that other methods, especially when tailored to a specific
facility, could provide an accurate assessment of renewable content in
co-processed fuels made from biointermediates. Based on commenters'
suggestions that we provide a mechanism to approve facility-specific
measurement procedures, we are finalizing an approach under which EPA
can approve facility-specific alternatives to testing using Method B or
Method C of ASTM D6866. This is consistent to what we currently allow
for co-processed renewable fuels (see 40 CFR 80.1426(f)(9)(ii)), and we
believe that such a facility-specific approach can potentially
accommodate a wide range of alternatives. However, we note that while
we may approve mass balance approaches tailored to specific facilities
under this option, we would only intend to approve such an approach if
the renewable fuel producer provides sufficient information about all
inputs and outputs for the facility that is co-processing the
biointermediate and validates assumptions used in any mass balance
approach with data and testing that demonstrate that renewable biomass
actually results in the production of renewable fuel.
2. Implications of Using Biointermediates for Lifecycle GHG Assessments
    We are not making any changes to Table 1 to 40 CFR 80.1426 as a
result

of allowing biointermediates to be used under the RFS program. Each
renewable fuel pathway consists of a fuel type, feedstock, and
production process. Under the RFS program, we must assess lifecycle GHG
emissions for each potential pathway to determine whether it meets the
GHG reduction threshold, as compared to the 2005 statutory petroleum
baseline, for one or more of the four renewable fuel categories. Table
1 contains the many generally applicable pathways for which we have we
assessed the lifecycle GHG emissions and assigned D codes. We are
finalizing our proposed approach to creating and implementing a
biointermediates program that maintains the framework of the existing
pathways in Table 1 and provides that those pathways can now be
followed through the production and use of a biointermediate. That is,
the Table 1 pathways can now be implemented at more than one facility--
a biointermediate production facility and the renewable fuel production
facility.
    Before this action, each pathway involved the conversion of a type
of renewable biomass feedstock to a renewable fuel at one facility. The
allowance of biointermediates in this action means that, under certain
circumstances, a feedstock can now be processed at more than one
facility. This additional flexibility does not change the requirement
that to be eligible to generate RINs, fuels must be produced through an
approved pathway. Although Table 1 does not explicitly list
biointermediates or biointermediate processing requirements, fuels
produced from biointermediates can qualify for existing Table 1
pathways. For example, row M in Table 1 includes a pathway for
renewable gasoline produced from crop residue through a process of
``catalytic pyrolysis and upgrading process . . . utilizing natural
gas, biogas, and/or biomass as the only process energy sources.'' Crop
residue converted to biocrude via catalytic pyrolysis at one facility
and then upgraded to renewable gasoline at another facility that uses
only natural gas for process energy would be eligible for cellulosic
biofuel (D-code 3) RINs through the row M pathway provided that all
other applicable regulatory requirements are satisfied. As this example
illustrates, the addition of a biointermediate does not change the
pathway other than conducting the same processing steps at two
facilities instead of one.
    We do not believe that the additional flexibility for
biointermediates provided in this action necessitates changes to Table
1 on the basis of lifecycle GHG emissions. EPA evaluated the lifecycle
GHG emissions associated with each pathway before it was added to Table
1 and determined that each pathway met the applicable GHG reduction
requirement corresponding to the RFS fuel category. In general, these
evaluations assumed that the bulk renewable biomass would be converted
to renewable fuel at one facility. Compared to these prior evaluations,
allowing the processing of renewable biomass to renewable fuel to occur
at more than one facility may affect the emissions associated with
transporting the bulk biomass, biointermediates and renewable fuels
through the supply chain. However, we expect that in most cases the
overall transportation emissions would decrease or be minimally
affected. We anticipate that a supply chain that includes
biointermediates would likely involve a ``hub and spoke'' arrangement
with multiple biointermediate production facilities, located close to
biomass collection points, that supply biointermediates to a single
renewable fuel production facility. Relative to a supply chain that
involves conversion at one facility, the hub and spoke model would
reduce transport distances of bulk biomass and add transport of
biointermediates. Renewable biomass is typically less energy dense
(i.e., less calorific energy per ton) than the resulting
biointermediate. Renewable biomass is also typically more challenging
logistically to transport than biointermediates because it is often
more difficult to store (i.e., more likely to degrade) and less uniform
in shape and consistency relative to the biointermediate. For these
reasons, bulk biomass typically requires more energy and associated GHG
emissions to transport relative to the resulting biointermediate. In
some cases, the biointermediate supply-chain may add to the overall
transport distance of materials relative to a supply chain with only
one facility, but in these cases, we expect the lower GHG emissions per
ton-mile of material transport to offset the longer overall distance.
Thus, by replacing transport of renewable biomass with transport of
biointermediates we expect the biointermediate supply chains to either
reduce or not significantly affect supply chain transportation and
distribution related GHG emissions. For these reasons, and given that
transportation and distribution GHG emissions are often small relative
to other lifecycle stages, we do not expect the allowance of
biointermediates to significantly increase the lifecycle GHG emissions
associated with these fuel pathways relative to our existing estimates.
    Under the biointermediates provisions, all of the pathways
currently applicable to renewable fuel under Table 1 would allow for
the use of biointermediates provided implementation of the pathway
using a biointermediate: (1) starts with the renewable biomass
feedstock specified in the Table 1 pathway; (2) produces the fuel
specified in the Table 1 pathway; (3) converts the renewable biomass
feedstock to a biointermediate and the biointermediate to the renewable
fuel using processes that are consistent with the production process
requirements specified in the Table 1 pathway; and, (4) satisfies all
of the other applicable regulatory requirements. Of course, qualifying
renewable fuel cannot be made from a biointermediate if the fuel
production pathway is not listed in Table 1 or otherwise approved by
EPA.
    In addition to the generally applicable pathways in Table 1, EPA
has also approved many facility-specific pathways in response to
petitions submitted pursuant to the process at 40 CFR 80.1416. These
approvals are based on our evaluations of the GHG emissions associated
with the particular processes, materials used, fuels produced, and
process energy types and amounts outlined and described in each of the
facility-specific petition requests. Because our lifecycle GHG analyses
and pathway approvals are specific to the precise processes, materials,
etc. described in petitions, we are not allowing existing facility-
specific pathways to introduce the use of a biointermediate under their
existing approvals. To the extent that the facility-specific
determinations are already tailored to the particular circumstances of
each pathway, we do not anticipate this restriction will directly
affect implementation of the previously approved facility-specific
pathways. In a limited number of cases, EPA previously approved
facility-specific pathways that include use of a biointermediate.
Existing pathway approvals that expressly allow for the use of a
particular biointermediate are not affected by this action. However, if
a facility producing fuel through a facility-specific pathway makes any
changes in its feedstocks, processes or fuels produced that are outside
the scope of its existing facility-specific pathway, including by
introducing the use of a biointermediate, it would need to petition EPA
for a new pathway evaluation pursuant to 40 CFR 80.1416.
    As a general matter, renewable fuel produced through facility-
specific pathways must be produced in

accordance with the RFS regulations at 40 CFR part 80, subpart M,
including the requirements for producing renewable fuel from
biointermediates that are being finalized in this action. Facility-
specific petitions may also include specific conditions, as determined
through the informal adjudication and pursuant to 40 CFR
80.1426(a)(1)(iii), 40 CFR 80.1416(b)(1)(vii), 80.1450(i), and
80.1451(b)(1)(ii)(W), that apply to fuel production and RIN generation.
Moving forward, we intend that future facility-specific pathway
approvals will allow for the use of particular biointermediates that
are regulatorily defined at 40 CFR 80.1401, and that such pathways will
be governed by the applicable requirements for producing renewable fuel
from biointermediates, as well as any facility-specific conditions and
requirements.

VIII. Amendments to Fuel Quality and RFS Regulations

    This section describes the regulatory changes we are finalizing for
the fuel quality and RFS programs. We address comments related to these
regulatory changes in Section 11 of the RTC document.

A. BBD Conversion Factor for Percentage Standard

    In the proposed rule we noted our observation that the average
Equivalence Value of BBD appears to have grown over time without
stabilizing, and that the average future Equivalence Value for BBD was
likely to be at least 1.55. We therefore proposed replacing the factor
of 1.5 in the percentage standard formula for BBD with a factor of at
least 1.55. We did not propose changing any other aspect of the
percentage standard formula for BBD. We received several adverse
comments on this proposed definition. In light of these comments, we
are not finalizing this proposed change in this rule. We will continue
to monitor the average number of RINs generated per gallon of BBD, and
may consider this change in a future rule.

