O 042130Z MAY 09
FM SECSTATE WASHDC
TO ASIAN PACIFIC ECONOMIC COOPERATION IMMEDIATE
EC CARICOM COLLECTIVE IMMEDIATE
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AMEMBASSY OTTAWA IMMEDIATE

UNCLAS STATE 045222 
 
 
E.O. 12958: N/A 
TAGS: EAGR ECON EINV ENRG EPA EPET ETRD
SUBJECT: BIOFUELS RULEMAKING: GUIDANCE ON RESPONDING TO 
CONCERNS AND INQUIRIES 
 
¶1. (U) This cable provides information about an imminent 
rulemaking announcement that is likely to be of significant 
international interest, and guidance for responding to 
requests for information or comments.  Posts should restrict 
their discussion to the talking points in paragraph 17. 
Inquiries or issues that go beyond the talking points, 
including any next steps on dialogue or engagement on the 
rulemaking, should be referred to Washington, specifically 
the points of contact in paragraph 18. 
 
¶2. (U) SUMMARY: EPA is proposing revisions to the National 
Renewable Fuel Standard program (RFS), as required by the 
Energy Independence and Security Act of 2007 (EISA) in a 
Notice of Proposed Rulemaking (NPRM).  EISA increased the 
required volumes of biofuels in the U.S. fuel supply and set 
required levels of greenhouse gas emissions reductions for 
biofuels as compared to the petroleum fuel they replace. 
This is a significant rulemaking for a number of reasons. 
Chief among them from an international perspective will be 
the life cycle analysis estimating greenhouse gas (GHG) 
emissions from indirect land use change (ILUC) associated 
with growing biofuel feedstocks.  The U.S. recognizes that 
there is likely to be an interest in potential trade 
implications.  The proposed RFS rule is written to treat 
neutrally the country of origin of the fuel.  The same 
proposed requirements would apply to domestic producers, 
importers, and foreign producers.  Biofuel facilities -- 
domestic and foreign -- that existed before the December 2007 
EISA enactment date are grandfathered and are not required to 
meet the greenhouse gas (GHG) requirement for the Renewable 
Fuel category.  Throughout the rulemaking, EPA has worked 
closely with other countries -- particularly significant 
biofuels producers and exporters, such as Brazil -- in 
addition to other stakeholders and USG agencies to hear 
concerns, discuss the RFS, and to incorporate best-available 
data.  EPA will continue this practice during the 60-day 
public comment period.  In addition, the U.S. Government will 
notify the WTO TBT Committee of the NPRM.  OMB completed its 
review of the NPRM on April 29, and EPA expects to publish it 
early during the week of May 4th.  Two EPA Fact Sheets that 
will accompany the publication provide additional detail on 
the RFS program and the proposed GHG life cycle analysis. 
This document focuses on RFS international issues. 
 
Renewable Fuel Standard Overview 
 
¶3. (U) EPA is proposing revisions to the National Renewable 
Fuel Standard program (RFS), as required by the Energy 
Independence and Security Act of 2007 (EISA).  EISA requires 
a significant increase in the volume of renewable fuels that 
are blended into transportation gasoline and diesel in the 
U.S., reaching a total of 36 billion gallons in 2022.  Within 
this total, EISA established specific volume requirements for 
several different biofuel types: advanced biofuels, including 
cellulosic biofuels, non-cellulosic biofuels, and 
biomass-based diesel and general renewable biofuels. 
 
¶4. (U) To qualify for the volume requirements, renewable fuel 
feedstocks must come from previously-cultivated lands, meet 
the definition of renewable biomass and achieve certain 
levels of greenhouse gas emission reductions in comparison to 
the gasoline and diesel fuels they displace.  Cellulosic 
biofuels must reduce GHG emissions by 60%; non-cellulosic 
advanced by 50%, biomass based diesel by 50%, and general 
renewable fuels from new facilities by 20%.  However, EISA 
grants EPA authority to lower each of these thresholds by as 
much as 10%, and EPA is proposing to reduce the 
non-cellulosic, advanced biofuels threshold from 50% to 44% 
or lower, depending on results from the final GHG life cycle 
analyses. 
 
