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HR2454 Waxman-Markey ACES_001 Clean Energy Act (BILL)
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Clean Energy Politics News: F:\TB\EC\ACES09_001.XML …………………. (Original Signature of Member) H. R. ll 111TH CONGRESS 1ST SESSION To create clean energy jobs, achieve energy independence, reduce global warming pollution and transition to a clean energy economy. IN THE HOUSE OF REPRESENTATIVES Mr. WAXMAN (for himself and Mr. MARKEY of Massachusetts) introduced the following bill; which was referred to the Committee on lllllllllllllll A BILL To create clean energy jobs, achieve energy independence, reduce global warming pollution and transition to a clean energy economy. 1 Be it enacted by the Senate and House of Representa- 2 tives of the United States of America in Congress assembled, 3 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 4 (a) SHORT TITLE.—This Act may be cited as the 5 ‘‘American Clean Energy and Security Act of 2009’’. 6 (b) TABLE CONTENTS.—The table of contents for OF 7 this Act is as follows: Sec. 1. Short title; table of contents. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00001 Fmt 6652 Sfmt 6211 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 2 Sec. 2. Definitions. TITLE I—CLEAN ENERGY Subtitle A—Combined Efficiency and Renewable Electricity Standard Sec. 101. Combined efficiency and renewable electricity standard. ‘‘Sec. 610. Combined efficiency and renewable electricity standard. Subtitle B—Carbon Capture and Sequestration Sec. 111. National strategy. Sec. 112. Regulations for geologic sequestration sites. ‘‘Sec. 813. Geologic sequestration sites. Sec. 113. Studies and reports. Sec. 114. Carbon capture and sequestration demonstration and early deploy- ment program. Sec. 115. Commercial deployment of carbon capture and sequestration tech- nologies. Sec. 116. Performance standards for coal-fueled power plants. ‘‘Sec. 812. Performance standards for new coal-fired power plants. Subtitle C—Clean Transportation Sec. 121. Electric vehicle infrastructure. Sec. 122. Large-scale vehicle electrification program. Sec. 123. Plug-in electric drive vehicle manufacturing. Sec. 124. Investment in clean vehicles. Subtitle D—State Energy and Environment Development Accounts Sec. 131. Establishment of SEED Accounts. Sec. 132. Support of State renewable energy and energy efficiency programs. Subtitle E—Smart Grid Advancement Sec. 141. Definitions. Sec. 142. Assessment of Smart Grid cost effectiveness in products. Sec. 143. Inclusions of Smart Grid capability on appliance ENERGY GUIDE labels. Sec. 144. Smart Grid peak demand reduction goals. Sec. 145. Reauthorization of energy efficiency public information program to include Smart Grid information. Sec. 146. Inclusion of Smart-Grid features in appliance rebate program. Subtitle F—Transmission Planning Sec. 151. Transmission planning. ‘‘Sec. 216A. Transmission planning. Subtitle G—Technical Corrections to Energy Laws Sec. 161. Technical corrections to Energy Independence and Security Act of 2007. Sec. 162. Technical corrections to Energy Policy Act of 2005. Subtitle H—Clean Energy Innovation Centers Sec. 171. Clean energy innovation centers. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00002 Fmt 6652 Sfmt 6211 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 3 Subtitle I—Marine Spatial Planning Sec. 181. Study of ocean renewable energy and transmission planning and siting. TITLE II—ENERGY EFFICIENCY Subtitle A—Building Energy Efficiency Programs Sec. 201. Greater energy efficiency in building codes. ‘‘Sec. 304. Greater energy efficiency in building codes. Sec. 202. Building retrofit program. Sec. 203. Energy efficient manufactured homes. Sec. 204. Building energy performance labeling program. Subtitle B—Lighting and Appliance Energy Efficiency Programs Sec. 211. Lighting efficiency standards. Sec. 212. Other appliance efficiency standards. Sec. 213. Appliance efficiency determinations and procedures. ‘‘Sec. 334. Jurisdiction and venue. Sec. 214. Best-in-Class Appliances Deployment Program. Sec. 215. Purpose of Energy Star. Subtitle C—Transportation Efficiency Sec. 221. Emissions standards. ‘‘PART B—MOBILE SOURCES ‘‘Sec. 821. Greenhouse gas emission standards for mobile sources. Sec. 222. Greenhouse gas emissions reductions through transportation effi- ciency. ‘‘PART D—PLANNING REQUIREMENTS ‘‘Sec. 841. Greenhouse gas emissions reductions through transportation ef- ficiency. Sec. 223. SmartWay transportation efficiency program. ‘‘Sec. 822. SmartWay transportation efficiency program. Sec. 224. State vehicle fleets. Subtitle D—Industrial Energy Efficiency Programs Sec. 241. Industrial plant energy efficiency standards. Sec. 242. Electric and thermal waste energy recovery award program. Sec. 243. Clarifying election of waste heat recovery financial incentives. Subtitle E—Improvements in Energy Savings Performance Contracting Sec. 251. Energy savings performance contracts. Subtitle F—Public Institutions Sec. 261. Public institutions. Sec. 262. Community energy efficiency flexibility. Sec. 263. Small community joint participation. Sec. 264. Low income community energy efficiency program. TITLE III—REDUCING GLOBAL WARMING POLLUTION f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00003 Fmt 6652 Sfmt 6211 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 4 Sec. 301. Short title. Subtitle A—Reducing Global Warming Pollution Sec. 311. Reducing global warming pollution. ‘‘TITLE VII—GLOBAL WARMING POLLUTION REDUCTION PROGRAM ‘‘PART A—GLOBAL WARMING POLLUTION REDUCTION GOALS TARGETS AND ‘‘Sec. 701. Findings and purpose. ‘‘Sec. 702. Economy-wide reduction goals. ‘‘Sec. 703. Reduction targets for specified sources. ‘‘Sec. 704. Supplemental pollution reductions. ‘‘Sec. 705. Review and program recommendations. ‘‘Sec. 706. National academy review. ‘‘Sec. 707. Presidential response and recommendations. ‘‘PART B—DESIGNATION REGISTRATION GREENHOUSE GASES AND OF ‘‘Sec. 711. Designation of greenhouse gases. ‘‘Sec. 712. Carbon dioxide equivalent value of greenhouse gases. ‘‘Sec. 713. Greenhouse gas registry. ‘‘PART C—PROGRAM RULES ‘‘Sec. 721. Emission allowances. ‘‘Sec. 722. Prohibition of excess emissions. ‘‘Sec. 723. Penalty for noncompliance. ‘‘Sec. 724. Trading. ‘‘Sec. 725. Banking and borrowing. ‘‘Sec. 726. Strategic reserve. ‘‘Sec. 727. Permits. ‘‘Sec. 728. International emission allowances. ‘‘PART D—OFFSETS ‘‘Sec. 731. Offsets Integrity Advisory Board. ‘‘Sec. 732. Establishment of offsets program. ‘‘Sec. 733. Eligible project types. ‘‘Sec. 734. Requirements for offset projects. ‘‘Sec. 735. Approval of offset projects. ‘‘Sec. 736. Verification of offset projects. ‘‘Sec. 737. Issuance of offset credits. ‘‘Sec. 738. Audits. ‘‘Sec. 739. Program review and revision. ‘‘Sec. 740. Early offset supply. ‘‘Sec. 741. Environmental considerations. ‘‘Sec. 742. Trading. ‘‘Sec. 743. International offset credits. ‘‘PART E—SUPPLEMENTAL EMISSIONS REDUCTIONS FROM REDUCED DEFORESTATION ‘‘Sec. 751. Definitions. ‘‘Sec. 752. Findings. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00004 Fmt 6652 Sfmt 6211 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 5 ‘‘Sec. 753. Supplemental emissions reductions through reduced deforest- ation. ‘‘Sec. 754. Requirements for international deforestation reduction pro- gram. ‘‘Sec. 755. Reports and reviews. ‘‘Sec. 756. Legal effect of part. Sec. 312. Definitions. ‘‘Sec. 700. Definitions. Subtitle B—Disposition of Allowances Sec. 321. Disposition of allowances for global warming pollution reduction pro- gram. ‘‘PART H—DISPOSITION ALLOWANCES OF ‘‘Sec. 781. Allocation of allowances for supplemental reductions. ‘‘Sec. 782. Allocation of emission allowances. ‘‘Sec. 783. Electricity consumers. ‘‘Sec. 784. Natural gas consumers. ‘‘Sec. 785. Home heating oil and propane consumers. 786-788. øSECTIONS RESERVED¿. ‘‘Sec. ‘‘Sec. 789. Climate change rebates. ‘‘Sec. 790. Exchange for State-issued allowances. ‘‘Sec. 791. Auction procedures. ‘‘Sec. 792. Auctioning allowances for other entities. ‘‘Sec. 793. Establishment of funds. Subtitle C—Additional Greenhouse Gas Standards Sec. 331. Greenhouse gas standards. ‘‘TITLE VIII—ADDITIONAL GREENHOUSE GAS STANDARDS ‘‘Sec. 801. Definitions. ‘‘PART A—STATIONARY SOURCE STANDARDS ‘‘Sec. 811. Standards of performance. ‘‘PART C—EXEMPTIONS FROM OTHER PROGRAMS ‘‘Sec. 831. Criteria pollutants. ‘‘Sec. 832. Hazardous air pollutants. ‘‘Sec. 833. New source review. ‘‘Sec. 834. Title V permits. ‘‘Sec. 835. Existing proceedings. Sec. 332. HFC Regulation. ‘‘Sec. 619. Hydrofluorocarbons (HFCs). Sec. 333. Black carbon. ‘‘PART E—BLACK CARBON ‘‘Sec. 851. Black carbon. Sec. 334. States. Sec. 335. State programs. ‘‘PART F—MISCELLANEOUS f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00005 Fmt 6652 Sfmt 6211 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 6 ‘‘Sec. 861. State programs. Sec. 336. Enforcement. Sec. 337. Conforming amendments. Subtitle D—Carbon Market Assurance Sec. 341. Carbon market assurance. ‘‘PART IV—CARBON MARKET ASSURANCE ‘‘Sec. 401. Oversight and assurance of carbon markets. Subtitle E—Additional Market Assurance Sec. 351. Regulation of certain transactions in derivatives involving energy commodities. Sec. 352. No effect on authority of the Federal Energy Regulatory Commission. Sec. 353. Inspector general of the Commodity Futures Trading Commission. Sec. 354. Settlement and clearing through registered derivatives clearing orga- nizations. Sec. 355. Limitation on eligibility to purchase a credit default swap. Sec. 356. Transaction fees. Sec. 357. No effect on authority of the Federal Trade Commission. Sec. 358. Regulation of carbon derivatives markets. TITLE IV—TRANSITIONING TO A CLEAN ENERGY ECONOMY Subtitle A—Industrial Sector Sec. 401. Ensuring real reductions in industrial emissions. ‘‘PART F—ENSURING REAL REDUCTIONS INDUSTRIAL EMISSIONS IN ‘‘Sec. 761. Purposes. ‘‘Sec. 762. International negotiations. ‘‘Sec. 763. Definitions. ‘‘SUBPART 1—EMISSION ALLOWANCE REBATE PROGRAM ‘‘Sec. 764. Eligible industrial sectors. ‘‘Sec. 765. Distribution of emission allowance rebates. ‘‘SUBPART 2—INTERNATIONAL RESERVE ALLOWANCE PROGRAM ‘‘Sec. 766. International reserve allowance program. ‘‘SUBPART 3—PRESIDENTIAL DETERMINATION ‘‘Sec. 767. Presidential reports and determinations. Sec. 402. Allocations to petroleum refineries. ‘‘PART G—PETROLEUM REFINERIES ‘‘Sec. 771. Allocations to petroleum refineries. Subtitle B—Green Jobs and Worker Transition PART 1—GREEN JOBS Sec. 421. Clean energy curriculum development grants. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00006 Fmt 6652 Sfmt 6211 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 7 Sec. 422. Increased funding for energy worker training program. PART 2—CLIMATE CHANGE WORKER ADJUSTMENT ASSISTANCE Sec. 425. Petitions, eligibility requirements, and determinations. Sec. 426. Program benefits. Sec. 427. General provisions. Subtitle C—Consumer Assistance Sec. 431. Energy tax credit. ‘‘Sec. 36B. Energy tax credit. Sec. 432. Energy refund program for low-income consumers. Subtitle D—Exporting Clean Technology Sec. 441. Findings and purposes. Sec. 442. Definitions. Sec. 443. Governance. Sec. 444. Determination of eligible countries. Sec. 445. Qualifying activities. Sec. 446. Assistance. Subtitle E—Adapting to Climate Change PART 1—DOMESTIC ADAPTATION SUBPART A—NATIONAL CLIMATE CHANGE ADAPTATION PROGRAM Sec. 451. National climate change adaptation program. Sec. 452. Climate services. Sec. 453. State programs to build resilience to climate change impacts. SUBPART B—PUBLIC HEALTH AND CLIMATE CHANGE Sec. 461. Sense of Congress on public health and climate change. Sec. 462. Relationship to other laws. Sec. 463. National strategic action plan. Sec. 464. Advisory board. Sec. 465. Reports. Sec. 466. Definitions. Sec. 467. Climate change health protection and promotion fund. SUBPART C—NATURAL RESOURCE ADAPTATION Sec. 471. Purposes. Sec. 472. Natural resources climate change adaptation policy. Sec. 473. Definitions. Sec. 474. Council on Environmental Quality. Sec. 475. Natural Resources Climate Change Adaptation Panel. Sec. 476. Natural Resources Climate Change Adaptation Strategy. Sec. 477. Natural resources adaptation science and information. Sec. 478. Federal natural resource agency adaptation plans. Sec. 479. State natural resources adaptation plans. Sec. 480. Natural Resources Climate Change Adaptation Fund. Sec. 481. National Wildlife Habitat and Corridors Information Program. Sec. 482. Additional provisions regarding Indian tribes. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00007 Fmt 6652 Sfmt 6211 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 8 PART 2—INTERNATIONAL CLIMATE CHANGE ADAPTATION PROGRAM Sec. 491. Findings and purposes. Sec. 492. Definitions. Sec. 493. International Climate Change Adaptation Program. Sec. 494. Distribution of allowances. Sec. 495. Bilateral assistance. 1 SEC. 2. DEFINITIONS. 2 For purposes of this Act: 3 (1) ADMINISTRATOR.—The term ‘‘Adminis- 4 trator’’ means the Administrator of the Environ- 5 mental Protection Agency. 6 (2) STATE.—The term ‘‘State’’ has the mean- 7 ing given that term in section 700 of the Clean Air 8 Act, as added by section 312 of this Act. TITLE I—CLEAN ENERGY 9 Subtitle A—Combined Efficiency 10 and Renewable Electricity 11 Standard 12 13 SEC. 101. COMBINED EFFICIENCY AND RENEWABLE ELEC- 14 TRICITY STANDARD. 15 (a) IN GENERAL.—Title VI of the Public Utility Reg- 16 ulatory Policies Act of 1978 (16 U.S.C. 2601 and fol- 17 lowing) is amended by adding at the end the following: 18 ‘‘SEC. 610. COMBINED EFFICIENCY AND RENEWABLE ELEC- 19 TRICITY STANDARD. 20 ‘‘(a) DEFINITIONS.—For purposes of this section: 21 ‘‘(1) CHP SAVINGS.—The term ‘CHP savings’ 22 means— f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 9 1 ‘‘(A) CHP system savings from a combined 2 heat and power system that commences oper- 3 ation after the date of enactment of this sec- 4 tion; and 5 ‘‘(B) the increase in CHP system savings 6 from, at any time after the date of the enact- 7 ment of this section, upgrading, replacing, ex- 8 panding, or increasing the utilization of a com- 9 bined heat and power system that commenced 10 operation on or before the date of enactment of 11 this section. 12 ‘‘(2) CHP SYSTEM SAVINGS.—The term ‘CHP 13 system savings’ means the electric output, and the 14 electricity saved due to the mechanical output, of a 15 combined heat and power system, adjusted to reflect 16 any increase in fuel consumption by that system as 17 compared to the fuel that would have been required 18 to produce an equivalent useful thermal energy out- 19 put in a separate thermal-only system. 20 ‘‘(3) COMBINED HEAT AND POWER SYSTEM.— 21 The term ‘combined heat and power system’ means 22 a system that uses the same energy source both for 23 the generation of electrical or mechanical power and 24 the production of steam or another form of useful 25 thermal energy, provided that— f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 10 1 ‘‘(A) the system meets such requirements 2 relating to efficiency and other operating char- 3 acteristics as the Commission may promulgate 4 by regulation; and 5 ‘‘(B) the net sales of electricity by the fa- 6 cility to customers not consuming the thermal 7 output from that facility will not exceed 50 per- 8 cent of total annual electric generation by the 9 facility. 10 ‘‘(4) CUSTOMER FACILITY SAVINGS.—The term 11 ‘customer facility savings’ means a reduction in end- 12 use electricity consumption (including recycled en- 13 ergy savings) at a facility of an end-use consumer of 14 electricity served by a retail electric supplier, as 15 compared to— 16 ‘‘(A) in the case of a new facility, con- 17 sumption at a reference facility of average effi- 18 ciency; 19 ‘‘(B) in the case of an existing facility, 20 consumption at such facility during a base pe- 21 riod, except as provided in subparagraphs (C) 22 and (D); 23 ‘‘(C) in the case of new equipment that re- 24 places existing equipment with remaining useful 25 life, the projected consumption of the existing f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 11 1 equipment for the remaining useful life of such 2 equipment, and thereafter, consumption of new 3 equipment of average efficiency of the same 4 equipment type; and 5 ‘‘(D) in the case of new equipment that re- 6 places existing equipment at the end of the use- 7 ful life of the existing equipment, consumption 8 by new equipment of average efficiency of the 9 same equipment type. 10 ‘‘(5) DISTRIBUTED RENEWABLE GENERATION 11 FACILITY.—The term ‘distributed renewable genera- 12 tion facility’ means a facility that— 13 ‘‘(A) generates renewable electricity; 14 ‘‘(B) primarily serves 1 or more electricity 15 consumers at or near the facility site; and 16 ‘‘(C) is no larger than 2 megawatts in ca- 17 pacity. 18 ‘‘(6) ELECTRICITY SAVINGS.—The term ‘elec- 19 tricity savings’ means reductions in electricity con- 20 sumption, relative to business-as-usual projections, 21 achieved through measures implemented after the 22 date of enactment of this section, limited to— 23 ‘‘(A) customer facility savings of elec- 24 tricity, adjusted to reflect any associated in- 25 crease in fuel consumption at the facility; f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 12 1 ‘‘(B) reductions in distribution system 2 losses of electricity achieved by a retail elec- 3 tricity distributor, as compared to losses attrib- 4 utable to new or replacement distribution sys- 5 tem equipment of average efficiency; 6 ‘‘(C) CHP savings; and 7 ‘‘(D) fuel cell savings. 8 ‘‘(7) FEDERAL LAND.—The term ‘Federal land’ 9 means land owned by the United States, other than 10 land held in trust for an Indian or Indian tribe. 11 ‘‘(8) FEDERAL RENEWABLE ELECTRICITY 12 CREDIT.—The term ‘Federal renewable electricity 13 credit’ means a credit, representing one megawatt 14 hour of renewable electricity, issued pursuant to sub- 15 section (e). 16 ‘‘(9) FUEL CELL.—The term ‘fuel cell’ means a 17 device that directly converts the chemical energy of 18 a fuel and an oxidant into electricity by electro- 19 chemical processes occurring at separate electrodes 20 in the device. 21 ‘‘(10) FUEL CELL SAVINGS.—The term ‘fuel 22 cell savings’ means the electricity saved by a fuel cell 23 that is installed after the date of enactment of this 24 section, or by upgrading a fuel cell that commenced 25 operation on or before the date of enactment of this f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 13 1 section, as a result of the greater efficiency with 2 which the fuel cell transforms fuel into electricity as 3 compared with sources of electricity delivered 4 through the grid, provided that— 5 ‘‘(A) the fuel cell meets such requirements 6 relating to efficiency and other operating char- 7 acteristics as the Commission may promulgate 8 by regulation; and 9 ‘‘(B) the net sales of electricity from the 10 fuel cell to third parties that do not receive 11 thermal service from the fuel cell do not exceed 12 50 percent of the total annual electricity gen- 13 eration by the fuel cell. 14 ‘‘(11) HIGH CONSERVATION PRIORITY LAND.— 15 The term ‘high conservation priority land’ means 16 land that is not Federal land and is— 17 ‘‘(A) globally or State ranked as critically 18 imperiled or imperiled under a State Natural 19 Heritage Program; or 20 ‘‘(B) old-growth or late-successional forest, 21 as defined by the office of the relevant State 22 Forester or relevant State agency with regu- 23 latory jurisdiction over forestry activities. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00013 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 14 1 RE- ‘‘(12) OTHER QUALIFYING ENERGY 2 SOURCE.—The term ‘other qualifying energy re- 3 source’ means any of the following: 4 ‘‘(A) Landfill gas. 5 ‘‘(B) Wastewater treatment gas. 6 ‘‘(C) Coal mine methane used to generate 7 electricity at or near the mine mouth. 8 ‘‘(D) Qualified waste-to-energy. 9 ‘‘(13) QUALIFIED HYDROPOWER.—The term 10 ‘qualified hydropower’ means— 11 ‘‘(A) energy produced from increased effi- 12 ciency achieved, or additions of capacity made, 13 on or after January 1, 1992, at a hydroelectric 14 facility that was placed in service before that 15 date and does not include additional energy 16 generated as a result of operational changes not 17 directly associated with efficiency improvements 18 or capacity additions; or 19 ‘‘(B) energy produced from generating ca- 20 pacity added to a dam on or after January 1, 21 1992, provided that the Commission certifies 22 that— 23 ‘‘(i) the dam was placed in service be- 24 fore the date of the enactment of this sec- 25 tion and was operated for flood control, f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00014 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 15 1 navigation, or water supply purposes and 2 was not producing hydroelectric power 3 prior to the addition of such capacity; 4 ‘‘(ii) the hydroelectric project installed 5 on the dam is licensed (or is exempt from 6 licensing) by the Commission and is in 7 compliance with the terms and conditions 8 of the license or exemption, and with other 9 applicable legal requirements for the pro- 10 tection of environmental quality, including 11 applicable fish passage requirements; and 12 ‘‘(iii) the hydroelectric project in- 13 stalled on the dam is operated so that the 14 water surface elevation at any given loca- 15 tion and time that would have occurred in 16 the absence of the hydroelectric project is 17 maintained, subject to any license or ex- 18 emption requirements that require changes 19 in water surface elevation for the purpose 20 of improving the environmental quality of 21 the affected waterway. 22 ‘‘(14) QUALIFIED WASTE-TO-ENERGY.—The 23 term ‘qualified waste-to-energy’ means energy from 24 the combustion of municipal solid waste or construc- 25 tion, demolition, or disaster debris, or from the gas- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00015 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 16 1 ification or pyrolization of such waste or debris and 2 the combustion of the resulting gas at the same fa- 3 cility, provided that— 4 ‘‘(A) such term shall include only the en- 5 ergy derived from the non-fossil biogenic por- 6 tion of such waste or debris; 7 ‘‘(B) the Commission determines, with the 8 concurrence of the Administrator of the Envi- 9 ronmental Protection Agency, that the total 10 lifecycle greenhouse gas emissions attributable 11 to the generation of electricity from such waste 12 or debris are lower than those attributable to 13 the likely alternative method of disposing of 14 such waste or debris; and 15 ‘‘(C) the owner or operator of the facility 16 generating electricity from such energy provides 17 to the Commission, on an annual basis— 18 ‘‘(i) a certification that the facility is 19 in compliance with all applicable State and 20 Federal environmental permits; 21 ‘‘(ii) in the case of a facility that com- 22 menced operation before the date of the 23 enactment of this section, a certification 24 that the facility meets emissions standards 25 promulgated under sections 112 or 129 of f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00016 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 17 1 the Clean Air Act (42 U.S.C. 7412 or 2 7429) that apply as of the date of the en- 3 actment of this section to new facilities 4 within the relevant source category; and 5 ‘‘(iii) in the case of the combustion, 6 pyrolization, or gasification of municipal 7 solid waste, a certification that each local 8 government unit from which such waste 9 originates operates, participates in the op- 10 eration of, contracts for, or otherwise pro- 11 vides for, recycling services for its resi- 12 dents. 13 ‘‘(15) RECYCLED ENERGY SAVINGS.—The term 14 ‘recycled energy savings’ means a reduction in elec- 15 tricity consumption that results from a modification 16 of an industrial or commercial system that com- 17 menced operation before the date of enactment of 18 this section, in order to recapture electrical, mechan- 19 ical, or thermal energy that would otherwise be 20 wasted. 21 ‘‘(16) RENEWABLE BIOMASS.—The term ‘re- 22 newable biomass’ means any of the following: 23 ‘‘(A) Plant material, including waste mate- 24 rial, harvested or collected from actively man- 25 aged agricultural land that was in cultivation, f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00017 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 18 1 cleared, or fallow and nonforested on the date 2 of enactment of this section; 3 ‘‘(B) Plant material, including waste mate- 4 rial, harvested or collected from pastureland 5 that was nonforested on such date of enact- 6 ment; 7 ‘‘(C) Nonhazardous vegetative matter de- 8 rived from waste, including separated yard 9 waste, landscape right-of-way trimmings, con- 10 struction and demolition debris or food waste 11 (but not municipal solid waste, recyclable waste 12 paper, painted, treated or pressurized wood, or 13 wood contaminated with plastic or metals); 14 ‘‘(D) Animal waste or animal byproducts, 15 including products of animal waste digesters; 16 ‘‘(E) Algae; 17 ‘‘(F) Trees, brush, slash, residues, or any 18 other vegetative matter removed from within 19 600 feet of any building, campground, or route 20 designated for evacuation by a public official 21 with responsibility for emergency preparedness, 22 or from within 300 feet of a paved road, electric 23 transmission line, utility tower, or water supply 24 line; f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00018 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 19 1 ‘‘(G) Residues from or byproducts of 2 milled logs; 3 ‘‘(H) Any of the following removed from 4 forested land that is not Federal and is not 5 high conservation priority land: 6 ‘‘(i) Trees, brush, slash, residues, 7 interplanted energy crops, or any other 8 vegetative matter removed from an actively 9 managed tree plantation established— 10 ‘‘(I) prior to the date of enact- 11 ment of this section; or 12 ‘‘(II) on land that, as of the date 13 of enactment of this section, was cul- 14 tivated or fallow and non-forested. 15 ‘‘(ii) Trees, logging residue, thinnings, 16 cull trees, pulpwood, and brush removed 17 from naturally-regenerated forests or other 18 non-plantation forests, including for the 19 purposes of hazardous fuel reduction or 20 preventative treatment for reducing or con- 21 taining insect or disease infestation. 22 ‘‘(iii) Logging residue, thinnings, cull 23 trees, pulpwood, brush and species that are 24 non-native and noxious, from stands that 25 were planted and managed after the date f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00019 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 20 1 of enactment of this section to restore or 2 maintain native forest types. 3 ‘‘(iv) Dead or severely damaged trees 4 removed within 5 years of fire, blowdown, 5 or other natural disaster, and badly in- 6 fested trees; 7 ‘‘(I) Materials, pre-commercial thinnings, 8 or removed invasive species from National For- 9 est System land and public lands (as defined in 10 section 103 of the Federal Land Policy and 11 Management Act of 1976 (43 U.S.C. 1702)), 12 including those that are byproducts of preven- 13 tive treatments (such as trees, wood, brush, 14 thinnings, chips, and slash), that are removed 15 as part of a federally recognized timber sale, or 16 that are removed to reduce hazardous fuels, to 17 reduce or contain disease or insect infestation, 18 or to restore ecosystem health, and that are— 19 ‘‘(i) not from components of the Na- 20 tional Wilderness Preservation System, 21 Wilderness Study Areas, Inventoried 22 Roadless Areas, old growth or mature for- 23 est stands, components of the National 24 Landscape Conservation System, National 25 Monuments, National Conservation Areas, f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00020 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 21 1 Designated Primitive Areas, or Wild and 2 Scenic Rivers corridors; 3 ‘‘(ii) harvested in environmentally sus- 4 tainable quantities, as determined by the 5 appropriate Federal land manager; and 6 ‘‘(iii) harvested in accordance with 7 Federal and State law and applicable land 8 management plans. 9 ‘‘(17) RENEWABLE ELECTRICITY.—The term 10 ‘renewable electricity’ means electricity generated 11 (including by means of a fuel cell) from a renewable 12 energy resource or other qualifying energy resources. 13 ‘‘(18) RENEWABLE ENERGY RESOURCE.—The 14 term ‘renewable energy resource’ means each of the 15 following: 16 ‘‘(A) Wind energy. 17 ‘‘(B) Solar energy. 18 ‘‘(C) Geothermal energy. 19 ‘‘(D) Renewable biomass. 20 ‘‘(E) Biogas derived exclusively from re- 21 newable biomass. 22 ‘‘(F) Biofuels derived exclusively from re- 23 newable biomass. 24 ‘‘(G) Qualified hydropower. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00021 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 22 1 ‘‘(H) Marine and hydrokinetic renewable 2 energy, as that term is defined in section 632 3 of the Energy Independence and Security Act 4 of 2007 (42 U.S.C. 17211). 5 ‘‘(19) RETAIL ELECTRIC SUPPLIER.— 6 ‘‘(A) IN GENERAL.—The term ‘retail elec- 7 tric supplier’ means, for any given year, an 8 electric utility that sold not less than 4,000,000 9 megawatt hours of electric energy to electric 10 consumers for purposes other than resale dur- 11 ing the preceding calendar year. 12 ‘‘(B) INCLUSIONS AND LIMITATIONS.—For 13 purposes of determining whether an electric 14 utility qualifies as a retail electric supplier 15 under subparagraph (A)— 16 ‘‘(i) the sales of any affiliate of an 17 electric utility to electric consumers, other 18 than sales to the affiliate’s lessees or ten- 19 ants, for purposes other than resale shall 20 be considered to be sales of such electric 21 utility; and 22 ‘‘(ii) sales by any electric utility to an 23 affiliate, lessee, or tenant of such electric 24 utility shall not be treated as sales to elec- 25 tric consumers. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00022 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 23 1 ‘‘(C) AFFILIATE.—For purposes of this 2 paragraph, the term ‘affiliate’ when used in re- 3 lation to a person, means another person that 4 directly or indirectly owns or controls, is owned 5 or controlled by, or is under common ownership 6 or control with, such person, as determined 7 under regulations promulgated by the Commis- 8 sion. 9 ‘‘(20) RETAIL SUPPLIER’S ELECTRIC BASE 10 AMOUNT.—The term ‘retail electric supplier’s base 11 amount’ means the total amount of electric energy 12 sold by the retail electric supplier, expressed in 13 megawatt hours, to electric customers for purposes 14 other than resale during the relevant calendar year, 15 excluding— 16 ‘‘(A) electricity generated by a hydro- 17 electric facility that is not qualified hydropower; 18 ‘‘(B) electricity generated by a nuclear 19 generating unit placed in service after the date 20 of enactment of this section; and 21 ‘‘(C) the proportion of electricity generated 22 by a fossil-fueled generating unit that is equal 23 to the proportion of greenhouse gases produced 24 by such unit that are captured and geologically 25 sequestered. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00023 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 24 1 AND RETIREMENT.—The terms ‘‘(21) RETIRE 2 ‘retire’ and ‘retirement’ with respect to a Federal re- 3 newable electricity credit, means to disqualify such 4 credit for any subsequent use under this section, re- 5 gardless of whether the use is a sale, transfer, ex- 6 change, or submission in satisfaction of a compliance 7 obligation. 8 ‘‘(22) THIRD-PARTY EFFICIENCY PROVIDER.— 9 The term ‘third-party efficiency provider’ means any 10 retailer, building owner, energy service company, fi- 11 nancial institution or other commercial, industrial or 12 nonprofit entity that is capable of providing elec- 13 tricity savings in accordance with the requirements 14 of this section. 15 ‘‘(23) TOTAL ANNUAL ELECTRICITY SAVINGS.— 16 The term ‘total annual electricity savings’ means 17 electricity savings during a specified calendar year 18 from measures that were placed into service since 19 date of the enactment of this section, taking into ac- 20 count verified measure lifetimes or verified annual 21 savings attrition rates, as determined in accordance 22 with such regulations as the Commission may pro- 23 mulgate and measured in megawatt hours. 24 ‘‘(b) ANNUAL COMPLIANCE OBLIGATION.— f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00024 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 25 1 GENERAL.—For each of calendar years ‘‘(1) IN 2 2012 through 2039, not later than March 31 of the 3 following calendar year, each retail electric supplier 4 shall submit to the Commission an amount of Fed- 5 eral renewable electricity credits and demonstrated 6 total annual electricity savings that, in the aggre- 7 gate, is equal to such retail electric supplier’s annual 8 combined target as set forth in subsection (d), ex- 9 cept as otherwise provided in subsection (g). 10 ‘‘(2) DEMONSTRATION OF SAVINGS.—For pur- 11 poses of this subsection, submission of demonstrated 12 total annual electricity savings means submission of 13 a report that demonstrates, in accordance with the 14 requirements of subsection (f), the total annual elec- 15 tricity savings achieved by the retail electricity sup- 16 plier within the relevant compliance year. 17 ‘‘(3) RENEWABLE ELECTRICITY CREDITS POR- 18 TION.—Except as provided in paragraph (4), each 19 retail electric supplier must submit Federal renew- 20 able electricity credits equal to at least three quar- 21 ters of the retail electric supplier’s annual combined 22 target. 23 ‘‘(4) STATE PETITION.— 24 ‘‘(A) IN GENERAL.—Upon written request 25 from the Governor of any State (including, for f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00025 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 26 1 purposes of this paragraph, the Mayor of the 2 District of Columbia), the Commission shall in- 3 crease, to not more than two fifths, the propor- 4 tion of the annual combined targets of retail 5 electric suppliers located within such State that 6 may be met through submission of dem- 7 onstrated total annual electricity savings, pro- 8 vided that such increase shall be effective only 9 with regard to the portion of a retail electric 10 supplier’s annual combined target that is attrib- 11 utable to electricity sales within such State. 12 ‘‘(B) CONTENTS.—A Governor’s request 13 under this paragraph shall include an expla- 14 nation of the Governor’s rationale for deter- 15 mining, after consultation with the relevant 16 State regulatory authority and other retail elec- 17 tricity ratemaking authorities within the State, 18 to make such request. The request shall specify 19 the maximum proportion of annual combined 20 targets (not more than two fifths) that can be 21 met through demonstrated total annual elec- 22 tricity savings, and the period for which such 23 proportion shall be effective. 24 ‘‘(C) REVISION.—The Governor of any 25 State may, after consultation with the relevant f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00026 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 27 1 State regulatory authority and other retail elec- 2 tricity ratemaking authorities within the State, 3 submit a written request for revocation or revi- 4 sion of a previous request submitted under this 5 paragraph. The Commission shall grant such 6 request, provided that— 7 ‘‘(i) any revocation or revision shall 8 not apply to the combined annual target 9 for any year that is any earlier than 2 cal- 10 endar years after the calendar year in 11 which such request is submitted, so as to 12 provide retail electric suppliers with ade- 13 quate notice of such change; and 14 ‘‘(ii) any revision shall meet the re- 15 quirements of subparagraph (A). 16 ‘‘(c) ESTABLISHMENT PROGRAM.—Not later than OF 17 1 year after the date of enactment of this section, the 18 Commission shall promulgate regulations to implement 19 and enforce the requirements of this section. In promul- 20 gating such regulations, the Commission shall, to the ex- 21 tent practicable— 22 ‘‘(1) preserve the integrity, and incorporate best 23 practices, of existing State renewable electricity and 24 energy efficiency programs; f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00027 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 28 1 ‘‘(2) rely upon existing and emerging State or 2 regional tracking systems that issue and track non- 3 Federal renewable electricity credits; and 4 ‘‘(3) cooperate with the States to facilitate co- 5 ordination between State and Federal renewable 6 electricity and energy efficiency programs and to 7 minimize administrative burdens and costs to retail 8 electric suppliers. 9 ‘‘(d) ANNUAL COMPLIANCE REQUIREMENT.— 10 ‘‘(1) ANNUAL COMBINED TARGETS.—For each 11 of calendar years 2012 through 2039, a retail elec- 12 tric supplier’s annual combined target shall be the 13 product of— 14 ‘‘(A) the required annual percentage for 15 such year, as set forth in paragraph (2); and 16 ‘‘(B) the retail electric supplier’s base 17 amount for such year. 18 ‘‘(2) REQUIRED ANNUAL PERCENTAGE.—For 19 each of calendar years 2012 through 2039, the re- 20 quired annual percentage shall be as follows: Required annual ‘‘Calendar year percentage 2012 ……………………………………………………………………. 6.0 2013 ……………………………………………………………………. 6.0 2014 ……………………………………………………………………. 9.5 2015 ……………………………………………………………………. 9.5 2016 ……………………………………………………………………. 13.0 2017 ……………………………………………………………………. 13.0 2018 ……………………………………………………………………. 16.5 2019 ……………………………………………………………………. 16.5 f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00028 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 29 Required annual ‘‘Calendar year percentage 2020 ……………………………………………………………………. 20.0 2021 through 2039 ……………………………………………….. 20.0 1 ‘‘(e) FEDERAL RENEWABLE ELECTRICITY CRED- 2 ITS.— 3 ‘‘(1) IN GENERAL.—The regulations promul- 4 gated under this section shall include provisions gov- 5 erning the issuance, tracking, and verification of 6 Federal renewable electricity credits. Except as pro- 7 vided in paragraphs (2), (3), and (4) of this sub- 8 section, the Commission shall issue to each gener- 9 ator of renewable electricity, 1 Federal renewable 10 electricity credit for each megawatt hour of renew- 11 able electricity generated by such generator after 12 December 31, 2011. The Commission shall assign a 13 unique serial number to each Federal renewable 14 electricity credit. 15 ‘‘(2) GENERATION FROM CERTAIN STATE RE- 16 NEWABLE ELECTRICITY PROGRAMS.—Where renew- 17 able electricity is generated with the support of pay- 18 ments from a retail electric supplier pursuant to a 19 State renewable electricity program (whether 20 through State alternative compliance payments or 21 through payments to a State renewable electricity 22 procurement fund or entity), the Commission shall 23 issue Federal renewable electricity credits to such re- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00029 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 30 1 tail electric supplier for the proportion of the rel- 2 evant renewable electricity generation that is attrib- 3 utable to the retail electric supplier’s payments, as 4 determined pursuant to regulations issued by the 5 Commission. For any remaining portion of the rel- 6 evant renewable electricity generation, the Commis- 7 sion shall issue Federal renewable electricity credits 8 to the generator, as provided in paragraph (1), ex- 9 cept that in no event shall more than 1 Federal re- 10 newable electricity credit be issued for the same 11 megawatt hour of electricity. In determining how 12 Federal renewable electricity credits will be appor- 13 tioned among retail electric suppliers and generators 14 in such circumstances, the Commission shall con- 15 sider information and guidance furnished by the rel- 16 evant State or States. 17 ‘‘(3) CERTAIN CONTRACTS.— POWER SALES 18 When a generator has sold renewable electricity to 19 a retail electric supplier under a contract for power 20 from a facility placed in service before the date of 21 enactment of this section, and the contract does not 22 provide for the determination of ownership of the 23 Federal renewable electricity credits associated with 24 such generation, the Commission shall issue such f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00030 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 31 1 Federal renewable electricity credits to the retail 2 electric supplier for the duration of the contract. 3 ‘‘(4) CREDIT MULTIPLIER FOR DISTRIBUTED 4 RENEWABLE GENERATION.— 5 ‘‘(A) IN GENERAL.—Except as provided in 6 subparagraph (B), the Commission shall issue 3 7 Federal renewable electricity credits for each 8 megawatt hour of renewable electricity gen- 9 erated by a distributed renewable generation fa- 10 cility. 11 ‘‘(B) ADJUSTMENT.—Except as provided 12 in subparagraph (C), not later than January 1, 13 2014, and not less frequently than every 4 14 years thereafter, the Commission shall review 15 the effect of this paragraph and shall, as nec- 16 essary, reduce the number of Federal renewable 17 electricity credits per megawatt hour issued 18 under this paragraph for any given energy 19 source or technology, but not below 1, to ensure 20 that such number is no higher than the Com- 21 mission determines is necessary to make dis- 22 tributed renewable generation facilities using 23 such source or technology cost competitive with 24 other sources of renewable electricity genera- 25 tion. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00031 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 32 1 ‘‘(C) FACILITIES PLACED IN SERVICE 2 AFTER ENACTMENT.—For any distributed re- 3 newable generation facility placed in service 4 after the date of enactment of this section, sub- 5 paragraph (B) shall not apply for the first 10 6 years after the date on which the facility is 7 placed in service. For each year during such 10- 8 year period, the Commission shall issue to the 9 facility the same number of Federal renewable 10 electricity credits per megawatt hour as are 11 issued to that facility in the year in which such 12 facility is placed in service. After such 10-year 13 period, the Commission shall issue Federal re- 14 newable energy credits to the facility in accord- 15 ance with the current multiplier as determined 16 pursuant to subparagraph (B). 17 ‘‘(5) CREDITS BASED ON QUALIFIED HYDRO- 18 POWER.—For purposes of this subsection, the num- 19 ber of Federal renewable electricity credits issued for 20 qualified hydropower shall be calculated— 21 ‘‘(A) based solely on the increase in aver- 22 age annual generation directly resulting from 23 the efficiency improvements or capacity addi- 24 tions described in subsection (a)(13)(A); and f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00032 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 33 1 ‘‘(B) using the same water flow informa- 2 tion used to determine a historic average an- 3 nual generation baseline for the hydroelectric 4 facility, as certified by the Commission. 5 ‘‘(6) GENERATION FROM MIXED RENEWABLE 6 AND NONRENEWABLE RESOURCES.—If electricity is 7 generated using both a renewable energy resource or 8 other qualifying energy resource and an energy 9 source that is not a renewable energy resource or 10 other qualifying energy resource (as, for example, in 11 the case of co-firing of renewable biomass and fossil 12 fuel), the Commission shall issue Federal renewable 13 electricity credits based son the proportion of the 14 electricity that is attributable to the renewable en- 15 ergy resource or other qualifying energy resource. 16 ‘‘(7) PROHIBITION DOUBLE-COUNT- AGAINST 17 ING.—Except as provided in paragraph (4) of this 18 subsection, the Commission shall ensure that no 19 more than 1 Federal renewable electricity credit will 20 be issued for any megawatt hour of renewable elec- 21 tricity and that no Federal renewable electricity 22 credit will be used more than once for compliance 23 with this section. 24 ‘‘(8) TRADING.—The lawful holder of a Federal 25 renewable electricity credit may sell, exchange, f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00033 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 34 1 transfer, submit for compliance in accordance with 2 subsection (b), or submit such credit for retirement 3 by the Commission. 4 ‘‘(9) BANKING.—A Federal renewable elec- 5 tricity credit may be submitted in satisfaction of the 6 compliance obligation set forth in subsection (b) for 7 the compliance year in which the credit was issued 8 or for any subsequent compliance year. 9 ‘‘(10) RETIREMENT.—The Commission shall re- 10 tire a Federal renewable electricity credit imme- 11 diately upon submission by the lawful holder of such 12 credit, whether in satisfaction of a compliance obli- 13 gation under subsection (b) or on some other basis. 14 ‘‘(f) ELECTRICITY SAVINGS.— 15 ‘‘(1) STANDARDS FOR MEASUREMENT OF SAV- 16 INGS.—As part of the regulations promulgated 17 under this section, the Commission shall prescribe 18 standards and protocols for defining and measuring 19 electricity savings and total annual electricity sav- 20 ings that can be counted towards the compliance ob- 21 ligation set forth in subsection (b). Such protocols 22 and standards shall, at minimum— 23 ‘‘(A) specify the types of energy efficiency 24 and energy conservation measures that can be 25 counted; f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00034 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 35 1 ‘‘(B) require that energy consumption esti- 2 mates for customer facilities or portions of fa- 3 cilities in the applicable base and current years 4 be adjusted, as appropriate, to account for 5 changes in weather, level of production, and 6 building area; 7 ‘‘(C) account for the useful life of meas- 8 ures; 9 ‘‘(D) include deemed savings values for 10 specific, commonly used measures; 11 ‘‘(E) allow for savings from a program to 12 be estimated based on extrapolation from a rep- 13 resentative sample of participating customers; 14 ‘‘(F) include procedures for counting CHP 15 savings, recycled energy savings, and fuel cell 16 savings; 17 ‘‘(G) avoid double-counting of savings used 18 for compliance with this section, including sav- 19 ings that are transferred pursuant to paragraph 20 (3); 21 ‘‘(H) ensure that, except as provided in 22 subparagraph (J), the retail electric supplier 23 claiming the savings played a significant role in 24 achieving the savings (including through the ac- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00035 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 36 1 tivities of a designated agent of the supplier or 2 through the purchase of transferred savings); 3 ‘‘(I) include savings from programs admin- 4 istered by a retail electric supplier (or a retail 5 electricity distributor that is not a retail electric 6 supplier) that are funded by State, Federal, or 7 other sources; and 8 ‘‘(J) in any State in which the State regu- 9 latory authority has designated 1 or more enti- 10 ties to administer electric ratepayer-funded effi- 11 ciency programs approved by such State regu- 12 latory authority, provide that electricity savings 13 achieved through such programs shall be dis- 14 tributed equitably among retail electric sup- 15 pliers in accord with the direction of the rel- 16 evant State regulatory authority. 17 ‘‘(2) STANDARDS THIRD-PARTY FOR 18 VERIFICATION OF SAVINGS.—The regulations pro- 19 mulgated under this section shall establish proce- 20 dures and standards requiring third-party 21 verification of all reported electricity savings, includ- 22 ing requirements for accreditation of third-party 23 verifiers to ensure that such verifiers are profes- 24 sionally qualified and have no conflicts of interest. 25 ‘‘(3) TRANSFERS OF SAVINGS.— f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00036 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 37 1 ‘‘(A) BILATERAL CONTRACTS FOR SAVINGS 2 TRANSFERS.—Subject to the limitations of this 3 paragraph, a retail electric supplier may use 4 electricity savings transferred, pursuant to a bi- 5 lateral contract, from another retail electric 6 supplier, an owner of an electric distribution fa- 7 cility that is not a retail electric supplier, a 8 State, or a third-party efficiency provider to 9 meet the applicable compliance obligation under 10 subsection (b). 11 ‘‘(B) REQUIREMENTS.—Electricity savings 12 transferred and used for compliance pursuant 13 to this paragraph shall be— 14 ‘‘(i) measured and verified in accord- 15 ance with the procedures specified under 16 this subsection; 17 ‘‘(ii) reported in accordance with 18 paragraph (4) of this subsection; and 19 ‘‘(iii) achieved within the same State 20 as is served by the retail electric supplier. 21 ‘‘(C) REGULATORY APPROVAL.—Nothing 22 in this paragraph shall limit or affect the au- 23 thority of a State regulatory authority to re- 24 quire a retail electric supplier that is regulated 25 by such authority to obtain such authority’s au- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00037 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 38 1 thorization or approval of a contract for trans- 2 fer of savings under this paragraph. 3 ‘‘(4) REPORTING SAVINGS.— 4 ‘‘(A) REQUIREMENTS.—The regulations 5 promulgated under this section shall establish 6 requirements governing the submission of re- 7 ports to demonstrate, in accord with the proto- 8 cols and standards for measurement and third- 9 party verification established under this sub- 10 section, the total annual electricity savings 11 achieved by a retail electric supplier within the 12 relevant year. 13 ‘‘(B) REVIEW AND APPROVAL.—The Com- 14 mission shall review each report submitted to 15 the Commission by a retail electric supplier and 16 shall exclude any electricity savings that have 17 not been adequately demonstrated in accord- 18 ance with the requirements of this subsection. 19 ‘‘(5) STATE ADMINISTRATION.— 20 ‘‘(A) DELEGATION OF AUTHORITY.—Upon 21 receipt of an application from the Governor of 22 a State (including, for purposes of this sub- 23 section, the Mayor of the District of Columbia), 24 the Commission may delegate to the State the 25 authority to review and verify reported elec- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00038 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 39 1 tricity savings for purposes of determining dem- 2 onstrated total annual electricity savings that 3 may be counted towards a retail electric sup- 4 plier’s compliance obligation under subsection 5 (b). The Commission shall make a substantive 6 determination approving or disapproving a 7 State application under this subparagraph, 8 after notice and comment, within 180 days of 9 receipt of a complete application. 10 ‘‘(B) ALTERNATIVE MEASUREMENT AND 11 STAND- VERIFICATION PROCEDURES AND 12 ARDS.—As part of an application submitted 13 under subparagraph (A), a State may request 14 to use alternative measurement and verification 15 procedures and standards to those specified in 16 paragraphs (1) and (2), provided the State 17 demonstrates that such alternative procedures 18 and standards provide a level of accuracy of 19 measurement and verification at least equiva- 20 lent to the Federal procedures and standards 21 promulgated under paragraphs (1) and (2) of 22 this subsection. 23 ‘‘(C) REVIEW IMPLEMENTA- OF STATE 24 TION.—The Commission shall periodically re- 25 view State implementation of delegated author- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00039 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 40 1 ity under this paragraph to ensure conformance 2 with the requirements of this section. The Com- 3 mission may, at any time, revoke the delegation 4 of authority under this section upon a finding 5 that the State is not implementing its delegated 6 responsibilities in conformity with this para- 7 graph. As a condition of maintaining its dele- 8 gated authority under this paragraph, the Com- 9 mission may require a State to submit a revised 10 application under subparagraph (A) if the Com- 11 mission has— 12 ‘‘(i) promulgated new or substantially 13 revised measurement and verification pro- 14 cedures and standards under this sub- 15 section; or 16 ‘‘(ii) otherwise substantially revised 17 the program established under this section. 18 ‘‘(g) ALTERNATIVE COMPLIANCE PAYMENTS.— 19 ‘‘(1) IN GENERAL.—A retail electric supplier 20 may satisfy the requirements of subsection (b) in 21 whole or in part by submitting in accord with this 22 subsection, in lieu of each Federal renewable elec- 23 tricity credit or megawatt hour of demonstrated 24 total annual electricity savings that would otherwise 25 be due, a payment equal to $25, adjusted for infla- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00040 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 41 1 tion on January 1 of each year following calendar 2 year 2009, in accord with such regulations as the 3 Commission may promulgate. 4 ‘‘(2) PAYMENT TO STATE FUNDS.—Payments 5 made under this subsection shall be made directly to 6 the State in which the retail electric supplier is lo- 7 cated, provided that such payments are deposited di- 8 rectly into a fund within the State’s treasury for use 9 pursuant to paragraph (3). 10 ‘‘(3) STATE USE OF FUNDS.—States receiving 11 payments under this subsection shall use such funds 12 exclusively for the purposes of— 13 ‘‘(A) deploying technologies that generate 14 electricity from renewable energy resources; or 15 ‘‘(B) cost-effective energy efficiency meas- 16 ures and programs. 17 ‘‘(4) REPORTING.—Any State that receives a 18 payment under this subsection shall, within 12 19 months of receipt of such payment, provide a report 20 to the Commission giving a full accounting of the 21 use of such payments, including a detailed descrip- 22 tion of the activities funded thereby. 23 ‘‘(h) INFORMATION COLLECTION.—The Commission 24 may require any retail electric supplier, renewable elec- 25 tricity generator, or such other entities as the Commission f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00041 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 42 1 deems appropriate, to provide any information the Com- 2 mission determines appropriate to carry out this section. 3 Failure to submit such information or submission of false 4 or misleading information under this subsection shall be 5 a violation of this section. 6 ‘‘(i) ENFORCEMENT AND JUDICIAL REVIEW.— 7 ‘‘(1) FAILURE TO SUBMIT CREDITS OR DEM- 8 ONSTRATE SAVINGS.—If any person fails to comply 9 with the requirements of subsection (b) or (g), such 10 person shall be liable to pay to the Commission a 11 civil penalty equal to the product of— 12 ‘‘(A) double the alternative compliance 13 payment calculated under subsection (g)(1), 14 and 15 ‘‘(B) the aggregate quantity of Federal re- 16 newable electricity credits, total annual elec- 17 tricity savings, or equivalent alternative compli- 18 ance payments that the person failed to submit 19 in violation of the requirements of subsections 20 (b) and (g). 21 ‘‘(2) ENFORCEMENT.—The Secretary shall as- 22 sess a civil penalty under paragraph (1) in accord- 23 ance with the procedures described in section 31(d) 24 of the Federal Power Act (16 U.S.C. 823b(d)). f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00042 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 43 1 OF REQUIREMENT OF REGULA- ‘‘(3) VIOLATION 2 TIONS OR ORDERS.—Any person who violates, or 3 fails or refuses to comply with, any requirement of 4 a regulation promulgated or order issued under this 5 section shall be subject to a civil penalty under sec- 6 tion 316A(b) of the Federal Power Act. Such pen- 7 alty shall be assessed by the Commission in the 8 same manner as in the case of a violation referred 9 to in section 316A(b) of such Act. 10 ‘‘(j) JUDICIAL REVIEW.—Any person aggrieved by a 11 final action taken by the Commission under this section, 12 other than the assessment of a civil penalty under sub- 13 section (i), may use the procedures for review described 14 in section 313 of the Federal Power Act (16 U.S.C. 825l). 15 For purposes of this paragraph, references to an order in 16 section 313 of such Act shall be deemed to refer also to 17 all other final actions of the Commission under this section 18 other than the assessment of a civil penalty under sub- 19 section (i). 20 ‘‘(k) SAVINGS PROVISIONS.—Nothing in this section 21 shall— 22 ‘‘(1) diminish or qualify any authority of a 23 State or political subdivision of a State to— 24 ‘‘(A) adopt or enforce any law or regula- 25 tion respecting renewable electricity or energy f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00043 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 44 1 efficiency, including any law or regulation es- 2 tablishing requirements more stringent than 3 those established by this section, provided that 4 no such law or regulation may relieve any per- 5 son of any requirement otherwise applicable 6 under this section; or 7 ‘‘(B) regulate the acquisition and disposi- 8 tion of Federal renewable electricity credits by 9 retail electric suppliers within the jurisdiction of 10 such State or political subdivision, including the 11 authority to require such retail electric supplier 12 to acquire and submit to the Secretary for re- 13 tirement Federal renewable electricity credits in 14 excess of those submitted under this section; or 15 ‘‘(2) affect the application of, or the responsi- 16 bility for compliance with, any other provision of law 17 or regulation, including environmental and licensing 18 requirements. 19 ‘‘(l) SUNSET.—This section expires on December 31, 20 2040.’’. 21 (b) CONFORMING AMENDMENT.—The table of con- 22 tents set forth in section 1(b) of the Public Utility Regu- 23 latory Policies Act of 1978 (16 U.S.C. 2601 and following) 24 is amended by inserting after the item relating to section 25 609 the following: ‘‘Sec. 610. Combined efficiency and renewable electricity standard.’’. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00044 Fmt 6652 Sfmt 6211 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 45 Subtitle B—Carbon Capture and 1 Sequestration 2 3 SEC. 111. NATIONAL STRATEGY. 4 (a) IN GENERAL.—Not later than 1 year after the 5 date of enactment of this Act, the Administrator of the 6 Environmental Protection Agency, in consultation with 7 the Secretary of Energy and the heads of such other rel- 8 evant Federal agencies as the President may designate, 9 shall submit to Congress a report setting forth a unified 10 and comprehensive strategy to address the key legal, regu- 11 latory and other barriers to the commercial-scale deploy- 12 ment of carbon capture and sequestration. 13 (b) BARRIERS.— The report under this section 14 shall— 15 (1) identify those regulatory, legal, and other 16 gaps and barriers that could be addressed by a Fed- 17 eral agency using existing statutory authority, those, 18 if any, that require Federal legislation, and those 19 that would be best addressed at the State or re- 20 gional level; 21 (2) identify regulatory implementation chal- 22 lenges, including those related to approval of State 23 programs and delegation of authority for permitting; 24 and f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00045 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 46 1 (3) recommend rulemakings, Federal legisla- 2 tion, or other actions that should be taken to further 3 evaluate and address such barriers. 4 SEC. 112. REGULATIONS FOR GEOLOGIC SEQUESTRATION 5 SITES. 6 (a) COORDINATED CERTIFICATION PERMITTING AND 7 PROCESS.—Title VIII of the Clean Air Act, as added by 8 section 331 of this Act, is amended by adding after section 9 812 (as added by section 116 of this Act) the following: 10 ‘‘SEC. 813. GEOLOGIC SEQUESTRATION SITES. 11 ‘‘(a) COORDINATED PROCESS.—The Administrator 12 shall establish a coordinated approach to certifying and 13 permitting geologic sequestration, taking into consider- 14 ation all relevant statutory authorities. In establishing 15 such approach, the Administrator shall— 16 ‘‘(1) take into account, and reduce redundancy 17 with, the requirements of section 1421 of the Safe 18 Drinking Water Act (42 U.S.C. 300h), as amended 19 by section 112(b) of the American Clean Energy and 20 Security Act of 2009, including the rulemaking for 21 geologic sequestration wells described at 73 Fed. 22 Reg. 43491-541 (July 25, 2008); and 23 ‘‘(2) to the extent practicable, reduce the bur- 24 den on certified entities and implementing authori- 25 ties. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00046 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 47 1 ‘‘(b) REGULATIONS.—Not later than 2 years after 2 the date of enactment of this title, the Administrator shall 3 promulgate regulations to protect human health and the 4 environment by minimizing the risk of escape to the at- 5 mosphere of carbon dioxide injected for purposes of geo- 6 logic sequestration. 7 ‘‘(c) REQUIREMENTS.—The regulations under sub- 8 section (b) shall include— 9 ‘‘(1) a process to obtain certification for geo- 10 logic sequestration under this section; and 11 ‘‘(2) requirements for— 12 ‘‘(A) monitoring, record keeping, and re- 13 porting for emissions associated with injection 14 into, and escape from, geologic sequestration 15 sites, taking into account any requirements or 16 protocols developed under section 713; 17 ‘‘(B) public participation in the certifi- 18 cation process that maximizes transparency; 19 ‘‘(C) the sharing of data between States, 20 Indian tribes, and the Environmental Protec- 21 tion Agency; and 22 ‘‘(D) other elements or safeguards nec- 23 essary to achieve the purpose set forth in sub- 24 section (b). f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00047 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 48 1 ‘‘(d) REPORT.—Not later than 2 years after the pro- 2 mulgation of regulations under subsection (b), and at 3- 3 year intervals thereafter, the Administrator shall deliver 4 to the Committee on Energy and Commerce of the House 5 of Representatives and the Committee on Environment 6 and Public Works of the Senate a report on geologic se- 7 questration in the United States, and, to the extent rel- 8 evant, other countries in North America. Such report shall 9 include— 10 ‘‘(1) data regarding injection, emissions to the 11 atmosphere, if any, and performance of active and 12 closed geologic sequestration sites, including those 13 where enhanced hydrocarbon recovery operations 14 occur; 15 ‘‘(2) an evaluation of the performance of rel- 16 evant Federal environmental regulations and pro- 17 grams in ensuring environmentally protective geo- 18 logic sequestration practices; 19 ‘‘(3) recommendations on how such programs 20 and regulations should be improved or made more 21 effective; and 22 ‘‘(4) other relevant information.’’. 23 (b) SAFE DRINKING WATER ACT STANDARDS.—Sec- 24 tion 1421 of the Safe Drinking Water Act (42 U.S.C. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00048 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 49 1 300h) is amended by inserting after subsection (d) the fol- 2 lowing: 3 ‘‘(e) CARBON DIOXIDE GEOLOGIC SEQUESTRATION 4 WELLS.— 5 ‘‘(1) IN GENERAL.—Not later than 1 year after 6 the date of enactment of this subsection, the Admin- 7 istrator shall promulgate regulations under sub- 8 section (a) for carbon dioxide geologic sequestration 9 wells. 10 ‘‘(2) FINANCIAL RESPONSIBILITY.—The regula- 11 tions referred to in paragraph (1) shall include re- 12 quirements for maintaining evidence of financial re- 13 sponsibility, including financial responsibility for 14 emergency and remedial response, well plugging, site 15 closure, and post-injection site care. Financial re- 16 sponsibility may be established for carbon dioxide 17 geologic sequestration wells in accordance with regu- 18 lations promulgated by the Administrator by any 19 one, or any combination, of the following: insurance, 20 guarantee, trust, standby trust, surety bond, letter 21 of credit, qualification as a self-insurer, or any other 22 method satisfactory to the Administrator.’’. 23 SEC. 113. STUDIES AND REPORTS. 24 (a) STUDY LEGAL FRAMEWORK GEOLOGIC OF FOR 25 SEQUESTRATION SITES.— f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00049 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 50 1 FORCE.—As (1) ESTABLISHMENT OF TASK 2 soon as practicable, but not later than 6 months 3 after the date of enactment of this Act, the Adminis- 4 trator of the Environmental Protection Agency shall 5 establish a task force to be composed of an equal 6 number of subject matter experts, nongovernmental 7 organizations with expertise in environmental policy, 8 academic experts with expertise in environmental 9 law, State officials with environmental expertise, 10 representatives of State Attorneys General, and 11 members of the private sector, to conduct a study 12 of— 13 (A) existing Federal environmental stat- 14 utes, State environmental statutes, and State 15 common law that apply to geologic sequestra- 16 tion sites for carbon dioxide, including the abil- 17 ity of such laws to serve as risk management 18 tools; 19 (B) the existing statutory framework, in- 20 cluding Federal and State laws, that apply to 21 harm and damage to the environment or public 22 health at closed sites where carbon dioxide in- 23 jection has been used for enhanced hydrocarbon 24 recovery; f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00050 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 51 1 (C) the statutory framework, environ- 2 mental health and safety considerations, imple- 3 mentation issues, and financial implications of 4 potential models for Federal, State, or private 5 sector assumption of liabilities and financial re- 6 sponsibilities with respect to closed geologic se- 7 questration sites; 8 (D) private sector mechanisms, including 9 insurance and bonding, that may be available to 10 manage environmental, health and safety risk 11 from closed geologic sequestration sites; and 12 (E) the subsurface mineral rights, water 13 rights, or property rights issues associated with 14 geologic sequestration of carbon dioxide. 15 (2) REPORT.—Not later than 18 months after 16 the date of enactment of this Act, the task force es- 17 tablished under paragraph (1) shall submit to Con- 18 gress a report describing the results of the study 19 conducted under that paragraph including any con- 20 sensus recommendations of the task force. 21 (b) ENVIRONMENTAL STATUTES.— 22 (1) STUDY.—The Administrator of the Envi- 23 ronmental Protection Agency shall conduct a study 24 examining how, and under what circumstances, the 25 environmental statutes for which the Environmental f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00051 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 52 1 Protection Agency has responsibility would apply to 2 carbon dioxide injection and geologic sequestration 3 activities. 4 (2) REPORT.—Not later than 1 year after the 5 date of enactment of this Act, the Administrator 6 shall submit to Congress a report describing the re- 7 sults of the study conducted under paragraph (1). 8 SEC. 114. CARBON CAPTURE AND SEQUESTRATION DEM- 9 ONSTRATION AND EARLY DEPLOYMENT PRO- 10 GRAM. 11 (a) DEFINITIONS.—For purposes of this section: 12 (1) SECRETARY.—The term ‘‘Secretary’’ means 13 the Secretary of Energy. 14 (2) DISTRIBUTION UTILITY.—The term ‘‘dis- 15 tribution utility’’ means an entity that distributes 16 electricity directly to retail consumers under a legal, 17 regulatory, or contractual obligation to do so. 18 (3) ELECTRIC UTILITY.—The term ‘‘electric 19 utility’’ has the meaning provided by section 3(22) 20 of the Federal Power Act (16 U.S.C. 796(22)). 21 (4) FOSSIL FUEL-BASED ELECTRICITY.—The 22 term ‘‘fossil fuel-based electricity’’ means electricity 23 that is produced from the combustion of fossil fuels. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00052 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 53 1 FUEL.—The term ‘‘fossil fuel’’ (5) FOSSIL 2 means coal, petroleum, natural gas or any derivative 3 of coal, petroleum, or natural gas. 4 (6) CORPORATION.—The term ‘‘Corporation’’ 5 means the Carbon Storage Research Corporation es- 6 tablished in accordance with this section. 7 (7) QUALIFIED INDUSTRY ORGANIZATION.—The 8 term ‘‘qualified industry organization’’ means the 9 Edison Electric Institute, the American Public 10 Power Association, the National Rural Electric Co- 11 operative Association, a successor organization of 12 such organizations, or a group of owners or opera- 13 tors of distribution utilities delivering fossil fuel- 14 based electricity who collectively represent at least 15 20 percent of the volume of fossil fuel-based elec- 16 tricity delivered by distribution utilities to consumers 17 in the United States. 18 (8) RETAIL CONSUMER.—The term ‘‘retail con- 19 sumer’’ means an end-user of electricity. 20 (b) CARBON STORAGE RESEARCH CORPORATION.— 21 (1) ESTABLISHMENT.— 22 (A) REFERENDUM.—Qualified industry or- 23 ganizations may conduct, at their own expense, 24 a referendum among the owners or operators of 25 distribution utilities delivering fossil fuel-based f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00053 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 54 1 electricity for the creation of a Carbon Storage 2 Research Corporation. Such referendum shall 3 be conducted by an independent auditing firm 4 agreed to by the qualified industry organiza- 5 tions. Voting rights in such referendum shall be 6 based on the quantity of fossil fuel-based elec- 7 tricity delivered to consumers in the previous 8 calendar year or other representative period as 9 determined by the Secretary pursuant to sub- 10 section (f). Upon approval of those persons rep- 11 resenting two-thirds of the total quantity of fos- 12 sil fuel-based electricity delivered to retail con- 13 sumers, the Corporation shall be established un- 14 less opposed by the State regulatory authorities 15 pursuant to subparagraph (B). All distribution 16 utilities voting in the referendum shall certify to 17 the independent auditing firm the quantity of 18 fossil fuel-based electricity represented by their 19 vote. 20 (B) STATE REGULATORY AUTHORITIES.— 21 Upon its own motion or the petition of a quali- 22 fied industry organization, each State regu- 23 latory authority shall consider its support or op- 24 position to the creation of the Corporation 25 under subparagraph (A). State regulatory au- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00054 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 55 1 thorities may notify the independent auditing 2 firm referred to in subparagraph (A) of their 3 views on the creation of the Corporation within 4 180 days after the date of enactment of this 5 Act. If 40 percent or more of the State regu- 6 latory authorities submit to the independent au- 7 diting firm written notices of opposition, the 8 Corporation shall not be established notwith- 9 standing the approval of the qualified industry 10 organizations as provided in subparagraph (A). 11 (2) TERMINATION.—The Corporation shall be 12 authorized to collect assessments and conduct oper- 13 ations pursuant to this section for a 10-year period 14 from the date 6 months after the date of enactment 15 of this Act. After such 10-year period, the Corpora- 16 tion is no longer authorized to collect assessments 17 and shall be dissolved on the date 15 years after 18 such date of enactment, unless the period is ex- 19 tended by an Act of Congress. 20 (3) GOVERNANCE.—The Corporation shall oper- 21 ate as a division or affiliate of the Electric Power 22 Research Institute (referred to in this section as 23 ‘‘EPRI’’) and be managed by a Board of not more 24 than 15 voting members responsible for its oper- 25 ations, including compliance with this section. EPRI, f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00055 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 56 1 in consultation with the Edison Electric Institute, 2 the American Public Power Association and the Na- 3 tional Rural Electric Cooperative Association shall 4 appoint the Board members under clauses (i), (ii), 5 and (iii) of subparagraph (A) from among can- 6 didates recommended by those organizations. At 7 least a majority of the Board members appointed by 8 EPRI shall be representatives of distribution utilities 9 subject to assessments under subsection (d). 10 (A) MEMBERS.—The Board shall include 11 at least one representative of each of the fol- 12 lowing: 13 (i) Investor-owned utilities. 14 (ii) Utilities owned by a State agency 15 or a municipality. 16 (iii) Rural electric cooperatives. 17 (iv) Fossil fuel producers. 18 (v) Non-profit environmental organi- 19 zations. 20 (vi) Independent generators or whole- 21 sale power providers. 22 (vii) Consumer groups. 23 (B) NONVOTING MEMBERS.—The Board 24 shall also include as additional non-voting Mem- 25 bers the Secretary of Energy or his designee f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00056 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 57 1 and 2 representatives of State regulatory au- 2 thorities as defined in section 3(17) of the Pub- 3 lic Utility Regulatory Policies Act of 1978 (16 4 U.S.C. 2602(17)), each designated by the Na- 5 tional Association of State Regulatory Utility 6 Commissioners from States that are not within 7 the same transmission interconnection. 8 (4) COMPENSATION.—Corporation Board mem- 9 bers shall receive no compensation for their services, 10 nor shall Corporation Board members be reimbursed 11 for expenses relating to their service. 12 (5) TERMS.—Corporation Board members shall 13 serve terms of 4 years and may serve not more than 14 2 full consecutive terms. Members filling unexpired 15 terms may serve not more than a total of 8 consecu- 16 tive years. Former members of the Corporation 17 Board may be reappointed to the Corporation Board 18 if they have not been members for a period of 2 19 years. Initial appointments to the Corporation Board 20 shall be for terms of 1, 2, 3, and 4 years, staggered 21 to provide for the selection of 3 members each year. 22 (6) STATUS OF CORPORATION.—The Corpora- 23 tion shall not be considered to be an agency, depart- 24 ment, or instrumentality of the United States, and 25 no officer or director or employee of the Corporation f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00057 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 58 1 shall be considered to be an officer or employee of 2 the United States Government, for purposes of title 3 5 or title 31 of the United States Code, or for any 4 other purpose, and no funds of the Corporation shall 5 be treated as public money for purposes of chapter 6 33 of title 31, United States Code, or for any other 7 purpose. 8 (c) FUNCTIONS ADMINISTRATION COR- AND OF THE 9 PORATION.— 10 (1) IN GENERAL.—The Corporation shall estab- 11 lish and administer a program to accelerate the com- 12 mercial availability of carbon dioxide capture and 13 storage technologies and methods, including tech- 14 nologies which capture and store, or capture and 15 convert, carbon dioxide. Under such program com- 16 petitively awarded grants, contracts, and financial 17 assistance shall be provided and entered into with el- 18 igible entities. Except as provided in paragraph (8), 19 the Corporation shall use all funds derived from as- 20 sessments under subsection (d) to issue grants and 21 contracts to eligible entities. 22 (2) PURPOSE.—The purposes of the grants, 23 contracts, and assistance under this subsection shall 24 be to support commercial-scale demonstrations of 25 carbon capture or storage technology projects capa- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00058 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 59 1 ble of advancing the technologies to commercial 2 readiness. Such projects should encompass a range 3 of different coal and other fossil fuel varieties, be 4 geographically diverse, involve diverse storage media, 5 and employ capture or storage, or capture and con- 6 version, technologies potentially suitable either for 7 new or for retrofit applications. The Corporation 8 shall seek, to the extent feasible, to support at least 9 5 commercial-scale demonstration projects inte- 10 grating carbon capture and sequestration or conver- 11 sion technologies. 12 (3) ELIGIBLE ENTITIES.—Entities eligible for 13 grants, contracts or assistance under this subsection 14 may include distribution utilities, electric utilities 15 and other private entities, academic institutions, na- 16 tional laboratories, Federal research agencies, State 17 research agencies, non-profit organizations, or con- 18 sortiums of 2 or more entities. Pilot-scale and simi- 19 lar small-scale projects are not eligible for support 20 by the Corporation. Owners or developers of projects 21 supported by the Corporation shall, where appro- 22 priate, share in the costs of such projects. 23 (4) GRANTS FOR EARLY MOVERS.—Fifty per- 24 cent of the funds raised under this section shall be 25 provided in the form of grants to electric utilities f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00059 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 60 1 that had, prior to the award of any grant under this 2 section, committed resources to deploy a large scale 3 electricity generation unit with integrated carbon 4 capture and sequestration or conversion applied to a 5 substantial portion of the unit’s carbon dioxide emis- 6 sions. Grant funds shall be provided to defray costs 7 incurred by such electricity utilities for at least 5 8 such electricity generation units. 9 (5) ADMINISTRATION.—The members of the 10 Board of Directors of the Corporation shall elect a 11 Chairman and other officers as necessary, may es- 12 tablish committees and subcommittees of the Cor- 13 poration, and shall adopt rules and bylaws for the 14 conduct of business and the implementation of this 15 section. The Board shall appoint an Executive Di- 16 rector and professional support staff who may be 17 employees of the Electric Power Research Institute 18 (EPRI). After consultation with the Technical Advi- 19 sory Committee established under subsection (j), the 20 Secretary, and the Director of the National Energy 21 Technology Laboratory to obtain advice and rec- 22 ommendations on plans, programs, and project selec- 23 tion criteria, the Board shall establish priorities for 24 grants, contracts, and assistance; publish requests 25 for proposals for grants, contracts and assistance; f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00060 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 61 1 award grants, contracts and assistance competi- 2 tively, on the basis of merit, after the establishment 3 of procedures that provide for scientific peer review 4 by the Technical Advisory Committee. The Board 5 shall give preference to applications that reflect the 6 best overall value and prospect for achieving the 7 purposes of the section, such as those which dem- 8 onstrate an integrated approach for capture and 9 storage or capture and conversion technologies. The 10 Board members shall not participate in making 11 grants or awards to entities with whom they are af- 12 filiated. 13 (6) USES OF GRANTS, CONTRACTS, AND ASSIST- 14 ANCE.—A grant, contract, or other assistance pro- 15 vided under this subsection may be used to purchase 16 carbon dioxide when needed to conduct tests of car- 17 bon dioxide storage sites, in the case of established 18 projects that are storing carbon dioxide emissions, or 19 for other purposes consistent with the purposes of 20 this section. The Corporation shall make publicly 21 available at no cost information learned as a result 22 of projects which it supports financially. 23 (7) INTELLECTUAL PROPERTY.—The Board 24 shall establish policies regarding the ownership of in- 25 tellectual property developed as a result of Corpora- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00061 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 62 1 tion grants and other forms of technology support. 2 Such policies shall encourage individual ingenuity 3 and invention. 4 (8) ADMINISTRATIVE EXPENSES.—Up to 5 per- 5 cent of the funds collected in any fiscal year under 6 subsection (d) may be used for the administrative 7 expenses of operating the Corporation (not including 8 costs incurred in the determination and collection of 9 the assessments pursuant to subsection (d)). 10 (9) PROGRAMS AND BUDGET.—Before August 1 11 each year, the Corporation, after consulting with the 12 Technical Advisory Committee and the Secretary 13 and the Director of the Department’s National En- 14 ergy Technology Laboratory and other interested 15 parties to obtain advice and recommendations, shall 16 publish for public review and comment its proposed 17 plans, programs, project selection criteria, and 18 projects to be funded by the Corporation for the 19 next calendar year. The Corporation shall also pub- 20 lish for public review and comment a budget plan for 21 the next calendar year, including the probable costs 22 of all programs, projects, and contracts and a rec- 23 ommended rate of assessment sufficient to cover 24 such costs. The Secretary may recommend program 25 and activities the Secretary considers appropriate. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00062 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 63 1 The Corporation shall include in the first publication 2 it issues under this paragraph a strategic plan or 3 roadmap for the achievement of the purposes of the 4 Corporation, as set forth in paragraph (2). 5 (10) RECORDS; AUDITS.—The Corporation shall 6 keep minutes, books, and records that clearly reflect 7 all of the acts and transactions of the Corporation 8 and make public such information. The books of the 9 Corporation shall be audited by a certified public ac- 10 countant at least once each fiscal year and at such 11 other times as the Corporation may designate. Cop- 12 ies of each audit shall be provided to the Congress, 13 all Corporation board members, all qualified indus- 14 try organizations, each State regulatory authority 15 and, upon request, to other members of the industry. 16 If the audit determines that the Corporation’s prac- 17 tices fail to meet generally accepted accounting prin- 18 ciples the assessment collection authority of the Cor- 19 poration under subsection (d) shall be suspended 20 until a certified public accountant renders a subse- 21 quent opinion that the failure has been corrected. 22 The Corporation shall make its books and records 23 available for review by the Secretary or the Comp- 24 troller General of the United States. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00063 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 64 1 ACCESS.—The Corporation (11) PUBLIC 2 Board’s meetings shall be open to the public and 3 shall occur after at least 30 days advance public no- 4 tice. Meetings of the Board of Directors may be 5 closed to the public where the agenda of such meet- 6 ings includes only confidential matters pertaining to 7 project selection, the award of grants or contracts, 8 personnel matter, or the receipt of legal advice. The 9 minutes of all meetings of the Corporation shall be 10 made available to and readily accessible by the pub- 11 lic. 12 (12) ANNUAL REPORT.—Each year the Cor- 13 poration shall prepare and make publicly available a 14 report which includes an identification and descrip- 15 tion of all programs and projects undertaken by the 16 Corporation during the previous year. The report 17 shall also detail the allocation or planned allocation 18 of Corporation resources for each such program and 19 project. The Corporation shall provide its annual re- 20 port to the Congress, the Secretary, each State regu- 21 latory authority, and upon request to the public. The 22 Secretary shall, not less than 60 days after receiving 23 such report, provide to the President and Congress 24 a report assessing the progress of the Corporation in 25 meeting the objectives of this section. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00064 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 65 1 (d) ASSESSMENTS.— 2 (1) AMOUNT.—(A) In all calendar years fol- 3 lowing its establishment, the Corporation shall col- 4 lect an assessment on distribution utilities for all 5 fossil fuel-based electricity delivered directly to retail 6 consumers (as determined under subsection (f)). The 7 assessments shall reflect the relative carbon dioxide 8 emission rates of different fossil fuel-based elec- 9 tricity, and initially shall be not less than the fol- 10 lowing amounts for coal, natural gas, and oil: Fuel type Rate of assessment per kilowatt hour Coal …………………………………………………………. $0.00043 Natural Gas ……………………………………………… $0.00022 Oil …………………………………………………………… $0.00032. 11 (B) The Corporation is authorized to adjust the 12 assessments on fossil fuel-based electricity to reflect 13 changes in the expected quantities of such electricity 14 from different fuel types, such that the assessments 15 generate not less than $1.0 billion and not more 16 than $1.1 billion annually. The Corporation is au- 17 thorized to supplement assessments through addi- 18 tional financial commitments. 19 (2) INVESTMENT FUNDS.—Pending dis- OF 20 bursement pursuant to a program, plan, or project, 21 the Corporation may invest funds collected through 22 assessments under this subsection, and any other f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00065 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 66 1 funds received by the Corporation, only in obliga- 2 tions of the United States or any agency thereof, in 3 general obligations of any State or any political sub- 4 division thereof, in any interest-bearing account or 5 certificate of deposit of a bank that is a member of 6 the Federal Reserve System, or in obligations fully 7 guaranteed as to principal and interest by the 8 United States. 9 (3) REVERSION OF UNUSED FUNDS.—If the 10 Corporation does not disburse, dedicate or assign 75 11 percent or more of the available proceeds of the as- 12 sessed fees in any calendar year 7 or more years fol- 13 lowing its establishment, due to an absence of quali- 14 fied projects or similar circumstances, it shall reim- 15 burse the remaining undedicated or unassigned bal- 16 ance of such fees, less administrative and other ex- 17 penses authorized by this section, to the distribution 18 utilities upon which such fees were assessed, in pro- 19 portion to their collected assessments. 20 (e) ERCOT.— 21 (1) ASSESSMENT, COLLECTION, AND REMIT- 22 TANCE.—(A) Notwithstanding any other provision of 23 this section, within ERCOT, the assessment pro- 24 vided for in subsection (d) shall be— f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00066 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 67 1 (i) levied directly on qualified scheduling 2 entities, or their successor entities; 3 (ii) charged consistent with other charges 4 imposed on qualified scheduling entities as a fee 5 on energy used by the load-serving entities; and 6 (iii) collected and remitted by ERCOT to 7 the Corporation in the amounts and in the 8 same manner as set forth in subsection (d). 9 (B) The assessment amounts referred to in sub- 10 paragraph (A) shall be— 11 (i) determined by the amount and types of 12 fossil fuel-based electricity delivered directly to 13 all retail customers in the prior calendar year 14 beginning with the year ending immediately 15 prior to the period described in subsection 16 (b)(1); and 17 (ii) take into account the number of renew- 18 able energy credits retired by the load-serving 19 entities represented by a qualified scheduling 20 entity within the prior calendar year. 21 (2) ADMINISTRATION EXPENSES.—Up to 1 per- 22 cent of the funds collected in any fiscal year by 23 ERCOT under the provisions of this subsection may 24 be used for the administrative expenses incurred in f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00067 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 68 1 the determination, collection and remittance of the 2 assessments to the Corporation. 3 (3) AUDIT.—ERCOT shall provide a copy of its 4 annual audit pertaining to the administration of the 5 provisions of this subsection to the Corporation. 6 (4) DEFINITIONS.—For the purposes of this 7 subsection: 8 (A) The term ‘‘ERCOT’’ means the Elec- 9 tric Reliability Council of Texas. 10 (B) The term ‘‘load-serving entities’’ has 11 the meaning adopted by ERCOT Protocols and 12 in effect on the date of enactment of this Act. 13 (C) The term ‘‘qualified scheduling enti- 14 ties’’ has the meaning adopted by ERCOT Pro- 15 tocols and in effect on the date of enactment of 16 this Act. 17 (D) The term ‘‘renewable energy credit’’ 18 has the meaning as promulgated and adopted 19 by the Public Utility Commission of Texas pur- 20 suant to section 39.904(b) of the Public Utility 21 Regulatory Act of 1999, and in effect on the 22 date of enactment of this Act. 23 (f) DETERMINATION FOSSIL FUEL-BASED ELEC- OF 24 DELIVERIES.— TRICITY 25 (1) FINDINGS.—The Congress finds that: f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00068 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 69 1 (A) The assessments under subsection (d) 2 are to be collected based on the amount of fossil 3 fuel-based electricity delivered by each distribu- 4 tion utility. 5 (B) Since many distribution utilities pur- 6 chase all or part of their retail consumer’s elec- 7 tricity needs from other entities, it may not be 8 practical to determine the precise fuel mix for 9 the power sold by each individual distribution 10 utility. 11 (C) It may be necessary to use average 12 data, often on a regional basis with reference to 13 Regional Transmission Organization (‘‘RTO’’) 14 or NERC regions, to make the determinations 15 necessary for making assessments. 16 (2) DOE RULE.—The Secretary, PROPOSED 17 acting in close consultation with the Energy Infor- 18 mation Administration, shall issue for notice and 19 comment a proposed rule to determine the level of 20 fossil fuel electricity delivered to retail customers by 21 each distribution utility in the United States during 22 the most recent calendar year or other period deter- 23 mined to be most appropriate. Such proposed rule 24 shall balance the need to be efficient, reasonably pre- 25 cise, and timely, taking into account the nature and f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00069 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 70 1 cost of data currently available and the nature of 2 markets and regulation in effect in various regions 3 of the country. Different methodologies may be ap- 4 plied in different regions if appropriate to obtain the 5 best balance of such factors. 6 (3) FINAL RULE.—Within 6 months after the 7 date of enactment of this Act, and after opportunity 8 for comment, the Secretary shall issue a final rule 9 under this subsection for determining the level and 10 type of fossil fuel-based electricity delivered to retail 11 customers by each distribution utility in the United 12 States during the appropriate period. In issuing 13 such rule, the Secretary may consider opportunities 14 and costs to develop new data sources in the future 15 and issue recommendations for the Energy Informa- 16 tion Administration or other entities to collect such 17 data. After notice and opportunity for comment the 18 Secretary may, by rule, subsequently update and 19 modify the methodology for making such determina- 20 tions. 21 (4) ANNUAL DETERMINATIONS.—Pursuant to 22 the final rule issued under paragraph (3), the Sec- 23 retary shall make annual determinations of the 24 amounts and types for each such utility and publish 25 such determinations in the Federal Register. Such f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00070 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 71 1 determinations shall be used to conduct the ref- 2 erendum under subsection (b) and by the Corpora- 3 tion in applying any assessment under this sub- 4 section. 5 (5) REHEARING AND JUDICIAL REVIEW.—The 6 owner or operator of any distribution utility that be- 7 lieves that the Secretary has misapplied the method- 8 ology in the final rule in determining the amount 9 and types of fossil fuel electricity delivered by such 10 distribution utility may seek rehearing of such deter- 11 mination within 30 days of publication of the deter- 12 mination in the Federal Register. The Secretary 13 shall decide such rehearing petitions within 30 days. 14 The Secretary’s determinations following rehearing 15 shall be final and subject to judicial review in the 16 United States Court of Appeals for the District of 17 Columbia. 18 (g) COMPLIANCE WITH CORPORATION ASSESS- 19 MENTS.—The Corporation may bring an action in the ap- 20 propriate court of the United States to compel compliance 21 with an assessment levied by the Corporation under this 22 section. A successful action for compliance under this sub- 23 section may also require payment by the defendant of the 24 costs incurred by the Corporation in bringing such action. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00071 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 72 1 (h) MIDCOURSE REVIEW.—Not later than 5 years 2 following establishment of the Corporation, the Comp- 3 troller General of the United States shall prepare an anal- 4 ysis, and report to Congress, assessing the Corporation’s 5 activities, including project selection and methods of dis- 6 bursement of assessed fees, impacts on the prospects for 7 commercialization of carbon capture and storage tech- 8 nologies, adequacy of funding, and administration of 9 funds. The report shall also make such recommendations 10 as may be appropriate in each of these areas. The Cor- 11 poration shall reimburse the Government Accountability 12 Office for the costs associated with performing this mid- 13 course review. 14 (i) RECOVERY OF COSTS.— 15 (1) IN GENERAL.—A distribution utility whose 16 transmission, delivery, or sales of electric energy are 17 subject to any form of rate regulation shall not be 18 denied the opportunity to recover the full amount of 19 the prudently incurred costs associated with com- 20 plying with this section, consistent with applicable 21 State or Federal law. 22 (2) RATEPAYER REBATES.—Regulatory authori- 23 ties that approve cost recovery pursuant to para- 24 graph (1) may order rebates to ratepayers to the ex- 25 tent that distribution utilities are reimbursed f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00072 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 73 1 undedicated or unassigned balances pursuant to sub- 2 section (d)(3). 3 (j) TECHNICAL ADVISORY COMMITTEE.— 4 (1) ESTABLISHMENT.—There is established an 5 advisory committee, to be known as the ‘‘Technical 6 Advisory Committee’’. 7 (2) MEMBERSHIP.—The Technical Advisory 8 Committee shall be comprised of not less than 7 9 members appointed by the Board from among aca- 10 demic institutions, national laboratories, independent 11 research institutions, and other qualified institu- 12 tions. No member of the Committee shall be affili- 13 ated with EPRI or with any organization having 14 members serving on the Board. At least one member 15 of the Committee shall be appointed from among of- 16 ficers or employees of the Department of Energy 17 recommended to the Board by the Secretary of En- 18 ergy. 19 (3) CHAIRPERSON AND VICE CHAIRPERSON.— 20 The Board shall designate one member of the Tech- 21 nical Advisory Committee to serve as Chairperson of 22 the Committee and one to serve as Vice Chairperson 23 of the Committee. 24 (4) COMPENSATION.—The Board shall provide 25 compensation to members of the Technical Advisory f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00073 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 74 1 Committee for travel and other incidental expenses 2 and such other compensation as the Board deter- 3 mines to be necessary. 4 (5) PURPOSE.—The Technical Advisory Com- 5 mittee shall provide independent assessments and 6 technical evaluations, as well as make non-binding 7 recommendations to the Board, concerning Corpora- 8 tion activities, including but not limited to the fol- 9 lowing: 10 (A) Reviewing and evaluating the Corpora- 11 tion’s plans and budgets described in subsection 12 (c)(8), as well as any other appropriate areas, 13 which could include approaches to prioritizing 14 technologies, appropriateness of engineering 15 techniques, monitoring and verification tech- 16 nologies for storage, geological site selection, 17 and cost control measures. 18 (B) Making annual non-binding rec- 19 ommendations to the Board concerning any of 20 the matters referred to in subparagraph (A), as 21 well as what types of investments, scientific re- 22 search, or engineering practices would best fur- 23 ther to the goals of the Corporation. 24 (6) PUBLIC AVAILABILITY.—All reports, evalua- 25 tions, and other materials of the Technical Advisory f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00074 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 75 1 Committee shall be made available to the public by 2 the Board, without charge, at time of receipt by the 3 Board. 4 (k) LOBBYING RESTRICTIONS.—No funds collected 5 by the Corporation shall be used in any manner for influ- 6 encing legislation or elections, except that the Corporation 7 may recommend to the Secretary and the Congress 8 changes in this section or other statutes that would fur- 9 ther the purposes of this section. 10 (l) DAVIS-BACON COMPLIANCE.—The Corporation 11 shall ensure that entities receiving grants, contracts, or 12 other financial support from the Corporation for the 13 project activities authorized by this section are in compli- 14 ance with the Davis-Bacon Act (40 U.S.C. 276a–276a– 15 5). 16 SEC. 115. COMMERCIAL DEPLOYMENT OF CARBON CAP- 17 TURE AND SEQUESTRATION TECHNOLOGIES. 18 (a) REGULATIONS.—Not later than 2 years after the 19 date of enactment of this title, the Administrator shall 20 promulgate regulations providing for the distribution of 21 emission allowances allocated pursuant to section 782(f), 22 pursuant to the requirements of this section, to support 23 the commercial deployment of carbon capture and seques- 24 tration technologies in both electric power generation and 25 industrial operations. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00075 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 76 1 (b) ELIGIBILITY CRITERIA.