B. Changes to Registration for Baseline Volume

    We are finalizing as proposed revised registration requirements at
40 CFR 80.1450(b)(1)(v) as well as revisions to the definition of
``baseline volume'' at 40 CFR 80.1401 to allow a non-exempt (i.e., non-
grandfathered) renewable fuel producer to use either nameplate capacity
or actual peak capacity for their facility's baseline volume if
permitted capacity cannot be determined. We are not changing the
requirements for establishing the baseline volume of grandfathered
facilities.\252 253\ All non-grandfathered facilities with an
applicable permitted capacity will continue to be required to register
using that permitted capacity pursuant to 40 CFR 80.1450(b)(1)(v)(A).
---------------------------------------------------------------------------

    \252\ For purposes of this section, a ``grandfathered facility''
is a renewable fuel production facility that has volumes that are
exempt from the renewable fuel lifecycle GHG reduction threshold
under 40 CFR 80.1403(c). This provision exempts (i.e.,
``grandfathers'') facilities that commenced construction on or
before December 19, 2007, did not discontinue construction for a
period of 18 months after commencement of construction, and
completed construction by December 19, 2010.
    \253\ For grandfathered facilities, baseline volume is the
maximum volume of grandfathered fuel for which the facility is
allowed to generate RINs. For non-grandfathered facilities, baseline
volume is intended to indicate the maximum amount of renewable fuel
that the facility is capable of producing. Actual peak capacity,
however, may not be a good indicator of maximum capacity.
---------------------------------------------------------------------------

    We are finalizing this revision in order to allow for more up-to-
date information to be used in establishing the baseline volumes of
non-grandfathered facilities. The existing provision at 40 CFR
80.1450(b)(1)(v)(C) requires facilities to use actual peak capacity if
the applicable air permit does not include a permitted maximum rate
annual volume output. However, actual peak capacity is based on actual
production tied to when EISA was enacted (i.e., December 2007), which
is now well more than a decade in the past. This historical peak
capacity is not necessarily an accurate reflection of the facility's
current production capacity. Since the passage of EISA, facilities may
have improved efficiency, expanded the facility, or experienced an
increase in production due to increased demand, resulting in larger
production than the year used to calculate actual peak capacity. Having
accurate capacity information for registered renewable fuel facilities
is important for EPA in helping to identify whether facilities are
generating an appropriate number of RINs.\254\ This change will allow a
non-exempt facility to choose whether to use actual peak capacity or
nameplate capacity if permitted capacity cannot be determined. Non-
exempt facilities already registered using actual peak capacity will
have the option to switch to nameplate capacity at any time.\255\ This
change will have no impact on facilities who choose not to use this
option.
---------------------------------------------------------------------------

    \254\ Because the baseline volume of an exempt (i.e.,
grandfathered) facility is by definition tied to either December 19,
2007, or December 31, 2009 (see 40 CFR 80.1403(c) and (d) and
80.1450(b)(1)(v)(B)), current production capacity is not relevant
for such a facility.
    \255\ Facilities can also choose to keep their baseline volume
as actual peak capacity.
---------------------------------------------------------------------------

C. Changes to Attest Engagements for Parties Owning RINs (``RIN Owner
Only'')

    We are exempting parties that transact a relatively small number of
RINs from the annual attest engagement requirements. In order to
qualify for this exemption, parties must be registered solely as a
``RIN Owner''. They may not be registered or engaged in any other role
under the RFS program (e.g., obligated party, exporter of renewable
fuel, renewable fuel producer, renewable fuel importer, etc.). Until
this action, such parties were required to submit an annual attest
engagement under 40 CFR 80.1464(c), regardless of the number of RINs
they transacted or held in a compliance year. For example, a party
whose only activity was to buy and sell a single RIN in any given
compliance year would have been required to complete an attest
engagement for that year. Additionally, some parties that own a small
number of RINs have difficulty selling small denominations of RINs
(e.g., hundreds of separated D6 RINs) and may end up holding those RINs
until they expire. These parties would have had to then arrange for an
annual attest engagement performed by a certified professional
accountant (CPA) for those RINs, which can be quite costly especially
when compared to the relatively low value of the small number of RINs
owned.
    We believe that parties who, in a given compliance year, are
registered as a ``RIN Owner'' only, who transact 10,000 or fewer RINs,
and who do not exceed a RIN holding threshold under 40 CFR 80.1435,
should not be required to complete an attest engagement for that
compliance year. A party who is registered as a ``RIN Owner Only'' does
not generate RINs and does not have an RVO. We believe that the
information contained in EMTS and RIN activity reports for these RIN
Owners who transact a relatively small number of RINs and who do not
exceed a RIN holding threshold, conveys the necessary compliance
information, and that the attest engagements for these parties do not
add much value relative to their expense. Many of the affected parties
are smaller businesses that are required to arrange the services of a
CPA to perform their annual attest engagement. Making this change to
the attest engagement requirements may result in a cost savings to
these typically smaller businesses, without adversely affecting RFS
program oversight.
    We intend that the total number of RINs transacted in the year be
counted toward the 10,000 RIN limit. RINs ``transacted'' includes RINs
retired for

reasons other than compliance retirements, such as the reason code
``voluntary RIN retirement.'' This means that if a party buys 5,000
RINs and sells 6,000 RINs in a year, the party will have transacted
11,000 RINs and must complete the attest engagement for that year. We
are finalizing the 10,000 RIN limit based upon programmatic
experience--specifically, we believe it reflects a reasonable level of
activity below which the utility of the attest engagement is reduced.

D. Public Access to Information

    Exemption 4 of the Freedom of Information Act (FOIA) exempts from
disclosure ``trade secrets and commercial or financial information
obtained from a person [that is] privileged or confidential.'' \256\ In
order for information to meet the requirements of Exemption 4, EPA must
find that the information is either: (1) a trade secret, or (2)
commercial or financial information that is: (a) obtained from a
person, and (b) privileged or confidential. Information meeting these
criteria is commonly referred to as ``confidential business
information'' or ``CBI.'' \257\
---------------------------------------------------------------------------

    \256\ 5 U.S.C. 552(b)(4).
    \257\ We note that CAA section 114(c) explicitly excludes
emissions data from treatment as confidential information.
---------------------------------------------------------------------------

    In June 2019, the U.S. Supreme Court issued its decision in Food
Marketing Institute v. Argus Leader Media, 139 S. Ct. 2356 (2019)
(Argus Leader). Argus Leader addressed the meaning of ``confidential''
within the context of FOIA Exemption 4. The Court held that ``[a]t
least where commercial or financial information is both customarily and
actually treated as private by its owner and provided to the government
under an assurance of privacy, the information is `confidential' within
the meaning of Exemption 4.'' \258\ The Court identified two conditions
``that might be required for information communicated to another to be
considered confidential.'' \259\ Under the first condition,
``information communicated to another remains confidential whenever it
is customarily kept private, or at least closely held, by the person
imparting it.'' \260\ The second condition provides that ``information
might be considered confidential only if the party receiving it
provides some assurance that it will remain secret.'' \261\ The Court
found the first condition necessary for information to be considered
confidential within the meaning of Exemption 4, but did not address
whether the second condition must also be met.
---------------------------------------------------------------------------

    \258\ Argus Leader, 139 S. Ct. at 2366.
    \259\ Id. at 2363.
    \260\ Id. (internal citations omitted).
    \261\ Id. (internal citations omitted).
---------------------------------------------------------------------------

    Following the issuance of the Court's opinion, the U.S. Department
of Justice (DOJ) issued guidance concerning the confidentiality prong
of Exemption 4, articulating ``the newly defined contours of Exemption
4'' post-Argus Leader.\262\ Where the Government provides an express or
implied indication to the submitter prior to or at the time the
information is submitted to the Government that the Government would
publicly disclose the information, then the submitter generally cannot
reasonably expect confidentiality of the information upon submission,
and the information is not entitled to confidential treatment under
Exemption 4.\263\
---------------------------------------------------------------------------

    \262\ ``Exemption 4 After the Supreme Court's Ruling in Food
Marketing Institute v. Argus Leader Media and Accompanying Step-by-
Step Guide,'' Office of Information Policy, U.S. DOJ, (October 4,
2019), available at https://www.justice.gov/oip/exemption-4-after-supreme-courts-ruling-food-marketing-institute-v-argus-leader-media.
    \263\ See id.; see also ``Step-by-Step Guide for Determining if
Commercial or Financial Information Obtained from a Person is
Confidential under Exemption 4 of the FOIA,'' Office of Information
Policy, U.S. DOJ, (updated October 7, 2019), available at https://www.justice.gov/oip/step-step-guide-determining-if-commercial-or-financial-information-obtained-person-confidential.
---------------------------------------------------------------------------

    Since the proposed rule, we have made some editorial changes to the
final regulations to improve the readability of the new provisions and
to harmonize the terminology used. These changes do not change the
substance of the final regulations from what was proposed.
1. Treatment of Information Contained in Enforcement Actions and
Invalid RIN Determinations
    EPA has a longstanding practice of posting on its website or
otherwise publicly releasing information describing fuels violations
and invalid RIN determinations.\264\ Accordingly, we are finalizing
regulations to codify the types of information contained in fuels-
related enforcement actions and invalid RIN determinations that are not
entitled to confidential treatment pursuant to Exemption 4 of FOIA.
This action covers information within notices of violation, settlement
agreements, administrative complaints, civil complaints, criminal
information, and criminal indictments related to EPA's fuel quality and
RFS regulations in 40 CFR parts 80 and 1090 and invalid RIN
determinations related to EPA's RFS regulations in 40 CFR part 80.
---------------------------------------------------------------------------

    \264\ See, e.g., ``Clean Air Act Fuels Settlement Information,''
U.S. EPA, available at https://www.epa.gov/enforcement/clean-air-act-fuels-settlement-information; ``Civil Enforcement of the
Renewable Fuel Standard Program,'' U.S. EPA, available at https://www.epa.gov/enforcement/civil-enforcement-renewable-fuel-standard-program.
---------------------------------------------------------------------------