¶5. (U) Just as the regulatory requirements established in 
this proposal will apply to domestic and foreign producers 
and importers of renewable fuel, both foreign and domestic 
facilities constructed prior to enactment of EISA are 
considered to be grandfathered for the Renewable Fuel 
category and not required to meet the 20% GHG emission 
reduction threshold. 
 
International Issues 
 
¶6. (U) EPA Outreach to International Counterparts 
Throughout the RFS rulemaking process, EPA has worked closely 
with other countries in addition to domestic stakeholders and 
USDA, DOE, State, and other USG agencies.  In discussing this 
NPRM, posts should underscore that this is a proposal, and 
not a final rulemaking.  Posts should also underscore that 
all international stakeholders are invited to comment on the 
proposed rule, and the submission of specific data and other 
detailed information is especially welcome. 
 
¶7. (U) Brazil.  Due to Brazil,s significance as the largest 
ethanol exporter and source of renewable fuel volume, and 
because of the potential impacts of the indirect impacts 
associated with changes in agriculture markets, EPA tried to 
gather the best data available from Brazil for the RFS 
modeling efforts.  EPA has had numerous meetings, both in the 
U.S. and in Brazil, with Brazilian government, industry, and 
academic representatives and experts to discuss the RFS and 
to improve Brazil-specific data incorporated into the 
proposed life cycle analysis.  EPA is working with Brazilian 
Institute for International Trade Negotiations (ICONE) to 
incorporate a Brazil agricultural sector module developed by 
ICONE into the international economic model (FAPRI) in the 
life cycle analysis.  As EPA continues to refine the life 
cycle analysis for the final rule, the Agency will continue 
to work with Brazil to incorporate new information on 
Brazilian sectors and policies. 
 
¶8. (U) EU.  EPA has worked in coordination with State, USTR, 
USDA, and DOE to engage in technical exchanges with European 
Commission and country-specific counterparts working on 
similar life cycle assessments for the EU Renewable Energy 
Directive. 
 
¶9. (U) Climate Change.  The United States is committed to 
combating climate change both at home and abroad. President 
Obama has called for a domestic cap and trade program which 
would reduce US emissions by 80% by 2050. We are also 
actively engaged in working towards a successful outcome at 
the climate negotiations later this year in Copenhagen.  This 
process will be supported by the President,s Major Economies 
Forum on Energy and Climate, which seeks to inform and 
complement the UNFCCC process. The EPA NPRM provides an 
important step in advancing the science behind measuring 
greenhouse gas emissions from biofuels production and use. 
 
Trade Considerations. 
 
¶10. (U) The U.S. recognizes that there is interest in 
potential trade implications of biofuels.  We are committed 
to implementing the NPRM through a transparent and open 
public comment process, and consistent with our international 
trade obligations, including under the WTO Technical Barriers 
to Trade (TBT) agreement.  We will notify the TBT committee 
about the NPRM, and WTO Members are likely to raise trade 
concerns at the June 24-25 meeting. 
 
¶11. (U) The proposed RFS rule is written to treat neutrally 
the country of origin of the fuel.  The same proposed 
requirements would apply to domestic producers, importers, 
and foreign producers.  The same methodology is used to 
determine the GHG life cycle performance of all biofuels, 
regardless of country of origin.  The proposed rule outlines 
which biofuels will receive credit toward the volume 
requirements under the Energy Independence and Security Act 
of 2007 (EISA).  It also makes public EPA,s proposed GHG 
emissions reduction for renewable fuel pathways of biofuels 
(both domestic and imported) and the methodologies used to 
make those initial determinations.  Trading partners may have 
questions about EPA,s analysis, particularly its assumptions 
and data relating to ILUC.  Trading partners may also have an 
interest in using these initial determinations and/or 
methodologies in their own examination of biofuels, including 
U.S. biofuels. 
 