—To be eligible to receive 2 emission allowances under this section, the owner of a 3 project must— 4 (1) implement carbon capture and sequestration 5 technology— 6 (A) at an electric generating unit that— 7 (i) has a nameplate capacity of 200 8 megawatts or more; 9 (ii) derives at least 50 percent of its 10 annual fuel input from coal, petroleum 11 coke, or any combination of these 2 fuels; 12 and 13 (iii) upon implementation of capture 14 and sequestration technology, will capture 15 and permanently sequester at least 50 per- 16 cent of the carbon dioxide, measured on an 17 annual basis, that would be emitted by the 18 unit absent capture and sequestration 19 technology; or 20 (B) at an industrial source that— 21 (i) injects for sequestration not less 22 than 50,000 tons per year of carbon diox- 23 ide; 24 (ii) upon implementation, will capture 25 and permanently sequester at least 50 per- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00076 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 77 1 cent of the carbon dioxide produced by the 2 source, measured on an annual basis, that 3 would be emitted in the absence of capture 4 and sequestration technology; and 5 (iii) does not produce a liquid trans- 6 portation fuel from a solid fossil-based 7 feedstock; 8 (2) permanently sequester carbon dioxide at a 9 site that meets all applicable permitting and certifi- 10 cation requirements for geologic sequestration, or, 11 pursuant to such requirements as the Administrator 12 may prescribe by regulation, convert captured car- 13 bon dioxide to a stable form that will safely and per- 14 manently sequester such carbon dioxide; 15 (3) meet all other applicable State and Federal 16 permitting requirements; and 17 (4) be located in the United States. 18 (c) PHASE I DISTRIBUTION ELECTRIC GENER- TO 19 UNITS.— ATING 20 (1) APPLICATION.—This subsection shall apply 21 only to projects at the first 6 gigawatts of electric 22 generating units, measured in cumulative generating 23 capacity of such units. 24 (2) DISTRIBUTION.—The Administrator shall 25 distribute emission allowances allocated under sec- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00077 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 78 1 tion 782(a)(f) to each eligible project at an electric 2 generating unit in a quantity equal to the quotient 3 obtained by dividing— 4 (A) the product obtained by multiplying— 5 (i) the number of metric tons of car- 6 bon dioxide emissions avoided through cap- 7 ture and sequestration of emissions by the 8 project, as determined pursuant to such 9 methodology as the Administrator shall 10 prescribe by regulation; and 11 (ii) a bonus allowance value, pursuant 12 to paragraph (3); by 13 (B) the average fair market value of an 14 emission allowance during the preceding year. 15 (3) BONUS ALLOWANCE VALUES.— 16 (A) For a generating unit achieving the 17 capture and sequestration of 85 percent or 18 more of the carbon dioxide that otherwise would 19 be emitted by such unit, the bonus allowance 20 value shall be $90. 21 (B) The Administrator shall by regulation 22 establish a bonus allowance value for each rate 23 of lower capture and sequestration achieved by 24 a generating unit, from a minimum of $50 per 25 ton for a 50 percent rate and varying directly f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00078 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 79 1 with increasing rates of capture and sequestra- 2 tion up to $90 per ton for an 85 percent rate. 3 (C) For a generating unit that achieves the 4 capture and sequestration of at least 50 percent 5 of the carbon dioxide that otherwise would be 6 emitted by such unit by not later than January 7 1, 2017, the otherwise applicable bonus allow- 8 ance value under this paragraph shall be in- 9 creased by $10, provided that the owner of such 10 unit notifies the Administrator of its intent to 11 achieve such rate of capture and sequestration 12 by not later than January 1, 2012. 13 (D) For a carbon capture and sequestra- 14 tion project sequestering in a geological forma- 15 tion for purposes of enhanced hydrocarbon re- 16 covery, the Administrator shall, by regulation, 17 reduce the applicable bonus allowance value 18 under this paragraph to reflect the lower net 19 cost of the project when compared to sequestra- 20 tion into geological formations solely for pur- 21 poses of sequestration. 22 (E) All monetary values in this section 23 shall be adjusted for inflation. 24 (d) PHASE II DISTRIBUTION ELECTRIC GENER- TO 25 UNITS.— ATING f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00079 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 80 1 (1) APPLICATION.—This subsection shall apply 2 only to the distribution of emission allowances to 3 carbon capture and sequestration projects at electric 4 generating units after the capacity threshold identi- 5 fied in subsection (c)(1) is reached. 6 (2) REGULATIONS.—Not later than 2 years 7 prior to the date on which the capacity threshold 8 identified in subsection (c)(1) is projected to be 9 reached, the Administrator shall promulgate regula- 10 tions to govern the distribution of emission allow- 11 ances to eligible projects under this subsection. 12 (3) REVERSE AUCTIONS.— 13 (A) IN GENERAL.—Except as provided in 14 paragraph (4), the regulations promulgated 15 under paragraph (2) shall provide for the dis- 16 tribution of emission allowances to eligible 17 projects under this subsection through reverse 18 auctions, which shall be held no less frequently 19 than once each calendar year. The Adminis- 20 trator may establish a separate auction for each 21 of no more than 5 different project categories, 22 defined on the basis of coal type, capture tech- 23 nology, geological formation type, new unit 24 versus retrofit application, such other factors as 25 the Administrator may prescribe, or any com- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00080 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 81 1 bination thereof. The Administrator may estab- 2 lish appropriate minimum rates of capture and 3 sequestration in implementing this paragraph. 4 (B) AUCTION PROCESS.—At each reverse 5 auction— 6 (i) the Administrator shall solicit bids 7 from eligible entities; 8 (ii) eligible entities participating in 9 the auction shall submit a bid including 10 the desired level of carbon dioxide seques- 11 tration incentive per ton and the estimated 12 quantity of carbon dioxide that the project 13 will permanently sequester over 10 years; 14 and 15 (iii) the Administrator shall select 16 bids, within each auction, for the seques- 17 tration amount submitted, beginning with 18 the eligible entity submitting the bid for 19 the lowest level of sequestration incentive 20 on a per ton basis and meeting such other 21 requirements as the Administrator may 22 specify, until the amount of funds available 23 for the reverse auction is committed. 24 (C) FORM OF DISTRIBUTION.—The Ad- 25 ministrator shall provide deployment incentives f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00081 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 82 1 to eligible entities selected through a reverse 2 auction under this paragraph pursuant to a for- 3 mula equivalent to that described in subsection 4 (c)(2), except that the incentive level that is bid 5 by the entity shall be substituted for the bonus 6 allowance value. 7 (4) ALTERNATIVE DISTRIBUTION METHOD.— 8 (A) IN GENERAL.—If the Administrator 9 determines that reverse auctions would not pro- 10 vide for efficient and cost-effective commercial 11 deployment of carbon capture and sequestration 12 technologies, the Administrator may instead, 13 through regulations promulgated under para- 14 graph (2) or (5), prescribe a schedule for the 15 award of bonus allowances to eligible projects 16 under this subsection, in accord with the re- 17 quirements of this paragraph. 18 (B) MULTIPLE TRANCHES.—The Adminis- 19 trator shall divide emission allowances available 20 for distribution to eligible projects into a series 21 of tranches, each supporting the deployment of 22 a specified quantity of cumulative electric gen- 23 erating capacity utilizing carbon capture and 24 sequestration technology, each of which shall 25 not be greater than 6 gigawatts. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00082 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 83 1 OF DISTRIBUTION.—The Ad- (C) METHOD 2 ministrator shall distribute emission allowances 3 within each tranche, on a first-come, first- 4 served basis— 5 (i) based on the date of full-scale op- 6 eration of capture and sequestration tech- 7 nology; and 8 (ii) pursuant to a formula, similar to 9 that set forth in subsection (c)(2) (except 10 that the Administrator shall prescribe 11 bonus allowance values different than those 12 set forth in subsection (c)(2)), establishing 13 the number of allowances to be distributed 14 per ton of carbon dioxide permanently se- 15 questered by the project. 16 (D) REQUIREMENTS.—For each tranche 17 established pursuant to subparagraph (A), the 18 Administrator shall establish a schedule for dis- 19 tributing emission allowances that— 20 (i) is based on a sliding scale that 21 provides higher bonus allowance values for 22 projects achieving higher rates of capture 23 and sequestration; 24 (ii) for each capture and sequestration 25 rate, establishes a bonus allowance value f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00083 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 84 1 that is lower than that established for such 2 rate in the previous tranche (or, in the 3 case of the first tranche, than that estab- 4 lished for such rate under subsection 5 (c)(1)); and 6 (iii) may establish different bonus al- 7 lowance levels for no more than 5 different 8 project categories, defined by coal type, 9 capture technology, geological formation 10 type, new unit versus retrofit application, 11 such other factors as the Administrator 12 may prescribe, or any combination thereof. 13 (E) CRITERIA FOR ESTABLISHING BONUS 14 ALLOWANCE VALUES.—In setting bonus allow- 15 ance values under this paragraph, the Adminis- 16 trator shall seek to cover no more than the rea- 17 sonable incremental capital and operating costs 18 of a project that are attributable to implemen- 19 tation of carbon capture, transportation, and 20 sequestration technologies, taking into ac- 21 count— 22 (i) the reduced cost of compliance 23 with section 722 of this Act; 24 (ii) the reduced cost associated with 25 sequestering in a geological formation for f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00084 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 85 1 purposes of enhanced hydrocarbon recovery 2 when compared to sequestration into geo- 3 logical formations solely for purposes of se- 4 questration; 5 (iii) the relevant factors defining the 6 project category; and 7 (iv) such other factors as the Admin- 8 istrator determines are appropriate. 9 (5) REVISION OF REGULATIONS.—The Adminis- 10 trator shall review, and as appropriate revise, the 11 applicable regulations under this subsection no less 12 frequently than every 8 years. 13 (e) LIMITS CERTAIN ELECTRIC GENERATING FOR 14 UNITS.— 15 (1) DEFINITIONS.—For purposes of this sub- 16 section, the terms ‘‘covered EGU’’ and ‘‘initially per- 17 mitted’’ shall have the meaning given those terms in 18 section 812 of this Act. 19 (2) COVERED EGUS INITIALLY PERMITTED 20 FROM 2009 THROUGH 2015.—For a covered EGU 21 that is initially permitted on or after January 1, 22 2009, and before January 1, 2015, the Adminis- 23 trator shall reduce the quantity of emission allow- 24 ances that such covered EGU would otherwise be eli- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00085 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 86 1 gible to receive under this section by the product 2 of— 3 (A) 20 percent; and 4 (B) the number of years between— 5 (i) the earlier of January 1, 2020, or 6 the date that is 5 years after the com- 7 mencement of operation of such covered 8 EGU; and 9 (ii) the first year that such covered 10 EGU achieves (and thereafter maintains) 11 the capture and permanent sequestration 12 of at least 50 percent of the carbon diox- 13 ide, measured on an annual basis, that 14 such covered EGU would emit in the ab- 15 sence of carbon capture and sequestration 16 technology. 17 (3) COVERED EGUS INITIALLY PERMITTED 18 FROM 2015 THROUGH 2020.—A covered EGU that is 19 initially permitted on or after January 1, 2015, and 20 before January 1, 2020, shall be ineligible to receive 21 emission allowances pursuant to this section if such 22 unit, upon commencement of operations or there- 23 after, does not achieve and maintain the capture and 24 permanent sequestration of at least 50 percent of 25 the carbon dioxide, measured on an annual basis, f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00086 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 87 1 that such covered EGU would emit in the absence 2 of capture and sequestration technology. 3 (f) INDUSTRIAL SOURCES.— 4 (1) ALLOWANCES.—The Administrator may 5 distribute not more than 15 percent of the allow- 6 ances allocated under section 782(a)(f) for any vin- 7 tage year to eligible industrial sources to support the 8 commercial-scale deployment of carbon capture and 9 sequestration technologies at such sources. 10 (2) DISTRIBUTION.—The Administrator shall, 11 by regulation, prescribe requirements for the dis- 12 tribution of emission allowances to industrial sources 13 under this subsection, based on a bonus allowance 14 formula that awards allowances to qualifying 15 projects on the basis of tons of carbon dioxide cap- 16 tured and permanently sequestered. The Adminis- 17 trator may provide for the distribution of emission 18 allowances pursuant to— 19 (A) a reverse auction method, similar to 20 that described under subsection (d)(3), includ- 21 ing the use of separate auctions for different 22 project categories; or 23 (B) an incentive schedule, similar to that 24 described under subsection (d)(4), which shall 25 ensure that incentives are set so as to satisfy f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00087 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 88 1 the requirement described in subsection 2 (d)(4)(E). 3 (3) REVISION OF REGULATIONS.—The Adminis- 4 trator shall review, and as appropriate revise, the 5 applicable regulations under this subsection no less 6 frequently than every 8 years. 7 (g) LIMITATIONS.—A qualifying project may receive 8 annual emission allowances under this section only for the 9 first 10 years of operation. No greater than 72 gigawatts 10 of total cumulative generating capacity (including indus- 11 trial applications, measured by such equivalent metric as 12 the Administrator may designate) may receive emission al- 13 lowances under this section. Upon reaching the limit de- 14 scribed in the preceding sentence, the Administrator shall 15 auction, pursuant to section 791, any emission allowances 16 that are allocated for carbon capture and sequestration de- 17 ployment under section 782(a)(f) and are not yet obligated 18 under this section. 19 (h) EXHAUSTION ACCOUNT ANNUAL ROLL- OF AND 20 OVER OF SURPLUS ALLOWANCES.— 21 (1) In distributing bonus allowances under this 22 subsection, the Administrator shall ensure that 23 qualifying projects receiving allowances receive dis- 24 tributions for 10 years. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00088 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 89 1 (2) If the Administrator determines that the al- 2 lowances allocated under section 782(a)(f) with a 3 vintage year that matches the year of distribution 4 will be exhausted once the estimated full 10-year dis- 5 tributions will be provided to current eligible partici- 6 pants, the Administrator shall provide to new eligible 7 projects allowances from vintage years after the year 8 of the distribution. 9 (i) DAVIS-BACON COMPLIANCE.—All laborers and 10 mechanics employed on projects funded directly by or as- 11 sisted in whole or in part by this section through the use 12 of bonus allowances shall be paid wages at rates not less 13 than those prevailing on projects of a character similar 14 in the locality as determined by the Secretary of Labor 15 in accordance with subchapter IV, chapter 31, part A of 16 subtitle II of title 40, United States Code. With respect 17 to the labor standards specified in this section, the Sec- 18 retary of Labor shall have the authority and functions set 19 forth in Reorganization Plan Numbered 14 of 1950 (64 20 Stat. 1267; 5 U.S.C. App.) and section 3145 of title 40, 21 United States Code. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00089 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 90 1 SEC. 116. PERFORMANCE STANDARDS FOR COAL-FUELED 2 POWER PLANTS. 3 (a) IN GENERAL.—Title VIII of the Clean Air Act 4 (as added by section 331 of this Act) is amended by add- 5 ing the following new section after section 811: 6 ‘‘SEC. 812. PERFORMANCE STANDARDS FOR NEW COAL- 7 FIRED POWER PLANTS. 8 ‘‘(a) DEFINITIONS.—For purposes of this section: 9 ‘‘(1) COVERED EGU.—The term ‘covered EGU’ 10 means a utility unit that is required to have a per- 11 mit under section 503(a) and is authorized under 12 state or federal law to derive at least 30 percent of 13 its annual heat input from coal, petroleum coke, or 14 any combination of these fuels. 15 ‘‘(2) INITIALLY PERMITTED.—The term ‘ini- 16 tially permitted’ means that the owner or operator 17 has received a Clean Air Act preconstruction ap- 18 proval or permit, for the covered EGU as a new (not 19 a modified) source, but administrative review or ap- 20 peal of such approval or permit has not been ex- 21 hausted. A subsequent modification of any such ap- 22 proval or permits, ongoing administrative or court 23 review, appeals, or challenges, or the existence or 24 tolling of any time to pursue further review, appeals, 25 or challenges shall not affect the date on which a f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00090 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 91 1 covered EGU is considered to be initially permitted 2 under this paragraph. 3 ‘‘(b) STANDARDS.—(1) A covered EGU that is ini- 4 tially permitted on or after January 1, 2020, shall achieve 5 an emission limit that is a 65 percent reduction in emis- 6 sions of the carbon dioxide produced by the unit, as 7 measured on an annual basis, or meet such more stringent 8 standard as the Administrator may establish pursuant to 9 subsection (c). In determining compliance with this sub- 10 section, the Administrator shall assume an energy penalty 11 of the carbon dioxide capture system of no greater than 12 15 percent. 13 ‘‘(2) A covered EGU that is initially permitted after 14 January 1, 2009, and before January 1, 2020, shall, by 15 the applicable compliance date established under this 16 paragraph, shall achieve an emission limit that is a 50 17 percent reduction in emissions of the carbon dioxide pro- 18 duced by the unit, as measured on an annual basis. In 19 determining compliance with this subsection, the Adminis- 20 trator shall assume an energy penalty of the carbon diox- 21 ide capture system of no greater than 15 percent. Compli- 22 ance with the requirement set forth in this paragraph shall 23 be required by the earliest of the following: 24 ‘‘(A) Four years after the date the Adminis- 25 trator issues a determination that there are in com- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00091 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 92 1 mercial operation in the United States electric gen- 2 erating units equipped with carbon capture and se- 3 questration technology that, in the aggregate— 4 ‘‘(i) have a total of at least 4 gigawatts of 5 nameplate generating capacity of which— 6 ‘‘(I) at least 3 gigawatts must be elec- 7 tric generating units; and 8 ‘‘(II) up to 1 gigawatt may be indus- 9 trial applications, for which capture and 10 sequestration of 3 million tons of carbon 11 dioxide per year on an aggregate 12 annualized basis shall be considered equiv- 13 alent to 1 gigawatt; 14 ‘‘(ii) include at least 2 electric generating 15 units, each with a nameplate generating capac- 16 ity of 250 megawatts or greater, that inject car- 17 bon dioxide into geologic formations other than 18 oil and gas fields; and 19 ‘‘(iii) are capturing and sequestering in the 20 aggregate at least 12 million tons of carbon di- 21 oxide per year, calculated on an aggregate 22 annualized basis. 23 ‘‘(B) January 1, 2025. 24 ‘‘(3) If the deadline for compliance with paragraph 25 (2) is January 1, 2025, the Administrator may extend the f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00092 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 93 1 deadline for compliance by a covered EGU by up to 18 2 months if the Administrator makes a determination, based 3 on a showing by the owner or operator of the unit, that 4 it will be technically infeasible for the unit to meet the 5 standard by the deadline. The owner or operator must 6 submit a request for such an extension by no later than 7 January 1, 2022, and the Administrator shall provide for 8 public notice and comment on the extension request. 9 ‘‘(c) REVIEW REVISION STANDARDS.—Not AND OF 10 later than 2025 and at 5-year intervals thereafter, the Ad- 11 ministrator shall review the standards for new covered 12 EGUs under this section and shall, by rule, reduce the 13 maximum carbon dioxide emission rate for new covered 14 EGUs to a rate which reflects the degree of emission limi- 15 tation achievable through the application of the best sys- 16 tem of emission reduction which (taking into account the 17 cost of achieving such reduction and any nonair quality 18 health and environmental impact and energy require- 19 ments) the Administrator determines has been adequately 20 demonstrated.’’. Subtitle C—Clean Transportation 21 22 SEC. 121. ELECTRIC VEHICLE INFRASTRUCTURE. 23 (a) AMENDMENT PURPA.—Section 111(d) of the OF 24 Public Utility Regulatory Policies Act of 1978 (16 U.S.C. 25 2621(d)) is amended by adding at the end the following: f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00093 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 94 1 ‘‘(20) PLUG-IN ELECTRIC DRIVE VEHICLE IN- 2 FRASTRUCTURE.— 3 ‘‘(A) UTILITY INFRASTRUC- PLAN FOR 4 TURE.—Each electric utility shall develop a 5 plan to support the use of plug-in electric drive 6 vehicles, including heavy-duty hybrid electric ve- 7 hicles. The plan may provide for deployment of 8 electrical charging stations in public or private 9 locations, including street parking, parking ga- 10 rages, parking lots, homes, gas stations, and 11 highway rest stops. Any such plan may also in- 12 clude— 13 ‘‘(i) battery exchange, fast charging 14 infrastructure and other services; 15 ‘‘(ii) triggers for infrastructure de- 16 ployment based upon market penetration 17 of plug-in electric drive vehicles; and 18 ‘‘(iii) such other elements as the State 19 determines necessary to support plug-in 20 electric drive vehicles. 21 Each plan under this paragraph shall provide 22 for the deployment of the charging infrastruc- 23 ture or other infrastructure necessary to ade- 24 quately support the use of plug-in electric drive 25 vehicles. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00094 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 95 1 REQUIREMENTS.—Each ‘‘(B) SUPPORT 2 State regulatory authority (in the case of each 3 electric utility for which it has ratemaking au- 4 thority) and each utility (in the case of a non- 5 regulated utility) shall— 6 ‘‘(i) require that charging infrastruc- 7 ture deployed is interoperable with prod- 8 ucts of all auto manufacturers to the ex- 9 tent possible; and 10 ‘‘(ii) consider adopting minimum re- 11 quirements for deployment of electrical 12 charging infrastructure and other appro- 13 priate requirements necessary to support 14 the use of plug-in electric drive vehicles. 15 ‘‘(C) COST RECOVERY.—Each State regu- 16 latory authority (in the case of each electric 17 utility for which it has ratemaking authority) 18 and each utility (in the case of a nonregulated 19 utility) shall consider whether, and to what ex- 20 tent, to allow cost recovery for plans and imple- 21 mentation of plans. 22 ‘‘(D) SMART INTEGRATION.—The GRID 23 State regulatory authority (in the case of each 24 electric utility for which it has ratemaking au- 25 thority) and each utility (in the case of a non- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00095 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 96 1 regulated utility) shall, in accordance with regu- 2 lations issued by the Federal Energy Regu- 3 latory Commission pursuant to section 1305(d) 4 of the Energy Independence and Security Act 5 of 2007— 6 ‘‘(i) establish any appropriate proto- 7 cols and standards for integrating plug-in 8 electric drive vehicles into an electrical dis- 9 tribution system, including Smart Grid 10 systems and devices as described in title 11 XIII of the Energy Independence and Se- 12 curity Act of 2007; 13 ‘‘(ii) include, to the extent feasible, 14 the ability for each plug-in electric drive 15 vehicle to be identified individually and to 16 be associated with its owner’s electric util- 17 ity account, regardless of the location that 18 the vehicle is plugged in, for purposes of 19 appropriate billing for any electricity re- 20 quired to charge the vehicle’s batteries as 21 well as any crediting for electricity pro- 22 vided to the electric utility from the vehi- 23 cle’s batteries; and 24 ‘‘(iii) review the determination made 25 in response to section 1252 of the Energy f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00096 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 97 1 Policy Act of 2005 in light of this section, 2 including whether time-of-use pricing 3 should be employed to enable the use of 4 plug-in electric drive vehicles to contribute 5 to meeting peak-load and ancillary service 6 power needs.’’. 7 (b) COMPLIANCE.— 8 (1) TIME LIMITATIONS.—Section 112(b) of the 9 Public Utility Regulatory Policies Act of 1978 (16 10 U.S.C. 2622(b)) is amended by adding the following 11 at the end thereof: 12 ‘‘(7)(A) Not later than 3 years after the date 13 of enactment of this paragraph, each State regu- 14 latory authority (with respect to each electric utility 15 for which it has ratemaking authority) and each 16 nonregulated utility shall commence the consider- 17 ation referred to in section 111, or set a hearing 18 date for consideration, with respect to the standard 19 established by paragraph (20) of section 111(d). 20 ‘‘(B) Not later than 4 years after the date of 21 enactment of the this paragraph, each State regu- 22 latory authority (with respect to each electric utility 23 for which it has ratemaking authority), and each 24 nonregulated electric utility, shall complete the con- 25 sideration, and shall make the determination, re- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00097 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 98 1 ferred to in section 111 with respect to the standard 2 established by paragraph (20) of section 111(d).’’. 3 (2) FAILURE TO COMPLY.—Section 112(c) of 4 the Public Utility Regulatory Policies Act of 1978 5 (16 U.S.C. 2622(c)) is amended by adding the fol- 6 lowing at the end: ‘‘In the case of the standards es- 7 tablished by paragraph (20) of section 111(d), the 8 reference contained in this subsection to the date of 9 enactment of this Act shall be deemed to be a ref- 10 erence to the date of enactment of such paragraph.’’. 11 (3) PRIOR STATE ACTIONS.—Section 112(d) of 12 the Public Utility Regulatory Policies Act of 1978 13 (16 U.S.C. 2622(d)) is amended by striking ‘‘(19)’’ 14 and inserting ‘‘(20)’’ before ‘‘of section 111(d)’’. 15 SEC. 122. LARGE-SCALE VEHICLE ELECTRIFICATION PRO- 16 GRAM. 17 (a) DEPLOYMENT PROGRAM.—The Secretary of En- 18 ergy shall establish a program to deploy and integrate 19 plug-in electric drive vehicles into the electricity grid in 20 multiple regions. In carrying out the program, the Sec- 21 retary may provide financial assistance described under 22 subsection (d), consistent with the goals under subsection 23 (b). The Secretary shall select regions based upon applica- 24 tions for assistance received pursuant to subsection (c). f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00098 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 99 1 (b) GOALS.—The goals of the program established 2 pursuant to subsection (a) shall be— 3 (1) to demonstrate the viability of a vehicle- 4 based transportation system that is not overly de- 5 pendent on petroleum as a fuel and contributes to 6 lower carbon emissions than a system based on con- 7 ventional vehicles; 8 (2) to facilitate the integration of advanced ve- 9 hicle technologies into electricity distribution areas 10 to improve system performance and reliability; 11 (3) to demonstrate the potential benefits of co- 12 ordinated investments in vehicle electrification on 13 personal mobility and a regional grid; 14 (4) to demonstrate protocols and standards that 15 facilitate vehicle integration into the grid; and 16 (5) to investigate differences in each region and 17 regulatory environment regarding best practices in 18 implementing vehicle electrification. 19 (c) APPLICATIONS.—Any State, Indian tribe, or local 20 government (or group of State, Indian tribe, or local gov- 21 ernments) may apply to the Secretary of Energy for finan- 22 cial assistance in furthering the regional deployment and 23 integration into the electricity grid of plug-in electric drive 24 vehicles. Such applications may be jointly sponsored by 25 electric utilities, automobile manufacturers, technology f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00099 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 100 1 providers, car sharing companies or organizations, or 2 other persons or entities. 3 (d) USE FUNDS.—Pursuant to applications re- OF 4 ceived under subsection (c), the Secretary may make fi- 5 nancial assistance available to any applicant or joint spon- 6 sor of the application to be used for any of the following: 7 (1) Assisting persons located in the regional de- 8 ployment area, including fleet owners, in the pur- 9 chase of new plug-in electric drive vehicles by offset- 10 ting in whole or in part the incremental cost of such 11 vehicles above the cost of comparable conventionally 12 fueled vehicles. 13 (2) Supporting the use of plug-in electric drive 14 vehicles by funding projects for the deployment of 15 any of the following: 16 (A) Electrical charging infrastructure for 17 plug-in electric drive vehicles, including battery 18 exchange, fast charging infrastructure, and 19 other services, in public or private locations, in- 20 cluding street parking, parking garages, park- 21 ing lots, homes, gas stations, and highway rest 22 stops. 23 (B) Smart Grid equipment and infrastruc- 24 ture, as described in title XIII of the Energy 25 Independence and Security Act of 2007, to fa- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00100 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 101 1 cilitate the charging and integration of plug-in 2 electric drive vehicles. 3 (3) Such other projects as the Secretary deter- 4 mines appropriate to support the large-scale deploy- 5 ment of plug-in electric drive vehicles in regional de- 6 ployment areas. 7 (e) PROGRAM REQUIREMENTS.—The Secretary, in 8 consultation with the Administrator and the Secretary of 9 Transportation, shall determine design elements and re- 10 quirements of the program established pursuant to sub- 11 section (a), including— 12 (1) the type of financial mechanism with which 13 to provide financial assistance; 14 (2) criteria for evaluating applications sub- 15 mitted under subsection (c), including the antici- 16 pated ability to promote deployment and market 17 penetration of vehicles that are less dependent on 18 petroleum as fuel source; and 19 (3) reporting requirements for entities that re- 20 ceive financial assistance under this section, includ- 21 ing a comprehensive set of performance data charac- 22 terizing the results of the deployment program. 23 (f) INFORMATION CLEARINGHOUSE.—The Secretary 24 shall, as part of the program established pursuant to sub- 25 section (a), collect and make available to the public infor- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00101 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 102 1 mation regarding the cost, performance, and other tech- 2 nical data regarding the deployment and integration of 3 plug-in electric drive vehicles. 4 (g) AUTHORIZATION.—There are authorized to be ap- 5 propriated to carry out this section such sums as may be 6 necessary. 7 SEC. 123. PLUG-IN ELECTRIC DRIVE VEHICLE MANUFAC- 8 TURING. 9 (a) VEHICLE MANUFACTURING ASSISTANCE PRO- 10 GRAM.—The Secretary of Energy shall establish a pro- 11 gram to provide financial assistance to automobile manu- 12 facturers to facilitate the manufacture of plug-in electric 13 drive vehicles, as defined in section 131(a)(5) of the En- 14 ergy Independence and Security Act of 2007, that are de- 15 veloped and produced in the United States. 16 (b) FINANCIAL ASSISTANCE.—The Secretary of En- 17 ergy may provide financial assistance to an automobile 18 manufacturer under the program established pursuant to 19 subsection (a) for— 20 (1) the reconstruction or retooling of facilities 21 for the manufacture of plug-in electric drive vehicles 22 that are developed and produced in the United 23 States; and 24 (2) if appropriate, the purchase of domestically 25 produced vehicle batteries to be used in the manu- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00102 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 103 1 facture of vehicles manufactured pursuant to para- 2 graph (1). 3 (c) REQUIREMENTS.—The Secretary may provide fi- 4 nancial assistance under subsection (b) to an automobile 5 manufacturer if— 6 (1) in the case of a reconstruction or retooling 7 described under subsection (b)(1), without financial 8 assistance the automobile manufacturer is not able 9 to reasonably finance the reconstruction or retooling 10 of a facility; or 11 (2) in the case of battery purchases described 12 under subsection (b)(2), without financial assistance, 13 the automobile manufacturer is not able to reason- 14 ably finance the purchase of such batteries. 15 (d) COORDINATION WITH REGIONAL DEPLOY- 16 MENT.—The Secretary may provide financial assistance 17 under subsection (b) in conjunction with the award of fi- 18 nancial assistance under the large scale vehicle electrifica- 19 tion program established pursuant to section 122 of this 20 Act. 21 (e) PROGRAM REQUIREMENTS.—The Secretary shall 22 determine design elements and requirements of the pro- 23 gram established pursuant to subsection (a), including— 24 (1) the type of financial mechanism with which 25 to provide financial assistance; f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00103 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 104 1 (2) criteria, in addition to the criteria described 2 under subsection (f), for evaluating applications for 3 financial assistance; and 4 (3) reporting requirements for automobile man- 5 ufacturers that receive financial assistance under 6 this section. 7 (f) CRITERIA.—In selecting recipients of financial as- 8 sistance from among applicant automobile manufacturers, 9 the Secretary shall give preference to proposals that— 10 (1) are most likely to be successful; and 11 (2) are located in local markets that have the 12 greatest need for the facility. 13 (g) REPORTS.—The Secretary shall annually submit 14 to Congress a report on the program established pursuant 15 to this section. 16 (h) AUTHORIZATION APPROPRIATIONS.—There OF 17 are authorized to be appropriated such sums as are nec- 18 essary to carry out this section. 19 SEC. 124. INVESTMENT IN CLEAN VEHICLES. 20 (a) DEFINITIONS.—In this section: 21 (1) ADVANCED TECHNOLOGY VEHICLES AND 22 QUALIFYING COMPONENTS.—The terms ‘‘advanced 23 technology vehicles’’ and ‘‘qualifying components’’ 24 shall have the definition of such terms in section 136 25 of the Energy Independence and Security Act of f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00104 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 105 1 2007, except that for purposes of this section, the 2 average base year as described section 136(a)(1)(C) 3 shall be the following: 4 (A) in each of the years 2012 through 5 2016, the average base year shall be model year 6 2009; and 7 (B) in 2017, the Administrator shall, not- 8 withstanding section 136(a)(1)(C), determine 9 an appropriate baseline based on technological 10 and economic feasibility. 11 (2) PLUG-IN ELECTRIC DRIVE VEHICLE.—The 12 term ‘‘plug-in electric drive vehicle’’ shall have the 13 definition of such term in section 131 of the Energy 14 Independence and Security Act of 2007. 15 (b) DISTRIBUTION ALLOWANCES.—The Adminis- OF 16 trator shall, in accordance with this section, distribute al- 17 lowances allocated pursuant to section 782(i) of the Clean 18 Air Act not later than October 31 of 2012 and each cal- 19 endar year thereafter through 2025. 20 (c) PLUG-IN ELECTRIC DRIVE VEHICLE MANUFAC- 21 DEPLOYMENT.— TURING AND 22 (1) IN GENERAL.—The Administrator shall, at 23 the direction of the Secretary of Energy, provide al- lowances allocated pursuant to section ø782(i)¿ to 24 f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00105 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 106 1 applicants, joint sponsors and automobile manufac- 2 turers pursuant to sections 122 and 123 of this Act. 3 (2) ANNUAL AMOUNT.—In each of the years 4 2012 through 2017, one-quarter of the portion of 5 the allowances allocated pursuant to section 782(i) 6 of the Clean Air Act shall be available to carry out 7 paragraph (1) such that— 8 (A) one-eighth of the portion shall be avail- 9 able to carry out section 122; and, 10 (B) one-eighth of the portion shall be 11 available to carry out section 123. 12 (3) PREFERENCE.—In directing the provision 13 of allowances under this subsection, the Secretary 14 shall give preference to applications under section 15 122(c) that are jointly sponsored by one or more 16 automobile manufacturers. 17 (4) MULTI-YEAR COMMITMENTS.—The Admin- 18 istrator shall commit to providing allowances to an 19 applicant, joint sponsor or automobile manufacturer 20 for up to five consecutive years if— 21 (A) an application under section 122 or 22 123 of this Act requests a multiyear commit- 23 ment; f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00106 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 107 1 (B) such application meets the criteria for 2 support established by the Secretary of Energy 3 under sections 122 or 123 of this Act; 4 (C) the Administrator confirms to the Sec- 5 retary that allowances will be available for a 6 multi-year commitment; 7 (D) the Secretary of Energy determines 8 that a multi-year commitment for such applica- 9 tion will advance the goals of section 122 or 10 123; and 11 (E) the Secretary of Energy directs the 12 Administrator to make a multiyear commit- 13 ment. 14 (5) INSUFFICIENT APPLICATIONS.—If, in any 15 year, allowances available under paragraph (2) can- 16 not be provided because of insufficient numbers of 17 submitted applications that meet the criteria for 18 support established by the Secretary of Energy 19 under sections 122 or 123 of this Act, the remaining 20 allowances shall be distributed according to sub- 21 section (d). 22 (d) ADVANCED TECHNOLOGY VEHICLES.— 23 (1) IN GENERAL.—The Administrator shall, at 24 the direction of the Secretary of Energy, provide any 25 allowances allocated pursuant to section 782(i) of f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00107 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 108 1 the Clean Air Act that are not provided under sub- 2 section (c) to automobile manufacturers and compo- 3 nent suppliers to pay not more than 30 percent of 4 the cost of— 5 (A) reequipping, expanding, or establishing 6 a manufacturing facility in the United States to 7 produce— 8 (i) qualifying advanced technology ve- 9 hicles; or 10 (ii) qualifying components; and 11 (B) engineering integration performed in 12 the United States of qualifying vehicles and 13 qualifying components. 14 (2) PREFERENCE.—In directing the provision 15 of allowances under this subsection during the years 16 2012 through 2017, the Secretary shall give pref- 17 erence to applications for projects that save the 18 maximum number of gallons per vehicle. Subtitle D—State Energy and Envi- 19 ronment Development Accounts 20 21 SEC. 131. ESTABLISHMENT OF SEED ACCOUNTS. 22 (a) DEFINITIONS.—In this section: 23 (1) SEED ACCOUNT.—The term ‘‘SEED Ac- 24 count’’ means a State Energy and Environment De- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00108 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 109 1 velopment Account established pursuant to this sec- 2 tion. 3 (2) STATE ENERGY OFFICE.—The term ‘‘State 4 Energy Office’’ means a State entity eligible for 5 grants under part D of title III of the Energy Policy 6 and Conservation Act (42 U.S.C. 6321 et seq.). 7 (b) ESTABLISHMENT PROGRAM.—The Adminis- OF 8 trator shall establish a program under which a State, 9 through its State Energy Office or other State agency des- 10 ignated by the State, may create a State Energy and Envi- 11 ronment Development Account. 12 (c) PURPOSE.—The purpose of each SEED Account 13 is to serve as a common State-level repository for man- 14 aging and accounting for emission allowances provided to 15 States designated for renewable energy and energy effi- 16 ciency purposes. 17 (d) REGULATIONS.—Not later than one year after the 18 date of enactment of this Act, the Administrator shall pro- 19 mulgate regulations to carry out this section, including 20 regulations— 21 (1) to ensure that each State operates its 22 SEED Account and any subaccounts thereof effi- 23 ciently and in accordance with this Act and applica- 24 ble State and Federal laws; 25 (2) to prevent waste, fraud, and abuse; f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00109 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 110 1 (3) to indicate the emission allowances that 2 may be deposited in a State’s SEED Account pend- 3 ing distribution or use; 4 (4) to indicate the programs and objectives au- 5 thorized by Federal law for which emission allow- 6 ances in a SEED Account may be distributed or 7 used; 8 (5) to identify the forms of financial assistance 9 and incentives that States may provide through dis- 10 tribution or use of SEED Accounts; and 11 (6) to prescribe the form and content of reports 12 that the States are required to submit under this 13 section on the use of SEED Accounts. 14 (e) OPERATION.— 15 (1) DEPOSITS.— 16 (A) IN GENERAL.—Except as required pur- 17 suant to subparagraph (B), a State shall de- 18 posit into its SEED Account all allowances re- 19 ceived from the Administrator for renewable en- 20 ergy and energy efficiency purposes, pursuant 21 to this Act. 22 (B) A State may create a financial account 23 associated with its SEED Account to deposit, 24 retain, and manage any proceeds of any sale of 25 any allowance provided pursuant to this Act f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00110 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 111 1 pending expenditure or disbursement of those 2 proceeds for purposes permitted under this sec- 3 tion. The funds in such an account shall not be 4 commingled with other funds not derived from 5 the sale of allowances provided to the State; 6 however, loans made by the State from such 7 funds pursuant to paragraph (2)(C)(i) may be 8 repaid into such a financial account, including 9 any interest charged. 10 (2) WITHDRAWALS.— 11 (A) IN GENERAL.—All allowances distrib- 12 uted or withdrawn from SEED Accounts, in- 13 cluding the proceeds of any sale or such allow- 14 ances, shall support renewable energy and en- 15 ergy efficiency programs authorized or approved 16 by the Federal Government. 17 (B) DEDICATED ALLOWANCES.—Allow- 18 ances deposited in a SEED Account that are 19 required by law to be used for specific purposes 20 for a specified period shall be used according to 21 those requirements during that period. 22 (C) UNDEDICATED ALLOWANCES.—To the 23 extent that allowances deposited in a SEED 24 Account are not required by law to be used for 25 specific purposes for a specified period as de- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00111 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 112 1 scribed in subparagraph (B), such allowances or 2 the proceeds of their sale may be used for any 3 of the following purposes: 4 (i) LOANS.—Loans of allowances, or 5 the proceeds from the sale of allowances, 6 may be provided, interest on commercial 7 loans may be subsidized at an interest rate 8 as low as zero, and other credit support 9 may be provided to support programs au- 10 thorized to use SEED Account allowance 11 value or any other renewable energy or en- 12 ergy efficiency purpose authorized or ap- 13 proved by the Federal Government. 14 (ii) GRANTS.—Grants of allowances or 15 the proceeds of their sale may be provided 16 to support programs authorized to use 17 SEED Account allowance value or any 18 other renewable energy or energy efficiency 19 purpose authorized or approved by the 20 Federal Government. 21 (iii) OTHER FORMS OF SUPPORT.—Al- 22 lowances or the proceeds of the sale of al- 23 lowances may be provided for other forms 24 of support for programs authorized to use 25 SEED Account allowance value or any f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00112 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 113 1 other renewable energy or energy efficiency 2 purpose authorized or approved by the 3 Federal Government. 4 (iv) ADMINISTRATIVE COSTS.—Except 5 to the extent provided in Federal law au- 6 thorizing or allocating allowances deposited 7 in a SEED Account, not more than 5 per- 8 cent of the allowance value in a SEED Ac- 9 count in any year may be used to cover ad- 10 ministrative expenses of the SEED Ac- 11 count. 12 (D) SUBACCOUNTS.—A State may create 13 and maintain subaccounts for local governments 14 that request such subaccounts to hold allow- 15 ances distributed to local governments for re- 16 newable energy or energy efficiency programs 17 authorized or approved by the Federal Govern- 18 ment. 19 (E) INTENDED USE PLANS.— 20 (i) IN GENERAL.—After providing for 21 public review and comment, each State ad- 22 ministering a SEED Account shall annu- 23 ally prepare a plan that identifies the in- 24 tended uses of the allowances or proceeds f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00113 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 114 1 from the sale of allowances in its SEED 2 Account. 3 (ii) CONTENTS.—An intended use 4 plan shall include— 5 (I) a list of the projects or pro- 6 grams for which withdrawals from the 7 SEED Account are intended in the 8 next fiscal year that begins after the 9 date of the plan, including a descrip- 10 tion of each project; 11 (II) the relationship of each of 12 the projects or programs to an identi- 13 fied Federal purpose authorized by 14 this Act, or any other Federal statute; 15 (III) the expected terms of use of 16 allowance value to provide assistance; 17 (IV) the criteria and methods es- 18 tablished for the distribution of allow- 19 ances or allowance value; 20 (V) a description of the equiva- 21 lent financial value and status of the 22 SEED Account; and 23 (VI) a statement of the mid-term 24 and long-term goals of the State for 25 use of its SEED Account. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00114 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 115 1 AND TRANSPARENCY.— (3) ACCOUNTABILITY 2 (A) CONTROLS AND PROCEDURES.—Any 3 State that has established a SEED Account 4 shall establish fiscal controls and recordkeeping 5 and accounting procedures for the SEED Ac- 6 count sufficient to ensure proper accounting 7 during appropriate accounting periods for de- 8 posits into the SEED Account, withdrawals 9 from the SEED Account, and SEED Account 10 balances, including any subaccounts or related 11 financial accounts. Such controls and proce- 12 dures shall conform to generally accepted gov- 13 ernment accounting principles. Any State that 14 has established a SEED Account shall retain 15 records for a period of at least 5 years. 16 (B) AUDITS.—Any State that has estab- 17 lished a SEED Account shall have an annual 18 audit conducted of the SEED Account by an 19 independent public accountant in accordance 20 with generally accepted auditing standards, and 21 shall transmit the results of that audit to the 22 Administrator. 23 (C) STATE REPORT.—Each State admin- 24 istering a SEED Account shall make publicly 25 available and submit to the Secretary a report f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00115 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 116 1 every 2 years on its activities related to its 2 SEED Account. 3 (D) PUBLIC INFORMATION.—Any— 4 (i) controls and procedures established 5 under subparagraph (A); and 6 (ii) information obtained through au- 7 dits conducted under subparagraph (B), 8 except to the extent that it would be pro- 9 tected from disclosure, if it were informa- 10 tion held by the Federal Government, 11 under section 552(b) of title 5, United 12 States Code, 13 shall be made publicly available. 14 (E) OTHER PROTECTIONS.—The Adminis- 15 trator shall require such additional procedures 16 and protections as are necessary to ensure that 17 any State that has established a SEED Ac- 18 count will operate the SEED Account in an ac- 19 countable and transparent manner. 20 (f) REQUIREMENTS ELIGIBILITY.—A State’s eli- FOR 21 gibility to receive allowances in its SEED Account shall 22 depend on that State’s compliance with the requirements 23 of this Act (and the amendments made by this Act). 24 (g) AUTHORIZATION APPROPRIATIONS.—There OF 25 are authorized to be appropriated to the Administrator f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00116 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 117 1 such sums as may be necessary for SEED Account oper- 2 ations. 3 SEC. 132. SUPPORT OF STATE RENEWABLE ENERGY AND 4 ENERGY EFFICIENCY PROGRAMS. 5 (a) DEFINITIONS.—For purposes of this section: 6 (1) COST-EFFECTIVE.—The term ‘‘cost-effec- 7 tive’’, with respect to an energy efficiency program, 8 means that the program meets the Total Resource 9 Cost Test, which requires that the net present value 10 of economic benefits over the life of the program or 11 measure, including avoided supply and delivery costs 12 and deferred or avoided investments, is greater than 13 the net present value of the economic costs over the 14 life of the program, including program costs and in- 15 cremental costs borne by the energy consumer. 16 (2) RENEWABLE RESOURCE.—The ENERGY 17 term ‘‘renewable energy resource’’ shall have the 18 meaning given that term in section 610 of the Public 19 Utility Regulatory Policies Act of 1978 (as added by 20 section 101 of this Act). 21 (3) STATE.—The term ‘‘State’’ shall have the 22 meaning given that term in section 302(d) of the 23 Clean Air Act (42 U.S.C. 7602(d)). 24 (b) DISTRIBUTION AMONG STATES.—The Adminis- 25 trator shall, in accordance with this section, distribute f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00117 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 118 1 emission allowances allocated pursuant to section 2 782(g)(1) not later than September 30, 2012, and each 3 calendar year thereafter through 2050. The Administrator 4 shall distribute the emission allowances to States for re- 5 newable energy and energy efficiency programs to be de- 6 posited in and administered through the State Energy and 7 Environment Development (SEED) Accounts established 8 pursuant to section 131 of the American Clean Energy 9 and Security Act of 2009. The Administrator shall dis- 10 tribute allowances among the States under this section 11 each year in accordance with the following formula: 12 (1) One third of the allowances shall be divided 13 equally among the States. 14 (2) One third of the allowances shall be distrib- 15 uted ratably among the States based on the popu- 16 lation of each State, as contained in the most recent 17 reliable census data available from the Bureau of the 18 Census, Department of Commerce, for all States at 19 the time the Administrator calculates the formula 20 for distribution. 21 (3) One third of the allowances for shall be dis- 22 tributed ratably among the States on the basis of 23 the energy consumption of each State as contained 24 in the most recent State Energy Data Report avail- 25 able from the Energy Information Administration f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00118 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 119 1 (or such alternative reliable source as the Adminis- 2 trator may designate). 3 (c) USES.—The allowances distributed to each State 4 pursuant to this section shall be used exclusively for the 5 purposes listed in this subsection, as set forth below: 6 (1) Not less than 12.5 percent shall be distrib- 7 uted by the State to units of local government within 8 such State to be used exclusively to support the en- 9 ergy efficiency and renewable energy purposes listed 10 in paragraphs (2) and (3). 11 (2) Not less than 20 percent shall be used ex- 12 clusively for the following energy efficiency pur- 13 poses— 14 (A) implementation and enforcement of 15 building codes adopted in compliance with sec- 16 tion 201 of the American Clean Energy and Se- 17 curity Act of 2009; 18 (B) implementation of the Retrofit for En- 19 ergy and Environmental Performance (REEP) 20 program established pursuant to section 202 of 21 the American Clean Energy and Security Act of 22 2009; 23 (C) implementation of the energy efficient 24 manufactured homes program established pur- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00119 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 120 1 suant to section 203 of the American Clean En- 2 ergy and Security Act of 2009; 3 (D) implementation of the building energy 4 performance labeling program established pur- 5 suant to section 204 of the American Clean En- 6 ergy and Security Act of 2009; 7 (E) enabling the development of a Smart 8 Grid (as described in section 1301 of the En- 9 ergy Independence and Security Act of 2007 10 (42 U.S.C. 17381)), including integration of re- 11 newable energy resources and distributed gen- 12 eration, demand response, demand side man- 13 agement, and systems analysis; 14 (F) transportation planning pursuant to 15 section 841; and 16 (G) other cost-effective energy efficiency 17 programs for end-use consumers of electricity, 18 natural gas, home heating oil, or propane, in- 19 cluding, where appropriate, programs or mecha- 20 nisms administered by local governments and 21 entities other than the State. 22 (3) Not less than 20 percent shall be used ex- 23 clusively for capital grants, tax credits, production 24 incentives, loans, loan guarantees, forgivable loans, 25 and interest rate buy-downs for— f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00120 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 121 1 (A) re-equipping, expanding, or estab- 2 lishing a manufacturing facility that receives 3 certification from the Secretary of Energy pur- 4 suant to section 1302 of the American Recovery 5 and Reinvestment Act of 2009 for the produc- 6 tion of— 7 (i) property designed to be used to 8 produce energy from renewable energy 9 sources; and 10 (ii) electricity storage systems; and 11 (B) deployment of technologies to generate 12 electricity from renewable energy sources. 13 (4) The remaining 47.5 percent shall be used 14 exclusively for any of the purposes described in sub- 15 paragraphs (A) through (F) of paragraph (2) and in 16 paragraph (3). 17 (d) REPORTING.—Each State receiving emission al- 18 lowances under this section shall include in its biennial 19 reports required under section 131 of the American Clean 20 Energy and Security Act of 2009, in accordance with such 21 requirements as the Administrator may prescribe— 22 (1) a list of entities receiving allowances or al- 23 lowance value under this section; 24 (2) the amount and nature of allowances or al- 25 lowance value received by each recipient; f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00121 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 122 1 (3) the specific purposes for which such allow- 2 ances or allowance value was conveyed; 3 (4) the amount of energy savings, emission re- 4 ductions, renewable energy deployment, or new or 5 retooled manufacturing capacity resulting from such 6 allowances or allowance value; and 7 (5) an assessment of the cost-effectiveness of 8 any energy efficiency program supported under sub- 9 section (c)(2)(G). 10 (e) ENFORCEMENT.—If the Administrator deter- 11 mines that a State is not in compliance with this section, 12 the Administrator may withhold a portion of the allow- 13 ances, the value of which is equal to up to twice the value 14 of the allowances that the State failed to use in accordance 15 with the requirements of this section, that such State 16 would otherwise be eligible to receive under this section 17 in later years. Allowances withheld pursuant to this sub- 18 section shall be distributed among the remaining States 19 in accordance with the requirements of subsection (b). Subtitle E—Smart Grid 20 Advancement 21 22 SEC. 141. DEFINITIONS. 23 For purposes of this subtitle: 24 (1) The term ‘‘Administrator’’ means the Ad- 25 ministrator of the Environmental Protection Agency. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00122 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 123 1 (2) The term ‘‘applicable baseline’’ means the 2 average of the highest three annual peak demands a 3 load-serving entity has experienced during the 5 4 years immediately prior to the date of enactment of 5 this Act. 6 (3) The term‘‘Commission’’ means Federal En- 7 ergy Regulatory Commission. 8 (4) The term ‘‘load-serving entity’’ means an 9 entity that provides electricity directly to retail con- 10 sumers with the responsibility to assure power qual- 11 ity and reliability, including such entities that are 12 investor-owned, publicly owned, owned by rural elec- 13 tric cooperatives, or other entities. 14 (5) The term ‘‘peak demand’’ means the high- 15 est point of electricity demand, net of any distrib- 16 uted electricity generation or storage from sources 17 on the load-serving entity’s customers’ premises, 18 during any hour on the system of a load serving en- 19 tity during a calendar year, expressed in Megawatts 20 (MW), or more than one such high point as a func- 21 tion of seasonal demand changes. 22 (6) The term ‘‘peak demand reduction’’ means 23 the reduction in annual peak demand as compared 24 to a previous baseline year or period, expressed in 25 Megawatts (MW), whether accomplished by dimin- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00123 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 124 1 ishing the end-use requirements for electricity or by 2 use of locally stored or generated electricity to meet 3 those requirements from distributed resources on the 4 load-serving entity’s customers’ premises and with- 5 out use of high-voltage transmission. 6 (7) The term ‘‘peak demand reduction plan’’ 7 means a plan developed by or for a load-serving enti- 8 ty that it will implement to meet its peak demand 9 reduction goals. 10 (8) The term ‘‘peak period’’ means the time pe- 11 riod on the system of a load-serving entity relative 12 to peak demand that may warrant special measures 13 or electricity resources to maintain system reliability 14 while meeting peak demand. 15 (9) The term ‘‘Secretary’’ means the Secretary 16 of Energy. 17 (10) The term ‘‘Smart Grid’’ has the meaning 18 provided by section 1301 of the Energy Independ- 19 ence and Security Act of 2007 (15 U.S.C. 17381). 20 SEC. 142. ASSESSMENT OF SMART GRID COST EFFECTIVE- 21 NESS IN PRODUCTS. 22 (a) ASSESSMENT.—Within one year after the date of 23 enactment of this Act, the Secretary and the Adminis- 24 trator shall each assess the potential for cost-effective in- 25 tegration of Smart Grid technologies and capabilities in f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00124 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 125 1 all products that are reviewed by the Department of En- 2 ergy and the Environmental Protection Agency, respec- 3 tively, for potential designation as Energy Star products. 4 (b) ANALYSIS.—(1) Within 2 years after the date of 5 enactment of this Act, the Secretary and the Adminis- 6 trator shall each prepare an analysis of the potential en- 7 ergy savings, greenhouse gas emission reductions, and 8 electricity cost savings that could accrue for each of the 9 products identified by the assessment in subsection (a) in 10 the following optimal circumstances: 11 (A) The products possessed Smart Grid capa- 12 bility and interoperability that is tested and proven 13 reliable. 14 (B) The products were utilized in an electricity 15 utility service area which had Smart Grid capability 16 and offered customers rate or program incentives to 17 use the products. 18 (C) The utility’s rates reflected national average 19 costs, including average peak and valley seasonal 20 and daily electricity costs. 21 (D) Consumers using such products took full 22 advantage of such capability. 23 (E) The utility avoided incremental investments 24 and rate increases related to such savings. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00125 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 126 1 (2) The analysis under paragraph (1) shall be consid- 2 ered the ‘‘best case’’ Smart Grid analysis. On the basis 3 of such an analysis for each product, the Secretary and 4 the Administrator shall determine whether the installation 5 of Smart Grid capability for such a product would be cost 6 effective. For purposes of this paragraph, the term ‘‘cost 7 effective’’ means that the cumulative savings from using 8 the product under the best case Smart Grid circumstances 9 for a period of one-half of the product’s expected useful 10 life will be greater than the incremental cost of the Smart 11 Grid features included in the product. 12 (3) To the extent that including Smart Grid capa- 13 bility in any products analyzed under paragraph (2) is 14 found to be cost effective in the best case, the Secretary 15 and the Administrator shall, not later than 3 years after 16 the date of enactment of this Act take each of the fol- 17 lowing actions: 18 (A) Inform the manufacturer of such product of 19 such finding of cost effectiveness. 20 (B) Assess the potential contributions the devel- 21 opment and use of products with Smart Grid tech- 22 nologies bring to reducing peak demand and pro- 23 moting grid stability. 24 (C) Assess the potential national energy savings 25 and electricity cost savings that could be realized if f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00126 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 127 1 Smart Grid potential were installed in the relevant 2 products reviewed by the Energy Star program. 3 (D) Assess and identify options for providing 4 consumers information on products with Smart Grid 5 capabilities, including the necessary conditions for 6 cost-effective savings. 7 (E) Submit a report to Congress summarizing 8 the results of the assessment for each class of prod- 9 ucts, and presenting the potential energy and green- 10 house gas savings that could result if Smart Grid 11 capability were installed and utilized on such prod- 12 ucts 13 SEC. 143. INCLUSIONS OF SMART GRID CAPABILITY ON AP- 14 PLIANCE ENERGY GUIDE LABELS. 15 Section 324(a)(2) of the Energy Policy and Conserva- 16 tion Act (42 U.S.C. 6294(a)(2)) is amended by adding the 17 following at the end: 18 ‘‘(J)(i) Not later than 3 years after the 19 date of enactment of this subparagraph, the 20 Federal Trade Commission shall initiate a rule- 21 making to consider making a special note in a 22 prominent manner on any ENERGY GUIDE 23 label for any product actually including Smart 24 Grid capability that— f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00127 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 128 1 ‘‘(I) Smart Grid capability is a fea- 2 ture of that product; 3 ‘‘(II) the use and value of that feature 4 depended on the Smart Grid capability of 5 the utility system in which the product was 6 installed and the active utilization of that 7 feature by the customer; and 8 ‘‘(III) on a utility system with Smart 9 Grid capability, the use of the product’s 10 Smart Grid capability could reduce the 11 customer’s cost of the product’s annual op- 12 eration by an estimated dollar amount 13 range representing the result of incre- 14 mental energy and electricity cost savings 15 that would result from the customer taking 16 full advantage of such Smart Grid capa- 17 bility. 18 ‘‘(ii) Not later than 3 years after the date 19 of enactment of this subparagraph, the Com- 20 mission shall complete the rulemaking initiated 21 under clause (i).’’. 22 SEC. 144. SMART GRID PEAK DEMAND REDUCTION GOALS. 23 (a) GOALS.—Not later than one year after the date 24 of enactment of this Act, load-serving entities, or, at their 25 option, States with respect to load-serving entities that f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00128 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 129 1 they regulate, shall determine and publish peak demand 2 reduction goals for any load-serving entities that have an 3 applicable baseline in excess of 250 megawatts. 4 (b) BASELINES.—(1) The Commission, in consulta- 5 tion with the Secretary and the Administrator, shall de- 6 velop and publish, after an opportunity for public com- 7 ment, a methodology to provide for adjustments or nor- 8 malization to a load-serving entity’s applicable baseline 9 over time to reflect changes in the number of customers 10 served, weather conditions, general economic conditions, 11 and any other appropriate factors external to peak de- 12 mand management, as determined by the Commission. 13 (2) The Commission shall support load-serving enti- 14 ties (including any load-serving entities with an applicable 15 baseline of less than 250 megawatts that volunteer to par- 16 ticipate in achieving the purposes of this section) in deter- 17 mining their applicable baselines, and in developing their 18 peak demand reduction goals. 19 (3) The Secretary, in consultation with the Commis- 20 sion, the Administrator, and the National Electric Reli- 21 ability Corporation, shall develop a system and rules for 22 measurement and verification of demand reductions. 23 (c) PEAK DEMAND REDUCTION GOALS.—(1) Peak 24 demand reduction goals may be established for an indi- 25 vidual load-serving entity, or, at the determination of a f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00129 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 130 1 State or regional entity, by that State or regional entity 2 for a larger region that shares a common system peak de- 3 mand and for which peak demand reduction measures 4 would offer regional benefit. 5 (2) A State or regional entity establishing peak de- 6 mand reduction goals shall cooperate, as necessary and 7 appropriate, with the Commission, the Secretary, State 8 regulatory commissions, State energy offices, the National 9 Electric Reliability Corporation, and other relevant au- 10 thorities. 11 (3) In determining the applicable peak demand reduc- 12 tion goals, States and other jurisdictional entities may uti- 13 lize the results of the 2009 National Demand Response 14 Potential Assessment, as authorized by section 571 of the 15 National Energy Conservation Policy Act (42 U.S.C. 16 8279). 17 (4) The applicable peak demand reduction goals shall 18 provide that— 19 (A) load-serving entities will reduce or mitigate 20 peak demand by a minimum percentage amount 21 from the applicable baseline to a lower peak demand 22 during calendar year 2012; 23 (B) load-serving entities will reduce or mitigate 24 peak demand by a minimum percentage greater f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00130 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 131 1 amount from the applicable baseline to a lower peak 2 demand during calendar year 2015; and 3 (C) the minimum percentage reductions estab- 4 lished as peak demand reduction goals shall be the 5 maximum reductions that are realistically achievable 6 with an aggressive effort to deploy Smart Grid and 7 peak demand reduction technologies and methods, 8 including but not limited to those listed in sub- 9 section (d). 10 (d) PLAN.—Each load-serving entity shall prepare a 11 peak demand reduction plan that demonstrates its ability 12 to meet each applicable goal by any or a combination of 13 the following options: 14 (1) Direct reduction in megawatts of peak de- 15 mand through energy efficiency measures with reli- 16 able and continued application during peak demand 17 periods. 18 (2) Demonstration that an amount of 19 megawatts equal to a stated portion of the applicable 20 goal is contractually committed to be available for 21 peak reduction through one or more of the following: 22 (A) Megawatts enrolled in demand re- 23 sponse programs. 24 (B) Megawatts subject to the ability of a 25 load-serving entity to call on demand response f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00131 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 132 1 programs, smart appliances, smart electricity 2 storage devices, distributed generation resources 3 on the entity’s customers’ premises, or other 4 measures directly capable of actively, 5 controllably, reliably, and dynamically reducing 6 peak demand (‘‘dynamic peak management con- 7 trol’’). 8 (C) Megawatts available from distributed 9 dynamic electricity storage under agreement 10 with the owner of that storage. 11 (D) Megawatts committed from 12 dispatchable distributed generation dem- 13 onstrated to be reliable under peak period con- 14 ditions and in compliance with air quality regu- 15 lations. 16 (E) Megawatts available from smart appli- 17 ances and equipment with Smart Grid capa- 18 bility available for direct control by the utility 19 through agreement with the customer owning 20 the appliances or equipment. 21 (F) Megawatts from a demonstrated and 22 assured minimum of distributed solar electric 23 generation capacity in instances where peak pe- 24 riod and peak demand conditions are directly f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00132 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 133 1 related to solar radiation and accompanying 2 heat. 3 (3) If any of the methods listed in subpara- 4 graph (C), (D), or (E) of paragraph (2) are relied 5 upon to meet its peak demand reduction goals, the 6 load-serving entity must demonstrate this capability 7 by operating a test during the applicable calendar 8 year. 9 (4) Nothing in this section shall require the 10 publication in peak demand reduction goals or in 11 any peak demand reduction plan of any information 12 that is confidential for competitive or other reasons 13 or that identifies individual customers. 14 (e) EXISTING AUTHORITY REQUIREMENTS.— AND 15 Nothing in this section diminishes or supersedes any au- 16 thority of a State or political subdivision of a State to 17 adopt or enforce any law or regulation respecting peak de- 18 mand management, demand response, distributed storage, 19 use of distributed generation, or the regulation of load- 20 serving entities. The Commission, in consultation with 21 States having such peak management, demand response 22 and distributed storage programs, shall to the maximum 23 extent practicable, facilitate coordination between the Fed- 24 eral program and such State programs. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00133 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 134 1 (f) RELIEF.—The Commission may, for good cause, 2 grant relief to load-serving entities from the requirements 3 of this section. 4 (g) OTHER LAWS.—Except as provided in sub- 5 sections (e) and (f), no law or regulation shall relieve any 6 person of any requirement otherwise applicable under this 7 section. 8 (h) COMPLIANCE.— (1) The Commission shall within 9 one year after the date of enactment of this Act establish 10 a public website where the Commission will provide infor- 11 mation and data demonstrating compliance by States, re- 12 gional entities, and load-serving entities with this section, 13 including the success of load-serving entities in meeting 14 applicable peak demand reduction goals. 15 (2) The Commission shall, by April 1 of each year 16 beginning in 2012, provide a report to Congress on com- 17 pliance with this section and success in meeting applicable 18 peak demand reduction goals and, as appropriate, shall 19 make recommendations as to how to increase peak de- 20 mand reduction efforts. 21 (3) The Commission shall note in each such report 22 any State, political subdivision of a State, or load-serving 23 entity that has failed to comply with this section, or is 24 not a part of any region or group of load-serving entities 25 serving a region that has complied with this section. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00134 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 135 1 (4) The Commission shall have and exercise the au- 2 thority to take reasonable steps to modify the process of 3 establishing peak demand reduction goals and to accept 4 adjustments to them as appropriate when sought by load- 5 serving entities. 6 (i) ASSISTANCE TO STATES AND FUNDING.— 7 (1) ASSISTANCE TO STATES.—Any costs in- 8 curred by States for activities undertaken pursuant 9 to this section shall be supported by the use of emis- 10 sion allowances allocated to the States’ SEED Ac- counts pursuant to section ølll¿ of this Act. To 11 12 the extent that a State provides allowances to local 13 governments within the State to implement this pro- 14 gram, that shall be deemed a distribution of such al- 15 lowances to units of local government pursuant to 16 subsection (c)(1) of that section. 17 (2) FUNDING.—There are authorized to be ap- 18 propriated such sums as may be necessary to the 19 Commission, the Secretary, and the Administrator to 20 carry out the provisions of this section. 21 SEC. 145. REAUTHORIZATION OF ENERGY EFFICIENCY PUB- 22 LIC INFORMATION PROGRAM TO INCLUDE 23 SMART GRID INFORMATION. 24 (a) IN GENERAL.—Section 134 of the Energy Policy 25 Act of 2005 (42 U.S.C. 15832) is amended as follows: f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00135 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 136 1 (1) By amending the section heading to read as 2 follows: ‘‘ENERGY EFFICIENCY AND SMART GRID 3 PUBLIC INFORMATION INITIATIVE’’. 4 (2) In paragraph (1) of subsection (a) by strik- 5 ing ‘‘reduce energy consumption during the 4-year 6 period beginning on the date of enactment of this 7 Act’’ and inserting ‘‘increase energy efficiency and 8 to adopt Smart Grid technology and practices’’. 9 (3) In paragraph (2) of subsection (a) by strik- 10 ing ‘‘benefits to consumers of reducing’’ and insert- 11 ing ‘‘economic and environmental benefits to con- 12 sumers and the United States of optimizing’’. 13 (4) In subsection (a) by inserting at the begin- 14 ning of paragraph (3) ‘‘the effect of energy effi- 15 ciency and Smart Grid capability in reducing energy 16 and electricity prices throughout the economy, to- 17 gether with’’. 18 (5) In subsection (a)(4) by redesignating sub- 19 paragraph (D) as (E), by striking ‘‘and’’ at the end 20 of subparagraph (C), and by inserting after subpara- 21 graph (C) the following: 22 ‘‘(D) purchasing and utilizing equipment 23 that includes Smart Grid features and capa- 24 bility; and’’. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00136 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 137 1 (6) In subsection (c), by striking ‘‘Not later 2 than July 1, 2009,’’ and inserting, ‘‘For each year 3 when appropriations pursuant to the authorization 4 in this section exceed $10,000,000,’’. 5 (7) In subsection (d) by striking ‘‘2010’’ and 6 inserting ‘‘2020’’. 7 (8) In subsection (e) by striking ‘‘2010’’ and in- 8 serting ‘‘2020’’. 9 (b) TABLE CONTENTS.—The item relating to sec- OF 10 tion 134 in the table of contents for the Energy Policy 11 Act of 2005 (42 U.S.C. 15801 and following) is amended 12 to read as follows: ‘‘Sec. 134. Energy efficiency and Smart Grid public information initiative.’’. 13 SEC. 146. INCLUSION OF SMART-GRID FEATURES IN APPLI- 14 ANCE REBATE PROGRAM. 15 (a) AMENDMENTS.—Section 124 of the Energy Pol- 16 icy Act of 2005 (42 U.S.C. 15821) is amended as follows: 17 (1) By amending the section heading to read as EFFICIENT AND SMART AP- 18 follows: ‘‘ENERGY 19 PLIANCE REBATE PROGRAM.’’. 20 (2) By redesignating paragraphs (4) and (5) of 21 subsection (a) as paragraphs (5) and (6), respec- 22 tively, and inserting after paragraph (3) the fol- 23 lowing: 24 ‘‘(4) SMART APPLIANCE.—The term ‘smart ap- 25 pliance’ means a product that the Administrator of f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00137 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 138 1 the Environmental Protection Agency or the Sec- 2 retary of Energy has determined qualifies for such 3 a designation in the Energy Star program pursuant 4 to section 142 of the American Clean Energy and 5 Security Act of 2009, or that the Secretary or the 6 Administrator has separately determined includes 7 the relevant Smart Grid capabilities listed in section 8 1301 of the Energy Independence and Security Act 9 of 2007 (15 U.S.C. 17381).’’. 10 (3) In subsection (b)(1) by inserting ‘‘and 11 smart’’ after ‘‘efficient’’ and by inserting after 12 ‘‘products’’ the first place it appears ‘‘, including 13 products designated as being smart appliances,’’. 14 (4) In subsection (b)(3), by inserting ‘‘the ad- 15 ministration of’’ after ‘‘carry out’’. 16 (5) In subsection (d), by inserting ‘‘the admin- 17 istration of’’ after ‘‘carrying out’’ and by inserting 18 ‘‘, and up to 100 percent of the value of the rebates 19 provided pursuant to this section’’ before the period 20 at the end. 21 (6) In subsection (e)(3), by inserting ‘‘, with 22 separate consideration as applicable if the product is 23 also a smart appliance,’’ after ‘‘Energy Star prod- 24 uct’’ the first place it appears and by inserting ‘‘or 25 smart appliance’’ before the period at the end. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00138 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 139 1 (7) In subsection (f), by striking 2 ‘‘$50,000,000’’ through the period at the end and 3 inserting ‘‘$100,000,000 for each fiscal year from 4 2010 through 2015.’’. 5 (b) TABLE CONTENTS.—The item relating to sec- OF 6 tion 124 in the table of contents for the Energy Policy 7 Act of 2005 (42 U.S.C. 15801 and following) is amended 8 to read as follows: ‘‘Sec. 124. Energy efficient and smart appliance rebate program.’’. Subtitle F—Transmission Planning 9 10 SEC. 151. TRANSMISSION PLANNING. 11 Part II of the Federal Power Act (16 U.S.C. 824 et 12 seq.) is amended by adding after section 216 the following 13 new section: 14 ‘‘SEC. 216A. TRANSMISSION PLANNING. 15 ‘‘(a) FEDERAL POLICY.— 16 ‘‘(1) OBJECTIVES.—It is the policy of the 17 United States that regional electric grid planning 18 should facilitate the deployment of renewable and 19 other zero-carbon energy sources for generating elec- 20 tricity to reduce greenhouse gas emissions while en- 21 suring reliability, reducing congestion, ensuring 22 cyber-security, and providing for cost-effective elec- 23 tricity services throughout the United States. 24 ‘‘(2) OPTIONS.—In addition to the policy under 25 paragraph (1), it is the policy of the United States f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00139 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 140 1 that regional electric grid planning to meet these ob- 2 jectives should take into account all significant de- 3 mand-side and supply-side options, including energy 4 efficiency, distributed generation, renewable energy 5 and zero-carbon electricity generation technologies, 6 smart-grid technologies and practices, demand re- 7 sponse, electricity storage, voltage regulation tech- 8 nologies, high capacity conductor and super- 9 conductor technologies, underground transmission 10 technologies, and new conventional electric trans- 11 mission capacity and corridors. 12 ‘‘(b) PLANNING.— 13 ‘‘(1) PLANNING PRINCIPLES.—Not later than 1 14 year after the date of enactment of this section, the 15 Commission shall adopt, after notice and oppor- 16 tunity for comment, national electricity grid plan- 17 ning principles derived from the Federal policy es- 18 tablished under subsection (a) to be applied in ongo- 19 ing and future transmission planning that may im- 20 plicate interstate transmission of electricity 21 ‘‘(2) REGIONAL ENTITIES.—Not PLANNING 22 later than 3 months after the date of adoption by 23 the Commission of national electricity grid planning 24 principles pursuant to paragraph (1), entities that 25 conduct or may conduct transmission planning pur- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00140 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 141 1 suant to State or Federal law or regulation, includ- 2 ing States, entities designated by States, public util- 3 ity transmission providers, operators and owners, re- 4 gional organizations, and electric utilities, and that 5 are willing to incorporate the national electricity grid 6 planning principles adopted by the Commission in 7 their electric grid planning, shall identify themselves 8 and the regions for which they propose to develop 9 plans to the Commission. 10 ‘‘(3) COORDINATION OF REGIONAL PLANNING 11 ENTITIES.—The Commission shall encourage re- 12 gional planning entities described under paragraph 13 (2) to cooperate and coordinate across regions and 14 to harmonize regional electric grid planning with 15 planning in adjacent or overlapping jurisdictions to 16 the maximum extent feasible. The Commission shall 17 work with States, public utilities transmission pro- 18 viders, load-serving entities, transmission operators, 19 and other organizations to resolve any conflict or 20 competition among proposed planning entities in 21 order to build consensus and promote the Federal 22 policy established under subsection (a). The Com- 23 mission shall seek to ensure that planning that is 24 consistent with the national electricity grid planning 25 principles adopted pursuant to paragraph (1) is con- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00141 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 142 1 ducted in all regions of the United States and the 2 territories. 3 ‘‘(4) RELATION TO EXISTING PLANNING POL- 4 ICY.—In implementing the Federal policy established 5 under subsection (a), the Commission shall— 6 ‘‘(A) incorporate any ongoing planning ef- 7 forts undertaken pursuant to section 217; and 8 ‘‘(B) consult with and invite the participa- 9 tion of the Secretary of Energy in relationship 10 to the Secretary’s duties pursuant to section 11 216. 12 ‘‘(5) ASSISTANCE.— 13 ‘‘(A) IN GENERAL.—The Commission shall 14 provide support to and participate in the re- 15 gional grid planning processes conducted by re- 16 gional planning entities. The Commission may 17 provide planning resources and assistance as re- 18 quired or as requested by regional planning en- 19 tities, including system data, cost information, 20 system analysis, technical expertise, modeling 21 support, dispute resolution services, and other 22 assistance to regional planning entities, as ap- 23 propriate. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00142 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 143 1 ‘‘(B) AUTHORIZATION.—There are author- 2 ized to be appropriated such sums as may be 3 necessary to carry out this paragraph. 4 ‘‘(6) CONFLICT RESOLUTION.—In the event 5 that regional grid plans conflict, the Commission 6 shall assist the regional planning entities in resolving 7 such conflicts in order to achieve the objectives of 8 the Federal policy established under subsection (a). 9 ‘‘(7) SUBMISSION OF PLANS.—The Commission 10 shall require regional planning entities to submit ini- 11 tial regional electric grid plans to the Commission 12 not later than 18 months after the date the Commis- 13 sion promulgates national electricity grid planning 14 principles pursuant to paragraph (1). Regional elec- 15 tric grid plans should, in general, be developed from 16 sub-regional requirements and plans, including plan- 17 ning input reflecting individual utility service areas. 18 Regional plans may then in turn be combined into 19 larger regional plans, up to interconnection-wide and 20 national plans, as appropriate and necessary as de- 21 termined by the Commission. The Commission shall 22 review such plans for consistency with the national 23 grid planning principles and may return a plan to 24 one or more planning entities for further consider- 25 ation, along with the Commission’s own rec- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00143 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 144 1 ommendations for resolution of any conflict or for 2 improvement. To the extent practicable, all plans 3 submitted to the Commission shall be public docu- 4 ments and available on the Commission’s website. 5 ‘‘(8) MULTI-REGIONAL MEETINGS.—As regional 6 grid plans are submitted to the Commission, the 7 Commission may convene multi-regional meetings to 8 discuss regional grid plan consistency and integra- 9 tion, including requirements for multi-regional 10 projects, and to resolve any conflicts that emerge 11 from such multi-regional projects. The Commission 12 shall provide its recommendations for eliminating 13 any inter-regional conflicts. 14 ‘‘(9) REPORT TO CONGRESS.—Not later than 3 15 years after the date of enactment of this section, the 16 Commission shall provide a report to Congress con- 17 taining the results of the regional grid planning 18 process, including summaries of the adopted regional 19 plans. The Commission shall provide an electronic 20 version of its report on its website with links to all 21 regional and sub-regional plans taken into account. 22 The Commission shall note and provide its rec- 23 ommended resolution for any conflicts not resolved 24 during the planning process. The Commission shall 25 make any recommendations to Congress on the ap- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00144 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 145 1 propriate Federal role or support required to ad- 2 dress the needs of the electric grid, including rec- 3 ommendations for addressing any needs that are be- 4 yond the reach of existing State and Federal author- 5 ity.’’. Subtitle G—Technical Corrections 6 to Energy Laws 7 8 SEC. 161. TECHNICAL CORRECTIONS TO ENERGY INDE- 9 PENDENCE AND SECURITY ACT OF 2007. 10 (a) TITLE III—ENERGY SAVINGS THROUGH IM- 11 STANDARDS APPLIANCE LIGHTING.— PROVED FOR AND 12 (1) Section 325(u) of the Energy Policy and Conservation 13 Act (42 U.S.C. 6295(u)) (as amended by section 301(c) 14 of the Energy Independence and Security Act of 2007 15 (121 Stat. 1550)) is amended— 16 (A) by redesignating paragraph (7) as 17 paragraph (4); and 18 (B) in paragraph (4) (as so redesignated), 19 by striking ‘‘supplies is’’ and inserting ‘‘supply 20 is’’. 21 (2) Section 302 of the Energy Independence and Se- 22 curity Act of 2007 (121 Stat. 1551)) is amended— 23 (A) in subsection (a), by striking ‘‘end of the 24 paragraph’’ and inserting ‘‘end of subparagraph 25 (A)’’; and f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00145 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 146 1 (B) in subsection (b), by striking ‘‘6313(a)’’ 2 and inserting ‘‘6314(a)’’. 3 (3) Section 343(a)(1) of the Energy Policy and Con- 4 servation Act (42 U.S.C. 6313(a)(1)) (as amended by sec- 5 tion 302(b) of the Energy Independence and Security Act 6 of 2007 (121 Stat. 1551)) is amended— 7 (A) by striking ‘‘TEST PROCEDURES’’ and all 8 that follows through ‘‘At least once’’ and inserting 9 ‘‘TEST PROCEDURES.—At least once’’; and 10 (B) by redesignating clauses (i) and (ii) as sub- 11 paragraphs (A) and (B), respectively. 12 (4) Section 342(a)(6) of the Energy Policy and Con- 13 servation Act (42 U.S.C. 6313(a)(6)) (as amended by sec- 14 tion 305(b)(2) of the Energy Independence and Security 15 Act of 2007 (121 Stat. 1554)) is amended— 16 (A) in subparagraph (B)— 17 (i) by striking ‘‘If the Secretary’’ and in- 18 serting the following: 19 ‘‘(i) IN GENERAL.—If the Secretary’’; 20 (ii) by striking ‘‘clause (ii)(II)’’ and insert- 21 ing ‘‘subparagraph (A)(ii)(II)’’; 22 (iii) by striking ‘‘clause (i)’’ and inserting 23 ‘‘subparagraph (A)(i)’’; and 24 (iv) by adding at the end the following: f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00146 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 147 1 FACTORS.—In determining ‘‘(ii) 2 whether a standard is economically justi- 3 fied for the purposes of subparagraph 4 (A)(ii)(II), the Secretary shall, after receiv- 5 ing views and comments furnished with re- 6 spect to the proposed standard, determine 7 whether the benefits of the standard ex- 8 ceed the burden of the proposed standard 9 by, to the maximum extent practicable, 10 considering— 11 ‘‘(I) the economic impact of the 12 standard on the manufacturers and 13 on the consumers of the products sub- 14 ject to the standard; 15 ‘‘(II) the savings in operating 16 costs throughout the estimated aver- 17 age life of the product in the type (or 18 class) compared to any increase in the 19 price of, or in the initial charges for, 20 or maintenance expenses of, the prod- 21 ucts that are likely to result from the 22 imposition of the standard; 23 ‘‘(III) the total projected quan- 24 tity of energy savings likely to result f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00147 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 148 1 directly from the imposition of the 2 standard; 3 ‘‘(IV) any lessening of the utility 4 or the performance of the products 5 likely to result from the imposition of 6 the standard; 7 ‘‘(V) the impact of any lessening 8 of competition, as determined in writ- 9 ing by the Attorney General, that is 10 likely to result from the imposition of 11 the standard; 12 ‘‘(VI) the need for national en- 13 ergy conservation; and 14 ‘‘(VII) other factors the Sec- 15 retary considers relevant. 16 ‘‘(iii) ADMINISTRATION.— 17 ‘‘(I) ENERGY EFFI- USE AND 18 CIENCY.—The Secretary may not pre- 19 scribe any amended standard under 20 this paragraph that increases the 21 maximum allowable energy use, or de- 22 creases the minimum required energy 23 efficiency, of a covered product. 24 ‘‘(II) UNAVAILABILITY.— f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00148 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 149 1 GENERAL.—The ‘‘(aa) IN 2 Secretary may not prescribe an 3 amended standard under this 4 subparagraph if the Secretary 5 finds (and publishes the finding) 6 that interested persons have es- 7 tablished by a preponderance of 8 the evidence that a standard is 9 likely to result in the unavail- 10 ability in the United States in 11 any product type (or class) of 12 performance characteristics (in- 13 cluding reliability, features, sizes, 14 capacities, and volumes) that are 15 substantially the same as those 16 generally available in the United 17 States at the time of the finding 18 of the Secretary. 19 ‘‘(bb) OTHER TYPES OR 20 CLASSES.—The failure of some 21 types (or classes) to meet the cri- 22 terion established under this sub- 23 clause shall not affect the deter- 24 mination of the Secretary on 25 whether to prescribe a standard f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00149 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 150 1 for the other types or classes.’’; 2 and 3 (B) in subparagraph (C)(iv), by striking ‘‘An 4 amendment prescribed under this subsection’’ and 5 inserting ‘‘Notwithstanding subparagraph (D), an 6 amendment prescribed under this subparagraph’’. 7 (5) Section 306(c) of the Energy Independence and 8 Security Act of 2007 (121 Stat. 1559) is amended— 9 (A) by striking ‘‘Section’’ and all that follows 10 through ‘‘is amended’’ and inserting ‘‘Section 11 342(a)(6)(C) of the Energy Policy and Conservation 12 Act (42 U.S.C. 6313(a)(6)(C)) (as amended by sec- 13 tion 305(b)(2)) is amended’’; 14 (B)(i) by redesignating clause (iii) of section 15 342(a)(6)(B) of the Energy Policy and Conservation 16 Act (as added by section 306(c) of the Energy Inde- 17 pendence and Security Act of 2007) as clause (vi) of 18 section 342(a)(6)(C) of the Energy Policy and Con- 19 servation Act (as amended by section 305(b)(2) of 20 the Energy Independence and Security Act of 2007). 21 (6) Section 340 of the Energy Policy and Conserva- 22 tion Act (42 U.S.C. 6311) (as amended by sections 23 312(a)(2) and 314(a) of the Energy Independence and Se- 24 curity Act of 2007 (121 Stat. 1564, 1569) is amended 25 by redesignating paragraphs (22) and (23) (as added by f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00150 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 151 1 section 314(a) of that Act) as paragraphs (23) and (24), 2 respectively. 3 (7) Section 345 of the Energy Policy and Conserva- 4 tion Act (42 U.S.C. 6316) (as amended by section 312(e) 5 of the Energy Independence and Security Act of 2007 6 (121 Stat. 1567)) is amended— 7 (A) by striking ‘‘subparagraphs (B) through 8 (G)’’ each place it appears and inserting ‘‘subpara- 9 graphs (B), (C), (D), (I), (J), and (K)’’; 10 (B) by striking ‘‘part A’’ each place it appears 11 and inserting ‘‘part B’’; and 12 (C) in subsection (h)(3), by striking ‘‘section 13 342(f)(3)’’ and inserting ‘‘section 342(f)(4)’’. 14 (8) Section 340(13) of the Energy Policy and Con- 15 servation Act (42 U.S.C. 6311(13)) (as amended by sec- 16 tion 313(a) of the Energy Independence and Security Act 17 of 2007 (121 Stat. 1568)) is amended— 18 (A) by striking subparagraphs (A) and (B) and 19 inserting the following: 20 ‘‘(A) IN GENERAL.—The term ‘electric 21 motor’ means any motor that is— 22 ‘‘(i) a general purpose T-frame, sin- 23 gle-speed, foot-mounting, polyphase squir- 24 rel-cage induction motor of the National 25 Electrical Manufacturers Association, De- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00151 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 152 1 sign A and B, continuous rated, operating 2 on 230/460 volts and constant 60 Hertz 3 line power as defined in NEMA Standards 4 Publication MG1-1987; or 5 ‘‘(ii) a motor incorporating the design 6 elements described in clause (i), but is con- 7 figured to incorporate one or more of the 8 following variations— 9 ‘‘(I) U-frame motor; 10 ‘‘(II) NEMA Design C motor; 11 ‘‘(III) close-coupled pump motor; 12 ‘‘(IV) footless motor; 13 ‘‘(V) vertical solid shaft normal 14 thrust motor (as tested in a horizontal 15 configuration); 16 ‘‘(VI) 8-pole motor; or 17 ‘‘(VII) poly-phase motor with a 18 voltage rating of not more than 600 19 volts (other than 230 volts or 460 20 volts, or both, or can be operated on 21 230 volts or 460 volts, or both).’’; and 22 (B) by redesignating subparagraphs (C) 23 through (I) as subparagraphs (B) through (H), re- 24 spectively. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00152 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 153 1 (9)(A) Section 342(b) of the Energy Policy and Con- 2 servation Act (42 U.S.C. 6313(b)) is amended— 3 (i) in paragraph (1), by striking ‘‘paragraph (2)’’ and 4 inserting ‘‘paragraph (3)’’; 5 (ii) by redesignating paragraphs (2) and (3) as para- 6 graphs (3) and (4); 7 (iii) by inserting after paragraph (1) the following: 8 ‘‘(2) STANDARDS EFFECTIVE BEGINNING DE- 9 CEMBER 19, 2010.— 10 ‘‘(A) IN GENERAL.—Except for definite 11 purpose motors, special purpose motors, and 12 those motors exempted by the Secretary under 13 paragraph (3) and except as provided for in 14 subparagraphs (B), (C), and (D), each electric 15 motor manufactured with power ratings from 1 16 to 200 horsepower (alone or as a component of 17 another piece of equipment) on or after Decem- 18 ber 19, 2010, shall have a nominal full load ef- 19 ficiency of not less than the nominal full load 20 efficiency described in NEMA MG-1 (2006) 21 Table 12-12. 22 ‘‘(B) FIRE PUMP ELECTRIC MOTORS.—Ex- 23 cept for those motors exempted by the Sec- 24 retary under paragraph (3), each fire pump 25 electric motor manufactured with power ratings f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00153 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 154 1 from 1 to 200 horsepower (alone or as a compo- 2 nent of another piece of equipment) on or after 3 December 19, 2010, shall have a nominal full 4 load efficiency that is not less than the nominal 5 full load efficiency described in NEMA MG-1 6 (2006) Table 12-11. 7 ‘‘(C) NEMA MO- DESIGN B ELECTRIC 8 TORS.—Except for those motors exempted by 9 the Secretary under paragraph (3), each 10 NEMA Design B electric motor with power rat- 11 ings of more than 200 horsepower, but not 12 greater than 500 horsepower, manufactured 13 (alone or as a component of another piece of 14 equipment) on or after December 19, 2010, 15 shall have a nominal full load efficiency of not 16 less than the nominal full load efficiency de- 17 scribed in NEMA MG-1 (2006) Table 12-11. 18 ‘‘(D) MOTORS INCORPORATING CERTAIN 19 DESIGN ELEMENTS.—Except for those motors 20 exempted by the Secretary under paragraph 21 (3), each electric motor described in section 22 340(13)(A)(ii) manufactured with power rat- 23 ings from 1 to 200 horsepower (alone or as a 24 component of another piece of equipment) on or 25 after December 19, 2010, shall have a nominal f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00154 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 155 1 full load efficiency of not less than the nominal 2 full load efficiency described in NEMA MG-1 3 (2006) Table 12-11.’’; and 4 (iv) in paragraph (3) (as redesignated by clause (ii)), 5 by striking ‘‘paragraph (1)’’ each place it appears in sub- 6 paragraphs (A) and (D) and inserting ‘‘paragraphs (1) 7 and (2)’’. 8 (B) Section 313 of the Energy Independence and Se- 9 curity Act of 2007 (121 Stat. 1568) is repealed. 10 (C) The amendments made by— 11 (i) subparagraph (A) take effect on December 12 19, 2010; and 13 (ii) subparagraph (B) take effect on December 14 19, 2007. 15 (10) Section 321(30)(D)(i)(III) of the Energy Policy 16 and Conservation Act (42 U.S.C. 6291(30)(D)(i)(III)) (as 17 amended by section 321(a)(1)(A) of the Energy Independ- 18 ence and Security Act of 2007 (121 Stat. 1574)) is 19 amended by inserting before the semicolon the following: 20 ‘‘or, in the case of a modified spectrum lamp, not less than 21 232 lumens and not more than 1,950 lumens’’. 