    Since at least 2013,\265\ EPA has posted on its website or
otherwise publicly released information relating to violations of the
fuel quality and RFS regulations. This information includes the company
name and identification number, the total quantity of fuel and
information relating to the exceedance of the fuel standard associated
with the violation, information relating to the generation, transfer,
or use of credits or RINs, and the total quantity of RINs in question.
Therefore, EPA has already provided an implied indication to any
submitters of such information after at least 2013 that EPA may
publicly disclose such information. Accordingly, the information is not
entitled to confidential treatment, and EPA intends to continue to
release such information without further notice.
---------------------------------------------------------------------------

    \265\ EPA began posting RFS enforcement-related determinations
and actions in 2013. See ``Civil Enforcement of the Renewable Fuel
Standard Program,'' U.S. EPA, available at https://www.epa.gov/enforcement/civil-enforcement-renewable-fuel-standard-program. EPA
has been posting gasoline and diesel enforcement actions for much
longer. See ``Clean Air Act Fuels Settlement Information,'' U.S.
EPA, available at https://www.epa.gov/enforcement/clean-air-act-fuels-settlement-information.
---------------------------------------------------------------------------

    Through this action, we are also providing an express indication
that such information is not entitled to confidential treatment and may
be affirmatively disclosed to the public without providing further
notice or process to the affected businesses. This action effectively
serves as an advance confidentiality determination through rulemaking
and covers the information identified below. Accordingly, 40 CFR 2.201
through 2.215 and 2.301 do not apply to the specified information
submitted under this part and under 40 CFR part 1090, which is
determined through this rulemaking to not qualify for confidential
treatment. In particular, this action impacts certain information
contained in EPA determinations that RINs are invalid under 40 CFR
80.1474(b)(4)(i)(C)(2) and (b)(4)(ii)(C)(2), notices of violation,
settlement agreements, administrative complaints, civil complaints,
criminal information, and criminal indictments. The information that
EPA intends to continue release in the context of these determinations
and actions includes the company name and company identification
number, the facility name and facility identification number, the total
quantity of fuel and information relating to the exceedance of the fuel
standard associated with the violation, information relating to the
generation, transfer, or use of credits or RINs, the

total quantity of RINs in question, the batch number(s) and the D codes
of the RINs in question, the time period when the RINs in question were
generated or when the violation occurred, and any other information
relevant to describing the violation at issue. Additionally, in
response to a comment that EPA received on the NPRM, the information
that EPA intends to continue to release in the context of these
determinations and actions also includes information relating to an
obligated party's failure to meet its RVOs. While we believe that this
information is already included as information relating to the use of
RINs or as any other information relevant to describing the violation
at issue, we are explicitly including it in this determination for the
avoidance of doubt and the sake of clarity. We are codifying this
determination at 40 CFR 80.11 and 80.1402(b), as well as at 40 CFR
1090.15.
    Publicly disclosing this information is important for providing
transparency to stakeholders and the public with respect to violations
of EPA's fuel quality and RFS programs and the relief EPA is seeking to
remedy those violations through its enforcement actions. Public
disclosure is also important to the successful operation and integrity
of the RFS program as it may prevent parties from unwittingly
transferring or attempting to use invalid RINs for compliance, in
contravention of the RFS regulations, or from buying invalid RINs that
they will be unable to use for compliance. For these reasons, we are
providing an express indication through this final rule that such
information is not entitled to confidential treatment.
2. Treatment of Information Contained in Requests Submitted Under the
RFS Program
    We are finalizing regulations that would help facilitate our
processing of claims that RFS-related information should be withheld
from public disclosure under FOIA, 5 U.S.C. 552(b)(4), as CBI. These
regulations identify certain types of RFS information collected by EPA
under 40 CFR part 80, subpart M, that EPA considers as not entitled to
confidential treatment pursuant to Exemption 4 of the FOIA and that EPA
may release without further notice.
    These regulations provide an express indication that we will not
consider certain basic information (identified below) incorporated into
EPA actions on petitions and submissions, as well as that same
information as it appears in the submissions to EPA under 40 CFR part
80, subpart M, to be entitled to confidential treatment under Exemption
4 of the FOIA. This determination will apply prospectively to
submissions and requests under the RFS program received by EPA after
publication of the final rule, and EPA's decisions on those submissions
and requests. In particular, the provisions of 40 CFR 80.1402 will
apply to all submissions to EPA under 40 CFR part 80, subpart M,
including, but not limited to: SREs submitted under 40 CFR 80.1441,
small refiner exemptions under 40 CFR 80.1442, pathway petitions under
40 CFR 80.1416, and compliance demonstration reports. Accordingly, such
information will be released to a FOIA requester upon request without
further notice to the submitter if no other FOIA exemption applies and
without following EPA's procedures set forth in 40 CFR part 2, subpart
B. EPA may also elect to proactively release the information without
further notice to the submitter and without following EPA's procedures
set forth in 40 CFR part 2, subpart B. We are codifying this
determination at 40 CFR 80.1402(c) and (d).
    Through this action, we are providing an express indication that
such information is not entitled to confidential treatment and may be
affirmatively disclosed to the public without providing further notice
to affected businesses. This action effectively serves as an advance
confidentiality determination through rulemaking covering the
information identified below. Accordingly, the provisions of 40 CFR
2.201 through 2.215 and 2.301 do not apply to the specified information
submitted under this part that is determined through this rulemaking
not to qualify for confidential treatment. In particular, the
information affected by this action is the submitter's name, the name
and location of the facility, the date the submission was transmitted
to EPA, any EPA-issued company or facility identification numbers
associated with the submission, the general nature or purpose of the
submission, and the relevant time period for the submission as
applicable. Additionally, for submissions making requests that EPA must
adjudicate (e.g., new pathway petitions, petitions for exemptions or
compliance flexibility, etc.), under this action, once we have
adjudicated the request, we may release the following information: the
submitter's name; the name and location of the facility; the date the
request was transmitted to EPA; any EPA-issued company or facility
identification numbers associated with the request, the general nature
or purpose of the request, the relevant time period for the request,
the extent to which EPA either granted or denied the request (i.e.,
whether EPA grants a request in part and the portions granted and
denied, but not EPA's basis for the decision or any information that is
not provided in 40 CFR 80.1402(d)), and any relevant terms and
conditions. For information submitted under 40 CFR part 80, subpart M,
and not specified in the regulations at 40 CFR 80.1402, EPA will
continue to evaluate such CBI claims in accordance with 40 CFR part 2,
subpart B.
    It is appropriate to release the information described above in the
interest of transparency and to provide the public with information
about entities seeking exemptions or requests under part 80, subpart M.
This approach will also provide certainty to submitters regarding the
release of information under 40 CFR part 80, subpart M. With this
advance notice, each submitter will have certainty regarding how EPA
will treat the information specified above, and, as applicable, have
the discretion to decide whether to make such a request with the
understanding that EPA will release certain information about the
request without further notice to the submitter.

E. Clarifying the Definition of ``Agricultural Digester''

    We are finalizing as proposed our clarifying amendments for the
definition of ``agricultural digester'' in 40 CFR 80.1401. Row Q in
Table 1 to 40 CFR 80.1426 makes renewable compressed natural gas,
renewable liquefied natural gas, and renewable electricity eligible to
generate cellulosic biofuel (D3) RINs if the fuel is produced from,
among other feedstocks, biogas from agricultural digesters (and if the
producer meets all other applicable requirements under the RFS
program). An agricultural digester was previously defined at 40 CFR
80.1401 as ``an anaerobic digester that processes predominantly
cellulosic materials, including animal manure, crop residues, and/or
separated yard waste.'' In the preamble to the Pathways II final rule,
we explained that predominantly cellulosic materials are materials that
are at least 75 percent cellulose, hemi-cellulose or lignin by
mass.\266\ In the proposed rule, we

proposed clarifying amendments to the definition of ``agricultural
digester'' based on multiple questions we have received from
stakeholders asking if they could generate D3 RINs for biogas produced
in a digester if materials that are not predominantly cellulosic are
used in the digester. We are finalizing revisions to the definition of
agricultural digester to clarify that only animal manure, crop
residues, and/or separated yard waste with an adjusted cellulosic
content of at least 75 percent can be processed in such a digester, and
that each and every material processed in an agricultural digester must
have an adjusted cellulosic content of at least 75 percent. This
revision does not change our interpretation or implementation of the
applicable requirements but will make it easier for the regulated
community to understand the extant limitations on generating D3 RINs
for biogas produced in agricultural digesters.
---------------------------------------------------------------------------

    \266\ The Pathways II final rule contained a list of feedstocks
EPA determined are ``predominately cellulosic feedstocks'': ``Crop
residue, slash, pre-commercial thinnings and tree residue,
switchgrass, miscanthus, Arundo donax, Pennisetum purpureum, and
biogas from landfills, municipal wastewater treatment facility
digesters, agricultural digesters, and separated MSW digesters'' (79
FR 42130-31, July 18, 2014). EPA further determined that feedstocks
with minimum average adjusted cellulosic content of 75 percent,
measured on a dry mass basis, were ``predominantly cellulosic,''
meaning fuel produced from these feedstocks would be eligible to
generate 100 percent cellulosic RINs.
---------------------------------------------------------------------------