General Renewable Fuel & Grandfathering Provisions 
 
¶12. (U) Of the 36 billion gallons of renewable fuel required 
to be blended into gasoline by 2022, 15 billion gallons may 
be in the general Renewable Fuel category.  Biofuel 
facilities -- domestic and foreign -- that existed before 
December 2007 EISA enactment date are grandfathered and are 
not required to meet any GHG requirement to qualify for this 
category.  For other facilities, any renewable fuel pathways 
that demonstrate reductions in GHG emissions by at least 20% 
can qualify in the general Renewable Fuel category. 
 
Advanced Biofuel: Proposed Threshold Adjustments 
 
¶13. (U) EPA market projections show imported sugarcane 
ethanol may contribute substantially to filling the Advanced 
biofuel category volume.  EISA assigns Advanced biofuels a 
50% GHG reduction threshold.  For sugarcane ethanol, one of 
the proposed life cycle analysis methods (30 year time 
horizon, 0% discount rate) shows a 26% reduction in GHG 
emissions; another (100 year 2% discount rate approach) 
indicates a 44% reduction.  EISA provides EPA with authority 
to adjust thresholds downward by up to 10 percent.  In the 
NPRM, EPA proposes to adjust the GHG threshold for Advanced 
biofuels to 44%, or potentially as low as 40%, depending on 
results from the final analyses. 
 
Indirect Land Use Change 
 
¶14. (U) EISA mandates that GHG emission assessments evaluate 
the full life cycle emission impacts of fuel production, 
taking into account both direct and significant indirect 
emissions, such as significant emissions from land use 
changes in comparison to the life cycle emissions of 2005 
petroleum baseline fuels displaced (gasoline or diesel). 
The life cycle analysis assesses the aggregate quantity of 
GHG from all stages of fuel and feedstock production and 
distribution, from feedstock generation and extraction 
through distribution and delivery and use of the finished 
fuel and from significant indirect responses to fuel 
production, such as land use change.  EPA recognizes the 
significance of using life cycle GHG emission assessments 
that include indirect land use changes.  Therefore, the 
proposed rulemaking is transparent in breaking out the 
various sources of GHG emissions to enable readers to readily 
interpret the impact of including international land use 
impacts. 
 
Next Steps 
 
¶15. (U) A sixty day public comment period on the proposed 
rule will commence after NPRM publication.  Because life 
cycle analysis is a new part of the RFS program, EPA is 
making multiple efforts to solicit public and expert feedback 
on its proposed approach.  EPA will hold a public workshop 
focused specifically on life cycle analysis during the 
comment period to assure full understanding of the analyses 
conducted, the issues addressed and the options that are 
discussed.  EPA will continue technical exchange with Brazil, 
the EU, and other interested countries and their stakeholders. 
 
¶16. (U) Before the final rulemaking, EPA will conduct 
peer-reviews of key components of the analysis.  EPA is 
specifically seeking peer review of the following components: 
use of satellite data to project future land use changes; the 
land conversion GHG emissions factors estimates used for 
different types of land use; estimates of GHG emissions from 
foreign crop production; methods to account for the variable 
timing of GHG emissions; and how the several models EPA has 
relied upon are used together to provide overall life cycle 
GHG estimates. 
 
¶17. (U) Talking Points 
 
Proposed Rulemaking and Public Input 
 
--EPA has published a Notice of Proposed Rulemaking (NPRM) on 
changes to the Renewable Fuel Standard (RFS), as mandated by 
the Energy Independence and Security Act of 2007 (EISA). 
 