22 (11) Section 321(30)(T) of the Energy Policy and 23 Conservation Act (42 U.S.C. 6291(30)(T) (as amended by 24 section 321(a)(1)(B) of the Energy Independence and Se- 25 curity Act of 2007 (121 Stat. 1574)) is amended— f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00155 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 156 1 (A) in clause (i)— 2 (i) by striking the comma after ‘‘household 3 appliance’’ and inserting ‘‘and’’; and 4 (ii) by striking ‘‘and is sold at retail,’’; and 5 (B) in clause (ii), by inserting ‘‘when sold at re- 6 tail,’’ before ‘‘is designated’’. 7 (12) Section 325 of the Energy Policy and Conserva- 8 tion Act (42 U.S.C. 6295) (as amended by sections 9 321(a)(3)(A) and 322(b) of the Energy Independence and 10 Security Act of 2007 (121 Stat. 1577, 1588)) is amended 11 by striking subsection (i) and inserting the following: 12 ‘‘(i) GENERAL SERVICE FLUORESCENT LAMPS, GEN- 13 SERVICE INCANDESCENT LAMPS, INTERMEDIATE ERAL 14 BASE INCANDESCENT LAMPS, CANDELABRA BASE INCAN- 15 LAMPS, INCANDESCENT REFLECTOR DESCENT AND 16 LAMPS.— 17 ‘‘(1) ENERGY EFFICIENCY STANDARDS.— 18 ‘‘(A) IN GENERAL.—Each of the following 19 general service fluorescent lamps, general serv- 20 ice incandescent lamps, intermediate base in- 21 candescent lamps, candelabra base incandescent 22 lamps, and incandescent reflector lamps manu- 23 factured after the effective date specified in the 24 tables listed in this subparagraph shall meet or f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00156 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 157 1 exceed the following lamp efficacy, new max- 2 imum wattage, and CRI standards: ‘‘FLUORESCENT LAMPS Effective Nominal Minimum Average Minimum Date (Pe- Lamp Type Lamp Lamp Efficacy CRI riod of Wattage (LPW) Months) 4-foot medium bi-pin …………….. >35 W 69 75.0 36 ≤35 W ……………………………………………. 45 75.0 36 2-foot U-shaped ……………………. >35 W 69 68.0 36 ≤35 W ……………………………………………. 45 64.0 36 8-foot slimline ………………………. 65 W 69 80.0 18 ≤65 W ……………………………………………. 45 80.0 18 8-foot high output …………………. >100 W 69 80.0 18 ≤100 W ……………………………………………. 45 80.0 18 ‘‘INCANDESCENT REFLECTOR LAMPS Effective Minimum Average Date (Pe- Nominal Lamp Wattage Lamp Efficacy riod of (LPW) Months) 40–50 ………………………………………………………………………….. 10.5 36 51–66 ………………………………………………………………………….. 11.0 36 67–85 ………………………………………………………………………….. 12.5 36 86–115 ………………………………………………………………………… 14.0 36 116–155 ………………………………………………………………………… 14.5 36 156–205 ………………………………………………………………………… 15.0 36 ‘‘GENERAL SERVICE INCANDESCENT LAMPS Minimum Maximum Rated Effective Rated Lumen Ranges Rated Life- Wattage Date time 1490–2600 72 1,000 hrs 1/1/2012 1050–1489 53 1,000 hrs 1/1/2013 750–1049 43 1,000 hrs 1/1/2014 310–749 29 1,000 hrs 1/1/2014 ‘‘MODIFIED SPECTRUM GENERAL SERVICE INCANDESCENT LAMPS Minimum Maximum Rated Effective Rated Lumen Ranges Rated Life- Wattage Date time 1118–1950 72 1,000 hrs 1/1/2012 788–1117 53 1,000 hrs 1/1/2013 563–787 43 1,000 hrs 1/1/2014 232–562 29 1,000 hrs 1/1/2014 3 ‘‘(B) APPLICATION.— f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00157 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 158 1 CRITERIA.—This ‘‘(i) APPLICATION 2 subparagraph applies to each lamp that— 3 ‘‘(I) is intended for a general 4 service or general illumination applica- 5 tion (whether incandescent or not); 6 ‘‘(II) has a medium screw base 7 or any other screw base not defined in 8 ANSI C81.61–2006; 9 ‘‘(III) is capable of being oper- 10 ated at a voltage at least partially 11 within the range of 110 to 130 volts; 12 and 13 ‘‘(IV) is manufactured or im- 14 ported after December 31, 2011. 15 ‘‘(ii) REQUIREMENT.—For purposes 16 of this paragraph, each lamp described in 17 clause (i) shall have a color rendering 18 index that is greater than or equal to— 19 ‘‘(I) 80 for nonmodified spectrum 20 lamps; or 21 ‘‘(II) 75 for modified spectrum 22 lamps. 23 ‘‘(C) CANDELABRA INCANDESCENT LAMPS 24 AND INTERMEDIATE BASE INCANDESCENT 25 LAMPS.— f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00158 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 159 1 INCANDES- ‘‘(i) CANDELABRA BASE 2 CENT LAMPS.—Effective beginning Janu- 3 ary 1, 2012, a candelabra base incandes- 4 cent lamp shall not exceed 60 rated watts. 5 ‘‘(ii) INTERMEDIATE BASE INCANDES- 6 CENT LAMPS.—Effective beginning Janu- 7 ary 1, 2012, an intermediate base incan- 8 descent lamp shall not exceed 40 rated 9 watts. 10 ‘‘(D) EXEMPTIONS.— 11 ‘‘(i) STATUTORY EXEMPTIONS.—The 12 standards specified in subparagraph (A) 13 shall not apply to the following types of in- 14 candescent reflector lamps: 15 ‘‘(I) Lamps rated at 50 watts or 16 less that are ER30, BR30, BR40, or 17 ER40 lamps. 18 ‘‘(II) Lamps rated at 65 watts 19 that are BR30, BR40, or ER40 20 lamps. 21 ‘‘(III) R20 incandescent reflector 22 lamps rated 45 watts or less. 23 ‘‘(ii) ADMINISTRATIVE EXEMP- 24 TIONS.— f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00159 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 160 1 ‘‘(I) PETITION.—Any person may 2 petition the Secretary for an exemp- 3 tion for a type of general service lamp 4 from the requirements of this sub- 5 section. 6 ‘‘(II) CRITERIA.—The Secretary 7 may grant an exemption under sub- 8 clause (I) only to the extent that the 9 Secretary finds, after a hearing and 10 opportunity for public comment, that 11 it is not technically feasible to serve a 12 specialized lighting application (such 13 as a military, medical, public safety, 14 or certified historic lighting applica- 15 tion) using a lamp that meets the re- 16 quirements of this subsection. 17 ‘‘(III) ADDITIONAL CRITERION.— 18 To grant an exemption for a product 19 under this clause , the Secretary shall 20 include, as an additional criterion, 21 that the exempted product is unlikely 22 to be used in a general service lighting 23 application. 24 ‘‘(E) EXTENSION OF COVERAGE.— f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00160 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 161 1 ‘‘(i) PETITION.—Any person may peti- 2 tion the Secretary to establish standards 3 for lamp shapes or bases that are excluded 4 from the definition of general service 5 lamps. 6 ‘‘(ii) INCREASED SALES OF EXEMPT- 7 ED LAMPS.—The petition shall include evi- 8 dence that the availability or sales of ex- 9 empted incandescent lamps have increased 10 significantly since the date on which the 11 standards on general service incandescent 12 lamps were established. 13 ‘‘(iii) CRITERIA.—The Secretary shall 14 grant a petition under clause (i) if the Sec- 15 retary finds that— 16 ‘‘(I) the petition presents evi- 17 dence that demonstrates that commer- 18 cial availability or sales of exempted 19 incandescent lamp types have in- 20 creased significantly since the stand- 21 ards on general service lamps were es- 22 tablished and likely are being widely 23 used in general lighting applications; 24 and f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00161 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 162 1 ‘‘(II) significant energy savings 2 could be achieved by covering exempt- 3 ed products, as determined by the 4 Secretary based in part on sales data 5 provided to the Secretary from manu- 6 facturers and importers. 7 ‘‘(iv) NO PRESUMPTION.—The grant 8 of a petition under this subparagraph shall 9 create no presumption with respect to the 10 determination of the Secretary with respect 11 to any criteria under a rulemaking con- 12 ducted under this section. 13 ‘‘(v) EXPEDITED PROCEEDING.—If 14 the Secretary grants a petition for a lamp 15 shape or base under this subparagraph, 16 the Secretary shall— 17 ‘‘(I) conduct a rulemaking to de- 18 termine standards for the exempted 19 lamp shape or base; and 20 ‘‘(II) complete the rulemaking 21 not later than 18 months after the 22 date on which notice is provided 23 granting the petition. 24 ‘‘(F) EFFECTIVE DATES.— f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00162 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 163 1 GENERAL.—In this paragraph, ‘‘(i) IN 2 except as otherwise provided in a table 3 contained in subparagraph (A) or in clause 4 (ii), the term ‘effective date’ means the last 5 day of the month specified in the table 6 that follows October 24, 1992. 7 ‘‘(ii) SPECIAL EFFECTIVE DATES.— 8 ‘‘(I) ER, BR, AND BPAR 9 LAMPS.—The standards specified in 10 subparagraph (A) shall apply with re- 11 spect to ER incandescent reflector 12 lamps, BR incandescent reflector 13 lamps, BPAR incandescent reflector 14 lamps, and similar bulb shapes on and 15 after January 1, 2008, or the date 16 that is 180 days after the date of en- 17 actment of the Energy Independence 18 and Security Act of 2007. 19 ‘‘(II) LAMPS BETWEEN 2.25–2.75 20 DIAMETER.—The stand- INCHES IN 21 ards specified in subparagraph (A) 22 shall apply with respect to incandes- 23 cent reflector lamps with a diameter 24 of more than 2.25 inches, but not 25 more than 2.75 inches, on and after f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00163 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 164 1 the later of January 1, 2008, or the 2 date that is 180 days after the date of 3 enactment of the Energy Independ- 4 ence and Security Act of 2007. 5 ‘‘(2) COMPLIANCE WITH EXISTING LAW.—Not- 6 withstanding section 332(a)(5) and section 332(b), 7 it shall not be unlawful for a manufacturer to sell 8 a lamp that is in compliance with the law at the 9 time the lamp was manufactured. 10 ‘‘(3) RULEMAKING 24, BEFORE OCTOBER 11 1995.— 12 ‘‘(A) IN GENERAL.—Not later than 36 13 months after October 24, 1992, the Secretary 14 shall initiate a rulemaking procedure and shall 15 publish a final rule not later than the end of 16 the 54-month period beginning on October 24, 17 1992, to determine whether the standards es- 18 tablished under paragraph (1) should be 19 amended. 20 ‘‘(B) ADMINISTRATION.—The rule shall 21 contain the amendment, if any, and provide 22 that the amendment shall apply to products 23 manufactured on or after the 36-month period 24 beginning on the date on which the final rule is 25 published. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00164 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 165 1 24, ‘‘(4) RULEMAKING BEFORE OCTOBER 2 2000.— 3 ‘‘(A) IN GENERAL.—Not later than 8 years 4 after October 24, 1992, the Secretary shall ini- 5 tiate a rulemaking procedure and shall publish 6 a final rule not later than 9 years and 6 months 7 after October 24, 1992, to determine whether 8 the standards in effect for fluorescent lamps 9 and incandescent lamps should be amended. 10 ‘‘(B) ADMINISTRATION.—The rule shall 11 contain the amendment, if any, and provide 12 that the amendment shall apply to products 13 manufactured on or after the 36-month period 14 beginning on the date on which the final rule is 15 published. 16 ‘‘(5) RULEMAKING FOR ADDITIONAL GENERAL 17 SERVICE FLUORESCENT LAMPS.— 18 ‘‘(A) IN GENERAL.—Not later than the 19 end of the 24-month period beginning on the 20 date labeling requirements under section 21 324(a)(2)(C) become effective, the Secretary 22 shall— 23 ‘‘(i) initiate a rulemaking procedure to 24 determine whether the standards in effect 25 for fluorescent lamps and incandescent f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00165 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 166 1 lamps should be amended so that the 2 standards would be applicable to additional 3 general service fluorescent lamps; and 4 ‘‘(ii) publish, not later than 18 5 months after initiating the rulemaking, a 6 final rule including the amended stand- 7 ards, if any. 8 ‘‘(B) ADMINISTRATION.—The rule shall 9 provide that the amendment shall apply to 10 products manufactured after a date which is 36 11 months after the date on which the rule is pub- 12 lished. 13 ‘‘(6) STANDARDS FOR GENERAL SERVICE 14 LAMPS.— 15 ‘‘(A) RULEMAKING BEFORE JANUARY 1, 16 2014.— 17 ‘‘(i) IN GENERAL.—Not later than 18 January 1, 2014, the Secretary shall ini- 19 tiate a rulemaking procedure to determine 20 whether— 21 ‘‘(I) standards in effect for gen- 22 eral service lamps should be amended; 23 and 24 ‘‘(II) the exclusions for certain 25 incandescent lamps should be main- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00166 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 167 1 tained or discontinued based, in part, 2 on excluded lamp sales collected by 3 the Secretary from manufacturers. 4 ‘‘(ii) SCOPE.—The rulemaking— 5 ‘‘(I) shall not be limited to incan- 6 descent lamp technologies; and 7 ‘‘(II) shall include consideration 8 of a minimum standard of 45 lumens 9 per watt for general service lamps. 10 ‘‘(iii) AMENDED STANDARDS.—If the 11 Secretary determines that the standards in 12 effect for general service lamps should be 13 amended, the Secretary shall publish a 14 final rule not later than January 1, 2017, 15 with an effective date that is not earlier 16 than 3 years after the date on which the 17 final rule is published. 18 ‘‘(iv) PHASED-IN EFFECTIVE 19 DATES.—The Secretary shall consider 20 phased-in effective dates under this sub- 21 paragraph after considering— 22 ‘‘(I) the impact of any amend- 23 ment on manufacturers, retiring and 24 repurposing existing equipment, f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00167 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 168 1 stranded investments, labor contracts, 2 workers, and raw materials; and 3 ‘‘(II) the time needed to work 4 with retailers and lighting designers 5 to revise sales and marketing strate- 6 gies. 7 ‘‘(v) BACKSTOP REQUIREMENT.—If 8 the Secretary fails to complete a rule- 9 making in accordance with clauses (i) 10 through (iv) or if the final rule does not 11 produce savings that are greater than or 12 equal to the savings from a minimum effi- 13 cacy standard of 45 lumens per watt, effec- 14 tive beginning January 1, 2020, the Sec- 15 retary shall prohibit the manufacture of 16 any general service lamp that does not 17 meet a minimum efficacy standard of 45 18 lumens per watt. 19 ‘‘(vi) STATE PREEMPTION.—Neither 20 section 327(c) nor any other provision of 21 law shall preclude California or Nevada 22 from adopting, effective beginning on or 23 after January 1, 2018— f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00168 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 169 1 ‘‘(I) a final rule adopted by the 2 Secretary in accordance with clauses 3 (i) through (iv); 4 ‘‘(II) if a final rule described in 5 subclause (I) has not been adopted, 6 the backstop requirement under 7 clause (v); or 8 ‘‘(III) in the case of California, if 9 a final rule described in subclause (I) 10 has not been adopted, any California 11 regulations relating to these covered 12 products adopted pursuant to State 13 statute in effect as of the date of en- 14 actment of the Energy Independence 15 and Security Act of 2007. 16 ‘‘(B) RULEMAKING BEFORE JANUARY 1, 17 2020.— 18 ‘‘(i) IN GENERAL.—Not later than 19 January 1, 2020, the Secretary shall ini- 20 tiate a rulemaking procedure to determine 21 whether— 22 ‘‘(I) standards in effect for gen- 23 eral service lamps should be amended; 24 and f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00169 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 170 1 ‘‘(II) the exclusions for certain 2 incandescent lamps should be main- 3 tained or discontinued based, in part, 4 on excluded lamp sales data collected 5 by the Secretary from manufacturers. 6 ‘‘(ii) SCOPE.—The rulemaking shall 7 not be limited to incandescent lamp tech- 8 nologies. 9 ‘‘(iii) AMENDED STANDARDS.—If the 10 Secretary determines that the standards in 11 effect for general service lamps should be 12 amended, the Secretary shall publish a 13 final rule not later than January 1, 2022, 14 with an effective date that is not earlier 15 than 3 years after the date on which the 16 final rule is published. 17 ‘‘(iv) PHASED-IN EFFECTIVE 18 DATES.—The Secretary shall consider 19 phased-in effective dates under this sub- 20 paragraph after considering— 21 ‘‘(I) the impact of any amend- 22 ment on manufacturers, retiring and 23 repurposing existing equipment, 24 stranded investments, labor contracts, 25 workers, and raw materials; and f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00170 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 171 1 ‘‘(II) the time needed to work 2 with retailers and lighting designers 3 to revise sales and marketing strate- 4 gies. 5 ‘‘(7) FEDERAL ACTIONS.— 6 ‘‘(A) COMMENTS OF SECRETARY.— 7 ‘‘(i) IN GENERAL.—With respect to 8 any lamp to which standards are applicable 9 under this subsection or any lamp specified 10 in section 346, the Secretary shall inform 11 any Federal entity proposing actions that 12 would adversely impact the energy con- 13 sumption or energy efficiency of the lamp 14 of the energy conservation consequences of 15 the action. 16 ‘‘(ii) CONSIDERATION.—The Federal 17 entity shall carefully consider the com- 18 ments of the Secretary. 19 ‘‘(B) AMENDMENT OF STANDARDS.—Not- 20 withstanding section 325(n)(1), the Secretary 21 shall not be prohibited from amending any 22 standard, by rule, to permit increased energy 23 use or to decrease the minimum required en- 24 ergy efficiency of any lamp to which standards 25 are applicable under this subsection if the ac- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00171 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 172 1 tion is warranted as a result of other Federal 2 action (including restrictions on materials or 3 processes) that would have the effect of either 4 increasing the energy use or decreasing the en- 5 ergy efficiency of the product. 6 ‘‘(8) COMPLIANCE.— 7 ‘‘(A) IN GENERAL.—Not later than the 8 date on which standards established pursuant 9 to this subsection become effective, or, with re- 10 spect to high-intensity discharge lamps covered 11 under section 346, the effective date of stand- 12 ards established pursuant to that section, each 13 manufacturer of a product to which the stand- 14 ards are applicable shall file with the Secretary 15 a laboratory report certifying compliance with 16 the applicable standard for each lamp type. 17 ‘‘(B) CONTENTS.—The report shall include 18 the lumen output and wattage consumption for 19 each lamp type as an average of measurements 20 taken over the preceding 12-month period. 21 ‘‘(C) OTHER LAMP TYPES.—With respect 22 to lamp types that are not manufactured during 23 the 12-month period preceding the date on 24 which the standards become effective, the re- 25 port shall— f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00172 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 173 1 ‘‘(i) be filed with the Secretary not 2 later than the date that is 12 months after 3 the date on which manufacturing is com- 4 menced; and 5 ‘‘(ii) include the lumen output and 6 wattage consumption for each such lamp 7 type as an average of measurements taken 8 during the 12-month period.’’. 9 (13) Section 325(l)(4)(A) of the Energy Policy and 10 Conservation Act (42 U.S.C. 6295(l)(4)(A)) (as amended 11 by section 321(a)(3)(B) of the Energy Independence and 12 Security Act of 2007 (121 Stat. 1581)) is amended by 13 striking ‘‘only’’. 14 (14) Section 327(b)(1)(B) of the Energy Policy and 15 Conservation Act (42 U.S.C. 6297(b)(1)(B)) (as amended 16 by section 321(d)(3) of the Energy Independence and Se- 17 curity Act of 2007 (121 Stat. 1585)) is amended— 18 (A) in clause (i), by inserting ‘‘and’’ after the 19 semicolon at the end; 20 (B) in clause (ii), by striking ‘‘; and’’ and in- 21 serting a period; and 22 (C) by striking clause (iii). 23 (15) Section 321(e) of the Energy Independence and 24 Security Act of 2007 (121 Stat. 1586) is amended— f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00173 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 174 1 (A) in the matter preceding paragraph (1), by 2 striking ‘‘is amended’’ and inserting ‘‘(as amended 3 by section 306(b)) is amended’’; and 4 (B) by striking paragraphs (1) and (2) and in- 5 serting the following: 6 ‘‘(1) in paragraph (5), by striking ‘or’ after the 7 semicolon at the end; 8 ‘‘(2) in paragraph (6), by striking the period at 9 the end and inserting ‘; or’; and’’. 10 (16) Section 332(a) of the Energy Policy and Con- 11 servation Act (42 U.S.C. 6302(a)) (as amended by section 12 321(e) of the Energy Independence and Security Act of 13 2007 (121 Stat. 1586)) is amended by redesignating the 14 second paragraph (6) as paragraph (7). 15 (17) Section 321(30)(C)(ii) of the Energy Policy and 16 Conservation Act (42 U.S.C. 6291(30)(C)(ii)) (as amend- 17 ed by section 322(a)(1)(B) of the Energy Independence 18 and Security Act of 2007 (121 Stat. 1587)) is amended 19 by inserting a period after ‘‘40 watts or higher’’. 20 (18) Section 322(b) of the Energy Independence and 21 Security Act of 2007 (121 Stat. 1588)) is amended by 22 striking ‘‘6995(i)’’ and inserting ‘‘6295(i)’’. 23 (19) Section 327(c) of the Energy Policy and Con- 24 servation Act (42 U.S.C. 6297(c)) (as amended by sec- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00174 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 175 1 tions 324(f) of the Energy Independence and Security Act 2 of 2007 (121 Stat. 1594)) is amended— 3 (A) in paragraph (6), by striking ‘‘or’’ after the 4 semicolon at the end; 5 (B) in paragraph (8)(B), by striking ‘‘and’’ 6 after the semicolon at the end; 7 (C) in paragraph (9)— 8 (i) by striking ‘‘except that—’’ and all that 9 follows through ‘‘if the Secretary fails to issue’’ 10 and inserting ‘‘except that if the Secretary fails 11 to issue’’; 12 (ii) by redesignating clauses (i) and (ii) as 13 subparagraphs (A) and (B), respectively; and 14 (iii) by striking the period at the end and 15 inserting a semicolon; and 16 (D) by adding at the end the following: 17 ‘‘(10) is a regulation for general service lamps 18 that conforms with Federal standards and effective 19 dates; 20 ‘‘(11) is an energy efficiency standard for gen- 21 eral service lamps enacted into law by the State of 22 Nevada prior to December 19, 2007, if the State has 23 not adopted the Federal standards and effective 24 dates pursuant to subsection (b)(1)(B)(ii); or’’. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00175 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 176 1 (20) Section 325(b) of the Energy Independence and 2 Security Act of 2007 (121 Stat. 1596)) is amended by 3 striking ‘‘6924(c)’’ and inserting ‘‘6294(c)’’. 4 (b) TITLE IV—ENERGY SAVINGS BUILDINGS IN AND 5 INDUSTRY.—(1) Section 401 of the Energy Independence 6 and Security Act of 2007 (42 U.S.C. 17061) is amend- 7 ed— 8 (A) in paragraph (2), by striking ‘‘484’’ and in- 9 serting ‘‘494’’; and 10 (B) in paragraph (13), by striking ‘‘Agency’’ 11 and inserting ‘‘Administration’’. 12 (2) Section 422 of the Energy Conservation and Pro- 13 duction Act (42 U.S.C. 6872) (as amended by section 14 411(a) of the Energy Independence and Security Act of 15 2007 (121 Stat. 1600)) is amended by striking 1 of the 16 2 periods at the end of paragraph (5). 17 (3) Section 543 of the National Energy Conservation 18 Policy Act (42 U.S.C. 8253) (as amended by sections 432 19 and 434(a) of the Energy Independence and Security Act 20 of 2007 (121 Stat. 1607, 1614) is amended by redesig- 21 nating subsection (f) (as added by section 434(a) of that 22 Act) as subsection (g). 23 (4) Section 305(a)(3)(D)(i) of the Energy Conserva- 24 tion and Production Act (42 U.S.C. 6834(a)(3)(D)(i)) (as f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00176 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 177 1 amended by section 433(a) of the Energy Independence 2 and Security Act of 2007 (121 Stat. 1612)) is amended— 3 (A) in subclause (I)— 4 (i) by striking ‘‘in fiscal year 2003 (as 5 measured by Commercial Buildings Energy 6 Consumption Survey or Residential Energy 7 Consumption Survey data from the Energy In- 8 formation Agency’’ and inserting ‘‘as measured 9 by the calendar year 2003 Commercial Build- 10 ings Energy Consumption Survey or the cal- 11 endar year 2005 Residential Energy Consump- 12 tion Survey data from the Energy Information 13 Administration’’; and 14 (ii) in the table at the end, by striking 15 ‘‘Fiscal Year’’ and inserting ‘‘Calendar Year’’; 16 and 17 (B) in subclause (II)— 18 (i) by striking ‘‘(II) Upon petition’’ and in- 19 serting the following: 20 ‘‘(II) DOWNWARD ADJUSTMENT 21 OF NUMERIC REQUIREMENT.— 22 ‘‘(aa) IN GENERAL.—On pe- 23 tition’’; and 24 (ii) by striking the last sentence and in- 25 serting the following: f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00177 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 178 1 TO RE- ‘‘(bb) EXCEPTIONS 2 QUIREMENT FOR CONCURRENCE 3 OF SECRETARY.— 4 ‘‘(AA) IN GENERAL.— 5 The requirement to petition 6 and obtain the concurrence 7 of the Secretary under this 8 subclause shall not apply to 9 any Federal building with 10 respect to which the Admin- 11 istrator of General Services 12 is required to transmit a 13 prospectus to Congress 14 under section 3307 of title 15 40, United States Code, or 16 to any other Federal build- 17 ing designed, constructed, or 18 renovated by the Adminis- 19 trator if the Administrator 20 certifies, in writing, that 21 meeting the applicable nu- 22 meric requirement under 23 subclause (I) with respect to 24 the Federal building would 25 be technically impracticable f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00178 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 179 1 in light of the specific func- 2 tional needs for the building. 3 ‘‘(BB) ADJUSTMENT.— 4 In the case of a building de- 5 scribed in subitem (AA), the 6 Administrator may adjust 7 the applicable numeric re- 8 quirement of subclause (I) 9 downward with respect to 10 the building.’’. 11 (5) Section 436(c)(3) of the Energy Independence 12 and Security Act of 2007 (42 U.S.C. 17092(c)(3)) is 13 amended by striking ‘‘474’’ and inserting ‘‘494’’. 14 (6) Section 440 of the Energy Independence and Se- 15 curity Act of 2007 (42 U.S.C. 17096) is amended by strik- 16 ing ‘‘and 482’’. 17 (7) Section 373(c) of the Energy Policy and Con- 18 servation Act (42 U.S.C. 6343(c)) (as amended by section 19 451(a) of the Energy Independence and Security Act of 20 2007 (121 Stat. 1628)) is amended by striking ‘‘Adminis- 21 trator’’ and inserting ‘‘Secretary’’. 22 (c) TITLE V—ENERGY SAVINGS GOVERNMENT IN 23 PUBLIC INSTITUTIONS.—Section 541(3)(A)(i)(II) of AND 24 the Energy Independence and Security Act of 2007 (42 f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00179 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 180 1 U.S.C. 17151(3)(A)(i)(II)) is amended by striking ‘‘and’’ 2 after the semicolon at the end and inserting ‘‘or’’. 3 (d) EFFECTIVE DATE.—This section and the amend- 4 ments made by this section take effect as if included in 5 the Energy Independence and Security Act of 2007 (Pub- 6 lic Law 110–140; 121 Stat. 1492). 7 SEC. 162. TECHNICAL CORRECTIONS TO ENERGY POLICY 8 ACT OF 2005. 9 (a) TITLE I—ENERGY EFFICIENCY.—Section 10 325(g)(8)(C)(ii) of the Energy Policy and Conservation 11 Act (42 U.S.C. 6295(g)(8)(C)(ii)) (as added by section 12 135(c)(2)(B) of the Energy Policy Act of 2005) is amend- 13 ed by striking ‘‘20°F’’ and inserting ‘‘¥20°F’’. 14 (b) EFFECTIVE DATE.—This section and the amend- 15 ments made by this section take effect as if included in 16 the Energy Policy Act of 2005 (Public Law 109–58; 119 17 Stat. 594). Subtitle H—Clean Energy 18 Innovation Centers 19 20 SEC. 171. CLEAN ENERGY INNOVATION CENTERS. 21 (a) PURPOSE.—The Secretary shall carry out a pro- 22 gram to establish Clean Energy Innovation Centers to en- 23 hance the Nation’s economic, environmental, and energy 24 security by promoting commercial deployment of clean, in- 25 digenous energy alternatives to oil and other fossil fuels, f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00180 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 181 1 reducing greenhouse gas emissions, and ensuring that the 2 United States maintains a technological lead in developing 3 and deploying state-of-the-art energy technologies. To 4 achieve these purposes the program shall— 5 (1) leverage the expertise and resources of the 6 university and private research communities, indus- 7 try, venture capital, national laboratories, and other 8 participants in energy innovation to support cross- 9 disciplinary research and development in areas not 10 being served by the private sector in order to develop 11 and transfer innovative clean energy technologies 12 into the marketplace; 13 (2) expand the knowledge base and human cap- 14 ital necessary to transition to a low-carbon economy; 15 and 16 (3) promote regional economic development by 17 cultivating clusters of clean energy technology firms, 18 private research organizations, suppliers, and other 19 complementary groups and businesses. 20 (b) DEFINITIONS.—For purposes of this section: 21 (1) ALLOWANCE.—The term ‘‘allowance’’ 22 means an emission allowance under section 721 of 23 the Clean Air Act. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00181 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 182 1 (2) CENTER.—The term ‘‘Center’’ means a 2 Clean Energy Innovation Center established in ac- 3 cordance with this section. 4 (3) CLEAN ENERGY TECHNOLOGY.—The term 5 ‘‘clean energy technology’’ means a technology 6 that— 7 (A) produces energy from solar, wind, geo- 8 thermal, biomass, tidal, wave, ocean, and other 9 renewable energy resources (as such term is de- 10 fined in section 610 of the Public Utility Regu- 11 latory Policies Act of 1978); 12 (B) more efficiently transmits, distributes, 13 or stores energy; 14 (C) enhances energy efficiency for build- 15 ings and industry, including combined heat and 16 power; 17 (D) enables the development of a Smart 18 Grid (as described in section 1301 of the En- 19 ergy Independence and Security Act of 2007 20 (42 U.S.C. 17381)), including integration of re- 21 newable energy resources and distributed gen- 22 eration, demand response, demand side man- 23 agement, and systems analysis; f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00182 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 183 1 (E) produces an advanced or sustainable 2 material with energy or energy efficiency appli- 3 cations; 4 (F) enhances water security through im- 5 proved water management, conservation, dis- 6 tribution, and end use applications; or 7 (G) improves energy efficiency for trans- 8 portation, including electric vehicles. 9 (4) CLUSTER.—The term ‘‘cluster’’ means a 10 concentration of firms directly involved in the re- 11 search, development, finance, and commercialization 12 of clean energy technologies whose geographic prox- 13 imity facilitates utilization and sharing of skilled 14 human resources, infrastructure, research facilities, 15 educational and training institutions, venture cap- 16 ital, and input suppliers. 17 (5) PROJECT.—The term ‘‘project’’ means an 18 activity with respect to which a Center provides sup- 19 port under subsection (e). 20 (6) QUALIFYING ENTITY.—The term ‘‘quali- 21 fying entity’’ means each of the following: 22 (A) A research university. 23 (B) A State institution with a focus on the 24 advancement of clean energy technologies. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00183 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 184 1 (C) A nongovernmental organization with 2 research or commercialization expertise in clean 3 energy technology development. 4 (7) SECRETARY.—The term ‘‘Secretary’’ means 5 the Secretary of Energy. 6 (8) TECHNOLOGY FOCUS.—The term ‘‘tech- 7 nology focus’’ means the unique technology area in 8 which a Center will specialize, and may include solar 9 electricity, fuels from solar energy, batteries and en- 10 ergy storage, electricity grid systems and devices, en- 11 ergy efficient building systems and design, advanced 12 materials, modeling and simulation, and other clean 13 energy technology areas designated by the Secretary. 14 (9) TRANSLATIONAL RESEARCH.—The term 15 ‘‘translational research’’ means clean energy tech- 16 nology research to coordinate basic or applied re- 17 search with technical and commercial applications to 18 enable promising discoveries or inventions to attract 19 investment sufficient for market penetration and dif- 20 fusion. 21 (c) ROLE SECRETARY.—The Secretary OF THE 22 shall— 23 (1) have ultimate responsibility for, and over- 24 sight of, all aspects of the program under this sec- 25 tion; f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00184 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 185 1 (2) provide for the distribution of allowances to 2 consortia for the establishment of 8 Centers pursu- 3 ant to this section, with each Center designated a 4 unique technology focus area; 5 (3) coordinate the innovation activities of Cen- 6 ters with those occurring through other Department 7 of Energy entities, including the National Labora- 8 tories, the Advanced Research Projects Agency—En- 9 ergy, and Energy Frontier Research Centers, and 10 within industry, and to avoid duplication of research, 11 by annually— 12 (A) issuing guidance regarding national 13 energy research and development priorities and 14 strategic objectives; and 15 (B) convening a conference of staff of the 16 Department of Energy and representatives from 17 such other entities to share research results, 18 program plans, and opportunities for collabora- 19 tion. 20 (d) CONSORTIUM.—A consortium shall be eligible to 21 receive allowances to support the establishment of a Cen- 22 ter under this section if— 23 (1) it is composed of— f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00185 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 186 1 (A) 2 research universities with a com- 2 bined annual research budget of $500,000,000; 3 and 4 (B) no fewer than 1 additional qualifying 5 entity; 6 (2) its members have established a binding 7 agreement that documents— 8 (A) the structure of the partnership agree- 9 ment; 10 (B) the governance and management 11 structure to enable cost-effective implementa- 12 tion of the program; 13 (C) an intellectual property management 14 policy; 15 (D) conflicts of interest policy consistent 16 with subsection (e)(4); 17 (E) an accounting structure that meets the 18 requirements of the Department and can be au- 19 dited under subsection (f)(3); and 20 (F) has an Advisory Board consistent with 21 subsection (e)(3); 22 (3) it receives financial contributions from 23 States, consortium participants, or other non-Fed- 24 eral sources, to be used pursuant to subsection 25 (e)(2); f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00186 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 187 1 (4) it is part of an existing cluster or dem- 2 onstrates high potential to develop a new cluster; 3 and 4 (5) it operates as a nonprofit organization. 5 (e) CLEAN ENERGY INNOVATION CENTERS.— 6 (1) ROLE.—Centers shall provide support to ac- 7 tivities leading to commercial deployment of clean 8 energy technologies pursuant to the purposes of this 9 section through issuance of awards to projects man- 10 aged by qualifying entities and other entities meet- 11 ing the Center’s project criteria, including national 12 laboratories. Each Center shall— 13 (A) develop and publish for public review 14 and comment proposed plans, programs, and 15 project selection criteria; 16 (B) submit an annual report to the Sec- 17 retary summarizing the Center’s activities, or- 18 ganizational expenditures, and Board members, 19 which shall include a certification of compliance 20 with conflict of interest policies and a descrip- 21 tion of each project in the research portfolio; 22 (C) establish policies— 23 (i) regarding intellectual property de- 24 veloped as a result of Center awards and 25 other forms of technology support that en- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00187 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 188 1 courage individual ingenuity and invention 2 while speeding knowledge transfer and fa- 3 cilitating the establishment of rapid com- 4 mercialization pathways; 5 (ii) to prevent resources provided to 6 the Center from being used to displace pri- 7 vate sector investment likely to otherwise 8 occur, including investment from private 9 sector entities which are members of the 10 consortium; 11 (iii) to facilitate the participation of 12 private investment firms or other private 13 entities that invest in clean energy tech- 14 nologies to perform due diligence on award 15 proposals, to participate in the award re- 16 view process, and to provide guidance to 17 projects supported by the Center; and 18 (iv) to facilitate the participation of 19 entrepreneurs with a demonstrated history 20 of commercializing clean energy tech- 21 nologies; 22 (D) oversee project solicitations, review 23 proposed projects, and select projects for 24 awards; and 25 (E) monitor project implementation. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00188 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 189 1 (2) USE AND DISTRIBUTION OF AWARDS BY 2 CENTERS.—A Center shall allocate awards and other 3 support for— 4 (A) clean energy technology projects con- 5 ducting translational research and related ac- 6 tivities, at least 40 percent of which shall be 7 utilized for projects related to the Center’s tech- 8 nology focus; and 9 (B) administrative expenses, which may 10 constitute no more than 10 percent of the 11 award. 12 (3) ADVISORY BOARDS.— 13 (A) IN GENERAL.—Each Center shall es- 14 tablish an Advisory Board whose members shall 15 have extensive and relevant scientific, technical, 16 industry, financial, or research management ex- 17 pertise. The Advisory Board shall review the 18 Center’s proposed plans, programs, project se- 19 lection criteria, and projects and shall ensure 20 that projects selected for awards meet the con- 21 flict of interest policies of the Center. Advisory 22 Board members other than those representing 23 consortium members shall serve for no more 24 than three years and must comply with conflict 25 of interest provisions. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00189 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 190 1 (B) MEMBERS.—Each Advisory Board 2 shall consist of— 3 (i) 5 members selected by the consor- 4 tium’s research universities; 5 (ii) 2 members selected by the consor- 6 tium’s other qualifying entities; and 7 (iii) 2 members selected at large by 8 other Board members to represent the en- 9 trepreneur and venture capital commu- 10 nities. 11 Individuals appointed under clause (iii) shall 12 not be State or Federal employees or affiliated 13 with the consortium’s qualified entities. 14 (C) NONVOTING MEMBERS.—The Board 15 shall also include 1 nonvoting member ap- 16 pointed by the Secretary. 17 (D) COMPENSATION.—Members of an Ad- 18 visory Board may receive reimbursement for 19 travel expenses and a reasonable stipend. 20 (4) CONFLICT OF INTEREST.— 21 (A) PROCEDURES.—Centers shall establish 22 procedures to ensure that employees or con- 23 sortia designees for Center activities who are in 24 decisionmaking capacities shall— f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00190 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 191 1 (i) disclose any financial interests in, 2 or financial relationships with, applicants 3 for or recipients of awards under para- 4 graph (1), including those of his or her 5 spouse or minor child, unless such relation- 6 ships or interests would be considered to 7 be remote or inconsequential; and 8 (ii) recuse himself or herself from any 9 funding decision for projects in which he 10 or she has a personal financial interest. 11 (B) DISQUALIFICATION REVOCA- AND 12 TION.—The Secretary may disqualify an appli- 13 cation or revoke allowances distributed to the 14 Center or awards provided under paragraph 15 (1), if cognizant officials of the Center fail to 16 comply with procedures required under sub- 17 paragraph (A). 18 (f) DISTRIBUTION ALLOWANCES CLEAN EN- OF TO 19 ERGY INNOVATION CENTERS.— 20 (1) SELECTION AND SCHEDULE.—Allowances to 21 support the establishment of a Center shall be dis- 22 tributed through a competitive process. Not later 23 than 120 days after the date of enactment of this 24 Act, the Secretary shall solicit proposals from eligi- 25 ble consortia to establish Centers, which shall be f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00191 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 192 1 submitted not later than 180 days after the date of 2 enactment of this Act. The Secretary shall select the 3 program consortia not later than 270 days after the 4 date of enactment of this Act pursuant to subsection 5 (d). The Secretary shall award 3 grants for the es- 6 tablishment of 3 Centers of Excellence to be located 7 on the campus of 1890 Land Grant Institution (as 8 defined in section 2 of the Agricultural Research, 9 Extension, and Education Reform Act of 1998 (7 10 U.S.C. 7061)). 11 (2) TERM AND USE OF ALLOWANCES.—Allow- 12 ances distributed to Centers shall be used to provide 13 awards pursuant to subsection (e)(1). The amount 14 of allowances distributed to support the establish- 15 ment of a Center under this section shall not be less 16 than 10 and not more than 30 percent of the allow- 17 ances allocated under section 782(h) of the Clean 18 Air Act, each year for a 6 year period. Centers shall 19 be eligible to compete for additional allowance dis- 20 tribution after the expiration of the initial period. 21 Centers shall establish award periods for individual 22 awards. The transfer of allowances to a Center shall 23 occur at the start of each calendar year. 24 (3) AUDIT.—Each Center shall conduct an an- 25 nual audit to determine the extent to which allow- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00192 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 193 1 ances distributed to the Center, and awards under 2 subsection (e) have been utilized in a manner con- 3 sistent with this section. The auditor shall transmit 4 a report of the results of the audit to the Secretary 5 and to the Government Accountability Office. The 6 Secretary shall include such report in the annual re- 7 port to Congress, along with a plan to remedy any 8 deficiencies cited in the report. The Government Ac- 9 countability Office may review such audits as appro- 10 priate and shall have full access to the books, 11 records, and personnel of the Center to ensure that 12 allowances distributed to the Center, and awards 13 made under subsection (e), have been utilized in a 14 manner consistent with this section. Subtitle I—Marine Spatial 15 Planning 16 17 SEC. 181. STUDY OF OCEAN RENEWABLE ENERGY AND 18 TRANSMISSION PLANNING AND SITING. 19 (a) DEFINITIONS.—In this section: 20 (1) MARINE SPATIAL PLAN.—The term ‘‘marine 21 spatial plan’’ means the analysis and allocation of 22 ocean space for various uses to achieve ecological, 23 economic, and social objectives, based on the prin- 24 ciple of ecosystem-based management. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00193 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 194 1 SPATIAL PLANNING.—The term (2) MARINE 2 ‘‘marine spatial planning’’ means the process of de- 3 veloping a marine spatial plan. 4 (3) ECOSYSTEM-BASED MANAGEMENT.—The 5 term ‘‘ecosystem-based management’’ means a man- 6 agement approach that ensures the future ecological 7 and economic sustainability of natural resources 8 by— 9 (A) accounting for all ecosystem inter- 10 actions and direct, indirect, and cumulative im- 11 pacts of human activities on the ecosystem; 12 (B) emphasizing protection of ecosystem 13 structure, functions, patterns, and processes; 14 and 15 (C) maintaining ecosystems in a healthy 16 and resilient condition. 17 (4) OFFSHORE ENERGY.—The RENEWABLE 18 term ‘‘offshore renewable energy’’ means energy 19 generated from offshore wind or offshore 20 hydrokinetic (wave, tidal, ocean current, and tidal- 21 current) energy technologies. 22 (5) OFFSHORE FACIL- RENEWABLE ENERGY 23 ITY.—The term ‘‘offhsore renewable energy facility’’ 24 means a facility that generates offshore renewable f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00194 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 195 1 energy or any offshore transmission line associated 2 with such facility. 3 (b) STUDY.— 4 (1) IN GENERAL.—As soon as practicable after 5 the date of enactment of this section, the Federal 6 Energy Regulatory Commission, the Secretary of the 7 Interior, and the National Oceanic and Atmospheric 8 Administration, in consultation with the Council on 9 Environmental Quality and, as appropriate, coastal 10 States, regional organizations of coastal States, and 11 relevant nongovernmental organizations, shall jointly 12 conduct a study of the potential for marine spatial 13 planning to facilitate the development of offshore re- 14 newable energy facilities in a manner that protects 15 and maintains coastal and marine ecosystem health. 16 (2) REQUIREMENTS.—The study under para- 17 graph (1) shall include— 18 (A) identification of the steps involved in 19 regional marine spatial planning for the siting 20 of offshore renewable energy facilities; 21 (B) a recommended approach for the de- 22 velopment of regional marine spatial plans for 23 the siting of offshore renewable energy facilities 24 that provides for— f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00195 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 196 1 (i) the participation of relevant Fed- 2 eral agencies and State governments; 3 (ii) coordination, to the maximum ex- 4 tent practicable, with any marine spatial 5 planning undertaken by States; 6 (iii) public input; and 7 (iv) the periodic revision of such plans 8 as necessary to account for significant new 9 information and ensure achievement of 10 plan objectives; 11 (C) identification of required elements of 12 such regional marine spatial plans, including 13 rules that Federal agencies shall apply to appli- 14 cations for any authorizations required under 15 existing Federal law to construct or operate off- 16 shore renewable energy facilities within areas 17 covered by such plans; 18 (D) an assessment of the adequacy of ex- 19 isting data, including baseline environmental 20 data, to support such marine spatial planning 21 and identification of gaps in such data and the 22 studies needed to fill such gaps; 23 (E) an assessment of the resources re- 24 quired to carry out such marine spatial plan- 25 ning; f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00196 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 197 1 (F) recommended mechanisms for the for- 2 mal adoption and implementation of regional 3 marine spatial plans for the development of off- 4 shore renewable energy facilities by relevant 5 Federal agencies; 6 (G) identification of any additional author- 7 ity relevant Federal agencies would need to 8 adopt and implement regional marine spatial 9 plans for the development of offshore renewable 10 energy facilities; and 11 (H) such other recommendations as appro- 12 priate. 13 (3) REPORT.—Not later than 6 months after 14 the date of enactment of this section, the Federal 15 Energy Regulatory Commission, the Secretary of the 16 Interior, and the National Oceanic and Atmospheric 17 Administration shall jointly publish the findings and 18 recommendations of the study conducted pursuant 19 to this subsection and shall accept public comment 20 for at least 30 days after such publication. Following 21 consideration of any public comments, and not later 22 than 8 months after the date of enactment of this 23 section, the Federal Energy Regulatory Commission, 24 the Secretary of the Interior, and the National Oce- 25 anic and Atmospheric Administration shall jointly f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00197 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 198 1 submit to Congress and the Council on Environ- 2 mental Quality the findings and recommendations of 3 the study conducted pursuant to this subsection. 4 (c) ASSESSMENT OF REPORT.— 5 (1) IN GENERAL.—Not later than 4 months 6 after the date of submission of the report required 7 under subsection (b)(3), the Council on Environ- 8 mental Quality shall assess the recommendations of 9 such report, issue a written determination as to 10 whether the recommended approach to marine spa- 11 tial planning should be implemented, and transmit 12 such written determination to the relevant Federal 13 agencies and Congress. 14 (2) COORDINATION AP- FOR RECOMMENDED 15 PROACH.—If the Council on Environmental Quality 16 determines that the recommended approach to ma- 17 rine spatial planning should be implemented, the rel- 18 evant Federal agencies shall implement such ap- 19 proach no later than 18 months after the written de- 20 termination required by paragraph (1), and the 21 Council on Environmental Quality shall coordinate 22 such implementation. At the time of the written de- 23 termination required by paragraph (1), the Council 24 on Environmental Quality shall notify Congress if f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00198 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 199 1 the relevant Federal agencies lack authority to carry 2 out any aspect of the recommended approach. 3 (3) ALTERNATIVE APPROACH.—If the Council 4 on Environmental Quality determines that the rec- 5 ommended approach to marine spatial planning 6 should not be implemented, the Council on Environ- 7 mental Quality shall formulate an alternative ap- 8 proach and submit such alternative approach to the 9 relevant Federal agencies and Congress at the time 10 of the written determination required by paragraph 11 (1). 12 (d) RELATIONSHIP EXISTING LAW.—Nothing in TO 13 this section shall affect or be construed to affect any law, 14 regulation, or memoranda of understanding governing the 15 development of offshore renewable energy facilities in ef- 16 fect prior to the implementation of the recommended or 17 alternative approach pursuant to subsection (c). 18 (e) AUTHORIZATION.—There are authorized to be ap- 19 propriated such sums as may be necessary to carry out 20 this section. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00199 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 200 TITLE II—ENERGY EFFICIENCY 1 Subtitle A—Building Energy 2 Efficiency Programs 3 4 SEC. 201. GREATER ENERGY EFFICIENCY IN BUILDING 5 CODES. 6 Section 304 of the Energy Conservation and Produc- 7 tion Act (42 U.S.C. 6833) is amended to read as follows: 8 ‘‘SEC. 304. GREATER ENERGY EFFICIENCY IN BUILDING 9 CODES. 10 ‘‘(a) ENERGY EFFICIENCY TARGETS.— 11 ‘‘(1) IN GENERAL.—Except as provided in para- 12 graph (2) or (3), the national building code energy 13 efficiency target for the national average percentage 14 improvement of a building’s energy performance 15 when built to a code meeting the target shall be— 16 ‘‘(A) effective on the date of enactment of 17 the American Clean Energy and Security Act of 18 2009, 30 percent reduction in energy use rel- 19 ative to a comparable building constructed in 20 compliance with the baseline code; 21 ‘‘(B) effective January 1, 2014, for resi- 22 dential buildings, and January 1, 2015, for 23 commercial buildings, 50 percent reduction in 24 energy use relative to the baseline code; and f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00200 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 201 1 ‘‘(C) effective January 1, 2017, for resi- 2 dential buildings, and January 1, 2018, for 3 commercial buildings, and every 3 years there- 4 after, respectively, through January 1, 2029, 5 and January 1, 2030, 5 percent additional re- 6 duction in energy use relative to the baseline 7 code. 8 ‘‘(2) CONSENSUS-BASED CODES.—If on any ef- 9 fective date specified in paragraph (1)(A), (B), or 10 (C) a successor code to the baseline codes provides 11 for greater reduction in energy use than is required 12 under paragraph (1), the overall percentage reduc- 13 tion in energy use provided by that successor code 14 shall be the national building code energy efficiency 15 target. 16 ‘‘(3) TARGETS ESTABLISHED BY SECRETARY.— 17 The Secretary may by rule establish a national 18 building code energy efficiency target for residential 19 or commercial buildings achieving greater reductions 20 in energy use than the targets prescribed in para- 21 graph (1) or (2) if the Secretary determines that 22 such greater reductions in energy use can be 23 achieved with a code that is life cycle cost-justified 24 and technically feasible. The Secretary may by rule 25 establish a national building code energy efficiency f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00201 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 202 1 target for residential or commercial buildings achiev- 2 ing a reduction in energy use that is greater than 3 zero but less than the targets prescribed in para- 4 graph (1) or (2) if the Secretary determines that 5 such lesser target is the maximum reduction in en- 6 ergy use that can be achieved through a code that 7 is life cycle cost-justified and technically feasible. 8 ‘‘(4) ADDITIONAL REDUCTIONS IN ENERGY 9 USE.—Effective on January 1, 2033, and once every 10 3 years thereafter, the Secretary shall determine, 11 after notice and opportunity for comment, whether 12 further energy efficiency building code improvements 13 for residential or commercial buildings, respectively, 14 are life cycle cost-justified and technically feasible, 15 and shall establish updated national building code 16 energy efficiency targets that meet such criteria. 17 ‘‘(5) ZERO-NET-ENERGY BUILDINGS.—In set- 18 ting targets under this subsection, the Secretary 19 shall consider ways to support the deployment of 20 distributed renewable energy technology, and shall 21 seek to achieve the goal of zero-net-energy commer- 22 cial buildings established in section 422 of the En- 23 ergy Independence and Security Act of 2007 (42 24 U.S.C. 17082). f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00202 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 203 1 CODE.—For purposes of this ‘‘(6) BASELINE 2 section, the term ‘baseline code’ means— 3 ‘‘(A) for residential buildings, the 2006 4 International Energy Conservation Code 5 (IECC) published by the International Code 6 Council; and 7 ‘‘(B) for commercial buildings, the code 8 published in ASHRAE Standard 90.1-2004. 9 ‘‘(7) CONSULTATION.—In establishing the tar- 10 gets required by this section, the Secretary shall 11 consult with the Director of the National Institute of 12 Standards and Technology. 13 ‘‘(b) NATIONAL ENERGY EFFICIENCY BUILDING 14 CODES.— 15 ‘‘(1) REQUIREMENT.— 16 ‘‘(A) IN GENERAL.—There shall be estab- 17 lished national energy efficiency building codes 18 under this subsection, for residential and com- 19 mercial buildings, sufficient to meet each of the 20 national building code energy efficiency targets 21 established under subsection (a), not later than 22 the date that is one year after the deadline for 23 establishment of each such target. 24 ‘‘(B) EXISTING CODE.—If the Secretary 25 finds prior to the date one year after the dead- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00203 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 204 1 line for establishing a target that one or more 2 energy efficiency building codes published by a 3 recognized consensus-based code development 4 organization meet or exceed the established tar- 5 get, the Secretary shall select the code that 6 meets the target with the highest efficiency in 7 the most cost-effective manner, and such code 8 shall be the national energy efficiency building 9 code. 10 ‘‘(C) REQUIREMENT TO ESTABLISH 11 CODE.— If the Secretary does not make a find- 12 ing under subparagraph (B), the national en- 13 ergy efficiency building code shall be established 14 by rule by the Secretary under paragraph (2). 15 ‘‘(2) ESTABLISHMENT BY SECRETARY.— 16 ‘‘(A) PROCEDURE.—In order to establish a 17 national energy efficiency building code as re- 18 quired under paragraph (1)(C), the Secretary 19 shall— 20 ‘‘(i) not later than six months prior to 21 the effective date for each target, review 22 existing and proposed codes published or 23 under review by recognized consensus- 24 based code development organizations; f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00204 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 205 1 ‘‘(ii) determine the percentage of en- 2 ergy efficiency improvements that are or 3 would be achieved in such published or 4 proposed code versions relative to the tar- 5 get; 6 ‘‘(iii) propose improvements to such 7 published or proposed code versions suffi- 8 cient to meet or exceed the target; and 9 ‘‘(iv) unless a finding is made under 10 paragraph (1)(B) with respect to a code 11 published by a recognized consensus-based 12 code development organization, adopt a 13 code that meets or exceeds the relevant na- 14 tional building code energy efficiency tar- 15 get by not later than one year after the ef- 16 fective date of such target. 17 ‘‘(B) CALCULATIONS.—Each code estab- 18 lished by the Secretary under this paragraph 19 shall be set at the maximum level the Secretary 20 determines is life cycle cost-justified and tech- 21 nically feasible, in accordance with the fol- 22 lowing: 23 ‘‘(i) SAVINGS CALCULATIONS.—Cal- 24 culations of energy savings shall take into 25 account the typical lifetimes of different f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00205 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 206 1 products, measures, and system configura- 2 tions. 3 ‘‘(ii) COST-EFFECTIVENESS CALCULA- 4 TIONS.—Calculations of life cycle cost-ef- 5 fectiveness shall be based on life cycle cost 6 methods and procedures under section 544 7 of the National Energy Conservation Pol- 8 icy Act (42 U.S.C. 8254), but shall incor- 9 porate to the extent feasible externalities 10 such as impacts on climate change and on 11 peak energy demand that are not already 12 incorporated in assumed energy costs. 13 ‘‘(C) CONSIDERATIONS.—In developing a 14 national energy efficiency building code under 15 this paragraph, the Secretary shall consider— 16 ‘‘(i) for residential codes— 17 ‘‘(I) residential building stand- 18 ards published or proposed by 19 ASHRAE; 20 ‘‘(II) residential building codes 21 published or proposed in the Inter- 22 national Energy Conservation Code 23 (IECC); 24 ‘‘(III) data from the Residential 25 Energy Services Network (RESNET) f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00206 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 207 1 on compliance measures utilized by 2 consumers to qualify for the residen- 3 tial energy efficiency tax credits estab- 4 lished under the Energy Policy Act of 5 2005; 6 ‘‘(IV) data and information from 7 the Department of Energy’s Building 8 America Program; 9 ‘‘(V) data and information from 10 the Energy Star New Homes pro- 11 gram; 12 ‘‘(VI) data and information from 13 the New Building Institute and simi- 14 lar organizations; and 15 ‘‘(VII) standards for practices 16 and materials to achieve cool roofs in 17 residential buildings, taking into con- 18 sideration reduced air conditioning en- 19 ergy use as a function of cool roofs, 20 the potential reduction in global 21 warming from increased solar reflec- 22 tance from buildings, and cool roofs 23 criteria in State and local building 24 codes and in national and local vol- 25 untary programs; and f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00207 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 208 1 ‘‘(ii) for commercial codes— 2 ‘‘(I) commercial building stand- 3 ards proposed by ASHRAE; 4 ‘‘(II) commercial building codes 5 proposed in the International Energy 6 Conservation Code (IECC); 7 ‘‘(III) the Core Performance Cri- 8 teria published by the New Buildings 9 Institute; 10 ‘‘(IV) data and information de- 11 veloped by the Director of the Com- 12 mercial High-Performance Green 13 Building Office of the Department of 14 Energy and any public-private part- 15 nerships established under that Office; 16 ‘‘(V) data and information from 17 the Energy Star for Buildings pro- 18 gram; 19 ‘‘(VI) data and information from 20 the New Building Institute, 21 RESNET, and similar organizations; 22 and 23 ‘‘(VII) standards for practices 24 and materials to achieve cool roofs in 25 commercial buildings, taking into con- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00208 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 209 1 sideration reduced air conditioning en- 2 ergy use as a function of cool roofs, 3 the potential reduction in global 4 warming from increased solar reflec- 5 tance from buildings, and cool roofs 6 criteria in State and local building 7 codes and in national and local vol- 8 untary programs. 9 ‘‘(D) CONSULTATION.—In establishing any 10 national energy efficiency building code re- 11 quired by this section, the Secretary shall con- 12 sult with the Director of the National Institute 13 of Standards and Technology. 14 ‘‘(3) CONSENSUS STANDARD ASSISTANCE.—(A) 15 To support the development of consensus standards 16 that may provide the basis for national energy effi- 17 ciency building codes, minimize duplication of effort, 18 encourage progress through consensus, and facilitate 19 the development of greater building efficiency, the 20 Secretary shall provide assistance to recognized con- 21 sensus-based code development organizations to de- 22 velop, and where the relevant code has been adopted 23 as the national code, disseminate consensus based 24 energy efficiency building codes as provided in this 25 paragraph. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00209 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 210 1 ‘‘(B) Upon a finding by the Secretary that a 2 code developed by such an organization meets a tar- 3 get established under subsection (a), the Secretary 4 shall— 5 ‘‘(i) send notice of the Secretary’s finding 6 to all duly authorized or appointed State and 7 local code agencies; and 8 ‘‘(ii) provide sufficient support to such an 9 organization to make the code available on the 10 Internet, or to accomplish distribution of such 11 code to all such State and local code agencies 12 at no cost to the State and local code agencies. 13 ‘‘(C) The Secretary may contract with such an 14 organization and with other organizations with ex- 15 pertise on codes to provide training for State and 16 local code officials and building inspectors in the im- 17 plementation and enforcement of such code. 18 ‘‘(D) The Secretary may provide grants and 19 other support to such an organization to— 20 ‘‘(i) develop appropriate refinements to 21 such code; and 22 ‘‘(ii) support analysis of options for im- 23 provements in the code to meet the next sched- 24 uled target. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00210 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 211 1 DEVELOPED BY SECRETARY.—If the ‘‘(4) CODE 2 Secretary establishes a national energy efficiency 3 building code under paragraph (2), the Secretary 4 shall— 5 ‘‘(A) to the extent that such code is based 6 on a prior code developed by a recognized con- 7 sensus-based code development organization, 8 negotiate and provide appropriate compensation 9 to such organization for the use of the code ma- 10 terials that remain in the code established by 11 the Secretary; and 12 ‘‘(B) disseminate the national energy effi- 13 ciency building codes to State and local code of- 14 ficials, and support training and provide guid- 15 ance and technical assistance to such officials 16 as appropriate. 17 ‘‘(c) STATE ADOPTION ENERGY EFFICIENCY OF 18 BUILDING CODES.— 19 ‘‘(1) REQUIREMENT.—Not later than 1 year 20 after a national energy efficiency building code for 21 residential or commercial buildings is established or 22 revised under subsection (b), each State— 23 ‘‘(A) shall— 24 ‘‘(i) review and update the provisions 25 of its building code regarding energy effi- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00211 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 212 1 ciency to meet or exceed the target met in 2 the new national code, to achieve equiva- 3 lent or greater energy savings; 4 ‘‘(ii) document, where local govern- 5 ments establish building codes, that local 6 governments representing not less than 80 7 percent of the State’s urban population 8 have adopted the new national code, or 9 have adopted local codes that meet or ex- 10 ceed the target met in the new national 11 code to achieve equivalent or greater en- 12 ergy savings; or 13 ‘‘(iii) adopt the new national code; 14 and 15 ‘‘(B) shall provide a certification to the 16 Secretary demonstrating that energy efficiency 17 building code provisions that apply throughout 18 the State meet or exceed the target met by the 19 new national code, to achieve equivalent or 20 greater energy savings. 21 ‘‘(2) CONFIRMATION.— 22 ‘‘(A) REQUIREMENT.—Not later than 90 23 days after a State certification is provided 24 under paragraph (1)(B), the Secretary shall de- 25 termine whether the State’s energy efficiency f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00212 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 213 1 building code provisions meet the requirements 2 of this subsection. 3 ‘‘(B) ACCEPTANCE BY SECRETARY.—If the 4 Secretary determines under subparagraph (A) 5 that the State’s energy efficiency building code 6 or codes meet the requirements of this sub- 7 section, the Secretary shall accept the certifi- 8 cation. 9 ‘‘(C) DEFICIENCY NOTICE.—If the Sec- 10 retary determines under subparagraph (A) that 11 the State’s building code or codes do not meet 12 the requirements of this subsection, the Sec- 13 retary shall identify the deficiency in meeting 14 the national building code energy efficiency tar- 15 get, and, to the extent possible, indicate areas 16 where further improvement in the State’s code 17 provisions would allow the deficiency to be 18 eliminated. 19 ‘‘(D) REVISION OF CODE AND RECERTIFI- 20 CATION.—A State may revise its code or codes 21 and submit a recertification under paragraph 22 (1)(B) to the Secretary at any time. 23 ‘‘(3) COMPLIANT CODE.—For the purposes of 24 meeting the target described in subsection (a)(1)(A) 25 for residential buildings, a State that adopts the f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00213 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 214 1 code represented in California’s Title 24-2009 by the 2 date two years after the date of enactment of the 3 American Clean Energy and Security Act of 2009 4 shall be considered to have met the requirements of 5 this subsection for the applicable period. 6 ‘‘(d) APPLICATION NATIONAL CODE STATE OF TO 7 LOCAL JURISDICTIONS.— AND 8 ‘‘(1) IN GENERAL.—Upon the expiration of 1 9 year after a national energy efficiency building code 10 is established under subsection (b), in any jurisdic- 11 tion where the State has not had a certification re- 12 lating to that code accepted by the Secretary under 13 subsection (c)(2)(B), and the local government has 14 not had a certification relating to that code accepted 15 by the Secretary under subsection (e)(6)(B), the na- 16 tional code shall become the applicable energy effi- 17 ciency building code for such jurisdiction. 18 ‘‘(2) STATE ADOPTION.—In a LEGISLATIVE 19 State in which the relevant building energy code is 20 adopted legislatively, the deadline in paragraph (1) 21 shall not be earlier than 1 year after the first day 22 that the legislature meets following establishment of 23 a national energy efficiency building code. 24 ‘‘(3) VIOLATIONS.—It shall be a violation of 25 this section for an owner or builder of a building to f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00214 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 215 1 knowingly occupy, permit occupancy of, or convey 2 the building if the building is subject to the require- 3 ments of— 4 ‘‘(A) a State energy efficiency building 5 code with respect to which a certification has 6 been accepted by the Secretary under sub- 7 section (c)(2)(B); 8 ‘‘(B) a local energy efficiency building code 9 with respect to which a certification has been 10 accepted by the Secretary under subsection 11 (e)(6)(B); or 12 ‘‘(C) a national energy efficiency building 13 code adopted under subsection (c)(1)(A)(i) or 14 made applicable under paragraph (1) of this 15 subsection, 16 if the building was constructed out of compliance 17 with such code. 18 ‘‘(e) STATE ENFORCEMENT ENERGY EFFICIENCY OF 19 BUILDING CODES.— 20 ‘‘(1) IN GENERAL.—Each State, or where appli- 21 cable under State law each local government, shall 22 implement and enforce applicable State or local 23 codes with respect to which a certification was ac- 24 cepted by the Secretary under subsection (c)(2)(B) 25 or paragraph (6)(B) of this subsection, or the na- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00215 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 216 1 tional energy efficiency building codes, as provided 2 in this subsection. 3 ‘‘(2) STATE CERTIFICATION.—Not later than 2 4 years after the date of a certification under sub- 5 section (c)(1) or the establishment of a national en- 6 ergy efficiency building code under subsection (b), 7 each State shall certify that it has— 8 ‘‘(A) achieved compliance with— 9 ‘‘(i) State codes, or, as provided under 10 State law, local codes, with respect to 11 which a certification was accepted by the 12 Secretary under subsection (c)(2)(B); or 13 ‘‘(ii) the national energy efficiency 14 building code, as applicable; or 15 ‘‘(B) for any certification submitted within 16 7 years after the date of enactment of the 17 American Clean Energy and Security Act of 18 2009, made significant progress toward achiev- 19 ing such compliance. 20 ‘‘(3) ACHIEVING COMPLIANCE.—A State shall 21 be considered to achieve compliance with a code de- 22 scribed in paragraph (2)(A) if at least 90 percent of 23 new and substantially renovated building space in 24 that State in the preceding year upon inspection 25 meets the requirements of the code. A certification f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00216 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 217 1 under paragraph (2) shall include documentation of 2 the rate of compliance based on— 3 ‘‘(A) independent inspections of a random 4 sample of the new and substantially renovated 5 buildings covered by the code in the preceding 6 year; or 7 ‘‘(B) an alternative method that yields an 8 accurate measure of compliance as determined 9 by the Secretary. 10 ‘‘(4) SIGNIFICANT PROGRESS.—A State shall be 11 considered to have made significant progress toward 12 achieving compliance with a code described in para- 13 graph (2)(A) if— 14 ‘‘(A) the State has developed a plan, in- 15 cluding for hiring enforcement staff, providing 16 training, providing manuals and checklists, and 17 instituting enforcement programs, designed to 18 achieve full compliance within 5 years after the 19 date of the adoption of the code; 20 ‘‘(B) the State is taking significant, timely, 21 and measurable action to implement that plan; 22 ‘‘(C) the State has not reduced its expendi- 23 tures for code enforcement; and 24 ‘‘(D) at least 50 percent of new and sub- 25 stantially renovated building space in the State f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00217 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 218 1 in the preceding year upon inspection meets the 2 requirements of the code. 3 ‘‘(5) SECRETARY’S DETERMINATION.—Not later 4 than 90 days after a State certification under para- 5 graph (2), the Secretary shall determine whether the 6 State has demonstrated that it has complied with 7 the requirements of this subsection, including accu- 8 rate measurement of compliance, or that it has made 9 significant progress toward compliance. If such de- 10 termination is positive, the Secretary shall accept 11 the certification. If the determination is negative, 12 the Secretary shall identify the areas of deficiency. 13 ‘‘(6) OUT OF COMPLIANCE.— 14 ‘‘(A) IN GENERAL.—Any State for which 15 the Secretary has not accepted a certification 16 under paragraph (5) by a deadline established 17 under this subsection is out of compliance with 18 this section. 19 ‘‘(B) LOCAL COMPLIANCE.—In any State 20 that is out of compliance with this section as 21 provided in subparagraph (A), a local govern- 22 ment may be in compliance with this section by 23 meeting all certification requirements applicable 24 to the State. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00218 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 219 1 ‘‘(C) NONCOMPLIANCE.—Any State that is 2 not in compliance with this section, as provided 3 in subparagraph (A), shall, until the State re- 4 gains such compliance, be ineligible to receive— 5 ‘‘(i) emission allowances pursuant to 6 subsection (h)(1); 7 ‘‘(ii) Federal funding in excess of that 8 State’s share (calculated according to the 9 allocation formula in section 363 of the 10 Energy Policy and Conservation Act (42 11 U.S.C. 6323)) of $125,000,000 each year; 12 and 13 ‘‘(iii) for— 14 ‘‘(I) the first year for which the 15 State is out of compliance, 25 percent 16 of any additional funding or other 17 items of monetary value otherwise 18 provided under the American Clean 19 Energy and Security Act of 2009; 20 ‘‘(II) the second year for which 21 the State is out of compliance, 50 per- 22 cent of any additional funding or 23 other items of monetary value other- 24 wise provided under the American f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00219 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 220 1 Clean Energy and Security Act of 2 2009; 3 ‘‘(III) the third year for which 4 the State is out of compliance, 75 per- 5 cent of any additional funding or 6 other items of monetary value other- 7 wise provided under the American 8 Clean Energy and Security Act of 9 2009; and 10 ‘‘(IV) the fourth and subsequent 11 years for which the State is out of 12 compliance, 100 percent of any addi- 13 tional funding or other items of mone- 14 tary value otherwise provided under 15 the American Clean Energy and Secu- 16 rity Act of 2009. 17 ‘‘(f) FEDERAL ENFORCEMENT.—Where a State fails 18 and local governments in that State also fail to enforce 19 the applicable State or national energy efficiency building 20 codes, the Secretary shall enforce such codes, as follows: 21 ‘‘(1) The Secretary shall establish, by rule, 22 within 2 years after the date of enactment of the 23 American Clean Energy and Security Act of 2009, 24 an energy efficiency building code enforcement capa- 25 bility. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00220 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 221 1 ‘‘(2) Such enforcement capability shall be de- 2 signed to achieve 90 percent compliance with such 3 code in any State within 1 year after the date of the 4 Secretary’s determination that such State is out of 5 compliance with this section. 6 ‘‘(3) The Secretary may set and collect reason- 7 able inspection fees to cover the costs of inspections 8 required for such enforcement. Revenue from fees 9 collected shall be available to the Secretary to carry 10 out the requirements of this section upon appropria- 11 tion. 12 ‘‘(g) ENFORCEMENT PROCEDURES.—(1) The Sec- 13 retary shall assess a civil penalty for violations of this sec- 14 tion, pursuant to subsection (d)(3), in accordance with the 15 procedures described in section 333(d) of the Energy Pol- 16 icy and Conservation Act (42 U.S.C. 6303). The United 17 States district courts shall also have jurisdiction to re- 18 strain any violation of this section or rules adopted there- 19 under, in accordance with the procedures described in sec- 20 tion 334 of the Energy Policy and Conservation Act (42 21 U.S.C. 6304). 22 ‘‘(2) Each day of unlawful occupancy shall be consid- 23 ered a separate violation. 24 ‘‘(3) In the event a building constructed out of com- 25 pliance with the applicable code has been conveyed by a f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00221 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 222 1 knowing builder or knowing seller to an unknowing pur- 2 chaser, the builder or seller shall be the violator. 3 ‘‘(h) FEDERAL SUPPORT.— 4 ‘‘(1) ALLOWANCE ALLOCATION FOR STATE 5 COMPLIANCE.—Not later than June 1, 2011, and on 6 that date in each year thereafter, the Administrator 7 shall provide emission allowances to the SEED Ac- 8 count for each State that the Secretary identifies as 9 a State from which he has accepted the State’s cer- 10 tification under subsection (e)(5) for compliance 11 with the then current national energy efficiency 12 building codes. Such allowances shall be distributed 13 from an amount of 0.5 percent of the allowances 14 made available for each year pursuant to the Amer- 15 ican Clean Energy and Security Act of 2009 to each 16 State in accordance with a formula established by 17 the Secretary as follows: 18 ‘‘(A) One-fifth in an equal amount to each 19 of the 50 States and United States territories. 20 ‘‘(B) Two-fifths as a function of the rel- 21 ative energy use in all buildings in each State 22 in the most recent year for which data is avail- 23 able. 24 ‘‘(C) Two-fifths based on the number of 25 building construction starts recorded in each f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00222 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 223 1 State, the number of new building permits ap- 2 plied for in each State, or other relevant avail- 3 able data indicating building activity in each 4 State, in the judgment of the Secretary, for the 5 year prior to the year of the allocation. 6 ‘‘(2) ALLOWANCE ALLOCATION TO LOCAL GOV- 7 ERNMENTS.—In the instance that the Secretary cer- 8 tifies that one or more local governments are in com- 9 pliance with this section pursuant to subsection 10 (e)(6)(B), the Administrator shall provide to each 11 such local government the portion of the emission al- 12 lowances that would have been provided to that 13 State as a function of the population of that locality 14 as a proportion of the population of that State as a 15 whole. 16 ‘‘(3) UNALLOCATED ALLOWANCES.—To the ex- 17 tent that allowances are not provided to State or 18 local governments for lack of certification in any 19 year, those allowances shall be added to the amount 20 provided to those States and local governments that 21 are certified as eligible in that year. 22 ‘‘(4) USE OF ALLOWANCES.—Each State or 23 each local government shall use such emission allow- 24 ances as it receives pursuant to this section exclu- 25 sively for the purposes of this section, including cov- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00223 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 224 1 ering a reasonable portion of the costs of the devel- 2 opment, adoption, implementation, and enforcement 3 of a State or local energy efficiency building code 4 with respect to which a certification is accepted by 5 the Secretary under subsection (c)(2)(B) or sub- 6 section (e)(6)(B), or the national energy efficiency 7 building code. 8 ‘‘(i) ANNUAL REPORTS SECRETARY.—The Sec- BY 9 retary shall annually submit to Congress, and publish in 10 the Federal Register, a report on— 11 ‘‘(1) the status of national building energy effi- 12 ciency codes; 13 ‘‘(2) the status of energy efficiency building 14 code adoption and compliance in the States; 15 ‘‘(3) the implementation of this section; and 16 ‘‘(4) impacts of past action under this section, 17 and potential impacts of further action, on lifetime 18 energy use by buildings, including resulting energy 19 and cost savings.’’. 20 SEC. 202. BUILDING RETROFIT PROGRAM. 21 (a) DEFINITIONS.—For purposes of this section: 22 (1) NONRESIDENTIAL BUILDING.—The term 23 ‘‘nonresidential building’’ means a building with a 24 primary use or purpose other than residential hous- 25 ing, including commercial offices, schools, academic f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00224 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 225 1 and other public and private institutions, nonprofit 2 organizations, hospitals, hotels, and houses of wor- 3 ship. Such buildings shall include mixed-use prop- 4 erties used for both residential and nonresidential 5 purposes in which more than half of building floor 6 space is nonresidential. 7 (2) PERFORMANCE-BASED BUILDING RETROFIT 8 PROGRAM.—The term ‘‘performance-based building 9 retrofit program’’ means a program that determines 10 building energy efficiency success based on actual 11 measured savings after a retrofit is complete, as evi- 12 denced by energy invoices or evaluation protocols. 13 (3) PRESCRIPTIVE BUILDING RETROFIT PRO- 14 GRAM.—The term ‘‘prescriptive building retrofit pro- 15 gram’’ means a program that projects building ret- 16 rofit energy efficiency success based on the known 17 effectiveness of measures prescribed to be included 18 in a retrofit. 19 (4) RECOMMISSIONING; 20 RETROCOMMISSIONING.—The terms ‘‘recommis- 21 sioning’’ and ‘‘retrocommissioning’’ have the mean- 22 ing given those terms in section 543(f)(1) of the Na- 23 tional Energy Conservation Policy Act (42 U.S.C. 24 8253(f)(1)). f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00225 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 226 1 BUILDING.—The term ‘‘resi- (5) RESIDENTIAL 2 dential building’’ means a building whose primary 3 use is residential. Such buildings shall include sin- 4 gle-family homes (both attached and detached), 5 owner-occupied units in larger buildings with their 6 own dedicated space-conditioning systems, and build- 7 ings used for both residential and nonresidential 8 purposes in which more than half of building floor 9 space is residential. 10 (6) STATE PROGRAM.—The term ENERGY 11 ‘‘State Energy Program’’ means the program under 12 part D of title III of the Energy Policy and Con- 13 servation Act (42 U.S.C. 6321 et seq.). 14 (b) ESTABLISHMENT.—The Administrator shall de- 15 velop and implement, in consultation with the Secretary 16 of Energy, standards for a national energy and environ- 17 mental building retrofit policy for single-family and multi- 18 family residences. The Administrator shall develop and 19 implement, in consultation with the Secretary of Energy 20 and the Director of Commercial High-Performance Green 21 Buildings, standards for a national energy and environ- 22 mental building retrofit policy for nonresidential buildings. 23 The programs to implement the residential and nonresi- 24 dential policies based on the standards developed under 25 this section shall together be known as the Retrofit for f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00226 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 227 1 Energy and Environmental Performance (REEP) pro- 2 gram. 3 (c) PURPOSE.—The purpose of the REEP program 4 is to facilitate the retrofitting of existing buildings across 5 the United States to achieve maximum cost-effective en- 6 ergy efficiency improvements and significant improve- 7 ments in water use and other environmental attributes. 8 (d) FEDERAL ADMINISTRATION.— 9 (1) EXISTING PROGRAMS.— In creating and op- 10 erating the REEP program— 11 (A) the Administrator shall make appro- 12 priate use of existing programs, including the 13 Energy Star program and in particular the En- 14 vironmental Protection Agency Energy Star for 15 Buildings program; and 16 (B) the Secretary of Energy shall make 17 appropriate use of existing programs, including 18 delegating authority to the Director of Commer- 19 cial High-Performance Green Buildings ap- 20 pointed under section 421 of the Energy Inde- 21 pendence and Security Act of 2007 (42 U.S.C. 22 17081), who shall designate and provide fund- 23 ing to support a high-performance green build- 24 ing partnership consortium pursuant to sub- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00227 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 228 1 section (f) of such section to support efforts 2 under this section. 3 (2) CONSULTATION AND COORDINATION.—The 4 Administrator and the Secretary of Energy shall 5 consult with and coordinate with the Secretary of 6 Housing and Urban Development in carrying out the 7 REEP program. 8 (3) ALLOCATION OF ALLOWANCES.—The Ad- 9 ministrator shall support the REEP program by 10 providing emission allowances to each State’s SEED 11 Account for the purposes of the program, and pro- 12 viding, as appropriate, emission allowances to a local 13 government entity that carries out the purposes of 14 this section in the absence of a State program. The 15 Administrator shall support administration of the 16 program through such existing State and local agen- 17 cies or entities, including those regulated by the 18 State, that the State designates to carry out the 19 purposes of this section. The Administrator shall en- 20 sure accountability for allowances dispensed, and 21 shall confirm measurement and verification of en- 22 ergy, water, and environmental savings achieved. 23 (4) ASSISTANCE.—The Administrator and the 24 Secretary of Energy shall provide consultation and 25 assistance to State and local agencies for the estab- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00228 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 229 1 lishment of revolving loan funds, loan guarantees, or 2 other forms of financial assistance under this sec- 3 tion. 4 (e) STATE AND LOCAL ADMINISTRATION.— 5 (1) DELEGATION.—The designated State agen- 6 cy, agencies, or entities described in subsection 7 (d)(3) may delegate performance of appropriate ele- 8 ments of the REEP program, upon their request 9 and subject to State law, to counties, municipalities, 10 appropriate public agencies, and other divisions of 11 local government, as well as to entities regulated by 12 the State. In making any such delegation, a State 13 shall give priority to entities that administer existing 14 comprehensive retrofit programs, including those 15 under the supervision of State utility regulators. The 16 State shall ensure accountability for the use of al- 17 lowances provided under this section, and to the ex- 18 tent such allowances are sold by the State, for the 19 proceeds. States shall maintain responsibility for 20 meeting the standards and requirements of the 21 REEP program. In any State that elects not to ad- 22 minister the REEP program, a unit of local govern- 23 ment may propose to do so within its jurisdiction, 24 and if the Administrator finds that such local gov- 25 ernment is capable of administering the program, f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00229 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 230 1 the Administrator may provide allowances to that 2 local government, prorated according to the popu- 3 lation of the local jurisdiction relative to the popu- 4 lation of the State, for purposes of the REEP pro- 5 gram. 6 (2) EMPLOYMENT.—States and local govern- 7 ment entities may administer a REEP program in 8 a manner that authorizes public or regulated inves- 9 tor-owned utilities, building auditors and inspectors, 10 contractors, nonprofit organizations, for-profit com- 11 panies, and other entities to perform audits and ret- 12 rofit services under this section. A State may pro- 13 vide incentives for retrofits without direct participa- 14 tion by the State or its agents, so long as the result- 15 ing savings are measured and verified. A State or 16 local administrator of a REEP program shall seek 17 to ensure that sufficient qualified entities are avail- 18 able to support retrofit activities so that building 19 owners have a competitive choice among qualified 20 auditors, raters, contractors, and providers of serv- 21 ices related to retrofits. Nothing in this section is in- 22 tended to preclude or preempt the right of a building 23 owner to choose the specific providers of retrofit 24 services to engage for a retrofit project in that own- 25 er’s building. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00230 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 231 1 INCENTIVES FOR EQUAL IMPROVE- (3) EQUAL 2 MENT.—In general, the States should strive to offer 3 the same levels of incentives for retrofits that meet 4 the same efficiency improvement goals, regardless of 5 whether the State, its agency or entity, or the build- 6 ing owner has conducted the retrofit achieving the 7 improvement, provided the improvement is measured 8 and verified. 9 (f) ELEMENTS REEP PROGRAM.—The Adminis- OF 10 trator, in consultation with the Secretary of Energy, shall 11 establish goals, guidelines, practices, and standards for ac- 12 complishing the purpose stated in subsection (c), and shall 13 annually review and, as appropriate, revise such goals, 14 guidelines, practices, and standards. The program under 15 this section shall include the following: 16 (1) Residential Energy Services Network 17 (RESNET) or Building Performance Institute 18 (BPI) analyst certification of residential building en- 19 ergy and environment auditors, inspectors, and rat- 20 ers, or an equivalent certification system as deter- 21 mined by the Administrator. 22 (2) BPI certification or licensing by States of 23 residential building energy and environmental ret- 24 rofit contractors, or an equivalent certification or li- 25 censing system as determined by the Administrator. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00231 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 232 1 (3) Provision of BPI, RESNET, or other ap- 2 propriate information on equipment and procedures, 3 as determined by the Administrator, that contractors 4 can use to test the energy and environmental effi- 5 ciency of buildings effectively (such as infrared pho- 6 tography and pressurized testing, and tests for water 7 use and indoor air quality). 8 (4) Provision of clear and effective materials to 9 describe the testing and retrofit processes for typical 10 buildings. 11 (5) Guidelines for offering and managing pre- 12 scriptive building retrofit programs and perform- 13 ance-based building retrofit programs for residential 14 and nonresidential buildings. 15 (6) Guidelines for applying recommissioning 16 and retrocommissioning principles to improve a 17 building’s operations and maintenance procedures. 18 (7) A requirement that building retrofits con- 19 ducted pursuant to a REEP program utilize, espe- 20 cially in all air-conditioned buildings, roofing mate- 21 rials with high solar energy reflectance, unless inap- 22 propriate due to green roof management, solar en- 23 ergy production, or for other reasons identified by 24 the Administrator, in order to reduce energy con- 25 sumption within the building, increase the albedo of f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00232 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 233 1 the building’s roof, and decrease the heat island ef- 2 fect in the area of the building. 3 (8) Determination of energy savings in a per- 4 formance-based building retrofit program through— 5 (A) for residential buildings, comparison of 6 before and after retrofit scores on the Home 7 Energy Rating System (HERS) Index, where 8 the final score is produced by an objective third 9 party; 10 (B) for nonresidential buildings, Environ- 11 mental Protection Agency Portfolio Manager 12 benchmarks; or 13 (C) for either residential or nonresidential 14 buildings, use of an Administrator-approved 15 simulation program by a contractor with the 16 appropriate certification, subject to appropriate 17 software standards and verification of at least 18 15 percent of all work done, or such other per- 19 centage as the Administrator may determine. 20 (9) Guidelines for utilizing the Energy Star 21 Portfolio Manager, the Home Energy Rating System 22 (HERS) rating system, Home Performance with En- 23 ergy Star program approvals, and any other tools 24 associated with the retrofit program. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00233 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 234 1 (10) Requirements and guidelines for post-ret- 2 rofit inspection and confirmation of work and energy 3 savings. 4 (11) Detailed descriptions of funding options 5 for the benefit of State and local governments, along 6 with model forms, accounting aids, agreements, and 7 guides to best practices. 8 (12) Guidance on opportunities for— 9 (A) rating or certifying retrofitted build- 10 ings as Energy Star buildings, or as green 11 buildings under a recognized green building rat- 12 ing system; 13 (B) assigning Home Energy Rating Sys- 14 tem (HERS) or similar ratings; and 15 (C) completing any applicable building per- 16 formance labels. 17 (13) Sample materials for publicizing the pro- 18 gram to building owners, including public service an- 19 nouncements and advertisements. 20 (14) Processes for tracking the numbers and lo- 21 cations of buildings retrofitted under the REEP pro- 22 gram, with information on projected and actual sav- 23 ings of energy and its value over time. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00234 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 235 1 (g) REQUIREMENTS.—As a condition of receiving al- 2 lowances for the REEP program pursuant to this Act, a 3 State or qualifying local government shall— 4 (1) adopt the standards for training, certifi- 5 cation of contractors, certification of buildings, and 6 post-retrofit inspection as developed by the Adminis- 7 trator for residential and nonresidential buildings, 8 respectively, except as necessary to match local con- 9 ditions, needs, efficiency opportunities, or other local 10 factors, or to accord with State laws or regulations, 11 and then only after the Administrator approves such 12 a variance; and 13 (2) establish fiscal controls and accounting pro- 14 cedures (which conform to generally accepted gov- 15 ernment accounting principles) sufficient to ensure 16 proper accounting during appropriate accounting pe- 17 riods for payments received and disbursements, and 18 for fund balances. 19 The Administrator shall conduct or require each State to 20 have such independent financial audits of REEP-related 21 funding as the Administrator considers necessary or ap- 22 propriate to carry out the purposes of this section. 23 (h) OPTIONS SUPPORT REEP PROGRAM.—The TO 24 emission allowances provided pursuant to this Act to the 25 States’ SEED Accounts shall support the implementation f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00235 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 236 1 through State REEP programs of alternate means of cre- 2 ating incentives for, or reducing financial barriers to, im- 3 proved energy and environmental performance in build- 4 ings, consistent with this section, including— 5 (1) implementing prescriptive building retrofit 6 programs and performance-based building retrofit 7 programs; 8 (2) providing credit enhancement, interest rate 9 subsidies, loan guarantees, or other credit support; 10 (3) providing initial capital for public revolving 11 fund financing of retrofits, with repayments by bene- 12 ficiary building owners over time through their tax 13 payments, calibrated to create net positive cash flow 14 to the building owner; 15 (4) providing funds to support utility-operated 16 retrofit programs with repayments over time 17 through utility rates, calibrated to create net positive 18 cash flow to the building owner, and transferable 19 from one building owner to the next with the build- 20 ing’s utility services; 21 (5) providing funds to local government pro- 22 grams to provide REEP services and financial as- 23 sistance; and f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00236 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 237 1 (6) other means proposed by State and local 2 agencies, subject to the approval of the Adminis- 3 trator. 4 (i) SUPPORT FOR PROGRAM.— 5 (1) USE OF ALLOWANCES.—The REEP pro- 6 gram shall be supported by the use of emission al- 7 lowances allocated to the States’ SEED Accounts 8 pursuant to section 132 of this Act. To the extent 9 that a State provides allowances to local govern- 10 ments within the State to implement elements of the 11 REEP Program, that shall be deemed a distribution 12 of such allowances to units of local government pur- 13 suant to subsection (c)(1) of that section. 14 (2) INITIAL AWARD LIMITS.—Except as pro- 15 vided in paragraph (3), State and local REEP pro- 16 grams may make per-building direct expenditures 17 for retrofit improvements, or their equivalent in indi- 18 rect or other forms of financial support, from funds 19 derived from the sale of allowances received directly 20 from the Administrator in amounts not to exceed the 21 following: 22 (A) RESIDENTIAL BUILDING PROGRAM.— 23 (i) AWARDS.—For residential build- 24 ings— f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00237 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 238 1 (I) support for a free or low-cost 2 detailed building energy audit that 3 prescribes, as part of a energy-reduc- 4 ing measures sufficient to achieve at 5 least a 20 percent reduction in energy 6 use, by providing an incentive equal to 7 the documented cost of such audit, 8 but not more than $200, in addition 9 to any earned by achieving a 20 per- 10 cent or greater efficiency improve- 11 ment; 12 (II) a total of $1,000 for a com- 13 bination of measures, prescribed in an 14 audit conducted under subclause (I), 15 designed to reduce energy consump- 16 tion by more than 10 percent, and 17 $2,000 for a combination of measures 18 prescribed in such an audit, designed 19 to reduce energy consumption by more 20 than 20 percent; 21 (III) $3,000 for demonstrated 22 savings of 20 percent, pursuant to a 23 performance-based building retrofit 24 program; and f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00238 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 239 1 (IV) $1,000 for each additional 5 2 percentage points of energy savings 3 achieved beyond savings for which 4 funding is provided under subclause 5 (II) or (III). 6 Funding shall not be provided under 7 clauses (II) and (III) for the same energy 8 savings. 9 (ii) MAXIMUM PERCENTAGE.—Awards 10 under clause (i) shall not exceed 50 per- 11 cent of retrofit costs for each building. For 12 buildings with multiple residential units, 13 awards under clause (i) shall not be great- 14 er than 50 percent of the total cost of ret- 15 rofitting the building, prorated among indi- 16 vidual residential units on the basis of rel- 17 ative costs of the retrofit. 18 (iii) ADDITIONAL AWARDS.—Addi- 19 tional awards may be provided for pur- 20 poses of increasing energy efficiency, for 21 buildings achieving at least 20 percent en- 22 ergy savings using funding provided under 23 clause (i), in the form of grants of not 24 more than $600 for measures projected or 25 measured (using an appropriate method f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00239 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 240 1 approved by the Administrator) to achieve 2 at least 35 percent potable water savings 3 through equipment or systems with an es- 4 timated service life of not less than seven 5 years, and not more than an additional 6 $20 may be provided for each additional 7 one percent of such savings, up to a max- 8 imum total grant of $1,200. 