    The preamble to the Pathways II rule makes it clear that the term
``predominantly cellulosic'' means that eligible feedstocks must
contain a cellulosic content of at least 75 percent, and that this term
does not authorize renewable fuel producers to introduce non-
predominantly cellulosic materials into an agricultural digester. In
the Pathways II rulemaking, we analyzed what we understood to be the
most common inputs--animal manure, crop residues, and separated yard
waste--and determined that all are predominantly cellulosic.\267\
Consistent with this understanding and analysis, we narrowly defined
``agricultural digester'' based on use of these three feedstocks.
Allowing other materials into the digester or any materials that are
not at least 75 percent cellulosic would therefore be inconsistent with
the analysis underlying the rule and the definition of agricultural
digester.
---------------------------------------------------------------------------

    \267\ 79 FR 42128, 42140 (July 18, 2014).
---------------------------------------------------------------------------

    In addition to maintaining consistency with the Pathways II
analysis, limiting the feedstocks that can be used in an agricultural
digester to animal manure, crop residue, and separated yard waste also
makes implementation and oversight of pathways that include biogas from
agricultural digesters much more straightforward. Specifically, because
EPA has already determined that these three renewable biomass
feedstocks are predominantly cellulosic, no further steps are needed to
demonstrate that 100 percent of the fuel produced from a digester that
is limited to animal manure, crop residue, and separated yard waste is
eligible to generate cellulosic RINs. Our clarification of the
definition of agricultural digester does not, however, mean that
parties cannot generate D3 RINs for biogas produced from other
feedstocks or in other types of digesters (e.g., municipal wastewater
treatment facility digesters, separated MSW digesters, or other waste
digesters that convert the cellulosic components of biomass to biogas).
The existing pathways allow D3 RINs to be generated for renewable
compressed natural gas, renewable liquified natural gas, and renewable
electricity produced from ``biogas from the cellulosic components of
biomass processed in other waste digesters'' under Row Q of Table 1 to
40 CFR 80.1426. For example, if the only renewable biomass inputs to an
``other waste digester'' are all predominantly cellulosic, the
resulting fuel would be eligible to generate 100 percent D3 RINs, even
though the digester may not be an ``agricultural digester.'' If one or
more of the inputs to an ``other waste digester'' are not predominantly
cellulosic, the resulting fuel may be eligible to generate D3 RINs for
only the portion of the fuel that was demonstrated to be produced from
cellulosic biomass through proper testing and D5 RINs for the rest of
the fuel produced (under the pathway contained in Row T) as specified
at 40 CFR 80.1426(f)(15)(i)(B).
    Thus, the ability to generate cellulosic RINs for 100 percent of
the fuel produced under the pathway in row Q is predicated on the
assumption and associated requirement that all the inputs to a digester
are predominantly cellulosic. In order to maintain the streamlined
approach to qualifying the output of an agricultural digester as 100
percent cellulosic, we are revising the definition to provide an
exclusive list of the feedstocks that such digesters may process, as
well as to clarify that each and every material processed in an
agricultural digester must have an adjusted cellulosic content of at
least 75 percent. These revisions are consistent with the RFS
regulations and the analyses undertaken for the Pathway II rule that
formed the basis for the agricultural digester pathways. They are a
clarification of the regulatory text, but not a change in our
interpretation of our existing regulations or practice in implementing
them. The revisions additionally clarify that a digester that processes
a material that is less than 75 percent cellulosic content is not an
agricultural digester, even if the total cellulosic content of all the
processed materials taken together exceeds the 75 percent threshold.

F. Definition of ``Produced From Renewable Biomass''

    We proposed to define, in 40 CFR 80.1401, that ``produced from
renewable biomass'' means the energy in the finished fuel comes from
renewable biomass. The purpose of this proposed definition was to
provide additional clarity on what fuels qualify as renewable fuel, in
alignment with the statutory and regulatory definition of renewable
fuel and our pre-existing interpretation of the statute and
regulations. The RFS regulations include formulas to determine the
number of gallon-RINs generated for fuel that is produced by co-
processing renewable biomass and non-renewable feedstocks
simultaneously to produce a fuel based on the share of the feedstock
energy that is from renewable biomass.\268\ Thus, the proposed
definition was intended merely to reinforce what the regulations at 40
CFR 80.1426(f)(4) already require--that the RIN generator must base the
RINs generated for a renewable fuel on the energy coming from the
renewable biomass used to produce the fuel.
---------------------------------------------------------------------------

    \268\ The regulations at 40 CFR 80.1426(f)(4) specifying that
RIN generation is based on the feedstock energy of the renewable
biomass were established in the March 2010 RFS2 final rule.
---------------------------------------------------------------------------

    We received many comments on this proposed definition. Given the
breadth and depth of these comments, we require additional time to
consider these comments and are not finalizing a definition of
``produced from renewable biomass'' in this rule. During the pendency
of our consideration, we will continue to implement our long-standing
interpretation of the existing requirements at 40 CFR 80.1426(f)(4) as
described above.

G. Esterification Pathway

    We are adding ``esterification'' as a production process in rows F
and H of Table 1 to 40 CFR 80.1426. This addition makes biodiesel,
renewable diesel, heating oil, or jet fuel produced from a qualifying
renewable biomass feedstock through an esterification process eligible
for BBD (D4) or advanced biofuel (D5) RINs. We expect this revision to
primarily result in D4 RIN generation for biodiesel produced from FFA
feedstock through an esterification process.\269\
---------------------------------------------------------------------------

    \269\ FFA feedstock is a biointermediate, as discussed in
Section VII.C.3.b.
---------------------------------------------------------------------------

    In the 2020 proposed rule, we proposed to revise rows F and H of
Table 1 to 40 CFR 80.1426 by changing the existing process ``Trans-

Esterification'' to be ``Transesterification with or without
esterification pretreatment'' and adding ``esterification'' as eligible
production processes.\270\ In the 2020 final rule, we added
``Transesterification with or without esterification pretreatment'' to
rows F and H of Table 1 to 80.1426, but we did not add the standalone
esterification pathway at that time, stating that the standalone
esterification process, which uses FFA feedstocks, ``remains under
consideration and may be finalized in a future action.'' \271\
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    \270\ 84 FR 36801 (July 29, 2019).
    \271\ 85 FR 7016, 7058 (February 6, 2020).
---------------------------------------------------------------------------

    In the 2020-2022 proposed rule, we indicated that if we finalized
the biointermediate program and included FFA feedstocks in the
definition of biointermediate, then we would also finalize the
standalone esterification pathway previously proposed in the 2020
proposed rule.\272\ This final rule includes FFA feedstocks as one of
the biointermediates specifically included in the definition of
biointermediate. Thus, as stated in the proposed rule, we are
finalizing the standalone esterification pathway.
---------------------------------------------------------------------------

    \272\ 86 FR 72473 (December 21, 2021).
---------------------------------------------------------------------------

    The most commonly used method to produce biodiesel is
transesterification, which involves reacting triglycerides with
methanol, typically under the presence of a base catalyst.\273\ While
the main component of renewable biomass feedstocks that are fats, oils,
and greases is typically triglycerides, other components, such as FFA,
can also exist. Removal or conversion of the FFA from the fat, oil, or
grease is important where the traditional base-catalyzed
transesterification production process is used because FFA will inhibit
the transesterification reaction. Esterification can be used either as
a pre-treatment step or as a direct standalone process to convert FFA
feedstocks to biodiesel. When esterification is used as a pre-treatment
step, the FFA is converted through acid esterification and then
followed with the traditional base-catalyzed transesterification of
triglycerides. When standalone esterification is used, the FFA
feedstock is converted directly to biodiesel via acid esterification.
---------------------------------------------------------------------------

    \273\ Commonly used base catalysts include sodium hydroxide
(NaOH), potassium hydroxide (KOH), and sodium methoxide
(NaOCH3).
---------------------------------------------------------------------------

H. Technical Amendments

    We are making numerous technical amendments to the RFS regulations.
These amendments are being made to correct minor inaccuracies, clarify,
and update the current regulations. These changes are described in
Table VIII.H-1 below.