--EISA requires an increase in renewable fuels that are 
blended into transportation gasoline and diesel, reaching a 
total of 36 billion gallons in 2022. 
--Several specific categories of renewable fuel volume 
targets were established.  These include specific volume 
standards for advanced biofuels, including cellulosic 
biofuels, non-cellulosic biofuels, and biomass based diesel 
and general renewable biofuels. 
--To qualify for the volume requirements, renewable fuel 
feedstocks must come from previously cultivated lands, meet 
the definition of renewable biomass and achieve certain 
levels of greenhouse gas emission reductions in comparison to 
the gasoline and diesel fuels they displace. 
--Cellulosic biofuels must reduce GHG emissions by 60%; 
non-cellulosic advanced by 50%, biomass based diesel by 50%, 
and general renewable fuels from new facilities by 20%. 
 
--A 60-day comment period follows the publication of the 
proposed rule in the U.S. Federal Registry during which EPA 
welcomes dialogue, input, and additional analyses during the 
60-day public comment period. 
 
-- A public hearing will be held during the 60-day comment 
period.  In addition, EPA will hold a two day work shop on 
the proposed life cycle analysis. 
 
--EPA will -- and is required by law -- consider all public 
input when formulating the final rulemaking. 
 
The same proposed requirements would apply to domestic 
producers, importers, and foreign producers. 
 
Throughout the RFS rulemaking process, EPA has worked closely 
with other countries in addition to domestic stakeholders and 
US government agencies.  The U.S. Government plans to notify 
this measure to the WTO Committee on Technical Barriers to 
Trade, and looks forward to receiving comments from other WTO 
members on it. 
 
Climate Change 
 
--The United States is committed to combating climate change 
both at home and abroad. 
--The EPA NPRM provides an important step in advancing the 
science behind measuring greenhouse gas emissions from 
producing biofuels. 
 
 
IF ASKED 
 
Indirect Land Use Change 
 
--EISA mandates that life cycle GHG emission assessments 
evaluate the full life cycle emission impacts of fuel 
production, taking into account both direct and significant 
indirect emissions such as significant emissions from land 
use changes. 
--EPA recognizes the significance of using life cycle GHG 
emission assessments that include indirect land use changes, 
and the proposed rulemaking is transparent in breaking out 
the sources of GHG emissions. 
--EPA welcomes new information, data, and analyses that will 
contribute to these analyses. 
 
GHG emission reduction from advanced biofuels 
 
--EISA assigns Advanced biofuels a 50% GHG reduction 
threshold; but also provides EPA with authority to adjust 
thresholds downward by up to 10 percent. 
 
Biofuel facilities ) domestic and foreign ) that existed 
before the December 2007 EISA enactment date are 
grandfathered and are not required to meet the GHG 
requirement for the Renewable Fuel category. 
 
Policy Based on Sound Science 
 
--The Obama administration is committed to basing policy on 
sound science. 
-- EPA has used the best available data and peer-reviewed 
models to estimate life cycle GHG emissions associated with 
different renewable fuels. 
--EPA will continue to refine the life cycle methodology 
before the final rulemaking and is conducting further 
peer-review of key component of the analysis.  EPA will 
continue to refine its methodology as new data and analytical 
tools become available. 
 
Consistency of the rule with WTO obligations 
 
--We plan to notify this notice of proposed rulemaking to the 
WTO TBT Committee and look forward to comments from our WTO 
partners.  We are committed to implementing the final rule, 
after taking into account such comments, in a manner 
consistent with our international trade obligations. 
 
¶18. Points of Contact 
 
--EPA       Press Office, Cathy Milbourn, 
Milbourn.Cathy@epa.gov, (202) 564-7849 
--State: Noel Gurwick, GurwickNP@State.Gov, (202) 647-1713 
                  Ben Zaitchik, ZaitchikBF@State.Gov, (202) 
647-1055 
 
¶19. This cable has been coordinated with NSC, EPA, USTR, 
USDA, and COMMERCE 
 
 
CLINTON