9 (B) NONRESIDENTIAL PRO- BUILDING 10 GRAM.— 11 (i) AWARDS.—For nonresidential 12 buildings— 13 (I) support for a free or low-cost 14 detailed building energy audit that 15 prescribes, as part of a energy-reduc- 16 ing measures sufficient to achieve at 17 least a 20 percent reduction in energy 18 use, by providing an incentive equal to 19 the documented cost of such audit, 20 but not more than $500, in addition 21 to any award earned by achieving a 22 20 percent or greater efficiency im- 23 provement; 24 (II) $0.15 per square foot of ret- 25 rofit area for demonstrated energy use f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00240 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 241 1 reductions from 20 percent to 30 per- 2 cent; 3 (III) $0.75 per square foot for 4 demonstrated energy use reductions 5 from 30 percent to 40 percent; 6 (IV) $1.60 per square foot for 7 demonstrated energy use reductions 8 from 40 percent to 50 percent; and 9 (V) $2.50 per square foot for 10 demonstrated energy use reductions 11 exceeding 50 percent. 12 (ii) MAXIMUM PERCENTAGE.— 13 Amounts provided under subclauses (II) 14 through (V) of clause (i) combined shall 15 not exceed 50 percent of the total retrofit 16 cost of a building. In nonresidential build- 17 ings with multiple units, such awards shall 18 be prorated among individual units on the 19 basis of relative costs of the retrofit. 20 (iii) ADDITIONAL AWARDS.—Addi- 21 tional awards may be provided, for build- 22 ings achieving at least 20 percent energy 23 savings using funding provided under 24 clause (i), as follows: f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00241 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 242 1 (I) WATER.—For purposes of in- 2 creasing energy efficiency, grants may 3 be made for whole building potable 4 water use reduction (using an appro- 5 priate method approved by the Sec- 6 retary of Energy) for up to 50 percent 7 of the total retrofit cost, including 8 amounts up to— 9 (aa) $24.00 per thousand 10 gallons per year of potable water 11 savings of 40 percent or more; 12 (bb) $27.00 per thousand 13 gallons per year of potable water 14 savings of 50 percent or more; 15 and 16 (cc) $30.00 per thousand 17 gallons per year of potable water 18 savings of 60 percent or more. 19 (II) ENVIRONMENTAL IMPROVE- 20 MENTS.—Additional awards of up to 21 $1,000 may be granted for the inclu- 22 sion of other environmental attributes 23 that the Secretary, in consultation 24 with the Administrator, identifies as 25 contributing to energy efficiency. Such f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00242 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 243 1 attributes may include, but are not 2 limited to waste diversion and the use 3 of environmentally preferable mate- 4 rials (including salvaged, renewable, 5 or recycled materials, and materials 6 with no or low-VOC content). The Ad- 7 ministrator may recommend that 8 States develop such standards as are 9 necessary to account for local or re- 10 gional conditions that may affect the 11 feasibility or availability of identified 12 resources and attributes. 13 (iv) INDOOR AIR QUALITY MINIMUM.— 14 Nonresidential buildings receiving incen- 15 tives under this section must satisfy at a 16 minimum the most recent version of 17 ASHRAE Standard 62.1 for ventilation, or 18 the equivalent as determined by the Ad- 19 ministrator. A State may issue a waiver 20 from this requirement to a building project 21 on a showing that such compliance is in- 22 feasible due to the physical constraints of 23 the building’s existing ventilation system, 24 or such other limitations as may be speci- 25 fied by the Administrator. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00243 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 244 1 BUILDINGS.—Notwith- (C) HISTORIC 2 standing subparagraphs (A) and (B), a building 3 in or eligible for the National Register of His- 4 toric Places shall be eligible for awards under 5 this paragraph in amounts up to 120 percent of 6 the amounts set forth in subparagraphs (A) and 7 (B). 8 (D) SUPPLEMENTAL SUPPORT.—State and 9 local governments may supplement the per- 10 building expenditures under this paragraph 11 with funding from other sources. 12 (3) ADJUSTMENT.—The Administrator may ad- 13 just the specific dollar limits funded by the sale of 14 allowances pursuant to paragraph (2) in years sub- 15 sequent to the second year after the date of enact- 16 ment of this Act, and every 2 years thereafter, as 17 the Administrator determines necessary to achieve 18 optimum cost-effectiveness and to maximize incen- 19 tives to achieve energy efficiency within the total 20 building award amounts provided in that paragraph, 21 and shall publish and hold constant such revised lim- 22 its for at least 2 years. 23 (j) REPORT CONGRESS.—The Administrator shall TO 24 conduct an annual assessment of the achievements of the 25 REEP program in each State, shall prepare an annual re- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00244 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 245 1 port of such achievements and any recommendations for 2 program modifications, and shall provide such report to 3 Congress at the end of each fiscal year during which fund- 4 ing or other resources were made available to the States 5 for the REEP Program. 6 (k) OTHER SOURCES OF FEDERAL SUPPORT.— 7 (1) ADDITIONAL STATE ENERGY PROGRAM 8 FUNDS.—Any Federal funding provided to a State 9 Energy Program that is not required to be expended 10 for a different federally designated purpose may be 11 used to support a REEP program. 12 (2) PROGRAM ADMINISTRATION.—State Energy 13 Offices or designated State agencies may expend up 14 to 10 percent of available funding provided under 15 this section for program administration. 16 (3) AUTHORIZATION APPROPRIATIONS.— OF 17 There are authorized to be appropriated for the pur- 18 poses of this section, for each of fiscal years 2010, 19 2011, 2012, and 2013— 20 (A) $50,000,000 to the Administrator for 21 program administration costs; and 22 (B) $20,000,000 to the Secretary of En- 23 ergy for program administration costs. 24 SEC. 203. ENERGY EFFICIENT MANUFACTURED HOMES. 25 (a) DEFINITIONS.—In this section: f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00245 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 246 1 HOME.—The term ‘‘manu- (1) MANUFACTURED 2 factured home’’ has the meaning given such term in 3 section 603 of the National Manufactured Housing 4 Construction and Safety Standards Act of 1974 (42 5 U.S.C. 5402). 6 (2) ENERGY STAR QUALIFIED MANUFACTURED 7 HOME.—The term ‘‘Energy Star qualified manufac- 8 tured home’’ means a manufactured home that has 9 been designed, produced, and installed in accordance 10 with Energy Star’s guidelines by an Energy Star 11 certified plant. 12 (b) PURPOSE.—The purpose of this section is to as- 13 sist low-income households residing in manufactured 14 homes constructed prior to 1976 to save energy and en- 15 ergy expenditures by providing support toward the pur- 16 chase of new Energy Star qualified manufactured homes. 17 (c) STATE IMPLEMENTATION OF PROGRAM.— 18 (1) MANUFACTURED HOME REPLACEMENT PRO- 19 GRAM.—Any State may provide to the owner of a 20 manufactured home constructed prior to 1976 a re- 21 bate to use toward the purchase of a new Energy 22 Star qualified manufactured home pursuant to this 23 section. 24 (2) USE OF ALLOWANCES.—The program es- 25 tablished in this section shall be supported by the f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00246 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 247 1 use of emission allowances allocated to the States’ 2 SEED Accounts pursuant to section 782 of this Act. 3 To the extent that a State provides allowances to 4 local governments within the State to implement this 5 program, that shall be deemed a distribution of such 6 allowances to units of local government pursuant to 7 subsection (c)(1) of that section. 8 (3) REBATES.— 9 (A) PRIMARY REQUIRE- RESIDENCE 10 MENT.—A rebate described under paragraph 11 (1) may only be made to an owner of a manu- 12 factured home constructed prior to 1976 that is 13 used on a year-round basis as a primary resi- 14 dence. 15 (B) DISMANTLING AND REPLACEMENT.—A 16 rebate described under paragraph (1) may be 17 made only if the manufactured home con- 18 structed prior to 1976 will be— 19 (i) rendered unusable for human habi- 20 tation (including appropriate recycling); 21 and 22 (ii) replaced, in the same general loca- 23 tion, as determined by the applicable State 24 agency, with an Energy Star qualified 25 manufactured home. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00247 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 248 1 REBATE.—A rebate described (C) SINGLE 2 under paragraph (1) may not be provided to 3 any owner of a manufactured home constructed 4 prior to 1976 that was or is a member of a 5 household for which any other member of the 6 household was provided a rebate pursuant to 7 this section. 8 (D) ELIGIBLE HOUSEHOLDS.—To be eligi- 9 ble to receive a rebate described under para- 10 graph (1), an owner of a manufactured home 11 constructed prior to 1976 shall demonstrate to 12 the applicable State agency that the total in- 13 come of all members the owner’s household does 14 not exceed 200 percent of the Federal poverty 15 level for income in the applicable area. 16 (E) ADVANCE AVAILABILITY.—A rebate 17 may be provided under this section in a manner 18 to facilitate the purchase of a new Energy Star 19 qualified manufactured home. 20 (4) REBATE LIMITATION.—Rebates provided by 21 States under this section shall not exceed $7,500 per 22 manufactured home from any value derived from the 23 use of emission allowances provided to the State 24 pursuant to section 132. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00248 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 249 1 OF STATE FUNDS.—A State providing (5) USE 2 rebates under this section may supplement the 3 amount of such rebates under paragraph (4) by any 4 additional amount is from State funds and other 5 sources, including private donations or grants from 6 charitable organizations. 7 (6) COORDINATION PRO- WITH SIMILAR 8 GRAMS.— 9 (A) STATE PROGRAMS.—A State con- 10 ducting an existing program that has the pur- 11 pose of replacing manufactured homes con- 12 structed prior to 1976 with Energy Star quali- 13 fied manufactured homes, may use allowance 14 value provided under section 782 to support 15 such a program, provided such funding does not 16 exceed the rebate limitation amount under 17 paragraph (4). 18 (B) FEDERAL PROGRAMS.—The Secretary 19 of Energy shall coordinate with and seek to 20 achieve the purpose of this section through 21 similar Federal programs including— 22 (i) the Weatherization Assistance Pro- 23 gram under part A of title IV of the En- 24 ergy Conservation and Production Act (42 25 U.S.C. 6861 et seq.); and f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00249 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 250 1 (ii) the program under part D of title 2 III of the Energy Policy and Conservation 3 Act (42 U.S.C. 6321 et seq.). 4 (C) COORDINATION WITH OTHER STATE 5 AGENCIES.—A State agency using allowance 6 value to administer the program under this sec- 7 tion may coordinate its efforts, and share funds 8 for administration, with other State agencies in- 9 volved in low-income housing programs. 10 (7) ADMINISTRATIVE EXPENSES.—A State 11 using allowance value under this section may expend 12 not more than 10 percent of such value for adminis- 13 trative expenses related to this program. 14 SEC. 204. BUILDING ENERGY PERFORMANCE LABELING 15 PROGRAM. 16 (a) ESTABLISHMENT.— 17 (1) PURPOSE.—The Administrator shall estab- 18 lish a building energy performance labeling program 19 with broad applicability to the residential and com- 20 mercial markets to enable and encourage knowledge 21 about building energy performance by owners and 22 occupants and to inform efforts to reduce energy 23 consumption nationwide. 24 (2) COMPONENTS.—In developing such pro- 25 gram, the Administrator shall— f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00250 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 251 1 (A) consider existing programs, such as 2 Environmental Protection Agency’s Energy 3 Star program, the Home Energy Rating System 4 (HERS) Index, and programs at the Depart- 5 ment of Energy; 6 (B) support the development of model per- 7 formance labels for residential and commercial 8 buildings; and 9 (C) utilize incentives and other means to 10 spur use of energy performance labeling of pub- 11 lic and private sector buildings nationwide. 12 (b) DATA ASSESSMENT FOR BUILDING ENERGY PER- 13 FORMANCE.— 14 (1) INITIAL REPORT.—Not later than 90 days 15 after the date of enactment of this Act, the Adminis- 16 trator shall provide to Congress, as well as to the 17 Secretary of Energy and the Office of Management 18 and Budget, a report identifying— 19 (A) all principal building types for which 20 statistically significant energy performance data 21 exists to serve as the basis of measurement pro- 22 tocols and labeling requirements for achieved 23 building energy performance; and f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00251 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 252 1 (B) those building types for which addi- 2 tional data are required to enable the develop- 3 ment of such protocols and requirements. 4 (2) ADDITIONAL REPORTS.—Additional updated 5 reports shall be provided under this subsection as 6 often as The Administrator considers practicable, 7 but not less than every 2 years. 8 (c) BUILDING DATA ACQUISITION.— 9 (1) RESOURCE REQUIREMENTS.—For all prin- 10 cipal building types identified under subsection (b), 11 the Secretary of Energy, not later than 90 days 12 after a report by the Administrator under subsection 13 (b), shall provide to Congress, the Administrator, 14 and the Office of Management and Budget a state- 15 ment of additional resources needed, if any, to fully 16 develop the relevant data, as well as the anticipated 17 timeline for data development. 18 (2) CONSULTATION.—The Secretary of Energy 19 shall consult with the Administrator concerning the 20 Administrator’s ability to use data series for these 21 additional building types to support the achieved 22 performance component in the labeling program. 23 (3) IMPROVEMENTS TO BUILDING ENERGY CON- 24 SUMPTION DATABASES.— f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00252 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 253 1 DATABASE.—The Sec- (A) COMMERCIAL 2 retary of Energy shall support improvements to 3 the Commercial Buildings Energy Consumption 4 Survey (CBECS) as authorized by section 5 205(k) of the Department of Energy Organiza- 6 tion Act (42 U.S.C. 7135(k))— 7 (i) to enable complete and robust data 8 for the actual energy performance of prin- 9 cipal building types currently covered by 10 survey; 11 (ii) to cover additional building types 12 as identified by the Administrator under 13 subsection (e)(1)(B), to enable the develop- 14 ment of achieved performance measure- 15 ment protocols are developed for at least 16 90 percent of all major commercial build- 17 ing types within 5 years after the date of 18 enactment of this Act; and 19 (iii) to include third-party audits of 20 random data samplings to ensure the qual- 21 ity and accuracy of survey information. 22 (B) RESIDENTIAL DATABASES.—The Ad- 23 ministrator, in consultation with the Energy In- 24 formation Administration and the Secretary of 25 Energy, shall support improvements to the Res- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00253 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 254 1 idential Energy Consumption Survey (RECS) 2 as authorized by section 205(k) of the Depart- 3 ment of Energy Organization Act (42 U.S.C. 4 7135(k)), or such other residential energy per- 5 formance databases as the Administrator con- 6 siders appropriate, to aid the development of 7 achieved performance measurement protocols 8 for residential building energy use for at least 9 90 percent of the residential market within 5 10 years after the date of enactment of this Act. 11 (C) CONSULTATION.—The Secretary of 12 Energy and the Administrator shall consult 13 with public, private, and nonprofit sector rep- 14 resentatives from the building industry and real 15 estate industry to assist in the evaluation and 16 improvement of building energy performance 17 databases and labeling programs. 18 (d) IDENTIFICATION MEASUREMENT PROTOCOLS OF 19 ACHIEVED PERFORMANCE.— FOR 20 (1) PROPOSED REQUIRE- PROTOCOLS AND 21 MENTS.—At the earliest practicable date, but not 22 later than 1 year after identifying a building type 23 under subsection (b)(1)(A), the Administrator shall 24 propose a measurement protocol for that building 25 type and a requirement detailing how to use that f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00254 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 255 1 protocol in completing applicable commercial or resi- 2 dential performance labels created pursuant to this 3 section. 4 (2) FINAL RULE.—After providing for notice 5 and comment, the Administrator shall publish a 6 final rule containing a measurement protocol and 7 the corresponding requirements for applying that 8 protocol. Such a rule— 9 (A) shall define the minimum period for 10 measurement of energy use by buildings of that 11 type and other details for determining achieved 12 performance, to include leased buildings or 13 parts thereof; 14 (B) shall identify necessary data collection 15 and record retention requirements; and 16 (C) may specify transition rules and ex- 17 emptions for classes of buildings within the 18 building type. 19 (e) PROCEDURES EVALUATING DESIGNED PER- FOR 20 FORMANCE.—The Administrator shall develop protocols 21 for evaluating the designed performance of individual 22 building types. The Administrator may conduct such feasi- 23 bility studies and demonstration projects as are necessary 24 to evaluate the sufficiency of proposed protocols for de- 25 signed performance. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00255 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 256 1 BUILDING ENERGY PERFORMANCE (f) CREATION OF 2 LABELING PROGRAM.— 3 (1) MODEL LABEL.—Not later than 1 year 4 after the date of enactment of this Act, the Adminis- 5 trator shall propose a model building energy label 6 that provides a format— 7 (A) to display achieved performance and 8 designed performance data; 9 (B) that may be tailored for residential 10 and commercial buildings, and for single-occu- 11 pancy and multitenanted buildings; and 12 (C) to display other appropriate elements 13 identified during the development of measure- 14 ment protocols under subsections (d) and (e). 15 (2) INCLUSIONS.—Nothing in this section shall 16 require the inclusion on such a label of designed per- 17 formance data where impracticable or not cost effec- 18 tive, or to preclude the display of both achieved per- 19 formance and designed performance data for a par- 20 ticular building where both such measures are avail- 21 able, practicable, and cost effective. 22 (3) EXISTING PROGRAMS.—In developing the 23 model label, the Administrator shall consider exist- 24 ing programs, including— f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00256 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 257 1 (A) the Environmental Protection Agency’s 2 Energy Star Portfolio Manager program and 3 the California HERS II Program Custom Ap- 4 proach for the achieved performance component 5 of the label; 6 (B) the Home Energy Rating System 7 (HERS) Index system for the designed per- 8 formance component of the label; and 9 (C) other Federal and State programs, in- 10 cluding the Department of Energy’s related 11 programs on building technologies and those of 12 the Federal Energy Management Program. 13 (4) FINAL RULE.—After providing for notice 14 and comment, the Administrator shall publish a 15 final rule containing the label applicable to covered 16 building types. 17 (g) DEMONSTRATION PROJECTS LABELING FOR 18 PROGRAM.— 19 (1) IN GENERAL.—The Administrator shall con- 20 duct building energy performance labeling dem- 21 onstration projects for different building types— 22 (A) to ensure the sufficiency of the current 23 Commercial Buildings Energy Consumption 24 Survey and other data to serve as the basis for 25 new measurement protocols for the achieved f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00257 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 258 1 performance component of the building energy 2 performance labeling program; 3 (B) to inform the development of measure- 4 ment protocols for building types not currently 5 covered by the Commercial Buildings Energy 6 Consumption Survey; and 7 (C) to identify any additional information 8 that needs to be developed to ensure effective 9 use of the model label. 10 (2) PARTICIPATION.—Such demonstration 11 projects shall include participation of— 12 (A) buildings from diverse geographical 13 and climate regions; 14 (B) buildings in both urban and rural 15 areas; 16 (C) single-family residential buildings; 17 (D) multihousing residential buildings with 18 more than 50 units, including at least one 19 project that provides affordable housing to indi- 20 viduals of diverse incomes; 21 (E) single-occupant commercial buildings 22 larger than 30,000 square feet; 23 (F) multitenanted commercial buildings 24 larger than 50,000 square feet; and f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00258 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 259 1 (G) buildings from both the public and pri- 2 vate sectors. 3 (3) PRIORITY.—Priority in the selection of dem- 4 onstration projects shall be given to projects that fa- 5 cilitate large-scale implementation of the labeling 6 program for samples of buildings across neighbor- 7 hoods, geographic regions, cities, or States. 8 (4) FINDINGS.—The Administrator shall report 9 any findings from demonstration projects under this 10 subsection, including an identification of any areas 11 of needed data improvement, to the Department of 12 Energy’s Energy Information Administration and 13 Building Technologies Program. 14 (5) COORDINATION.—The Administrator and 15 the Secretary of Energy shall coordinate demonstra- 16 tion projects undertaken pursuant to this subsection 17 with those undertaken as part of the Zero-Net-En- 18 ergy Commercial Buildings Initiative adopted under 19 section 422 of the Energy Independence and Secu- 20 rity Act of 2007 (42 U.S.C. 17082). 21 (h) IMPLEMENTATION OF LABELING PROGRAM.— 22 (1) IN GENERAL.—The Administrator, in con- 23 sultation with the Secretary of Energy, shall work 24 with all State Energy Offices established pursuant 25 to part D of title III of the Energy Policy and Con- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00259 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 260 1 servation Act (42 U.S.C. 6321 et seq.) or other 2 State authorities as necessary for the purpose of im- 3 plementing the labeling program established under 4 this section for commercial and residential buildings. 5 (2) OUTREACH TO LOCAL AUTHORITIES.—The 6 Administrator shall, acting in consultation and co- 7 ordination with the respective States, encourage use 8 of the labeling program by counties and other local- 9 ities to broaden access to information about building 10 energy use, for example, through disclosure of build- 11 ing label contents in tax, title, and other records 12 those localities maintain. For this purpose, the Ad- 13 ministrator shall develop an electronic version of the 14 label and information that can be readily trans- 15 mitted and read in widely-available computer pro- 16 grams but is protected from unauthorized manipula- 17 tion. 18 (3) MEANS OF IMPLEMENTATION.—In adopting 19 the model labeling program established under this 20 section, a State shall seek to ensure that labeled in- 21 formation be made accessible to the public in a man- 22 ner so that owners, lenders, tenants, occupants, or 23 other relevant parties can utilize it. Such accessi- 24 bility may be accomplished through— f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00260 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 261 1 (A) preparation, and public disclosure of 2 the label through filing with tax and title 3 records at the time of— 4 (i) a building audit conducted with 5 support from Federal or State funds; 6 (ii) a building energy-efficiency ret- 7 rofit conducted in response to such an 8 audit; 9 (iii) a final inspection of major ren- 10 ovations or additions made to a building in 11 accordance with a building permit issued 12 by a local government entity; 13 (iv) a sale that is recorded for title 14 and tax purposes consistent with sub- 15 section (h)(8) of this section; 16 (v) a new lien recorded on the prop- 17 erty for more than a set percentage of the 18 assessed value of the property, if that lien 19 reflects public financial assistance for en- 20 ergy-related improvements to that building; 21 or 22 (vi) a change in ownership or oper- 23 ation of the building for purposes of utility 24 billing; or 25 (B) other appropriate means. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00261 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 262 1 IMPLEMENTATION OF PROGRAM.— (4) STATE 2 (A) ELIGIBILITY.—A State may become el- 3 igible to utilize allowance value to implement 4 this program by— 5 (i) adopting by statute or regulation a 6 requirement that buildings be assessed and 7 labeled, consistent with the labeling re- 8 quirements of the program established 9 under this section; or 10 (ii) adopting a plan to implement a 11 model labeling program consistent with 12 this section within one year of enactment 13 of this Act, including the establishment of 14 that program within 3 years after the date 15 of enactment of this Act, and dem- 16 onstrating continuous progress under that 17 plan. 18 (B) USE OF ALLOWANCES.—The program 19 established in this section shall be supported by 20 the use of emission allowances allocated to the 21 States’ SEED Accounts pursuant to section 22 132 of this Act. To the extent that a State pro- 23 vides allowances to local governments within the 24 State to implement this program, that shall be 25 deemed a distribution of such allowances to f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00262 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 263 1 units of local government pursuant to sub- 2 section (c)(1) of that section. 3 (5) GUIDANCE.—The Administrator may create 4 or identify model programs and resources to provide 5 guidance to offer to States and localities for creating 6 labeling programs consistent with the model pro- 7 gram established under this section. 8 (6) PROGRESS REPORT.—The Administrator, in 9 consultation with the Secretary of Energy, shall pro- 10 vide a progress report to Congress not later than 3 11 years after the date of enactment of this Act that— 12 (A) evaluates the effectiveness of efforts to 13 advance use of the model labeling program by 14 States and localities; 15 (B) recommends any legislative changes 16 necessary to broaden the use of the model label- 17 ing program; and 18 (C) identifies any changes to broaden the 19 use of the model labeling program that the Ad- 20 ministrator has made or intends to make that 21 do not require additional legislative authority. 22 (7) STATE INFORMATION.—The Administrator 23 may require States to report to the Administrator 24 information that the Administrator requires to pro- 25 vide the report required under paragraph (6). f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00263 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 264 1 (8) PREVENTION OF DISRUPTION OF SALES 2 TRANSACTIONS.—No State shall implement a new 3 labeling program pursuant to this section in a man- 4 ner that requires the labeling of a building to occur 5 after a contract has been executed for the sale of 6 that building and before the sales transaction is 7 completed. 8 (i) IMPLEMENTATION LABELING PROGRAM OF IN 9 FEDERAL BUILDINGS.— 10 (1) USE OF LABELING PROGRAM.—The Sec- 11 retary of Energy and the Administrator shall use the 12 labeling program established under this section to 13 evaluate energy performance in the facilities of the 14 Department of Energy and the Environmental Pro- 15 tection Agency, respectively, to the extent prac- 16 ticable, and shall encourage and support implemen- 17 tation efforts in other Federal agencies. 18 (2) ANNUAL REPORT.—The Sec- PROGRESS 19 retary of Energy and Administrator shall provide an 20 annual progress report to Congress and the Office of 21 Management and Budget detailing efforts to imple- 22 ment this subsection, as well as any best practices 23 or needed resources identified as a result of such ef- 24 forts. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00264 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 265 1 (j) PUBLIC OUTREACH.—The Secretary of Energy 2 and the Administrator, in consultation with nonprofit and 3 industry stakeholders with specialized expertise, and in 4 conjunction with other energy efficiency public awareness 5 efforts, shall establish a business and consumer education 6 program to increase awareness about the importance of 7 building energy efficiency and to facilitate widespread use 8 of the labeling program established under this section. 9 (k) DEFINITIONS.—In this section: 10 (1) BUILDING TYPE.—The term ‘‘building 11 type’’ means a grouping of buildings as identified by 12 their principal building activities, or as grouped by 13 their use, including office buildings, laboratories, li- 14 braries, data centers, retail establishments, hotels, 15 warehouses, and educational buildings. 16 (2) MEASUREMENT PROTOCOL.—The term 17 ‘‘measurement protocol’’ means the methodology, 18 prescribed by the Administrator, for defining a 19 benchmark for building energy performance for a 20 specific building type and for measuring that per- 21 formance against the benchmark. 22 (3) ACHIEVED PERFORMANCE.—The term 23 ‘‘achieved performance’’ means the actual energy 24 consumption of a building as compared to a baseline 25 building of the same type and size, determined by f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00265 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 266 1 actual consumption data normalized for appropriate 2 variables. 3 (4) DESIGNED PERFORMANCE.—The term ‘‘de- 4 signed performance’’ means the energy consumption 5 performance a building would achieve if operated 6 consistent with its design intent for building energy 7 use, utilizing a standardized set of operational condi- 8 tions informed by data collected or confirmed during 9 an energy audit. 10 (l) AUTHORIZATION APPROPRIATIONS.—There OF 11 are authorized to be appropriated— 12 (1) to the Administrator $50,000,000 for imple- 13 mentation of this section for each fiscal year from 14 2010 through 2020; and 15 (2) to the Secretary of Energy $20,000,000 for 16 implementation of this section for fiscal year 2010 17 and $10,000,000 for fiscal years 2011 through 18 2020. Subtitle B—Lighting and Appliance 19 Energy Efficiency Programs 20 21 SEC. 211. LIGHTING EFFICIENCY STANDARDS. 22 (a) OUTDOOR LIGHTING.— 23 (1) DEFINITIONS.— 24 (A) Section 340(1) of the Energy Policy 25 and Conservation Act (42 U.S.C. 6311(1)) is f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00266 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 267 1 amended by striking subparagraph (L) and in- 2 serting the following: 3 ‘‘(L) Outdoor luminaires. 4 ‘‘(M) Outdoor high light output lamps. 5 ‘‘(N) Any other type of industrial equip- 6 ment which the Secretary classifies as covered 7 equipment under section 341(b).’’. 8 (B) Section 340 of the Energy Policy and 9 Conservation Act (42 U.S.C. 6311) is amended 10 as adding at the end the following: 11 ‘‘(25) The term ‘luminaire’ means a complete 12 lighting unit consisting of one or more light sources 13 and ballast(s), together with parts designed to dis- 14 tribute the light, to position and protect such lamps, 15 and to connect such light sources to the power sup- 16 ply. 17 ‘‘(26) The term ‘outdoor luminaire’ means a lu- 18 minaire that is listed as suitable for wet locations 19 pursuant to Underwriters Laboratories Inc. stand- 20 ard UL 1598 and is labeled as ‘Suitable for Wet Lo- 21 cations’ consistent with section 410.4(A) of the Na- 22 tional Electrical Code 2005, or is designed for road- 23 way illumination and meets the requirements of Ad- 24 dendum A for IESNA TM-15-07: Backlight, 25 Uplight, and Glare (BUG) Ratings, except for— f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00267 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 268 1 ‘‘(A) luminaires designed for outdoor video 2 display images that cannot be used in general 3 lighting applications; 4 ‘‘(B) portable luminaires designed for use 5 at construction sites; 6 ‘‘(C) luminaires designed for continuous 7 immersion in swimming pools and other water 8 features; 9 ‘‘(D) seasonal luminaires incorporating 10 solely individual lamps rated at 10 watts or 11 less; 12 ‘‘(E) luminaires designed to be used in 13 emergency conditions that incorporate a means 14 of charging a battery and a device to switch the 15 power supply to emergency lighting loads auto- 16 matically upon failure of the normal power sup- 17 ply; 18 ‘‘(F) components used for repair of in- 19 stalled luminaries and that meet the require- 20 ments of section 342(h); 21 ‘‘(G) a luminaire utilizing an electrode-less 22 fluorescent lamp as the light source; 23 ‘‘(H) decorative gas lighting systems; 24 ‘‘(I) luminaires designed explicitly for 25 lighting for theatrical purposes, including per- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00268 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 269 1 formance, stage, film production, and video pro- 2 duction; 3 ‘‘(J) luminaires designed as theme ele- 4 ments in theme/amusement parks and that can- 5 not be used in most general lighting applica- 6 tions; 7 ‘‘(K) luminaires designed explicitly for ve- 8 hicular roadway tunnels designed to comply 9 with ANSI/IESNA RP-22-05; 10 ‘‘(L) luminaires designed explicitly for haz- 11 ardous locations meeting UL Standard 844; 12 ‘‘(M) searchlights; 13 ‘‘(N) luminaires that are designed to be re- 14 cessed into a building, and that cannot be used 15 in most general lighting applications; 16 ‘‘(O) a luminaire rated only for residential 17 applications utilizing a light source or sources 18 regulated under the amendments made by sec- 19 tion 321 of the Energy Independence and Secu- 20 rity Act of 2007 and with a light output no 21 greater than 2,600 lumens; 22 ‘‘(P) a residential pole-mounted luminaire 23 that is not rated for commercial use utilizing a 24 light source or sources meeting the efficiency 25 requirements of section 231 of the Energy f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00269 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 270 1 Independence and Security Act of 2007 and 2 mounted on a post or pole not taller than 10.5 3 feet above ground and with a light output not 4 greater than 2.600 lumens; 5 ‘‘(Q) a residential fixture with E12 (Can- 6 delabra) bases that is rated for not more than 7 300 watts total; or 8 ‘‘(R) a residential fixture with medium 9 screw bases that is rated for not more than 145 10 watts. 11 ‘‘(27) The term ‘outdoor high light outputlamp’ 12 means a lamp that— 13 ‘‘(A) has a rated lumen output not less 14 than 2601 lumens; 15 ‘‘(B) is capable of being operated at a volt- 16 age not less than 110 volts and not greater 17 than 300 volts, or driven at a constant current 18 of 6.6 amperes; 19 ‘‘(C) is not a Parabolic Aluminized Reflec- 20 tor lamp; and 21 ‘‘(D) is not a J-type double-ended (T-3) 22 halogen quartz lamp, utilizing R-7S bases, that 23 is manufactured before January 1, 2015. 24 ‘‘(28) The term ‘outdoor lighting control’ means 25 a device incorporated in a luminaire that receives a f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00270 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 271 1 signal, from either a sensor (such as an occupancy 2 sensor, motion sensor, or daylight sensor) or an 3 input signal (including analog or digital signals com- 4 municated through wired or wireless technology), 5 and can adjust the light level according to the sig- 6 nal.’’. 7 (2) STANDARDS.— Section 342 of the Energy 8 Policy and Conservation Act (42 U.S.C. 6313) is 9 amended by adding at the end the following: 10 ‘‘(g) OUTDOOR LUMINAIRES.— 11 ‘‘(1) Each outdoor luminaire manufactured on 12 or after January 1, 2011, shall— 13 ‘‘(A) have an initial luminaire efficacy of 14 at least 50 lumens per watt; and 15 ‘‘(B) be designed to use a light source with 16 a lumen maintenance, calculated as mean rated 17 lumens divided by initial lumens, of at least 0.6. 18 ‘‘(2) Each outdoor luminaire manufactured on 19 or after January 1, 2013, shall— 20 ‘‘(A) have an initial luminaire efficacy of 21 at least 70 lumens per watt; and 22 ‘‘(B) be designed to use a light source with 23 a lumen maintenance, calculated as mean rated 24 lumens divided by initial lumens, of at least 0.6. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00271 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 272 1 ‘‘(3) Each outdoor luminaire manufactured on 2 or after January 1, 2015, shall— 3 ‘‘(A) have an initial luminaire efficacy of 4 at least 80 lumens per watt; and 5 ‘‘(B) be designed to use a light source with 6 a lumen maintenance, calculated as mean rated 7 lumens divided by initial lumens, of at least 8 0.65. 9 ‘‘(4) In addition to the requirements of para- 10 graphs (1) through (3), each outdoor luminaire man- 11 ufactured on or after January 1, 2011, shall have 12 the capability of producing at least two different 13 light levels, including 100 percent and 60 percent of 14 full lamp output as tested with the maximum rated 15 lamp per UL1598 or the manufacturer’s maximum 16 specified for the luminaire under test. 17 ‘‘(5)(A) Not later than January 1, 2017, the 18 Secretary shall issue a final rule amending the appli- 19 cable standards established in paragraphs (3) and 20 (4) if technologically feasible and economically justi- 21 fied. Such a final rule shall be effective no later than 22 January 1, 2020. 23 ‘‘(B) A final rule issued under subparagraph 24 (A) shall establish efficiency standards at the max- 25 imum level that is technically feasible and economi- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00272 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 273 1 cally justified, as provided in subsections (o) and (p) 2 of section 325. The Secretary may also, in such rule- 3 making, amend or discontinue the product exclusions 4 listed in section 340(26)(A) through (P), or amend 5 the lumen maintenance requirements in paragraph 6 (3) if the Secretary determines that such amend- 7 ments are consistent with the purposes of this Act. 8 ‘‘(C) If the Secretary issues a final rule under 9 subparagraph (A) establishing amended standards, 10 the final rule shall provide that the amended stand- 11 ards apply to products manufactured on or after 12 January 1, 2020, or one year after the date on 13 which the final amended standard is published, 14 whichever is later. 15 ‘‘(h) OUTDOOR HIGH LIGHT OUTPUT LAMPS.—Each 16 outdoor high light output lamp manufactured on or after 17 January 1, 2012, shall have a lighting efficiency of at least 18 45 lumens per watt.’’. 19 (3) TEST PROCEDURES.— Section 343(a) of the 20 Energy Policy and Conservation Act (42 U.S.C. 21 6314(a)) is amended by adding at the end the fol- 22 lowing: 23 ‘‘(10) OUTDOOR LIGHTING.— 24 ‘‘(A) With respect to outdoor luminaires 25 and outdoor high light output lamps, the test f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00273 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 274 1 procedures shall be based upon the test proce- 2 dures specified in illuminating engineering soci- 3 ety procedures LM–79 as of March 1, 2009, 4 and LM-31, and/or other appropriate consensus 5 test procedures developed by the Illuminating 6 Engineering Society or other appropriate con- 7 sensus standards bodies. 8 ‘‘(B) If illuminating engineering society 9 procedure LM—79 is amended, the Secretary 10 shall amend the test procedures established in 11 subparagraph (A) as necessary to be consistent 12 with the amended LM–79 test procedure, unless 13 the Secretary determines, by rule, published in 14 the Federal Register and supported by clear 15 and convincing evidence, that to do so would 16 not meet the requirements for test procedures 17 under paragraph (2). 18 ‘‘(C) The Secretary may revise the test 19 procedures for outdoor luminaires or outdoor 20 high light output lamps by rule consistent with 21 paragraph (2), and may incorporate as appro- 22 priate consensus test procedures developed by 23 the Illuminating Engineering Society or other 24 appropriate consensus standards bodies.’’. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00274 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 275 1 (4) PREEMPTION.— Section 345 of the Energy 2 Policy and Conservation Act (42 U.S.C. 6316) is 3 amended by adding at the end the following: 4 ‘‘(i)(1) Except as provided in paragraph (2), section 5 327 shall apply to outdoor luminaires to the same extent 6 and in the same manner as the section applies under part 7 B. 8 ‘‘(2) Any State standard that is adopted on or before 9 January 1, 2015, pursuant to a statutory requirement to 10 adopt efficiency standards for reducing outdoor lighting 11 energy use enacted prior to January 31, 2008, shall not 12 be preempted.’’. 13 (5) ENERGY EFFICIENCY STANDARDS FOR CER- 14 TAIN LUMINAIRES.—Not later than 1 year after the 15 date of enactment of this Act, the Secretary of En- 16 ergy shall, in consultation with the National Elec- 17 trical Manufacturers Association, collect data for 18 United States sales of luminaires described in sec- 19 tion 340(26)(H) and (M) of the Energy Policy and 20 Conservation Act, to determine the historical growth 21 rate. If the Secretary finds that the growth in mar- 22 ket share of such luminaires exceeds twice the year 23 to year rate of the average of the previous three 24 years, then the Secretary shall within 12 months ini- 25 tiate a rulemaking to determine if such exclusion f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00275 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 276 1 should be eliminated, if substitute products exist 2 that perform more efficiently and fulfill the perform- 3 ance functions of these luminaires. 4 (b) PORTABLE LIGHTING.— 5 (1) PORTABLE LIGHT FIXTURES.— 6 (A) DEFINITIONS.—Section 321 of the En- 7 ergy Policy and Conservation Act (42 U.S.C. 8 6291) is amended by adding at the end the fol- 9 lowing: 10 ‘‘(67) ART WORK LIGHT FIXTURE.—The term 11 ‘art work light fixture’ means a light fixture de- 12 signed only to be mounted directly to an art work 13 and for the purpose of illuminating that art work. 14 ‘‘(68) LED LIGHT ENGINE.—The term ‘LED 15 light engine’ or ‘LED light engine with integral heat 16 sink’ means a subsystem of an LED light fixture 17 that— 18 ‘‘(A) includes 1 or more LED components, 19 including— 20 ‘‘(i) an LED driver power source with 21 electrical and mechanical interfaces; and 22 ‘‘(ii) an integral heat sink to provide 23 thermal dissipation; and f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00276 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 277 1 ‘‘(B) may be designed to accept additional 2 components that provide aesthetic, optical, and 3 environmental control. 4 ‘‘(69) LED LIGHT FIXTURE.—The term ‘LED 5 light fixture’ means a complete lighting unit con- 6 sisting of— 7 ‘‘(A) an LED light source with 1 or more 8 LED lamps or LED light engines; and 9 ‘‘(B) parts— 10 ‘‘(i) to distribute the light; 11 ‘‘(ii) to position and protect the light 12 source; and 13 ‘‘(iii) to connect the light source to 14 electrical power. 15 ‘‘(70) LIGHT FIXTURE.—The term ‘light fix- 16 ture’ means a product designed to provide light that 17 includes— 18 ‘‘(A) at least 1 lamp socket; and 19 ‘‘(B) parts— 20 ‘‘(i) to distribute the light; 21 ‘‘(ii) position and protect 1 or more 22 lamps; and 23 ‘‘(iii) to connect 1 or more lamps to a 24 power supply. 25 ‘‘(71) PORTABLE LIGHT FIXTURE.— f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00277 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 278 1 GENERAL.—The term ‘portable ‘‘(A) IN 2 light fixture’ means a light fixture that has a 3 flexible cord and an attachment plug for con- 4 nection to a nominal 120-volt circuit that— 5 ‘‘(i) allows the user to relocate the 6 product without any rewiring; and 7 ‘‘(ii) typically can be controlled with a 8 switch located on the product or the power 9 cord of the product. 10 ‘‘(B) EXCLUSIONS.—The term ‘portable 11 light fixture’ does not include— 12 ‘‘(i) direct plug-in night lights, sun or 13 heat lamps, medical or dental lights, port- 14 able electric hand lamps, signs or commer- 15 cial advertising displays, photographic 16 lamps, germicidal lamps, or light fixtures 17 for marine use or for use in hazardous lo- 18 cations (as those terms are defined in 19 ANSI/NFPA 70 of the National Electrical 20 Code); or 21 ‘‘(ii) decorative lighting strings, deco- 22 rative lighting outfits, or electric candles or 23 candelabra without lamp shades that are 24 covered by Underwriter Laboratories (UL) f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00278 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 279 1 standard 588, ‘Seasonal and Holiday Dec- 2 orative Products’.’’. 3 (B) COVERAGE.— 4 (i) IN GENERAL.—Section 322(a) of 5 the Energy Policy and Conservation Act 6 (42 U.S.C. 6292(a)) is amended— 7 (I) by redesignating paragraph 8 (20) as paragraph (24); and 9 (II) by inserting after paragraph 10 (19) the following: 11 ‘‘(20) Portable light fixtures.’’. 12 (ii) CONFORMING AMENDMENTS.— 13 Section 325(l) of the Energy Policy and 14 Conservation Act (42 U.S.C. 6295(l)) is 15 amended by striking ‘‘paragraph (19)’’ 16 each place it appears in paragraphs (1) 17 and (2) and inserting ‘‘paragraph (21)’’. 18 (C) TEST PROCEDURES.—Section 323(b) 19 of the Energy Policy and Conservation Act (42 20 U.S.C. 6293(b)) is amended by adding at the 21 end the following: 22 ‘‘(19) LED FIXTURES AND LED LIGHT EN- 23 GINES.—Test procedures for LED fixtures and LED 24 light engines shall be based on Illuminating Engi- 25 neering Society of North America (IESNA) test pro- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00279 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 280 1 cedure LM–79, Approved Method for Electrical and 2 Photometric Testing of Solid-State Lighting Devices, 3 and IESNA-approved test procedure for testing 4 LED light engines.’’. 5 (D) STANDARDS.—Section 325 of the En- 6 ergy Policy and Conservation Act (42 U.S.C. 7 6295) is amended— 8 (i) by redesignating subsection (ii) as 9 subsection (nn); 10 (ii) in subsection (nn)(2), as redesig- 11 nated in clause (i) of this subparagraph, by 12 striking ‘‘(hh)’’ each place it appears and 13 inserting ‘‘(mm)’’; and 14 (iii) by inserting after subsection (hh) 15 the following: 16 ‘‘(ii) PORTABLE LIGHT FIXTURES.— 17 ‘‘(1) IN GENERAL.—Subject to paragraphs (2) 18 and (3), portable light fixtures manufactured on or 19 after January 1, 2012, shall meet 1 or more of the 20 following requirements: 21 ‘‘(A) Be a fluorescent light fixture that 22 meets the requirements of the Energy Star Pro- 23 gram for Residential Light Fixtures, Version 24 4.2. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00280 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 281 1 ‘‘(B) Be equipped with only 1 or more 2 GU–24 line-voltage sockets, not be rated for 3 use with incandescent lamps of any type (as de- 4 fined in ANSI standards), and meet the re- 5 quirements of version 4.2 of the Energy Star 6 program for residential light fixtures. 7 ‘‘(C) Be an LED light fixture or a light 8 fixture with an LED light engine and comply 9 with the following minimum requirements: 10 ‘‘(i) Minimum light output: 200 11 lumens (initial). 12 ‘‘(ii) Minimum LED light engine effi- 13 cacy: 40 lumens/watt installed in fixtures 14 that meet the minimum light fixture effi- 15 cacy of 29 lumens/watt or, alternatively, a 16 minimum LED light engine efficacy of 60 17 lumens/watt for fixtures that do not meet 18 the minimum light fixture efficacy of 29 19 lumens/watt. 20 ‘‘(iii) All portable fixtures shall have a 21 minimum LED light fixture efficacy of 29 22 lumens/watt and a minimum LED light 23 engine efficacy of 60 lumens/watt by Janu- 24 ary 1, 2016. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00281 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 282 1 ‘‘(iv) Color Correlated Temperature 2 (CCT): 2700K through 4000K. 3 ‘‘(v) Minimum Color Rendering Index 4 (CRI): 75. 5 ‘‘(vi) Power factor equal to or greater 6 than 0.70. 7 ‘‘(vii) Portable luminaries that have 8 internal power supplies shall have zero 9 standby power when the luminaire is 10 turned off. 11 ‘‘(viii) LED light sources shall deliver 12 at least 70 percent of initial lumens for at 13 least 25,000 hours. 14 ‘‘(D)(i) Be equipped with an ANSI-des- 15 ignated E12, E17, or E26 screw-based socket 16 and be prepackaged and sold together with 1 17 screw-based compact fluorescent lamp or screw- 18 based LED lamp for each screw-based socket 19 on the portable light fixture. 20 ‘‘(ii) The compact fluorescent or LED 21 lamps prepackaged with the light fixture shall 22 be fully compatible with any light fixture con- 23 trols incorporated into the light fixture (for ex- 24 ample, light fixtures with dimmers shall be 25 packed with dimmable lamps). f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00282 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 283 1 ‘‘(iii) Compact fluorescent lamps pre- 2 packaged with light fixtures shall meet the re- 3 quirements of the Energy Star Program for 4 CFLs Version 4.0. 5 ‘‘(iv) Screw-based LED lamps shall comply 6 with the minimum requirements described in 7 subparagraph (C). 8 ‘‘(E) Be equipped with 1 or more single- 9 ended, non-screw based halogen lamp sockets 10 (line or low voltage), a dimmer control or high- 11 low control, and be rated for a maximum of 100 12 watts. 13 ‘‘(2) REVIEW.— 14 ‘‘(A) REVIEW.—The Secretary shall review 15 the criteria and standards established under 16 paragraph (1) to determine if revised standards 17 are technologically feasible and economically 18 justified. 19 ‘‘(B) COMPONENTS.—The review shall in- 20 clude consideration of— 21 ‘‘(i) whether a separate compliance 22 procedure is still needed for halogen fix- 23 tures described in subparagraph (E) and, 24 if necessary, what an appropriate standard 25 for halogen fixtures shall be; f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00283 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 284 1 ‘‘(ii) whether the specific technical cri- 2 teria described in subparagraphs (A), (C), 3 and (D)(iii) should be modified; and 4 ‘‘(iii) which fixtures should be exempt- 5 ed from the light fixture efficacy standard 6 as of January 1, 2016, because the fix- 7 tures are primarily decorative in nature (as 8 defined by the Secretary) and, even if ex- 9 empted, are likely to be sold in limited 10 quantities. 11 ‘‘(C) TIMING.— 12 ‘‘(i) DETERMINATION.—Not later 13 than January 1, 2014, the Secretary shall 14 publish amended standards, or a deter- 15 mination that no amended standards are 16 justified, under this subsection. 17 ‘‘(ii) STANDARDS.—Any standards 18 under this paragraph shall take effect on 19 January 1, 2016. 20 ‘‘(3) ART WORK LIGHT FIXTURES.—Art work 21 light fixtures manufactured on or after January 1, 22 2012, shall— 23 ‘‘(A) comply with paragraph (1); or 24 ‘‘(B)(i) contain only ANSI-designated E12 25 screw-based line-voltage sockets; f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00284 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 285 1 ‘‘(ii) have not more than 3 sockets; 2 ‘‘(iii) be controlled with an integral high/ 3 low switch; 4 ‘‘(iv) be rated for not more than 25 watts 5 if fitted with 1 socket; and 6 ‘‘(v) be rated for not more than 15 watts 7 per socket if fitted with 2 or 3 sockets. 8 ‘‘(4) EXCEPTION PREEMPTION.—Not- FROM 9 withstanding section 327, Federal preemption shall 10 not apply to a regulation concerning portable light 11 fixtures adopted by the California Energy Commis- 12 sion on or before January 1, 2014.’’. 13 (2) GU–24 BASE LAMPS.— 14 (A) DEFINITIONS.—Section 321 of the En- 15 ergy Policy and Conservation Act (42 U.S.C. 16 6291) (as amended by paragraph (1)(A)) is 17 amended by adding at the end the following: 18 ‘‘(72) GU–24.—The term ‘GU–24’ ’’ means the 19 designation of a lamp socket, based on a coding sys- 20 tem by the International Electrotechnical Commis- 21 sion, under which— 22 ‘‘(A) ‘G’ indicates a holder and socket type 23 with 2 or more projecting contacts, such as pins 24 or posts; f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00285 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 286 1 ‘‘(B) ‘U’ distinguishes between lamp and 2 holder designs of similar type that are not 3 interchangeable due to electrical or mechanical 4 requirements; and 5 ‘‘(C) 24 indicates the distance in millime- 6 ters between the electrical contact posts. 7 ‘‘(73) GU-24 ADAPTOR.— 8 ‘‘(A) IN GENERAL.—The term ‘GU-24 9 Adaptor’ means a 1-piece device, pig-tail, wiring 10 harness, or other such socket or base attach- 11 ment that— 12 ‘‘(i) connects to a GU-24 socket on 1 13 end and provides a different type of socket 14 or connection on the other end; and 15 ‘‘(ii) does not alter the voltage. 16 ‘‘(B) EXCLUSION.—The term ‘GU-24 17 Adaptor’ does not include a fluorescent ballast 18 with a GU–24 base. 19 ‘‘(74) GU–24 BASE LAMP.—‘GU–24 base lamp’ 20 means a light bulb designed to fit in a GU–24 sock- 21 et.’’. 22 (B) STANDARDS.—Section 325 of the En- 23 ergy Policy and Conservation Act (42 U.S.C. 24 6295) (as amended by paragraph (1)(D)) is f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00286 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 287 1 amended by inserting after subsection (ii) the 2 following: 3 ‘‘(jj) GU–24 BASE LAMPS.— 4 ‘‘(1) IN GENERAL.—A GU–24 base lamp shall 5 not be an incandescent lamp as defined by ANSI. 6 ‘‘(2) GU-24 ADAPTORS.—GU–24 adaptors shall 7 not adapt a GU–24 socket to any other line voltage 8 socket.’’. 9 (3) STANDARDS FOR CERTAIN INCANDESCENT 10 REFLECTOR LAMPS.—Section 325(i) of the Energy 11 Policy and Conservation Act (42 U.S.C. 6293(i)), as 12 amended by section 171(a)(12) of this Act, is 13 amended by adding at the end the following: 14 ‘‘(9) CERTAIN INCANDESCENT REFLECTOR 15 LAMPS.—(A) No later than 12 months after enact- 16 ment of this paragraph, the Secretary shall publish 17 a final rule establishing standards for incandescent 18 reflector lamp types described in paragraph (1)(C). 19 Such standards shall be effective on July 1, 2013. 20 ‘‘(B) Any rulemaking for incandescent reflector 21 lamps completed after enactment of this section 22 shall consider standards for all incandescent reflec- 23 tor lamps, inclusive of those specified in paragraph 24 (1)(C). f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00287 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 288 1 LAMPS.—No later than Jan- ‘‘(10) REFLECTOR 2 uary 1, 2015, the Secretary shall publish a final rule 3 establishing and amending standards for reflector 4 lamps, including incandescent reflector lamps. Such 5 standards shall be effective no sooner than three 6 years after publication of the final rule. Such rule- 7 making shall consider incandescent and non- 8 incandescent technologies. Such rulemaking shall 9 consider a new metric other than lumens-per-watt 10 based on the photometric distribution of light from 11 such lamps.’’. 12 SEC. 212. OTHER APPLIANCE EFFICIENCY STANDARDS. 13 (a) STANDARDS WATER DISPENSERS, HOT FOR 14 FOOD HOLDING CABINETS, PORTABLE ELECTRIC AND 15 SPAS.— 16 (1) DEFINITIONS.—Section 321 of the Energy 17 Policy and Conservation Act (42 U.S.C. 6291), as 18 amended by section 211 of this Act, is further 19 amended by adding at the end the following: 20 ‘‘(75) The term ‘water dispenser’ means a fac- 21 tory-made assembly that mechanically cools and 22 heats potable water and that dispenses the cooled or 23 heated water by integral or remote means. 24 ‘‘(76) The term ‘bottle-type water dispenser’ 25 means a drinking water dispenser designated for dis- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00288 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 289 1 pensing both hot and cold water that uses a remov- 2 able bottle or container as the source of potable 3 water. 4 ‘‘(77) The term ‘commercial hot food holding 5 cabinet’ means a heated, fully-enclosed compartment 6 with one or more solid or glass doors that is de- 7 signed to maintain the temperature of hot food that 8 has been cooked in a separate appliance. Such term 9 does not include heated glass merchandizing cabi- 10 nets, drawer warmers, commercial hot food holding 11 cabinets with interior volumes of less than 8 cubic 12 feet, or cook-and-hold appliances. 13 ‘‘(78) The term ‘portable electric spa’ means a 14 factory-built electric spa or hot tub, supplied with 15 equipment for heating and circulating water.’’. 16 (2) COVERAGE.—Section 322(a) of the Energy 17 Policy and Conservation Act (42 U.S.C. 6292(a)), as 18 amended by section 211(b)(1)(B) of this Act, is fur- 19 ther amended by inserting after paragraph (20) the 20 following new paragraphs: 21 ‘‘(21) Bottle type water dispensers. 22 ‘‘(22) Commercial hot food holding cabinets. 23 ‘‘(23) Portable electric spas.’’. 24 (3) TEST PROCEDURES.—Section 323(b) of the 25 Energy Policy and Conservation Act (42 U.S.C. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00289 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 290 1 6293(b)), as amended by section 211(b)(1)(C) of 2 this Act, is further amended by adding at the end 3 the following: 4 ‘‘(20) BOTTLE TYPE WATER DISPENSERS.— 5 Test procedures for bottle type water dispensers 6 shall be based on ‘Energy Star Program Require- 7 ments for Bottled Water Coolers version 1.1’ pub- 8 lished by the Environmental Protection Agency. 9 Units with an integral, automatic timer shall not be 10 tested using section 4D, ‘Timer Usage,’ of the test 11 criteria. 12 ‘‘(21) COMMERCIAL HOT FOOD HOLDING CABI- 13 NETS.—Test procedures for commercial hot food 14 holding cabinets shall be based on the test proce- 15 dures described in ANSI/ASTM F2140–01 (Test for 16 idle energy rate-dry test). Interior volume shall be 17 based on the method shown in the Environmental 18 Protection Agency’s ‘Energy Star Program Require- 19 ments for Commercial Hot Food Holding Cabinets’ 20 as in effect on August 15, 2003. 21 ‘‘(22) PORTABLE ELECTRIC SPAS.—Test proce- 22 dures for portable electric spas shall be based on the 23 test method for portable electric spas contained in 24 section 1604, title 20, California Code of Regula- 25 tions as amended on December 3, 2008. When the f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00290 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 291 1 American National Standards Institute publishes a 2 test procedure for portable electric spas, the Sec- 3 retary shall revise the Department of Energy’s pro- 4 cedure.’’. 5 (4) STANDARDS.—Section 325 of the Energy 6 Policy and Conservation Act (42 U.S.C. 6295), as 7 amended by section 211 of this Act, is further 8 amended by adding after subsection (jj) the fol- 9 lowing: 10 ‘‘(kk) BOTTLE TYPE WATER DISPENSERS.—Effec- 11 tive January 1, 2012, bottle-type water dispensers de- 12 signed for dispensing both hot and cold water shall not 13 have standby energy consumption greater than 1.2 kilo- 14 watt-hours per day. 15 ‘‘(ll) COMMERCIAL HOT FOOD HOLDING CABI- 16 NETS.—Effective January 1, 2012, commercial hot food 17 holding cabinets with interior volumes of 8 cubic feet or 18 greater shall have a maximum idle energy rate of 40 watts 19 per cubic foot of interior volume. 20 ‘‘(mm) PORTABLE ELECTRIC SPAS.—Effective Janu- 21 ary 1, 2012, portable electric spas shall not have a normal- 22 ized standby power greater than 5(V2⁄3 ) Watts where 23 V=the fill volume in gallons. 24 The Secretary of Energy shall consider revisions to the 25 standards in subsections (kk), (ll), and (mm) in accord- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00291 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 292 1 ance with subsection (o) and publish a final rule no later 2 than January 1, 2013 establishing such revised standards, 3 or make a finding that no revisions are technically feasible 4 and economically justified. Any such revised standards 5 shall take effect January 1, 2016.’’. 6 (b) COMMERCIAL FURNACE EFFICIENCY STAND- 7 ARDS.—Section 342(a) of the Energy Policy and Con- 8 servation Act (42 U.S.C. 6312(a)) is amended by inserting 9 after paragraph (10) the following new paragraph: 10 ‘‘(11) WARM AIR FURNACES.—Each warm air 11 furnace with an input rating of 225,000 Btu per 12 hour or more and manufactured after January 1, 13 2011, shall meet the following standard levels: 14 ‘‘(A) GAS-FIRED UNITS.— 15 ‘‘(i) Minimum thermal efficiency of 80 16 percent. 17 ‘‘(ii) Include an interrupted or inter- 18 mittent ignition device. 19 ‘‘(iii) Have jacket losses not exceeding 20 0.75 percent of the input rating. 21 ‘‘(iv) Have either power venting or a 22 flue damper. 23 ‘‘(B) OIL-FIRED UNITS.— 24 ‘‘(i) Minimum thermal efficiency of 81 25 percent. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00292 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 293 1 ‘‘(ii) Have jacket losses not exceeding 2 0.75 percent of the input rating. 3 ‘‘(iii) Have either power venting or a 4 flue damper.’’. 5 SEC. 213. APPLIANCE EFFICIENCY DETERMINATIONS AND 6 PROCEDURES. 7 (a) DEFINITION ENERGY CONSERVATION STAND- OF 8 ARD.—Section 321(6) of the Energy Policy and Conserva- 9 tion Act (42 U.S.C. 6291(6)) is amended to read as fol- 10 lows: 11 ‘‘(6) ENERGY CONSERVATION STANDARD.— 12 ‘‘(A) IN GENERAL.—The term ‘energy con- 13 servation standard’ means 1 or more perform- 14 ance standards that— 15 ‘‘(i) for covered products (excluding 16 clothes washers, dishwashers, showerheads, 17 faucets, water closets, and urinals), pre- 18 scribe a minimum level of energy efficiency 19 or a maximum quantity of energy use, de- 20 termined in accordance with test proce- 21 dures prescribed under section 323; 22 ‘‘(ii) for showerheads, faucets, water 23 closets, and urinals, prescribe a minimum 24 level of water efficiency or a maximum 25 quantity of water use, determined in ac- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00293 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 294 1 cordance with test procedures prescribed 2 under section 323; and 3 ‘‘(iii) for clothes washers and dish- 4 washers— 5 ‘‘(I) prescribe a minimum level of 6 energy efficiency or a maximum quan- 7 tity of energy use, determined in ac- 8 cordance with test procedures pre- 9 scribed under section 323; and 10 ‘‘(II) may include a minimum 11 level of water efficiency or a maximum 12 quantity of water use, determined in 13 accordance with those test procedures. 14 ‘‘(B) INCLUSIONS.—The term ‘energy con- 15 servation standard’ includes— 16 ‘‘(i) 1 or more design requirements, if 17 the requirements were established— 18 ‘‘(I) on or before the date of en- 19 actment of this subclause; 20 ‘‘(II) as part of a direct final rule 21 under section 325(p)(4); or 22 ‘‘(III) as part of a final rule pub- 23 lished on or after January 1, 2012, 24 and f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00294 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 295 1 ‘‘(ii) any other requirements that the 2 Secretary may prescribe under section 3 325(r). 4 ‘‘(C) EXCLUSION.—The term ‘energy con- 5 servation standard’ does not include a perform- 6 ance standard for a component of a finished 7 covered product, unless regulation of the com- 8 ponent is specifically authorized or established 9 pursuant to this title.’’. 10 (b) ADOPTING CONSENSUS TEST PROCEDURES AND 11 TEST PROCEDURES USE ELSEWHERE.—Section IN 12 323(b) of the Energy Policy and Conservation Act (42 13 U.S.C. 6293(b)), as amended by sections 211 and 212 of 14 this Act, is further amended by adding the following new 15 paragraph after paragraph (22): 16 ‘‘(23) CONSENSUS AND ALTERNATE TEST PRO- 17 CEDURES.— 18 ‘‘(A) RECEIPT OF JOINT RECOMMENDA- 19 TION OR ALTERNATE TESTING PROCEDURE.— 20 On receipt of— 21 ‘‘(i) a statement that is submitted 22 jointly by interested persons that are fairly 23 representative of relevant points of view 24 (including representatives of manufactur- 25 ers of covered products, States, and effi- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00295 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 296 1 ciency advocates), as determined by the 2 Secretary, and contains recommendations 3 with respect to the testing procedure for a 4 covered product; or 5 ‘‘(ii) a submission of a testing proce- 6 dure currently in use for a covered product 7 by a State, nation, or group of nations— 8 ‘‘(I) if the Secretary determines 9 that the recommended testing proce- 10 dure contained in the statement or 11 submission is in accordance with sub- 12 section (b)(3), the Secretary may 13 issue a final rule that establishes an 14 energy or water conservation testing 15 procedure that is published simulta- 16 neously with a notice of proposed rule- 17 making that proposes a new or 18 amended energy or water conservation 19 testing procedure that is identical to 20 the testing procedure established in 21 the final rule to establish the rec- 22 ommended testing procedure (referred 23 to in this paragraph as a ‘direct final 24 rule’); or f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00296 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 297 1 ‘‘(II) if the Secretary determines 2 that a direct final rule cannot be 3 issued based on the statement or sub- 4 mission, the Secretary shall publish a 5 notice of the determination, together 6 with an explanation of the reasons for 7 the determination. 8 ‘‘(B) PUBLIC COMMENT.—The Secretary 9 shall solicit public comment for a period of at 10 least 110 days with respect to each direct final 11 rule issued by the Secretary under subpara- 12 graph (A)(ii)(I). 13 ‘‘(C) WITHDRAWAL OF DIRECT FINAL 14 RULES.— 15 ‘‘(i) IN GENERAL.—Not later than 16 120 days after the date on which a direct 17 final rule issued under subparagraph 18 (A)(ii)(I) is published in the Federal Reg- 19 ister, the Secretary shall withdraw the di- 20 rect final rule if— 21 ‘‘(I) the Secretary receives 1 or 22 more adverse public comments relat- 23 ing to the direct final rule under sub- 24 paragraph (B)or any alternative joint 25 recommendation; and f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00297 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 298 1 ‘‘(II) based on the rulemaking 2 record relating to the direct final rule, 3 the Secretary determines that such 4 adverse public comments or alter- 5 native joint recommendation may pro- 6 vide a reasonable basis for with- 7 drawing the direct final rule under 8 paragraph (3) or any other applicable 9 law. 10 ‘‘(ii) ACTION ON WITHDRAWAL.—On 11 withdrawal of a direct final rule under 12 clause (i), the Secretary shall— 13 ‘‘(I) proceed with the notice of 14 proposed rulemaking published simul- 15 taneously with the direct final rule as 16 described in subparagraph (A)(ii)(I); 17 and 18 ‘‘(II) publish in the Federal Reg- 19 ister the reasons why the direct final 20 rule was withdrawn. 21 ‘‘(iii) TREATMENT OF WITHDRAWN DI- 22 RECT FINAL RULES.—A direct final rule 23 that is withdrawn under clause (i) shall 24 not be considered to be a final rule for 25 purposes of subsection (b). f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00298 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 299 1 OF PARAGRAPH.—Nothing ‘‘(D) EFFECT 2 in this paragraph authorizes the Secretary to 3 issue a direct final rule based solely on receipt 4 of more than 1 statement containing rec- 5 ommended test procedures relating to the direct 6 final rule.’’. 7 (c) UPDATING TELEVISION TEST METHODS.—Sec- 8 tion 323(b) of the Energy Policy and Conservation Act 9 (42 U.S.C. 6293(b)), as amended by sections 211 and 212 10 of this Act, and subsection (b) of this section, is further 11 amended by adding at the end the following new para- 12 graph: 13 ‘‘(24) TELEVISIONS.—(A) On the date of enact- 14 ment of this section, Appendix H to Subpart B of 15 Part 430 of the United States Code of Federal Reg- 16 ulations, ‘Uniform Test Method for Measuring the 17 Energy Consumption of Television Sets’, is repealed. 18 ‘‘(B) No later than 12 months after enactment 19 of this paragraph the Secretary shall publish in the 20 Federal Register a final rule prescribing a new test 21 method for televisions.’’. 22 (d) CRITERIA PRESCRIBING NEW AMENDED FOR OR 23 STANDARDS.—(1) Section 325(o)(2)(B)(i) of the Energy 24 Policy and Conservation Act (42 U.S.C. 6295(o)(2)(B)(i)) 25 is amended as follows: f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00299 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 300 1 (A) By striking ‘‘and’’ at the end of subclause 2 (VI). 3 (B) By and inserting the following new sub- 4 clauses after subclause (VI): 5 ‘‘(VII) the estimated value of the carbon dioxide 6 or other emission reductions that will be achieved by 7 virtue of the higher energy efficiency of the covered 8 products resulting from the imposition of the stand- 9 ard; 10 ‘‘(VIII) the estimated impact of standards for a 11 particular product on average consumer energy 12 prices; 13 ‘‘(IX) the increased energy efficiency that may 14 be attributable to the installation of Smart Grid 15 technologies or capabilities in the covered products, 16 if applicable in the determination of the Secretary; 17 ‘‘(X) the availability in the United States or in 18 other nations of examples or prototypes of covered 19 products that achieve significantly higher efficiency 20 standards for energy or for water; and’’. 21 (C) By redesignating subclause (VII) as sub- 22 clause (XI). 23 (2) Section 325(o)(2)(B)(iii) of such Act is amended 24 as follows: 25 (A) By striking ‘‘three’’ and inserting ‘‘5’’. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00300 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 301 1 (B) By inserting after the first sentence the fol- 2 lowing ‘‘For products with an average expected use- 3 ful life of less than 5 years, such rebuttable pre- 4 sumption shall be determined utilizing 75 percent of 5 the product’s average expected useful life as a multi- 6 plier instead of 5.’’. 7 (C) By striking the last sentence and inserting 8 the following: ‘‘Such a presumption may be rebutted 9 only if the Secretary finds, based on clear, con- 10 vincing, and reliable evidence, that— 11 ‘‘(I) such standard level would cause serious 12 and unavoidable hardship to the average consumer 13 of the product, or to manufacturers supplying a sig- 14 nificant portion of the market for the product, that 15 substantially outweighs the standard level’s benefits; 16 ‘‘(II) the standard and implementing regula- 17 tions cannot be designed to avoid or mitigate the 18 hardship identified under subparagraph (I), through 19 the adoption of regional standards consistent with 20 paragraph (6) of this subsection, or other reasonable 21 means consistent with this chapter; 22 ‘‘(III) the same or substantially similar hard- 23 ship would not occur under a standard adopted in 24 the absence of the presumption, but that otherwise 25 meets the requirements of this section; and f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00301 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 302 1 ‘‘(IV) the hardship cannot be avoided or miti- 2 gated pursuant the procedures specified in section 3 504 of the Department of Energy Organization Act 4 (42 U.S.C. 7194). 5 A determination by the Secretary that the criteria trig- 6 gering such presumption are not met, or that the criterion 7 for rebutting the presumption are met shall not be taken 8 into consideration in the Secretary’s determination of 9 whether a standard is economically justified.’’. 10 (e) OBTAINING APPLIANCE INFORMATION FROM 11 MANUFACTURERS.—Section 326(d) of the Energy Policy 12 and Conservation Act (42 U.S.C. 6295(d)) is amended to 13 read as follows: 14 ‘‘(d) INFORMATION REQUIREMENTS.—(1) For pur- 15 poses of carrying out this part, the Secretary shall publish 16 proposed regulations not later than one year after the date 17 of enactment of the American Clean Energy and Security 18 Act of 2009, and after receiving public comment, final reg- 19 ulations not later than 18 months from such date of enact- 20 ment under this part or other provision of law adminis- 21 tered by the Secretary, which shall require each manufac- 22 turer of a covered product to submit information or re- 23 ports to the Secretary on an annual basis in a form adopt- 24 ed by the Secretary. Such reports shall include informa- 25 tion or data with respect to— f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00302 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 303 1 ‘‘(A) the manufacturers’ compliance with all re- 2 quirements applicable pursuant to this part; 3 ‘‘(B) the economic impact of any proposed en- 4 ergy conservation standard; 5 ‘‘(C) the manufacturers’ annual shipments of 6 each class or category of covered products, orga- 7 nized, to the maximum extent practicable, by— 8 ‘‘(i) energy efficiency, energy use, and, if 9 applicable, water use; 10 ‘‘(ii) the presence or absence of such effi- 11 ciency related or energy consuming operational 12 characteristics or components as the Secretary 13 determines are relevant for the purposes of car- 14 rying out this part; and 15 ‘‘(iii) the State or regional location of sale, 16 for covered products for which the Secretary 17 may adopt regional standards; and 18 ‘‘(D) such other categories of information as 19 the Secretary deems relevant to carry out this part, 20 including such other information as may be nec- 21 essary to establish and revise test procedures, label- 22 ing rules, and energy conservation standards and to 23 insure compliance with the requirements of this 24 part. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00303 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 304 1 ‘‘(2) In adopting regulations under this subsection, 2 the Secretary shall consider existing public sources of in- 3 formation, including nationally recognized certification 4 programs of trade associations. 5 ‘‘(3) The Secretary shall exercise authority under this 6 section in a manner designed to minimize unnecessary 7 burdens on manufacturers of covered products. 8 ‘‘(4) To the extent that they do not conflict with the 9 duties of the Secretary in carrying out this part, the provi- 10 sions of section 11(d) of the Energy Supply and Environ- 11 mental Coordination Act of 1974 (15 U.S.C. 796(d)) shall 12 apply with respect to information obtained under this sub- 13 section to the same extent and in the same manner as 14 they apply with respect to other energy information ob- 15 tained under such section.’’. 16 (f) STATE WAIVER.—Section 327(c) of the Energy 17 Policy and Conservation Act (42 U.S.C. 6297(c)), as 18 amended by section 171(a)(19) of this Act, is further 19 amended by adding at the end the following: 20 ‘‘(12) is a regulation concerning standards for 21 hot food holding cabinets, drinking water dispensers 22 and portable electric spas adopted by the California 23 Energy Commission on or before January 1, 2013.’’. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00304 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 305 1 FEDERAL PREEMPTION.—Paragraph (g) WAIVER OF 2 (1) of section 327(d) of the Energy Policy and Conserva- 3 tion Act (42 U.S.C. 6297(d)) is amended as follows: 4 (1) In subparagraph (A) by striking ‘‘State reg- 5 ulation’’ each place it appears and inserting ‘‘State 6 statute or regulation’’. 7 (2) In subparagraph (B) by adding at the end 8 the following new sentence: ‘‘In making such a find- 9 ing, the Secretary may not reject a petition for fail- 10 ure of the petitioning State or river basin commis- 11 sion to produce confidential information maintained 12 by any manufacturer or distributor, or group or as- 13 sociation of manufacturers or distributors, and 14 which the petitioning party does not have the legal 15 right to obtain.’’. 16 (3) In clause (ii) of subparagraph (C) by strik- 17 ing ‘‘costs’’ each place it appears and inserting ‘‘es- 18 timated costs’’. 19 (4) In subparagraph (C) by striking ‘‘within the 20 context of the State’s energy plan and forecast, 21 and,’’. 22 (h) INCLUSION CARBON OUTPUT APPLIANCE OF ON 23 ‘‘ENERGYGUIDE’’ LABELS.—(1) Section 324(a)(2) of the 24 Energy Policy and Conservation Act (42 U.S.C. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00305 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 306 1 6294(a)(2)) is amended by adding the following at the 2 end: 3 ‘‘(I)(i) Not later than 90 days after the 4 date of enactment of this subparagraph, the 5 Commission shall initiate a rulemaking to im- 6 plement the additional labeling requirements 7 specified in subsection (c)(1)(C) of this section 8 with an effective date for the revised labeling 9 requirement not later than 12 months from 10 issuance of the final rule. 11 ‘‘(ii) Not later than 24 months after the 12 date of enactment of this subparagraph, the 13 Commission shall complete the rulemaking initi- 14 ated under clause (i). 15 ‘‘(iii) Not later than 90 days after issuance 16 of the final rule as provided in this subpara- 17 graph, the Secretary shall issue calculation 18 methods required to effectuate the labeling re- 19 quirements specified in subsection (c)(1)(C) of 20 this section.’’. 21 (2) Section 324(c)(1) of the Energy Policy and 22 Conservation Act (42 U.S.C. 6294(c)(1)) is amend- 23 ed— 24 (A) by striking ‘‘and’’ at the end of sub- 25 paragraph (A); f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00306 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 307 1 (B) by striking the period at the end of 2 subparagraph (B); and 3 (C) by adding at the end the following new 4 subparagraphs: 5 ‘‘(C) for products or groups of products 6 providing a comparable function (including the 7 group of products comprising the heating func- 8 tion of heat pumps and furnaces) among cov- 9 ered products listed in paragraphs (3), (4), (5), 10 (8), (9), (10), and (11) of section 322(a) of this 11 part, and others designated by the Secretary, 12 the estimated total annual atmospheric carbon 13 dioxide emissions (or their equivalent in other 14 greenhouse gases) associated with, or caused 15 by, the product, calculated utilizing— 16 ‘‘(i) national average energy use for 17 the product including energy consumed at 18 the point of end use based on test proce- 19 dures developed under section 323 of this 20 part; 21 ‘‘(ii) national average energy con- 22 sumed or lost in the production, genera- 23 tion, transportation, storage, and distribu- 24 tion of energy to the point of end use; and f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00307 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 308 1 ‘‘(iii) any direct emissions of green- 2 house gases from the product during nor- 3 mal use; 4 ‘‘(D) in determining the national average 5 energy consumption and total annual atmos- 6 pheric carbon dioxide emissions, the Secretary 7 shall utilize Federal Government sources, in- 8 cluding the Energy Information Administration 9 Annual Energy Review, the Environmental Pro- 10 tection Agency eGRID data base, Environ- 11 mental Protection Agency AP–42 Emission 12 Factors as amended, and other sources deter- 13 mined to be appropriate by the Secretary; and 14 ‘‘(E) information presenting, for each 15 product (or group of products providing the 16 comparable function) identified in section 17 (c)(1)(C) of this section, the estimated annual 18 carbon dioxide emissions calculated within the 19 range of emissions calculated for all models of 20 the product or group according to its function, 21 including those models consuming fuels and 22 those models not consuming fuels.’’. 23 (i) PERMITTING STATES SEEK INJUNCTIVE EN- TO 24 FORCEMENT.—Section 334 of the Energy Policy and Con- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00308 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 309 1 servation Act (42 U.S.C. 6304(a)) is amended to read as 2 follows: 3 ‘‘SEC. 334. JURISDICTION AND VENUE. 4 ‘‘(a) JURISDICTION.—The United States district 5 courts shall have jurisdiction to restrain— 6 ‘‘(1) any violation of section 332; and 7 ‘‘(2) any person from distributing in commerce 8 any covered product which does not comply with an 9 applicable rule under section 324 or 325. 10 ‘‘(b) AUTHORITY.—Any action referred to in sub- 11 section (a) shall be brought by the Commission or by the 12 attorney general of a State in the name of the State, ex- 13 cept that— 14 ‘‘(1) any such action to restrain any violation of 15 section 332(a)(3) which relates to requirements pre- 16 scribed by the Secretary or any violation of section 17 332(a)(4) which relates to request of the Secretary 18 under section 326(b)(2) shall be brought by the Sec- 19 retary; and 20 ‘‘(2) any violation of section 332(a)(5) or 21 332(a)(7) shall be brought by the Secretary or by 22 the attorney general of a State in the name of the 23 State. 24 ‘‘(c) VENUE SERVICE PROCESS.—Any such AND OF 25 action may be brought in the United States district court f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00309 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 310 1 for a district wherein any act, omission, or transaction 2 constituting the violation occurred, or in such court of the 3 district wherein the defendant is found or transacts busi- 4 ness. In any action under this section, process may be 5 served on a defendant in any other district in which the 6 defendant resides or may be found.’’. 7 (j) TREATMENT APPLIANCES WITHIN BUILDING OF 8 CODES.—(1) Section 327(f)(3) of the Energy Policy and 9 Conservation Act (42 U.S.C. 6297(f)(3)) is amended by 10 striking subparagraphs (B) through (E) and inserting the 11 following: 12 ‘‘(B) The code meets at least one of the 13 following requirements: 14 ‘‘(i) The code does not require that 15 the covered product have an energy effi- 16 ciency exceeding— 17 ‘‘(I) the applicable energy con- 18 servation standard established in or 19 prescribed under section 325; 20 ‘‘(II) the level required by a reg- 21 ulation of that State for which the 22 Secretary has issued a rule granting a 23 waiver under subsection (d) of this 24 section; or f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00310 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 311 1 ‘‘(III) the required level estab- 2 lished in the International Energy 3 Conservation Code or in a standard of 4 the American Society of Heating, Re- 5 frigerating and Air-Conditioning En- 6 gineers, or by the Secretary pursuant 7 to section 304 of the Energy Con- 8 servation and Production Act. 9 ‘‘(ii) If the code uses one or more 10 baseline building designs against which all 11 submitted building designs are to be evalu- 12 ated and such baseline building designs 13 contain a covered product subject to an en- 14 ergy conservation standard established in 15 or prescribed under section 325, the base- 16 line building designs are based on an effi- 17 ciency level for such covered product which 18 meets but does not exceed one of the levels 19 specified in clause (i). 20 ‘‘(iii) If the code sets forth one or 21 more optional combinations of items which 22 meet the energy consumption or conserva- 23 tion objective, in at least one combination 24 that the State has found to be reasonably 25 achievable using commercially available f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00311 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 312 1 technologies the efficiency of the covered 2 product meets but does not exceed one of 3 the levels specified in clause (i). 4 ‘‘(C) The credit to the energy consumption 5 or conservation objective allowed by the code for 6 installing covered products having energy effi- 7 ciencies exceeding one of the levels specified in 8 subparagraph (B)(i) is on a one-for-one equiva- 9 lent energy use or equivalent energy cost basis, 10 taking into account the typical lifetime of the 11 product. 12 ‘‘(D) The energy consumption or conserva- 13 tion objective is specified in terms of an esti- 14 mated total consumption of energy (which may 15 be calculated from energy loss- or gain-based 16 codes) utilizing an equivalent amount of energy 17 (which may be specified in units of energy or its 18 equivalent cost) and equivalent lifetimes. 19 ‘‘(E) The estimated energy use of any cov- 20 ered product permitted or required in the code, 21 or used in calculating the objective, is deter- 22 mined using the applicable test procedures pre- 23 scribed under section 323, except that the State 24 may permit the estimated energy use calcula- 25 tion to be adjusted to reflect the conditions of f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00312 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 313 1 the areas where the code is being applied if 2 such adjustment is based on the use of the ap- 3 plicable test procedures prescribed under sec- 4 tion 323 or other technically accurate docu- 5 mented procedure.’’. 6 (2) Section 327(f)(4)(B) of the Energy Policy 7 and Conservation Act (42 U.S.C. 6297(f)(4)(B)) is 8 amended to read as follows: 9 ‘‘(B) If a building code requires the instal- 10 lation of covered products with efficiencies ex- 11 ceeding the levels and requirements specified in 12 paragraph (3)(B), such requirement of the 13 building code shall not be applicable unless the 14 Secretary has granted a waiver for such re- 15 quirement under subsection (d) of this sec- 16 tion.’’. 17 SEC. 214. BEST-IN-CLASS APPLIANCES DEPLOYMENT PRO- 18 GRAM. 19 (a) IN GENERAL.—Not later than 1 year after the 20 date of enactment of this Act, the Secretary of Energy, 21 in consultation with the Administrator, shall establish a 22 program to be known as the ‘‘Best-in-Class Appliances 23 Deployment Program’’ to— 24 (1) provide bonus payments to retailers or dis- 25 tributors under subsection (c) for sales of best-in- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00313 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 314 1 class high-efficiency household appliance models, 2 high-efficiency installed building equipment, and 3 high-efficiency consumer electronics, with the goal of 4 reducing life-cycle costs for consumers, encouraging 5 innovation, and maximizing energy savings and pub- 6 lic benefit; 7 (2) provide bounties under subsection (d) to re- 8 tailers for the replacement, retirement, and recycling 9 of old, inefficient, and environmentally harmful 10 products; and 11 (3) provide premium awards under subsection 12 (e) to manufacturers for developing and producing 13 new Superefficient Best-in-Class Products. 14 (b) DESIGNATION BEST-IN-CLASS PRODUCT OF 15 MODELS.— 16 (1) IN GENERAL.—The Secretary of Energy 17 shall designate product models of appliances, equip- 18 ment, or electronics as Best-in-Class Product mod- 19 els. The Secretary shall publicly announce the Best- 20 in-Class Product models designated under this sub- 21 section. The Secretary shall define product classes 22 broadly and, except as provided in paragraph (2), 23 shall designate as Best-in-Class Product models no 24 more than the most efficient 10 percent of the com- 25 mercially available product models in a class that f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00314 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 315 1 demonstrate, as a group, a distinctly greater energy 2 efficiency than the average energy efficiency of that 3 class of appliances, equipment, or electronics. In des- 4 ignating models, the Secretary shall— 5 (A) identify commercially available models 6 in the relevant class of products; 7 (B) identify the subgroup of those models 8 that share the distinctly higher energy-effi- 9 ciency characteristics that warrant designation 10 as best-in-class; and 11 (C) add other models in that class to the 12 list of Best-in-Class Product models as they 13 demonstrate their ability to meet the higher-ef- 14 ficiency characteristics on which the designation 15 was made. 16 (2) PERCENTAGE EXCEPTION.—If there are 17 fewer than 10 product models in a class of products, 18 the Secretary may designate one or more of such 19 models as Best-in-Class Products. 20 (3) REVIEW OF BEST-IN-CLASS STANDARDS.— 21 The Secretary shall review annually the product-spe- 22 cific criteria for designating, and the product models 23 that qualify as, Best-in-Class Products and, after 24 notice and a 30-day comment period, make upwards 25 adjustments in the efficiency criteria as necessary to f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00315 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 316 1 maintain an appropriate ratio of such product mod- 2 els to the total number of product models in the 3 product class. 4 (c) BONUSES SALES BEST-IN-CLASS PROD- FOR OF 5 UCTS.— 6 (1) IN GENERAL.—The Secretary of Energy 7 shall make bonus payments to retailers or, as pro- 8 vided in paragraph (5)(B), distributors for the sale 9 of Best-in-Class Products. 10 (2) BONUS PROGRAM.—The Secretary shall— 11 (A) publicly announce the availability and 12 amount of the bonus to be paid for each sale 13 of a Best-in-Class Product of a model des- 14 ignated under subsection (b); and 15 (B) make bonus payments in at least that 16 amount for each Best-in-Class Product of that 17 model sold during the 3-year period beginning 18 on the date the model is designated under sub- 19 section (b). 20 (3) UPGRADE OF BEST-IN-CLASS PRODUCT ELI- 21 GIBILITY.—In conducting a review under subsection 22 (b)(3), the Secretary shall— 23 (A) consider designating as a Best-in-Class 24 Product model a Superefficient Best-in-Class f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00316 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 317 1 Product model that has been designated pursu- 2 ant to subsection (e); 3 (B) announce any change in the bonus 4 payment as necessary to increase the market 5 share of Best-in-Class Product models; 6 (C) list models that will be eligible for bo- 7 nuses in the new amount; and 8 (D) continue paying bonus payments at 9 the original level, for the sale of any models 10 that previously qualified as Best-in-Class Prod- 11 ucts but do not qualify at the new level, for the 12 remainder of the 3-year period announced with 13 the original designation. 14 (4) SIZE OF INDIVIDUAL BONUS PAYMENTS.— 15 (A) The size of each bonus payment under this sub- 16 section shall be the product of— 17 (i) an amount determined by the Sec- 18 retary; and 19 (ii) the difference in energy consump- 20 tion between the Best-in-Class Product 21 and the average product in the product 22 class. 23 (B) The Secretary shall determine the amount 24 under subparagraph (A)(i) for each product type, in 25 consultation with State and utility efficiency pro- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00317 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 318 1 gram administrators as well as the Administrator, 2 based on estimates of the amount of bonus payment 3 that would provide significant incentive to increase 4 the market share of Best-in-Class Products. 5 (5) ELIGIBLE RECIPIENT.—(A) The BONUS 6 Secretary shall ensure that not more than 1 bonus 7 payment is provided under this subsection for each 8 Best-in-Class Product. 9 (B) The Secretary may make distributors eligi- 10 ble to receive bonus payments under this subsection 11 for sales that are not to the final end-user, to the 12 extent that the Secretary determines that for a par- 13 ticular product category distributors are well situ- 14 ated to increase sales of Best-in-Class Products. 15 (d) BOUNTIES REPLACEMENT, RETIREMENT, FOR 16 RECYCLING EXISTING LOW-EFFICIENCY PROD- AND OF 17 UCTS.— 18 (1) IN GENERAL.—The Secretary of Energy 19 shall make bounty payments to retailers for the re- 20 placement, retirement, and recycling of older oper- 21 ating low-efficiency products that might otherwise 22 continue in operation. 23 (2) BOUNTIES.—Bounties shall be payable upon 24 documentation that the sale of a Best-in-Class Prod- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00318 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 319 1 uct was accompanied by the replacement, retirement, 2 and recycling of— 3 (A) an inefficient but still-functioning 4 product; or 5 (B) a nonfunctioning product containing a 6 refrigerant, 7 by the consumer to whom the Best-in-Class Product 8 was sold. 9 (3) AMOUNT.— 10 (A) FUNCTIONING PRODUCTS.—The boun- 11 ty payment payable under this subsection for a 12 product described in paragraph (2)(A) shall be 13 based on the difference between the estimated 14 energy use of the product replaced and the en- 15 ergy use of an average new product in the prod- 16 uct class, over the estimated remaining lifetime 17 of the product that was replaced. 18 (B) NONFUNCTIONING CON- PRODUCTS 19 TAINING REFRIGERANTS.—The bounty payment 20 payable under this subsection for a product de- 21 scribed in paragraph (2)(B) shall be in the 22 amount that the Secretary of Energy, in con- 23 sultation with the Administrator, determines is 24 sufficient to promote the recycling of such prod- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00319 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 320 1 ucts, up to the amount of bounty for a com- 2 parable product described in paragraph (2)(A). 3 (4) RETIREMENT.—The Secretary shall ensure 4 that no product for which a bounty is paid under 5 this subsection is returned to active service, but that 6 it is instead destroyed, and recycled to the extent 7 feasible. 8 (5) RECYCLING APPLIANCES CONTAINING RE- 9 FRIGERANTS.—The Secretary shall ensure that 10 standards for environmentally responsible methods 11 of recycling established by the Administrator pursu- 12 ant to section 608 of the Clean Air Act are employed 13 before a bounty payment is made under this sub- 14 section for a product containing a refrigerant. Noth- 15 ing in this section shall be interpreted to alter the 16 requirements of section 608 of the Clean Air Act or 17 to relieve any person from complying with those re- 18 quirements. 19 (e) PREMIUM AWARDS DEVELOPMENT FOR AND 20 PRODUCTION OF SUPEREFFICIENT BEST-IN-CLASS PROD- 21 UCTS.— 22 (1) IN GENERAL.—(A) The Secretary of Energy 23 shall provide premium awards to manufacturers for 24 the development and production of Superefficient 25 Best-in-Class Products. The Secretary shall set and f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00320 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 321 1 periodically revise standards for eligibility of prod- 2 ucts for designation as a Superefficient Best-in- 3 Class Product. 4 (B) The Secretary may establish a standard for 5 a Superefficient Best-in-Class Product even if no 6 product meeting that standard exists, if the Sec- 7 retary has reasonable grounds to conclude that a 8 mass-producible product could be made to meet that 9 standard. 10 (C) The Secretary may also establish a Super- 11 efficient Best-in-Class Product standard that is met 12 by one or more existing Best-in-Class Product mod- 13 els, if those product models have distinct energy effi- 14 ciency attributes and performance characteristics 15 that make them significantly better than other prod- 16 uct models qualifying as best-in-class. The Secretary 17 may not designate as Superefficient Best-in-Class 18 Products under this subparagraph models that rep- 19 resent more than 10 percent of the currently quali- 20 fying Best-in-Class Product models. 21 (2) PREMIUM AWARDS.—(A) The premium 22 award payment provided to a manufacturer under 23 this subsection shall be in addition to any bonus 24 payments made under subsection (c). f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00321 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 322 1 (B) The amount of the premium award paid 2 per unit of Superefficient Best-in-Class Products 3 sold to retailers or distributors shall be the product 4 of— 5 (i) an amount determined by the Sec- 6 retary; and 7 (ii) the difference in energy consumption 8 between the Superefficient Best-in-Class Prod- 9 uct and the average product in the product 10 class. 11 (C) The Secretary shall determine the amount 12 under subparagraph (B)(i) for each product type, in 13 consultation with State and utility efficiency pro- 14 gram administrators as well as the Administrator, 15 based on consideration of the present value to the 16 Nation of the energy (and water or other resources 17 or inputs) saved over the useful life of the product. 18 The Secretary may also take into consideration the 19 methods used to increase sales of qualifying prod- 20 ucts in determining such amount. 21 (D) The Secretary may adjust the value de- 22 scribed in subparagraph (C) upward or downward as 23 appropriate, including based on the effect of the pre- 24 mium awards on the sales of products in different f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00322 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 323 1 classes that may be affected by the program under 2 this subsection. 3 (E) Premium award payments shall be applied 4 to sales of any Superefficient Best-in-Class Product 5 for the first 3 years after designation as a Supereffi- 6 cient Best-in-Class Product. 7 (3) COORDINATION OF INCENTIVES.—No prod- 8 uct for which Federal tax credit is received under 9 section 45M of the Internal Revenue Code of 1986 10 shall be eligible to receive premium award payments 11 pursuant to this subsection. 12 (f) REPORTING.—The Secretary of Energy shall re- 13 quire, as a condition of receiving a bonus, bounty, or pre- 14 mium award under this section, that a report containing 15 the following documentation be provided: 16 (1) For retailers and distributors, the number 17 of units sold within each product type, and model- 18 specific wholesale purchase prices and retail sale 19 prices, on a monthly basis. 20 (2) For manufacturers, model-specific energy 21 consumption data. 22 (3) For manufacturers, on an immediate basis, 23 information concerning any product design or func- 24 tion changes that affect the energy consumption of 25 the unit. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00323 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 324 1 (4) The methods used to increase the sales of 2 qualifying products. 3 (g) MONITORING VERIFICATION PROTOCOLS.— AND 4 The Secretary of Energy shall establish monitoring and 5 verification protocols for energy consumption tests for 6 each product model and for sales of energy-efficient mod- 7 els. 8 (h) DISCLOSURE.—The Secretary of Energy may re- 9 quire that retailers and distributors disclose publicly and 10 to consumers their participation in the program under this 11 section. 12 (i) COST-EFFECTIVENESS REQUIREMENT.— 13 (1) REQUIREMENT.—The Secretary of Energy 14 shall make cost-effectiveness a top priority in design- 15 ing the program under, and administering, this sec- 16 tion, except that the cost-effectiveness of providing 17 premium awards to manufacturers under subsection 18 (e), in aggregate, may be lower by this measure than 19 that of the bonuses and bounties to retailers and 20 distributors under subsections (c) and (d). 21 (2) DEFINITIONS.—In this subsection: 22 (A) COST-EFFECTIVENESS.—The term 23 ‘‘cost-effectiveness’’ means a measure of aggre- 24 gate savings in the cost of energy over the life- 25 time of a product in relation to the cost to the f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00324 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 325 1 Secretary of the bonuses, bounties, and pre- 2 mium awards provided under this section for a 3 product. 4 (B) SAVINGS.—The term ‘‘savings’’ means 5 the cumulative megawatt-hours of electricity or 6 million British thermal units of other fuels 7 saved by a product during the projected useful 8 life of the product, in comparison to projected 9 energy consumption of the average product in 10 the same class, taking into consideration the 11 impact of any documented measures to replace, 12 retire, and recycle low-efficiency products at the 13 time of purchase of highly-efficient substitutes. 14 (j) DEFINITIONS.—In this section— 15 (1) the term ‘‘distributor’’ mean an individual, 16 organization, or company that sells products in mul- 17 tiple lots and not directly to end-users; 18 (2) the term ‘‘retailer’’ means an individual, or- 19 ganization, or company that sells products directly 20 to end-users; and 21 (3) the term ‘‘Superefficient Best-in-Class 22 Product’’ means a product that— 23 (A) can be mass produced; and 24 (B) achieves the highest level of efficiency 25 that the Secretary of Energy finds can, given f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00325 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 326 1 the current state of technology, be produced 2 and sold commercially to mass-market con- 3 sumers. 4 (k) AUTHORIZATION APPROPRIATIONS.—There OF 5 are authorized to be appropriated $300,000,000 for each 6 of the fiscal years 2010 through 2014 to the Secretary 7 of Energy for purposes of this section, of which not more 8 than 10 percent for any fiscal year may be expended on 9 program administration. 10 SEC. 215. PURPOSE OF ENERGY STAR. 11 Section 324A of the Energy Policy and Conservation 12 Act (42 U.S.C. 6294a) is amended— 13 (1) by redesignating subsections (b) through (d) 14 as subsections (c) through (e), respectively; and 15 (2) by inserting after subsection (a) the fol- 16 lowing new subsection: 17 ‘‘(b) PURPOSE.—The purpose of the Energy Star 18 program for products is to assist consumers in selecting 19 products for purchase that have demonstrated high energy 20 efficiency and that are cost-effective from the consumer’s 21 perspective, ensuring that any incremental cost attrib- 22 utable to the energy-efficient features of such products will 23 be more than recovered in the value of energy savings the 24 products will make possible within several years of pur- 25 chase, typically within 3 years but no more than 5 years.’’. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00326 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 327 Subtitle C—Transportation 1 Efficiency 2 3 SEC. 221. EMISSIONS STANDARDS. 4 (a) MOTOR VEHICLE STANDARDS.—The President 5 shall use statutory authorities in effect on the day before 6 the date of enactment of this section to set motor vehicle 7 standards that— 8 (1) are achievable by the automobile manufac- 9 turing companies; 10 (2) to the extent practicable, harmonize stand- 11 ards that may be set by the National Highway Traf- 12 fic Safety Administration pursuant to the authority 13 in chapter 329 of title 49, United States Code, 14 standards that may be set by the Administrator of 15 the Environmental Protection Agency pursuant to 16 the authority in the Clean Air Act, and standards 17 that have or may be set by the State of California; 18 (3) achieve at least as much emissions reduc- 19 tions as would be achieved by implementation of the 20 California law AB 1493 if enforced in the State of 21 California and the other States that have adopted 22 the standard; and 23 (4) do not preempt California’s legal authority 24 to adopt and enforce its own mobile source emissions 25 standards. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00327 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 328 1 (b) GREENHOUSE GAS EMISSION STANDARDS FOR 2 MOBILE SOURCES.—Title VIII of the Clean Air Act, as 3 added by section 331 of this Act, is amended by inserting 4 after part A the following new part: 5 ‘‘PART B—MOBILE SOURCES 6 ‘‘SEC. 821. GREENHOUSE GAS EMISSION STANDARDS FOR 7 MOBILE SOURCES. 8 ‘‘(a) MOTOR VEHICLES AND ENGINES.— 9 ‘‘(1) Pursuant to section 202(a)(1), by Decem- 10 ber 31, 2010, the Administrator shall promulgate 11 standards applicable to emissions of greenhouse 12 gases from new heavy-duty vehicles and engines, ex- 13 cluding such vehicles covered by the Tier II stand- 14 ards (as established by the Administrator as of the 15 date of enactment of this section). The Adminis- 16 trator may revise these standards from time to time. 17 ‘‘(2) Regulations issued under section 202(a)(1) 18 applicable to emissions of greenhouse gases from 19 new heavy-duty vehicles and engines, excluding such 20 vehicles covered by the Tier II standards (as estab- 21 lished by the Administrator as of the date of enact- 22 ment of this section), shall contain standards that 23 achieve the greatest degree of emissions reduction 24 achievable based on the application of technology 25 which the Administrator determines will be available f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00328 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 329 1 at the time such standards take effect, taking into 2 consideration cost, energy, and safety factors associ- 3 ated with the application of such technology. Any 4 such regulations shall take effect after such period 5 as the Administrator finds necessary to permit the 6 development and application of the requisite tech- 7 nology. 8 ‘‘(b) NONROAD VEHICLES AND ENGINES.— 9 ‘‘(1) Pursuant to section 213(a)(4), the Admin- 10 istrator shall promulgate standards applicable to 11 emissions of greenhouse gases from new marine ves- 12 sels and locomotives, and from new engines used in 13 marine vessels and locomotives, by December 31, 14 2012. The Administrator shall also promulgate 15 standards applicable to emissions of greenhouse 16 gases for such other classes and categories of 17 nonroad vehicles and engines as the Administrator 18 determines appropriate and in the timeframe the 19 Administrator determines appropriate. The Adminis- 20 trator shall base such determination, among other 21 factors, on the relative contribution of greenhouse 22 gas emissions, and the costs for achieving reduc- 23 tions, from such classes or categories of new 24 nonroad engines and vehicles. The Administrator 25 may revise these standards from time to time. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00329 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 330 1 ‘‘(2) Standards under section 213(a)(4) applica- 2 ble to emissions of greenhouse gases from new ma- 3 rine vessels and locomotives, and from new engines 4 used in marine vessels and locomotives, shall achieve 5 the greatest degree of emissions reduction achievable 6 based on the application of technology which the Ad- 7 ministrator determines will be available at the time 8 such standards take effect, taking into consideration 9 cost, energy, and safety factors associated with the 10 application of such technology. Any such regulations 11 shall take effect after such period as the Adminis- 12 trator finds necessary to permit the development and 13 application of the requisite technology. 14 ‘‘(3) For purposes of this section and standards 15 under section 213(a)(4) applicable to emissions of 16 greenhouse gases, the term ‘nonroad engines and ve- 17 hicles’ shall include non-internal combustion engines 18 and the vehicles these engines power (such as elec- 19 tric engines and electric vehicles), for those non-in- 20 ternal combustion engines and vehicles which would 21 be in the same category and have the same uses as 22 nonroad engines and vehicles that are powered by in- 23 ternal combustion engines. 24 ‘‘(c) AIRCRAFT AND AIRCRAFT ENGINES.— f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00330 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 331 1 ‘‘(1) Pursuant to section 231(a), the Adminis- 2 trator shall promulgate standards applicable to emis- 3 sions of greenhouse gases from new aircraft and new 4 engines used in aircraft by December 31, 2012. Not- 5 withstanding any requirement in section 231(a), the 6 Administrator shall also promulgate standards appli- 7 cable to emissions of greenhouse gases from other 8 classes and categories of aircraft and aircraft en- 9 gines for such classes and categories as the Adminis- 10 trator determines appropriate and in the timeframe 11 the Administrator determines appropriate. The Ad- 12 ministrator may revise these standards from time to 13 time. 14 ‘‘(2) Standards under section 231(a) applicable 15 to emissions of greenhouse gases from new aircraft 16 and new engines used in aircraft, and any later revi- 17 sions or additional standards, shall achieve the 18 greatest degree of emissions reduction achievable 19 based on the application of technology which the Ad- 20 ministrator determines will be available at the time 21 such standards take effect, taking into consideration 22 cost, energy, and safety factors associated with the 23 application of such technology. Any such standards 24 shall take effect after such period as the Adminis- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00331 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 332 1 trator finds necessary to permit the development and 2 application of the requisite technology. 3 ‘‘(d) AVERAGING, BANKING, TRADING EMIS- AND OF 4 CREDITS.—In establishing standards applicable to SIONS 5 emissions of greenhouse gases pursuant to this section and 6 sections 202(a), 213(a)(4), and 231(a), the Administrator 7 may establish provisions for averaging, banking, and trad- 8 ing of greenhouse gas emissions credits within or across 9 classes or categories of motor vehicles and motor vehicle 10 engines, nonroad vehicles and engines (including marine 11 vessels), and aircraft and aircraft engines, to the extent 12 the Administrator determines appropriate and considering 13 the factors appropriate in setting standards under those 14 sections. Such provisions may include reasonable and ap- 15 propriate provisions concerning generation, banking, trad- 16 ing, duration, and use of credits. 17 ‘‘(e) REPORTS.—The Administrator shall, from time 18 to time, submit a report to Congress that projects the 19 amount of greenhouse gas emissions from the transpor- 20 tation sector, including transportation fuels, for the years 21 2030 and 2050, based on the standards adopted under 22 this section.’’. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00332 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 333 1 SEC. 222. GREENHOUSE GAS EMISSIONS REDUCTIONS 2 THROUGH TRANSPORTATION EFFICIENCY. 3 Title VIII of the Clean Air Act, as added by section 4 331 of this Act, is further amended by inserting after part 5 C the following new part: 6 ‘‘PART D—PLANNING REQUIREMENTS 7 ‘‘SEC. 841. GREENHOUSE GAS EMISSIONS REDUCTIONS 8 THROUGH TRANSPORTATION EFFICIENCY. 9 ‘‘(a) IN GENERAL.—Each State shall— 10 ‘‘(1) not later than 3 years after the date of en- 11 actment of this section, submit to the Administrator 12 goals for transportation-related greenhouse gas 13 emissions reductions; and 14 ‘‘(2) as part of each transportation plan or 15 transportation improvement program developed 16 under title 23 or title 49, United States Code, en- 17 sure that a plan to achieve such goals, or an up- 18 dated version of such a plan, is submitted to the Ad- 19 ministrator and to the Secretary of Transportation 20 (in this section referred to as the ‘Secretary’) by 21 each metropolitan planning organization in the State 22 for an area with a population exceeding 200,000. 23 ‘‘(b) MODELS AND METHODOLOGIES.— 24 ‘‘(1) IN GENERAL.—The Administrator shall 25 promulgate regulations to establish standards for 26 use in developing goals, plans, and strategies under f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00333 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 334 1 this section and for monitoring progress toward such 2 goals. Such standards shall include— 3 ‘‘(A) data collection techniques for assess- 4 ing State and regional transportation-related 5 greenhouse gas emissions; 6 ‘‘(B) methodologies for determining trans- 7 portation-related greenhouse gas emissions 8 baselines; 9 ‘‘(C) models and methodologies for sce- 10 nario analysis; and 11 ‘‘(D) models and methodologies for esti- 12 mating transportation-related greenhouse gas 13 emissions reductions from the strategies consid- 14 ered under this section. 15 Such regulations may approve or improve existing 16 models and methodologies 17 ‘‘(2) TIMING.—The Administrator shall— 18 ‘‘(A) publish proposed regulations under 19 paragraph (1) not later than 1 year after the 20 date of enactment of this section; and 21 ‘‘(B) promulgate final regulations under 22 paragraph (1) not later than 2 years after such 23 date of enactment. 24 ‘‘(3) ASSESSMENT.—At least every 6 years 25 after promulgating final regulations under para- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00334 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 335 1 graph (1), the Administrator, in coordination with 2 the Secretary, shall assess current and projected 3 progress in reducing transportation-related green- 4 house gas emissions. The assessment shall examine 5 the contributions to emissions reductions attrib- 6 utable to improvements in vehicle efficiency, green- 7 house gas performance of transportation fuels, and 8 increased efficiency in utilizing transportation sys- 9 tems. 10 ‘‘(c) GREENHOUSE GAS REDUCTION GOALS.— 11 ‘‘(1) CONSULTATION.—Each State shall develop 12 the goals referred to in subsection (a)(1)— 13 ‘‘(A) in concurrence with State agencies re- 14 sponsible for air quality and transportation; 15 ‘‘(B) in consultation with each metropoli- 16 tan planning organization for an area in the 17 State with a population exceeding 200,000 and 18 applicable local air quality and transportation 19 agencies; and 20 ‘‘(C) with public involvement, including 21 public comment periods and meetings. 22 ‘‘(2) PERIOD.—The goals referred to in sub- 23 section (a)(1) shall be for 4-, 10-, and 20-year peri- 24 ods. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00335 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 336 1 ‘‘(3) TARGETS; DESIGNATED YEAR.—The goals 2 referred to in subsection (a)(1) shall establish tar- 3 gets to reduce transportation-related greenhouse gas 4 emissions in the covered area. The targets shall be 5 designed to ensure that the levels of such emissions 6 stabilize and decrease after a designated year. The 7 State shall consider designating 2010 as such des- 8 ignated year. 9 ‘‘(4) COVERED AREA.—The goals referred to in 10 subsection (a)(1)— 11 ‘‘(A) shall be established on a statewide 12 basis; 13 ‘‘(B) shall be established for each metro- 14 politan planning organization in the State for 15 an area with a population exceeding 200,000; 16 and 17 ‘‘(C) may be established on a voluntary 18 basis, in accordance with the provisions of this 19 section, for any metropolitan planning organiza- 20 tion not described in subparagraph (B). 21 ‘‘(5) REVISED GOALS.—Every 4 years, each 22 State shall update and revise, as appropriate, the 23 goals referred to in subsection (a)(1). 24 ‘‘(d) PLANNING.—A plan submitted under subsection 25 (a)(2) shall— f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00336 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 337 1 ‘‘(1) be based upon the models and methodolo- 2 gies established by the Administrator under sub- 3 section (b); 4 ‘‘(2) use transportation and land use scenario 5 analysis to address transportation-related green- 6 house gas emissions and economic development im- 7 pacts; and 8 ‘‘(3) be developed— 9 ‘‘(A) with public involvement, including 10 public comment periods and meetings which 11 provide opportunities for comment from a vari- 12 ety of stakeholders based on age, race, income, 13 and disability; 14 ‘‘(B) with regional coordination, including 15 with respect to— 16 ‘‘(i) metropolitan planning organiza- 17 tions; 18 ‘‘(ii) the localities comprising the met- 19 ropolitan planning organization; 20 ‘‘(iii) the State in which the metro- 21 politan planning organization is located; 22 and 23 ‘‘(iv) air quality, environmental 24 health, and transportation agencies for the 25 State and region involved; and f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00337 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 338 1 ‘‘(C) in consultation with the State and 2 local housing, public health, economic develop- 3 ment, land use, environment, and public trans- 4 portation agencies. 5 ‘‘(e) STRATEGIES.—In developing goals under sub- 6 section (a)(1) and a plan under subsection (a)(2), the 7 State or metropolitan planning organization, as applicable, 8 shall consider transportation and land use planning strate- 9 gies to reduce transportation-related greenhouse gas emis- 10 sions, including the following: 11 ‘‘(1) Efforts to increase or improve public 12 transportation, including— 13 ‘‘(A) new public transportation systems, 14 including new commuter rail systems; 15 ‘‘(B) expansion of existing public transpor- 16 tation systems; 17 ‘‘(C) employer-based subsidies; 18 ‘‘(D) cleaner locomotive technologies; and 19 ‘‘(E) quality of service improvements, in- 20 cluding improved frequency of service. 21 ‘‘(2) Updates to zoning and other land use reg- 22 ulations and plans to support development that— 23 ‘‘(A) coordinates transportation and land 24 use planning; f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00338 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 339 1 ‘‘(B) focuses future growth close to exist- 2 ing and planned job centers and public facili- 3 ties; 4 ‘‘(C) uses existing infrastructure; 5 ‘‘(D) promotes walking, bicycling, and pub- 6 lic transportation use; and 7 ‘‘(E) mixes land uses such as housing, re- 8 tail, and schools. 9 ‘‘(3) Implementation of a policy (referred to as 10 a ‘complete streets policy’) that— 11 ‘‘(A) ensures adequate accommodation of 12 all users of transportation systems, including 13 pedestrians, bicyclists, public transportation 14 users, motorists, children, the elderly, and indi- 15 viduals with disabilities; and 16 ‘‘(B) adequately addresses the safety and 17 convenience of all users of the transportation 18 system. 19 ‘‘(4) Construction of bicycle and pedestrian in- 20 frastructure facilities, including facilities that im- 21 prove the connections with networks that provide ac- 22 cess to human services, employment, schools, and re- 23 tail. 24 ‘‘(5) Projects to promote telecommuting, flexi- 25 ble work schedules, or satellite work centers. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00339 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 340 1 ‘‘(6) Pricing measures, including tolling, con- 2 gestion pricing, and pay-as-you-drive insurance. 3 ‘‘(7) Intermodal freight system strategies, in- 4 cluding enhanced rail services, short sea shipping, 5 and other strategies. 6 ‘‘(8) Parking policies. 7 ‘‘(9) Intercity rail service, including high speed 8 rail. 9 ‘‘(10) Travel demand management projects. 10 ‘‘(11) Restriction of the use of certain roads, or 11 lanes, by vehicles other than passenger buses and 12 high-occupancy vehicles. 13 ‘‘(12) Reduction of vehicle idling, including 14 idling associated with freight management, construc- 15 tion, transportation, and commuter operations. 16 ‘‘(13) Policies to encourage the use of retrofit 17 technologies and early replacement of vehicles, en- 18 gines and equipment to reduce transportation-re- 19 lated greenhouse gas emissions from existing mobile 20 sources. 21 ‘‘(14) Other projects that the Administrator 22 finds reduce transportation-related greenhouse gas 23 emissions. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00340 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 341 1 ‘‘(f) PUBLIC AVAILABILITY.—The Administrator 2 shall publish, including by posting on the Environmental 3 Protection Agency’s website— 4 ‘‘(1) the goals and plans submitted under sub- 5 section (a); and 6 ‘‘(2) for each plan submitted under subsection 7 (a)(2), an analysis of the anticipated effects of the 8 plan on greenhouse gas emissions and oil consump- 9 tion. 10 ‘‘(g) CERTIFICATION.—The Administrator, in con- 11 sultation with the Secretary, shall certify a State or metro- 12 politan planning organization greenhouse gas reduction 13 plan submitted under subsection (a)(2) if the plan’s imple- 14 mentation is likely to meet the corresponding greenhouse 15 gas reduction goal referred to in subsection (a)(1). If the 16 Administrator, in consultation with the Secretary, deter- 17 mines that a submitted plan cannot be certified, the State 18 or metropolitan planning organization shall revise and re- 19 submit the plan within 1 year. 20 ‘‘(h) ENFORCEMENT.—If the Administrator finds 21 that a State has failed to submit goals under subsection 22 (a)(1), has failed to ensure the submission of a plan under 23 subsection (a)(2), or has failed to submit a revised plan 24 under subsection (g), for any area in the State (irrespec- 25 tive of whether the area is a nonattainment area), the Ad- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00341 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 342 1 ministrator shall impose a prohibition in accordance with 2 section 179(b)(1) applicable to the area within 2 years of 3 such a finding. The Administrator may not impose a pro- 4 hibition under the preceding sentence, and no action may 5 be brought by the Administrator or any other entity alleg- 6 ing a violation of this section, based on the content or ade- 7 quacy of a goal or plan submitted under subsection (a)(1) 8 or (a)(2) or failure to achieve the goal submitted under 9 subsection (a)(1). 10 ‘‘(i) COMPETITIVE GRANTS.— 11 ‘‘(1) GRANTS.—The Administrator, in consulta- 12 tion with the Secretary, may— 13 ‘‘(A) award grants to support activities re- 14 lated to improving data collection, modeling, 15 and monitoring systems to assess transpor- 16 tation-related greenhouse gas emissions and the 17 effects of plans, policies, and strategies ref- 18 erenced in this section; 19 ‘‘(B) award grants to States and metro- 20 politan planning organizations for the develop- 21 ment of goals and plans to be submitted under 22 sections (a)(1) or (a)(2); and 23 ‘‘(C) award grants, on a competitive basis, 24 to implement plans certified under subsection 25 (g) or elements thereof, provided that each f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00342 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 343 1 project thus funded includes a measurement 2 and evaluation component that meets the regu- 3 lations promulgated under subsection (b). 4 ‘‘(2) PRIORITY.—In making grants under para- 5 graph (1)(C), the Administrator shall give priority to 6 applicants based upon— 7 ‘‘(A) the amount of total greenhouse gas 8 emissions to be reduced as a result of imple- 9 mentation of a certified plan, within the covered 10 area, as determined by methods established 11 under subsection (b); and 12 ‘‘(B) the amount of per capita greenhouse 13 gas emissions to be reduced as a result of im- 14 plementation of a certified plan, within the cov- 15 ered area, as determined by methods estab- 16 lished under subsection (b); 17 ‘‘(C) the cost effectiveness, in terms of dol- 18 lars per tons of greenhouse gas reductions, to 19 be achieved as a result of the implementation of 20 a certified plan; 21 ‘‘(D) the potential for both short- and 22 long-term reductions; and 23 ‘‘(E) such other factors as the Adminis- 24 trator determines appropriate. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00343 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 344 1 OF APPROPRIATIONS.— ‘‘(3) AUTHORIZATION 2 To carry out this subsection, there are authorized to 3 be appropriated such sums as may be necessary. 4 ‘‘(j) DEFINITIONS.—In this section: 5 ‘‘(1) The term ‘metropolitan planning organiza- 6 tion’ means a metropolitan planning organization, as 7 such term is used in section 176. 8 ‘‘(2) The term ‘scenario analysis’ means an 9 analysis that is conducted by identifying different 10 trends and making projections based on those trends 11 to develop a range of scenarios and estimates of how 12 each scenario could improve access to goods and 13 services, including access to employment, education, 14 and health care (especially for elderly and economi- 15 cally disadvantaged communities), and could affect 16 rates of— 17 ‘‘(A) vehicle miles traveled; 18 ‘‘(B) vehicle hours traveled; 19 ‘‘(C) use of mobile source fuel by type, in- 20 cluding electricity; and 21 ‘‘(D) transportation-related greenhouse gas 22 emissions. 23 ‘‘(k) LAND USE AUTHORITY.—Nothing in this sec- 24 tion may be construed to— f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00344 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 345 1 ‘‘(1) infringe upon the existing authority of 2 State or local governments to plan or control land 3 use; or 4 ‘‘(2) provide or transfer authority over land use 5 to any other entity.’’. 6 SEC. 223. SMARTWAY TRANSPORTATION EFFICIENCY PRO- 7 GRAM. 8 Part B of title VIII of the Clean Air Act, as added 9 by section 221 of this Act is amended by adding after sec- 10 tion 821 the following section: 11 ‘‘SEC. 822. SMARTWAY TRANSPORTATION EFFICIENCY PRO- 12 GRAM. 13 ‘‘(a) IN GENERAL.—There is established within the 14 Environmental Protection Agency a SmartWay Transport 15 Program to quantify, demonstrate, and promote the bene- 16 fits of technologies, products, fuels, and operational strate- 17 gies that reduce petroleum consumption, air pollution, and 18 greenhouse gas emissions from the mobile source sector. 19 ‘‘(b) GENERAL DUTIES.—Under the program estab- 20 lished under this section, the Administrator shall carry out 21 each of the following: 22 ‘‘(1) Development of measurement protocols to 23 evaluate the energy consumption and greenhouse gas 24 impacts from technologies and strategies in the mo- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00345 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 346 1 bile source sector, including those for passenger 2 transport and goods movement. 3 ‘‘(2) Development of qualifying thresholds for 4 certifying, verifying, or designating energy-efficient, 5 low-greenhouse gas SmartWay technologies and 6 strategies for each mode of passenger transportation 7 and goods movement. 8 ‘‘(3) Development of partnership and recogni- 9 tion programs to promote best practices and drive 10 demand for energy-efficient, low-greenhouse gas 11 transportation performance. 12 ‘‘(4) Promotion of the availability of, and en- 13 couragement of the adoption of, SmartWay certified 14 or verified technologies and strategies, and publica- 15 tion of the availability of financial incentives, such 16 as assistance from loan programs and other Federal 17 and State incentives. 18 ‘‘(c) SMARTWAY TRANSPORT FREIGHT PARTNER- 19 SHIP.—The Administrator shall establish a SmartWay 20 Transport Partnership program with shippers and carriers 21 of goods to promote energy-efficient, low-greenhouse gas 22 transportation. In carrying out such partnership, the Ad- 23 ministrator shall undertake each of the following: 24 ‘‘(1) Certification of the energy and greenhouse 25 gas performance of participating freight carriers, in- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00346 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 347 1 cluding those operating rail, trucking, marine, and 2 other goods movement operations. 3 ‘‘(2) Publication of a comprehensive energy and 4 greenhouse gas performance index of freight modes 5 (including rail, trucking, marine, and other modes of 6 transporting goods) and individual freight companies 7 so that shippers can choose to deliver their goods 8 more efficiently. 9 ‘‘(3) Development of tools for— 10 ‘‘(A) carriers to calculate their energy and 11 greenhouse gas performance; and 12 ‘‘(B) shippers to calculate the energy and 13 greenhouse gas impacts of moving their prod- 14 ucts and to evaluate the relative impacts from 15 transporting their goods by different modes and 16 corporate carriers. 17 ‘‘(4) Provision of recognition opportunities for 18 participating shipper and carrier companies dem- 19 onstrating advanced practices and achieving superior 20 levels of greenhouse gas performance. 21 ‘‘(d) IMPROVING FREIGHT GREENHOUSE GAS PER- 22 DATABASES.—The Administrator shall, in co- FORMANCE 23 ordination with other appropriate agencies, define and col- 24 lect data on the physical and operational characteristics 25 of the Nation’s truck population, with special emphasis on f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00347 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 348 1 data related to energy efficiency and greenhouse gas per- 2 formance to inform the performance index published 3 under subsection (c)(2) of this section, and other means 4 of goods transport as necessary, at least every 5 years. 5 ‘‘(e) ESTABLISHMENT FINANCING PROGRAM.— OF 6 The Administrator shall establish a SmartWay Financing 7 Program to competitively award funding to eligible entities 8 identified by the Administrator in accordance with the 9 program requirements in subsection (g). 10 ‘‘(f) PURPOSE.—Under the SmartWay Financing 11 Program, eligible entities shall— 12 ‘‘(1) use funds awarded by the Administrator to 13 provide flexible loan and lease terms that increase 14 approval rates or lower the costs of loans and leases 15 in accordance with guidance developed by the Ad- 16 ministrator; and 17 ‘‘(2) make such loans and leases available to 18 public and private entities for the purpose of adopt- 19 ing low-greenhouse gas technologies or strategies for 20 the mobile source sector that are designated by the 21 Administrator. 22 ‘‘(g) PROGRAM REQUIREMENTS.—The Administrator 23 shall determine program design elements and require- 24 ments, including— f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00348 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 349 1 ‘‘(1) the type of financial mechanism with 2 which to award funding, in the form of grants or 3 contracts; 4 ‘‘(2) the designation of eligible entities to re- 5 ceive funding, including State, tribal, and local gov- 6 ernments, regional organizations comprised of gov- 7 ernmental units, nonprofit organizations, or for-prof- 8 it companies; 9 ‘‘(3) criteria for evaluating applications from el- 10 igible entities, including anticipated— 11 ‘‘(A) cost-effectiveness of loan or lease pro- 12 gram on a metric-ton-of-greenhouse gas-saved- 13 per-dollar basis; 14 ‘‘(B) ability to promote the loan or lease 15 program and associated technologies and strate- 16 gies to the target audience; and 17 ‘‘(4) reporting requirements for entities that re- 18 ceive awards, including— 19 ‘‘(A) actual cost-effectiveness and green- 20 house gas savings from the loan or lease pro- 21 gram based on a methodology designated by the 22 Administrator; 23 ‘‘(B) the total number of applications and 24 number of approved applications; and f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00349 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 350 1 ‘‘(C) terms granted to loan and lease re- 2 cipients compared to prevailing market prac- 3 tices. 4 ‘‘(h) AUTHORIZATION APPROPRIATIONS.—Such OF 5 sums as necessary are authorized to be appropriated to 6 the Administrator to carry out this section.’’. 7 SEC. 224. STATE VEHICLE FLEETS. 8 Section 507(o) of the Energy Policy Act of 1992 (42 9 U.S.C. 13257) is amended by adding the following new 10 paragraph at the end thereof: 11 ‘‘(3) The Secretary shall revise the rules under this 12 subsection with respect to the types of alternative fueled 13 vehicles required for compliance with this subsection to en- 14 sure those rules are consistent with any guidance issued 15 pursuant to section 303 of this Act.’’. Subtitle D—Industrial Energy 16 Efficiency Programs 17 18 SEC. 241. INDUSTRIAL PLANT ENERGY EFFICIENCY STAND- 19 ARDS. 20 The Secretary of Energy shall continue to support 21 the development of the American National Standards In- 22 stitute (ANSI) voluntary industrial plant energy efficiency 23 certification program, pending International Standards 24 Organization (ISO) consensus standard 50001, and other 25 related ANSI/ISO standards. In addition, the Department f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00350 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 351 1 shall undertake complementary activities through the De- 2 partment of Energy’s Industry Technologies Program that 3 support the voluntary implementation of such standards 4 by manufacturing firms. There are authorized to be appro- 5 priated to the Secretary such sums as are necessary to 6 carry out these activities. The Secretary shall report to 7 Congress on the status of standards development and 8 plans for further standards development pursuant to this 9 Section by not later than 18 months after the date of en- 10 actment of this Act, and shall prepare a second such re- 11 port 18 months thereafter. 12 SEC. 242. ELECTRIC AND THERMAL WASTE ENERGY RECOV- 13 ERY AWARD PROGRAM. 14 (a) ELECTRIC THERMAL WASTE ENERGY RE- AND 15 AWARDS.—The Secretary of Energy shall estab- COVERY 16 lish a program to make monetary awards to the owners 17 and operators of new and existing electric energy genera- 18 tion facilities or thermal energy production facilities using 19 fossil or nuclear fuel, to encourage them to use innovative 20 means of recovering any thermal energy that is a poten- 21 tially useful byproduct of electric power generation or 22 other processes to— 23 (1) generate additional electric energy; or 24 (2) make sales of thermal energy not used for 25 electric generation, in the form of steam, hot water, f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00351 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 352 1 chilled water, or desiccant regeneration, or for other 2 commercially valid purposes. 3 (b) AMOUNT OF AWARDS.— 4 (1) ELIGIBILITY.—Awards shall be made under 5 subsection (a) only for the use of innovative means 6 that achieve net energy efficiency at the facility con- 7 cerned significantly greater than the current stand- 8 ard technology in use at similar facilities. 9 (2) AMOUNT.—The amount of an award made 10 under subsection (a) shall equal an amount up to 11 the value of 25 percent of the energy projected to be 12 recovered or generated during the first 5 years of 13 operation of the facility using the innovative energy 14 recovery method, or such lesser amount that the 15 Secretary determines to be the minimum amount 16 that can cost-effectively stimulate such innovation. 17 (3) LIMITATION.—No person may receive an 18 award under this section if a grant under the waste 19 energy incentive grant program under section 373 of 20 the Energy Policy and Conservation Act (42 U.S.C. 21 6343) is made for the same energy savings resulting 22 from the same innovative method. 23 (c) REGULATORY STATUS.—The Secretary of Energy 24 shall— f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00352 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 353 1 (1) assist State regulatory commissions to iden- 2 tify and make changes in State regulatory programs 3 for electric utilities to provide appropriate regulatory 4 status for thermal energy byproduct businesses of 5 regulated electric utilities to encourage those utilities 6 to enter businesses making the sales referred to in 7 subsection (a)(2); and 8 (2) encourage self-regulated utilities to enter 9 businesses making the sales referred to in subsection 10 (a)(2). 11 (d) ELIGIBILITY FOR SEED LOANS.—Owners and op- 12 erators of electric energy generation and thermal energy 13 production facilities shall be eligible for SEED Fund loans 14 under subtitle D of title I to provide initial capital for en- 15 tering into businesses involving sales referred to in sub- 16 section (a)(2). 17 (e) AUTHORIZATION APPROPRIATIONS.—There OF 18 are authorized to be appropriated to the Secretary of En- 19 ergy such sums as are necessary for the purposes of this 20 section. 21 SEC. 243. CLARIFYING ELECTION OF WASTE HEAT RECOV- 22 ERY FINANCIAL INCENTIVES. 23 Section 373(e) of the Energy Policy and Conservation 24 Act (42 U.S.C. 6343(e)) is amended— f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00353 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 354 1 (1) by striking ‘‘that qualifies for’’ and insert- 2 ing ‘‘who elects to claim’’; and 3 (2) by inserting ‘‘from that project’’ after ‘‘for 4 waste heat recovery’’. Subtitle E—Improvements in En- 5 ergy Savings Performance Con- 6 tracting 7 8 SEC. 251. ENERGY SAVINGS PERFORMANCE CONTRACTS. 9 (a) COMPETITION REQUIREMENTS TASK DE - FOR OR 10 ORDERS UNDER ENERGY SAVINGS PERFORM- LIVERY 11 CONTRACTS.— ANCE 12 (1) COMPETITION REQUIREMENTS.—Subsection 13 (a) of section 801 of the National Energy Conserva- 14 tion Policy Act (42 U.S.C. 8287(a)) is amended by 15 adding at the end the following paragraph: 16 ‘‘(3)(A) The head of a Federal agency may 17 issue a task or delivery order under an energy sav- 18 ings performance contract by— 19 ‘‘(i) notifying all contractors that have re- 20 ceived an award under such contract that the 21 agency proposes to discuss energy savings per- 22 formance services for some or all of its facili- 23 ties, soliciting an expression of interest in per- 24 forming site surveys or investigations and feasi- 25 bility designs and studies and the submission of f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00354 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 355 1 qualifications from such contractors, and in- 2 cluding in such notice summary information 3 concerning energy use for any facilities that the 4 agency has specific interest in including in such 5 contract; 6 ‘‘(ii) reviewing all expressions of interest 7 and qualifications submitted pursuant to the 8 notice under clause (i); 9 ‘‘(iii) selecting two or more contractors 10 (from among those reviewed under clause (ii)) 11 to conduct discussions concerning the contrac- 12 tors’ respective qualifications to implement po- 13 tential energy conservation measures, including 14 requesting references demonstrating experience 15 on similar efforts and the resulting energy sav- 16 ings of such similar efforts; 17 ‘‘(iv) selecting and authorizing— 18 ‘‘(I) more than one contractor (from 19 among those selected under clause (iii)) to 20 conduct site surveys, investigations, feasi- 21 bility designs and studies or similar assess- 22 ments for the energy savings performance 23 contract services (or for discrete portions 24 of such services), for the purpose of allow- 25 ing each such contractor to submit a firm, f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00355 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 356 1 fixed-price proposal to implement specific 2 energy conservation measures; or 3 ‘‘(II) one contractor (from among 4 those selected under clause (iii)) to conduct 5 a site survey, investigation, a feasibility de- 6 sign and study or similar for the purpose 7 of allowing the contractor to submit a 8 firm, fixed-price proposal to implement 9 specific energy conservation measures; 10 ‘‘(v) negotiating a task or delivery order 11 for energy savings performance contracting 12 services with the contractor or contractors se- 13 lected under clause (iv) based on the energy 14 conservation measures identified.; and 15 ‘‘(vi) issuing a task or delivery order for 16 energy savings performance contracting services 17 to such contractor or contractors. 18 ‘‘(B) The issuance of a task or delivery order 19 for energy savings performance contracting services 20 pursuant to subparagraph (A) is deemed to satisfy 21 the task and delivery order competition requirements 22 in section 2304c(d) of title 10, United States Code, 23 and section 303J(d) of the Federal Property and 24 Administrative Services Act of 1949 (41 U.S.C. 25 253j(d)). f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00356 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 357 1 ‘‘(C) The Secretary may issue guidance as nec- 2 essary to agencies issuing task or delivery orders 3 pursuant to subparagraph (A).’’. 4 (2) EFFECTIVE DATE.—The amendment made 5 by paragraph (1) is inapplicable to task or delivery 6 orders issued before the date of enactment of this 7 section. 8 (b) INCLUSION THERMAL RENEWABLE EN- OF 9 ERGY.—Section 203 of the Energy Policy Act of 2005 (42 10 U.S.C. 15852) is amended— 11 (1) in subsection (a), by striking ‘‘electric’’; and 12 (2) in subsection (b)(2), by inserting ‘‘or ther- 13 mal’’ after ‘‘means electric’’. 14 (c) CREDIT RENEWABLE ENERGY PRODUCED FOR 15 USED SITE.—Subsection (c) of section 203 of the AND ON 16 Energy Policy Act of 2005 (42 U.S.C. 15852) is amended 17 to read as follows: 18 ‘‘(c) CALCULATION.—Renewable energy produced at 19 a Federal facility, on Federal lands, or on Indian lands 20 (as defined in title XXVI of the Energy Policy Act of 1992 21 (25 U.S.C. 3501 et seq.)), shall be calculated separately 22 from renewable energy consumed at a Federal facility, and 23 each may be used to comply with the consumption require- 24 ment under subsection (a).’’. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00357 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 358 1 (d) FINANCING FLEXIBILITY.—Section 801(a)(2)(F) 2 of the National Energy Conservation Policy Act (42 3 U.S.C. 8287(a)(2)(F)), as so redesignated by subsection 4 (b)(1) of this section, is amended by striking ‘‘In’’ and 5 inserting ‘‘Notwithstanding any other provision of law, 6 in’’. Subtitle F—Public Institutions 7 8 SEC. 261. PUBLIC INSTITUTIONS. 9 Section 399A of the Energy Policy and Conservation 10 Act (42 U.S.C. 6371h–1) is amended— 11 (1) in subsection (a)(5), by striking ‘‘or a des- 12 ignee’’ and inserting ‘‘a not-for-profit hospital or 13 not-for-profit inpatient health care facility, or a des- 14 ignated agent’’; 15 (2) in subsection (c)(1), by striking subpara- 16 graph (C); 17 (3) in subsection (f)(3)(A), by striking 18 ‘‘$1,000,000’’ and inserting ‘‘$2,500,000’’; and 19 (4) in subsection (i)(1), by striking 20 ‘‘$250,000,000 for each of fiscal years 2009 through 21 2013’’ and inserting ‘‘such sums as may be nec- 22 essary for each of fiscal years 2010 through 2015’’. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00358 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 359 1 SEC. 262. COMMUNITY ENERGY EFFICIENCY FLEXIBILITY. 2 Section 545(b)(3) of the Energy Independence and 3 Security Act of 2007 (42 U.S.C. 17155(b)(3)) is amend- 4 ed— 5 (1) by striking ‘‘Indian tribe may use’’ and all 6 that follows through ‘‘for administrative expenses’’ 7 and inserting ‘‘Indian tribe may use for administra- 8 tive expenses’’; 9 (2) by striking subparagraphs (B) and (C); 10 (3) by redesignating the remaining clauses (i) 11 and (ii) as subparagraphs (A) and (B), respectively 12 and adjusting the margin of those subparagraphs ac- 13 cordingly; and 14 (4) by striking the semicolon at the end and in- 15 serting a period. 16 SEC. 263. SMALL COMMUNITY JOINT PARTICIPATION. 17 (a) Section 541(3)(A) of the Energy Independence 18 and Security Act of 2007 is amended in clause (i) by 19 changing the word ‘‘and’’ to ‘‘or’’ at the end of subclause 20 (II), in subclause (ii)(II) by striking the period at the end 21 of and inserting a semicolon and the word ‘‘or’’, and by 22 inserting the following new clause (iii): 23 ‘‘(iii) a group of adjacent, contiguous, 24 or geographically proximate units of local 25 government that reach agreement to act 26 jointly for purposes of this section and that f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00359 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 360 1 represent a combined population of not 2 less than 35,000.’’. 3 (b) Section 541(3)(B) of the Energy Independence 4 and Security Act of 2007 is amended in subclause (ii)(II) 5 by striking the period at the end of and inserting a semi- 6 colon and the word ‘‘or’’, and by inserting the following 7 new clause (iii): 8 ‘‘(iii) a group of adjacent, contiguous, 9 or geographically proximate units of local 10 government that reach agreement to act 11 jointly for purposes of this section and that 12 represent a combined population of not 13 less than 50,000.’’. 14 SEC. 264. LOW INCOME COMMUNITY ENERGY EFFICIENCY 15 PROGRAM. 16 (a) IN GENERAL.—The Secretary of Energy is au- 17 thorized to make grants to private, non-profit, mission- 18 driven community development organizations including 19 community development corporations and community de- 20 velopment financial institutions to provide financing to 21 businesses and projects that improve energy efficiency; 22 identify and develop alternative, renewable, and distrib- 23 uted energy supplies; provide technical assistance and pro- 24 mote job and business opportunities for low-income resi- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00360 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 361 1 dents; and increase energy conservation in low income 2 rural and urban communities. 3 (b) GRANTS.—The purpose of such grants is to in- 4 crease the flow of capital and benefits to low income com- 5 munities, minority-owned and woman-owned businesses 6 and entrepreneurs and other projects and activities located 7 in low income communities in order to reduce environ- 8 mental degradation, foster energy conservation and effi- 9 ciency and create job and business opportunities for local 10 residents. The Secretary may make grants on a competi- 11 tive basis for— 12 (1) investments that develop alternative, renew- 13 able, and distributed energy supplies; 14 (2) capitalizing loan funds that lend to energy 15 efficiency projects and energy conservation pro- 16 grams; 17 (3) technical assistance to plan, develop and 18 manage an energy efficiency financing program; and 19 (4) technical and financial assistance to assist 20 small-scale businesses and private entities develop 21 new renewable and distributed sources of power or 22 combined heat and power generation. 23 (c) AUTHORIZATION APPROPRIATIONS.—For the OF 24 purposes of this section there is authorized to be appro- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00361 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 362 1 priated $50,000,000 for each of the fiscal years 2010 2 through 2015. TITLE III—REDUCING GLOBAL 3 WARMING POLLUTION 4 5 SEC. 301. SHORT TITLE. 6 This title, and sections 112, 116, 121, 221, 222, and 7 223 of this Act, may be cited as the ‘‘Safe Climate Act’’. Subtitle A—Reducing Global 8 Warming Pollution 9 10 SEC. 311. REDUCING GLOBAL WARMING POLLUTION. 11 The Clean Air Act (42 U.S.C. and following) is 12 amended by adding after title VI the following new title: ‘‘TITLE VII—GLOBAL WARMING 13 POLLUTION REDUCTION PRO- 14 GRAM 15 16 ‘‘PART A—GLOBAL WARMING POLLUTION 17 REDUCTION GOALS AND TARGETS 18 ‘‘SEC. 701. FINDINGS AND PURPOSE. 19 ‘‘(a) FINDINGS.—The Congress finds as follows: 20 ‘‘(1) Global warming poses a significant threat 21 to the national security, economy, public health and 22 welfare, and environment of the United States, as 23 well as of other nations. 24 ‘‘(2) Reviews of scientific studies, including by 25 the Intergovernmental Panel on Climate Change and f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00362 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 363 1 the National Academy of Sciences, demonstrate that 2 global warming is the result of the combined anthro- 3 pogenic greenhouse gas emissions from numerous 4 sources of all types and sizes. Each increment of 5 emission, when combined with other emissions, 6 causes or contributes materially to the acceleration 7 and extent of global warming and its adverse effects 8 for the lifetime of such gas in the atmosphere. Ac- 9 cordingly, controlling emissions in small as well as 10 large amounts is essential to prevent, slow the pace 11 of, reduce the threats from, and mitigate global 12 warming and its adverse effects. 13 ‘‘(3) Because they induce global warming, 14 greenhouse gas emissions cause or contribute to in- 15 juries to persons in the United States, including— 16 ‘‘(A) adverse health effects such as disease 17 and loss of life; 18 ‘‘(B) displacement of human populations; 19 ‘‘(C) damage to property and other inter- 20 ests related to ocean levels, acidification, and 21 ice changes; 22 ‘‘(D) severe weather and seasonal changes; 23 ‘‘(E) disruption, costs, and losses to busi- 24 ness, trade, employment, farms, subsistence, f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00363 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 364 1 aesthetic enjoyment of the environment, recre- 2 ation, culture, and tourism; 3 ‘‘(F) damage to plants, forests, lands, and 4 waters; 5 ‘‘(G) harm to wildlife and habitat; 6 ‘‘(H) scarcity of water and the decreased 7 abundance of other natural resources; 8 ‘‘(I) worsening of tropospheric air pollu- 9 tion; 10 ‘‘(J) substantial threats of similar damage; 11 and 12 ‘‘(K) other harm. 13 ‘‘(4) That many of these effects and risks of fu- 14 ture effects of global warming are widely shared 15 does not minimize the adverse effects individual per- 16 sons have suffered, will suffer, and are at risk of 17 suffering because of global warming. 18 ‘‘(5) That some of the adverse and potentially 19 catastrophic effects of global warming are at risk of 20 occurring and not a certainty does not negate the 21 harm persons suffer from actions that increase the 22 likelihood, extent, and severity of such future im- 23 pacts. 24 ‘‘(6) Nations of the world look to the United 25 States for leadership in addressing the threat of and f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00364 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 365 1 harm from global warming. Full implementation of 2 the Safe Climate Act is critical to engage other na- 3 tions in an international effort to mitigate the threat 4 of and harm from global warming. 5 ‘‘(7) Global warming and its adverse effects are 6 occurring and are likely to continue and increase in 7 magnitude, and to do so at a greater and more 8 harmful rate, unless the Safe Climate Act is fully 9 implemented and enforced in an expeditious manner. 10 ‘‘(b) PURPOSE.—It is the general purpose of the Safe 11 Climate Act to help prevent, reduce the pace of, mitigate, 12 and remedy global warming and its adverse effects. To ful- 13 fill such purpose, it is necessary to— 14 ‘‘(1) require the timely fulfillment of all govern- 15 mental acts and duties, both substantive and proce- 16 dural, and the prompt compliance of covered entities 17 with the requirements of the Safe Climate Act; 18 ‘‘(2) establish and maintain an effective, trans- 19 parent, and fair market for emission allowances and 20 preserve the integrity of the cap on emissions and of 21 offset credits; 22 ‘‘(3) advance the production and deployment of 23 clean energy and energy efficiency technologies; and 24 ‘‘(4) ensure effective enforcement of the Safe 25 Climate Act by citizens, States, Indian tribes, and f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00365 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 366 1 all levels of government because each violation of the 2 Safe Climate Act is likely to result in an additional 3 increment of greenhouse gas emission and will slow 4 the pace of implementation of the Safe Climate Act 5 and delay the achievement of the goals set forth in 6 section 702, and cause or contribute to global warm- 7 ing and its adverse effects. 8 ‘‘SEC. 702. ECONOMY-WIDE REDUCTION GOALS. 9 ‘‘The goals of the Safe Climate Act are to reduce 10 steadily the quantity of United States greenhouse gas 11 emissions such that— 12 ‘‘(1) in 2012, the quantity of United States 13 greenhouse gas emissions does not exceed 97 percent 14 of the quantity of United States greenhouse gas 15 emissions in 2005; 16 ‘‘(2) in 2020, the quantity of United States 17 greenhouse gas emissions does not exceed 80 percent 18 of the quantity of United States greenhouse gas 19 emissions in 2005; 20 ‘‘(3) in 2030, the quantity of United States 21 greenhouse gas emissions does not exceed 58 percent 22 of the quantity of United States greenhouse gas 23 emissions in 2005; and 24 ‘‘(4) in 2050, the quantity of United States 25 greenhouse gas emissions does not exceed 17 percent f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00366 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 367 1 of the quantity of United States greenhouse gas 2 emissions in 2005. 3 ‘‘SEC. 703. REDUCTION TARGETS FOR SPECIFIED SOURCES. 4 ‘‘(a) IN GENERAL.—The regulations issued under 5 section 721 shall cap and reduce annually the greenhouse 6 gas emissions of capped sources each calendar year begin- 7 ning in 2012 such that— 8 ‘‘(1) in 2012, the quantity of greenhouse gas 9 emissions from capped sources does not exceed 97 10 percent of the quantity of greenhouse gas emissions 11 from such sources in 2005; 12 ‘‘(2) in 2020, the quantity of greenhouse gas 13 emissions from capped sources does not exceed 83 14 percent of the quantity of greenhouse gas emissions 15 from such sources in 2005; 16 ‘‘(3) in 2030, the quantity of greenhouse gas 17 emissions from capped sources does not exceed 58 18 percent of the quantity of greenhouse gas emissions 19 from such sources in 2005; and 20 ‘‘(4) in 2050, the quantity of greenhouse gas 21 emissions from capped sources does not exceed 17 22 percent of the quantity of greenhouse gas emissions 23 from such sources in 2005. 24 ‘‘(b) DEFINITION.—For purposes of this section, the 25 term ‘greenhouse gas emissions from such sources in f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00367 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 368 1 2005’ means emissions to which section 722 would have 2 applied if the requirements of this title for the specified 3 year had been in effect for 2005. 4 ‘‘SEC. 704. SUPPLEMENTAL POLLUTION REDUCTIONS. 5 ‘‘For the purposes of decreasing the likelihood of cat- 6 astrophic climate change, preserving tropical forests, 7 building capacity to generate offset credits, and facili- 8 tating international action on global warming, the Admin- 9 istrator shall set aside the percentage specified in section 10 781 of the quantity of emission allowances established 11 under section 721(a) for each year, to be used to achieve 12 a reduction of greenhouse gas emissions from deforest- 13 ation in developing countries in accordance with part E. 14 In 2020, activities supported under part E shall provide 15 greenhouse gas reductions in an amount equal to an addi- 16 tional 10 percentage points of reductions from United 17 States greenhouse gas emissions in 2005. The Adminis- 18 trator shall transfer these allowances with respect to ac- 19 tivities in countries that enter into and implement agree- 20 ments or arrangements relating to reduced deforestation 21 as described in section 754(a)(2). 22 ‘‘SEC. 705. REVIEW AND PROGRAM RECOMMENDATIONS. 23 ‘‘(a) IN GENERAL.—The Administrator shall, in con- 24 sultation with appropriate Federal agencies, submit to f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00368 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 369 1 Congress a report not later than July 1, 2013, and every 2 4 years thereafter, that includes— 3 ‘‘(1) an analysis of key findings based on the 4 latest scientific information and data relevant to 5 global climate change; 6 ‘‘(2) an analysis of capabilities to monitor and 7 verify greenhouse gas reductions on a worldwide 8 basis, including for the United States, as required 9 under the Safe Climate Act; and 10 ‘‘(3) an analysis of the status of worldwide 11 greenhouse gas reduction efforts, including imple- 12 mentation of the Safe Climate Act and other poli- 13 cies, both domestic and international, for reducing 14 greenhouse gas emissions, preventing dangerous at- 15 mospheric concentrations of greenhouse gases, pre- 16 venting significant irreversible consequences of cli- 17 mate change, and reducing vulnerability to the im- 18 pacts of climate change. 19 ‘‘(b) EXCEPTION.—Paragraph (3) of subsection (a) 20 shall not apply to the first report submitted under such 21 subsection. 22 ‘‘(c) LATEST SCIENTIFIC INFORMATION.—The anal- 23 ysis required under subsection (a)(1) shall— 24 ‘‘(1) address existing scientific information and 25 reports, considering, to the greatest extent possible, f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00369 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 370 1 the most recent assessment report of the Intergov- 2 ernmental Panel on Climate Change, reports by the 3 United States Global Change Research Program and 4 Federal agencies, and the European Union’s global 5 temperature data assessment; and 6 ‘‘(2) review trends and projections for— 7 ‘‘(A) global and country-specific annual 8 emissions of greenhouse gases, and cumulative 9 emissions produced between 1850 and the 10 present, including— 11 ‘‘(i) global cumulative emissions of an- 12 thropogenic greenhouse gases; 13 ‘‘(ii) global annual emissions of an- 14 thropogenic greenhouse gases; and 15 ‘‘(iii) by country, annual total, annual 16 per capita, and cumulative anthropogenic 17 emissions of greenhouse gases for the top 18 50 emitting nations; 19 ‘‘(B) significant changes, both globally and 20 by region, in annual net non-anthropogenic 21 greenhouse gas from natural sources, including 22 permafrost, forests, or oceans; 23 ‘‘(C) global atmospheric concentrations of 24 greenhouse gases, expressed in annual con- 25 centration units as well as carbon dioxide f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00370 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 371 1 equivalents based on 100-year global warming 2 potentials; 3 ‘‘(D) major climate forcing factors, such as 4 aerosols; 5 ‘‘(E) global average temperature, expressed 6 as seasonal and annual averages in land, ocean, 7 and land-plus-ocean averages; and 8 ‘‘(F) sea level rise; 9 ‘‘(3) assess the current and potential impacts of 10 global climate change on— 11 ‘‘(A) human populations, including impacts 12 on public health, economic livelihoods, subsist- 13 ence, human infrastructure, and displacement 14 or permanent relocation due to flooding, severe 15 weather, extended drought, erosion, or other 16 ecosystem changes; 17 ‘‘(B) freshwater systems, including water 18 resources for human consumption and agri- 19 culture and natural and managed ecosystems, 20 flood and drought risks, and relative humidity; 21 ‘‘(C) the carbon cycle, including impacts 22 related to the thawing of permafrost, the fre- 23 quency and intensity of wildfire, and terrestrial 24 and ocean carbon sinks; f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00371 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 372 1 ‘‘(D) ecosystems and animal and plant 2 populations, including impacts on species abun- 3 dance, phenology, and distribution; 4 ‘‘(E) oceans and ocean ecosystems, includ- 5 ing effects on sea level, ocean acidity, ocean 6 temperatures, coral reefs, ocean circulation, 7 fisheries, and other indicators of ocean eco- 8 system health; 9 ‘‘(F) the cryosphere, including effects on 10 ice sheet mass balance, mountain glacier mass 11 balance, and sea-ice extent and volume; 12 ‘‘(G) changes in the intensity, frequency, 13 or distribution of severe weather events, includ- 14 ing precipitation, tropical cyclones, tornadoes 15 and severe heat waves; 16 ‘‘(H) agriculture and forest systems, in- 17 cluding effects on growing season, distribution, 18 and yield; and 19 ‘‘(I) any other indicators the Administrator 20 deems appropriate; 21 ‘‘(4) summarize any significant socio-economic 22 impacts of climate change in the United States, in- 23 cluding the territories of the United States, drawing 24 on work by Federal agencies and the academic lit- 25 erature, including impacts on— f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00372 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 373 1 ‘‘(A) public health; 2 ‘‘(B) human infrastructure, including 3 coastal infrastructure vulnerability to extreme 4 events and sea level rise, river floodplain infra- 5 structure, and sewer and water management 6 systems; 7 ‘‘(C) agriculture and forests, including ef- 8 fects on potential growing season, distribution, 9 and yield; 10 ‘‘(D) water resources for human consump- 11 tion, agriculture and natural and managed eco- 12 systems, flood and drought risks and relative 13 humidity; 14 ‘‘(E) energy supply and use; and 15 ‘‘(F) transportation; 16 ‘‘(5) in assessing risks and impacts, use a risk 17 management framework, including both qualitative 18 and quantitative measures, to assess the observed 19 and projected impacts of current and future climate 20 change, accounting for— 21 ‘‘(A) both monetized and non-monetized 22 losses; 23 ‘‘(B) potential nonlinear, abrupt, or essen- 24 tially irreversible changes in the climate system; f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00373 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 374 1 ‘‘(C) potential nonlinear increases in the 2 cost of impacts; 3 ‘‘(D) potential low-probability, high impact 4 events; and 5 ‘‘(E) whether impacts are transitory or es- 6 sentially permanent; 7 ‘‘(6) based on the findings of the Administrator 8 under this section, as well as assessments produced 9 by the Intergovernmental Panel on Climate Change, 10 the United States Global Change Research program, 11 and other relevant scientific entities— 12 ‘‘(A) describe increased risks to natural 13 systems and society that would result from an 14 increase in global average temperature 3.6 de- 15 grees Fahrenheit (2 degrees Celsius) above the 16 pre-industrial average or an increase in atmos- 17 pheric greenhouse gas concentrations above 450 18 parts per million carbon dioxide equivalent; and 19 ‘‘(B) identify and assess— 20 ‘‘(i) significant residual risks not 21 avoided by the thresholds described in sub- 22 paragraph (A); 23 ‘‘(ii) alternative thresholds or targets 24 that may more effectively limit the risks 25 identified pursuant to clause (i); and f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00374 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 375 1 ‘‘(iii) thresholds in addition to those 2 described in subparagraph (A) which sig- 3 nificantly increase the risk of certain im- 4 pacts or render them essentially perma- 5 nent. 6 ‘‘(d) STATUS MONITORING VERIFICATION OF AND 7 CAPABILITIES EVALUATE GREENHOUSE GAS REDUC- TO 8 EFFORTS.—The analysis required under subsection TION 9 (a)(2) shall evaluate the capabilities of the monitoring, re- 10 porting, and verification systems used to quantify progress 11 in achieving reductions in greenhouse gas emissions by the 12 United States as described in section 702, including— 13 ‘‘(1) quantification of emissions and emission 14 reductions by entities participating in the cap and 15 trade program under this title; 16 ‘‘(2) quantification of emissions and emission 17 reductions by entities participating in the offset pro- 18 gram under this title; 19 ‘‘(3) quantification of emission and emissions 20 reductions by entities regulated by performance 21 standards; 22 ‘‘(4) quantification of aggregate net emissions 23 and emissions reductions by the United States; and f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00375 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 376 1 ‘‘(5) quantification of global changes in net 2 emissions and in sources and sinks of greenhouse 3 gases. 4 ‘‘(e) STATUS GREENHOUSE GAS REDUCTION EF- OF 5 FORTS.—The analysis required under subsection (a)(3) 6 shall address— 7 ‘‘(1) whether the programs under Safe Climate 8 Act and other Federal statutes are resulting in suffi- 9 cient United States greenhouse gas emissions reduc- 10 tions to meet the emissions reduction targets de- 11 scribed in section 702, taking into account the use 12 of offsets; and 13 ‘‘(2) whether United States actions, taking into 14 account international actions, commitments, and 15 trends, and considering the range of plausible emis- 16 sions scenarios, are sufficient to avoid— 17 ‘‘(A) atmospheric greenhouse gas con- 18 centrations above 450 parts per million carbon 19 dioxide equivalent; 20 ‘‘(B) global average surface temperature 21 3.6 degrees Fahrenheit (2 degrees Celsius) 22 above the pre-industrial average, or such other 23 temperature thresholds as the Administrator 24 deems appropriate; and f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00376 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 377 1 ‘‘(C) other temperature or greenhouse gas 2 thresholds identified pursuant to subsection 3 (c)(6)(B). 4 ‘‘(f) RECOMMENDATIONS.— 5 ‘‘(1) LATEST INFORMATION.— SCIENTIFIC 6 Based on the analysis described in subsection (a)(1), 7 each report under subsection (a) shall identify ac- 8 tions that could be taken to— 9 ‘‘(A) improve the characterization of 10 changes in the earth-climate system and im- 11 pacts of global climate change; 12 ‘‘(B) better inform decision making and 13 actions related to global climate change; 14 ‘‘(C) mitigate risks to natural and social 15 systems; and 16 ‘‘(D) design policies to better account for 17 climate risks. 18 ‘‘(2) MONITORING, REPORTING AND 19 VERIFICATION.—Based on the analysis described in 20 subsection (a)(2), each report under subsection (a) 21 shall identify key gaps in measurement, reporting, 22 and verification capabilities and make recommenda- 23 tions to improve the accuracy and reliability of those 24 capabilities. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00377 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 378 1 ‘‘(3) STATUS OF GREENHOUSE GAS REDUCTION 2 EFFORTS.—Based on the analysis described in sub- 3 section (a)(3), taking into account international ac- 4 tions, commitments, and trends, and considering the 5 range of plausible emissions scenarios, each report 6 under subsection (a) shall identify— 7 ‘‘(A) the quantity of additional reductions 8 required to meet the emissions reduction tar- 9 gets in section 702; 10 ‘‘(B) the quantity of additional reductions 11 in global greenhouse gas emissions needed to 12 avoid the identified concentration and tempera- 13 ture thresholds described in subsection (e); and 14 ‘‘(C) possible strategies and approaches for 15 achieving additional reductions. 16 ‘‘(g) AUTHORIZATION APPROPRIATIONS.—There OF 17 are authorized to be appropriated to carry out this section 18 such sums as may be necessary. 19 ‘‘SEC. 706. NATIONAL ACADEMY REVIEW. 20 ‘‘(a) IN GENERAL.—Not later than 1 year after the 21 date of enactment of this title, the Administrator shall 22 offer to enter into a contract with the National Academy 23 of Sciences (in this section referred to as the ‘Academy’) 24 under which the Academy shall, not later than July 1, f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00378 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 379 1 2014, and every 4 years thereafter, submit to Congress 2 and the Administrator a report that includes— 3 ‘‘(1) a review of the most recent report and rec- 4 ommendations issued under section 705; 5 ‘‘(2) an analysis of technologies to achieve re- 6 ductions in greenhouse gas emissions. 7 ‘‘(b) FAILURE ISSUE REPORT.—In the event TO A 8 that the Administrator has not issued all or part of the 9 most recent report required under section 705, the Acad- 10 emy shall conduct its own review and analysis of the re- 11 quired information. 12 ‘‘(c) TECHNOLOGICAL INFORMATION.—The analysis 13 required under subsection (a)(2) shall— 14 ‘‘(1) review existing technological information 15 and reports, including the most recent reports by the 16 Department of Energy, the United States Global 17 Change Research Program, the Intergovernmental 18 Panel on Climate Change, and the International En- 19 ergy Agency and any other relevant information on 20 technologies or practices that reduce or limit green- 21 house gas emissions; 22 ‘‘(2) include the participation of technical ex- 23 perts from relevant private industry sectors; 24 ‘‘(3) review the current and future projected de- 25 ployment of technologies and practices in the United f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00379 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 380 1 States that reduce or limit greenhouse gas emis- 2 sions, including— 3 ‘‘(A) technologies for capture and seques- 4 tration of greenhouse gases; 5 ‘‘(B) technologies to improve energy effi- 6 ciency; 7 ‘‘(C) low- or zero-greenhouse gas emitting 8 energy technologies; 9 ‘‘(D) low- or zero-greenhouse gas emitting 10 fuels; 11 ‘‘(E) biological sequestration practices and 12 technologies; and 13 ‘‘(F) any other technologies the Academy 14 deems relevant; and 15 ‘‘(4) review and compare the emissions reduc- 16 tion potential, commercial viability, market penetra- 17 tion, investment trends, and deployment of the tech- 18 nologies described in paragraph (3), including— 19 ‘‘(A) the need for additional research and 20 development, including publicly funded research 21 and development; 22 ‘‘(B) the extent of commercial deployment, 23 including, where appropriate, a comparison to 24 the cost and level of deployment of conventional f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00380 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 381 1 fossil fuel-fired energy technologies and devices; 2 and 3 ‘‘(C) an evaluation of any substantial tech- 4 nological, legal, or market-based barriers to 5 commercial deployment. 6 ‘‘(d) RECOMMENDATIONS.— 7 ‘‘(1) LATEST INFORMATION.— SCIENTIFIC 8 Based on the review described in subsection (a)(1), 9 the Academy shall identify actions that could be 10 taken to— 11 ‘‘(A) improve the characterization of 12 changes in the earth-climate system and im- 13 pacts of global climate change; 14 ‘‘(B) better inform decision making and 15 actions related to global climate change; 16 ‘‘(C) mitigate risks to natural and social 17 systems; 18 ‘‘(D) design policies to better account for 19 climate risks; and 20 ‘‘(E) improve the accuracy and reliability 21 of capabilities to monitor, report and verify 22 greenhouse gas emissions reduction efforts. 23 ‘‘(2) TECHNOLOGICAL INFORMATION.—Based 24 on the analysis described in subsection (a)(2), the 25 Academy shall identify— f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00381 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 382 1 ‘‘(A) additional emissions reductions that 2 may be possible as a result of technologies de- 3 scribed in the analysis; 4 ‘‘(B) barriers to the deployment of such 5 technologies; and 6 ‘‘(C) actions that could be taken to speed 7 deployment of such technologies. 8 ‘‘(3) STATUS OF GREENHOUSE GAS REDUCTION 9 EFFORTS.—Based on the review described in sub- 10 section (a)(1), the Academy shall identify— 11 ‘‘(A) the quantity of additional reductions 12 required to meet the emissions reduction tar- 13 gets described in section 702; and 14 ‘‘(B) the quantity of additional reductions 15 in global greenhouse gas emissions needed to 16 avoid the concentration and temperature 17 thresholds described in section 705(c)(6)(A) or 18 identified pursuant to section 705(c)(6)(B). 19 ‘‘(e) AUTHORIZATION APPROPRIATIONS.—There OF 20 are authorized to be appropriated to carry out this section 21 such sums as may be necessary. 22 ‘‘SEC. 707. PRESIDENTIAL RESPONSE AND RECOMMENDA- 23 TIONS. 24 ‘‘Not later than July 1, 2017, and every 4 years 25 thereafter— f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00382 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 383 1 ‘‘(1) the President shall direct relevant Federal 2 agencies to use existing statutory authority to take 3 appropriate actions identified in the report sub- 4 mitted under section 705 by the National Academy 5 of Sciences in the previous year and to address any 6 shortfalls identified in such report; and 7 ‘‘(2) in the event that the National Academy of 8 Sciences has concluded, in the most recent report 9 submitted under section 705, that the United States 10 will not achieve the necessary domestic greenhouse 11 gas emissions reductions, or that global actions will 12 not maintain safe global average surface tempera- 13 ture and atmospheric greenhouse gas concentration 14 thresholds, the President shall submit to Congress a 15 plan identifying domestic and international actions 16 that will achieve necessary additional greenhouse gas 17 reductions, including any recommendations for legis- 18 lative action. 19 ‘‘PART B—DESIGNATION AND REGISTRATION OF 20 GREENHOUSE GASES 21 ‘‘SEC. 711. DESIGNATION OF GREENHOUSE GASES. 22 ‘‘(a) GREENHOUSE GASES.—For purposes of this 23 title, the following are greenhouse gases: 24 ‘‘(1) Carbon dioxide. 25 ‘‘(2) Methane. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00383 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 384 1 ‘‘(3) Nitrous oxide. 2 ‘‘(4) Sulfur hexafluoride. 3 ‘‘(5) Hydrofluorocarbons from a chemical man- 4 ufacturing process at an industrial stationary 5 source. 6 ‘‘(6) Any perfluorocarbon. 7 ‘‘(7) Nitrogen trifluoride. 8 ‘‘(8) Any other anthropogenic gas designated as 9 a greenhouse gas by the Administrator under this 10 section. 11 ‘‘(b) DETERMINATION ADMINISTRATOR’S INITIA- ON 12 TIVE.—The Administrator shall, by rule— 13 ‘‘(1) determine whether 1 metric ton of another 14 anthropogenic gas makes the same or greater con- 15 tribution to global warming over 100 years as 1 met- 16 ric ton of carbon dioxide; 17 ‘‘(2) determine the carbon dioxide equivalent 18 value for each gas with respect to which the Admin- 19 istrator makes an affirmative determination under 20 paragraph (1); 21 ‘‘(3) for each gas with respect to which the Ad- 22 ministrator makes an affirmative determination 23 under paragraph (1) and that is used as a substitute 24 for a class I or class II substance under title VI, de- 25 termine the extent to which to regulate that gas f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00384 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 385 1 under section 619 and specify appropriate compli- 2 ance obligations under section 619; 3 ‘‘(4) designate as a greenhouse gas for purposes 4 of this title each gas for which the Administrator 5 makes an affirmative determination under para- 6 graph (1), to the extent that it is not regulated 7 under section 619; and 8 ‘‘(5) specify the appropriate compliance obliga- 9 tions under this title for each gas designated as a 10 greenhouse gas under paragraph (4). 11 ‘‘(c) PETITIONS DESIGNATE GREENHOUSE TO A 12 GAS.— 13 ‘‘(1) IN GENERAL.—Any person may petition 14 the Administrator to designate as a greenhouse gas 15 any anthropogenic gas 1 metric ton of which makes 16 the same or greater contribution to global warming 17 over 100 years as 1 metric ton of carbon dioxide. 18 ‘‘(2) CONTENTS OF PETITION.—The petitioner 19 shall provide sufficient data, as specified by rule by 20 the Administrator, to demonstrate that the gas is 21 likely to be a greenhouse gas and is likely to be pro- 22 duced, imported, used, or emitted in the United 23 States. To the extent practicable, the petitioner shall 24 also identify producers, importers, distributors, 25 users, and emitters of the gas in the United States. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00385 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 386 1 AND ACTION BY THE ADMINIS- ‘‘(3) REVIEW 2 TRATOR.—Not later than 90 days after receipt of a 3 petition under paragraph (2), the Administrator 4 shall determine whether the petition is complete and 5 notify the petitioner and the public of the decision. 6 ‘‘(4) ADDITIONAL INFORMATION.—The Admin- 7 istrator may require producers, importers, distribu- 8 tors, users, or emitters of the gas to provide infor- 9 mation on the contribution of the gas to global 10 warming over 100 years compared to carbon dioxide. 11 ‘‘(5) TREATMENT OF PETITION.—For any sub- 12 stance used as a substitute for a class I or class II 13 substance under title VI, the Administrator may 14 elect to treat a petition under this subsection as a 15 petition to list the substance as a class II, group II 16 substance under section 619, and may require the 17 petition to be amended to address listing criteria 18 promulgated under that section. 19 ‘‘(6) DETERMINATION.—Not later than 2 years 20 after receipt of a complete petition, the Adminis- 21 trator shall, after notice and an opportunity for com- 22 ment— 23 ‘‘(A) issue and publish in the Federal Reg- 24 ister— f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00386 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 387 1 ‘‘(i) a determination that 1 metric ton 2 of the gas does not make a contribution to 3 global warming over 100 years that is 4 equal to or greater than that made by 1 5 metric ton of carbon dioxide; and 6 ‘‘(ii) an explanation of the decision; or 7 ‘‘(B) determine that 1 metric ton of the 8 gas makes a contribution to global warming 9 over 100 years that is equal to or greater than 10 that made by 1 metric ton of carbon dioxide, 11 and take the actions described in subsection (b) 12 with respect to such gas. 13 ‘‘(7) GROUNDS FOR DENIAL.—The Adminis- 14 trator may not deny a petition under this subsection 15 solely on the basis of inadequate Environmental Pro- 16 tection Agency resources or time for review. 17 ‘‘(d) MANUFACTURING AND EMISSION NOTICES.— 18 ‘‘(1) NOTICE REQUIREMENT.— 19 ‘‘(A) IN GENERAL.—Effective 24 months 20 after the date of enactment of this title, no per- 21 son may manufacture or introduce into inter- 22 state commerce a fluorinated gas, or emit a sig- 23 nificant quantity, as determined by the Admin- 24 istrator, of any fluorinated gas that is gen- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00387 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 388 1 erated as a byproduct during the production or 2 use of another fluorinated gas, unless— 3 ‘‘(i) the gas is designated as a green- 4 house gas under this section or is an 5 ozone-depleting substance listed as a class 6 I or class II substance under title VI; 7 ‘‘(ii) the Administrator has deter- 8 mined that 1 metric ton of such gas does 9 not make a contribution to global warming 10 that is equal to or greater than that made 11 by 1 metric ton of carbon dioxide; or 12 ‘‘(iii) the person manufacturing or im- 13 porting the gas for distribution into inter- 14 state commerce, or emitting the gas, has 15 submitted to the Administrator, at least 90 16 days before the start of such manufacture, 17 importation, or emission, a notice of such 18 person’s manufacture, importation, or 19 emission of such gas, and the Adminis- 20 trator has not determined that notice or a 21 substantially similar notice is incomplete. 22 ‘‘(B) ALTERNATIVE COMPLIANCE.—For a 23 gas that is a substitute for a class I or class II 24 substance under title VI and either has been 25 listed as acceptable for use under section 612 f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00388 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 389 1 or is currently subject to evaluation under sec- 2 tion 612, the Administrator may accept the no- 3 tice and information provided pursuant to that 4 section as fulfilling the obligation under clause 5 (iii) of subparagraph (A). 6 ‘‘(2) REVIEW AND ACTION BY THE ADMINIS- 7 TRATOR.— 8 ‘‘(A) COMPLETENESS.—Not later than 90 9 days after receipt of notice under paragraph 10 (1)(A)(iii) or (B), the Administrator shall deter- 11 mine whether the notice is complete. 12 ‘‘(B) DETERMINATION.— If the Adminis- 13 trator determines that the notice is complete, 14 the Administrator shall, after notice and an op- 15 portunity for comment, not later than 12 16 months after receipt of the notice— 17 ‘‘(i) issue and publish in the Federal 18 Register a determination that 1 metric ton 19 of the gas does not make a contribution to 20 global warming over 100 years that is 21 equal to or greater than that made by 1 22 metric ton of carbon dioxide and an expla- 23 nation of the decision; or 24 ‘‘(ii) determine that 1 metric ton of 25 the gas makes a contribution to global f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00389 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 390 1 warming over 100 years that is equal to or 2 greater than that made by 1 metric ton of 3 carbon dioxide, and take the actions de- 4 scribed in subsection (b) with respect to 5 such gas. 6 ‘‘(e) REGULATIONS.—Not later than one year after 7 the date of enactment of this title, the Administrator shall 8 promulgate regulations to carry out this section. Such reg- 9 ulations shall include— 10 ‘‘(1) requirements for the contents of a petition 11 submitted under subsection (c); 12 ‘‘(2) requirements for the contents of a notice 13 required under subsection (d); and 14 ‘‘(3) methods and standards for evaluating the 15 carbon dioxide equivalent value of a gas. 16 ‘‘(f) GASES REGULATED UNDER TITLE VI.—The 17 Administrator shall not designate a gas as a greenhouse 18 gas under this section to the extent that the gas is regu- 19 lated under title VI. 20 ‘‘(g) SAVINGS CLAUSE.—Nothing in this section shall 21 be interpreted to relieve any person from complying with 22 the requirements of section 612. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00390 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 391 1 ‘‘SEC. 712. CARBON DIOXIDE EQUIVALENT VALUE OF 2 GREENHOUSE GASES. 3 ‘‘(a) MEASURE QUANTITY GREENHOUSE OF OF 4 GASES.—Any provision of this title or title VIII that refers 5 to a quantity or percentage of a quantity of greenhouse 6 gases shall mean the quantity or percentage of the green- 7 house gases expressed in carbon dioxide equivalents. 8 ‘‘(b) INITIAL VALUE.—Except as provided by the Ad- 9 ministrator under this section or section 711, the carbon 10 dioxide equivalent value of greenhouse gases for purposes 11 of this Act shall be as follows: ‘‘CARBON DIOXIDE EQUIVALENT OF 1 TON OF LISTED GREENHOUSE GASES Carbon dioxide equivalent Greenhouse gas (1 metric ton) (metric tons) Carbon dioxide 1 Methane 25 Nitrous oxide 298 HFC-23 14,800 HFC-125 3,500 HFC-134a 1,430 HFC-143a 4,470 HFC-152a 124 HFC-227ea 3,220 HFC-236fa 9,810 HFC-4310mee 1,640 CF4 7,390 C2F6 12,200 f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00391 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 392 ‘‘CARBON DIOXIDE EQUIVALENT OF 1 TON OF LISTED GREENHOUSE GASES—Continued Carbon dioxide equivalent Greenhouse gas (1 metric ton) (metric tons) C4F10 8,860 C6F14 9,300 SF6 22,800 NF3 17,200 1 ‘‘(c) PERIODIC REVIEW.— 2 ‘‘(1) Not later than February 1, 2017, and (ex- 3 cept as provided in paragraph (3)) not less than 4 every 5 years thereafter, the Administrator shall— 5 ‘‘(A) review and, if appropriate, revise the 6 carbon dioxide equivalent values established 7 under this section or section 711(b)(2), based 8 on a determination of the number of metric 9 tons of carbon dioxide that makes the same 10 contribution to global warming over 100 years 11 as 1 metric ton of each greenhouse gas; and 12 ‘‘(B) publish in the Federal Register the 13 results of that review and any revisions. 14 ‘‘(2) A revised determination published in the 15 Federal Register under paragraph (1)(B) shall take 16 effect for greenhouse gas emissions starting on Jan- 17 uary 1 of the first calendar year starting at least 9 18 months after the date on which the revised deter- 19 mination was published. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00392 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 393 1 ‘‘(3) The Administrator may decrease the fre- 2 quency of review and revision under paragraph (1) 3 if the Administrator determines that such decrease 4 is appropriate in order to synchronize such review 5 and revision with any similar review process carried 6 out pursuant to the United Nations Framework 7 Convention on Climate Change, done at New York 8 on May 9, 1992, or to an agreement negotiated 9 under that convention, except that in no event shall 10 the Administrator carry out such review and revision 11 any less frequently than every 10 years. 12 ‘‘(d) METHODOLOGY.—In setting carbon dioxide 13 equivalent values, for purposes of this section or section 14 711, the Administrator shall take into account publica- 15 tions by the Intergovernmental Panel on Climate Change 16 or a successor organization under the auspices of the 17 United Nations Environmental Programme and the World 18 Meteorological Organization. 19 ‘‘SEC. 713. GREENHOUSE GAS REGISTRY. 20 ‘‘(a) DEFINITIONS.—For purposes of this section: 21 ‘‘(1) CLIMATE REGISTRY.—The term ‘Climate 22 Registry’ means the greenhouse gas emissions reg- 23 istry jointly established and managed by more than 24 40 States and Indian tribes in 2007 to collect high- 25 quality greenhouse gas emission data from facilities, f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00393 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 394 1 corporations, and other organizations to support var- 2 ious greenhouse gas emission reporting and reduc- 3 tion policies for the member States and Indian 4 tribes. 5 ‘‘(2) REPORTING ENTITY.—The term ‘reporting 6 entity’ means— 7 ‘‘(A) a covered entity; 8 ‘‘(B) an entity that— 9 ‘‘(i) would be a covered entity if it had 10 emitted, produced, imported, manufac- 11 tured, or delivered in 2008 or any subse- 12 quent year more than the applicable 13 threshold level in the definition of covered 14 entity in paragraph (14) of section 700; 15 and 16 ‘‘(ii) has emitted, produced, imported, 17 manufactured, or delivered in 2008 or any 18 subsequent year more than the applicable 19 threshold level in the definition of covered 20 entity in paragraph (14) of section 700, 21 provided that the figure of 25,000 tons of 22 carbon dioxide equivalent is read instead 23 as 10,000 tons of carbon dioxide equivalent 24 and the figure of 460,000,000 cubic feet is 25 read instead as 276,000,000 cubic feet; f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00394 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 395 1 ‘‘(C) any other entity that emits a green- 2 house gas, or produces, imports, manufactures, 3 or delivers material whose use results or may 4 result in greenhouse gas emissions if the Ad- 5 ministrator determines that reporting under 6 this section by such entity will help achieve the 7 purposes of this title or title VIII; 8 ‘‘(D) any vehicle fleet with emissions of 9 more than 25,000 tons of carbon dioxide equiv- 10 alent on an annual basis, if the Administrator 11 determines that the inclusion of such fleet will 12 help achieve the purposes of this title or title 13 VIII; or 14 ‘‘(E) any entity that delivers electricity to 15 an energy-intensive facility in an industrial sec- 16 tor that meets the energy or greenhouse gas in- 17 tensity criteria in section 764(b)(2)(A)(i). 18 ‘‘(b) REGULATIONS.— 19 ‘‘(1) IN GENERAL.—Not later than 6 months 20 after the date of enactment of this title, the Admin- 21 istrator shall issue regulations establishing a Federal 22 greenhouse gas registry. Such regulations shall— 23 ‘‘(A) require reporting entities to submit to 24 the Administrator data on— f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00395 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 396 1 ‘‘(i) greenhouse gas emissions in the 2 United States; 3 ‘‘(ii) the production and manufacture 4 in the United States, importation into the 5 United States, and, at the discretion of the 6 Administrator, exportation from the 7 United States, of fuels and industrial gases 8 the uses of which result or may result in 9 greenhouse gas emissions; 10 ‘‘(iii) deliveries in the United States of 11 natural gas, and any other gas meeting the 12 specifications for commingling with natural 13 gas for purposes of delivery, the combus- 14 tion of which result or may result in green- 15 house gas emissions; and 16 ‘‘(iv) the capture and sequestration of 17 greenhouse gases; 18 ‘‘(B) require covered entities and, where 19 appropriate, other reporting entities to submit 20 to the Administrator data sufficient to ensure 21 compliance with or implementation of the re- 22 quirements of this title; 23 ‘‘(C) require reporting of electricity deliv- 24 ered to industrial sources in energy-intensive in- 25 dustries; f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00396 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 397 1 ‘‘(D) ensure the completeness, consistency, 2 transparency, accuracy, precision, and reliability 3 of such data; 4 ‘‘(E) take into account the best practices 5 from the most recent Federal, State, tribal, and 6 international protocols for the measurement, ac- 7 counting, reporting, and verification of green- 8 house gas emissions, including protocols from 9 the Climate Registry and other mandatory 10 State or multistate authorized programs; 11 ‘‘(F) take into account the latest scientific 12 research; 13 ‘‘(G) require that, for covered entities with 14 respect to greenhouse gases to which section 15 722 applies, and, to the extent determined to be 16 appropriate by the Administrator, for covered 17 entities with respect to other greenhouse gases 18 and for other reporting entities, submitted data 19 are based on— 20 ‘‘(i) continuous monitoring systems 21 for fuel flow or emissions, such as contin- 22 uous emission monitoring systems; 23 ‘‘(ii) alternative systems that are dem- 24 onstrated as providing data with the same 25 precision, reliability, accessibility, and f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00397 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 398 1 timeliness, or, to the extent the Adminis- 2 trator determines is appropriate for report- 3 ing small amounts of emissions, the same 4 precision, reliability, and accessibility and 5 similar timeliness, as data provided by con- 6 tinuous monitoring systems for fuel flow or 7 emissions; or 8 ‘‘(iii) alternative methodologies that 9 are demonstrated to provide data with pre- 10 cision, reliability, accessibility, and timeli- 11 ness, or, to the extent the Administrator 12 determines is appropriate for reporting 13 small amounts of emissions, precision, reli- 14 ability, and accessibility, as similar as is 15 technically feasible to that of data gen- 16 erally provided by continuous monitoring 17 systems for fuel flow or emissions, if the 18 Administrator determines that, with re- 19 spect to a reporting entity, there is no con- 20 tinuous monitoring system or alternative 21 system described in clause (i) or (ii) that 22 is technically feasible; 23 ‘‘(H) require that the Administrator, in de- 24 termining the extent to which the requirement 25 to use systems or methodologies in accordance f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00398 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 399 1 with subparagraph (G) is appropriate for re- 2 porting entities other than covered entities or 3 for greenhouse gases to which section 722 does 4 not apply, consider the cost of using such sys- 5 tems and methodologies, and of using other sys- 6 tems and methodologies that are available and 7 suitable, for quantifying the emissions involved 8 in light of the purposes of this title, including 9 the goal of collecting consistent entity-wide 10 data; 11 ‘‘(I) include methods for minimizing double 12 reporting and avoiding irreconcilable double re- 13 porting of greenhouse gas emissions; 14 ‘‘(J) establish measurement protocols for 15 carbon capture and sequestration systems, in- 16 cluding those where enhanced hydrocarbon re- 17 covery operations occur, taking into consider- 18 ation the regulations promulgated under section 19 813; 20 ‘‘(K) require that reporting entities provide 21 the data required under this paragraph in re- 22 ports submitted electronically to the Adminis- 23 trator, in such form and containing such infor- 24 mation as may be required by the Adminis- 25 trator; f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00399 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 400 1 ‘‘(L) include requirements for keeping 2 records supporting or related to, and protocols 3 for auditing, submitted data; 4 ‘‘(M) establish consistent policies for calcu- 5 lating carbon content and greenhouse gas emis- 6 sions for each type of fossil fuel with respect to 7 which reporting is required; 8 ‘‘(N) subsequent to implementation of poli- 9 cies developed under subparagraph (M), provide 10 for immediate dissemination, to States, Indian 11 tribes, and on the Internet, of all data reported 12 under this section as soon as practicable after 13 electronic audit by the Administrator and any 14 resulting correction of data, except that data 15 shall not be disseminated under this subpara- 16 graph if— 17 ‘‘(i) its nondissemination is vital to 18 the national security of the United States, 19 as determined by the President; or 20 ‘‘(ii) it is confidential business infor- 21 mation that cannot be derived from infor- 22 mation that is otherwise publicly available 23 and that would cause significant calculable 24 competitive harm if published, except 25 that— f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00400 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 401 1 ‘‘(I) data relating to greenhouse 2 gas emissions, including any upstream 3 or verification data from reporting en- 4 tities, shall not be considered to be 5 confidential business information; and 6 ‘‘(II) data that is confidential 7 business information shall be provided 8 to a State or Indian tribe within 9 whose jurisdiction the reporting entity 10 is located, if the Administrator deter- 11 mines that such State or Indian tribe 12 has in effect protections for confiden- 13 tial business information that are 14 equivalent to protections applicable to 15 the Federal Government; 16 ‘‘(O) prescribe methods by which the Ad- 17 ministrator shall, in cases in which satisfactory 18 data are not submitted to the Administrator for 19 any period of time, estimate emission, produc- 20 tion, importation, manufacture, or delivery lev- 21 els— 22 ‘‘(i) for covered entities with respect 23 to greenhouse gas emissions, production, 24 importation, manufacture, or delivery regu- 25 lated under this title to ensure that emis- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00401 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 402 1 sions, production, importation, manufac- 2 ture, or deliveries are not underreported, 3 and to create a strong incentive for meet- 4 ing data monitoring and reporting require- 5 ments— 6 ‘‘(I) with a conservative estimate 7 of the highest emission, production, 8 importation, manufacture, or delivery 9 levels that may have occurred during 10 the period for which data are missing; 11 or 12 ‘‘(II) to the extent the Adminis- 13 trator considers appropriate, with an 14 estimate of such levels assuming the 15 unit is emitting, producing, importing, 16 manufacturing, or delivering at a 17 maximum potential level during the 18 period, in order to ensure that such 19 levels are not underreported and to 20 create a strong incentive for meeting 21 data monitoring and reporting re- 22 quirements; and 23 ‘‘(ii) for covered entities with respect 24 to greenhouse gas emissions to which sec- 25 tion 722 does not apply and for other re- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00402 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 403 1 porting entities, with a reasonable estimate 2 of the emission, production, importation, 3 manufacture, or delivery levels that may 4 have occurred during the period for which 5 data are missing; 6 ‘‘(P) require the designation of a des- 7 ignated representative for each reporting entity; 8 ‘‘(Q) require an appropriate certification, 9 by the designated representative for the report- 10 ing entity, of accurate and complete accounting 11 of greenhouse gas emissions, as determined by 12 the Administrator; and 13 ‘‘(R) include requirements for other data 14 necessary for accurate and complete accounting 15 of greenhouse gas emissions, as determined by 16 the Administrator, including data for quality 17 assurance of monitoring systems, monitors and 18 other measurement devices, and other data 19 needed to verify reported emissions, production, 20 importation, manufacture, or delivery. 21 ‘‘(2) TIMING.— 22 ‘‘(A) CALENDAR YEARS 2007 THROUGH 23 2010.—For a base period of calendar years 24 2007 through 2010, each reporting entity shall 25 submit annual data required under this section f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00403 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 404 1 to the Administrator not later than March 31, 2 2011. The Administrator may waive or modify 3 reporting requirements for calendar years 2007 4 through 2010 for categories of reporting enti- 5 ties to the extent that the Administrator deter- 6 mines that the reporting entities did not keep 7 data or records necessary to meet reporting re- 8 quirements. The Administrator may, in addition 9 to or in lieu of such requirements, collect infor- 10 mation on energy consumption and production. 11 ‘‘(B) SUBSEQUENT CALENDAR YEARS.— 12 For calendar year 2011 and each subsequent 13 calendar year, each reporting entity shall sub- 14 mit quarterly data required under this section 15 to the Administrator not later than 60 days 16 after the end of the applicable quarter, except 17 when the data is already being reported to the 18 Administrator on an earlier timeframe for an- 19 other program. 20 ‘‘(3) WAIVER OF REPORTING REQUIREMENTS.