  Table VIII.H-1--Miscellaneous Technical Amendments to RFS Regulations
------------------------------------------------------------------------
 Part and section of title 40           Description of amendment
------------------------------------------------------------------------
80.1401......................  Amended by revising the definition of
                                ``Foreign renewable fuel producer'' to
                                mirror the regional applicability
                                requirement in Sec.   80.1426(b)(1) and
                                clarifying that foreign ethanol
                                producers are considered foreign
                                renewable fuel producers, consistent
                                with this action's biointermediate
                                provisions.
80.1401......................  Amended by revising the definition of
                                ``Renewable fuel'' to reiterate that
                                undenatured ethanol is not renewable
                                fuel.
80.1401, 80.1426(f)(5)(i)-     Amended by moving the definitions of
 (iii), (f)(5)(iv)(A) and       ``Separated yard waste,'' ``Separated
 (B), and (f)(5)(v),            food waste,'' and ``Separated municipal
 80.1450(b)(1)(vii)(A) and      solid waste'' from Sec.   80.1426(f)(5)
 (B) and (b)(1)(viii),          to the RFS definitions section (Sec.
 80.1451(b)(1)(ii)(R), and      80.1401) and updating associated cross-
 80.1454(j).                    references.
80.1401, 80.1426(f)(17)(i),    Amended by updating the incorporation by
 80.1450(b)(1)(xii),            reference (IBR) for ``Standard
 80.1451(b)(1)(ii)(T),          Specification for Diesel Fuel,'' ASTM
 80.1454(l), and 80.1468(b).    D975-13a, to now be ASTM D975-21, which
                                is the most recent ASTM version.
80.1401 and 80.1468(b).......  Amended by updating the IBR for
                                ``Standard Specification for Biodiesel
                                Fuel Blend Stock (B100) for Middle
                                Distillate Fuels,'' ASTM D6751-09, to
                                now be ASTM D6751-20a, which is the most
                                recent ASTM version.
80.1401 and 80.1471(c).......  Amended by adding a definition of
                                ``Professional liability insurance''
                                consistent with its definition in 31 CFR
                                50.5(q) and removing the previous cross-
                                reference to this definition in Sec.
                                80.1471(c).
80.1426(f)(7)(v)(A) and        Amended by updating the IBR for
 80.1468(b).                    ``Standard Test Methods for Analysis of
                                Wood Fuels,'' ASTM E870-82(2006), to now
                                be ASTM E870-82(2019), which is the most
                                recent ASTM version.
80.1426(f)(7)(v)(B) and        Amended by updating the IBR for
 80.1468(b).                    ``Standard Test Methods for Direct
                                Moisture Content Measurement of Wood and
                                Wood-Based Materials,'' ASTM D4442-07,
                                to now be ASTM D4442-20, which is the
                                most recent ASTM version.
80.1426(f)(7)(v)(B) and        Amended by updating the IBR for
 80.1468(b).                    ``Standard Test Method for Laboratory
                                Standardization and Calibration of Hand-
                                Held Moisture Meters,'' ASTM D4444-08,
                                to now be ASTM D4444-13 (2018), which is
                                the most recent ASTM version.
80.1426(f)(8)(ii)(B) and       Amended by updating the IBR for
 80.1468(b).                    ``Standard Guide for the Use of the
                                Joint American Petroleum Institute (API)
                                and ASTM Adjunct for Temperature and
                                Pressure Volume Correction Factors for
                                Generalized Crude Oils, Refined
                                Products, and Lubricating Oils: API
                                Manual of Petroleum Measurement
                                Standards (MPMS) Chapter 11.1,'' ASTM
                                D1250-08, to now be ASTM D1250-19e1,
                                which is the most recent ASTM version.
80.1426(f)(9)(ii),             Amended by updating the IBR for
 80.1430(e)(2), and             ``Standard Test Methods for Determining
 80.1468(b).                    the Biobased Content of Solid, Liquid,
                                and Gaseous Samples Using Radiocarbon
                                Analysis,'' ASTM D6866-08, to now be
                                ASTM D6866-22, which is the most recent
                                ASTM version.
80.1426(f)(17)(i)............  Amended by adding ``renewable gasoline,''
                                consistent with other related sections.
80.1426(f)(17)(i)(B)(1) and    Amended by replacing ``diesel'' with
 (2), 80.1450(b)(1)(xii)(B)     ``distillate'' to clarify that parties
 and (C),                       that blend renewable jet fuel with
 80.1451(b)(1)(ii)(T)(1), and   conventional jet fuel must currently
 80.1454(l)(1).                 comply with these requirements. This
                                would remove perceived ambiguity over
                                whether these provisions apply to
                                producers of blended renewable jet fuel
                                (jet fuel is not diesel fuel per the
                                definition of ``diesel fuel'' at 40 CFR
                                80.2 but rather distillate fuel).

80.1428(b)(2)................  Amended to be consistent with the
                                restriction that independent third-party
                                auditors may not own RINs under Sec.
                                80.1471(a)(3).
80.1429(b)(9)................  Amended to limit the number of RINs that
                                a party can separate when they incur an
                                RVO due to redesignating certified-NTDF
                                under Sec.   80.1408. This is consistent
                                with similar situations involving
                                exporters of renewable fuel or importers
                                of gasoline and diesel fuel.
80.1450(g)(11)(ii),            Amended by updating the email address for
 80.1473(f), 80.1474(b)(2)      EPA's EMTS help desk to
 and (3), (b)(4)(i)(C), and     [email protected].
 (b)(4)(ii)(C).
80.1450(h)(2)(i).............  Amended by changing the time for
                                responding to EPA's notice of intent to
                                deactivate a company's registration from
                                14 to 30 calendar days to allow
                                additional time for company action.
80.1451(b)(1)(ii)(T)(2) and    Amended to clarify reporting instructions
 80.1454(l)(3).                 and move the affidavit requirement from
                                the reporting section (Sec.   80.1451)
                                to the recordkeeping section (Sec.
                                80.1454).
80.1460(b)(6)................  Amended to clarify that generating a RIN
                                for fuel for which RINs have previously
                                been generated is not a prohibited act
                                if those RINs were generated pursuant to
                                Sec.   80.1426(c)(6).
80.1464(a)(3)(ii),             Amended to modify the attest engagements
 (b)(3)(ii), and (c)(2)(ii).    requirements to be consistent with the
                                RIN activity report requirements in Sec.
                                  80.1451(c)(2).
80.1464(a)(4)(ii),             Amended by updating outdated references
 (b)(5)(ii), and (c)(3)(ii)     to expired provisions of part 80 to part
 and 80.1475(a)(2) and (d)(4).  1090.
80.1464(a)(7), (b)(8),         Amended to add the requirement that the
 (c)(7), (i)(1)(i), and         attest auditor verifies the submission
 (i)(2)(i).                     of required compliance reports and
                                states as a finding any compliance
                                reports missing.
80.1464(b)(4)(i) and (iii)...  Amended to modify the requirements to
                                include verification of last date of
                                independent third-party engineering
                                review as occurring within the three-
                                year cycle under Sec.   80.1450(d)(3).
80.1469(c)(1)(vii)...........  Amended to modify the requirements for
                                Quality Assurance Plans to allow for a
                                renewable fuel for which RINs were
                                previously generated to be used as a
                                feedstock if done in accordance with
                                Sec.   80.1426(c)(6).
80.1471(c)...................  Amended to correct an erroneous reference
                                to 31 CFR 50.5(q) to now be 31 CFR
                                50.4(t), and to allow comparable
                                financial strength ratings if acceptable
                                to EPA.
80.1475(d)(1) and (3)........  Amended by correcting erroneous
                                references to paragraph (b) to now be to
                                paragraph (c).
------------------------------------------------------------------------

IX. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive orders
can be found at http://www.epa.gov/laws-regulations/laws-and-executive-orders.

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 potential costs
and benefits associated with this action. This analysis is presented in
the RIA, available in the docket for this action.

B. Paperwork Reduction Act (PRA)

    The information collection activities in this rule have been
submitted for approval to the Office of Management and Budget (OMB)
under the PRA. The Information Collection Request (ICR) document that
EPA prepared has been assigned EPA ICR number 2691.02. You can find a
copy of the ICR in the docket for this rule, and it is briefly
summarized here. The information collection requirements are not
enforceable until OMB approves them.
    The information to be collected is necessary to implement the
inclusion of biointermediates to the RFS program. Biointermediate
producers and importers will be added as respondents and certain
existing respondents (e.g., renewable fuel producers) may have
additional reporting and recordkeeping requirements related to their
use of biointermediates. Recordkeeping and reporting requirements
include the registration of biointermediate producers and their
facilities; product transfer documentation; records retention related
to the production, transfer, and use of biointermediates; annual attest
engagements; quality assurance plans for biointermediates; and the
submission of information related to renewable fuels produced using
biointermediates. These items are discussed in detail in the supporting
statement in the docket.
    Respondents/affected entities: Biointermediate producers, renewable
fuel producers, biointermediate importers, and third parties who submit
reports for these parties.
    Respondent's obligation to respond: Mandatory, under 40 CFR parts
80 and 1090.
    Estimated number of respondents: 5,052.
    Frequency of response: On occasion, daily, quarterly, or annually.
    Total estimated burden: 167,385 hours (per year). Burden is defined
at 5 CFR 1320.3(b).
    Total estimated cost: $9,262,146 (per year), all of which is
purchased services, and which includes $0 annualized capital or
operation & maintenance costs.
    An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations in 40 CFR are listed in 40 CFR part 9. When OMB approves
this ICR, EPA will announce that approval in the Federal Register and
publish a technical amendment to 40 CFR part 9 to display the OMB
control number for the approved information collection activities
contained in this final rule.