— 21 The Administrator may waive reporting require- 22 ments under this section for specific entities to the 23 extent that the Administrator determines that suffi- 24 cient and equally or more reliable verified and timely 25 data are available to the Administrator and the pub- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00404 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 405 1 lic on the Internet under other mandatory statutory 2 requirements. 3 ‘‘(4) ALTERNATIVE THRESHOLD.—The Admin- 4 istrator may, by rule, establish applicability thresh- 5 olds for reporting under this section using alter- 6 native metrics and levels, provided that such metrics 7 and levels are easier to administer and cover the 8 same size and type of sources as the threshold de- 9 fined in this section. 10 ‘‘(c) INTERRELATIONSHIP WITH OTHER SYSTEMS.— 11 In developing the regulations issued under subsection (b), 12 the Administrator shall take into account the work done 13 by the Climate Registry and other mandatory State or 14 multistate programs. Such regulations shall include an ex- 15 planation of any major differences in approach between 16 the system established under the regulations and such reg- 17 istries and programs. 18 ‘‘PART C—PROGRAM RULES 19 ‘‘SEC. 721. EMISSION ALLOWANCES. 20 ‘‘(a) IN GENERAL.—The Administrator shall estab- 21 lish a separate quantity of emission allowances for each 22 calendar year starting in 2012, in the amounts prescribed 23 under subsection (e). 24 ‘‘(b) IDENTIFICATION NUMBERS.—The Adminis- 25 trator shall assign to each emission allowance established f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00405 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 406 1 under subsection (a) a unique identification number that 2 includes the vintage year for that emission allowance. 3 ‘‘(c) LEGAL STATUS EMISSION ALLOWANCES.— OF 4 ‘‘(1) IN GENERAL.—An allowance established 5 by the Administrator under this title does not con- 6 stitute a property right. 7 ‘‘(2) TERMINATION OR LIMITATION.—Nothing 8 in this Act or any other provision of law shall be 9 construed to limit or alter the authority of the 10 United States, including the Administrator acting 11 pursuant to statutory authority, to terminate or 12 limit allowances or offset credits. 13 ‘‘(3) OTHER PROVISIONS UNAFFECTED.—Ex- 14 cept as otherwise specified in this Act, nothing in 15 this Act relating to allowances or offset credits es- 16 tablished or issued under this title shall affect the 17 application of any other provision of law to a covered 18 entity, or the responsibility for a covered entity to 19 comply with any such provision of law. 20 ‘‘(d) SAVINGS PROVISION.—Nothing in this title shall 21 be construed as requiring a change of any kind in any 22 State law regulating electric utility rates and charges, or 23 as affecting any State law regarding such State regula- 24 tion, or as limiting State regulation (including any 25 prudency review) under such a State law. Nothing in this f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00406 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 407 1 title shall be construed as modifying the Federal Power 2 Act or as affecting the authority of the Federal Energy 3 Regulatory Commission under that Act. Nothing in this 4 title shall be construed to interfere with or impair any pro- 5 gram for competitive bidding for power supply in a State 6 in which such program is established. 7 ‘‘(e) ALLOWANCES FOR EACH CALENDAR YEAR.— 8 ‘‘(1) IN GENERAL.—Except as provided in para- 9 graph (2), the number of emission allowances estab- 10 lished by the Administrator under subsection (a) for 11 each calendar year shall be as provided in the fol- 12 lowing table: Emission allowances (in mil- ‘‘Calendar year lions) 2012 4,627 2013 4,544 2014 5,099 2015 5,003 2016 5,482 2017 5,375 2018 5,269 2019 5,162 2020 5,056 2021 4,903 2022 4,751 2023 4,599 2024 4,446 f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00407 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 408 Emission allowances (in mil- ‘‘Calendar year lions) 2025 4,294 2026 4,142 2027 3,990 2028 3,837 2029 3,685 2030 3,533 2031 3,408 2032 3,283 2033 3,158 2034 3,033 2035 2,908 2036 2,784 2037 2,659 2038 2,534 2039 2,409 2040 2,284 2041 2,159 2042 2,034 2043 1,910 2044 1,785 2045 1,660 2046 1,535 2047 1,410 2048 1,285 2049 1,160 2050 and each year thereafter 1,035 1 ‘‘(2) REVISION.— f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00408 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 409 1 GENERAL.—The Administrator ‘‘(A) IN 2 may adjust, in accordance with subparagraph 3 (B), the number of emission allowances estab- 4 lished pursuant to paragraph (1) if, after notice 5 and an opportunity for public comment, the Ad- 6 ministrator determines that— 7 ‘‘(i) United States greenhouse gas 8 emissions in 2005 were other than 7,206 9 million metric tons carbon dioxide equiva- 10 lent; 11 ‘‘(ii) if the requirements of this title 12 for 2012 had been in effect in 2005, sec- 13 tion 722 would have required emission al- 14 lowances to be held for other than 66.2 15 percent of United States greenhouse gas 16 emissions in 2005; 17 ‘‘(iii) if the requirements of this title 18 for 2014 had been in effect in 2005, sec- 19 tion 722 would have required emission al- 20 lowances to be held for other than 75.7 21 percent of United States greenhouse gas 22 emissions in 2005; or 23 ‘‘(iv) if the requirements of this title 24 for 2016 had been in effect in 2005, sec- 25 tion 722 would have required emission al- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00409 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 410 1 lowances to be held for other than 84.5 2 percent United States greenhouse gas 3 emissions in 2005. 4 ‘‘(B) ADJUSTMENT FORMULA.— 5 ‘‘(i) IN GENERAL.—If the Adminis- 6 trator adjusts under this paragraph the 7 number of emission allowances established 8 pursuant to paragraph (1), the number of 9 emission allowances the Administrator es- 10 tablishes for any given calendar year shall 11 equal the product of— 12 ‘‘(I) United States greenhouse 13 gas emissions in 2005, expressed in 14 tons of carbon dioxide equivalent; 15 ‘‘(II) the percent of United 16 States greenhouse gas emissions in 17 2005, expressed in tons of carbon di- 18 oxide equivalent, that would have been 19 subject to section 722 if the require- 20 ments of this title for the given cal- 21 endar year had been in effect in 2005; 22 and 23 ‘‘(III) the percentage set forth 24 for that calendar year in section f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00410 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 411 1 703(a), or determined under clause 2 (ii) of this subparagraph. 3 ‘‘(ii) TARGETS.—In applying the for- 4 mula under clause (i)(III) of this subpara- 5 graph, for calendar years for which a per- 6 centage is not listed in section 703(a), the 7 Administrator shall use a uniform annual 8 decline in the amount of emissions between 9 the years that are specified. 10 ‘‘(iii) LIMITATION ON ADJUSTMENT 11 TIMING.—Once a calendar year has start- 12 ed, the Administrator may not adjust the 13 number of emission allowances to be estab- 14 lished for that calendar year. 15 ‘‘(C) LIMITATION AU- ON ADJUSTMENT 16 THORITY.—The Administrator may adjust 17 under this paragraph the number of emission 18 allowances to be established pursuant to para- 19 graph (1) only once. 20 ‘‘(f) COMPENSATORY ALLOWANCE.— 21 ‘‘(1) IN GENERAL.—The regulations promul- 22 gated under subsection (g) shall provide for the es- 23 tablishment and distribution of compensatory allow- 24 ances for— f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00411 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 412 1 ‘‘(A) the destruction, in 2012 or later, of 2 fluorinated gases that are greenhouse gases if— 3 ‘‘(i) allowances or offset credits were 4 retired for their production or importation; 5 and 6 ‘‘(ii) such gases are not required to be 7 destroyed under any other provision of law; 8 ‘‘(B) the nonemissive use, in 2012 or later, 9 of petroleum-based or coal-based liquid or gas- 10 eous fuel, petroleum coke, natural gas liquid, or 11 natural gas as a feedstock, if allowances or off- 12 set credits were retired for the greenhouse 13 gases that would have been emitted from their 14 combustion; and 15 ‘‘(C) the conversionary use, in 2012 or 16 later, of fluorinated gases in a manufacturing 17 process, including semiconductor research or 18 manufacturing, if allowances or offset credits 19 were retired for the production or importation 20 of such gas. 21 ‘‘(2) ESTABLISHMENT AND DISTRIBUTION.— 22 ‘‘(A) IN GENERAL.—Not later than 90 23 days after the end of each calendar year, the 24 Administrator shall establish and distribute to 25 the entity taking the actions described in sub- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00412 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 413 1 paragraph (A), (B), or (C) of paragraph (1) a 2 quantity of compensatory allowances equivalent 3 to the number of tons of carbon dioxide equiva- 4 lent of avoided emissions achieved through such 5 actions. In establishing the quantity of compen- 6 satory allowances, the Administrator shall take 7 into account the carbon dioxide equivalent value 8 of any greenhouse gas resulting from such ac- 9 tion. 10 ‘‘(B) SOURCE OF ALLOWANCES.—Compen- 11 satory allowances established under this sub- 12 section shall not be emission allowances estab- 13 lished under subsection (a). 14 ‘‘(C) IDENTIFICATION NUMBERS.—The 15 Administrator shall assign to each compen- 16 satory allowance established under subpara- 17 graph (A) a unique identification number. 18 ‘‘(3) DEFINITIONS.—For purposes of this sub- 19 section— 20 ‘‘(A) the term ‘destruction’ means the con- 21 version of a greenhouse gas by thermal, chem- 22 ical, or other means to another gas or set of 23 gases with little or no carbon dioxide equivalent 24 value; f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00413 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 414 1 ‘‘(B) the term ‘nonemissive use’ means the 2 use of fossil fuel as a feedstock in an industrial 3 or manufacturing process to the extent that 4 greenhouse gases are not emitted from such 5 process, and to the extent that the products of 6 such process are not intended for use as a fuel 7 or are otherwise intended to be contained in a 8 fuel; and 9 ‘‘(C) the term ‘conversionary use’ means 10 the conversion during research or manufac- 11 turing of a fluorinated gas into another green- 12 house gas or set of gases with a lower carbon 13 dioxide equivalent value. 14 ‘‘(g) REGULATIONS.—Not later than 24 months after 15 the date of enactment of this title, the Administrator shall 16 promulgate regulations to carry out the provisions of this 17 title. 18 ‘‘(h) FEEDSTOCK EMISSIONS STUDY.— 19 ‘‘(1) The Administrator may conduct a study to 20 determine the extent to which petroleum-based or 21 coal-based liquid or gaseous fuel, petroleum coke, 22 natural gas liquid, or natural gas are used as feed- 23 stocks in manufacturing processes to produce prod- 24 ucts and the greenhouse gas emissions resulting 25 from such uses. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00414 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 415 1 ‘‘(2) If as a result of such a study, the Admin- 2 istrator determines that the use of such products by 3 noncoverd sources results in substantial emissions of 4 greenhouse gases or their precursors and that such 5 emissions have not been adequately addressed under 6 other requirements of this Act, the Administrator 7 may, after notice and comment rulemaking, promul- 8 gate a regulation reducing compensatory allowances 9 commensurately if doing so will not result in leak- 10 age. 11 ‘‘SEC. 722. PROHIBITION OF EXCESS EMISSIONS. 12 ‘‘(a) PROHIBITION.—Except as provided in sub- 13 section (c), effective January 1, 2012, each covered entity 14 is prohibited from emitting greenhouse gases, and having 15 attributable greenhouse gas emissions, in combination, in 16 excess of its allowable emissions level. A covered entity’s 17 allowable emissions level for each calendar year is the 18 number of emission allowances (or credits or other allow- 19 ances as provided in subsection (d)) it holds as of 12:01 20 a.m. on April 1 (or a later date established by the Admin- 21 istrator under subsection (j)) of the following calendar 22 year. 23 ‘‘(b) METHODS OF DEMONSTRATING COMPLIANCE.— 24 Except as otherwise provided in this section, the owner 25 or operator of a covered entity shall not be considered to f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00415 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 416 1 be in compliance with the prohibition in subsection (a) un- 2 less, as of 12:01 a.m. on April 1 (or a later date estab- 3 lished by the Administrator under subsection (j)) of each 4 calendar year starting in 2013, the owner or operator 5 holds a quantity of emission allowances (or credits or other 6 allowances as provided in subsection (d)) at least as great 7 as the quantity calculated as follows: 8 ‘‘(1) ELECTRICITY SOURCES.—For a covered 9 entity described in section 700(14)(A), 1 emission 10 allowance for each ton of carbon dioxide equivalent 11 of greenhouse gas that such covered entity emitted 12 in the previous calendar year, excluding emissions 13 resulting from the combustion of— 14 ‘‘(A) petroleum-based or coal-based liquid 15 fuel; 16 ‘‘(B) natural gas liquid; 17 ‘‘(C) renewable biomass; 18 ‘‘(D) petroleum coke; or 19 ‘‘(E) any fluorinated gas that is a green- 20 house gas purchased for use at that covered en- 21 tity, except for nitrogen trifluoride. 22 ‘‘(2) FUEL PRODUCERS AND IMPORTERS.—For 23 a covered entity described in section 700(14)(B), 1 24 emission allowance for each ton of carbon dioxide 25 equivalent of greenhouse gas that would be emitted f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00416 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 417 1 from the combustion of any petroleum-based or coal- 2 based liquid fuel, petroleum coke, or natural gas liq- 3 uid, produced or imported by such covered entity 4 during the previous calendar year for sale or dis- 5 tribution in interstate commerce, assuming no cap- 6 ture and sequestration of any greenhouse gas emis- 7 sions. 8 ‘‘(3) INDUSTRIAL GAS PRODUCERS AND IM- 9 PORTERS.—For a covered entity described in section 10 700(14)(C), 1 emission allowance for each ton of 11 carbon dioxide equivalent of fossil fuel-based carbon 12 dioxide, nitrous oxide, or any other fluorinated gas 13 that is a greenhouse gas (except for nitrogen 14 trifluoride), or any combination thereof, produced or 15 imported by such covered entity during the previous 16 calendar year for sale or distribution in interstate 17 commerce or released as fugitive emissions in the 18 production of fluorinated gas. 19 ‘‘(4) GEOLOGICAL SEQUESTRATION SITES.—For 20 a covered entity described in section 700(14)(D), 1 21 emission allowance for each ton of carbon dioxide 22 equivalent of greenhouse gas that such covered enti- 23 ty emitted in the previous calendar year. 24 ‘‘(5) INDUSTRIAL STATIONARY SOURCES.—For 25 a covered entity described in section 700(14)(E), f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00417 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 418 1 (F), or (G), 1 emission allowance for each ton of 2 carbon dioxide equivalent of greenhouse gas that 3 such covered entity emitted in the previous calendar 4 year, excluding emissions resulting from the combus- 5 tion of— 6 ‘‘(A) petroleum-based or coal-based liquid 7 fuel; 8 ‘‘(B) natural gas liquid; 9 ‘‘(C) renewable biomass; 10 ‘‘(D) petroleum coke; or 11 ‘‘(E) any fluorinated gas that is a green- 12 house gas purchased for use at that covered en- 13 tity, except for nitrogen trifluoride. 14 ‘‘(6) INDUSTRIAL FOSSIL FUEL-FIRED COMBUS- 15 TION DEVICES.—For a covered entity described in 16 section 700(14)(H), 1 emission allowance for each 17 ton of carbon dioxide equivalent of greenhouse gas 18 that the devices emitted in the previous calendar 19 year, excluding emissions resulting from the combus- 20 tion of— 21 ‘‘(A) petroleum-based or coal-based liquid 22 fuel; 23 ‘‘(B) natural gas liquid; 24 ‘‘(C) renewable biomass; or 25 ‘‘(D) petroleum coke. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00418 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 419 1 GAS LOCAL DISTRIBUTION COM- ‘‘(7) NATURAL 2 PANIES.—For a covered entity described in section 3 700(14)(I), 1 emission allowance for each ton of car- 4 bon dioxide equivalent of greenhouse gas that will be 5 emitted from the combustion of the natural gas, and 6 any other gas meeting the specifications for commin- 7 gling with natural gas for purposes of deliver, that 8 such entity delivered during the previous calendar 9 year to customers that are not covered entities, as- 10 suming no capture and sequestration of that green- 11 house gas. 12 ‘‘(8) NITROGEN TRIFLUORIDE SOURCES.—For 13 a covered entity described in section 700(14)(J), 1 14 emission allowance for each ton of carbon dioxide 15 equivalent of nitrogen trifluoride that such covered 16 entity emitted in the previous calendar year. 17 ‘‘(9) ALGAE-BASED FUELS.—Where carbon di- 18 oxide (or another greenhouse gas) is used as an 19 input in the production of fuels, the Administrator 20 shall ensure that allowances are not required to be 21 held both for the carbon dioxide used to grow algae 22 and for the carbon dioxide emitted from combustion 23 of the fuel produced from such algae. 24 ‘‘(10) FUGITIVE EMISSIONS.—The greenhouse 25 gas emissions to which paragraphs (1), (5), (6), and f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00419 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 420 1 (8) apply shall not include fugitive emissions of 2 greenhouse gas, except to the extent the Adminis- 3 trator determines that data on the carbon dioxide 4 equivalent value of greenhouse gas in the fugitive 5 emissions can be provided with sufficient precision, 6 reliability, accessibility, and timeliness to ensure the 7 integrity of emission allowances, the allowance track- 8 ing system, and the cap on emissions. 9 ‘‘(11) EXPORT EXEMPTION.—This section shall 10 not apply to any petroleum-based or coal-based liq- 11 uid fuel, petroleum coke, natural gas liquid, or 12 fluorinated gas that is exported for any calendar 13 year. 14 ‘‘(12) NATURAL LIQUIDS.—Notwith- GAS 15 standing subsection (a), in the case where the owner 16 or operator of a covered entity described in section 17 700(14)(B) that produces natural gas liquids does 18 not take ownership of the liquids, nor is responsible 19 for the distribution or use of the liquids in com- 20 merce, the owner of the liquids shall be responsible 21 for compliance under this section. In such a case, 22 the owner of the covered entity shall provide the Ad- 23 ministrator, in a manner to be determined by the 24 Administrator, information regarding the quantity f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00420 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 421 1 and ownership of liquids produced at the covered en- 2 tity. 3 ‘‘(13) APPLICATION PARA- OF MULTIPLE 4 GRAPHS.—For a covered entity to which more than 5 1 of paragraphs (1) through (8) apply, all applicable 6 paragraphs shall apply, except that not more than 1 7 emission allowance shall be required for the same 8 emission. 9 ‘‘(c) PHASE-IN OF PROHIBITION.— 10 ‘‘(1) INDUSTRIAL STATIONARY SOURCES.—The 11 prohibition under subsection (a) shall first apply to 12 a covered entity described in section 700(14)(E), 13 (F), (G), or (H) with respect to emissions occurring 14 during calendar year 2014. 15 ‘‘(2) NATURAL GAS LOCAL DISTRIBUTION COM- 16 PANIES.—The prohibition under subsection (a) shall 17 first apply to a covered entity described in section 18 700(14)(I) with respect to deliveries occurring dur- 19 ing calendar year 2016. 20 ‘‘(d) ADDITIONAL METHODS.—In addition to using 21 the method of compliance described in subsection (b), a 22 covered entity may do the following: 23 ‘‘(1) OFFSET CREDITS.— 24 ‘‘(A) IN GENERAL.—Covered entities col- 25 lectively may, in accordance with this para- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00421 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 422 1 graph, use offset credits to demonstrate compli- 2 ance for up to a maximum of 2 billion tons of 3 greenhouse gas emissions annually. The ability 4 to demonstrate compliance with offset credits 5 shall be divided pro rata among covered entities 6 by allowing each covered entity to satisfy a per- 7 centage of the number of allowances required to 8 be held under subsection (b) to demonstrate 9 compliance by holding 1 domestic offset credit 10 or 1.25 international offset credits in lieu of an 11 emission allowance, except as provided in sub- 12 paragraph (D). 13 ‘‘(B) APPLICABLE PERCENTAGE.—The 14 percentage referred to in subparagraph (A) for 15 a given calendar year shall be determined by di- 16 viding 2 billion by the sum of 2 billion plus the 17 number of emission allowances established 18 under section 721(a) for the previous year, and 19 multiplying that number by 100. Not more than 20 one half of the applicable percentage under this 21 paragraph may be used for a year by holding 22 domestic offset credits, and not more than one 23 half of the applicable percentage under this 24 paragraph may be used for a year by holding f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00422 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 423 1 international offset credits, except as provided 2 in subparagraph (C). 3 ‘‘(C) MODIFIED PERCENTAGES.—If the 4 Administrator determines that domestic offset 5 credits available for use in any calendar year at 6 domestic offset prices generally equal to or less 7 than allowance prices, are likely to offset less 8 than 0.9 billion tons of greenhouse gas emis- 9 sions measured in tons of carbon dioxide 10 equivalents, the Administrator shall increase 11 the percent of emissions that can be offset 12 through the use of international offset credits 13 (and decrease the percent of emissions that can 14 be allowed through the use of domestic offset 15 credits by the same amount) to reflect the 16 amount that 1.0 billion exceeds the number of 17 domestic offset credits the Administrator deter- 18 mines is available for that year, up to a max- 19 imum of 0.5 billion emissions. 20 ‘‘(D) INTERNATIONAL OFFSET CREDITS.— 21 Notwithstanding subparagraph (A), to dem- 22 onstrate compliance prior to calendar year 23 2018, a covered entity may use 1 international 24 offset credit in lieu of an emission allowance up 25 to the amount permitted under this paragraph. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00423 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 424 1 ‘‘(E) PRESIDENT’S RECOMMENDATION.— 2 The President may make a recommendation to 3 Congress as to whether the number 2 billion 4 specified in subparagraphs (A) and (B) should 5 be increased or decreased. 6 ‘‘(2) INTERNATIONAL ALLOW- EMISSION 7 ANCES.—To demonstrate compliance, a covered enti- 8 ty may hold an international emission allowance in 9 lieu of an emission allowance, except as modified 10 under section 728(d). 11 ‘‘(3) COMPENSATORY ALLOWANCES.—To dem- 12 onstrate compliance, a covered entity may hold a 13 compensatory allowance obtained under section 14 721(f) in lieu of an emission allowance. 15 ‘‘(d) RETIREMENT ALLOWANCES CRED- OF AND 16 ITS.—As soon as practicable after a deadline established 17 for covered entities to demonstrate compliance with this 18 title, the Administrator shall retire the quantity of allow- 19 ances or credits required to be held under this title. 20 ‘‘(e) ALTERNATIVE METRICS.—For categories of cov- 21 ered entities described in subparagraph (B), (C), (F), (G), 22 or (H) of section 700(14), the Administrator may, by rule, 23 establish an applicability threshold for inclusion under 24 those subparagraphs using an alternative metric and level, 25 provided that such metric and level are easier to admin- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00424 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 425 1 ister and cover the same size and type of sources as the 2 threshold defined in such subparagraphs. 3 ‘‘(f) THRESHOLD REVIEW.—For each category of 4 covered entities described in subparagraph (B), (C), (F), 5 (G), or (H) of section 700(14), the Administrator shall, 6 in 2020 and once every 8 years thereafter, review the car- 7 bon dioxide equivalent emission thresholds that are used 8 to define covered entities. After consideration of— 9 ‘‘(1) emissions from covered entities in each 10 such category, and from other entities of the same 11 type that emit less than the threshold amount for 12 the category (including emission sources that com- 13 mence operation after the date of enactment of this 14 title that are not covered entities); and 15 ‘‘(2) whether greater greenhouse gas emission 16 reductions can be cost-effectively achieved by low- 17 ering the applicable threshold, 18 the Administrator may by rule lower such threshold to not 19 less than 10,000 tons of carbon dioxide equivalent emis- 20 sions. In determining the cost effectiveness of potential re- 21 ductions from lowering the threshold for covered entities, 22 the Administrator shall consider alternative regulatory 23 greenhouse gas programs, including setting standards 24 under other titles of this Act. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00425 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 426 1 ‘‘(g) DESIGNATED REPRESENTATIVES.—The regula- 2 tions promulgated under section 721(g) shall require that 3 each covered entity, and each entity holding allowances or 4 credits or receiving allowances or credits from the Admin- 5 istrator under this title, select a designated representative. 6 ‘‘(h) EDUCATION AND OUTREACH.— 7 ‘‘(1) IN GENERAL.—The Administrator shall es- 8 tablish and carry out a program of education and 9 outreach to assist covered entities, especially entities 10 having little experience with environmental regu- 11 latory requirements similar or comparable to those 12 under this title, in preparing to meet the compliance 13 obligations of this title. Such program shall include 14 education with respect to using markets to effec- 15 tively achieve such compliance. 16 ‘‘(2) FAILURE TO RECEIVE INFORMATION.—A 17 failure to receive information or assistance under 18 this subsection may not be used as a defense against 19 an allegation of any violation of this title. 20 ‘‘(i) ADJUSTMENT DEADLINE.—The Adminis- OF 21 trator may, by rule, establish a deadline for demonstrating 22 compliance, for a calendar year, later than the date pro- 23 vided in subsection (a), as necessary to ensure the avail- 24 ability of emissions data, but in no event shall the deadline 25 be later than June 1. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00426 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 427 1 ‘‘(j) NOTICE REQUIREMENT FOR COVERED ENTITIES 2 RECEIVING NATURAL GAS FROM NATURAL GAS LOCAL 3 DISTRIBUTION COMPANIES.—The owner or operator of a 4 covered entity that takes delivery of natural gas from a 5 natural gas local distribution company shall, not later 6 than September 1 of each calendar year, notify such nat- 7 ural gas local distribution company in writing that such 8 entity will qualify as a covered entity under this title for 9 that calendar year. 10 ‘‘(k) COMPLIANCE OBLIGATION.—For purposes of 11 this title, the year of a compliance obligation is the year 12 in which compliance is determined, not the year in which 13 the greenhouse gas emissions occur or the covered entity 14 has attributable greenhouse gas emissions. 15 ‘‘SEC. 723. PENALTY FOR NONCOMPLIANCE. 16 ‘‘(a) ENFORCEMENT.—A violation of any prohibition 17 of, requirement of, or regulation promulgated pursuant to 18 this title shall be a violation of this Act. It shall be a viola- 19 tion of this Act for a covered entity to emit greenhouse 20 gases, and have attributable greenhouse gas emissions, in 21 combination, in excess of its allowable emissions level as 22 provided in section 722(a). Each ton of carbon dioxide 23 equivalent for which a covered entity fails to demonstrate 24 compliance under section 722(b) shall be a separate viola- 25 tion. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00427 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 428 1 ‘‘(b) EXCESS EMISSIONS PENALTY.— 2 ‘‘(1) IN GENERAL.—The owner or operator of 3 any covered entity that fails for any year to comply, 4 on the deadline described in section 722(a) or (i), 5 shall be liable for payment to the Administrator of 6 an excess emissions penalty in the amount described 7 in paragraph (2). 8 ‘‘(2) AMOUNT.—The amount of an excess emis- 9 sions penalty required to be paid under paragraph 10 (1) shall be equal to the product obtained by multi- 11 plying— 12 ‘‘(A) the tons of carbon dioxide equivalent 13 for which the owner or operator of a covered 14 entity failed to comply under section 722(b) on 15 the deadline; by 16 ‘‘(B) twice the fair market value of emis- 17 sion allowances established for emissions occur- 18 ring in the calendar year for which the emission 19 allowances were due. 20 ‘‘(3) TIMING.—An excess emissions penalty re- 21 quired under this subsection shall be immediately 22 due and payable to the Administrator, without de- 23 mand, in accordance with regulations promulgated 24 by the Administrator, which shall be issued not later f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00428 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 429 1 than 2 years after the date of enactment of this 2 title. 3 ‘‘(4) NO EFFECT ON LIABILITY.—An excess 4 emissions penalty due and payable by the owners or 5 operators of a covered entity under this subsection 6 shall not diminish the liability of the owners or oper- 7 ators for any fine, penalty, or assessment against 8 the owners or operators for the same violation under 9 any other provision of this Act or any other law. 10 ‘‘(c) EXCESS EMISSIONS ALLOWANCES.—The owner 11 or operator of a covered entity that fails for any year to 12 comply on the deadline described in section 722(a) or (i) 13 shall be liable to offset the covered entity’s excess com- 14 bination of greenhouse gases emitted and attributable 15 greenhouse gas emissions by an equal quantity of emission 16 allowances during the following calendar year, or such 17 longer period as the Administrator may prescribe. During 18 the year in which the covered entity failed to comply, or 19 any year thereafter, the Administrator may deduct the 20 emission allowances required under this subsection to off- 21 set the covered entity’s excess actual or attributable emis- 22 sions. 23 ‘‘SEC. 724. TRADING. 24 ‘‘(a) PERMITTED TRANSACTIONS.—Except as other- 25 wise provided in this title, the lawful holder of an emission f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00429 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 430 1 allowance, compensatory allowance, or offset credit may, 2 without restriction, sell, exchange, transfer, hold for com- 3 pliance in accordance with section 722, or request that the 4 Administrator retire the emission allowance or offset cred- 5 it. 6 ‘‘(b) NO RESTRICTION TRANSACTIONS.—The ON 7 privilege of purchasing, holding, selling, exchanging, 8 transferring, and requesting retirement of emission allow- 9 ances, compensatory allowances, or offset credits shall not 10 be restricted to the owners and operators of covered enti- 11 ties, except as otherwise provided in this title. 12 ‘‘(c) EFFECTIVENESS ALLOWANCE TRANS- OF 13 FERS.—No transfer of an emission allowance, compen- 14 satory allowance, or offset credit shall be effective for pur- 15 poses of this title until a certification of the transfer, 16 signed by the designated representative of the transferor, 17 is received and recorded by the Administrator in accord- 18 ance with regulations promulgated under section 721(g). 19 ‘‘(d) ALLOWANCE TRACKING SYSTEM.—The regula- 20 tions promulgated under section 721(g) shall include a 21 system for issuing, recording, holding, and tracking allow- 22 ances and offset credits that shall specify all necessary 23 procedures and requirements for an orderly and competi- 24 tive functioning of the allowance and offset credit market. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00430 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 431 1 Such regulations shall provide for appropriate publication 2 of the information in the system on the Internet. 3 ‘‘SEC. 725. BANKING AND BORROWING. 4 ‘‘(a) BANKING.—An emission allowance may be used 5 to comply with section 722 or section 723 for emissions 6 in— 7 ‘‘(1) the vintage year for the allowance; or 8 ‘‘(2) any calendar year subsequent to the vin- 9 tage year for the allowance. 10 ‘‘(b) EXPIRATION.— 11 ‘‘(1) REGULATIONS.—The Administrator may 12 establish by regulation criteria and procedures for 13 determining whether, and for implementing a deter- 14 mination that, the expiration of an allowance or 15 credit established or issued by the Administrator 16 under this title, or expiration of the ability to use an 17 international emission allowance to comply with sec- 18 tion 722, is necessary to ensure the authenticity and 19 integrity of allowances or credits or the allowance 20 tracking system. 21 ‘‘(2) GENERAL RULE.—An allowance or credit 22 established or issued by the Administrator under 23 this title shall not expire unless— 24 ‘‘(A) it is retired by the Administrator as 25 required under this title; or f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00431 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 432 1 ‘‘(B) it is determined to expire or to have 2 expired by a specific date by the Administrator 3 in accordance with regulations promulgated 4 under paragraph (1). 5 ‘‘(3) INTERNATIONAL ALLOW- EMISSION 6 ANCES.—The ability to use an international emission 7 allowance to comply with section 722 shall not ex- 8 pire unless— 9 ‘‘(A) the allowance is retired by the Ad- 10 ministrator as required by this title; or 11 ‘‘(B) the ability to use such allowance to 12 meet such compliance obligation requirements is 13 determined to expire or to have expired by a 14 specific date by the Administrator in accord- 15 ance with regulations promulgated under para- 16 graph (1). 17 ‘‘(c) BORROWING FUTURE VINTAGE YEAR ALLOW- 18 ANCES.— 19 ‘‘(1) BORROWING WITHOUT INTEREST.—In ad- 20 dition to the uses described in subsection (a), an 21 emission allowance may be used to comply with sec- 22 tion 722(a) or section 723 for emissions, production, 23 importation, manufacture, or deliveries in the cal- 24 endar year immediately preceding the vintage year 25 for the allowance. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00432 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 433 1 WITH INTEREST.— ‘‘(2) BORROWING 2 ‘‘(A) IN GENERAL.—A covered entity may 3 satisfy up to 15 percent of its compliance obli- 4 gations under section 722(a) in a specific cal- 5 endar year by holding emission allowances with 6 a vintage year 1 to 5 years later than that cal- 7 endar year. 8 ‘‘(B) LIMITATIONS.—An emission allow- 9 ance borrowed pursuant to this paragraph shall 10 be an emission allowance established by the Ad- 11 ministrator for a specific future calendar year 12 under section 721(a) and that is held by the 13 borrower. 14 ‘‘(C) REPAYMENT WITH INTEREST.—For 15 each emission allowance that an owner or oper- 16 ator of a covered entity borrows pursuant to 17 this paragraph, such owner or operator shall, at 18 the time it borrows the allowance, hold for re- 19 tirement by the Administrator a quantity of 20 emission allowances that is equal to the product 21 obtained by multiplying— 22 ‘‘(i) 0.08; by 23 ‘‘(ii) the number of years between the 24 calendar year in which the allowance is f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00433 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 434 1 being used to satisfy a compliance obliga- 2 tion and the vintage year of the allowance. 3 ‘‘SEC. 726. STRATEGIC RESERVE. 4 ‘‘(a) STRATEGIC RESERVE AUCTIONS.— 5 ‘‘(1) IN GENERAL.—Once each quarter of each 6 calendar year for which allowances are established 7 under section 721(a), the Administrator shall auc- 8 tion strategic reserve allowances. 9 ‘‘(2) RESTRICTION TO COVERED ENTITIES.—In 10 each auction conducted under paragraph (1), only 11 covered entities that the Administrator expects will 12 be required to comply with section 722(a) in the fol- 13 lowing calendar year shall be eligible to make pur- 14 chases. 15 ‘‘(b) POOL EMISSION ALLOWANCES STRA- OF FOR 16 RESERVE AUCTIONS.— TEGIC 17 ‘‘(1) FILLING THE STRATEGIC RESERVE INI- 18 TIALLY.— 19 ‘‘(A) IN GENERAL.—The Administrator 20 shall, not later than 2 years after the date of 21 enactment of this title, establish a strategic re- 22 serve account, and shall place in that account 23 an amount of emission allowances established 24 under section 721(a) for each calendar year f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00434 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 435 1 from 2012 through 2050 in the amounts speci- 2 fied in subparagraph (B) of this paragraph. 3 ‘‘(B) AMOUNT.—The amount referred to in 4 subparagraph (A) shall be— 5 ‘‘(i) for each of calendar years 2012 6 through 2019, 1 percent of the quantity of 7 emission allowances established for that 8 year pursuant to section 721(e)(1); 9 ‘‘(ii) for each of calendar years 2020 10 through 2029, 2 percent of the quantity of 11 emission allowances established for that 12 year pursuant to section 721(e)(1); and 13 ‘‘(iii) for each of calendar years 2030 14 through 2050, 3 percent of the quantity of 15 emission allowances established for that 16 year pursuant to section 721(e)(1). 17 ‘‘(C) EFFECT ON OTHER PROVISIONS.— 18 Any provision in this title (except for subpara- 19 graph (B) of this paragraph) that refers to a 20 quantity or percentage of the emission allow- 21 ances established for a calendar year under sec- 22 tion 721(a) shall be considered to refer to the 23 amount of emission allowances as determined 24 pursuant to section 721(e), less any emission 25 allowances established for that year that are f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00435 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 436 1 placed in the strategic reserve account under 2 this paragraph. 3 ‘‘(2) SUPPLEMENTING RE- THE STRATEGIC 4 SERVE.—The Administrator shall also— 5 ‘‘(A) at the end of each calendar year, 6 transfer to the strategic reserve account each 7 emission allowance that was offered for sale but 8 not sold at any auction conducted under part 9 H; and 10 ‘‘(B) transfer emission allowances estab- 11 lished under subsection (g) from auction pro- 12 ceeds, and deposit them into the strategic re- 13 serve, to the extent necessary to maintain the 14 reserve at its original size. 15 ‘‘(c) MINIMUM STRATEGIC RESERVE AUCTION 16 PRICE.— 17 ‘‘(1) IN GENERAL.—At each strategic reserve 18 auction, the Administrator shall offer emission al- 19 lowances for sale beginning at a minimum price per 20 emission allowance, which shall be known as the 21 ‘minimum strategic reserve auction price’. 22 ‘‘(2) INITIAL MINIMUM STRATEGIC RESERVE 23 AUCTION PRICES.—The minimum strategic reserve auction price shall be øinsert amount twice the 24 25 EPA-modeled 2012 allowance price EPA provides to f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00436 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 437 1 the Committee¿ for the strategic reserve auctions 2 held in 2012. For the strategic reserve auctions held 3 in 2013 and 2014, the minimum strategic reserve 4 auction price shall be the strategic reserve auction 5 price for the previous year increased by 5 percent 6 plus the rate of inflation (as measured by the Con- 7 sumer Price Index for All Urban Consumers). 8 ‘‘(3) MINIMUM STRATEGIC RESERVE AUCTION 9 PRICE IN SUBSEQUENT YEARS.—For each strategic 10 reserve auction held in 2015 and each year there- 11 after, the minimum strategic reserve auction price 12 shall be 60 percent above a rolling 36-month average 13 of the daily closing price for that year’s emission al- 14 lowance vintage as reported on registered carbon 15 trading facilities, calculated using constant dollars. 16 ‘‘(d) QUANTITY EMISSION ALLOWANCES RE- OF 17 FROM THE STRATEGIC RESERVE.— LEASED 18 ‘‘(1) INITIAL LIMITS.—For each of calendar 19 years 2012 through 2016, the annual limit on the 20 number of emission allowances from the strategic re- 21 serve account that may be auctioned is an amount 22 equal to 5 percent of the emission allowances estab- 23 lished for that calendar year under section 721(a). 24 This limit does not apply to international offset f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00437 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 438 1 credits sold on consignment pursuant to subsection 2 (h). 3 ‘‘(2) LIMITS IN SUBSEQUENT YEARS.—For cal- 4 endar year 2017 and each year thereafter, the an- 5 nual limit on the number of emission allowances 6 from the strategic reserve account that may be auc- 7 tioned is an amount equal to 10 percent of the emis- 8 sion allowances established for that calendar year 9 under section 721(a). This limit does not apply to 10 international offset credits sold on consignment pur- 11 suant to subsection (h). 12 ‘‘(3) ALLOCATION OF LIMITATION.—One-fourth 13 of each year’s annual strategic reserve auction limit 14 under this subsection shall be made available for 15 auction in each quarter. Any allowances from the 16 strategic reserve account that are made available for 17 sale in a quarterly auction and not sold shall be 18 rolled over and added to the quantity available for 19 sale in the following quarter, except that allowances 20 not sold at auction in the fourth quarter of a year 21 shall not be rolled over to the following calendar 22 year’s auctions, but shall be returned to the stra- 23 tegic reserve account. 24 ‘‘(e) PURCHASE LIMIT.— f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00438 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 439 1 GENERAL.—Except as provided in para- ‘‘(1) IN 2 graph (2) or (3), the annual number of emission al- 3 lowances that a covered entity may purchase at the 4 strategic reserve auctions in each calendar year shall 5 not exceed 20 percent of the covered entity’s emis- 6 sions during the most recent year for which allow- 7 ances or credits were retired under section 722(a). 8 ‘‘(2) 2012 LIMIT.—For calendar year 2012, the 9 maximum aggregate number of emission allowances 10 that a covered entity may purchase from that year’s 11 strategic reserve auctions shall be 20 percent of the 12 covered entity’s greenhouse gas emissions that the 13 covered entity reported to the registry established 14 under section 713 for 2011 and that would be sub- 15 ject to section 722(a) if occurring in later calendar 16 years. 17 ‘‘(3) NEW ENTRANTS.—The Administrator 18 shall, by regulation, establish a separate limitation 19 applicable to entities that expect to become a cov- 20 ered entity in the year of the auction, permitting 21 them to purchase emission allowances at the stra- 22 tegic reserve auctions in their first calendar year of 23 operation in an amount of at least 20 percent of 24 their expected combined emissions and attributable 25 greenhouse gas emissions for that year. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00439 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 440 1 ‘‘(f) DELEGATION OR CONTRACT.—Pursuant to regu- 2 lations under this section, the Administrator may, by dele- 3 gation or contract, provide for the conduct of strategic re- 4 serve auctions under the Administrator’s supervision by 5 other departments or agencies of the Federal Government 6 or by nongovernmental agencies, groups, or organizations. 7 ‘‘(g) USE OF AUCTION PROCEEDS.— 8 ‘‘(1) DEPOSIT IN STRATEGIC RESERVE FUND.— 9 The proceeds from strategic reserve auctions shall be 10 placed in the Strategic Reserve Fund established 11 under section 782(c), and shall be available without 12 further appropriation or fiscal year limitation for the 13 purposes described in this subsection. 14 ‘‘(2) INTERNATIONAL OFFSET CREDITS FOR RE- 15 DUCED DEFORESTATION.—The Administrator shall 16 use the proceeds from each strategic reserve auction 17 to purchase international offset credits issued for re- 18 duced deforestation activities pursuant to section 19 743(e). The Administrator shall retire those inter- 20 national offset credits and establish a number of 21 emission allowances equal to 80 percent of the num- 22 ber of international offset credits so retired. Emis- 23 sion allowances established under this paragraph 24 shall be in addition to those established under sec- 25 tion 721(a). f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00440 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 441 1 ALLOWANCES.—The Adminis- ‘‘(3) EMISSION 2 trator shall deposit emission allowances established 3 under paragraph (2) in the strategic reserve, except 4 that, with respect to any such emission allowances in 5 excess of the amount necessary to fill the strategic 6 reserve to its original size, the Administrator shall— 7 ‘‘(A) except as provided in subparagraph 8 (B), assign a vintage year to the emission al- 9 lowance, which shall be no earlier than the year 10 in which the allowance is established under 11 paragraph (2), and make the emission allow- 12 ances available for auction under section 791; 13 and 14 ‘‘(B) to the extent any such allowances 15 cannot be assigned a vintage year because of 16 the limitation in paragraph (4), retire the allow- 17 ances. 18 ‘‘(4) LIMITATION.—In no case may the Admin- 19 istrator assign under paragraph (3)(A) more emis- 20 sion allowances to a vintage year than the number 21 of emission allowances from that vintage year that 22 were placed in the strategic reserve account under 23 subsection (b)(1). 24 ‘‘(h) AVAILABILITY INTERNATIONAL OFFSET OF 25 CREDITS FOR AUCTION.— f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00441 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 442 1 GENERAL.—The regulations promul- ‘‘(1) IN 2 gated under section 721(g) shall allow any entity 3 holding international offset credits from reduced de- 4 forestation issued under section 743(e) to request 5 that the Administrator include such offset credits in 6 an upcoming strategic reserve auction. The regula- 7 tions shall provide that— 8 ‘‘(A) such international offset credits will 9 be used to fill bid orders only after the supply 10 of strategic reserve allowances available for sale 11 at that auction has been depleted; 12 ‘‘(B) international offset credits may be 13 sold at a strategic reserve auction under this 14 subsection only if the Administrator determines 15 that it is highly likely that covered entities will, 16 to cover emissions occurring in the year the 17 auction is held, use under section 722 offset 18 credits in an amount equal to or greater than 19 80 percent of 2 billion tons of carbon dioxide 20 equivalent; 21 ‘‘(C) upon sale of such international offset 22 credits, the Administrator shall retire those 23 international offset credits, and establish and 24 provide to the purchasers a number of emission 25 allowances equal to 80 percent of the number of f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00442 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 443 1 international offset credits so retired, which al- 2 lowances shall be in addition to those estab- 3 lished under section 721(a); and 4 ‘‘(D) for international offset credits sold 5 pursuant to this subsection, the proceeds for 6 the entity that offered the international offset 7 credits for sale shall be the lesser of— 8 ‘‘(i) the average daily closing price for 9 international offset credits sold on reg- 10 istered exchanges (or if such price is un- 11 available, the average price as determined 12 by the Administrator) during the six 13 months prior to the strategic reserve auc- 14 tion at which they were auctioned, with the 15 remaining funds collected upon the sale of 16 the international offset credits deposited in 17 the Treasury; and 18 ‘‘(ii) the amount received for the 19 international offset credits at the auction. 20 ‘‘(2) PROCEEDS.—For international offset cred- 21 its auctioned pursuant to this subsection, notwith- 22 standing section 3302 of title 31, United States 23 Code, or any other provision of law, within 90 days 24 of receipt, the United States shall transfer the pro- 25 ceeds from the auction, as defined in paragraph f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00443 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 444 1 (1)(D), to the entity which possessed the inter- 2 national offset credits auctioned. No funds trans- 3 ferred from a purchaser to a seller of international 4 offset credits under this paragraph shall be held by 5 any officer or employee of the United States or 6 treated for any purpose as public monies. 7 ‘‘(3) PRICING.—When the Administrator acts 8 under this subsection as the agent of an entity in 9 possession of international offset credits, the Admin- 10 istrator is not obligated to obtain the highest price 11 possible for the international offset credits, and in- 12 stead shall auction such international offset credits 13 in the same manner and pursuant to the same rules 14 (except as modified in paragraph (1)) as set forth 15 for auctioning strategic reserve allowances. Entities 16 requesting that such international offset credits be 17 offered for sale at a strategic reserve auction may 18 not set a minimum reserve price for their inter- 19 national offset credits. 20 ‘‘(i) INITIAL REGULATIONS.—Not later than 24 21 months after the date of enactment of this title, the Ad- 22 ministrator shall promulgate regulations, in consultation 23 with other appropriate agencies, governing the auction of 24 allowances under this section. Such regulations shall in- 25 clude the following requirements: f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00444 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 445 1 ‘‘(1) FREQUENCY; FIRST AUCTION.—Auctions 2 shall be held four times per year at regular intervals, 3 with the first auction to be held no later than March 4 31, 2012. 5 ‘‘(2) AUCTION FORMAT.—Auctions shall follow 6 a single-round, sealed-bid, uniform price format. 7 ‘‘(3) PARTICIPATION; FINANCIAL ASSURANCE.— 8 Auctions shall be open to any covered entity eligible 9 to purchase emission allowances under subsection 10 (a)(2), except that the Administrator may establish 11 financial assurance requirements to ensure that auc- 12 tion participants can and will perform on their bids. 13 ‘‘(4) DISCLOSURE OWNER- OF BENEFICIAL 14 SHIP.—Each bidder in an auction shall be required 15 to disclose the person or entity sponsoring or bene- 16 fitting from the bidder’s participation in the auction 17 if such person or entity is, in whole or in part, other 18 than the bidder. 19 ‘‘(5) PURCHASE LIMITS.—No person may, di- 20 rectly or in concert with another participant, pur- 21 chase more than 20 percent of the allowances of- 22 fered for sale at any quarterly auction. 23 ‘‘(6) PUBLICATION INFORMATION.—After OF 24 the auction, the Administrator shall, in a timely 25 fashion, publish the identities of winning bidders, f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00445 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 446 1 the quantity of allowances obtained by each winning 2 bidder, and the auction clearing price. 3 ‘‘(7) OTHER REQUIREMENTS.—The Adminis- 4 trator may include in the regulations such other re- 5 quirements or provisions as the Administrator, in 6 consultation with other agencies as appropriate, con- 7 siders appropriate to promote effective, efficient, 8 transparent, and fair administration of auctions 9 under this section. 10 ‘‘(j) REVISION REGULATIONS.—The Adminis- OF 11 trator may, at any time, in consultation with other agen- 12 cies as appropriate, revise the initial regulations promul- 13 gated under subsection (i). Such revised regulations need 14 not meet the requirements identified in subsection (i) if 15 the Administrator determines that an alternative auction 16 design would be more effective, taking into account factors 17 including costs of administration, transparency, fairness, 18 and risks of collusion or manipulation. In determining 19 whether and how to revise the initial regulations under 20 this subsection, the Administrator shall not consider maxi- 21 mization of revenues to the Federal Government. 22 ‘‘SEC. 727. PERMITS. 23 ‘‘(a) PERMIT PROGRAM.—For stationary sources 24 subject to title V of this Act, the provisions of this title 25 shall be implemented by permits issued to covered entities f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00446 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 447 1 (and enforced) in accordance with the provisions of title 2 V, as modified by this title. Any such permit issued by 3 the Administrator, or by a State with an approved permit 4 program, shall require a covered entity to hold a number 5 of emission allowances at least equal to the total annual 6 amount of carbon dioxide equivalents for its combined 7 emissions and attributable greenhouse gas emissions to 8 which section 722 applies. No such permit shall be issued 9 that is inconsistent with the requirements of this title, and 10 title V as applicable. Nothing in this section regarding 11 compliance plans or in title V shall be construed as affect- 12 ing emission allowances. Submission of a statement by the 13 owner or operator, or the designated representative of the 14 owners and operators, of a covered entity that the owners 15 and operators will hold emission allowances not less than 16 the total amount of carbon dioxide equivalents for a year 17 for its combined emissions and attributable greenhouse 18 gas emissions to which section 722 applies shall be deemed 19 to meet the proposed and approved planning requirements 20 of title V. Recordation by the Administrator of transfers 21 of emission allowances shall amend automatically all appli- 22 cable proposed or approved permit applications, compli- 23 ance plans, and permits. 24 ‘‘(b) MULTIPLE OWNERS.—No permit shall be issued 25 under this section and no allowances or offset credits shall f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00447 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 448 1 be disbursed under this title to a covered entity or any 2 other person until the designated representative of the 3 owners or operators has filed a certificate of representa- 4 tion with regard to matters under this title, including the 5 holding and distribution of emission allowances and the 6 proceeds of transactions involving emission allowances. 7 Where there are multiple holders of a legal or equitable 8 title to, or a leasehold interest in, such a covered entity 9 or other entity or where a utility or industrial customer 10 purchases power from an independent power producer, the 11 certificate shall state— 12 ‘‘(1) that emission allowances and the proceeds 13 of transactions involving emission allowances will be 14 deemed to be held or distributed in proportion to 15 each holder’s legal, equitable, leasehold, or contrac- 16 tual reservation or entitlement; or 17 ‘‘(2) if such multiple holders have expressly pro- 18 vided for a different distribution of emission allow- 19 ances by contract, that emission allowances and the 20 proceeds of transactions involving emission allow- 21 ances will be deemed to be held or distributed in ac- 22 cordance with the contract. 23 A passive lessor, or a person who has an equitable interest 24 through such lessor, whose rental payments are not based, 25 either directly or indirectly, upon the revenues or income f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00448 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 449 1 from the covered entity or other person shall not be 2 deemed to be a holder of a legal, equitable, leasehold, or 3 contractual interest for the purpose of holding or distrib- 4 uting emission allowances as provided in this subsection, 5 during either the term of such leasehold or thereafter, un- 6 less expressly provided for in the leasehold agreement. Ex- 7 cept as otherwise provided in this subsection, where all 8 legal or equitable title to or interest in a covered entity, 9 or other entity, is held by a single person, the certificate 10 shall state that all emission allowances received by the en- 11 tity are deemed to be held for that person. 12 ‘‘(c) PROHIBITION.—It shall be unlawful for any per- 13 son to operate any covered entity øthat is a stationary 14 source subject to title V¿ except in compliance with the 15 terms and requirements of a permit issued by the Admin- 16 istrator or a State with an approved permit program. For 17 purposes of this subsection, compliance, as provided in 18 section 504(f), with a permit issued under title V which 19 complies with this title for covered entities shall be deemed 20 compliance with this subsection as well as section 502(a). 21 ‘‘SEC. 728. INTERNATIONAL EMISSION ALLOWANCES. 22 ‘‘(a) QUALIFYING PROGRAMS.—The Administrator, 23 in consultation with the Secretary of State, may by rule 24 designate an international climate change program as a 25 qualifying international program if— f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00449 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 450 1 ‘‘(1) the program is run by a national or supra- 2 national foreign government, and imposes a manda- 3 tory absolute tonnage limit on greenhouse gas emis- 4 sions from 1 or more foreign countries, or from 1 or 5 more economic sectors in such a country or coun- 6 tries; and 7 ‘‘(2) the program is at least as stringent as the 8 program established by this title, including provi- 9 sions to ensure at least comparable monitoring, com- 10 pliance, enforcement, quality of offsets, and restric- 11 tions on the use of offsets. 12 ‘‘(b) DISQUALIFIED ALLOWANCES.—An international 13 emission allowance may not be held under section 14 722(d)(2) if it is in the nature of an offset instrument 15 or allowance awarded based on the achievement of green- 16 house gas emission reductions or avoidance, or greenhouse 17 gas sequestration, that are not subject to the mandatory 18 absolute tonnage limits referred to in subsection (a)(1). 19 ‘‘(c) RETIREMENT.— 20 ‘‘(1) ENTITY CERTIFICATION.—The owner or 21 operator of an entity that holds an international 22 emission allowance under section 722(d)(2) shall 23 certify to the Administrator that such international 24 emission allowance has not previously been used to f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00450 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 451 1 comply with any foreign, international, or domestic 2 greenhouse gas regulatory program. 3 ‘‘(2) RETIREMENT.— 4 ‘‘(A) FOREIGN AND INTERNATIONAL REG- 5 ENTITIES.—The Administrator, in ULATORY 6 consultation with the Secretary of State, shall 7 seek, by whatever means appropriate, including 8 agreements and technical cooperation on allow- 9 ance tracking, to ensure that any relevant for- 10 eign, international, and domestic regulatory en- 11 tities— 12 ‘‘(i) are notified of the use, for pur- 13 poses of compliance with this title, of any 14 international emission allowance; and 15 ‘‘(ii) provide for the disqualification of 16 such international emission allowance for 17 any subsequent use under the relevant for- 18 eign, international, or domestic greenhouse 19 gas regulatory program, regardless of 20 whether such use is a sale, exchange, or 21 submission to satisfy a compliance obliga- 22 tion. 23 ‘‘(B) DISQUALIFICATION FROM FURTHER 24 USE.—The Administrator shall ensure that, 25 once an international emission allowance has f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00451 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 452 1 been disqualified or otherwise used for purposes 2 of compliance with this title, such allowance 3 shall be disqualified from any further use under 4 this title. 5 ‘‘(d) USE LIMITATIONS.—The Administrator may, by 6 rule, modify the percentage applicable to international 7 emission allowances under section 722(d)(2), consistent 8 with the purposes of the Safe Climate Act. 9 ‘‘PART D—OFFSETS 10 ‘‘SEC. 731. OFFSETS INTEGRITY ADVISORY BOARD. 11 ‘‘(a) ESTABLISHMENT.—Not later than 30 days after 12 the date of enactment of this title, the Administrator shall 13 establish an independent Offsets Integrity Advisory 14 Board. The Advisory Board shall make recommendations 15 to the Administrator for use in promulgating and revising 16 regulations under this part and part E, and for ensuring 17 the overall environmental integrity of the programs estab- 18 lished pursuant to those regulations. 19 ‘‘(b) MEMBERSHIP.—The Advisory Board shall be 20 comprised of at least nine members. Each member shall 21 be qualified by education, training, and experience to 22 evaluate scientific and technical information on matters 23 referred to the Board under this section. The Adminis- 24 trator shall appoint Advisory Board members, including 25 a chair and vice-chair of the Advisory Board. Terms shall f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00452 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 453 1 be 3 years in length, except for initial terms, which may 2 be up to 5 years in length to allow staggering. Members 3 may be reappointed only once for an additional 3-year 4 term, and such second term may follow directly after a 5 first term. 6 ‘‘(c) ACTIVITIES.—The Advisory Board established 7 pursuant to subsection (a) shall— 8 ‘‘(1) provide recommendations, not later than 9 90 days after the Advisory Board’s establishment 10 and periodically thereafter, to the Administrator re- 11 garding offset project types that should be consid- 12 ered for eligibility under section 733, taking into 13 consideration relevant scientific and other issues, in- 14 cluding— 15 ‘‘(A) the availability of a representative 16 data set for use in developing the activity base- 17 line; 18 ‘‘(B) the potential for accurate quantifica- 19 tion of greenhouse gas reduction, avoidance, or 20 sequestration for an offset project type; 21 ‘‘(C) the potential level of scientific and 22 measurement uncertainty associated with an 23 offset project type; and 24 ‘‘(D) any beneficial or adverse environ- 25 mental, public health, welfare, social, economic, f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00453 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 454 1 or energy effects associated with an offset 2 project type; 3 ‘‘(2) make available to the Administrator its ad- 4 vice and comments on offset methodologies that 5 should be considered under regulations promulgated 6 pursuant to section 734(a) and (b), including meth- 7 odologies to address the issues of additionality, ac- 8 tivity baselines, measurement, leakage, uncertainty, 9 permanence, and environmental integrity; 10 ‘‘(3) make available the Administrator, and 11 other relevant Federal agencies, its advice and com- 12 ments regarding scientific, technical, and methodo- 13 logical issues specific to the issuance of international 14 offset credits under section 743; 15 ‘‘(4) make available to the Administrator, and 16 other relevant Federal agencies, its advice and com- 17 ments regarding scientific, technical, and methodo- 18 logical issues associated with the implementation of 19 part E; 20 ‘‘(5) make available to the Administrator its ad- 21 vice and comments on areas in which further knowl- 22 edge is required to appraise the adequacy of exist- 23 ing, revised, or proposed methodologies for use 24 under this part and part E, and describe the re- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00454 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 455 1 search efforts necessary to provide the required in- 2 formation; and 3 ‘‘(6) make available to the Administrator its ad- 4 vice and comments on other ways to improve or 5 safeguard the environmental integrity of programs 6 established under this part and part E. 7 ‘‘(d) SCIENTIFIC REVIEW OFFSET DEFOR- OF AND 8 REDUCTION PROGRAMS.—Not later than Janu- ESTATION 9 ary 1, 2017, and at five-year intervals thereafter, the Ad- 10 visory Board shall submit to the Administrator and make 11 available to the public an analysis of relevant scientific and 12 technical information related to this part and part E. The 13 Advisory Board shall review approved and potential meth- 14 odologies, scientific studies, offset project monitoring, off- 15 set project verification reports, and audits related to this 16 part and part E, and evaluate the net emissions effects 17 of implemented offset projects. The Advisory Board shall 18 recommend changes to offset methodologies, protocols, or 19 project types, or to the overall offset program under this 20 part, to ensure that offset credits issued by the Adminis- 21 trator do not compromise the integrity of the annual emis- 22 sion reductions established under section 703, and to 23 avoid or minimize adverse effects to human health or the 24 environment. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00455 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 456 1 ‘‘SEC. 732. ESTABLISHMENT OF OFFSETS PROGRAM. 2 ‘‘(a) REGULATIONS.—Not later than 2 years after 3 the date of enactment of this title, the Administrator, in 4 consultation with appropriate Federal agencies and taking 5 into consideration the recommendations of the Advisory 6 Board, shall promulgate regulations establishing a pro- 7 gram for the issuance of offset credits in accordance with 8 the requirements of this part. The Administrator shall pe- 9 riodically revise these regulations as necessary to meet the 10 requirements of this part. 11 ‘‘(b) REQUIREMENTS.—The regulations described in 12 subsection (a) shall— 13 ‘‘(1) authorize the issuance of offset credits 14 with respect to qualifying offset projects that result 15 in reductions or avoidance of greenhouse gas emis- 16 sions, or sequestration of greenhouse gases; 17 ‘‘(2) ensure that such offset credits represent 18 verifiable and additional greenhouse gas emission re- 19 ductions or avoidance, or increases in sequestration; 20 ‘‘(3) ensure that offset credits issued for se- 21 questration offset projects are only issued for green- 22 house gas reductions that are permanent; 23 ‘‘(4) provide for the implementation of the re- 24 quirements of this part; and f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00456 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 457 1 ‘‘(5) include as reductions in greenhouse gases 2 reductions achieved through the destruction of meth- 3 ane and its conversion to carbon dioxide. 4 ‘‘(c) COORDINATION MINIMIZE NEGATIVE EF- TO 5 FECTS.—In promulgating and implementing regulations 6 under this part, the Administrator shall act (including by 7 rejecting projects, if necessary) to avoid or minimize, to 8 the maximum extent practicable, adverse effects on human 9 health or the environment resulting from the implementa- 10 tion of offset projects under this part. 11 ‘‘(d) OFFSET REGISTRY.—The Administrator shall 12 establish within the allowance tracking system established 13 under section 724(d) an Offset Registry for qualifying off- 14 set projects and offset credits issued with respect thereto 15 under this part. 16 ‘‘(e) LEGAL STATUS OFFSET CREDIT.—An offset OF 17 credit does not constitute a property right. 18 ‘‘(f) FEES.—The Administrator shall assess fees pay- 19 able by offset project developer in an amount necessary 20 to cover the administrative costs to the Environmental 21 Protection Agency of carrying out the activities under this 22 part. Amounts collected for such fees shall be available 23 to the Administrator for carrying out the activities under 24 this part to the extent provided in advance in appropria- 25 tions Acts. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00457 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 458 1 ‘‘SEC. 733. ELIGIBLE PROJECT TYPES. 2 ‘‘(a) LIST OF ELIGIBLE PROJECT TYPES.— 3 ‘‘(1) IN GENERAL.—As part of the regulations 4 promulgated under section 732(a), the Adminis- 5 trator shall establish, and may periodically revise, a 6 list of types of projects eligible to generate offset 7 credits, including international offset credits, under 8 this part. 9 ‘‘(2) ADVISORY BOARD RECOMMENDATIONS.— 10 In determining the eligibility of project types, the 11 Administrator shall take into consideration the rec- 12 ommendations of the Advisory Board. If a list estab- 13 lished under this section differs from the rec- 14 ommendations of the Advisory Board, the regula- 15 tions promulgated under section 732(a) shall include 16 a justification for the discrepancy. 17 ‘‘(3) INITIAL DETERMINATION.—The Adminis- 18 trator shall establish the initial eligibility list under 19 paragraph (1) not later than one year after the date 20 of enactment of this title. The Administrator shall 21 add additional project types to the list not later than 22 2 years after the date of enactment of this title. In 23 determining the initial list, the Administrator shall 24 give priority to consideration of offset project types 25 that are recommended by the Advisory Board and 26 for which there are well developed methodologies f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00458 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 459 1 that the Administrator determines would meet the 2 criteria of section 734, with such modifications as 3 the Administrator deems appropriate. In issuing 4 methodologies pursuant to section 734, the Adminis- 5 trator shall give priority to methodologies for offset 6 types included on the initial eligibility list. 7 ‘‘(b) MODIFICATION LIST.—The Administrator— OF 8 ‘‘(1) may at any time, by rule, add a project 9 type to the list established under subsection (a) if 10 the Administrator, in consultation with appropriate 11 Federal agencies and taking into consideration the 12 recommendations of the Advisory Board, determines 13 that the project type can generate additional reduc- 14 tions or avoidance of greenhouse gas emissions, or 15 sequestration of greenhouse gases, subject to the re- 16 quirements of this part; 17 ‘‘(2) may at any time, by rule, determine that 18 a project type on the list does not generate addi- 19 tional reductions or avoidance of greenhouse gas 20 emissions, or sequestration of greenhouse gases, sub- 21 ject to the requirements of this part, and remove a 22 project type from the list established under sub- 23 section (a), in consultation with appropriate Federal 24 agencies and taking into consideration the rec- 25 ommendations of the Advisory Board; and f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00459 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 460 1 ‘‘(3) shall consider adding to or removing from 2 the list established under subsection (a), at a min- 3 imum, project types proposed to the Adminis- 4 trator— 5 ‘‘(A) by petition pursuant to subsection 6 (c); or 7 ‘‘(B) by the Advisory Board. 8 ‘‘(c) PETITION PROCESS.—Any person may petition 9 the Administrator to modify the list established under sub- 10 section (a) by adding or removing a project type pursuant 11 to subsection (b). Any such petition shall include a show- 12 ing by the petitioner that there is adequate data to estab- 13 lish that the project type does or does not meet the re- 14 quirements of this part. Not later than 12 months after 15 receipt of such a petition, the Administrator shall either 16 grant or deny the petition and publish a written expla- 17 nation of the reasons for the Administrator’s decision. The 18 Administrator may not deny a petition under this sub- 19 section on the basis of inadequate Environmental Protec- 20 tion Agency resources or time for review. 21 ‘‘SEC. 734. REQUIREMENTS FOR OFFSET PROJECTS. 22 ‘‘(a) METHODOLOGIES.—As part of the regulations 23 promulgated under section 732(a), the Administrator shall 24 establish, for each type of offset project listed as eligible 25 under section 733, the following: f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00460 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 461 1 ‘‘(1) ADDITIONALITY.—A standardized method- 2 ology for determining the additionality of greenhouse 3 gas emission reductions or avoidance, or greenhouse 4 gas sequestration, achieved by an offset project of 5 that type. Such methodology shall ensure, at a min- 6 imum, that any greenhouse gas emission reduction 7 or avoidance, or any greenhouse gas sequestration, is 8 considered additional only to the extent that it re- 9 sults from activities that— 10 ‘‘(A) are not required by or undertaken to 11 comply with any law, including any regulation 12 or consent order; 13 ‘‘(B) were not commenced prior to Janu- 14 ary 1, 2009, except for offset project activities 15 that commenced after January 1, 2001, and 16 were registered as of the date of enactment of 17 this title under an offset program with respect 18 to which the Administrator has made an affirm- 19 ative determination under section 740(a)(2); 20 ‘‘(C) are not receiving support under part 21 E of this title or title IV, subtitle D of the 22 American Clean Energy and Security Act of 23 2009; and 24 ‘‘(D) exceed the activity baseline estab- 25 lished under paragraph (2). f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00461 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 462 1 BASELINES.—A standardized ‘‘(2) ACTIVITY 2 methodology for establishing activity baselines for 3 offset projects of that type. The Administrator shall 4 set activity baselines to reflect a conservative esti- 5 mate of business-as-usual performance or practices 6 for the relevant type of activity such that the base- 7 line provides an adequate margin of safety to ensure 8 the environmental integrity of offsets calculated in 9 reference to such baseline. 10 ‘‘(3) QUANTIFICATION METHODS.—A standard- 11 ized methodology for determining the extent to 12 which greenhouse gas emission reductions or avoid- 13 ance, or greenhouse gas sequestration, achieved by 14 an offset project of that type exceed a relevant activ- 15 ity baseline, including protocols for monitoring and 16 accounting for uncertainty. 17 ‘‘(4) LEAKAGE.—A standardized methodology 18 for accounting for and mitigating potential leakage, 19 if any, from an offset project of that type, taking 20 uncertainty into account. 21 ‘‘(b) ACCOUNTING FOR REVERSALS.— 22 ‘‘(1) IN GENERAL.—For each type of sequestra- 23 tion project listed under section 733, the Adminis- 24 trator shall establish requirements to account for 25 and address reversals, including— f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00462 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 463 1 ‘‘(A) a requirement to report any reversal 2 with respect to an offset project for which offset 3 credits have been issued under this part; 4 ‘‘(B) provisions to require emission allow- 5 ances to be held in amounts to fully compensate 6 for greenhouse gas emissions attributable to re- 7 versals, and to assign responsibility for holding 8 such emission allowances; and 9 ‘‘(C) any other provisions the Adminis- 10 trator determines necessary to account for and 11 address reversals. 12 ‘‘(2) MECHANISMS.—The Administrator shall 13 prescribe mechanisms to ensure that any sequestra- 14 tion with respect to which an offset credit is issued 15 under this part results in a permanent net increase 16 in sequestration, and that full account is taken of 17 any actual or potential reversal of such sequestra- 18 tion, with an adequate margin of safety. The Admin- 19 istrator shall prescribe at least one of the following 20 mechanisms to meet the requirements of this para- 21 graph: 22 ‘‘(A) An offsets reserve, pursuant to para- 23 graph (3). 24 ‘‘(B) Insurance that provides for purchase 25 and provision to the Administrator for retire- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00463 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 464 1 ment of an amount of offset credits or emission 2 allowances equal in number to the tons of car- 3 bon dioxide equivalents of greenhouse gas emis- 4 sions released due to reversal. 5 ‘‘(C) Another mechanism that the Admin- 6 istrator determines satisfies the requirements of 7 this part. 8 ‘‘(3) OFFSETS RESERVE.— 9 ‘‘(A) IN GENERAL.—An offsets reserve re- 10 ferred to in paragraph (2)(A) is a program 11 under which, before issuance of offset credits 12 under this part, the Administrator shall sub- 13 tract and reserve from the quantity to be issued 14 a quantity of offset credits based on the risk of 15 reversal. The Administrator shall— 16 ‘‘(i) hold these reserved offset credits 17 in the offsets reserve; and 18 ‘‘(ii) register the holding of the re- 19 served offset credits in the Offset Registry 20 established under section 732(d). 21 ‘‘(B) PROJECT REVERSAL.— 22 ‘‘(i) IN GENERAL.—If a reversal has 23 occurred with respect an offset project for 24 which offset credits are reserved under this 25 paragraph, the Administrator shall remove f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00464 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 465 1 offset credits from the offsets reserve and 2 cancel them to fully account for the tons of 3 carbon dioxide equivalent that are no 4 longer sequestered. 5 ‘‘(ii) INTENTIONAL REVERSALS.—If 6 the Administrator determines that a rever- 7 sal was intentional, the offset project devel- 8 oper for the relevant offset project shall 9 place into the offsets reserve a quantity of 10 offset credits, or combination of offset 11 credits and emission allowances, equal in 12 number to the number of reserve offset 13 credits that were canceled due to the rever- 14 sal pursuant to clause (i). 15 ‘‘(iii) UNINTENTIONAL REVERSALS.— 16 If the Administrator determines that a re- 17 versal was unintentional, the offset project 18 developer for the relevant offset project 19 shall place into the offsets reserve a quan- 20 tity of offset credits, or combination of off- 21 set credits and emission allowances, equal 22 in number to half the number of offset 23 credits that were reserved for that offset 24 project, or half the number of reserve off- 25 set credits that were canceled due to the f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00465 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 466 1 reversal pursuant to clause (i), whichever 2 is less. 3 ‘‘(C) USE OF RESERVED OFFSET CRED- 4 ITS.—Offset credits placed into the offsets re- 5 serve under this paragraph may not be used to 6 comply with section 722. 7 ‘‘(c) CREDITING PERIODS.— 8 ‘‘(1) IN GENERAL.—For each offset project 9 type, the Administrator shall specify a crediting pe- 10 riod, and establish provisions for petitions for new 11 crediting periods, in accordance with this subsection. 12 ‘‘(2) DURATION.—The crediting period shall be 13 no less than 5 and no greater than 10 years for any 14 project type other than those involving sequestra- 15 tion. 16 ‘‘(3) ELIGIBILITY.—An offset project shall be 17 eligible to generate offset credits under this part 18 only during the project’s crediting period. During 19 such crediting period, the project shall remain eligi- 20 ble to generate offset credits, subject to the meth- 21 odologies and project type eligibility list that applied 22 as of the date of project approval under section 735, 23 except as provided in paragraph (4) of this sub- 24 section. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00466 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 467 1 FOR NEW CREDITING PERIOD.— ‘‘(4) PETITION 2 An offset project developer may petition for a new 3 crediting period to commence after termination of a 4 crediting period, subject to the methodologies and 5 project type eligibility list in effect at the time when 6 such petition is submitted. A petition may not be 7 submitted under this paragraph more than 18 8 months before the end of the pending crediting pe- 9 riod. The Administrator may limit the number of 10 new crediting periods available for projects of par- 11 ticular project types. 12 ‘‘(d) ENVIRONMENTAL INTEGRITY.—In establishing 13 the requirements under this section, the Administrator 14 shall apply conservative assumptions or methods to maxi- 15 mize the certainty that the environmental integrity of the 16 cap established under section 703 is not compromised. 17 ‘‘(e) PRE-EXISTING METHODOLOGIES.—In promul- 18 gating requirements under this section, the Administrator 19 shall give due consideration to methodologies for offset 20 projects existing as of the date of enactment of this title. 21 ‘‘(f) ADDED PROJECT TYPES.—The Administrator 22 shall establish methodologies described in subsection (a), 23 and, as applicable, requirements and mechanisms for re- 24 versals as described in subsection (b), for any project type 25 that is added to the list pursuant to section 733. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00467 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 468 1 ‘‘SEC. 735. APPROVAL OF OFFSET PROJECTS. 2 ‘‘(a) APPROVAL PETITION.—An offset project devel- 3 oper shall submit an offset project approval petition pro- 4 viding such information as the Administrator requires to 5 determine whether the offset project is eligible for issuance 6 of offset credits under rules promulgated pursuant to this 7 part. 8 ‘‘(b) TIMING.—An approval petition shall be sub- 9 mitted to the Administrator under subsection (a) no later 10 than the time at which an offset project’s first verification 11 report is submitted under section 736. 12 ‘‘(c) APPROVAL PETITION REQUIREMENTS.—As part 13 of the regulations promulgated under section 732, the Ad- 14 ministrator shall include provisions for, and shall specify, 15 the required components of an offset project approval peti- 16 tion required under subsection (a), which shall include— 17 ‘‘(1) designation of an offset project developer; 18 and 19 ‘‘(2) any other information that the Adminis- 20 trator considers to be necessary to achieve the pur- 21 poses of this part. 22 ‘‘(d) APPROVAL NOTIFICATION.—Not later than AND 23 90 days after receiving a complete approval petition under 24 subsection (a), the Administrator shall approve or deny 25 the petition in writing and, if the petition is denied, pro- 26 vide the reasons for denial. After an offset project is ap- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00468 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 469 1 proved, the offset project developer shall not be required 2 to resubmit an approval petition during the offset project’s 3 crediting period, except as provided in section 734(c)(4). 4 ‘‘(e) APPEAL.—The Administrator shall establish 5 procedures for appeal and review of determinations made 6 under subsection (d). 7 ‘‘(f) VOLUNTARY PREAPPROVAL REVIEW.—The Ad- 8 ministrator may establish a voluntary preapproval review 9 procedure, to allow an offset project developer to request 10 the Administrator to conduct a preliminary eligibility re- 11 view for an offset project. Findings of such reviews shall 12 not be binding upon the Administrator. The voluntary 13 preapproval review procedure— 14 ‘‘(1) shall require the offset project developer to 15 submit such basic project information as the Admin- 16 istrator requires to provide a meaningful review; and 17 ‘‘(2) shall require a response from the Adminis- 18 trator not later than 6 weeks after receiving a re- 19 quest for review under this subsection. 20 ‘‘SEC. 736. VERIFICATION OF OFFSET PROJECTS. 21 ‘‘(a) IN GENERAL.—As part of the regulations pro- 22 mulgated under section 732(a), the Administrator shall es- 23 tablish requirements, including protocols, for verification 24 of the quantity of greenhouse gas emission reductions or 25 avoidance, or sequestration of greenhouse gases, resulting f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00469 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 470 1 from an offset project. The regulations shall require that 2 an offset project developer shall submit a report, prepared 3 by a third-party verifier accredited under subsection (d), 4 providing such information as the Administrator requires 5 to determine the quantity of greenhouse gas emission re- 6 ductions or avoidance, or sequestration of greenhouse gas, 7 resulting from the offset project. 8 ‘‘(b) SCHEDULE.—The Administrator shall prescribe 9 a schedule for the submission of verification reports under 10 subsection (a). 11 ‘‘(c) VERIFICATION REPORT REQUIREMENTS.—The 12 Administrator shall specify the required components of a 13 verification report required under subsection (a), which 14 shall include— 15 ‘‘(1) the name and contact information for a 16 designated representative for the offset project devel- 17 oper; 18 ‘‘(2) the quantity of greenhouse gas reduced, 19 avoided, or sequestered; 20 ‘‘(3) the methodologies applicable to the project 21 pursuant to section 734; 22 ‘‘(4) a certification that the project meets the 23 applicable requirements; 24 ‘‘(5) a certification establishing that the conflict 25 of interest requirements in the regulations promul- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00470 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 471 1 gated under subsection (d)(1) have been complied 2 with; and 3 ‘‘(6) any other information that the Adminis- 4 trator considers to be necessary to achieve the pur- 5 poses of this part. 6 ‘‘(d) VERIFIER ACCREDITATION.— 7 ‘‘(1) IN GENERAL.—As part of the regulations 8 promulgated under section 732(a), the Adminis- 9 trator shall establish a process and requirements for 10 periodic accreditation of third-party verifiers to en- 11 sure that such verifiers are professionally qualified 12 and have no conflicts of interest. 13 ‘‘(2) STANDARDS.— 14 ‘‘(A) AMERICAN NATIONAL STANDARDS IN- 15 STITUTE ACCREDITATION.—The Administrator 16 may accredit, or accept for purposes of accredi- 17 tation under this subsection, verifiers accredited 18 under the American National Standards Insti- 19 tute (ANSI) accreditation program in accord- 20 ance with ISO 14065. The Administrator shall 21 accredit, or accept for accreditation, verifiers 22 under this subparagraph only if the Adminis- 23 trator finds that the American National Stand- 24 ards Institute accreditation program provides f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00471 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 472 1 sufficient assurance that the requirements of 2 this part will be met. 3 ‘‘(B) EPA ACCREDITATION.—As part of 4 the regulations promulgated under section 5 732(a), the Administrator may establish accred- 6 itation standards for verifiers under this sub- 7 section, and may establish related training and 8 testing programs and requirements. 9 ‘‘(3) PUBLIC ACCESSIBILITY.—Each verifier 10 meeting the requirements for accreditation in ac- 11 cordance with this subsection shall be listed in a 12 publicly accessible database, which shall be main- 13 tained and updated by the Administrator. 14 ‘‘SEC. 737. ISSUANCE OF OFFSET CREDITS. 15 ‘‘(a) DETERMINATION NOTIFICATION.—Not AND 16 later than 90 days after receiving a complete verification 17 report under section 736, the Administrator shall— 18 ‘‘(1) make the report publicly available; 19 ‘‘(2) make a determination of the quantity of 20 greenhouse gas emissions reduced or avoided, or 21 greenhouse gases sequestered, resulting from an off- 22 set project approved under section 735; and 23 ‘‘(3) notify the offset project developer in writ- 24 ing of such determination. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00472 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 473 1 OFFSET CREDITS.—The Adminis- ‘‘(b) ISSUANCE OF 2 trator shall issue one offset credit to an offset project de- 3 veloper for each ton of carbon dioxide equivalent that the 4 Administrator has determined has been reduced, avoided, 5 or sequestered during the period covered by a verification 6 report submitted in accordance with section 736, only if— 7 ‘‘(1) the Administrator has approved the offset 8 project pursuant to section 735; and 9 ‘‘(2) the relevant emissions reduction, avoid- 10 ance, or sequestration has already occurred, during 11 the offset project’s crediting period. 12 ‘‘(c) APPEAL.—The Administrator shall establish 13 procedures for appeal and review of determinations made 14 under subsection (a). 15 ‘‘(d) TIMING.—Offset credits meeting the criteria es- 16 tablished in subsection (b) shall be issued not later than 17 2 weeks following the verification determination made by 18 the Administrator under subsection (a). 19 ‘‘(e) REGISTRATION.—The Administrator shall as- 20 sign a unique serial number to and register each offset 21 credit to be issued in the Offset Registry established under 22 section 732(d). 23 ‘‘SEC. 738. AUDITS. 24 ‘‘(a) IN GENERAL.—The Administrator shall, on an 25 ongoing basis, conduct random audits of offset projects, f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00473 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 474 1 offset credits, and practices of third-party verifiers. In 2 each year, the Administrator shall conduct audits, at min- 3 imum, for a representative sample of project types and 4 geographic areas. 5 ‘‘(b) DELEGATION.—The Administrator may delegate 6 to a State or tribal government the responsibility for con- 7 ducting audits under this section if the Administrator 8 finds that the program proposed by the State or tribal 9 government provides assurances equivalent to those pro- 10 vided by the auditing program of the Administrator, and 11 that the integrity of the offset program under this part 12 will be maintained. Nothing in this subsection shall pre- 13 vent the Administrator from conducting any audit the Ad- 14 ministrator considers necessary and appropriate. 15 ‘‘SEC. 739. PROGRAM REVIEW AND REVISION. 16 ‘‘At least once every 5 years, the Administrator shall 17 review and, based on new or updated information and tak- 18 ing into consideration the recommendations of the Advi- 19 sory Board, update and revise— 20 ‘‘(1) the list of eligible project types established 21 under section 733; 22 ‘‘(2) the methodologies established, including 23 specific activity baselines, under section 734(a); 24 ‘‘(3) the reversal requirements and mechanisms 25 established or prescribed under section 734(b); f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00474 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 475 1 ‘‘(4) measures to improve the accountability of 2 the offsets program; and 3 ‘‘(5) any other requirements established under 4 this part to ensure the environmental integrity and 5 effective operation of this part. 6 ‘‘SEC. 740. EARLY OFFSET SUPPLY. 7 ‘‘(a) PROJECTS REGISTERED UNDER OTHER GOV- 8 ERNMENT-RECOGNIZED PROGRAMS.—Except as provided 9 in subsection (b) or (c), the Administrator shall issue one 10 offset credit for each ton of carbon dioxide equivalent 11 emissions reduced, avoided, or sequestered— 12 ‘‘(1) under an offset project that was started 13 after January 1, 2001; 14 ‘‘(2) for which a credit was issued under any 15 regulatory or voluntary greenhouse gas emission off- 16 set program that the Administrator determines— 17 ‘‘(A) was established under State or tribal 18 law or regulation prior to January 1, 2009; 19 ‘‘(B) has developed offset project type 20 standards, methodologies, and protocols 21 through a public consultation process or a peer 22 review process; 23 ‘‘(C) has made available to the public 24 standards, methodologies, and protocols that re- 25 quire that credited emission reductions, avoid- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00475 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 476 1 ance, or sequestration are permanent, addi- 2 tional, verifiable, and enforceable; 3 ‘‘(D) requires that all emission reductions, 4 avoidance, or sequestration be verified by a 5 State regulatory agency or an accredited third- 6 party independent verification body; 7 ‘‘(E) requires that all credits issued are 8 registered in a publicly accessible registry, with 9 individual serial numbers assigned for each ton 10 of carbon dioxide equivalent emission reduc- 11 tions, avoidance, or sequestration; and 12 ‘‘(F) ensures that no credits are issued for 13 activities for which the entity administering the 14 program, or a program administrator or rep- 15 resentative, has funded, solicited, or served as a 16 fund administrator for the development of, the 17 project or activity that caused the emission re- 18 duction, avoidance, or sequestration; and 19 ‘‘(3) for which the credit described in para- 20 graph (2) is transferred to the Administrator. 21 ‘‘(b) INELIGIBLE CREDITS.—Subsection (a) shall not 22 apply to offset credits that have expired or have been re- 23 tired, canceled, or used for compliance under a program 24 established under State or tribal law or regulation. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00476 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 477 1 LIMITATION.—Notwithstanding subsection ‘‘(c) 2 (a)(1), offset credits shall be issued under this section— 3 ‘‘(1) only for reductions or avoidance of green- 4 house gas emissions, or sequestration of greenhouse 5 gases, that occur after January 1, 2009; and 6 ‘‘(2) only until the date that is 3 years after the 7 date of enactment of this title, or the date that regu- 8 lations promulgated under section 732(a) take ef- 9 fect, whichever occurs sooner. 10 ‘‘(d) RETIREMENT CREDITS.—The Administrator OF 11 shall seek to ensure that offset credits described in sub- 12 section (a)(2) are retired for purposes of use under a pro- 13 gram described in subsection (b). 14 ‘‘(e) OTHER PROGRAMS.—(1) Offset programs that 15 otherwise meet all of the criteria of subsection (a)(2), but 16 do not meet one of the following criteria: 17 ‘‘(A) were not established under State or tribal 18 law; or 19 ‘‘(B) were not established prior to January 1, 20 2001. 21 ‘‘(2) The Administrator shall approve any such pro- 22 gram that the Administrator determines has criteria and 23 methodologies of at least equal stringency to the criteria 24 and methodologies of the programs established under 25 State or tribal law that the Administrator determines meet f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00477 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 478 1 the criteria of subsection (a)(2). The Administrator may 2 approve types of offsets under any such program that are 3 subject to criteria and methodologies of at least equal 4 stringency to the criteria and methodologies for such types 5 of offsets applied under the programs established under 6 State or tribal law that the Administrator determines meet 7 the criteria of subsection (a)(2). 8 ‘‘SEC. 741. ENVIRONMENTAL CONSIDERATIONS. 9 ‘‘If the Administrator lists forestry projects as eligible 10 offset project types under section 733, the Administrator, 11 in consultation with appropriate Federal agencies, shall 12 promulgate regulations for the selection and use of tree 13 species in forestry offset projects— 14 ‘‘(1) to ensure that native species are given pri- 15 mary consideration in such projects; 16 ‘‘(2) to enhance biological diversity in such 17 projects; 18 ‘‘(3) to prohibit the use of federally designated 19 or State-designated noxious weeds; 20 ‘‘(4) to prohibit the use of a species listed by 21 a regional or State invasive plant authority within 22 the applicable region or State; and 23 ‘‘(5) in accordance with widely accepted, envi- 24 ronmentally sustainable forestry practices. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00478 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 479 1 ‘‘SEC. 742. TRADING. 2 ‘‘Section 724 shall apply to the trading of offset cred- 3 its. 4 ‘‘SEC. 743. INTERNATIONAL OFFSET CREDITS. 5 ‘‘(a) IN GENERAL.—The Administrator, in consulta- 6 tion with the Secretary of State and the Administrator 7 of the United States Agency for International Develop- 8 ment, may issue, in accordance with this section, inter- 9 national offset credits based on activities that reduce or 10 avoid greenhouse gas emissions, or increase sequestration 11 of greenhouse gases, in a developing country. Such credits 12 may be issued for projects pursuant to the requirements 13 of this part or as provided in subsection (c), (d), or (e). 14 ‘‘(b) ISSUANCE.— 15 ‘‘(1) REGULATIONS.—Not later than 2 years 16 after the date of enactment of this title, the Admin- 17 istrator, in consultation with the Secretary of State, 18 the Administrator of the United States Agency for 19 International Development, and any other appro- 20 priate Federal agency, and taking into consideration 21 the recommendations of the Advisory Board, shall 22 promulgate regulations for implementing this sec- 23 tion. Except as otherwise provided in this section, 24 the issuance of international offset credits under this 25 section shall be subject to the requirements of this 26 part. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00479 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 480 1 ‘‘(2) REQUIREMENTS FOR INTERNATIONAL 2 OFFSET CREDITS.—The Administrator may issue 3 international offset credits only if— 4 ‘‘(A) the United States is a party to a bi- 5 lateral or multilateral agreement or arrange- 6 ment that includes the country in which the 7 project or measure achieving the relevant green- 8 house gas emission reduction or avoidance, or 9 greenhouse gas sequestration, has occurred; 10 ‘‘(B) such country is a developing country; 11 and 12 ‘‘(C) such agreement or arrangement— 13 ‘‘(i) ensures that all of the require- 14 ments of this part apply to the issuance of 15 international offset credits under this sec- 16 tion; and 17 ‘‘(ii) provides for the appropriate dis- 18 tribution of international offset credits 19 issued. 20 ‘‘(c) SECTOR-BASED CREDITS.— 21 ‘‘(1) IN GENERAL.—In order to minimize the 22 potential for leakage and to encourage countries to 23 take nationally appropriate mitigation actions to re- 24 duce or avoid greenhouse gas emissions, or sequester f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00480 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 481 1 greenhouse gases, the Administrator, in consultation 2 with the Secretary of State, shall— 3 ‘‘(A) identify sectors of specific countries 4 with respect to which the issuance of inter- 5 national offset credits on a sectoral basis is ap- 6 propriate; and 7 ‘‘(B) issue international offset credits for 8 such sectors only on a sectoral basis. 9 ‘‘(2) IDENTIFICATION OF SECTORS.— 10 ‘‘(A) GENERAL RULE.—For purposes of 11 paragraph (1)(A), a sectoral basis shall be ap- 12 propriate for activities— 13 ‘‘(i) in countries that have compara- 14 tively high greenhouse gas emissions, or 15 comparatively greater levels of economic 16 development; and 17 ‘‘(ii) that, if located in the United 18 States, would be within a sector subject to 19 the compliance obligation under section 20 722. 21 ‘‘(B) FACTORS.