C. 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, EPA concludes that the impact of concern for
this rule is any significant adverse economic impact on small entities
and that the agency is certifying that this rule will not have a
significant economic impact on a substantial number of small entities
if

the rule has no net burden on the small entities subject to the rule.
    With respect to the biointermediate provisions, participation in
the biointermediates program is purely voluntary. We do not believe
that a small biointermediate producer or renewable fuel producer will
choose to take advantage of the biointermediate program unless there is
sufficient economic incentive for them to do so. Current small
renewable fuel producers will not be compelled to use biointermediates,
and as such, any costs associated with these provisions are also purely
voluntary. Also, the biointermediates program will create new
opportunities for small entities that may be able to build smaller
operations than a full-scale renewable fuel production facility. These
entities would likely not be able to otherwise participate in the RFS
program. With respect to the other amendments to the RFS regulations,
this action makes relatively minor corrections and modifications to
those regulations. As such, we do not anticipate that there will be any
significant adverse economic impact on directly regulated small
entities as a result of these provisions.
    The small entities directly regulated by the annual percentage
standards associated with the RFS volumes are small refiners, which are
defined at 13 CFR 121.201. With respect to the 2020, 2021, and 2022
percentage standards and 2022 supplemental standard, we have evaluated
the impacts on small entities from two perspectives: as if the
standards were a standalone action or if they are a part of the overall
impacts of the RFS program as a whole.
    To evaluate the impacts of the volume requirements on small
entities, we have conducted a screening analysis \274\ 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 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.\275\
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 being passed on to consumers in the highly competitive
marketplace. Even if we were to assume that the cost of acquiring RINs
was not recovered by obligated parties, a cost-to-sales ratio test
shows that the costs to small entities of the RFS standards established
in this action are far less than 1 percent of the value of their
sales.\276\
---------------------------------------------------------------------------

    \274\ See Chapter 11 of the RIA.
    \275\ 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; ``April 2022 Denial of Petitions for RFS Small
Refinery Exemptions,'' EPA-420-R-22-005, April 2022; ``June 2022
Denial of Petitions for RFS Small Refinery Exemptions,'' EPA-420-R-
22-011, June 2022.
    \276\ A cost-to-sales ratio of 1 percent represents a typical
agency threshold for determining the significance of the economic
impact on small entities. See ``Final Guidance for EPA Rulewriters:
Regulatory Flexibility Act as amended by the Small Business
Regulatory Enforcement Fairness Act,'' November 2006.
---------------------------------------------------------------------------

    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 our 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.\277\ 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.
---------------------------------------------------------------------------

    \277\ 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. The cellulosic biofuel, advanced biofuel, and total renewable
fuel 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 CAA), the
volume requirements in this rule reduce burden on small entities.
Regarding the BBD standard, it is a nested standard within the advanced
biofuel category, and as discussed in Section III.F, the 2022 BBD
volume requirement is below the volume of BBD that is anticipated to be
produced and used to satisfy the advanced biofuel and total renewable
fuel requirements. In other words, the volume of BBD actually used in
2022 will be driven not by the 2022 BBD standard, but rather by the
2022 advanced biofuel and total renewable fuel standards. The net
result of the standards being promulgated in this action is a reduction
in burden as compared to implementation of the statutory volume targets
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 existing compliance
flexibilities in the program that small entities can take advantage of.
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, provided 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.
    In sum, this final rule will not change the compliance
flexibilities currently offered to small entities under the RFS program
and available information shows that the impact on small entities

from implementation of this rule will not be significant when 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 all directly regulated
small entities.

D. 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.

E. Executive Order 13132: Federalism

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

F. 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.

G. 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)). While this action is not covered by
Executive Order 13045, a discussion of environmental health impacts is
included in Chapter 3 of the RIA.

H. 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 2020,
2021, and 2022 pursuant to the CAA. 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.

I. National Technology Transfer and Advancement Act (NTTAA) and 1 CFR
Part 51

    This action involves technical standards. We are updating the
existing test methods and standards in the RFS regulations to more
recent versions. In accordance with the requirements of 1 CFR 51.5, we
are incorporating by reference the use of test methods and standards
from ASTM International. A detailed discussion of these test methods
and standards can be found in Section VIII.H. The standards and test
methods may be obtained through the ASTM International website
(www.astm.org) or by calling ASTM International at<PHONE_NUMBER>. (In
addition to the standards and test methods listed below, ASTM E711 is
also referenced in the regulatory text of this final rule. It was
approved for IBR as of July 1, 2010, and no changes are being
finalized.)

Table IX.I-1--Standards and Test Methods To Be Incorporated by Reference
------------------------------------------------------------------------
   Organization and standard or test
                 method                            Description
------------------------------------------------------------------------
ASTM D975-21, Standard Specification     Diesel fuel specifications that
 for Diesel Fuel, approved August 1,      must be met to qualify for
 2021.                                    RINs for renewable fuels.
ASTM D1250-19e1, Standard Guide for the  Standard guide used by industry
 Use of the Joint API and ASTM Adjunct    for determining temperature
 for Temperature and Pressure Volume      corrected standardized volumes
 Correction Factors for Generalized       under the RFS program.
 Crude Oils, Refined Products, and
 Lubricating Oils: API MPMS Chapter
 11.1, approved May 1, 2019.
ASTM D4442-20, Standard Test Methods     Test method used for
 for Direct Moisture Content              determining moisture content
 Measurement of Wood and Wood-Based       of wood samples that must be
 Materials, approved March 1, 2020.       met when qualifying for RINs
                                          for renewable fuels.
ASTM D4444-13 (2018), Standard Test      Test method used for
 Method for Laboratory Standardization    determining moisture content
 and Calibration of Hand-Held Moisture    of wood samples that must be
 Meters, reapproved July 1, 2018.         met when qualifying for RINs
                                          for renewable fuels.
ASTM D6751-20a, Standard Specification   Biodiesel fuel specifications
 for Biodiesel Fuel Blend Stock (B100)    that must be met to qualify
 for Middle Distillate Fuels, approved    for RINs for renewable fuels.
 August 1, 2020.
ASTM D6866-22, Standard Test Methods     Radiocarbon dating test method
 for Determining the Biobased Content     to determine the renewable
 of Solid, Liquid, and Gaseous Samples    content of transportation
 Using Radiocarbon Analysis, approved     fuel.
 March 15, 2022.
ASTM E870-82 (2019), Standard Test       Test method that covers the
 Methods for Analysis of Wood Fuels,      proximate and ultimate
 reapproved April 1, 2019.                analysis of wood fuels, as
                                          well as the determination of
                                          the gross caloric value of
                                          wood sampled and prepared by
                                          prescribed test methods and
                                          analyzed according to ASTM
                                          established procedures that
                                          must be met when qualifying
                                          for RINs for renewable fuels.
------------------------------------------------------------------------

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

    Due to time constraints and uncertainty about where impacts are
likely to occur, EPA is able to evaluate only qualitatively the extent
to which this action may result in 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). While there is
the potential for GHG emission reductions as a result of this action,
both positive and negative changes in air and water quality could also
occur due to increases in biofuel production. Land use change to bring
more corn, soy, or other crops into production in response to the
action could also affect air, water, and soil quality in specific
locations. These environmental changes, combined with future climate
change impacts, may be unevenly distributed across geographies and thus
affect different demographics, such as people of color, low income, or
indigenous populations. Such effects are uncertain and challenging to
predict on a granular spatial scale. A summary of our approach for
considering potential EJ concerns as a result of this action can be
found in Section I.J, and our EJ analysis (including a discussion of
this action's potential impacts on GHGs, air quality, water quality,
and fuel and food prices) can be found in Chapter 8 of the RIA,
available in the docket for this action.

K. Congressional Review Act (CRA)

    This action is subject to the CRA, and the 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).

X. Statutory Authority

    Statutory authority for this action comes from sections 114, 203-
05, 208, 211, and 301 of the Clean Air Act, 42 U.S.C. 7414, 7522-24,
7542, 7545, and 7601.

List of Subjects

40 CFR Part 80

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

40 CFR Part 1090

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

Michael S. Regan,
Administrator.

    For the reasons set forth in the preamble, EPA amends 40 CFR parts
80 and 1090 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 A--General Provisions

0
2. Add Sec.  80.11 to read as follows:

Sec.  80.11   Confidentiality of information.

    (a) Except as specified in paragraph (b) of this section,
information obtained by the Administrator or his representatives
pursuant to this part shall be treated, in so far as its
confidentiality is concerned, in accordance with the provisions of 40
CFR part 2, subpart B.
    (b) Information contained in EPA notices of violation, settlement
agreements, administrative complaints, civil complaints, criminal
information, and criminal indictments is not entitled to confidential
treatment and therefore EPA may publicly disclose such information.
Such information includes the company name and EPA-issued company
identification number, the facility name and EPA-issued facility
identification number, the total quantity of fuel and parameter, the
time or time period when the violation occurred, information relating
to the generation, transfer, or use of credits, and any other
information relevant to describing the violation.

Subpart M--Renewable Fuel Standard

0
3. Amend Sec.  80.1401 by:
0
a. Revising the definition of ``Agricultural digester'';
0
b. Adding in alphabetical order the definition of ``Approved pathway'';
0
c. Revising the definition of ``Baseline volume'';
0
d. Adding in alphabetical order the definition of ``Biocrude'';
0
e. Revising the definition of ``Biodiesel'';
0
f. Adding in alphabetical order the definitions of ``Biodiesel
distillation bottoms'', ``Biointermediate'', ``Biointermediate import
facility'', ``Biointermediate importer'', ``Biointermediate producer'',
``Biointermediate production facility'', and ``Biomass-based sugars'';
0
g. Revising the definitions of ``Combined heat and power (CHP)'' and
``Co-processed'';
0
h. Adding in alphabetical order the definition of ``Digestate'';
0
i. Revising the definitions ``Facility'' and ``Foreign renewable fuel
producer'';
0
j. Adding in alphabetical order the definitions of ``Free fatty acid
(FFA) feedstock'' and ``Glycerin'';
0
k. Revising paragraph (1) in the definition of ``Non-ester renewable
diesel'' and the definition of ``Non-renewable feedstock'';
0
l. Adding in alphabetical order the definition of ``Professional
liability insurance'';
0
m. Revising the definitions of ``Quality assurance audit'' and
``Quality assurance plan'', paragraph (7) in the definition of
``Renewable biomass'', and the introductory text and paragraph (1)(i)
in the definition of ``Renewable fuel''; and
0
m. Adding in alphabetical order the definitions of ``Separated food
waste'', ``Separated municipal solid waste (MSW)'', ``Separated yard
waste'', ``Soapstock'', and ``Undenatured ethanol''.
    The revisions and additions read as follows:

Sec.  80.1401   Definitions.

* * * * *
    Agricultural digester means an anaerobic digester that processes
only animal manure, crop residues, or separated yard waste with an
adjusted cellulosic content of at least 75%. Each and every material
processed in an agricultural digester must have an adjusted cellulosic
content of at least 75%.
* * * * *
    Approved pathway means a pathway listed in Table 1 to Sec.  80.1426
or in a petition approved under Sec.  80.1416.
* * * * *
    Baseline volume means the permitted capacity or, if permitted
capacity cannot be determined, the actual peak capacity or nameplate
capacity as applicable pursuant to Sec.  80.1450(b)(1)(v)(A) through
(C), of a specific renewable fuel production facility on a calendar
year basis.
    Biocrude means a liquid biointermediate that meets all the
following requirements:
    (1) It is produced at a biointermediate production facility using
one or more of the following processes:

    (i) A process identified in row M under Table 1 to Sec.  80.1426.
    (ii) A process identified in a pathway listed in a petition
approved under Sec.  80.1416 for the production of renewable fuel
produced from biocrude.
    (2) It is to be used to produce renewable fuel at a refinery as
defined in 40 CFR 1090.80.
    Biodiesel means a mono-alkyl ester that meets ASTM D6751
(incorporated by reference, see Sec.  80.1468).
    Biodiesel distillation bottoms means the heavier product from
distillation at a biodiesel production facility that does not meet the
definition of biodiesel.
* * * * *
    Biointermediate means any feedstock material that is intended for
use to produce renewable fuel and meets all of the following
requirements:
    (1) It is produced from renewable biomass.
    (2) It has not previously had RINs generated for it.
    (3) It is produced at a facility registered with EPA that is
different than the facility at which it is used as feedstock material
to produce renewable fuel.
    (4) It is produced from the feedstock material identified in an
approved pathway, will be used to produce the renewable fuel listed in
that approved pathway, and is produced and processed in accordance with
the process(es) listed in that approved pathway.
    (5) Is one of the following types of biointermediate:
    (i) Biocrude.
    (ii) Biodiesel distillate bottoms.
    (iii) Biomass-based sugars.
    (iv) Digestate.
    (v) Free fatty acid (FFA) feedstock.
    (vi) Glycerin.
    (vii) Soapstock.
    (viii) Undenatured ethanol.
    (6) It is not a feedstock material identified in an approved
pathway that is used to produce the renewable fuel specified in that
approved pathway.
    Biointermediate import facility means any facility as defined in 40
CFR 1090.80 where a biointermediate is imported from outside the
covered location into the covered location.
    Biointermediate importer means any person who owns, leases,
operates, controls, or supervises a biointermediate import facility.
    Biointermediate producer means any person who owns, leases,
operates, controls, or supervises a biointermediate production
facility.
    Biointermediate production facility means all of the activities and
equipment associated with the production of a biointermediate starting
from the point of delivery of feedstock material to the point of final
storage of the end biointermediate product, which are located on one
property, and are under the control of the same person (or persons
under common control).
* * * * *
    Biomass-based sugars means sugars (e.g., dextrose, sucrose, etc.)
extracted from renewable biomass under an approved pathway, other than
through a form change described in Sec.  80.1460(k)(2).
* * * * *
    Combined heat and power (CHP), also known as cogeneration, refers
to industrial processes in which waste heat from the production of
electricity is used for process energy in a biointermediate or
renewable fuel production facility.
* * * * *
    Co-processed means that renewable biomass or a biointermediate was
simultaneously processed with fossil fuels or other non-renewable
feedstock in the same unit or units to produce a fuel that is partially
derived from renewable biomass or a biointermediate.
* * * * *
    Digestate means the material that remains following the anaerobic
digestion of renewable biomass in an anaerobic digester. Digestate must
only contain the leftovers that were unable to be completely converted
to biogas in an anaerobic digestor that is part of an EPA-accepted
registration under Sec.  80.1450.
* * * * *
    Facility means all of the activities and equipment associated with
the production of renewable fuel or a biointermediate starting from the
point of delivery of feedstock material to the point of final storage
of the end product, which are located on one property, and are under
the control of the same person (or persons under common control).
* * * * *
    Foreign renewable fuel producer means a person from a foreign
country or from an area outside the covered locations who produces
renewable fuel for use in transportation fuel, heating oil, or jet fuel
for export to the covered location. Foreign ethanol producers are
considered foreign renewable fuel producers.
* * * * *
    Free fatty acid (FFA) feedstock means a biointermediate that is
composed of at least 50 percent free fatty acids. FFA feedstock must
not include any free fatty acids from the refining of crude palm oil.
* * * * *
    Glycerin means a coproduct from the production of biodiesel that
primarily contains glycerol.
* * * * *
    Non-ester renewable diesel * * *
    (1) A fuel or fuel additive that meets the Grade No. 1-D or No. 2-D
specification in ASTM D975 (incorporated by reference, see Sec.
80.1468) and can be used in an engine designed to operate on
conventional diesel fuel; or
* * * * *
    Non-renewable feedstock means a feedstock (or any portion thereof)
that does not meet the definition of renewable biomass or
biointermediate in this section.
* * * * *
    Professional liability insurance means insurance coverage for
liability arising out of the performance of professional or business
duties related to a specific occupation, with coverage being tailored
to the needs of the specific occupation. Examples include abstracters,
accountants, insurance adjusters, architects, engineers, insurance
agents and brokers, lawyers, real estate agents, stockbrokers, and
veterinarians. For purposes of this definition, professional liability
insurance does not include directors and officers liability insurance.
* * * * *
    Quality assurance audit means an audit of a renewable fuel
production facility or biointermediate production facility conducted by
an independent third-party auditor in accordance with a QAP that meets
the requirements of Sec. Sec.  80.1469, 80.1472, and 80.1477.
    Quality assurance plan, or QAP, means the list of elements that an
independent third-party auditor will check to verify that the RINs
generated by a renewable fuel producer or importer are valid or to
verify the appropriate production of a biointermediate. A QAP includes
both general and pathway specific elements.
* * * * *
    Renewable biomass * * *
    (7) Separated yard waste or food waste, including recycled cooking
and trap grease.
* * * * *
    Renewable fuel means a fuel that meets all the following
requirements:
    (1)(i) Fuel that is produced either from renewable biomass or from
a biointermediate produced from renewable biomass.
* * * * *
    Separated food waste means a feedstock stream consisting of food

waste kept separate since generation from other waste materials, and
which includes food and beverage production waste and post-consumer
food and beverage waste.
    Separated municipal solid waste (MSW) means material remaining
after separation actions have been taken to remove recyclable paper,
cardboard, plastics, rubber, textiles, metals, and glass from municipal
solid waste, and which is composed of both cellulosic and non-
cellulosic materials.
    Separated yard waste means a feedstock stream consisting of yard
waste kept separate since generation from other waste materials.
* * * * *
    Soapstock means an emulsion, or the oil obtained from separation of
that emulsion, produced by washing oils listed as a feedstock in an
approved pathway with water.
* * * * *
    Undenatured ethanol means a liquid that meets one of the
definitions in paragraph (1) of this definition:
    (1)(i) Ethanol that has not been denatured as required in 27 CFR
parts 19 through 21.
    (ii) Specially denatured alcohol as defined in 27 CFR 21.11.
    (2) Undenatured ethanol is not renewable fuel.
* * * * *

0
4. Revise Sec.  80.1402 to read as follows:

Sec.  80.1402   Availability of information; confidentiality of
information.