—In determining the sec- 22 tors and countries for which international offset 23 credits should be awarded only on a sectoral 24 basis, the Administrator, in consultation with f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00481 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 482 1 the Secretary of State, shall consider the fol- 2 lowing factors: 3 ‘‘(i) The country’s gross domestic 4 product. 5 ‘‘(ii) The country’s total greenhouse 6 gas emissions. 7 ‘‘(iii) Whether the comparable sector 8 of the United States economy is covered by 9 the compliance obligation under section 10 722. 11 ‘‘(iv) The heterogeneity or homo- 12 geneity of sources within the relevant sec- 13 tor. 14 ‘‘(v) Whether the relevant sector pro- 15 vides products or services that are sold in 16 internationally competitive markets. 17 ‘‘(vi) The risk of leakage if inter- 18 national offset credits were issued on a 19 project-level basis, instead of on a sectoral 20 basis, for activities within the relevant sec- 21 tor. 22 ‘‘(vii) The capability of accurately 23 measuring, monitoring, reporting, and 24 verifying the performance of sources across 25 the relevant sector. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00482 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 483 1 ‘‘(viii) Such other factors as the Ad- 2 ministrator, in consultation with the Sec- 3 retary of State, determines are appropriate 4 to— 5 ‘‘(I) ensure the integrity of the 6 United States greenhouse gas emis- 7 sions cap established under section 8 703; and 9 ‘‘(II) encourage countries to take 10 nationally appropriate mitigation ac- 11 tions to reduce or avoid greenhouse 12 gas emissions, or sequester green- 13 house gases. 14 ‘‘(3) SECTORAL BASIS.— 15 ‘‘(A) DEFINITION.—In this subsection, the 16 term ‘sectoral basis’ means the issuance inter- 17 national offset credits only for the quantity of 18 sector-wide reductions or avoidance of green- 19 house gas emissions, or sector-wide increases in 20 sequestration of greenhouse gases, achieved 21 across the relevant sector of the economy rel- 22 ative to a baseline level of performance estab- 23 lished in an agreement or arrangement de- 24 scribed in subsection (b)(2)(A) for the sector. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00483 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 484 1 ‘‘(B) BASELINE.—The baseline for a sec- 2 tor shall be established at levels of greenhouse 3 gas emissions lower than would occur under a 4 business-as-usual scenario taking into account 5 relevant domestic or international policies or in- 6 centives to reduce greenhouse gas emissions, 7 among other factors, and additionality and per- 8 formance shall be determined on the basis of 9 such baseline. 10 ‘‘(d) CREDITS ISSUED INTERNATIONAL BY AN 11 BODY.— 12 ‘‘(1) IN GENERAL.—The Administrator, in con- 13 sultation with the Secretary of State, may issue 14 international offset credits in exchange for instru- 15 ments in the nature of offset credits that are issued 16 by an international body established pursuant to the 17 United Nations Framework Convention on Climate 18 Change, to a protocol to such Convention, or to a 19 treaty that succeeds such Convention. The Adminis- 20 trator may issue international offset credits under 21 this subsection only if, in addition to the require- 22 ments of subsection (b), the Administrator has de- 23 termined that the international body that issued the 24 instruments has implemented substantive and proce- 25 dural requirements for the relevant project type that f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00484 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 485 1 provide equal or greater assurance of the integrity of 2 such instruments as is provided by the requirements 3 of this part. 4 ‘‘(2) RETIREMENT.—The Administrator, in 5 consultation with the Secretary of State, shall seek, 6 by whatever means appropriate, including agree- 7 ments, arrangements, or technical cooperation with 8 the international issuing body described in para- 9 graph (1), to ensure that such body— 10 ‘‘(A) is notified of the Administrator’s 11 issuance, under this subsection, of an inter- 12 national offset credit in exchange for an instru- 13 ment issued by such international body; and 14 ‘‘(B) provides, to the extent feasible, for 15 the disqualification of the instrument issued by 16 such international body for subsequent use 17 under any relevant foreign or international 18 greenhouse gas regulatory program, regardless 19 of whether such use is a sale, exchange, or sub- 20 mission to satisfy a compliance obligation. 21 ‘‘(e) OFFSETS FROM REDUCED DEFORESTATION.— 22 ‘‘(1) REQUIREMENTS.—The Administrator, in 23 accordance with the regulations promulgated under 24 subsection (b)(1) and an agreement or arrangement 25 described in subsection (b)(2)(A), shall issue inter- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00485 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 486 1 national offset credits for greenhouse gas emission 2 reductions achieved through activities to reduce de- 3 forestation only if, in addition to the requirements of 4 subsection (b)— 5 ‘‘(A) the activity occurs in— 6 ‘‘(i) a country listed by the Adminis- 7 trator pursuant to paragraph (2); 8 ‘‘(ii) a state or province listed by the 9 Administrator pursuant to paragraph (5); 10 or 11 ‘‘(iii) a country listed by the Adminis- 12 trator pursuant to paragraph (6); 13 ‘‘(B) except as provided in paragraph (5) 14 or (6), the quantity of the international offset 15 credits is determined by comparing the national 16 emissions from deforestation relative to a na- 17 tional deforestation baseline for that country es- 18 tablished, in accordance with an agreement or 19 arrangement described in subsection (b)(2)(A), 20 pursuant to paragraph (4); 21 ‘‘(C) the reduction in emissions from de- 22 forestation has occurred before the issuance of 23 the international offset credit and, taking into 24 consideration relevant international standards, 25 has been demonstrated using ground-based in- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00486 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 487 1 ventories, remote sensing technology, and other 2 methodologies to ensure that all relevant carbon 3 stocks are accounted; 4 ‘‘(D) the Administrator has made appro- 5 priate adjustments, such as discounting for any 6 additional uncertainty, to account for cir- 7 cumstances specific to the country, including its 8 technical capacity described in paragraph 9 (2)(A); 10 ‘‘(E) the activity is designed, carried out, 11 and managed— 12 ‘‘(i) in accordance with widely accept- 13 ed, environmentally sustainable forest 14 management practices; 15 ‘‘(ii) to promote or restore native for- 16 est species and ecosystems where prac- 17 ticable, and to avoid the introduction of 18 invasive nonnative species; 19 ‘‘(iii) in a manner that gives due re- 20 gard to the rights and interests of forest- 21 dependent communities, indigenous peo- 22 ples, and vulnerable social groups; 23 ‘‘(iv) with consultations with, and full 24 participation of, forest-dependent commu- 25 nities and indigenous peoples in affected f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00487 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 488 1 areas, as partners and primary stake- 2 holders, prior to and during the design, 3 planning, implementation, and monitoring 4 and evaluation of activities; and 5 ‘‘(v) with equitable sharing of profits 6 and benefits derived from offset credits 7 with forest-dependent communities and in- 8 digenous peoples; and 9 ‘‘(F) the reduction otherwise satisfies and 10 is consistent with any relevant requirements es- 11 tablished by an agreement reached under the 12 auspices of the United Nations Framework 13 Convention on Climate Change. 14 ‘‘(2) ELIGIBLE COUNTRIES.—The Adminis- 15 trator, in consultation with the Secretary of State 16 and the Administrator of the United States Agency 17 for International Development, and in accordance 18 with an agreement or arrangement described in sub- 19 section (b)(2)(A), shall establish, and periodically re- 20 view and update, a list of the developing countries 21 that have the capacity to participate in deforestation 22 reduction activities at a national level, including— 23 ‘‘(A) the technical capacity to monitor, 24 measure, report, and verify forest carbon fluxes 25 for all significant sources of greenhouse gas f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00488 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 489 1 emissions from deforestation with an acceptable 2 level of uncertainty, as determined taking into 3 account relevant international standards, such 4 as those established by the Intergovernmental 5 Panel on Climate Change; 6 ‘‘(B) the institutional capacity to reduce 7 emissions from deforestation, including strong 8 forest governance and mechanisms to equitably 9 distribute deforestation resources for local ac- 10 tions; and 11 ‘‘(C) a land use or forest sector strategic 12 plan that— 13 ‘‘(i) assesses national and local drivers 14 of deforestation and forest degradation and 15 identifies reforms to national policies need- 16 ed to address them; 17 ‘‘(ii) estimates the country’s emissions 18 from deforestation and forest degradation; 19 ‘‘(iii) identifies improvements in data 20 collection, monitoring, and institutional ca- 21 pacity necessary to implement a national 22 deforestation reduction program; and 23 ‘‘(iv) establishes a timeline for imple- 24 menting the program and transitioning to 25 low-emissions development. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00489 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 490 1 OF INTERESTS.—With re- ‘‘(3) PROTECTION 2 spect to an agreement or arrangement described in 3 subsection (b)(2)(A) with a country that addresses 4 international offset credits under this subsection, the 5 Administrator, in consultation with the Secretary of 6 State and the Administrator of the United States 7 Agency for International Development, shall seek to 8 ensure the establishment and enforcement by such 9 country of legal regimes, standards, and safeguards 10 that— 11 ‘‘(A) give due regard to the rights and in- 12 terests of forest-dependent communities, indige- 13 nous peoples, and vulnerable social groups; 14 ‘‘(B) promote consultations with, and full 15 participation of, forest-dependent communities 16 and indigenous peoples in affected areas, as 17 partners and primary stakeholders, prior to and 18 during the design, planning, implementation, 19 and monitoring and evaluation of activities; and 20 ‘‘(C) facilitate sharing of profits and bene- 21 fits derived from international offset credits 22 with forest-dependent communities and indige- 23 nous peoples. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00490 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 491 1 DEFORESTATION BASELINE.—A ‘‘(4) NATIONAL 2 national deforestation baseline established under this 3 subsection shall— 4 ‘‘(A) be national in scope; 5 ‘‘(B) be consistent with nationally appro- 6 priate mitigation commitments or actions with 7 respect to deforestation, taking into consider- 8 ation the average annual historical deforestation 9 rates of the country during a period of at least 10 5 years, the applicable drivers of deforestation, 11 and other factors to ensure additionality; 12 ‘‘(C) establish a trajectory that would re- 13 sult in zero net deforestation by not later than 14 20 years after the national deforestation base- 15 line has been established; 16 ‘‘(D) be adjusted over time to take account 17 of changing national circumstances; 18 ‘‘(E) be designed to account for all signifi- 19 cant sources of greenhouse gas emissions from 20 deforestation in the country; and 21 ‘‘(F) be consistent with the national defor- 22 estation baseline, if any, established for such 23 country under section 754(d)(1). 24 ‘‘(5) STATE-LEVEL OR PROVINCE-LEVEL AC- 25 TIVITIES.— f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00491 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 492 1 STATES OR PROVINCES.— ‘‘(A) ELIGIBLE 2 The Administrator, in consultation with the 3 Secretary of State and the Administrator of the 4 United States Agency for International Devel- 5 opment, shall establish, and periodically review 6 and update, a list of states or provinces in de- 7 veloping countries where— 8 ‘‘(i) the developing country is not in- 9 cluded on the list of countries established 10 pursuant to paragraph (6)(A); 11 ‘‘(ii) the state or province by itself is 12 a major emitter of greenhouse gases from 13 tropical deforestation on a scale commen- 14 surate to the emissions of other countries; 15 and 16 ‘‘(iii) the state or province meets the 17 eligibility criteria in paragraphs (2) and 18 (3) for the geographic area under its juris- 19 diction. 20 ‘‘(B) ACTIVITIES.—The Administrator may 21 issue international offset credits for greenhouse 22 gas emission reductions achieved through activi- 23 ties to reduce deforestation at a state or provin- 24 cial level that meet the requirements of this sec- 25 tion. Such credits shall be determined by com- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00492 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 493 1 paring the emissions from deforestation within 2 that state or province relative to the state or 3 province deforestation baseline for that state or 4 province established, in accordance with an 5 agreement or arrangement described in sub- 6 section (b)(2)(A), pursuant to subparagraph 7 (C) of this paragraph. 8 ‘‘(C) STATE-LEVEL OR PROVINCE-LEVEL 9 DEFORESTATION BASELINE.—A state-level or 10 province-level deforestation baseline shall— 11 ‘‘(i) be consistent with any existing 12 nationally appropriate mitigation commit- 13 ments or actions for the country in which 14 the activity is occurring, taking into con- 15 sideration the average annual historical de- 16 forestation rates of the state or province 17 during a period of at least 5 years, rel- 18 evant drivers of deforestation, and other 19 factors to ensure additionality; 20 ‘‘(ii) establish a trajectory that would 21 result in zero net deforestation by not later 22 than 20 years after the state-level or prov- 23 ince-level deforestation baseline has been 24 established; and f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00493 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 494 1 ‘‘(iii) be designed to account for all 2 significant sources of greenhouse gas emis- 3 sions from deforestation in the state or 4 province and adjusted to fully account for 5 emissions leakage outside the state or 6 province. 7 ‘‘(D) PHASE OUT.—Beginning in 2017, the 8 Administrator shall issue no further inter- 9 national offset credits for eligible state-level or 10 province-level activities to reduce deforestation 11 pursuant to this paragraph. 12 ‘‘(6) PROJECTS AND PROGRAMS TO REDUCE 13 DEFORESTATION.— 14 ‘‘(A) ELIGIBLE COUNTRIES.—The Admin- 15 istrator, in consultation with the Secretary of 16 State and the Administrator of the United 17 States Agency for International Development, 18 shall establish, and periodically review and up- 19 date, a list of developing countries that— 20 ‘‘(i) the Administrator determines, 21 based on recent, credible, and reliable 22 emissions data, account for less than 1 23 percent of global greenhouse gas emissions 24 and less than 3 percent of global forest- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00494 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 495 1 sector and land use change greenhouse gas 2 emissions; and 3 ‘‘(ii) have, or in the determination of 4 the Administrator are making a good faith 5 effort to develop, a land use or forest sec- 6 tor strategic plan that meets the criteria 7 described in paragraph (2)(C). 8 ‘‘(B) ACTIVITIES.—The Administrator may 9 issue international offset credits for greenhouse 10 gas emission reductions achieved through 11 project or program level activities to reduce de- 12 forestation in countries listed under subpara- 13 graph (A) that meet the requirements of this 14 section. The quantity of international offset 15 credits shall be determined by comparing the 16 project-level or program-level emissions from 17 deforestation to a deforestation baseline for 18 such project or program established pursuant to 19 subparagraph (C). 20 ‘‘(C) PROJECT-LEVEL OR PROGRAM-LEVEL 21 BASELINE.— 22 ‘‘(i) A project-level or program-level 23 deforestation baseline shall— 24 ‘‘(I) be consistent with any exist- 25 ing nationally appropriate mitigation f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00495 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 496 1 commitments or actions for the coun- 2 try in which the project or program is 3 occurring, taking into consideration 4 the average annual historical deforest- 5 ation rates in the project or program 6 boundary during a period of at least 7 5 years, applicable drivers of deforest- 8 ation, and other factors to ensure 9 additionality; 10 ‘‘(II) be designed to account for 11 all significant sources of greenhouse 12 gas emissions from deforestation in 13 the project or program boundary; and 14 ‘‘(III) be adjusted to fully ac- 15 count for emissions leakage outside 16 the project or program boundary. 17 ‘‘(D) PHASE OUT.—(i) Beginning in 2017, 18 the Administrator shall issue no further inter- 19 national offset credits for project-level or pro- 20 gram-level activities as described in this para- 21 graph, except as provided in clause (ii). 22 ‘‘(ii) The Administrator may extend the 23 phase out deadline for the issuance of inter- 24 national offset credits under this section to no 25 later than 2025 with respect to eligible activi- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00496 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 497 1 ties taking place in a least developed nation, 2 which is a foreign country that the United Na- 3 tions has identified as among the least devel- 4 oped of developing countries at the time that 5 the Administrator determines to provide an ex- 6 tension, provided that the Administrator, in 7 consultation with the Secretary of State and the 8 Administrator of the United States Agency for 9 International Development, determines the na- 10 tion— 11 ‘‘(I) lacks sufficient capacity to adopt 12 and implement effective programs to 13 achieve reductions in deforestation meas- 14 ured against national baselines; 15 ‘‘(II) is receiving support under part 16 E to develop such capacity; and 17 ‘‘(III) has developed and is working 18 towards implementation of a credible na- 19 tional strategy or plan to reduce deforest- 20 ation. 21 ‘‘(7) DEFORESTATION.—In implementing this 22 subsection, the Administrator, taking into consider- 23 ation the recommendations of the Advisory Board, 24 may include forest degradation, or soil carbon losses f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00497 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 498 1 associated with forested wetlands or peatlands, with- 2 in the meaning of deforestation. 3 ‘‘(f) MODIFICATION OF REQUIREMENTS.—In promul- 4 gating regulations under subsection (b)(1) with respect to 5 the issuance of international offset credits under sub- 6 section (c), (d), or (e), the Administrator may modify or 7 omit a requirement of this part (excluding the require- 8 ments of this section) if the Administrator determines that 9 the application of that requirement to this subsection is 10 not feasible. In modifying or omitting such a requirement 11 on the basis of infeasibility, the Administrator shall en- 12 sure, with an adequate margin of safety, the integrity of 13 international offset credits issued under this section and 14 of the greenhouse gas emissions cap established pursuant 15 to section 703. 16 ‘‘(g) AVOIDING DOUBLE COUNTING.—The Adminis- 17 trator, in consultation with the Secretary of State, shall 18 seek, by whatever means appropriate, including agree- 19 ments, arrangements, or technical cooperation, to ensure 20 that activities on the basis of which international offset 21 credits are issued under this section are not used for com- 22 pliance with an obligation to reduce or avoid greenhouse 23 gas emissions, or increase greenhouse gas sequestration, 24 under a foreign or international regulatory system. In ad- 25 dition, no international offset credits shall be issued for f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00498 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 499 1 emission reductions from activities with respect to which 2 emission allowances were allocated under section 781 for 3 distribution under part E. 4 ‘‘(h) LIMITATION.—The Administrator shall not issue 5 international offset credits generated by products based 6 on the destruction of hydrofluorocarbons. 7 ‘‘PART E—SUPPLEMENTAL EMISSIONS 8 REDUCTIONS FROM REDUCED DEFORESTATION 9 ‘‘SEC. 751. DEFINITIONS. 10 ‘‘In this part: 11 ‘‘(1) LEAKAGE PREVENTION ACTIVITIES.—The 12 term ‘leakage prevention activities’ means activities 13 in developing countries that are directed at pre- 14 serving existing forest carbon stocks, including for- 15 ested wetlands and peatlands, that might, absent 16 such activities, be lost through leakage. 17 ‘‘(2) NATIONAL DEFORESTATION REDUCTION 18 ACTIVITIES.—The term ‘national deforestation re- 19 duction activities’ means activities in developing 20 countries that reduce a quantity of greenhouse gas 21 emissions from deforestation that is calculated by 22 measuring actual emissions against a national defor- 23 estation baseline established pursuant to section 24 754(d)(1) and (2). f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00499 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 500 1 REDUC- ‘‘(3) SUBNATIONAL DEFORESTATION 2 TION ACTIVITIES.—The term ‘subnational deforest- 3 ation reduction activities’ means activities in devel- 4 oping countries that reduce a quantity of greenhouse 5 gas emissions from deforestation that are calculated 6 by measuring actual emissions using an appropriate 7 baseline established by the Administrator that is less 8 than national in scope. 9 ‘‘(4) SUPPLEMENTAL REDUC- EMISSIONS 10 TIONS.—The term ‘supplemental emissions reduc- 11 tions’ means greenhouse gas emissions reductions 12 achieved from reduced or avoided deforestation 13 under this part. 14 ‘‘(5) USAID.—The term ‘USAID’ means the 15 United States Agency for International Develop- 16 ment. 17 ‘‘SEC. 752. FINDINGS. 18 ‘‘Congress finds that— 19 ‘‘(1) as part of a global effort to mitigate cli- 20 mate change, it is in the national interest of the 21 United States to assist developing countries to re- 22 duce and ultimately halt emissions from deforest- 23 ation; 24 ‘‘(2) deforestation is one of the largest sources 25 of greenhouse gas emissions in developing countries, f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00500 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 501 1 amounting to roughly 20 percent of overall emissions 2 globally; 3 ‘‘(3) recent scientific analysis shows that it will 4 be substantially more difficult to limit the increase 5 in global temperatures to less than 2 degrees centi- 6 grade above preindustrial levels without reducing 7 and ultimately halting net emissions from deforest- 8 ation; 9 ‘‘(4) reducing emissions from deforestation is 10 highly cost-effective, compared to many other 11 sources of emissions reductions; 12 ‘‘(5) in addition to contributing significantly to 13 worldwide efforts to address global warming, this as- 14 sistance will generate significant environmental and 15 social cobenefits, including protection of biodiversity, 16 ecosystem services, and forest-related livelihoods; 17 and 18 ‘‘(6) Under the Bali Action Plan, developed 19 country parties to the United Nations Framework 20 Convention on Climate Change, including the United 21 States, committed to ‘enhanced action on the provi- 22 sion of financial resources and investment to support 23 action on mitigation and adaptation and technology 24 cooperation,’ including, inter alia, consideration of 25 improved access to adequate, predictable, and sus- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00501 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 502 1 tainable financial resources and financial and tech- 2 nical support, and the provision of new and addi- 3 tional resources, including official and concessional 4 funding for developing country parties. 5 ‘‘SEC. 753. SUPPLEMENTAL EMISSIONS REDUCTIONS 6 THROUGH REDUCED DEFORESTATION. 7 ‘‘(a) REGULATIONS.—Not later than 2 years after 8 the date of enactment of this title, the Administrator, in 9 consultation with the Administrator of USAID and any 10 other appropriate agencies, shall promulgate regulations 11 establishing a program to use emission allowances set 12 aside for this purpose under section 781 to achieve the 13 reduction of greenhouse gas emissions from deforestation 14 in developing countries in accordance with the require- 15 ments of this part. 16 ‘‘(b) OBJECTIVES.—The objectives of the program es- 17 tablished under this section shall be to— 18 ‘‘(1) achieve supplemental emissions reductions 19 of at least 720,000,000 tons of carbon dioxide equiv- 20 alent in 2020, a cumulative amount of at least 21 6,000,000,000 tons of carbon dioxide equivalent by 22 December 31, 2025, and additional supplemental 23 emissions reductions in subsequent years; 24 ‘‘(2) build capacity to reduce deforestation in 25 developing countries experiencing deforestation, in- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00502 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 503 1 cluding preparing developing countries to participate 2 in international markets for international offset 3 credits for reduced emissions from deforestation; and 4 ‘‘(3) preserve existing forest carbon stocks in 5 countries where such forest carbon may be vulner- 6 able to international leakage, particularly in devel- 7 oping countries with largely intact native forests. 8 ‘‘SEC. 754. REQUIREMENTS FOR INTERNATIONAL DEFOR- 9 ESTATION REDUCTION PROGRAM. 10 ‘‘(a) ELIGIBLE COUNTRIES.—The Administrator 11 may support activities under this part only with respect 12 to a developing country that— 13 ‘‘(1) the Administrator, in consultation with the 14 Administrator of USAID, determines is experiencing 15 deforestation or forest degradation or has standing 16 forest carbon stocks that may be at risk of deforest- 17 ation or degradation; and 18 ‘‘(2) has entered into a bilateral or multilateral 19 agreement or arrangement with the United States 20 establishing the conditions of its participation in the 21 program established under this part, which shall in- 22 clude an agreement to meet the standards estab- 23 lished under subsection (d) for the activities to 24 which those standards apply. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00503 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 504 1 ‘‘(b) ACTIVITIES.—(1) Subject to the requirements of 2 this part, the Administrator, in consultation with the Ad- 3 ministrator of USAID, may support activities to achieve 4 the objectives identified in section 753(b), including— 5 ‘‘(A) national deforestation reduction ac- 6 tivities; 7 ‘‘(B) subnational deforestation reduction 8 activities, including pilot activities that reduce 9 greenhouse gas emissions but are subject to sig- 10 nificant uncertainty; 11 ‘‘(C) activities to measure, monitor, and 12 verify deforestation, avoided deforestation, and 13 deforestation rates; 14 ‘‘(D) leakage prevention activities; 15 ‘‘(E) development of measurement, moni- 16 toring, and verification capacities to enable a 17 country to quantify supplemental emissions re- 18 ductions and to generate for sale offset credits 19 from reduced or avoided deforestation; 20 ‘‘(F) development of governance structures 21 to reduce deforestation and illegal logging; 22 ‘‘(G) enforcement of requirements for re- 23 duced deforestation or forest conservation; 24 ‘‘(H) efforts to combat illegal logging and 25 increase enforcement cooperation; f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00504 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 505 1 ‘‘(I) providing incentives for policy reforms 2 to achieve the objectives identified in section 3 753(b); and 4 ‘‘(J) monitoring and evaluation of the re- 5 sults of the activities conducted under this sec- 6 tion. 7 ‘‘(2) ACTIVITIES SELECTED BY USAID.— 8 ‘‘(A) The Administrator of USAID, in con- 9 sultation with the Administrator, may select for 10 support and implementation pursuant to sub- 11 section (c) any of the activities described in 12 paragraph (1), consistent with this part and the 13 regulations promulgated under subsection (d), 14 and subject to the requirement to achieve the 15 objectives listed in section 753(b)(1). 16 ‘‘(B) With respect to the activities listed in 17 subparagraphs (iv) through (x) of this section, 18 the Administrator of USAID, in consultation 19 with the Administrator, shall have primary but 20 not exclusive responsibility for selecting the ac- 21 tivities to be supported and implemented. 22 ‘‘(3) INTERAGENCY COORDINATION.—The Ad- 23 ministrator and the Administrator of USAID shall 24 jointly develop and biennially update a strategic plan 25 for meeting the objectives listed in section 753(b) f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00505 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 506 1 and shall execute a memorandum of understanding 2 delineating the agencies’ respective roles in imple- 3 menting this part. 4 ‘‘(c) MECHANISMS.— 5 ‘‘(1) IN GENERAL.—The Administrator may 6 support activities to achieve the objectives identified 7 in section 753(b) by— 8 ‘‘(A) developing and implementing pro- 9 grams and projects that achieve such objectives; 10 and 11 ‘‘(B) distributing emission allowances to a 12 country that is eligible under subsection (a), to 13 any private or public group (including inter- 14 national organizations), or to an international 15 fund established by an international agreement 16 to which the United States is a party, to carry 17 out activities to achieve such objectives. 18 ‘‘(2) USAID ACTIVITIES.—With respect to ac- 19 tivities selected and implemented by the Adminis- 20 trator of USAID pursuant to (b)(2), the Adminis- 21 trator shall distribute emission allowances as pro- 22 vided in subparagraph (1) based upon the direction 23 of the Administrator of USAID, subject to the avail- 24 ability of allowances for such activities. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00506 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 507 1 INTER- ‘‘(3) IMPLEMENTATION THROUGH 2 NATIONAL ORGANIZATIONS.—If support is distrib- 3 uted through an international organization, the 4 agency responsible for selecting activities in accord- 5 ance with subparagraph (b)(1) or (2), in consulta- 6 tion with the Secretary of State, shall ensure the es- 7 tablishment and implementation of adequate mecha- 8 nisms to apply and enforce the eligibility require- 9 ments and other requirements of this section. 10 ‘‘(4) ROLE OF THE SECRETARY OF STATE.— 11 The Administrator may not distribute emission al- 12 lowances to the government of another country or to 13 an international organization or international fund 14 unless the Secretary of State has concurred with 15 such distribution. 16 ‘‘(d) STANDARDS.—The Administrator, in consulta- 17 tion with the Administrator of USAID, shall promulgate 18 standards to ensure that supplemental emissions reduc- 19 tions achieved through supported activities are additional, 20 measurable, verifiable, permanent, monitored, and account 21 for leakage and uncertainty. In addition, such standards 22 shall— 23 ‘‘(1) require the establishment of a national de- 24 forestation baseline for each country with national f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00507 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 508 1 deforestation reduction activities that is used to ac- 2 count for reductions achieved from such activities; 3 ‘‘(2) provide that a national deforestation base- 4 line established under paragraph (1) shall— 5 ‘‘(A) be national in scope; 6 ‘‘(B) be consistent with nationally appro- 7 priate mitigation commitments or actions with 8 respect to deforestation, taking into consider- 9 ation the average annual historical deforestation 10 rates of the country during a period of at least 11 5 years and other factors to ensure 12 additionality; 13 ‘‘(C) establish a trajectory that would re- 14 sult in zero net deforestation by not later than 15 20 years from the date the baseline is estab- 16 lished; 17 ‘‘(D) be adjusted over time to take account 18 of changing national circumstances; 19 ‘‘(E) be designed to account for all signifi- 20 cant sources of greenhouse gas emissions from 21 deforestation in the country; and 22 ‘‘(F) be consistent with the national defor- 23 estation baseline, if any, established for such 24 country under section 743(e)(4); f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00508 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 509 1 ‘‘(3) with respect to support provided pursuant 2 to subsection (b)(1) or (2), require supplemental 3 emissions reductions to be achieved and verified 4 prior to compensation through the distribution of 5 emission allowances under this part; 6 ‘‘(4) with respect to accounting for subnational 7 deforestation reduction activities that lack the stand- 8 ardized or precise measurement and monitoring 9 techniques needed for a full accounting of changes 10 in emissions or baselines, or are subject to other 11 sources of uncertainty, apply a conservative discount 12 factor to reflect the uncertainty regarding the levels 13 of reductions achieved; 14 ‘‘(5) ensure that activities under this part shall 15 be designed, carried out, and managed— 16 ‘‘(A) in accordance with widely accepted, 17 environmentally sustainable forestry practices; 18 and 19 ‘‘(B) to promote native species and con- 20 servation or restoration of native forests, if 21 practicable, and to avoid the introduction of 22 invasive nonnative species; and 23 ‘‘(6) with respect to support for all activities 24 under this part, seek to ensure the establishment f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00509 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 510 1 and enforcement by the recipient country of legal re- 2 gimes, standards, and safeguards that— 3 ‘‘(A) give due regard to the rights and in- 4 terests of local communities, indigenous and 5 forest-dependent peoples, and vulnerable social 6 groups; 7 ‘‘(B) promote consultations with local com- 8 munities and indigenous and forest-dependent 9 peoples in affected areas, as partners and pri- 10 mary stakeholders, prior to and during the de- 11 sign, planning, implementation, monitoring, and 12 evaluation of activities under this part; and 13 ‘‘(C) encourage sharing of profits from in- 14 centives for emissions reductions or leakage 15 prevention with local communities and indige- 16 nous and forest-dependent peoples. 17 ‘‘(e) EXPANSION SCOPE.—The Administrator, in OF 18 consultation with the Administrator of USAID, may de- 19 cide, taking into account any advice from the Advisory 20 Board, to expand, where appropriate, the scope of activi- 21 ties under this part to include— 22 ‘‘(1) reduced emissions from forest degradation; 23 or f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00510 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 511 1 ‘‘(2) reduced soil carbon-derived emissions asso- 2 ciated with deforestation and degradation of forested 3 wetlands and peatlands. 4 ‘‘(f) ACCOUNTING.—The Administrator shall estab- 5 lish a publicly accessible registry of the supplemental emis- 6 sions reductions achieved through support provided under 7 this part each year, after appropriately discounting for un- 8 certainty and other relevant factors as required by the 9 standards established under subsection (d). 10 ‘‘(g) TRANSITION NATIONAL REDUCTIONS.—Be- TO 11 ginning 5 years after the date that a country entered into 12 the agreement or arrangement required under subsection 13 (a)(2), the Administrator shall provide no further com- 14 pensation through emission allowances to that country 15 under this part for any subnational deforestation reduc- 16 tion activities, except that the Administrator may extend 17 this period by an additional 5 years if the Administrator, 18 in consultation with the Administrator of USAID, deter- 19 mines that— 20 ‘‘(1) the country is making substantial progress 21 towards adopting and implementing a program to 22 achieve reductions in deforestation measured against 23 a national baseline; 24 ‘‘(2) the greenhouse gas emissions reductions 25 achieved are not resulting in significant leakage; and f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00511 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 512 1 ‘‘(3) the greenhouse gas emissions reductions 2 achieved are being appropriately discounted to ac- 3 count for any leakage that is occurring. 4 The limitation under this subsection shall not apply to 5 support for activities to further the objectives listed in sec- 6 tion 753(b)(2) or (3). 7 ‘‘(h) COORDINATION WITH U.S. FOREIGN ASSIST- 8 ANCE.—Subject to the Direction of the President, the Ad- 9 ministrator and the Administrator of USAID shall, to the 10 extent practicable and consistent with the objectives of 11 this program, seek to align activities under this section 12 with broader development, poverty alleviation, or natural 13 resource management objectives and initiatives in the re- 14 cipient country. 15 ‘‘(i) SUPPORT SUPPLEMENT.—The provision of AS 16 support for activities under this part shall be used to sup- 17 plement, and not to supplant, any other Federal, State, 18 or local support available to carry out such qualifying ac- 19 tivities under this part. 20 ‘‘SEC. 755. REPORTS AND REVIEWS. 21 ‘‘(a) REPORTS.—Not later than January 1, 2014, 22 and annually thereafter, the Administrator and the Ad- 23 ministrator of USAID shall submit to the Committee on 24 Energy and Commerce and the Committee on Foreign Af- 25 fairs of the House of Representatives, and the Committee f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00512 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 513 1 on Environment and Public Works and the Committee on 2 Foreign Relations of the Senate, and make available to 3 the public, a report on the support provided under this 4 part during the prior fiscal year. The report shall in- 5 clude— 6 ‘‘(1) a statement of the quantity of supple- 7 mental emissions reductions for which compensation 8 was provided under this part during the prior fiscal 9 year, as registered by the Administrator under sec- 10 tion 754(f); and 11 ‘‘(2) a description of the national and sub- 12 national deforestation reduction activities, capacity- 13 building activities, and leakage prevention activities 14 supported under this part, including a statement of 15 the quantity of emission allowances distributed to 16 each recipient for each activity during the prior fis- 17 cal year, and a description of what was accomplished 18 through each of the activities. 19 ‘‘(b) REVIEWS.—Not later than 4 years after the date 20 of enactment of this title and every 5 years thereafter, 21 the Administrator and the Administrator of USAID and 22 taking into consideration any evaluation by or rec- 23 ommendations from the Advisory Board established under 24 section 731, shall conduct a review of the activities under- 25 taken pursuant to this part and make any appropriate f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00513 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 514 1 changes in the program established under this part based 2 on the findings of the review. The review shall include the 3 effects of the activities on— 4 ‘‘(1) total documented carbon stocks of each 5 country that directly or indirectly received support 6 under this part compared with such country’s na- 7 tional deforestation baseline established under sec- 8 tion 754(d)(1); 9 ‘‘(2) the number of countries with the capacity 10 to generate for sale instruments in the nature of off- 11 set credits from forest-related activities, and the 12 amount of such activities; 13 ‘‘(3) forest governance in each country that di- 14 rectly or indirectly received support under this part; 15 ‘‘(4) indigenous and forest-dependent peoples 16 residing in areas affected by such activities; 17 ‘‘(5) biodiversity and ecosystem services within 18 forested areas associated with the activities; 19 ‘‘(6) international leakage; and 20 ‘‘(7) any program or mechanism established 21 under the United Nations Framework Convention on 22 Climate Change related to greenhouse gas emissions 23 from deforestation. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00514 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 515 1 ‘‘SEC. 756. LEGAL EFFECT OF PART. 2 ‘‘(1) IN GENERAL.—Nothing in this part super- 3 sedes, limits, or otherwise affects any restriction im- 4 posed by Federal law (including regulations) on any 5 interaction between an entity located in the United 6 States and an entity located in a foreign country. 7 ‘‘(2) ROLE OF THE SECRETARY OF STATE.— 8 Nothing in this part shall be construed as affecting 9 the role of the Secretary of State or the responsibil- 10 ities of the Secretary under section 622 (c) of the 11 Foreign Assistance Act of 1961.’’. 12 SEC. 312. DEFINITIONS. 13 Title VII of the Clean Air Act, as added by section 14 311 of this Act, is amended by inserting before part A 15 the following new section: 16 ‘‘SEC. 700. DEFINITIONS. 17 ‘‘In this title: 18 ‘‘(1) ADDITIONAL.—The term ‘additional’, 19 when used with respect to reductions or avoidance of 20 greenhouse gas emissions, or to sequestration of 21 greenhouse gases, means reductions, avoidance, or 22 sequestration that result in a lower level of net 23 greenhouse gas emissions or atmospheric concentra- 24 tions than would occur in the absence of an offset 25 project. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00515 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 516 1 ‘‘(2) ADDITIONALITY.—The term ‘additionality’ 2 means the extent to which reductions or avoidance 3 of greenhouse gas emissions, or sequestration of 4 greenhouse gases, are additional. 5 ‘‘(3) ADVISORY BOARD.—The term ‘Advisory 6 Board’ means the Offsets Integrity Advisory Board 7 established under section 731. 8 ‘‘(4) AFFILIATED.—The term ‘affiliated’— 9 ‘‘(A) when used in relation to an entity 10 means owned or controlled by, or under com- 11 mon ownership or control with, another entity, 12 as determined by the Administrator; and 13 ‘‘(B) when used in relation to a natural 14 gas local distribution company, means owned or 15 controlled by, or under common ownership or 16 control with, another natural gas local distribu- 17 tion company, as determined by the Adminis- 18 trator. 19 ‘‘(5) ALLOWANCE.—The term ‘allowance’ 20 means a limited authorization to emit, or have at- 21 tributable greenhouse gas emissions in an amount 22 of, 1 ton of carbon dioxide equivalent of a green- 23 house gas in accordance with this title, including an 24 emission allowance, a compensatory allowance, or an 25 international emission allowance. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00516 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 517 1 GREENHOUSE GAS EMIS- ‘‘(6) ATTRIBUTABLE 2 SIONS.—The term ‘attributable greenhouse gas emis- 3 sions’ means— 4 ‘‘(A) for a covered entity that is a fuel pro- 5 ducer or importer described in section 6 700(14)(B), greenhouse gases that would be 7 emitted from the combustion of any petroleum- 8 based or coal-based liquid fuel, petroleum coke, 9 or natural gas liquid, produced or imported by 10 that covered entity for sale or distribution in 11 interstate commerce, assuming no capture and 12 sequestration of any greenhouse gas emissions; 13 ‘‘(B) for a covered entity that is an indus- 14 trial gas producer or importer described in sec- 15 tion 700(14)(C), the tons of carbon dioxide 16 equivalent of carbon dioxide, nitrous oxide, any 17 fluorinated gas, other than nitrogen trifluoride, 18 that is a greenhouse gas, or any combination 19 thereof— 20 ‘‘(i) produced or imported by such 21 covered entity during the previous calendar 22 year for sale or distribution in interstate 23 commerce; or 24 ‘‘(ii) released as fugitive emissions in 25 the production of fluorinated gas; and f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00517 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 518 1 ‘‘(C) for a natural gas local distribution 2 company described in section 700(14)(I), green- 3 house gases that would be emitted from the 4 combustion of the natural gas, and any other 5 gas meeting the specifications for commingling 6 with natural gas for purposes of delivery, that 7 such entity delivered during the previous cal- 8 endar year to customers that are not covered 9 entities, assuming no capture and sequestration 10 of that greenhouse gas. 11 ‘‘(7) BIOLOGICAL SEQUESTRATION; BIO- 12 LOGICALLY SEQUESTERED.—The terms ‘biological 13 sequestration’ and ‘biologically sequestered’ mean 14 the removal of greenhouse gases from the atmos- 15 phere by terrestrial biological means, such as by 16 growing plants, and the storage of those greenhouse 17 gases in plants or soils. 18 ‘‘(8) CAPPED EMISSIONS.—The term ‘capped 19 emissions’ means greenhouse gas emissions to which 20 section 722 applies, including emissions from the 21 combustion of natural gas, petroleum-based or coal- 22 based liquid fuel, petroleum coke, or natural gas liq- 23 uid to which section 722(a)(2) or (7) applies. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00518 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 519 1 SOURCE.—The term ‘capped ‘‘(9) CAPPED 2 source’ means a source that directly emits capped 3 emissions. 4 ‘‘(10) CARBON EQUIVALENT.—The DIOXIDE 5 term ‘carbon dioxide equivalent’ means the unit of 6 measure, expressed in metric tons, of greenhouse 7 gases as provided under section 711 or 712. 8 ‘‘(11) CARBON STOCK.—The term ‘carbon 9 stock’ means the quantity of carbon contained in a 10 biological reservoir or system which has the capacity 11 to accumulate or release carbon. 12 ‘‘(12) COMPENSATORY ALLOWANCE.—The term 13 ‘compensatory allowance’ means an allowance issued 14 under section 721(f). 15 ‘‘(13) COVERED ENTITY.—The term ‘covered 16 entity’ means each of the following: 17 ‘‘(A) Any electricity source. 18 ‘‘(B) Any stationary source that produces, 19 and any entity that (or any group of two or 20 more affiliated entities that, in the aggregate) 21 imports, for sale or distribution in interstate 22 commerce in 2008 or any subsequent year, pe- 23 troleum-based or coal-based liquid fuel, petro- 24 leum coke, or natural gas liquid, the combus- 25 tion of which would emit more than 25,000 f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00519 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 520 1 tons of carbon dioxide equivalent, as determined 2 by the Administrator. 3 ‘‘(C) Any stationary source that produces, 4 and any entity that (or any group of two or 5 more affiliated entities that, in the aggregate) 6 imports, for sale or distribution in interstate 7 commerce in bulk or products designated by the 8 Administrator for sale or distribution in inter- 9 state commerce in 2008 or any subsequent year 10 more than 25,000 tons of carbon dioxide equiv- 11 alent of— 12 ‘‘(i) fossil fuel-based carbon dioxide; 13 ‘‘(ii) nitrous oxide; 14 ‘‘(iii) perfluorocarbons; 15 ‘‘(iv) sulfur hexafluoride; 16 ‘‘(v) any other fluorinated gas, except 17 for nitrogen trifluoride, that is a green- 18 house gas, as designated by the Adminis- 19 trator under section 711(b) or (c); or 20 ‘‘(vi) any combination of greenhouse 21 gases described in clauses (i) through (vi). 22 ‘‘(D) Any geologic sequestration site. 23 ‘‘(E) Any stationary source in the fol- 24 lowing industrial sectors: 25 ‘‘(i) Adipic acid production. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00520 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 521 1 ‘‘(ii) Primary aluminum production. 2 ‘‘(iii) Ammonia manufacturing. 3 ‘‘(iv) Cement production, excluding 4 grinding-only operations. 5 ‘‘(v) Hydrochlorofluorocarbon produc- 6 tion. 7 ‘‘(vi) Lime manufacturing. 8 ‘‘(vii) Nitric acid production. 9 ‘‘(viii) Petroleum refining. 10 ‘‘(ix) Phosphoric acid production. 11 ‘‘(x) Silicon carbide production. 12 ‘‘(xi) Soda ash production. 13 ‘‘(xii) Titanium dioxide production. 14 ‘‘(xiii) Coal-based liquid or gaseous 15 fuel production. 16 ‘‘(F) Any stationary source in the chemical 17 or petrochemical sector that, in 2008 or any 18 subsequent year— 19 ‘‘(i) produces acrylonitrile, carbon 20 black, ethylene, ethylene dichloride, ethyl- 21 ene oxide, or methanol; or 22 ‘‘(ii) produces a chemical or petro- 23 chemical product if producing that product 24 results in annual combustion plus process f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00521 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 522 1 emissions of 25,000 or more tons of carbon 2 dioxide equivalent. 3 ‘‘(G) Any stationary source that— 4 ‘‘(i) is in one of the following indus- 5 trial sectors: ethanol production; ferroalloy 6 production; fluorinated gas production; 7 food processing; glass production; hydrogen 8 production; iron and steel production; lead 9 production; pulp and paper manufacturing; 10 and zinc production; and 11 ‘‘(ii) has emitted 25,000 or more tons 12 of carbon dioxide equivalent in 2008 or 13 any subsequent year. 14 ‘‘(H) Any fossil fuel-fired combustion de- 15 vice (such as a boiler) or grouping of such de- 16 vices that— 17 ‘‘(i) is all or part of an industrial 18 source not specified in subparagraph (E), 19 (F), or (G); and 20 ‘‘(ii) has emitted 25,000 or more tons 21 of carbon dioxide equivalent in 2008 or 22 any subsequent year. 23 ‘‘(I) Any natural gas local distribution 24 company that (or any group of 2 or more affili- 25 ated natural gas local distribution companies f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00522 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 523 1 that, in the aggregate) in 2008 or any subse- 2 quent year, delivers 460,000,000 cubic feet or 3 more of natural gas to customers that are not 4 covered entities. 5 ‘‘(J) Any stationary source that has emit- 6 ted 25,000 or more tons of carbon dioxide 7 equivalent emission of nitrogen trifluoride in 8 2008 or any subsequent year. 9 ‘‘(14) CREDITING PERIOD.—The term ‘crediting 10 period’ means the period with respect to which an 11 offset project is eligible to earn offset credits under 12 part D, as determined under section 734(c). 13 ‘‘(15) DESIGNATED REPRESENTATIVE.—The 14 term ‘designated representative’ means, with respect 15 to a covered entity, a reporting entity, an offset 16 project developer, or any other entity receiving or 17 holding allowances or offset credits under this title, 18 an individual authorized, through a certificate of 19 representation submitted to the Administrator by 20 the owners and operators, to represent the owners 21 and operators in all matters pertaining to this title 22 (including the holding, transfer, or disposition of al- 23 lowances or offset credits), and to make all submis- 24 sions to the Administrator under this title. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00523 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 524 1 COUNTRY.—The term ‘de- ‘‘(16) DEVELOPING 2 veloping country’ means a country eligible to receive 3 official development assistance according to the in- 4 come guidelines of the Development Assistance Com- 5 mittee of the Organization for Economic Coopera- 6 tion and Development. 7 ‘‘(17) DOMESTIC OFFSET CREDIT.—The term 8 ‘domestic offset credit’ means an offset credit issued 9 under part D, other than an international offset 10 credit. 11 ‘‘(18) ELECTRICITY SOURCE.—The term ‘elec- 12 tricity source’ means a stationary source that in- 13 cludes one or more utility units. 14 ‘‘(19) EMISSION.—The term ‘emission’ means 15 the release of a greenhouse gas into the ambient air. 16 Such term does not include gases that are captured 17 and sequestered, except to the extent that they are 18 later released into the atmosphere, in which case 19 they shall be subject to section 722(a)(4). 20 ‘‘(20) EMISSION ALLOWANCE.—The term ‘emis- 21 sion allowance’ means an allowance established 22 under section 721(a) or section 726(g)(2) or 23 (h)(1)(C). 24 ‘‘(21) FAIR MARKET VALUE.—The term ‘fair 25 market value’ means the average daily closing price f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00524 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 525 1 on registered exchanges or, if such a price is un- 2 available, the average price as determined by the Ad- 3 ministrator, during a specified time period, of an 4 emission allowance. 5 ‘‘(22) FEDERAL LAND.—The term ‘Federal 6 land’ means land that is owned by the United 7 States, other than land held in trust for an Indian 8 or Indian tribe. 9 ‘‘(23) FOSSIL FUEL.—The term ‘fossil fuel’ 10 means natural gas, petroleum, coal, or any form of 11 solid, liquid, or gaseous fuel derived from such mate- 12 rial, including consumer products that are derived 13 from such materials and are combusted. 14 ‘‘(24) FOSSIL FUEL-FIRED.—The term ‘fossil 15 fuel-fired’ means powered by combustion of fossil 16 fuel, alone or in combination with any other fuel, re- 17 gardless of the percentage of fossil fuel consumed. 18 ‘‘(25) FUGITIVE EMISSIONS.—The term ‘fugi- 19 tive emissions’ means emissions from leaks, valves, 20 joints, or other small openings in pipes, ducts, or 21 other equipment, or from vents. 22 ‘‘(26) GEOLOGIC SEQUESTRATION; GEOLOGI- 23 CALLY SEQUESTERED.—The terms ‘geologic seques- 24 tration’ and ‘geologically sequestered’ mean the se- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00525 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 526 1 questration of greenhouse gases in subsurface geo- 2 logic formations for purposes of permanent storage. 3 ‘‘(27) GEOLOGIC SEQUESTRATION SITE.—The 4 term ‘geologic sequestration site’ means a site where 5 carbon dioxide is geologically sequestered. 6 ‘‘(28) GREENHOUSE GAS.—The term ‘green- 7 house gas’ means any gas described in section 8 711(a) or designated under section 711(b), (c), or 9 (d), except to the extent that it is regulated under 10 title VI. 11 ‘‘(29) HIGH CONSERVATION PRIORITY LAND.— 12 The term ‘high conservation priority land’ means 13 land that is not Federal land and is— 14 ‘‘(A) globally or State ranked as critically 15 imperiled or imperiled under a State Natural 16 Heritage Program; or 17 ‘‘(B) old-growth or late-successional forest, 18 as identified by the office of the State Forester 19 or relevant State agency with regulatory juris- 20 diction over forestry activities. 21 ‘‘(30) HOLD.—The term ‘hold’ means, with re- 22 spect to an allowance or offset credit, to have in the 23 appropriate account in the allowance tracking sys- 24 tem, or submit to the Administrator for recording in 25 such account. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00526 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 527 1 SOURCE.—The term ‘indus- ‘‘(31) INDUSTRIAL 2 trial source’ means any stationary source that— 3 ‘‘(A) is not an electricity source; and 4 ‘‘(B) is in— 5 ‘‘(i) the manufacturing sector (as de- 6 fined in North American Industrial Classi- 7 fication System codes 31, 32, and 33); or 8 ‘‘(ii) the natural gas processing or 9 natural gas pipeline transportation sector 10 (as defined in North American Industrial 11 Classification System codes 211112 or 12 486210). 13 ‘‘(32) INTERNATIONAL ALLOW- EMISSION 14 ANCE.—The term ‘international emission allowance’ 15 means a tradable authorization to emit 1 ton of car- 16 bon dioxide equivalent of greenhouse gas that is 17 issued by a national or supranational foreign govern- 18 ment pursuant to a qualifying international program 19 designated by the Administrator pursuant to section 20 728(a). 21 ‘‘(33) INTERNATIONAL FOREST CARBON ACTIVI- 22 TIES.—The term ‘international forest carbon activi- 23 ties’ means national or subnational activities in 24 countries other than the United States that are di- 25 rected at— f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00527 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 528 1 ‘‘(A) reducing greenhouse gas emissions 2 from deforestation or forest degradation; or 3 ‘‘(B) increasing sequestration of carbon 4 through— 5 ‘‘(i) afforestation or reforestation of 6 acreage not forested as of January 1, 7 2009; 8 ‘‘(ii) restoration of degraded land or 9 forest; or 10 ‘‘(iii) improved forest management. 11 ‘‘(34) INTERNATIONAL OFFSET CREDIT.—The 12 term ‘international offset credit’ means an offset 13 credit issued by the Administrator under section 14 743. 15 ‘‘(35) LEAKAGE.—The term ‘leakage’ means a 16 significant increase in greenhouse gas emissions, or 17 significant decrease in sequestration, which is caused 18 by an offset project and occurs outside the bound- 19 aries of the offset project. 20 ‘‘(36) MINERAL SEQUESTRATION.—The term 21 ‘mineral sequestration’ means sequestration of car- 22 bon dioxide from the atmosphere by capturing car- 23 bon dioxide into a permanent mineral, such as the 24 aqueous precipitation of carbonate minerals that re- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00528 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 529 1 sults in the storage of carbon dioxide in a mineral 2 form. 3 ‘‘(37) NATURAL GAS LIQUID.—The term ‘nat- 4 ural gas liquid’ means ethane, butane, isobutene nat- 5 ural gasoline, and propane which is ready for com- 6 mercial sale or use. 7 ‘‘(38) NATURAL GAS LOCAL DISTRIBUTION 8 COMPANY.—The term ‘natural gas local distribution 9 company’ has the meaning given the term ‘local dis- 10 tribution company’ in section 2(17) of the Natural 11 Gas Policy Act of 1978 (15 U.S.C. 3301(17)). 12 ‘‘(39) OFFSET CREDIT.—The term ‘offset cred- 13 it’ means a credit issued under part D. 14 ‘‘(40) OFFSET PROJECT.—The term ‘offset 15 project’ means a project or activity that reduces or 16 avoids greenhouse gas emissions, or sequesters 17 greenhouse gases, and for which offset credits are 18 issued under part D. 19 ‘‘(41) OFFSET DEVELOPER.—The PROJECT 20 term ‘offset project developer’ means the individual 21 or entity designated as the offset project developer 22 in an offset project approval petition under section 23 735(c)(1). 24 ‘‘(42) PETROLEUM.—The term ‘petroleum’ in- 25 cludes crude oil, tar sands, oil shale, and heavy oils. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00529 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 530 1 BIOMASS.—The term ‘re- ‘‘(43) RENEWABLE 2 newable biomass’ means any of the following: 3 ‘‘(A) Plant material, including waste mate- 4 rial, harvested or collected from actively man- 5 aged agricultural land that was in cultivation, 6 cleared, or fallow and nonforested on the date 7 of enactment; 8 ‘‘(B) Plant material, including waste mate- 9 rial, harvested or collected from pastureland 10 that was nonforested on the date of enactment; 11 ‘‘(C) Nonhazardous vegetative matter de- 12 rived from waste, including separated yard 13 waste, landscape right-of-way trimmings, con- 14 struction and demolition debris or food waste 15 (but not municipal solid waste, recyclable waste 16 paper, painted, treated or pressurized wood, or 17 wood contaminated with plastic or metals); 18 ‘‘(D) Animal waste or animal byproducts, 19 including products of animal waste digesters; 20 ‘‘(E) Algae; 21 ‘‘(F) Trees, brush, slash, residues, or any 22 other vegetative matter removed from within 23 600 feet of any building, campground, or route 24 designated for evacuation by a public official 25 with responsibility for emergency preparedness, f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00530 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 531 1 or from within 300 feet of a paved road, electric 2 transmission line; utility tower, or water supply 3 line; 4 ‘‘(G) Residues from or byproducts of 5 milled logs; 6 ‘‘(H) Any of the following removed from 7 forested land that is not Federal and is not 8 high conservation priority land: 9 ‘‘(i) Trees, brush, slash, residues, 10 interplanted energy crops, or any other 11 vegetative matter removed from an actively 12 managed tree plantation established— 13 ‘‘(I) prior to the date of enact- 14 ment of this section; or 15 ‘‘(II) on land that, as of the date 16 of enactment of this section, was cul- 17 tivated or fallow and non-forested. 18 ‘‘(ii) Trees, logging residue, thinnings, 19 cull trees, pulpwood, and brush removed 20 from naturally-regenerated forests or other 21 non-plantation forests, including for the 22 purposes of hazardous fuel reduction or 23 preventative treatment for reducing or con- 24 taining insect or disease infestation. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00531 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 532 1 ‘‘(iii) Logging residue, thinnings, cull 2 trees, pulpwood, brush and species that are 3 non-native and noxious, from stands that 4 were planted and managed after the enact- 5 ment of this sentence to restore or main- 6 tain native forest types. 7 ‘‘(iv) Dead or severely damaged trees 8 removed within 5 years of fire, blowdown, 9 or other natural disaster, and badly in- 10 fested trees. 11 ‘‘(I) Materials, pre-commercial thinnings, 12 or removed invasive species from National For- 13 est System land and public lands (as defined in 14 section 103 of the Federal Land Policy and 15 Management Act of 1976 (43 U.S.C. 1702)), 16 including those that are byproducts of preven- 17 tive treatments (such as trees, wood, brush, 18 thinnings, chips, and slash), that are removed 19 as part of a federally recognized timber sale, or 20 that are removed to reduce hazardous fuels, to 21 reduce or contain disease or insect infestation, 22 or to restore ecosystem health, and that are— 23 ‘‘(i) not from are not from compo- 24 nents of the National Wilderness Preserva- 25 tion System, Wilderness Study Areas, f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00532 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 533 1 Inventoried Roadless Areas, old growth or 2 mature forest stands, components of the 3 National Landscape Conservation System, 4 National Monuments, National Conserva- 5 tion Areas, Designated Primitive Areas; or 6 Wild and Scenic Rivers corridors; 7 ‘‘(ii) harvested in environmentally sus- 8 tainable quantities, as determined by the 9 appropriate Federal land manager; and 10 ‘‘(iii) are harvested in accordance with 11 Federal and State law, and applicable land 12 management plans. 13 ‘‘(44) RETIRE.—The term ‘retire’, with respect 14 to an allowance or offset credit established or issued 15 under this title, means to disqualify such allowance 16 or offset credit for any subsequent use under this 17 title, regardless of whether the use is a sale, ex- 18 change, or submission of the allowance or offset 19 credit to satisfy a compliance obligation. 20 ‘‘(45) REVERSAL.—The term ‘reversal’ means 21 an intentional or unintentional loss of sequestered 22 greenhouse gases to the atmosphere. 23 ‘‘(46) SEQUESTERED AND SEQUESTRATION.— 24 The terms ‘sequestered’ and ‘sequestration’ mean 25 the separation, isolation, or removal of greenhouse f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00533 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 534 1 gases from the atmosphere, as determined by the 2 Administrator. The terms include biological, geo- 3 logic, and mineral sequestration, but do not include 4 ocean fertilization techniques. 5 ‘‘(47) STATIONARY SOURCE.—The term ‘sta- 6 tionary source’ means any integrated operation com- 7 prising any plant, building, structure, or stationary 8 equipment, including support buildings and equip- 9 ment, that is located within one or more contiguous 10 or adjacent properties, is under common control of 11 the same person or persons, and emits or may emit 12 a greenhouse gas. 13 ‘‘(48) STRATEGIC RESERVE ALLOWANCE.—The 14 term ‘strategic reserve allowance’ means an emission 15 allowance reserved for, transferred to, or deposited 16 in the strategic reserve, or established, under section 17 726. 18 ‘‘(49) TON EQUIVA- OF CARBON DIOXIDE 19 LENT.—The term ‘ton of carbon dioxide equivalent’ 20 has the meaning specified in section 712(b) or deter- 21 mined by the Administrator under section 711 or 22 712. 23 ‘‘(50) UNCAPPED EMISSIONS.—The term ‘un- 24 capped emissions’ means emissions of greenhouse f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00534 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 535 1 gases emitted after December 31, 2011, that are not 2 capped emissions. 3 ‘‘(51) UNITED STATES GREENHOUSE GAS EMIS- 4 SIONS.—The term ‘United States greenhouse gas 5 emissions’ means the total quantity of annual green- 6 house gas emissions from the United States, as cal- 7 culated by the Administrator and reported to the 8 United Nations Framework Convention on Climate 9 Change Secretariat. 10 ‘‘(52) UTILITY UNIT.—The term ‘utility unit’ 11 means a combustion device that, on January 1, 12 2009, or any date thereafter, is fossil fuel-fired and 13 serves a generator that produces electricity for sale, 14 unless such combustion device, during the 12-month 15 period starting the later of January 1, 2009, or the 16 commencement of commercial operation and each 17 calendar year starting after such later date— 18 ‘‘(A) is part of an integrated cycle system 19 that cogenerates steam and electricity during 20 normal operation and that supplies one-third or 21 less of its potential electric output capacity and 22 25 MW or less of electrical output for sale; or 23 ‘‘(B) combusts materials of which more 24 than 95 percent is municipal solid waste on a 25 heat input basis. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00535 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 536 1 YEAR.—The term ‘vintage year’ ‘‘(53) VINTAGE 2 means the calendar year for which an emission al- 3 lowance is established under section 721(a) or which 4 is assigned to an emission allowance under section 5 726(g)(3)(A), except that the vintage year for a 6 strategic reserve allowance shall be the year in which 7 such allowance is purchased at auction.’’. Subtitle B—Disposition of 8 Allowances 9 10 SEC. 321. DISPOSITION OF ALLOWANCES FOR GLOBAL 11 WARMING POLLUTION REDUCTION PRO- 12 GRAM. 13 Title VII of the Clean Air Act, as added by section 14 311 of this Act, is amended by adding at the end the fol- 15 lowing part: 16 ‘‘PART H—DISPOSITION OF ALLOWANCES 17 ‘‘SEC. 781. ALLOCATION OF ALLOWANCES FOR SUPPLE- 18 MENTAL REDUCTIONS. 19 ‘‘(a) IN GENERAL.—The Administrator shall allocate 20 for each vintage year the following percentage of the emis- 21 sion allowances established under section 721(a), for dis- 22 tribution in accordance with part E: 23 ‘‘(1) For vintage years 2012 through 2025, 5 24 percent. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00536 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 537 1 ‘‘(2) For vintage years 2026 through 2030, 3 2 percent. 3 ‘‘(3) For vintage years 2031 through 2050, 2 4 percent. 5 ‘‘(b) ADJUSTMENT.—The Administrator shall modify 6 the percentages set forth in subsection (a) as necessary 7 to ensure the achievement of the annual supplemental 8 emission reduction objective for 2020, and the cumulative 9 reduction objective through 2025, set forth in section 10 753(b)(1). 11 ‘‘(c) CARRYOVER.—If the Administrator has not dis- 12 tributed all of the allowances allocated pursuant to this 13 section for a given vintage year by the end of that year, 14 the Administrator shall— 15 ‘‘(1) auction the remaining emission allowances 16 under section 791 not later than March 31 of the 17 year following that vintage year; and 18 ‘‘(2) increase the allocation for the vintage year 19 after the vintage year for which emission allowances 20 were undistributed by the amount of undistributed 21 emission allowances. 22 ‘‘SEC. 782. ALLOCATION OF EMISSION ALLOWANCES. 23 ‘‘(a) ELECTRICITY CONSUMERS.—The Administrator 24 shall allocate emission allowances for the benefit of elec- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00537 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 538 1 tricity consumers, to be distributed in accordance with sec- 2 tion 783 in the following amounts: 3 ‘‘(1) For vintage years 2012 and 2013, 43.75 4 percent of the emission allowances established for 5 each year under section 721(a). 6 ‘‘(2) For vintage years 2014 and 2015, 38.89 7 percent of the emission allowances established for 8 each year under section 721(a). 9 ‘‘(3) For vintage years 2016 through 2025, 10 35.00 percent of the emission allowances established 11 for each year under section 721(a). 12 ‘‘(4) For vintage year 2026, 28 percent of the 13 emission allowances established for each year under 14 section 721(a). 15 ‘‘(5) For vintage year 2027, 21 percent of the 16 emission allowances established for each year under 17 section 721(a). 18 ‘‘(6) For vintage year 2028, 14 percent of the 19 emission allowances established for each year under 20 section 721(a). 21 ‘‘(7) For vintage year 2029, 7 percent of the 22 emission allowances established for each year under 23 section 721(a). 24 ‘‘(b) NATURAL GAS CONSUMERS.—The Adminis- 25 trator shall allocate emission allowances for the benefit of f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00538 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 539 1 natural gas consumers to be distributed in accordance 2 with section 784 in the following amounts: 3 ‘‘(1) For vintage years 2016 through 2025, 9 4 percent of the emission allowances established for 5 each year under section 721(a). 6 ‘‘(2) For vintage year 2026, 7.2 percent of the 7 emission allowances established for each year under 8 section 721(a). 9 ‘‘(3) For vintage year 2027, 5.4 percent of the 10 emission allowances established for each year under 11 section 721(a). 12 ‘‘(4) For vintage year 2028, 3.6 percent of the 13 emission allowances established for each year under 14 section 721(a). 15 ‘‘(5) For vintage year 2029, 1.8 percent of the 16 emission allowances established for each year under 17 section 721(a). 18 ‘‘(c) HOME HEATING OIL PROPANE CON- AND 19 SUMERS.—The Administrator shall allocate emission al- 20 lowances for the benefit of home heating oil and propane 21 consumers to be distributed in accordance with section 22 785 in the following amounts: 23 ‘‘(1) For vintage years 2012 and 2013, 1.875 24 percent of the emission allowances established for 25 each year under section 721(a). f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00539 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 540 1 ‘‘(2) For vintage years 2014 and 2015, 1.67 2 percent of the emission allowances established for 3 each year under section 721(a). 4 ‘‘(3) For vintage years 2016 through 2025, 1.5 5 percent of the emission allowances established for 6 each year under section 721(a). 7 ‘‘(4) For vintage year 2026, 1.2 percent of the 8 emission allowances established for each year under 9 section 721(a). 10 ‘‘(5) For vintage year 2027, 0.9 percent of the 11 emission allowances established for each year under 12 section 721(a). 13 ‘‘(6) For vintage year 2028, 0.6 percent of the 14 emission allowances established for each year under 15 section 721(a). 16 ‘‘(7) For vintage year 2029, 0.3 percent of the 17 emission allowances established for each year under 18 section 721(a). 19 ‘‘(d) LOW INCOME CONSUMERS.—For each vintage 20 year starting in 2012, the Administrator shall auction 15 21 percent of the emission allowances established for each 22 year under section 721(a), pursuant to section 791, with 23 the proceeds used for the benefit of low income consumers 24 to fund the program set forth in subtitle C of title IV of 25 American Clean Energy and Security Act of 2009. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00540 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 541 1 ‘‘(e) TRADE-VULNERABLE INDUSTRIES.—The Ad- 2 ministrator shall allocate emission allowances to energy- 3 intensive, trade-exposed entities, to be distributed in ac- 4 cordance with part F, in the following amounts: 5 ‘‘(1) For vintage years 2012 and 2013, up to 6 2.0 percent of the emission allowances established 7 for each year under section 721(a). 8 ‘‘(2) For vintage years 2014, up to 15 percent 9 of the emission allowances established for that year 10 under section 721(a). 11 ‘‘(3) For vintage years 2015 through 2025, the 12 maximum number of allowances that shall be dis- 13 tributed shall decline by the same amount that the 14 annual reduction target set forth in section 702 de- 15 clines (which is 1.75 percentage points annually for 16 2015 through 2020, and 2.5 percentage points an- 17 nually from 2021 through 2025). 18 ‘‘(4) For vintage years 2026 through 2050, the 19 maximum number of allowances that shall be dis- 20 tributed shall decline by the same amount that the 21 annual reduction target set forth in section 702 de- 22 clines (which is 2.5 percentage points annually for 23 2026 through 2030, and 1.55 percentage points an- 24 nually from 2031 through 2050) and shall be multi- 25 plied by a factor, which shall be 90 percent in 2026 f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00541 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 542 1 and decline 10 percentage points a year until it 2 reaches zero, unless the President sets a different 3 factor under section 767(c)(3)(A), that shall not ex- 4 ceed 100 percent. 5 ‘‘(f) DEPLOYMENT CARBON CAPTURE SE - OF AND 6 TECHNOLOGY.— QUESTRATION 7 ‘‘(1) ANNUAL ALLOCATION.—The Adminis- 8 trator shall allocate emission allowances for the de- 9 ployment of carbon capture and sequestration tech- 10 nology to be distributed in accordance with section 11 786 in the following amounts: 12 ‘‘(A) For vintage years 2014 through 13 2017, 2 percent of the emission allowances es- 14 tablished for each year under section 721(a). 15 ‘‘(B) For vintage years 2018 through 16 2050, 5 percent of the emission allowances es- 17 tablished for each year under section 721(a). 18 ‘‘(2) CARRYOVER.—If the Administrator has 19 not distributed all of the allowances allocated pursu- 20 ant to this section for a given vintage year by the 21 end of that year, the Administrator shall— 22 ‘‘(A) auction those emission allowances 23 under section 791 not later than March 31 of 24 the year following that vintage year; and f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00542 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 543 1 ‘‘(B) increase the allocation under this 2 subsection for the vintage year after the vintage 3 year for which emission allowances were 4 undisbursed by the amount of undisbursed 5 emission allowances. 6 ‘‘(g) INVESTMENT ENERGY EFFICIENCY RE - IN AND 7 ENERGY.—The Administrator shall allocate NEWABLE 8 emission allowances to invest in energy efficiency and re- 9 newable energy as follows: 10 ‘‘(1) To be distributed in accordance with sec- 11 tion 132 of the American Clean Energy and Security 12 Act of 2009 in the following amounts: 13 ‘‘(A) For vintage years 2012 through 14 2015, 9.5 percent of the emission allowances es- 15 tablished for each year under section 721(a). 16 ‘‘(B) For vintage years 2016 through 17 2017, 7.0 percent of the emission allowances es- 18 tablished for each year under section 721(a). 19 ‘‘(C) For vintage years 2018 through 20 2021, 6.0 percent of the emission allowances es- 21 tablished for each year under section 721(a). 22 ‘‘(D) For vintage years 2022 through 23 2025, 1.5 percent of the emission allowances es- 24 tablished for each year under section 721(a). f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00543 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 544 1 ‘‘(E) For vintage years 2026 through 2 2050, 4.5 percent of the emission allowances es- 3 tablished for each year under section 721(a). 4 ‘‘(F) At the same time the vintage year 5 2022 through 2025 allowances are distributed, 6 3.55 percent of emission allowances established 7 under section 721(a) for the vintage year four 8 years greater shall also be distributed (which 9 shall be in addition to the emission allowances 10 in subparagraph (E)). 11 ‘‘(2) To be distributed in accordance with sec- 12 tion 201 of the American Clean Energy and Security 13 Act of 2009 in the amount of 0.5 percent of emis- 14 sion allowances established under section 721(a) for 15 each vintage year from 2012 through 2050. 16 ‘‘(h) CLEAN ENERGY INNOVATION CENTERS.—The 17 Administrator shall allocate 1 percent of emission allow- 18 ances for each vintage year from 2012 through 2050 to 19 be distributed to Clean Energy Innovation Centers in ac- 20 cordance with section 181 of the American Clean Energy 21 and Security Act of 2009. 22 ‘‘(i) INVESTMENT CLEAN VEHICLE TECH- IN 23 NOLOGY.—The Administrator shall allocate emission al- 24 lowances to invest in the development and deployment of 25 clean vehicles, to be distributed in accordance with section f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00544 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 545 1 124 of the American Clean Energy and Security Act of 2 2009 in the following amounts: 3 ‘‘(1) For vintage years 2012 through 2017, 3 4 percent of the emission allowances established for 5 each year under section 721(a). 6 ‘‘(2) For vintage years 2018 through 2025, 1 7 percent of the emission allowances established for 8 each year under section 721(a). 9 ‘‘(j) DOMESTIC FUEL PRODUCTION.—For vintage 10 years 2014 through 2026, the Administrator shall allocate 11 2.0 percent of the emission allowances established under 12 section 721(a) to domestic refiners, to be distributed in 13 accordance with part F. 14 ‘‘(k) INVESTMENT IN WORKERS.—The Administrator 15 shall auction pursuant to section 791 emission allowances 16 for workers in the following amounts and shall report to 17 the Secretary of Labor the amount of proceeds from the 18 sale of these allowances: 19 ‘‘(1) For vintage years 2012 through 2021, 0.5 20 percent of the emission allowances established for 21 each year under section 721(a). 22 ‘‘(2) For vintage years 2022 through 2050, 1.0 23 percent of the emission allowances established for 24 each year under section 721(a). f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00545 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 546 1 ‘‘(l) DOMESTIC ADAPTATION.—The Administrator 2 shall allocate emission allowances for domestic adaptation 3 as follows: 4 ‘‘(1) To be distributed in accordance with sec- 5 tion 453 of the American Clean Energy and Security 6 Act in the following amounts: 7 ‘‘(A) For vintage years 2012 through 8 2021, 0.9 percent of the emission allowances es- 9 tablished for each year under section 721(a). 10 ‘‘(B) For vintage years 2022 through 11 2026, 1.9 percent of the emission allowances es- 12 tablished for each year under section 721(a). 13 ‘‘(C) For vintage years 2027 through 14 2050, 3.9 percent of the emission allowances es- 15 tablished for each year under section 721(a). 16 ‘‘(2) For vintage year 2012 and thereafter, the 17 Administrator shall auction 0.1 percent of the emis- 18 sion allowances established for each year under sec- 19 tion 721(a), pursuant to section 791, and shall de- 20 posit the proceeds in the Climate Change Health 21 Protection and Promotion Fund established by sec- 22 tion 467 of the American Clean Energy and Security 23 Act. 24 ‘‘(m) WILDLIFE NATURAL RESOURCE ADAPTA- AND 25 TION.—The Administrator shall auction pursuant to sec- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00546 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 547 1 tion 791 emission allowances for domestic wildlife and nat- 2 ural resource adaptation in the amounts listed in para- 3 graphs (1) through (3) and shall deposit the proceeds from 4 the sale of these allowances in the Natural Resources Cli- 5 mate Change Adaptation Account established pursuant to 6 section 480(a) of the American Clean Energy and Security 7 Act. Funds so deposited shall be available for expenditure, 8 without further appropriation or fiscal year limitation. 9 ‘‘(1) For vintage years 2012 through 2021, 1.0 10 percent of the emission allowances established for 11 each year under section 721(a). 12 ‘‘(2) For vintage years 2022 through 2026, 2.0 13 percent of the emission allowances established for 14 each year under section 721(a). 15 ‘‘(3) For vintage years 2027 through 2050, 4.0 16 percent of the emission allowances established for 17 each year under section 721(a). 18 ‘‘(n) INTERNATIONAL ADAPTATION.—The Adminis- 19 trator shall allocate emission allowances for international 20 adaptation to be distributed in accordance with part 2 of 21 subtitle E of title IV of the American Clean Energy and 22 Security Act in the following amounts: 23 ‘‘(1) For vintage years 2012 through 2021, 1.0 24 percent of the emission allowances established for 25 each year under section 721(a). f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00547 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 548 1 ‘‘(2) For vintage years 2022 through 2026, 2.0 2 percent of the emission allowances established for 3 each year under section 721(a). 4 ‘‘(3) For vintage years 2027 through 2050, 4.0 5 percent of the emission allowances established for 6 each year under section 721(a). 7 ‘‘(o) INTERNATIONAL CLEAN TECHNOLOGY DEPLOY- 8 MENT.—The Administrator shall allocate emission allow- 9 ances for international clean technology deployment for 10 distribution in accordance with subtitle D of title IV of 11 the American Clean Energy and Security Act in the fol- 12 lowing amounts: 13 ‘‘(1) For vintage years 2012 through 2021, 1.0 14 percent of the emission allowances established for 15 each year under section 721(a). 16 ‘‘(2) For vintage years 2022 through 2026, 2.0 17 percent of the emission allowances established for 18 each year under section 721(a). 19 ‘‘(3) For vintage years 2027 through 2050, 4.0 20 percent of the emission allowances established for 21 each year under section 721(a). 22 ‘‘(p) RELEASE FUTURE ALLOWANCES.—The Ad- OF 23 ministrator shall make future year allowances available by 24 auctioning allowances, pursuant to section 791, in the fol- 25 lowing amounts: f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00548 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 549 1 ‘‘(1) In each of calendar years 2015 through 2 2020, a string of 0.7 billion allowances with vintage 3 years 11 to 16 years after the year of the auction, 4 with an equal number of allowances from each vin- 5 tage year in the string. 6 ‘‘(2) In each of calendar years 2021 through 7 2025, a string of 0.5 billion allowances with vintage 8 years 11 to 16 years after the year of the auction, 9 with an equal number of allowances from each vin- 10 tage year in the string. 11 ‘‘(3) In each of calendar years 2026 through 12 2030, a string of 0.3 billion allowances with vintage 13 years 11 to 16 years after the year of the auction, 14 with an equal number of allowances from each vin- 15 tage year in the string. 16 ‘‘(q) DEFICIT REDUCTION.— 17 ‘‘(1) For each of vintage years 2012 through 18 2025, any allowances not designated for distribution 19 or auction pursuant to section 781, subsections (a) 20 through (o) of this section, or section 790 shall be 21 auctioned by the Administrator pursuant to section 22 791 and the proceeds shall be deposited into the 23 Treasury. 24 ‘‘(2) Unless otherwise specified, any allowances 25 allocated pursuant to subsections (a) through (o) f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00549 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 550 1 and not distributed by March 31 of the calendar 2 year following the allowance’s vintage year, shall be 3 auctioned by the Administrator and the proceeds 4 shall be deposited into the Treasury. 5 ‘‘(3) For auctions conducted through vintage 6 year 2025 pursuant to subsection (p), the auction 7 proceeds shall be deposited into the Treasury. 8 ‘‘(r) CLIMATE CHANGE CONSUMER DIVIDEND.—For 9 each of vintage years 2026 through 2050, the Adminis- 10 trator shall auction pursuant to section 791 any allowance 11 established under section 721(a) for that year and not des- 12 ignated for distribution or auction pursuant to subsections 13 (a) through (p), and place the proceeds from the sale of 14 these allowances in the Climate Change Dividend Fund. 15 For auctions conducted in 2026 and thereafter pursuant 16 to subsection (p), the auction proceeds shall be deposited 17 into the Climate Change Dividend Fund. Funds so depos- 18 ited shall be available for expenditure, without further ap- 19 propriation or fiscal year limitation. 20 ‘‘SEC. 783. ELECTRICITY CONSUMERS. 21 ‘‘(a) DEFINITIONS.—For purposes of this section: 22 ‘‘(1) ELECTRICITY LOCAL DISTRIBUTION COM- 23 PANY.—The term ‘electricity local distribution com- 24 pany’ means an electric utility— f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00550 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 551 1 ‘‘(A) that has a legal, regulatory, or con- 2 tractual obligation to deliver electricity directly 3 to retail consumers in the United States, re- 4 gardless of whether that entity or another enti- 5 ty sells the electricity as a commodity to those 6 retail consumers; and 7 ‘‘(B) the retail rates of which, except in 8 the case of a registered electric cooperative, are 9 regulated by a State regulatory authority, regu- 10 latory commission, municipality, public utility, 11 or by an Indian tribe pursuant to tribal law. 12 ‘‘(2) LONG-TERM CONTRACT GENERATOR.—The 13 term ‘long-term contract generator’ means a quali- 14 fying small power production facility or a qualifying 15 cogeneration facility (within the meaning of section 16 3(17)(C) or 3(18)(B) of the Federal Power Act), or 17 a new independent power production facility (within 18 the meaning of section 416(a)(2) of this Act, except 19 that subparagraph (C) of such definition shall not 20 apply for purposes of this paragraph), that is— 21 ‘‘(A) a covered entity; 22 ‘‘(B) as of the commencement of operation, 23 a facility consisting of one or more utility units 24 with total installed net output capacity (in 25 MWe) of no more than 130 percent of the fa- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00551 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 552 1 cility’s total planned net output capacity (in 2 MWe); 3 ‘‘(C) as of the date of enactment of this 4 title, a facility with a power sales agreement ex- 5 ecuted before January 1, 2007, that governs 6 the facility’s electricity sales and provides for 7 sales at a price (whether a fixed price or a price 8 formula) for electricity that does not allow for 9 recovery of the costs of compliance with the lim- 10 itation on greenhouse gas emissions under this 11 title; and 12 ‘‘(B) not a merchant coal generator (within 13 the meaning of paragraph (3)). 14 ‘‘(3) MERCHANT COAL GENERATOR.—The term 15 ‘merchant coal generator’ means an electric genera- 16 tion facility that— 17 ‘‘(A) is a covered entity; 18 ‘‘(B) derives at least 85 percent of its heat 19 input from coal, petroleum coke, or any com- 20 bination of these 2 fuels; 21 ‘‘(C) is not owned by a Federal, State, or 22 regional agency or power authority; and 23 ‘‘(D) generates electricity for sale to oth- 24 ers, provided that such sales are not subject 25 to— f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00552 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 553 1 ‘‘(i) retail rate regulation by a State 2 public utility commission; or 3 ‘‘(ii) self-regulation of rates by a local 4 government, State agency, or electric coop- 5 erative. 6 ‘‘(4) STATE AUTHORITY.—The REGULATORY 7 term ‘State regulatory authority’ has the meaning 8 given that term in section 3(17) of the Public Utility 9 Regulatory Policies Act of 1978 (16 U.S.C. 10 2602(17)). 11 ‘‘(b) ELECTRICITY LOCAL DISTRIBUTION COMPA- 12 NIES.— 13 ‘‘(1) ALLOCATION.—Not later than June 30 of 14 2011 and each calendar year thereafter through 15 2028, the Administrator shall distribute to electricity 16 local distribution companies the quantity of emission 17 allowances allocated for the electricity sector for the 18 following vintage year pursuant to section 782(a), 19 provided that the Administrator shall first subtract 20 from such quantity and distribute or reserve for dis- 21 tribution the quantity of emission allowances for the 22 relevant vintage year that are required for distribu- 23 tion under subsections (c) and (d) of this section. 24 ‘‘(2) DISTRIBUTION OF ALLOWANCES.— f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00553 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 554 1 EMIS- ‘‘(A) DISTRIBUTION BASED ON 2 SIONS.— 3 ‘‘(i) IN GENERAL.—For each vintage 4 year, 50 percent of the emission allowances 5 available for distribution under paragraph 6 (1) shall be distributed by the Adminis- 7 trator among individual electricity local 8 distribution companies ratably based on 9 the annual average carbon dioxide emis- 10 sions attributable to generation of elec- 11 tricity sold at retail by each such company 12 during— 13 ‘‘(I) calendar years 2006 through 14 2008; or 15 ‘‘(II) any 3 consecutive calendar 16 years between 1999 and 2008, inclu- 17 sive, that such company selects, pro- 18 vided that the company timely informs 19 the Administrator of such selection. 20 ‘‘(ii) DETERMINATION EMIS- OF 21 SIONS.—As part of the regulations promul- 22 gated pursuant to subsection (e), the Ad- 23 ministrator, after consultation with the 24 Energy Information Administration, shall 25 determine the average amount of carbon f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00554 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 555 1 dioxide emissions attributable to genera- 2 tion of electricity sold at retail by each 3 electricity local distribution company for 4 each of the years 1999 through 2008. 5 Such determinations shall be as precise as 6 practicable, taking into account the nature 7 of data currently available and the nature 8 of markets and regulation in effect in var- 9 ious regions of the country. The following 10 requirements shall apply to such deter- 11 minations: 12 ‘‘(I) The Administrator shall de- 13 termine the amount of fossil fuel- 14 based electricity delivered at retail by 15 each electricity local distribution com- 16 pany, and shall use appropriate emis- 17 sion factors to calculate carbon diox- 18 ide emissions associated with the gen- 19 eration of such electricity. 20 ‘‘(II) Where it is not practical to 21 determine the precise fuel mix for the 22 electricity delivered at retail by an in- 23 dividual electricity local distribution 24 company, the Administrator may use 25 the best available data, including aver- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00555 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 556 1 age data on a regional basis with ref- 2 erence to Regional Transmission Or- 3 ganizations or regional entities (as 4 that term is defined in section 5 215(a)(7) of the Federal Power Act 6 (16 U.S.C. 824o(a)(7)), to estimate 7 fuel mix and emissions. Different 8 methodologies may be applied in dif- 9 ferent regions if appropriate to obtain 10 the most accurate estimate. 11 ‘‘(B) DISTRIBUTION DELIV- BASED ON 12 ERIES.— 13 ‘‘(i) INITIAL FOR- ALLOCATION 14 MULA.—Except as provided in clause (ii), 15 for each vintage year, the Administrator 16 shall distribute 50 percent of the emission 17 allowances allocated under paragraph (1) 18 of this subsection among individual elec- 19 tricity local distribution companies ratably 20 based on each electricity local distribution 21 company’s annual average retail electricity 22 deliveries for 2006 through 2008, unless 23 the owner or operator of the company se- 24 lects 3 other consecutive years between f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00556 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 557 1 1999 and 2008, inclusive, and timely noti- 2 fies the Administrator of its selection. 3 ‘‘(ii) UPDATING.—Prior to distrib- 4 uting 2015 vintage emission allowances 5 under this subparagraph and at 3-year in- 6 tervals thereafter, the Administrator shall 7 update the distribution formula under this 8 subparagraph to reflect changes in each 9 electricity local distribution company’s 10 service territory since the most recent for- 11 mula was established. For each successive 12 3-year period, the Administrator shall dis- 13 tribute allowances ratably among indi- 14 vidual electricity local distribution compa- 15 nies based on the product of— 16 ‘‘(I) each electricity local dis- 17 tribution company’s average annual 18 deliveries per customer during cal- 19 endar years 2006 through 2008, or 20 during the 3 alternative consecutive 21 years selected by such company under 22 clause (i); and 23 ‘‘(II) the number of customers of 24 such electricity local distribution com- 25 pany in the most recent year in which f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00557 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 558 1 the formula is updated under this 2 clause. 3 ‘‘(3) USE OF ALLOWANCES.— 4 ‘‘(A) RATEPAYER BENEFIT.—Emission al- 5 lowances distributed to an electricity local dis- 6 tribution company under this subsection shall 7 be used exclusively for the benefit of retail rate- 8 payers of such electricity local distribution com- 9 pany. Emission allowances received by an elec- 10 tricity local distribution company under this 11 subsection may not be used to support elec- 12 tricity sales to entities or persons other than 13 the retail ratepayers of such electricity local dis- 14 tribution company. 15 ‘‘(B) RATEPAYER CLASSES.—In using 16 emission allowances distributed under this sec- 17 tion for the benefit of ratepayers, an electricity 18 local distribution company shall ensure that 19 ratepayer benefits are distributed— 20 ‘‘(i) among ratepayer classes ratably 21 based on electricity deliveries to each class; 22 and 23 ‘‘(ii) equitably among individual rate- 24 payers within each ratepayer class, includ- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00558 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 559 1 ing entities that receive emission allow- 2 ances pursuant to part F. 3 ‘‘(C) LIMITATION.—No electricity local dis- 4 tribution company may use emission allowances 5 to provide to any ratepayer a rebate that is 6 based solely on the quantity of electricity deliv- 7 ered to such ratepayer. To the extent an elec- 8 tricity local distribution company uses the value 9 of emission allowances distributed under this 10 subsection to provide rebates, it shall, to the 11 maximum extent practicable, provide such re- 12 bates with regard to the fixed portion of rate- 13 payers’ bills. 14 ‘‘(D) GUIDELINES.—As part of the regula- 15 tions promulgated under subsection (e), the Ad- 16 ministrator shall prescribe specific guidelines 17 for the implementation of the requirements of 18 this paragraph. 19 ‘‘(4) REGULATORY PROCEEDINGS.— 20 ‘‘(A) REQUIREMENT.—No electricity local 21 distribution company shall be eligible to receive 22 emission allowances under this subsection un- 23 less the State regulatory authority with author- 24 ity over such company, or the entity with au- 25 thority to regulate retail electricity rates of an f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00559 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 560 1 electricity local distribution company not regu- 2 lated by a State regulatory authority, has— 3 ‘‘(i) promulgated a regulation or com- 4 pleted a rate proceeding (or the equivalent, 5 in the case of a ratemaking entity other 6 than a State regulatory authority) that 7 provides for the full implementation of the 8 requirements of paragraph (3) of this sub- 9 section; and 10 ‘‘(ii) made available to the Adminis- 11 trator and the public a report describing, 12 in adequate detail, the manner in which 13 the requirements of paragraph (3) will be 14 implemented. 15 ‘‘(B) UPDATING.—The Administrator shall 16 require, as a condition of continued receipt of 17 emission allowances under this subsection by an 18 electricity local distribution company, that a 19 new regulation be promulgated or rate pro- 20 ceeding be completed, and a new report be 21 made available to the Administrator and the 22 public, pursuant to subparagraph (A), not less 23 frequently than every 5 years. 24 ‘‘(5) PLANS AND REPORTING.— f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00560 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 561 1 ‘‘(A) REGULATIONS.—As part of the regu- 2 lations promulgated under subsection (e), the 3 Administrator shall prescribe requirements gov- 4 erning plans and reports to be submitted by 5 electricity local distribution companies in ac- 6 cordance with this paragraph. 7 ‘‘(B) PLANS.—Not later than April 30 of 8 2011 and every 5 years thereafter through 9 2026, each electricity local distribution com- 10 pany shall submit to the Administrator a plan, 11 approved by the State regulatory authority or 12 other entity charged with regulating the retail 13 rates of such company, describing such com- 14 pany’s plans for the disposition of the value of 15 emission allowances to be received pursuant to 16 this subsection, in accord with the requirements 17 of this subsection. 18 ‘‘(C) REPORTS.—Not later than June 30 19 of 2013 and each calendar year thereafter 20 through 2031, each electricity local distribution 21 company that received emission allowances 22 under this subsection in the preceding calendar 23 year shall submit a report to the Administrator, 24 and to the relevant State regulatory authority 25 or the entity with authority to regulate retail f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00561 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 562 1 electricity rates in the case of an electricity 2 local distribution company not regulated by a 3 State regulatory authority, describing the dis- 4 position of the value of any emission allowances 5 received by the company in the prior calendar 6 year pursuant to this subsection, including— 7 ‘‘(i) a description of sales, transfer, 8 exchange, or use by the company for com- 9 pliance with obligations under this title, of 10 any such emission allowances; 11 ‘‘(ii) the monetary value received by 12 the company, whether in money or in some 13 other form, from the sale, transfer, or ex- 14 change of emission allowances received by 15 the company under this section; 16 ‘‘(iii) the manner in which the com- 17 pany’s disposition of emission allowances 18 received under this subsection complies 19 with the requirements of this subsection, 20 including each of the requirements of para- 21 graph (3); and 22 ‘‘(iv) such other information as the 23 Administrator may require pursuant to 24 subparagraph (A). f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00562 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 563 1 ‘‘(D) PUBLICATION.