    (a) Beginning January 1, 2020, no claim of business confidentiality
may be asserted by any person with respect to information submitted to
EPA under Sec.  80.1451(c)(2)(ii)(E), whether submitted electronically
or in paper format.
    (b) The following information contained in EPA determinations that
RINs are invalid under Sec.  80.1474(b)(4)(i)(C)(2) and
(b)(4)(ii)(C)(2), notices of violation, settlement agreements,
administrative complaints, civil complaints, criminal information, and
criminal indictments arising under this subpart is not entitled to
confidential treatment and the provisions of 40 CFR 2.201 through 2.215
and 2.301 do not apply:
    (1) The company name.
    (2) The name and location of the facility at which the fuel
associated with the RINs in question was allegedly produced or
imported.
    (3) The EPA-issued company or facility identification number of the
party that produced the fuel or generated the RINs in question.
    (4) The total quantity of fuel and RINs in question.
    (5) The time period when the fuel was allegedly produced.
    (6) The time period when the RINs in question were generated.
    (7) The batch number(s) and the D code(s) of the RINs in question.
    (8) Information relating to the generation, transfer, or use of
RINs.
    (9) The shortfall in RINs related to an obligated party's failure
to meet its renewable volume obligation.
    (10) Any other information relevant to describing the violation.
    (c) The following information contained in submissions under this
subpart is not entitled to confidential treatment and the provisions of
40 CFR 2.201 through 2.215 and 2.301 do not apply:
    (1) Submitter's name.
    (2) The name and location of the facility, if applicable.
    (3) The date the submission was transmitted to EPA.
    (4) Any EPA-issued company or facility identification numbers
associated with the submission.
    (5) The purpose of the submission.
    (6) The relevant time period for the submission, if applicable.
    (d) The following information incorporated into EPA determinations
on submissions under this subpart is not entitled to confidential
treatment and the provisions of 40 CFR 2.201 through 2.215 and 2.301 do
not apply:
    (1) Submitter's name.
    (2) The name and location of the facility, if applicable.
    (3) The date the submission was transmitted to EPA.
    (4) Any EPA-issued company or facility identification numbers
associated with the submission.
    (5) The purpose of the submission.
    (6) The relevant time period of the submission, if applicable.
    (7) The extent to which EPA granted or denied the request and any
relevant terms and conditions.
    (e) Except as otherwise specified in this section, any information
submitted under this part claimed as confidential remains subject to
evaluation by EPA under 40 CFR part 2, subpart B.
    (f) EPA may disclose the information specified in paragraphs (a)
through (d) of this section on its website, or otherwise make it
available to interested parties, without additional notice or process,
notwithstanding any claims that the information is entitled to
confidential treatment under 40 CFR part 2, subpart B.

0
5. Amend Sec.  80.1405 by revising paragraph (a)(11) and adding
paragraphs (a)(12) and (13) to read as follows:

Sec.  80.1405   What are the Renewable Fuel Standards?

    (a) * * *
    (11) Renewable Fuel Standards for 2020. (i) The value of the
cellulosic biofuel standard for 2020 shall be 0.32 percent.
    (ii) The value of the biomass-based diesel standard for 2020 shall
be 2.30 percent.
    (iii) The value of the advanced biofuel standard for 2020 shall be
2.93 percent.
    (iv) The value of the renewable fuel standard for 2020 shall be
10.82 percent.
    (12) Renewable Fuel Standards for 2021. (i) The value of the
cellulosic biofuel standard for 2021 shall be 0.33 percent.
    (ii) The value of the biomass-based diesel standard for 2021 shall
be 2.16 percent.
    (iii) The value of the advanced biofuel standard for 2021 shall be
3.00 percent.
    (iv) The value of the renewable fuel standard for 2021 shall be
11.19 percent.
    (13) Renewable Fuel Standards for 2022. (i) The value of the
cellulosic biofuel standard for 2022 shall be 0.35 percent.
    (ii) The value of the biomass-based diesel standard for 2022 shall
be 2.33 percent.
    (iii) The value of the advanced biofuel standard for 2022 shall be
3.16 percent.
    (iv) The value of the renewable fuel standard for 2022 shall be
11.59 percent.
    (v) The value of the supplemental total renewable fuel standard for
2022 shall be 0.14 percent.
* * * * *

0
6. Amend Sec.  80.1407 by revising paragraph (f)(1) to read as follows:

Sec.  80.1407   How are the Renewable Volume Obligations calculated?

* * * * *
    (f) * * *
    (1) Any renewable fuel. Renewable fuel for which a RIN is invalidly
generated under Sec.  80.1431 may not be excluded from a party's
renewable volume obligations.
* * * * *

Sec.  80.1408   [Amended]

0
7. Amend Sec.  80.1408(a)(2)(i)(B) and (a)(2)(ii)(B) by removing
``Sec.  80.1454(t)'' and adding ``Sec.  80.1454(o)'' in its place.

0
8. Amend Sec.  80.1415 by revising paragraphs (c)(2)(ii) and (iii) to
read as follows:

Sec.  80.1415   How are equivalence values assigned to renewable fuel?

* * * * *
    (c) * * *
    (2) * * *
    (ii) For each feedstock, biointermediate, component, or additive

that is used to make the renewable fuel, provide a description, the
percent input, and identify whether or not it is renewable biomass or
is derived from renewable biomass.
    (iii) For each feedstock or biointermediate that also qualifies as
a renewable fuel, state whether or not RINs have been previously
generated for such feedstock.
* * * * *

0
9. Amend Sec.  80.1416 by revising paragraphs (b)(1)(ii) and (iii) to
read as follows:

Sec.  80.1416   Petition process for evaluation of new renewable fuels
pathways.

* * * * *
    (b)(1) * * *
    (ii) A technical justification that includes a description of the
renewable fuel, feedstock(s), and biointermediate(s) used to make it,
and the production process. The justification must include process
modeling flow charts.
    (iii) A mass balance for the pathway, including feedstocks and
biointermediates, fuels produced, co-products, and waste materials
production.
* * * * *

0
10. Amend Sec.  80.1426 by:
0
a. Adding paragraph (a)(4);
0
b. Removing the headings from paragraphs (c)(2) and (3);
0
c. Adding paragraph (c)(8);
0
d. Revising paragraph (f)(1);
0
e. Immediately following paragraph (f)(1), in table 1 to Sec.  80.1426
revising entries F and H;
0
f. Revising paragraph (f)(3)(vi);
0
g. Revising the heading of paragraph (f)(4);
0
h. In paragraph (f)(4)(i)(A)(1), revising the definitions of
``FER'' and ``FENR'';
0
i. Adding paragraph (f)(4)(iv);
0
j. Revising and republishing paragraph (f)(5);
0
k. Revising paragraphs (f)(7)(v)(A) and (B), (f)(8)(ii)(B), (f)(9)(ii),
(f)(15)(i) introductory text, and (f)(16)(iii);
0
l. Adding a heading to paragraph (f)(17);
0
m. Revising paragraphs (f)(17)(i) introductory text and
(f)(17)(i)(B)(1) and (2).
    The additions and revisions read as follows:

Sec.  80.1426   How are RINs generated and assigned to batches of
renewable fuel?

    (a) * * *
    (4) Where a feedstock or biointermediate is used to produce
renewable fuel and is not entirely renewable biomass, RINs may only be
generated for the portion of fuel that is derived from renewable
biomass, as calculated under paragraph (f)(4) of this section.
* * * * *
    (c) * * *
    (8) RINs must not be generated for a biointermediate.
* * * * *
    (f) * * *
    (1) Applicable pathways. (i) D codes shall be used in RINs
generated by producers or importers of renewable fuel according to the
pathways listed in Table 1 to this section, paragraph (f)(6) of this
section, or as approved by the Administrator.
    (ii) In choosing an appropriate D code, producers and importers may
disregard any incidental, de minimis feedstock contaminants that are
impractical to remove and are related to customary feedstock production
and transport.
    (iii) Tables 1 and 2 to this section do not apply to, and impose no
requirements with respect to, volumes of fuel for which RINs are
generated pursuant to paragraph (f)(6) of this section.
    (iv) Pathways in Table 1 to this section and advanced technologies
in Table 2 to this section also apply in cases where the renewable fuel
producer is using a biointermediate.
    (v) For the purposes of identifying the appropriate pathway in
Table 1 to this section, biointermediates used for the production of
renewable fuel are considered to be equivalent to the renewable biomass
from which they were derived, with the following exceptions:
    (A) Oil that is physically separated from any woody or herbaceous
biomass and used to produce renewable fuel shall not generate D-code 3
or 7 RINs.
    (B) Sugar or starch that is physically separated from cellulosic
biomass and used to produce renewable fuel shall not generate D-code 3
or 7 RINs.
    (vi) If a renewable fuel producer uses a biointermediate for the
production of renewable fuel, additional requirements apply to both the
renewable fuel producer and the biointermediate producer as described
in Sec.  80.1476.

         Table 1 to Sec.   80.1426--Applicable D Codes for Each Fuel Pathway for Use in Generating RINs
----------------------------------------------------------------------------------------------------------------
                                                                              Production process
                                        Fuel type            Feedstock           requirements         D-code
----------------------------------------------------------------------------------------------------------------

                                                  * * * * * * *
F................................  Biodiesel,           Soy bean oil; Oil    One of the                        4
                                    renewable diesel,    from annual          following:
                                    jet fuel and         covercrops; Oil      Transesterificatio
                                    heating oil.         from algae grown     n with or without
                                                         photosynthetically   esterification pre-
                                                         ; Biogenic waste     treatment,
                                                         oils/fats/greases;   Esterification, or
                                                         Camelina sativa      Hydrotreating;
                                                         oil; Distillers      excludes processes