—The Administrator 2 shall make available to the public all plans and 3 reports submitted by electricity local distribu- 4 tion companies under this section, including by 5 publishing such plans and reports on the Inter- 6 net. 7 ‘‘(6) AUDITS.—Each year, the Administrator 8 shall conduct an audit of a representative sample of 9 electricity local distribution companies receiving 10 emission allowances under this subsection to ensure 11 compliance with the requirements of this subsection. 12 In selecting electricity local distribution companies 13 for audit, the Administrator shall take into account 14 any credible evidence of noncompliance with the re- 15 quirements of this subsection. The Administrator 16 shall make available to the public a report describing 17 the results of each such audit, including by pub- 18 lishing such report on the Internet. 19 ‘‘(7) ENFORCEMENT.—A violation of any re- 20 quirement of this subsection shall be a violation of 21 this Act. Each emission allowance the value of which 22 is used in violation of the requirements of this sub- 23 section shall be a separate violation. 24 ‘‘(c) MERCHANT COAL GENERATORS.— f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00563 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 564 1 EMISSIONS.—The qualifying ‘‘(1) QUALIFYING 2 emissions for a merchant coal generator for a given 3 calendar year shall be the product of the number of 4 megawatt hours of electricity generated by such gen- 5 erator in such calendar year and the average carbon 6 dioxide emissions per megawatt hour generated by 7 such generator during calendar years 2006 through 8 2008, provided that the number of megawatt hours 9 in a given calendar year for purposes of such cal- 10 culation shall be reduced in proportion to the portion 11 of such generator’s carbon dioxide emissions that 12 were captured and sequestered in such calendar year 13 and for which such generator received or will receive 14 bonus emission allowances under section 785. 15 ‘‘(2) PHASE-DOWN SCHEDULE.—The Adminis- 16 trator shall identify an annual phase-down factor, 17 applicable to distributions to merchant coal genera- 18 tors for each of calendar years 2012 through 2029, 19 that corresponds to the overall decline in the amount 20 of emission allowances to be allocated to the elec- 21 tricity sector in such years pursuant to section 22 782(a). Such factor shall— 23 ‘‘(A) for calendar year 2012, be equal to 24 1.0; f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00564 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 565 1 ‘‘(B) for each of calendar years 2013 2 through 2029, correspond to the quotient of— 3 ‘‘(i) the quantity of emission allow- 4 ances to be allocated to the electricity sec- 5 tor under section 782(a) for such calendar 6 year; divided by 7 ‘‘(ii) the quantity of emission allow- 8 ances to be allocated to the electricity sec- 9 tor under section 782(a) for calendar year 10 2012. 11 ‘‘(3) DISTRIBUTION ALLOW- OF EMISSION 12 ANCES.—Not later than March 1 of 2013 and each 13 calendar year through 2030, the Administrator shall 14 distribute emission allowances of the preceding vin- 15 tage year to each merchant coal generator equal to 16 the product of— 17 ‘‘(A) 0.5; 18 ‘‘(B) the qualifying emissions for such 19 merchant coal generator for the preceding year, 20 as determined under paragraph (1); and 21 ‘‘(C) the phase-down factor for the pre- 22 ceding calendar year, as identified under para- 23 graph (2). 24 ‘‘(4) ADJUSTMENT.— f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00565 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 566 1 ‘‘(A) STUDY.—Not later than July 1, 2 2014, the Administrator, in consultation with 3 the Federal Energy Regulatory Commission, 4 shall complete a study to determine whether the 5 allocation formula under paragraph (3) is re- 6 sulting in, or is likely to result in, windfall prof- 7 its to merchant coal generators or substantially 8 disparate treatment of merchant coal genera- 9 tors operating in different markets or regions. 10 ‘‘(B) REGULATION.—If the Administrator, 11 in consultation with the Federal Energy Regu- 12 latory Commission, makes an affirmative find- 13 ing of windfall profits or disparate treatment 14 under subparagraph (A), the Administrator 15 shall, not later than 18 months after the com- 16 pletion of the study described in subparagraph 17 (A), promulgate regulations providing for the 18 adjustment of the allocation formula under 19 paragraph (3) to mitigate, to the extent prac- 20 ticable, such windfall profits, if any, and such 21 disparate treatment, if any. 22 ‘‘(5) LIMITATION ON ALLOWANCES.—Notwith- 23 standing paragraph (3) or (4), for any vintage year 24 the Administrator shall distribute under this sub- 25 section no more than 10 percent of the total quan- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00566 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 567 1 tity of emission allowances available for such vintage 2 year for distribution to the electricity sector under 3 section 782(a). If the quantity of emission allow- 4 ances that would otherwise be distributed pursuant 5 to paragraph (3) or (4) for any vintage year would 6 exceed such limit, the Administrator shall distribute 7 10 percent of the total emission allowances available 8 for distribution under section 782(a) for such vin- 9 tage year ratably among merchant coal generators 10 based on the formula in paragraph (3) or (4). 11 ‘‘(d) GENERATORS WITH LONG-TERM POWER PUR- 12 AGREEMENTS.— CHASE 13 ‘‘(1) RESERVED ALLOWANCES.—Notwith- 14 standing subsections (b) and (c) of this section, the 15 Administrator shall withhold from distribution to 16 electricity local distribution companies a number of 17 emission allowances equal to 105 percent of the 18 emission allowances the Administrator anticipates 19 will be distributed to long-term contract generators 20 under this subsection. If not required to distribute 21 all of these reserved allowances under this sub- 22 section, the Administrator shall distribute any re- 23 maining emission allowances to the electricity local 24 distribution companies in accordance with subsection 25 (b). f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00567 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 568 1 ‘‘(2) DISTRIBUTION.—Not later than March 1 2 of 2013 and each calendar year through 2030, the 3 Administrator shall distribute to the owner or oper- 4 ator of each long-term contract generator the num- 5 ber of emission allowances of the preceding vintage 6 year that are equal to the number of tons of carbon 7 dioxide emitted as a result of a qualifying long-term 8 power purchase agreement referred to in subsection 9 (a)(2)(C). 10 ‘‘(3) DURATION.—A long-term contract gener- 11 ator shall cease to be eligible to receive allocations 12 under this subsection upon the earliest of the fol- 13 lowing dates: 14 ‘‘(A) The date when the facility no longer 15 qualifies as a qualifying small power production 16 facility or a qualifying cogeneration facility 17 (within the meaning of section 3(17)(C) or 18 3(18)(B) of the Federal Power Act), or a new 19 independent power production facility (within 20 the meaning of section 416(a)(2) of this Act, 21 except that subparagraph (C) of such definition 22 shall not apply for purposes of this clause). 23 ‘‘(B) The date when the facility no longer 24 meets the total installed net output capacity cri- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00568 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 569 1 terion required to be met as of the commence- 2 ment of operation in subsection (a)(2)(B). 3 ‘‘(C) The date when the power purchase 4 agreement referred to in subsection (a)(2)(C)— 5 ‘‘(i) expires; 6 ‘‘(ii) is terminated; or 7 ‘‘(iii) is amended in any way that 8 changes the location of the facility, the 9 price (whether a fixed price or price for- 10 mula) for electricity sold under such agree- 11 ment, the quantity of electricity sold under 12 the agreement, or the expiration or termi- 13 nation date of the agreement. 14 ‘‘(4) ELIGIBILITY.—To be eligible to receive al- 15 lowance distributions under this subsection, a long- 16 term contract generator shall submit each of the fol- 17 lowing in writing to the Administrator within 180 18 days after the date of enactment of this title, and 19 not later than September 30 of each vintage year for 20 which such generator wishes to receive emission al- 21 lowances: 22 ‘‘(A) A certificate of representation de- 23 scribed in section 700(16). 24 ‘‘(B) An identification of each owner and 25 each operator of the facility. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00569 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 570 1 ‘‘(C) An identification of the units at the 2 facility and the location of the facility. 3 ‘‘(D) A written certification by the des- 4 ignated representative that the facility meets all 5 the requirements of the definition of a long- 6 term contract generator. 7 ‘‘(E) The expiration date of the power pur- 8 chase agreement referred to in subsection 9 (a)(2)(C). 10 ‘‘(F) A copy of the power purchase agree- 11 ment referred to in subsection (a)(2)(C). 12 ‘‘(5) NOTIFICATION.—Not later than 30 days 13 after a facility loses, in accordance with paragraph 14 (3), its eligibility for emission allowances distributed 15 pursuant to this subsection, the designated rep- 16 resentative of such facility shall notify the Adminis- 17 trator in writing when, and on what basis, the facil- 18 ity lost its eligibility to receive emission allowances. 19 ‘‘(e) REGULATIONS.—Not later than 2 years after the 20 date of enactment of this title, the Administrator, in con- 21 sultation with the Federal Energy Regulatory Commis- 22 sion, shall promulgate regulations to implement the re- 23 quirements of this section. 24 ‘‘SEC. 784. NATURAL GAS CONSUMERS. 25 ‘‘(a) DEFINITIONS.—For purposes of this section: f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00570 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 571 1 GAS LOCAL DISTRIBUTION COM- ‘‘(1) NATURAL 2 PANY.—The term ‘natural gas local distribution 3 company’ means a natural gas local distribution 4 company that is a covered entity. 5 ‘‘(2) COST-EFFECTIVE.—The term ‘cost-effec- 6 tive’, with respect to an energy efficiency program, 7 means that the program meets the Total Resource 8 Cost Test, which requires that the net present value 9 of economic benefits over the life of the program, in- 10 cluding avoided supply and delivery costs and de- 11 ferred or avoided investments, is greater than the 12 net present value of the economic costs over the life 13 of the program, including program costs and incre- 14 mental costs borne by the energy consumer. 15 ‘‘(b) ALLOCATION.—Not later than June 30 of 2015 16 and each calendar year thereafter through 2028, the Ad- 17 ministrator shall distribute to natural gas local distribu- 18 tion companies the quantity of emission allowances allo- 19 cated for the following vintage year pursuant to section 20 782(b). Such allowances shall be distributed among local 21 natural gas distribution companies based on the following 22 formula: 23 ‘‘(1) INITIAL FORMULA.—Except as provided in 24 paragraph (2), for each vintage year, the Adminis- 25 trator shall distribute emission allowances among f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00571 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 572 1 natural gas local distribution companies ratably 2 based on each such company’s annual average retail 3 natural gas deliveries for 2006 through 2008, unless 4 the owner or operator of the company selects 3 other 5 consecutive years between 1999 and 2008, inclusive, 6 and timely notifies the Administrator of its selection. 7 ‘‘(2) UPDATING.—Prior to distributing 2019 8 vintage emission allowances and at 3-year intervals 9 thereafter, the Administrator shall update the dis- 10 tribution formula under this subsection to reflect 11 changes in each natural gas local distribution com- 12 pany’s service territory since the most recent for- 13 mula was established. For each successive 3-year pe- 14 riod, the Administrator shall distribute allowances 15 ratably among natural gas local distribution compa- 16 nies based on the product of— 17 ‘‘(A) each natural gas local distribution 18 company’s average annual natural gas deliveries 19 per customer during calendar years 2006 20 through 2008, or during the 3 alternative con- 21 secutive years selected by such company under 22 paragraph (1); and 23 ‘‘(B) the number of customers of such nat- 24 ural gas local distribution company in the most f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00572 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 573 1 recent year in which the formula is updated 2 under this paragraph. 3 ‘‘(c) USE OF ALLOWANCES.— 4 ‘‘(1) RATEPAYER BENEFIT.—Emission allow- 5 ances distributed to a natural gas local distribution 6 company under this section shall be used exclusively 7 for the benefit of retail ratepayers of such natural 8 gas local distribution company. Emission allowances 9 received by a natural gas local distribution company 10 under this section may not be used to support nat- 11 ural gas sales to entities or persons other than the 12 retail ratepayers of such natural gas local distribu- 13 tion company. 14 ‘‘(2) RATEPAYER CLASSES.—In using emission 15 allowances distributed under this section for the ben- 16 efit of ratepayers, a natural gas local distribution 17 company shall ensure that ratepayer benefits are 18 distributed— 19 ‘‘(A) among ratepayer classes ratably 20 based on natural gas deliveries to each class; 21 and 22 ‘‘(B) equitably among individual ratepayers 23 within each ratepayer class. 24 ‘‘(3) LIMITATION.—No natural gas local dis- 25 tribution company may use emission allowances to f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00573 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 574 1 provide to any ratepayer a rebate that is based solely 2 on the quantity of natural gas delivered to such 3 ratepayer. To the extent a natural gas local distribu- 4 tion company uses the value of emission allowances 5 distributed under this subsection to provide rebates, 6 it shall, to the maximum extent practicable, provide 7 such rebates with regard to the fixed portion of rate- 8 payers’ bills. 9 ‘‘(4) ENERGY PROGRAMS.—The EFFICIENCY 10 value of no less than one third of the emission allow- 11 ances distributed to natural gas local distribution 12 companies pursuant to this section in any calendar 13 year shall be used for cost-effective energy efficiency 14 programs for natural gas consumers. Such programs 15 must be authorized and overseen by the State regu- 16 latory authority, or by the entity with regulatory au- 17 thority over retail natural gas rates in the case of 18 a natural gas local distribution company that is not 19 regulated by a State regulatory authority. 20 ‘‘(5) GUIDELINES.—As part of the regulations 21 promulgated under subsection (h), the Administrator 22 shall prescribe specific guidelines for the implemen- 23 tation of the requirements of this subsection. 24 ‘‘(d) REGULATORY PROCEEDINGS.— f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00574 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 575 1 ‘‘(1) REQUIREMENT.—No natural gas local dis- 2 tribution company shall be eligible to receive emis- 3 sion allowances under this section unless the State 4 regulatory authority with authority over such com- 5 pany, or the entity with authority to regulate retail 6 rates of a natural gas local distribution company not 7 regulated by a State regulatory authority, has— 8 ‘‘(A) promulgated a regulation or com- 9 pleted a rate proceeding (or the equivalent, in 10 the case of a ratemaking entity other than a 11 State regulatory authority) that provides for 12 the full implementation of the requirements of 13 subsection (c); and 14 ‘‘(B) made available to the Administrator 15 and the public a report describing, in adequate 16 detail, the manner in which the requirements of 17 subsection (c) will be implemented. 18 ‘‘(2) UPDATING.—The Administrator shall re- 19 quire, as a condition of continued receipt of emission 20 allowances under this section by a natural gas local 21 distribution company, that a new regulation be pro- 22 mulgated or rate proceeding be completed, and a 23 new report be made available to the Administrator 24 and the public, pursuant to paragraph (1), not less 25 frequently than every 5 years. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00575 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 576 1 ‘‘(e) PLANS AND REPORTING.— 2 ‘‘(1) REGULATIONS.—As part of the regulations 3 promulgated under subsection (h), the Administrator 4 shall prescribe requirements governing plans and re- 5 ports to be submitted by natural gas local distribu- 6 tion companies in accordance with this subsection. 7 ‘‘(2) PLANS.—Not later than April 30 of 2015 8 and every 5 years thereafter through 2025, each 9 natural gas local distribution company shall submit 10 to the Administrator a plan, approved by the State 11 regulatory authority or other entity charged with 12 regulating the retail rates of such company, describ- 13 ing such company’s plans for the disposition of the 14 value of emission allowances to be received pursuant 15 to this section, in accord with the requirements of 16 this section. 17 ‘‘(3) REPORTS.—Not later than June 30 of 18 2017 and each calendar year thereafter through 19 2031, each natural gas local distribution company 20 that received emission allowances under this section 21 in the preceding calendar year shall submit a report 22 to the Administrator, approved by the relevant State 23 regulatory authority or the entity with authority to 24 regulate retail natural gas rates in the case of a nat- 25 ural gas local distribution company not regulated by f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00576 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 577 1 a State regulatory authority, describing the disposi- 2 tion of the value of any emission allowances received 3 by the company in the prior calendar year pursuant 4 to this subsection, including— 5 ‘‘(A) a description of sales, transfer, ex- 6 change, or use by the company for compliance 7 with obligations under this title, of any such 8 emission allowances; 9 ‘‘(B) the monetary value received by the 10 company, whether in money or in some other 11 form, from the sale, transfer, or exchange of 12 emission allowances received by the company 13 under this section; 14 ‘‘(C) the manner in which the company’s 15 disposition of emission allowances received 16 under this subsection complies with the require- 17 ments of this section, including each of the re- 18 quirements of subsection (c); 19 ‘‘(D) the cost-effectiveness of, and energy 20 savings achieved by, energy efficiency programs 21 supported through such emission allowances; 22 and 23 ‘‘(E) such other information as the Admin- 24 istrator may require pursuant to paragraph (1). f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00577 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 578 1 ‘‘(4) PUBLICATION.—The Administrator shall 2 make available to the public all plans and reports 3 submitted by natural gas local distribution compa- 4 nies under this subsection, including by publishing 5 such plans and reports on the Internet. 6 ‘‘(f) AUDITS.—Each year, the Administrator shall 7 conduct an audit of a representative sample of natural gas 8 local distribution companies receiving emission allowances 9 under this section to ensure compliance with the require- 10 ments of this section. In selecting natural gas local dis- 11 tribution companies for audit, the Administrator shall 12 take into account any credible evidence of noncompliance 13 with the requirements of this section. The Administrator 14 shall make available to the public a report describing the 15 results of each such audit, including by publishing such 16 report on the Internet. 17 ‘‘(g) ENFORCEMENT.—A violation of any require- 18 ment of this section shall be a violation of this Act. Each 19 emission allowance the value of which is used in violation 20 of the requirements of this section shall be a separate vio- 21 lation. 22 ‘‘(h) REGULATIONS.—Not later than January 1, 23 2014, the Administrator, in consultation with the Federal 24 Energy Regulatory Commission, shall promulgate regula- 25 tions to implement the requirements of this section. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00578 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 579 1 ‘‘SEC. 785. HOME HEATING OIL AND PROPANE CONSUMERS. 2 ‘‘(a) DEFINITIONS.—For purposes of this section: 3 ‘‘(1) CARBON CONTENT.—The term ‘carbon 4 content’ means the amount of carbon dioxide that 5 will be emitted as a result of the combustion of a 6 fuel. 7 ‘‘(2) COST-EFFECTIVE.—The term ‘cost-effec- 8 tive’, with respect to an energy efficiency program, 9 means that the program meets the Total Resource 10 Cost Test, which requires that the net present value 11 of economic benefits over the life of the program, in- 12 cluding avoided supply and delivery costs and de- 13 ferred or avoided investments, is greater than the 14 net present value of the economic costs over the life 15 of the program, including program costs and incre- 16 mental costs borne by the energy consumer. 17 ‘‘(b) ALLOCATION.—Not later than September 30 of 18 each of calendar years 2012 through 2030, the Adminis- 19 trator shall distribute among the States, in accordance 20 with this section, the quantity of emission allowances allo- 21 cated pursuant to section 782(c). 22 ‘‘(c) DISTRIBUTION AMONG STATES.—The Adminis- 23 trator shall distribute allowances among the States under 24 this section each year ratably based on the ratio of— f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00579 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 580 1 ‘‘(1) the carbon content of home heating oil and 2 propane sold to consumers within each State in the 3 preceding year for residential or commercial uses; to 4 ‘‘(2) the carbon content of home heating oil and 5 propane sold to consumers within the United States 6 in the preceding year for residential or commercial 7 uses. 8 ‘‘(d) USE OF ALLOWANCES.— 9 ‘‘(1) IN GENERAL.—States shall use emission 10 allowances distributed under this section exclusively 11 for the benefit of consumers of home heating oil or 12 propane for residential or commercial purposes. 13 Such proceeds shall be used exclusively for— 14 ‘‘(A) cost-effective energy efficiency pro- 15 grams for consumers that use home heating oil 16 or propane for residential or commercial pur- 17 poses; or 18 ‘‘(B) rebates or other direct financial as- 19 sistance programs for consumers of home heat- 20 ing oil or propane used for residential or com- 21 mercial purposes. 22 ‘‘(2) ADMINISTRATION AND DELIVERY MECHA- 23 NISMS.—In administering programs supported by 24 this section, States shall— f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00580 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 581 1 ‘‘(A) use no less than 50 percent of the 2 value of emission allowances received under this 3 section for cost-effective efficiency programs to 4 reduce consumers’ overall fuel costs; 5 ‘‘(B) to the extent practicable, deliver con- 6 sumer support under this section through exist- 7 ing energy efficiency and consumer energy as- 8 sistance programs or delivery mechanisms, in- 9 cluding, where appropriate, programs or mecha- 10 nisms administered by parties other than the 11 State; and 12 ‘‘(C) seek to coordinate the administration 13 and delivery of energy efficiency and consumer 14 energy assistance programs funded under this 15 section, with one another and with existing pro- 16 grams for various fuel types, so as to deliver 17 comprehensive, fuel-blind, coordinated programs 18 to consumers. 19 ‘‘(e) REPORTING.—Each State receiving emission al- 20 lowances under this section shall submit to the Adminis- 21 trator, within 12 months of each receipt of such allow- 22 ances, a report, in accordance with such requirements as 23 the Administrator may prescribe, that— 24 ‘‘(1) describes the State’s use of emission allow- 25 ances distributed under this section, including a de- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00581 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 582 1 scription of the energy efficiency and consumer as- 2 sistance programs supported with such allowances; 3 ‘‘(2) demonstrates the cost-effectiveness of, and 4 the energy savings achieved by, energy efficiency 5 programs supported under this section; and 6 ‘‘(3) includes a report prepared by an inde- 7 pendent third party, in accordance with such regula- 8 tions as the Administrator may promulgate, evalu- 9 ating the performance of the energy efficiency and 10 consumer assistance programs supported under this 11 section. 12 ‘‘(f) ENFORCEMENT.—If the Administrator deter- 13 mines that a State is not in compliance with this section, 14 the Administrator may withhold a portion of the allow- 15 ances, the value of which is equal to up to twice the value 16 of the allowances that the State failed to use in accordance 17 with the requirements of this section, that such State 18 would otherwise be eligible to receive under this section 19 in later years. Allowances withheld pursuant to this sub- 20 section shall be distributed among the remaining States 21 ratably in accordance with the formula in subsection (c). 22 ‘‘SEC. 786-788. øSECTIONS RESERVED¿. 23 ‘‘SEC. 789. CLIMATE CHANGE REBATES. 24 ‘‘(a) REBATE.—Not later than October 31 of each 25 calendar year, the President, or such Federal agency or f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00582 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 583 1 department as the President may designate, shall dis- 2 tribute the funds in the Consumer Climate Change Rebate 3 Fund on a per capita basis to each household in the 4 United States. 5 ‘‘(b) LIMITATIONS.—The President, or such Federal 6 agency or department as the President may designate, 7 shall establish procedures to ensure that individuals who 8 are not— 9 ‘‘(1) citizens or nationals of the United States; 10 or 11 ‘‘(2) immigrants lawfully residing in the United 12 States, 13 are excluded for the purpose of calculating and distrib- 14 uting rebates under this section. 15 ‘‘SEC. 790. EXCHANGE FOR STATE-ISSUED ALLOWANCES. 16 ‘‘(a) IN GENERAL.—Not later than one year after the 17 date of enactment of this title, the Administrator shall 18 issue regulations allowing any person in the United States 19 to exchange greenhouse gas emission allowances issued be- 20 fore December 31, 2011, by the State of California or for 21 the Regional Greenhouse Gas Initiative, or the Western 22 Climate Initiative (in this section referred to as ‘State al- 23 lowances’) for emission allowances established by the Ad- 24 ministrator under section 721(a). f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00583 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 584 1 ‘‘(b) REGULATIONS.—Regulations issued under sub- 2 section (a) shall— 3 ‘‘(1) provide that a person exchanging State al- 4 lowances under this section receive emission allow- 5 ances established under section 721(a) in the 6 amount that is sufficient to compensate for the cost 7 of obtaining and holding such State allowances; 8 ‘‘(2) establish a deadline by which persons must 9 exchange the State allowances; and 10 ‘‘(3) provide that the Federal emission allow- 11 ances disbursed pursuant to this section shall be de- 12 ducted from the allowances to be auctioned pursuant 13 to section 782(b). 14 ‘‘(c) COST OBTAINING STATE ALLOWANCE.—For OF 15 purposes of this section, the cost of obtaining a State al- 16 lowance shall be the average auction price, for emission 17 allowances issued in the year in which the State allowance 18 was issued, under the program under which the State al- 19 lowance was issued. 20 ‘‘SEC. 791. AUCTION PROCEDURES. 21 ‘‘(a) IN GENERAL.—To the extent that auctions of 22 emission allowances by the Administrator are authorized 23 by this part, such auctions shall be carried out pursuant 24 to this section and the regulations established hereunder. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00584 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 585 1 ‘‘(b) INITIAL REGULATIONS.—Not later than 12 2 months after the date of enactment of this title, the Ad- 3 ministrator, in consultation with other agencies, as appro- 4 priate, shall promulgate regulations governing the auction 5 of allowances under this section. Such regulations shall in- 6 clude the following requirements: 7 ‘‘(1) FREQUENCY; FIRST AUCTION.—Auctions 8 shall be held four times per year at regular intervals, 9 with the first auction to be held no later than March 10 31, 2011. 11 ‘‘(2) AUCTION SCHEDULE; CURRENT AND FU- 12 TURE VINTAGES.—The Administrator shall, at each 13 quarterly auction under this section, offer for sale 14 both a portion of the allowances with the same vin- 15 tage year as the year in which the auction is being 16 conducted and a portion of the allowances with vin- 17 tage years from future years. The preceding sen- 18 tence shall not apply to auctions held before 2012, 19 during which period, by necessity, the Administrator 20 shall auction only allowances with a vintage year 21 that is later than the year in which the auction is 22 held. Beginning with the first auction and at each 23 quarterly auction held thereafter, the Administrator 24 may offer for sale allowances with vintage years of f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00585 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 586 1 up to four years after the year in which the auction 2 is being conducted. 3 ‘‘(3) AUCTION FORMAT.—Auctions shall follow 4 a single-round, sealed-bid, uniform price format. 5 ‘‘(4) PARTICIPATION; FINANCIAL ASSURANCE.— 6 Auctions shall be open to any person, except that 7 the Administrator may establish financial assurance 8 requirements to ensure that auction participants can 9 and will perform on their bids. 10 ‘‘(5) DISCLOSURE OWNER- OF BENEFICIAL 11 SHIP.—Each bidder in the auction shall be required 12 to disclose the person or entity sponsoring or bene- 13 fitting from the bidder’s participation in the auction 14 if such person or entity is, in whole or in part, other 15 than the bidder. 16 ‘‘(6) PURCHASE LIMITS.—No person may, di- 17 rectly or in concert with another participant, pur- 18 chase more than 5 percent of the allowances offered 19 for sale at any quarterly auction. 20 ‘‘(7) PUBLICATION INFORMATION.—After OF 21 the auction, the Administrator shall, in a timely 22 fashion, publish the identities of winning bidders, 23 the quantity of allowances obtained by each winning 24 bidder, and the auction clearing price. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00586 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 587 1 REQUIREMENTS.—The Adminis- ‘‘(8) OTHER 2 trator may include in the regulations such other re- 3 quirements or provisions as the Administrator, in 4 consultation with other agencies, as appropriate, 5 considers appropriate to promote effective, efficient, 6 transparent, and fair administration of auctions 7 under this section. 8 ‘‘(c) REVISION REGULATIONS.—The Adminis- OF 9 trator may, in consultation with other agencies, as appro- 10 priate, at any time, revise the initial regulations promul- 11 gated under subsection (b). Such revised regulations need 12 not meet the requirements identified in subsection (b) if 13 the Administrator determines that an alternative auction 14 design would be more effective, taking into account factors 15 including costs of administration, transparency, fairness, 16 and risks of collusion or manipulation. In determining 17 whether and how to revise the initial regulations under 18 this subsection, the Administrator shall not consider maxi- 19 mization of revenues to the Federal Government. 20 ‘‘(d) RESERVE AUCTION PRICE.—The minimum re- 21 serve auction price shall be $10 for auctions occurring in 22 2012. The minimum reserve price for auctions occurring 23 in years after 2012 shall be the minimum reserve auction 24 price for the previous year increased by 5 percent plus f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00587 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 588 1 the rate of inflation (as measured by the Consumer Price 2 Index for all urban consumers). 3 ‘‘(e) DELEGATION CONTRACT.—Pursuant to reg- OR 4 ulations under this section, the Administrator may by del- 5 egation or contract provide for the conduct of auctions 6 under the Administrator’s supervision by other depart- 7 ments or agencies of the Federal Government or by non- 8 governmental agencies, groups, or organizations. 9 ‘‘SEC. 792. AUCTIONING ALLOWANCES FOR OTHER ENTI- 10 TIES. 11 ‘‘(a) CONSIGNMENT.—Any entity holding emission al- 12 lowances or compensatory allowances may request that the 13 Administrator auction, pursuant to section 791, the allow- 14 ances on consignment. 15 ‘‘(b) PRICING.—When the Administrator acts under 16 this section as the agent of an entity in possession of emis- 17 sion allowances, the Administrator is not obligated to ob- 18 tain the highest price possible for the emission allowances, 19 and instead shall auction consignment allowances in the 20 same manner and pursuant to the same rules as auctions 21 of other allowances under section 791. The Administrator 22 may permit emission allowance owners to condition the 23 sale of their allowances pursuant to this section on a min- 24 imum reserve price. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00588 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 589 1 ‘‘(c) PROCEEDS.—For emission allowances and com- 2 pensatory allowances auctioned pursuant to this section, 3 notwithstanding section 3302 of title 31, United States 4 Code, or any other provision of law, within 90 days of re- 5 ceipt, the United States shall transfer the proceeds from 6 the auction to the entity which held the allowances auc- 7 tioned. No funds transferred from a purchaser to a seller 8 of emission allowances or compensatory allowances under 9 this subsection shall be held by any officer or employee 10 of the United States or treated for any purpose as public 11 monies. 12 ‘‘(d) REGULATIONS.—The Administrator shall issue 13 regulations within 24 months after the date of enactment 14 of this title to implement this section. 15 ‘‘SEC. 793. ESTABLISHMENT OF FUNDS. 16 ‘‘There is established in the Treasury of the United 17 States the following funds: 18 ‘‘(1) The Strategic Reserve Fund. 19 ‘‘(2) The Climate Change Rebate Fund.’’. Subtitle C—Additional Greenhouse 20 Gas Standards 21 22 SEC. 331. GREENHOUSE GAS STANDARDS. 23 The Clean Air Act (42 U.S.C. 7401 and following), 24 as amended by subtitles A and B of this title, is further 25 amended by adding the following new title after title VII: f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00589 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 590 ‘‘TITLE VIII—ADDITIONAL 1 GREENHOUSE GAS STANDARDS 2 3 ‘‘SEC. 801. DEFINITIONS. 4 ‘‘For purposes of this title, terms that are defined 5 in title VII, except for the term ‘stationary source’, shall 6 have the meaning given those terms in title VII. 7 ‘‘PART A—STATIONARY SOURCE STANDARDS 8 ‘‘SEC. 811. STANDARDS OF PERFORMANCE. 9 ‘‘(a) UNCAPPED STATIONARY SOURCES.— 10 ‘‘(1) INVENTORY OF SOURCE CATEGORIES.—(A) 11 Within 12 months after the date of enactment of 12 this title, the Administrator shall publish under sec- 13 tion 111(b)(1)(A) an inventory of categories of sta- 14 tionary sources that consist of those categories that 15 contain sources that individually had uncapped 16 greenhouse gas emissions greater than 10,000 tons 17 of carbon dioxide equivalent and that, in the aggre- 18 gate, were responsible for emitting at least 20 per- 19 cent annually of the uncapped greenhouse gas emis- 20 sions. 21 ‘‘(B) The Administrator shall include in the in- 22 ventory under this paragraph each source category 23 that is responsible for at least 10 percent of the un- 24 capped methane emissions. Notwithstanding any 25 other provision, the inventory required by this sec- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00590 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 591 1 tion shall not include sources of enteric fermenta- 2 tion. The list under this paragraph shall include in- 3 dustrial sources, the emissions from which, when 4 added to the capped emissions from industrial 5 sources, constitute at least 95 percent of the green- 6 house gas emissions of the industrial sector. 7 ‘‘(C) For purposes of this subsection, emissions 8 shall be calculated using tons of carbon dioxide 9 equivalents. In promulgating the inventory required 10 by this paragraph and the schedule required under 11 by paragraph (2)(C), the Administrator shall use the 12 most current emissions data available at the time of 13 promulgation. 14 ‘‘(D) Notwithstanding any other provisions, the 15 Administrator may list under 111(b) any source cat- 16 egory identified in the inventory required by this 17 subsection without making a finding that the source 18 category causes or contributes significantly to, air 19 pollution with may be reasonably anticipated to en- 20 danger public health or welfare. 21 ‘‘(2) STANDARDS AND SCHEDULE.— (A) For 22 each category identified as provided in paragraph 23 (1), the Administrator shall promulgate standards of 24 performance under section 111 for the uncapped 25 emissions of greenhouse gases from stationary f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00591 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 592 1 sources in that category and shall promulgate cor- 2 responding regulations under section 111(d). 3 ‘‘(B) The Administrator shall promulgate 4 standards as required by this subsection for sta- 5 tionary sources in categories identified as provided 6 in paragraph (1) as expeditiously as practicable, as- 7 suring that— 8 ‘‘(i) standards for identified source cat- 9 egories that, combined, emitted 80 percent or 10 more of the greenhouse gas emissions of the 11 identified source categories shall be promul- 12 gated not later than 3 years after the date of 13 enactment of this title and shall include stand- 14 ards for natural gas extraction; and 15 ‘‘(ii) for all other identified source cat- 16 egories— 17 ‘‘(I) standards for not less than an 18 additional 25 percent of the identified cat- 19 egories shall be promulgated not later than 20 5 years after the date of enactment of this 21 title; 22 ‘‘(II) standards for not less than an 23 additional 25 percent of the identified cat- 24 egories shall be promulgated not later than f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00592 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 593 1 7 years after the date of enactment of this 2 title; and 3 ‘‘(III) standards for all the identified 4 categories shall be promulgated not later 5 than 10 years after the date of enactment 6 of this title. 7 ‘‘(C) Not later than 24 months after the date 8 of enactment of this title and after notice and oppor- 9 tunity for comment, the Administrator shall publish 10 a schedule establishing a date for the promulgation 11 of standards for each category of sources identified 12 pursuant to paragraph (1). The date for each cat- 13 egory shall be consistent with the requirements of 14 subparagraph (B). The determination of priorities 15 for the promulgation of standards pursuant to this 16 paragraph is not a rulemaking and shall not be sub- 17 ject to judicial review, except that failure to promul- 18 gate any standard pursuant to the schedule estab- 19 lished by this paragraph shall be subject to review 20 under section 304(a)(2). 21 ‘‘(D) Notwithstanding section 307, no action of 22 the Administrator listing a source category under 23 paragraph (1) shall be a final agency action subject 24 to judicial review, except that any such action may 25 be reviewed under section 307 when the Adminis- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00593 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 594 1 trator issues performance standards for such cat- 2 egory. 3 ‘‘(b) CAPPED SOURCES.—No standard of perform- 4 ance shall be established under section 111 for capped 5 greenhouse gas emissions from a capped source unless the 6 Administrator determines that such standards are appro- 7 priate because of impacts, not including climate change 8 effects. In promulgating a standard of performance under 9 section 111 for the emission from capped sources of any 10 air pollutant that is not a greenhouse gas, the Adminis- 11 trator shall treat the emission of any greenhouse gas by 12 those entities as a nonair quality public health and envi- 13 ronmental impact within the meaning of section 14 111(a)(1). 15 ‘‘(c) PERFORMANCE STANDARDS.— For purposes of 16 setting a performance standard for source categories iden- 17 tified pursuant to subsection (a)— 18 ‘‘(1) The Administrator shall take into account 19 the goal of reducing total United States greenhouse 20 gas emissions as set forth in section 702. 21 ‘‘(2) The Administrator may promulgate a de- 22 sign, equipment, work practice, or operational stand- 23 ard, or any combination thereof, under section 111 24 in lieu of a standard of performance under that sec- 25 tion without regard to any determination of feasi- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00594 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 595 1 bility that would otherwise be required under section 2 111(h). 3 ‘‘(3) Notwithstanding any other provision, in 4 setting the level of each standard required by this 5 section, the Administrator shall take into account 6 projections of allowance prices, such that the mar- 7 ginal cost of compliance (expressed as dollars per 8 ton of carbon dioxide equivalent reduced) imposed by 9 the standard would not, in the judgement of the Ad- 10 ministrator, be expected to exceed the Administra- 11 tor’s projected allowance prices over the time period 12 spanning from the date of initial compliance to the 13 date that the next revisions of the standard would 14 come into effect pursuant to the schedule under sec- 15 tion 111(b)(1)(B). 16 ‘‘(d) DEFINITIONS.—In this section, the terms ‘un- 17 capped greenhouse gas emissions’ and ‘uncapped methane 18 emissions’ mean those greenhouse gas or methane emis- 19 sions, respectively, to which section 722 would not have 20 applied if the requirements of this title had been in effect 21 for the same year as the emissions data upon which the 22 list is based. 23 ‘‘(e) STUDY EFFECTS PERFORMANCE OF THE OF 24 STANDARDS.— f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00595 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 596 1 ‘‘(1) STUDY.—The Administrator shall conduct 2 a study of the impacts of performance standards re- 3 quired under this section, which shall evaluate the 4 effect of such standards on the 5 ‘‘(A) costs of achieving compliance with the 6 economy-wide reduction goals specified in sec- 7 tion 702 and the reduction targets specified in 8 section 703; 9 ‘‘(B) available supply of offset credits; and 10 ‘‘(C) ability to achieve the economy-wide 11 reduction goals specified in section 702 and any 12 other benefits of such standards. 13 ‘‘(2) REPORT.—The Administrator shall submit 14 to the House Energy and Commerce Committee a 15 report that describes the results of the study not 16 later than 18 months after the publication of the 17 standards required under subsection (a)(2)(B)(i). 18 ‘‘PART C—EXEMPTIONS FROM OTHER PROGRAMS 19 ‘‘SEC. 831. CRITERIA POLLUTANTS. 20 ‘‘No greenhouse gas may be listed under section 21 108(a) on the basis of its effect on climate change. 22 ‘‘SEC. 832. HAZARDOUS AIR POLLUTANTS. 23 ‘‘No greenhouse gas may be added to the list of haz- 24 ardous air pollutants under section 112 unless such green- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00596 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 597 1 house gas meets the listing criteria of section 112(b) inde- 2 pendent of its effects on climate change. 3 ‘‘SEC. 833. NEW SOURCE REVIEW. 4 ‘‘The provisions of part C of title I shall not apply 5 to a greenhouse gas solely on the basis of its effect on 6 climate change or regulation under title VII or this title. 7 ‘‘SEC. 834. TITLE V PERMITS. 8 ‘‘Notwithstanding any provision of title III or V, in 9 determining whether a stationary source is required to 10 apply for, or operate pursuant to, a permit under title V, 11 the Administrator shall not consider the source’s green- 12 house gas emissions. 13 ‘‘SEC. 835. EXISTING PROCEEDINGS. 14 ‘‘Nothing in the American Clean Energy and Security 15 Act of 2009, or the adoption thereof, shall affect the re- 16 quirements to be applied in administrative proceedings or 17 litigation initiated under the Clean Air Act prior to the 18 date of enactment of the American Clean Energy and Se- 19 curity Act of 2009. The preceding sentence does not apply 20 to any covered EGU that is subject to the requirements 21 of section 812(b).’’. 22 SEC. 332. HFC REGULATION. 23 (a) IN GENERAL.—Title VI of the Clean Air Act (42 24 U.S.C. 7671 et seq.) (relating to stratospheric ozone pro- 25 tection) is amended by adding at the end the following: f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00597 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 598 1 ‘‘SEC. 619. HYDROFLUOROCARBONS (HFCS). 2 ‘‘(a) TREATMENT CLASS II, GROUP II SUB- AS 3 STANCES.—Except as otherwise provided in this section, 4 hydrofluorocarbons shall be treated as class II substances 5 for purposes of applying the provisions of this title. The 6 Administrator shall establish two groups of class II sub- 7 stances. Class II, group I substances shall include all 8 hydrochlorofluorocarbons (HCFCs) listed pursuant to sec- 9 tion 602(b). Class II, group II substances shall include 10 each of the following: 11 ‘‘(1) Hydrofluorocarbon-23 (HFC-23). 12 ‘‘(2) Hydrofluorocarbon-32 (HFC-32). 13 ‘‘(3) Hydrofluorocarbon-41 (HFC-41). 14 ‘‘(4) Hydrofluorocarbon-125 (HFC-125). 15 ‘‘(5) Hydrofluorocarbon-134 (HFC-134). 16 ‘‘(6) Hydrofluorocarbon-134a (HFC-134a). 17 ‘‘(7) Hydrofluorocarbon-143 (HFC-143). 18 ‘‘(8) Hydrofluorocarbon-143a (HFC-143a). 19 ‘‘(9) Hydrofluorocarbon-152 (HFC-152). 20 ‘‘(10) Hydrofluorocarbon-152a (HFC-152a). 21 ‘‘(11) Hydrofluorocarbon-227ea (HFC-227ea). 22 ‘‘(12) Hydrofluorocarbon-236cb (HFC-236cb). 23 ‘‘(13) Hydrofluorocarbon-236ea (HFC-236ea). 24 ‘‘(14) Hydrofluorocarbon-236fa (HFC-236fa). 25 ‘‘(15) Hydrofluorocarbon-245ca (HFC-245ca). 26 ‘‘(16) Hydrofluorocarbon-245fa (HFC-245fa). f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00598 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 599 1 ‘‘(17) Hydrofluorocarbon-365mfc (HFC- 2 365mfc). 3 ‘‘(18) Hydrofluorocarbon-43-10mee (HFC-43- 4 10mee). 5 ‘‘(19) Hydrofluoroolefin-1234yf (HFO-1234yf). 6 ‘‘(20) Hydrofluoroolefin-1234ze (HFO-1234ze). 7 Not later than 6 months after the date of enactment of 8 this title, the Administrator shall publish an initial list of 9 class II, group II substances, which shall include the sub- 10 stances listed in this subsection. The Administrator may 11 add to the list of class II, group II substances any other 12 substance used as a substitute for a class I or II substance 13 if the Administrator determines that 1 metric ton of the 14 gas makes the same or greater contribution to global 15 warming over 100 years as 1 metric ton of carbon dioxide. 16 Within 24 months after the date of enactment of this sec- 17 tion, the Administrator shall amend the regulations under 18 this title (including the regulations referred to in sections 19 603, 608, 609, 610, 611, 612, and 613) to apply to class 20 II, group II substances. 21 ‘‘(b) CONSUMPTION PRODUCTION CLASS II, AND OF 22 GROUP II SUBSTANCES.— 23 ‘‘(1) IN GENERAL.— 24 ‘‘(A) CONSUMPTION PHASE DOWN.—In the 25 case of class II, group II substances, in lieu of f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00599 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 600 1 applying section 605 and the regulations there- 2 under, the Administrator shall promulgate reg- 3 ulations phasing down the consumption of class 4 II, group II substances in the United States, 5 and the importation of products containing any 6 class II, group II substance, in accordance with 7 this subsection within 18 months after the date 8 of enactment of this section. Effective January 9 1, 2012, it shall be unlawful for any person to 10 produce any class II, group II substance, im- 11 port any class II, group II substance, or import 12 any product containing any class II, group II 13 substance without holding one consumption al- 14 lowance or one destruction offset credit for each 15 carbon dioxide equivalent ton of the class II, 16 group II substance. Any person who exports a 17 class II, group II substance for which a con- 18 sumption allowance was retired may receive a 19 refund of that allowance from the Adminis- 20 trator following the export. 21 ‘‘(B) PRODUCTION.—If the United States 22 becomes a party or otherwise adheres to a mul- 23 tilateral agreement, including any amendment 24 to the Montreal Protocol on Substances That 25 Deplete the Ozone Layer, that restricts the pro- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00600 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 601 1 duction of class II, group II substances, the Ad- 2 ministrator shall promulgate regulations estab- 3 lishing a baseline for the production of class II, 4 group II substances in the United States and 5 phasing down the production of class II, group 6 II substances in the United States, in accord- 7 ance with such multilateral agreement and sub- 8 ject to the same exceptions and other provisions 9 as are applicable to the phase down of con- 10 sumption of class II, group II substances under 11 this section (except that the Administrator shall 12 not require a person who obtains production al- 13 lowances from the Administrator to make pay- 14 ment for such allowances if the person is mak- 15 ing payment for a corresponding quantity of 16 consumption allowances of the same vintage 17 year). Upon the effective date of such regula- 18 tions, it shall be unlawful for any person to 19 produce any class II, group II substance with- 20 out holding one consumption allowance and one 21 production allowance, or one destruction offset 22 credit, for each carbon dioxide equivalent ton of 23 the class II, group II substance. 24 ‘‘(C) INTEGRITY OF CAP.—To maintain 25 the integrity of the class II, group II cap, the f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00601 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 602 1 Administrator may, through rulemaking, limit 2 the percentage of each person’s compliance obli- 3 gation that may be met through the use of de- 4 struction offset credits or banked allowances. 5 ‘‘(D) COUNTING VIOLATIONS.—Each OF 6 emission allowance not held as required by this 7 section shall be a separate violation of this sec- 8 tion. 9 ‘‘(2) SCHEDULE.—Pursuant to the regulations 10 promulgated pursuant to paragraph (1), the number 11 of class II, group II consumption allowances estab- 12 lished by the Administrator for each calendar year 13 beginning in 2012 shall be the following percentage 14 of the baseline, as established by the Administrator 15 pursuant to paragraph (3): ‘‘Calendar Year Percent of Baseline 2012 90 2013 87.5 2014 85 2015 82.5 2016 80 2017 77.5 2018 75 2019 71 2020 67 2021 63 f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00602 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 603 ‘‘Calendar Year Percent of Baseline 2022 59 2023 54 2024 50 2025 46 2026 42 2027 38 2028 34 2029 30 2030 25 2031 21 2032 17 after 2032 15 1 ‘‘(3) BASELINE.—(A) Within 12 months after 2 the date of enactment of this section, the Adminis- 3 trator shall promulgate regulations to establish the 4 baseline for purposes of paragraph (2). The baseline 5 shall be the sum, expressed in tons of carbon dioxide 6 equivalents, of— 7 ‘‘(i) the annual average consumption of all 8 class II substances in calendar years 2004, 9 2005, and 2006; plus 10 ‘‘(ii) the annual average quantity of all 11 class II substances contained in imported prod- 12 ucts in calendar years 2004, 2005, and 2006. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00603 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 604 1 ‘‘(B) Notwithstanding subparagraph (A), if the 2 Administrator determines that the baseline is higher 3 than 370 million metric tons of carbon dioxide 4 equivalents, then the Administrator shall establish 5 the baseline at 370 million metric tons of carbon di- 6 oxide equivalents. 7 ‘‘(C) Notwithstanding subparagraph (A), if the 8 Administrator determines that the baseline is lower 9 than 280 million metric tons of carbon dioxide 10 equivalents, then the Administrator shall establish 11 the baseline at 280 million metric tons of carbon di- 12 oxide equivalents. 13 ‘‘(4) DISTRIBUTION OF ALLOWANCES.— 14 ‘‘(A) IN GENERAL.—Pursuant to the regu- 15 lations promulgated under paragraph (1), for 16 each calendar year beginning in 2012, the Ad- 17 ministrator shall sell consumption allowances in 18 accordance with this paragraph. 19 ‘‘(B) ESTABLISHMENT POOLS.—The OF 20 Administrator shall establish two allowance 21 pools. Eighty percent of the consumption allow- 22 ances available for a calendar year shall be 23 placed in the producer-importer pool, and 20 24 percent of the consumption allowances available f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00604 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 605 1 for a calendar year shall be placed in the sec- 2 ondary pool. 3 ‘‘(C) PRODUCER-IMPORTER POOL.— 4 ‘‘(i) AUCTION.—(I) For each calendar 5 year, the Administrator shall offer for sale 6 at auction the following percentage of the 7 consumption allowances in the producer- 8 importer pool: ‘‘Calendar Year Percent Available for Auction 2012 10 2013 20 2014 30 2015 40 2016 50 2017 60 2018 70 2019 80 2020 and thereafter 90 9 ‘‘(II) Any person who produced or im- 10 ported any class II substance during cal- 11 endar year 2004, 2005, or 2006 may par- 12 ticipate in the auction. No other persons 13 may participate in the auction unless per- 14 mitted to do so pursuant to subclause 15 (III). f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00605 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 606 1 ‘‘(III) Not later than three years after 2 the date of the initial auction and from 3 time to time thereafter, the Administrator 4 shall determine through rulemaking wheth- 5 er any persons who did not produce or im- 6 port a class II substance during calendar 7 year 2004, 2005, or 2006 will be permitted 8 to participate in future auctions. The Ad- 9 ministrator shall base this determination 10 on the duration, consistency, and scale of 11 such person’s purchases of consumption al- 12 lowances in the secondary pool under sub- 13 paragraph (D), as well as economic or 14 technical hardship and other factors 15 deemed relevant by the Administrator. 16 ‘‘(IV) The Administrator shall set a 17 minimum bid per consumption allowance of 18 the following: 19 ‘‘(aa) For vintage year 2012, 20 $1.00. 21 ‘‘(bb) For vintage year 2013, 22 $1.20. 23 ‘‘(cc) For vintage year 2014, 24 $1.40. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00606 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 607 1 ‘‘(dd) For vintage year 2015, 2 $1.60. 3 ‘‘(ee) For vintage year 2016, 4 $1.80. 5 ‘‘(ff) For vintage year 2017, 6 $2.00. 7 ‘‘(gg) For vintage year 2018 and 8 thereafter, $2.00 adjusted for infla- 9 tion after vintage year 2017 based 10 upon the producer price index as pub- 11 lished by the Department of Com- 12 merce. 13 ‘‘(ii) NON-AUCTION SALE.—(I) For 14 each calendar year, as soon as practicable 15 after auction, the Administrator shall offer 16 for sale the remaining consumption allow- 17 ances in the producer-importer pool at the 18 following prices: 19 ‘‘(aa) A fee of $1.00 per vintage 20 year 2012 allowance. 21 ‘‘(bb) A fee of $1.20 per vintage 22 year 2013 allowance. 23 ‘‘(cc) A fee of $1.40 per vintage 24 year 2014 allowance. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00607 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 608 1 ‘‘(dd) For each vintage year 2 2015 allowance, a fee equal to the av- 3 erage of $1.10 and the auction clear- 4 ing price for vintage year 2014 allow- 5 ances. 6 ‘‘(ee) For each vintage year 2016 7 allowance, a fee equal to the average 8 of $1.30 and the auction clearing 9 price for vintage year 2015 allow- 10 ances. 11 ‘‘(ff) For each vintage year 2017 12 allowance, a fee equal to the average 13 of $1.40 and the auction clearing 14 price for vintage year 2016 allow- 15 ances. 16 ‘‘(gg) For each allowance of vin- 17 tage year 2018 and subsequent vin- 18 tage years, a fee equal to the auction 19 clearing price for that vintage year. 20 ‘‘(II) The Administrator shall offer to 21 sell the remaining consumption allowances 22 in the producer-importer pool to producers 23 of class II, group II substances and im- 24 porters of class II, group II substances in f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00608 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 609 1 proportion to their relative allocation 2 share. 3 ‘‘(III) Such allocation share for such 4 sale shall be determined by the Adminis- 5 trator using such producer’s or importer’s 6 annual average data on class II substances 7 from calendar years 2004, 2005, and 8 2006, on a carbon dioxide equivalent basis, 9 and— 10 ‘‘(aa) shall be based on a pro- 11 ducer’s production, plus importation, 12 plus acquisitions and purchases from 13 persons who produced class II sub- 14 stances in the United States during 15 calendar years 2004, 2005, or 2006, 16 less exportation, less transfers and 17 sales to persons who produced class II 18 substances in the United States dur- 19 ing calendar years 2004, 2005, or 20 2006; and 21 ‘‘(bb) for an importer of class II 22 substances that did not produce in the 23 United States any class II substance 24 during calendar years 2004, 2005, f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00609 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 610 1 and 2006, shall be based on the im- 2 porter’s importation less exportation. 3 For purposes of item (aa), the Adminis- 4 trator shall account for 100 percent of 5 class II, group II substances and 60 per- 6 cent of class II, group I substances. For 7 purposes of item (bb), the Administrator 8 shall account for 100 percent of class II, 9 group II substances and 100 percent of 10 class II, group I substances. 11 ‘‘(IV) Any consumption allowances 12 made available for nonauction sale to a 13 specific producer or importer of class II, 14 group II substances but not purchased by 15 the specific producer or importer shall be 16 made available for sale to any producer or 17 importer of class II substances during cal- 18 endar years 2004, 2005, and 2006. If de- 19 mand for such consumption allowances ex- 20 ceeds supply of such consumption allow- 21 ances, the Administrator shall develop and 22 utilize criteria for the sale of such con- 23 sumption allowances that may include pro 24 rata shares, historic production and impor- 25 tation, economic or technical hardship, or f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00610 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 611 1 other factors deemed relevant by the Ad- 2 ministrator. If the supply of such con- 3 sumption allowances exceeds demand, the 4 Administrator may offer such consumption 5 allowances for sale in the secondary pool as 6 set forth in subparagraph (D). 7 ‘‘(D) SECONDARY POOL.—(i) For each cal- 8 endar year, as soon as practicable after the auc- 9 tion required in subparagraph (C), the Adminis- 10 trator shall offer for sale the consumption al- 11 lowances in the secondary pool at the prices 12 listed in subparagraph (C)(ii). 13 ‘‘(ii) The Administrator shall accept appli- 14 cations for purchase of secondary pool con- 15 sumption allowances from— 16 ‘‘(I) importers of products containing 17 class II, group II substances; 18 ‘‘(II) persons who purchased any class 19 II, group II substance directly from a pro- 20 ducer or importer of class II, group II sub- 21 stances for use in a product containing a 22 class II, group II substance, a manufac- 23 turing process, or a reclamation process; 24 ‘‘(III) persons who did not produce or 25 import a class II substance during cal- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00611 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 612 1 endar year 2004, 2005, or 2006, but who 2 the Administrator determines have subse- 3 quently taken significant steps to produce 4 or import a substantial quantity of any 5 class II, group II substance; and 6 ‘‘(IV) persons who produced or im- 7 ported any class II substance during cal- 8 endar year 2004, 2005, or 2006. 9 ‘‘(iii) If the supply of consumption allow- 10 ances in the secondary pool equals or exceeds 11 the demand for consumption allowances in the 12 secondary pool as presented in the applications 13 for purchase, the Administrator shall sell the 14 consumption allowances in the secondary pool 15 to the applicants in the amounts requested in 16 the applications for purchase. Any consumption 17 allowances in the secondary pool not purchased 18 in a calendar year may be rolled over and added 19 to the quantity available in the secondary pool 20 in the following year. 21 ‘‘(iv) If the demand for consumption allow- 22 ances in the secondary pool as presented in the 23 applications for purchase exceeds the supply of 24 consumption allowances in the secondary pool, f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00612 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 613 1 the Administrator shall sell the consumption al- 2 lowances as follows: 3 ‘‘(I) The Administrator shall first sell 4 the consumption allowances in the sec- 5 ondary pool to any importers of products 6 containing class II, group II substances in 7 the amounts requested in their applications 8 for purchase. If the demand for such con- 9 sumption allowances exceeds supply of 10 such consumption allowances, the Adminis- 11 trator shall develop and utilize criteria for 12 the sale of such consumption allowances 13 among importers of products containing 14 class II, group II substances that may in- 15 clude pro rata shares, historic importation, 16 economic or technical hardship, or other 17 factors deemed relevant by the Adminis- 18 trator. 19 ‘‘(II) The Administrator shall next 20 sell any remaining consumption allowances 21 to persons identified in subclauses (II) and 22 (III) of clause (ii) in the amounts re- 23 quested in their applications for purchase. 24 If the demand for such consumption allow- 25 ances exceeds remaining supply of such f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00613 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 614 1 consumption allowances, the Administrator 2 shall develop and utilize criteria for the 3 sale of such consumption allowances 4 among subclauses (II) and (III) applicants 5 that may include pro rata shares, historic 6 use, economic or technical hardship, or 7 other factors deemed relevant by the Ad- 8 ministrator. 9 ‘‘(III) The Administrator shall then 10 sell any remaining consumption allowances 11 to persons who produced or imported any 12 class II substance during calendar year 13 2004, 2005, or 2006 in the amounts re- 14 quested in their applications for purchase. 15 If demand for such consumption allow- 16 ances exceeds remaining supply of such 17 consumption allowances, the Administrator 18 shall develop and utilize criteria for the 19 sale of such consumption allowances that 20 may include pro rata shares, historic pro- 21 duction and importation, economic or tech- 22 nical hardship, or other factors deemed rel- 23 evant by the Administrator. 24 ‘‘(IV) Each person who purchases 25 consumption allowances in a non-auction f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00614 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 615 1 sale under this subparagraph shall be re- 2 quired to disclose the person or entity 3 sponsoring or benefitting from the pur- 4 chases if such person or entity is, in whole 5 or in part, other than the purchaser or the 6 purchaser’s employer. 7 ‘‘(E) DISCRETION TO WITHHOLD ALLOW- 8 ANCES.—Nothing in this paragraph prevents 9 the Administrator from exercising discretion to 10 withhold and retire consumption allowances 11 that would otherwise be available for auction or 12 nonauction sale. Not later than 18 months after 13 the date of enactment of this section, the Ad- 14 ministrator shall promulgate regulations estab- 15 lishing criteria for withholding and retiring con- 16 sumption allowances. 17 ‘‘(5) BANKING.—A consumption allowance or 18 destruction offset credit may be used to meet the 19 compliance obligation requirements of paragraph (1) 20 in— 21 ‘‘(A) the vintage year for the allowance or 22 destruction offset credit; or 23 ‘‘(B) any calendar year subsequent to the 24 vintage year for the allowance or destruction 25 offset credit. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00615 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 616 1 ‘‘(6) AUCTIONS.— 2 ‘‘(A) INITIAL REGULATIONS.—Not later 3 than 18 months after the date of enactment of 4 this section, the Administrator shall promulgate 5 regulations governing the auction of allowances 6 under this section. Such regulations shall in- 7 clude the following requirements: 8 ‘‘(i) FREQUENCY; FIRST AUCTION.— 9 Auctions shall be held one time per year at 10 regular intervals, with the first auction to 11 be held no later than October 31, 2011. 12 ‘‘(ii) AUCTION FORMAT.—Auctions 13 shall follow a single-round, sealed-bid, uni- 14 form price format. 15 ‘‘(iii) FINANCIAL ASSURANCE.—The 16 Administrator may establish financial as- 17 surance requirements to ensure that auc- 18 tion participants can and will perform on 19 their bids. 20 ‘‘(iv) DISCLOSURE OF BENEFICIAL 21 OWNERSHIP.—Each bidder in the auction 22 shall be required to disclose the person or 23 entity sponsoring or benefitting from the 24 bidder’s participation in the auction if such 25 person or entity is, in whole or in part, f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00616 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 617 1 other than the bidder or the bidder’s em- 2 ployer. 3 ‘‘(v) PUBLICATION INFORMA- OF 4 TION.—After the auction, the Adminis- 5 trator shall, in a timely fashion, publish 6 the number of bidders, number of winning 7 bidders, the quantity of allowances sold, 8 and the auction clearing price. 9 ‘‘(vi) BIDDING LIMITS IN 2012.—In 10 the vintage year 2012 auction, no auction 11 participant may, directly or in concert with 12 another participant, bid for or purchase 13 more allowances offered for sale at the 14 auction than the greater of— 15 ‘‘(I) the number of allowances 16 which, when added to the number of 17 allowances available for purchase by 18 the participant in the producer-im- 19 porter pool non-auction sale, would 20 equal the participant’s annual average 21 consumption of class II, group II sub- 22 stances in calendar years 2004, 2005, 23 and 2006; or 24 ‘‘(II) the number of allowances 25 equal to the product of— f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00617 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 618 1 ‘‘(aa) 1.20 multiplied by the 2 participant’s allocation share of 3 the producer-importer pool non- 4 auction sale as determined under 5 paragraph (4)(C)(ii); and 6 ‘‘(bb) the number of vintage 7 year 2012 allowances offered at 8 auction. 9 ‘‘(vii) BIDDING LIMITS IN 2013.—In 10 the vintage year 2013 auction, no auction 11 participant may, directly or in concert with 12 another participant, bid for or purchase 13 more allowances offered for sale at the 14 auction than the product of— 15 ‘‘(I) 1.15 multiplied by the ratio 16 of the total number of vintage year 17 2012 allowances purchased by the 18 participant from the auction and from 19 the producer-importer pool non-auc- 20 tion sale to the total number of vin- 21 tage year 2012 allowances in the pro- 22 ducer-importer pool; and 23 ‘‘(II) the number of vintage year 24 2013 allowances offered at auction. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00618 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 619 1 SUBSE- ‘‘(viii) BIDDING LIMITS IN 2 QUENT YEARS.—In the auctions for vin- 3 tage year 2014 and subsequent vintage 4 years, no auction participant may, directly 5 or in concert with another participant, bid 6 for or purchase more allowances offered 7 for sale at the auction than the product 8 of— 9 ‘‘(I) 1.15 multiplied by the ratio 10 of the highest number of allowances 11 held by the participant in any of the 12 three prior vintage years to meet its 13 compliance obligation under para- 14 graph (1) to the total number of al- 15 lowances in the producer-importer 16 pool for such vintage year; and 17 ‘‘(II) the number of allowances 18 offered at auction for that vintage 19 year. 20 ‘‘(ix) OTHER REQUIREMENTS.—The 21 Administrator may include in the regula- 22 tions such other requirements or provisions 23 as the Administrator considers necessary 24 to promote effective, efficient, transparent, f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00619 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 620 1 and fair administration of auctions under 2 this section. 3 ‘‘(B) REVISION REGULATIONS.—The OF 4 Administrator may, at any time, revise the ini- 5 tial regulations promulgated under subpara- 6 graph (A) based on the Administrator’s experi- 7 ence in administering allowance auctions. Such 8 revised regulations need not meet the require- 9 ments identified in subparagraph (A) if the Ad- 10 ministrator determines that an alternative auc- 11 tion design would be more effective, taking into 12 account factors including costs of administra- 13 tion, transparency, fairness, and risks of collu- 14 sion or manipulation. In determining whether 15 and how to revise the initial regulations under 16 this paragraph, the Administrator shall not con- 17 sider maximization of revenues to the Federal 18 Government. 19 ‘‘(C) DELEGATION OR CONTRACT.—Pursu- 20 ant to regulations under this section, the Ad- 21 ministrator may, by delegation or contract, pro- 22 vide for the conduct of auctions under the Ad- 23 ministrator’s supervision by other departments 24 or agencies of the Federal Government or by f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00620 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 621 1 nongovernmental agencies, groups, or organiza- 2 tions. 3 ‘‘(7) PAYMENTS FOR ALLOWANCES.— 4 ‘‘(A) INITIAL REGULATIONS.—Not later 5 than 18 months after the date of enactment of 6 this section, the Administrator shall promulgate 7 regulations governing the payment for allow- 8 ances purchased in auction and non-auction 9 sales under this section. Such regulations shall 10 include the requirement that, in the event that 11 full payment for purchased allowances is not 12 made on the date of purchase, equal payments 13 shall be made one time per calendar quarter 14 with all payments for allowances of a vintage 15 year made by the end of that vintage year. 16 ‘‘(B) REVISION OF REGULATIONS.— The 17 Administrator may, at any time, revise the ini- 18 tial regulations promulgated under subpara- 19 graph (A) based on the Administrator’s experi- 20 ence in administering collection of payments. 21 Such revised regulations need not meet the re- 22 quirements identified in subparagraph (A) if 23 the Administrator determines that an alter- 24 native payment structure or frequency would be 25 more effective, taking into account factors in- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00621 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 622 1 cluding cost of administration, transparency, 2 and fairness. In determining whether and how 3 to revise the initial regulations under this para- 4 graph, the Administrator shall not consider 5 maximization of revenues to the Federal Gov- 6 ernment. 7 ‘‘(C) PENALTIES NON-PAYMENT.— FOR 8 Failure to pay for purchased allowances in ac- 9 cordance with the regulations promulgated pur- 10 suant to this paragraph shall be a violation of 11 the requirements of subsection (b). Section 12 113(c)(3) shall apply in the case of any person 13 who knowingly fails to pay for purchased allow- 14 ances in accordance with the regulations pro- 15 mulgated pursuant to this paragraph 16 ‘‘(8) IMPORTED PRODUCTS.—If the United 17 States becomes a party or otherwise adheres to a 18 multilateral agreement, including any amendment to 19 the Montreal Protocol on Substances That Deplete 20 the Ozone Layer, which restricts the production and 21 consumption of class II, group II substances— 22 ‘‘(A) as of the date on which such agree- 23 ment or amendment enters into force, it shall 24 no longer be unlawful for any person to import 25 from a party to such agreement or amendment f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00622 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 623 1 any product containing any class II, group II 2 substance whose production and consumption 3 are regulated by such agreement or amendment 4 without holding one consumption allowance or 5 one destruction offset credit for each carbon di- 6 oxide equivalent ton of the class II, group II 7 substance; 8 ‘‘(B) the Administrator shall promulgate 9 regulations within 12 months of the date the 10 United States becomes a party or otherwise ad- 11 heres to such agreement or amendment, or the 12 date on which such agreement or amendment 13 enters into force, whichever is later, to establish 14 a new baseline for purposes of paragraph (2), 15 which new baseline shall be the original baseline 16 less the carbon dioxide equivalent of the annual 17 average quantity of any class II substances reg- 18 ulated by such agreement or amendment con- 19 tained in products imported from parties to 20 such agreement or amendment in calendar 21 years 2004, 2005, and 2006; 22 ‘‘(C) as of the date on which such agree- 23 ment or amendment enters into force, no per- 24 son importing any product containing any class 25 II, group II substance may, directly or in con- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00623 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 624 1 cert with another person, purchase any con- 2 sumption allowances for sale by the Adminis- 3 trator for the importation of products from a 4 party to such agreement or amendment that 5 contain any class II, group II substance re- 6 stricted by such agreement or amendment; and 7 ‘‘(D) the Administrator may adjust the 8 two allowance pools established in paragraph 9 (4) such that up to 90 percent of the consump- 10 tion allowances available for a calendar year are 11 placed in the producer-importer pool with the 12 remaining consumption allowances placed in the 13 secondary pool. 14 ‘‘(9) OFFSETS.— 15 ‘‘(A) CHLOROFLUOROCARBON DESTRUC- 16 TION.—Within 18 months after the date of en- 17 actment of this section, the Administrator shall 18 promulgate regulations to provide for the 19 issuance of offset credits for the destruction, in 20 the calendar year 2012 or later, of 21 chlorofluorocarbons in the United States. The 22 Administrator shall establish and distribute to 23 the destroying entity a quantity of destruction 24 offset credits equal to 0.8 times the number of 25 tons of carbon dioxide equivalents of reduction f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00624 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 625 1 achieved through the destruction. No destruc- 2 tion offset credits shall be established for the 3 destruction of a class II, group II substance. 4 ‘‘(B) DEFINITION.—For purposes of this 5 paragraph, the term ‘destruction’ means the 6 conversion of a substance by thermal, chemical, 7 or other means to another substance with little 8 or no carbon dioxide equivalent value and no 9 ozone depletion potential. 10 ‘‘(C) REGULATIONS.—The regulations pro- 11 mulgated under this paragraph shall include 12 standards and protocols for project eligibility, 13 certification of destroyers, monitoring, tracking, 14 destruction efficiency, quantification of project 15 and baseline emissions and carbon dioxide 16 equivalent value, and verification. The Adminis- 17 trator shall ensure that destruction offset cred- 18 its represent real and verifiable destruction of 19 chlorofluorocarbons or other class I or class II, 20 group I, substances authorized under subpara- 21 graph (D). 22 ‘‘(D) OTHER SUBSTANCES.—The Adminis- 23 trator may promulgate regulations to add to the 24 list of class I and class II, group I, substances 25 that may be destroyed for destruction offset f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00625 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 626 1 credits, taking into account a candidate sub- 2 stance’s carbon dioxide equivalent value, ozone 3 depletion potential, prevalence in banks in the 4 United States, and emission rates, as well as 5 the need for additional cost containment under 6 the class II, group II cap and the integrity of 7 the class II, group II cap. The Administrator 8 shall not add a class I or class II, group I sub- 9 stance to the list if the consumption of the sub- 10 stance has not been completely phased-out 11 internationally (except for essential use exemp- 12 tions or other similar exemptions) pursuant to 13 the Montreal Protocol. 14 ‘‘(E) EXTENSION OF OFFSETS.—(i) At any 15 time after the Administrator promulgates regu- 16 lations pursuant to subparagraph (A), the Ad- 17 ministrator may add the types of destruction 18 projects authorized to receive destruction offset 19 credits under this paragraph to the list of types 20 of projects eligible for offset credits under sec- 21 tion 733. Nothing in this paragraph shall affect 22 the issuance of offset credits under section 740. 23 ‘‘(ii) The Administrator shall not make the 24 addition under clause (i) unless the Adminis- 25 trator finds that insufficient destruction is oc- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00626 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 627 1 curring or is projected to occur under this para- 2 graph and that the addition would increase de- 3 struction. 4 ‘‘(iii) In no event shall more than one de- 5 struction offset credit be issued under title VII 6 and this section for the destruction of the same 7 quantity of a substance. 8 ‘‘(10) LEGAL STATUS OF ALLOWANCES AND 9 CREDITS.—None of the following constitutes a prop- 10 erty right: 11 ‘‘(A) A production or consumption allow- 12 ance. 13 ‘‘(B) A destruction offset credit. 14 ‘‘(c) DEADLINES COMPLIANCE.—Notwith- FOR 15 standing the deadlines specified for class II substances in 16 sections 608, 609, 610, 612, and 613 that occur prior to 17 January 1, 2009, the deadline for promulgating regula- 18 tions under those sections for class II, group II substances 19 shall be January 1, 2012. 20 ‘‘(d) EXCEPTIONS ESSENTIAL USES.—Notwith- FOR 21 standing any phase down of production and consumption 22 required by this section, to the extent consistent with any 23 applicable multilateral agreement to which the United 24 States is a party or otherwise adheres, the Administrator 25 may provide the following exceptions for essential uses: f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00627 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 628 1 DEVICES.—The Administrator, ‘‘(1) MEDICAL 2 after notice and opportunity for public comment, 3 and in consultation with the Commissioner of the 4 Food and Drug Administration, may provide an ex- 5 ception for the production and consumption of class 6 II, group II substances solely for use in medical de- 7 vices. 8 ‘‘(2) AVIATION SAFETY.—The Administrator, 9 after notice and opportunity for public comment, 10 may authorize the production and consumption of 11 limited quantities of class II, group II substances 12 solely for the purposes of aviation safety if the Ad- 13 ministrator of the Federal Aviation Administration, 14 in consultation with the Administrator, determines 15 that no safe and effective substitute has been devel- 16 oped and that such authorization is necessary for 17 aviation safety purposes. 18 ‘‘(e) DEVELOPING COUNTRIES.—Notwithstanding 19 any phase down of production required by this section, the 20 Administrator, after notice and opportunity for public 21 comment, may authorize the production of limited quan- 22 tities of class II, group II substances in excess of the 23 amounts otherwise allowable under this section solely for 24 export to, and use in, developing countries. Any produc- 25 tion authorized under this subsection shall be solely for f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00628 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 629 1 purposes of satisfying the basic domestic needs of such 2 countries as provided in applicable international agree- 3 ments, if any, to which the United States is a party or 4 otherwise adheres. 5 ‘‘(f) NATIONAL SECURITY; FIRE SUPPRESSION, 6 ETC..—The provisions of subsection (f) and paragraphs 7 (1) and (2) of subsection (g) of section 604 shall apply 8 to any consumption and production phase down of class 9 II, group II substances in the same manner and to the 10 same extent, consistent with any applicable international 11 agreement to which the United States is a party or other- 12 wise adheres, as such provisions apply to the substances 13 specified in such subsection. 14 ‘‘(g) ACCELERATED SCHEDULE.—In lieu of section 15 606, the provisions of paragraphs (1), (2), and (3) of this 16 subsection shall apply in the case of class II, group II sub- 17 stances. 18 ‘‘(1) IN GENERAL.—The Administrator shall 19 promulgate initial regulations not later than 18 20 months after the date of enactment of this section, 21 and revised regulations any time thereafter, which 22 establish a schedule for phasing down the consump- 23 tion (and, if the condition in subsection (b)(1)(B) is 24 met, the production) of class II, group II substances 25 that is more stringent than the schedule set forth in f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00629 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 630 1 this section if, based on the availability of sub- 2 stitutes, the Administrator determines that such 3 more stringent schedule is practicable, taking into 4 account technological achievability, safety, and other 5 factors the Administrator deems relevant, or if the 6 Montreal Protocol, or any applicable international 7 agreement to which the United States is a party or 8 otherwise adheres, is modified or established to in- 9 clude a schedule or other requirements to control or 10 reduce production, consumption, or use of any class 11 II, group II substance more rapidly than the appli- 12 cable schedule under this section. 13 ‘‘(2) PETITION.—Any person may submit a pe- 14 tition to promulgate regulations under this sub- 15 section in the same manner and subject to the same 16 procedures as are provided in section 606(b). 17 ‘‘(3) INCONSISTENCY.— If the Administrator 18 determines that the provisions of this section regard- 19 ing banking, allowance rollover, or destruction offset 20 credits create a significant potential for inconsist- 21 ency with the requirements of any applicable inter- 22 national agreement to which the United States is a 23 party or otherwise adheres, the Administrator may 24 promulgate regulations restricting the availability of 25 banking, allowance rollover, or destruction offset f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00630 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 631 1 credits to the extent necessary to avoid such incon- 2 sistency. 3 ‘‘(h) EXCHANGE.—Section 607 shall not apply in the 4 case of class II, group II substances. Production and con- 5 sumption allowances for class II, group II substances may 6 be freely exchanged or sold but may not be converted into 7 allowances for class II, group I substances. 8 ‘‘(i) LABELING.—(1) In applying section 611 to prod- 9 ucts containing or manufactured with class II, group II 10 substances, in lieu of the words ‘destroying ozone in the 11 upper atmosphere’ on labels required under section 611 12 there shall be substituted the words ‘contributing to global 13 warming’. 14 ‘‘(2) The Administrator may, through rulemaking, 15 exempt from the requirements of section 611 products 16 containing or manufactured with class II, group II sub- 17 stances determined to have little or no carbon dioxide 18 equivalent value compared to other substances used in 19 similar products. 20 ‘‘(j) NONESSENTIAL PRODUCTS.—For the purposes 21 of section 610, class II, group II substances shall be regu- 22 lated under section 610(b), except that in applying section 23 610(b) the word ‘hydrofluorocarbon’ shall be substituted 24 for the word ‘chlorofluorocarbon’ and the term ‘class II, 25 group II’ shall be substituted for the term ‘class I’. Class f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00631 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 632 1 II, group II substances shall not be subject to the provi- 2 sions of section 610(d). 3 ‘‘(k) INTERNATIONAL TRANSFERS.—In the case of 4 class II, group II substances, in lieu of sections 616(a) 5 and 616(b), this subsection shall apply. To the extent con- 6 sistent with any applicable international agreement to 7 which the United States is a party or otherwise adheres, 8 including any amendment to the Montreal Protocol, the 9 United States may engage in transfers with other parties 10 to such agreement or amendment under the following con- 11 ditions: 12 ‘‘(1) The United States may transfer produc- 13 tion allowances to another party to such agreement 14 or amendment if, at the time of the transfer, the 15 Administrator establishes revised production limits 16 for the United States accounting for the transfer in 17 accordance with regulations promulgated pursuant 18 to this subsection. 19 ‘‘(2) The United States may acquire production 20 allowances from another party to such agreement or 21 amendment if, at the time of the transfer, the Ad- 22 ministrator finds that the other party has revised its 23 domestic production limits in the same manner as 24 provided with respect to transfers by the United f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00632 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 633 1 States in the regulations promulgated pursuant to 2 this subsection. 3 ‘‘(l) RELATIONSHIP TO OTHER LAWS.— 4 ‘‘(1) STATE LAWS.—For purposes of section 5 116, the requirements of this section for class II, 6 group II substances shall be treated as requirements 7 for the control and abatement of air pollution. 8 ‘‘(2) INTERNATIONAL AGREEMENTS.—Section 9 614 shall apply to the provisions of this section con- 10 cerning class II, group II substances, except that for 11 the words ‘Montreal Protocol’ there shall be sub- 12 stituted the words ‘Montreal Protocol, or any appli- 13 cable international agreement to which the United 14 States is a party or otherwise adheres that restricts 15 the production or consumption of class II, group II 16 substances,’ and for the words ‘Article 4 of the Mon- 17 treal Protocol’ there shall be substituted ‘any provi- 18 sion of such international agreement regarding trade 19 with non-parties’. 20 ‘‘(3) FEDERAL FACILITIES.—For purposes of 21 section 118, the requirements of this section for 22 class II, group II substances and corresponding 23 State, interstate, and local requirements, administra- 24 tive authority, and process and sanctions shall be 25 treated as requirements for the control and abate- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00633 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 634 1 ment of air pollution within the meaning of section 2 118. 3 ‘‘(m) CARBON DIOXIDE EQUIVALENT VALUE.—(1) 4 In lieu of section 602(e), the provisions of this subsection 5 shall apply in the case of class II, group II substances. 6 Simultaneously with establishing the list of class II, group 7 II substances, and simultaneously with any addition to 8 that list, the Administrator shall publish the carbon diox- 9 ide equivalent value of each listed class II, group II sub- 10 stance, based on a determination of the number of metric 11 tons of carbon dioxide that makes the same contribution 12 to global warming over 100 years as 1 metric ton of each 13 class II, group II substance. 14 ‘‘(2) Not later than February 1, 2017, and not less 15 than every 5 years thereafter, the Administrator shall— 16 ‘‘(A) review, and if appropriate, revise the car- 17 bon dioxide equivalent values established for class II, 18 group II substances based on a determination of the 19 number of metric tons of carbon dioxide that makes 20 the same contributions to global warming over 100 21 years as 1 metric ton of each class II, group II sub- 22 stance; and 23 ‘‘(B) publish in the Federal Register the results 24 of that review and any revisions. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00634 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 635 1 ‘‘(3) A revised determination published in the Federal 2 Register under paragraph (2)(B) shall take effect for pro- 3 duction of class II, group II substances, consumption of 4 class II, group II substances, and importation of products 5 containing class II, group II substances starting on Janu- 6 ary 1 of the first calendar year starting at least 9 months 7 after the date on which the revised determination was pub- 8 lished. 9 ‘‘(4) The Administrator may decrease the frequency 10 of review and revision under paragraph (2) if the Adminis- 11 trator determines that such decrease is appropriate in 12 order to synchronize such review and revisions with any 13 similar review process carried out pursuant to the United 14 Nations Framework Convention on Climate Change, an 15 agreement negotiated under that convention, The Vienna 16 Convention for the Protection of the Ozone Layer, or an 17 agreement negotiated under that convention, except that 18 in no event shall the Administrator carry out such review 19 and revision any less frequently than every 10 years. 20 ‘‘(n) REPORTING REQUIREMENTS.—In lieu of sub- 21 sections (b) and (c) of section 603, paragraphs (1) and 22 (2) of this subsection shall apply in the case of class II, 23 group II substances: 24 ‘‘(1) IN GENERAL.—On a quarterly basis, or 25 such other basis (not less than annually) as deter- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00635 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 636 1 mined by the Administrator, each person who pro- 2 duced, imported, or exported a class II, group II 3 substance, or who imported a product containing a 4 class II, group II substance, shall file a report with 5 the Administrator setting forth the carbon dioxide 6 equivalent amount of the substance that such person 7 produced, imported, or exported, as well as the 8 amount that was contained in products imported by 9 that person, during the preceding reporting period. 10 Each such report shall be signed and attested by a 11 responsible officer. If all other reporting is complete, 12 no such report shall be required from a person after 13 April 1 of the calendar year after such person per- 14 manently ceases production, importation, and expor- 15 tation of the substance, as well as importation of 16 products containing the substance, and so notifies 17 the Administrator in writing. If the United States 18 becomes a party or otherwise adheres to a multilat- 19 eral agreement, including any amendment to the 20 Montreal Protocol on Substances That Deplete the 21 Ozone Layer, that restricts the production and con- 22 sumption of class II, group II substances, then, if all 23 other reporting is complete, no such report shall be 24 required from a person with respect to importation 25 from parties to such agreement or amendment of f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00636 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 637 1 products containing any class II, group II substance 2 restricted by such agreement or amendment, after 3 April 1 of the calendar year following the year dur- 4 ing which such agreement or amendment enters into 5 force. 6 ‘‘(2) BASELINE REPORTS FOR CLASS II, GROUP 7 II SUBSTANCES.— 8 ‘‘(A) IN GENERAL.—Unless such informa- 9 tion has been previously reported to the Admin- 10 istrator, on the date on which the first report 11 under paragraph (1) of this subsection is re- 12 quired to be filed, each person who produced, 13 imported, or exported a class II, group II sub- 14 stance, or who imported a product containing a 15 class II substance, (other than a substance 16 added to the list of class II, group II substances 17 after the publication of the initial list of such 18 substances under this section), shall file a re- 19 port with the Administrator setting forth the 20 amount of such substance that such person pro- 21 duced, imported, exported, or that was con- 22 tained in products imported by that person, 23 during each of calendar years 2004, 2005, and 24 2006. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00637 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 638 1 ‘‘(B) PRODUCERS.—In reporting under 2 subparagraph (A), each person who produced in 3 the United States a class II substance during 4 calendar years 2004, 2005, or 2006 shall— 5 ‘‘(i) report all acquisitions or pur- 6 chases of class II substances during each 7 of calendar years 2004, 2005, and 2006 8 from all other persons who produced in the 9 United States a class II substance during 10 calendar years 2004, 2005, or 2006, and 11 supply evidence of such acquisitions and 12 purchases as deemed necessary by the Ad- 13 ministrator; and 14 ‘‘(ii) report all transfers or sales of 15 class II substances during each of calendar 16 years 2004, 2005, and 2006 to all other 17 persons who produced in the United States 18 a class II substance during calendar years 19 2004, 2005, or 2006, and supply evidence 20 of such transfers and sales as deemed nec- 21 essary by the Administrator. 22 ‘‘(C) ADDED SUBSTANCES.—In the case of 23 a substance added to the list of class II, group 24 II substances after publication of the initial list 25 of such substances under this section, each per- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00638 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 639 1 son who produced, imported, exported, or im- 2 ported products containing such substance in 3 calendar year 2004, 2005, or 2006 shall file a 4 report with the Administrator within 180 days 5 after the date on which such substance is added 6 to the list, setting forth the amount of the sub- 7 stance that such person produced, imported, 8 and exported, as well as the amount that was 9 contained in products imported by that person, 10 in calendar years 2004, 2005, and 2006. 11 ‘‘(o) STRATOSPHERIC OZONE AND CLIMATE PROTEC- 12 FUND.— TION 13 ‘‘(1) IN GENERAL.—There is established in the 14 Treasury of the United States a Stratospheric Ozone 15 and Climate Protection Fund. 16 ‘‘(2) DEPOSITS.—The Administrator shall de- 17 posit all proceeds from the auction and non-auction 18 sale of allowances under this section into the Strato- 19 spheric Ozone and Climate Protection Fund. 20 ‘‘(3) USE.—Amounts deposited into the Strato- 21 spheric Ozone and Climate Protection Fund shall be 22 available, subject to appropriations, exclusively for 23 the following purposes: 24 ‘‘(A) RECOVERY, RECYCLING, AND REC- 25 LAMATION.—The Administrator may utilize f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00639 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 640 1 funds to establish a program to incentivize the 2 recovery, recycling, and reclamation of any 3 Class II substances in order to reduce emissions 4 of such substances. 5 ‘‘(B) MULTILATERAL FUND.—If the 6 United States becomes a party or otherwise ad- 7 heres to a multilateral agreement, including any 8 amendment to the Montreal Protocol on Sub- 9 stances That Deplete the Ozone Layer, which 10 restricts the production and consumption of 11 class II, group II substances, the Administrator 12 may utilize funds to meet any related contribu- 13 tion obligation of the United States to the Mul- 14 tilateral Fund for the Implementation of the 15 Montreal Protocol or similar multilateral fund 16 established under such multilateral agreement. 17 ‘‘(C) BEST-IN-CLASS APPLIANCES DEPLOY- 18 MENT PROGRAM.—The Secretary of Energy is 19 authorized to utilize funds to carry out the pur- 20 poses of section 214 of the American Clean En- 21 ergy and Security Act of 2009. 22 ‘‘(D) LOW GLOBAL WARMING PRODUCT 23 TRANSITION ASSISTANCE PROGRAM.— 24 ‘‘(i) IN GENERAL.—The Adminis- 25 trator, in consultation with the Secretary f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00640 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 641 1 of Energy, may utilize funds in fiscal years 2 2012 through 2022 to establish a program 3 to provide financial assistance to manufac- 4 turers of products containing class II, 5 group II substances to facilitate the transi- 6 tion to products that contain or utilize al- 7 ternative substances with no or low carbon 8 dioxide equivalent value and no ozone de- 9 pletion potential. 10 ‘‘(ii) DEFINITION.—In this subpara- 11 graph, the term ‘products’ means refrig- 12 erators, freezers, dehumidifiers, air condi- 13 tioners, foam insulation, technical aerosols, 14 fire protection systems, and semiconduc- 15 tors. 16 ‘‘(iii) FINANCIAL ASSISTANCE.—The 17 Administrator may provide financial assist- 18 ance to manufacturers pursuant to clause 19 (i) for— 20 ‘‘(I) the design and configuration 21 of new consumer products that use al- 22 ternative substances with no or low 23 carbon dioxide equivalent value and 24 no ozone depletion potential; and f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00641 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 642 1 ‘‘(II) the redesign and retooling 2 of facilities for the manufacture of 3 consumer products in the United 4 States that use alternative substances 5 with no or low carbon dioxide equiva- 6 lent value and no ozone depletion po- 7 tential. 8 ‘‘(iv) REPORTS.—For any fiscal year 9 during which the Administrator provides 10 financial assistance pursuant to this sub- 11 paragraph, the Administrator shall submit 12 a report to the Congress within 3 months 13 of the end of such fiscal year detailing the 14 amounts, recipients, specific purposes, and 15 results of the financial assistance pro- 16 vided.’’ 17 (b) TABLE CONTENTS.—The table of contents of OF 18 title VI of the Clean Air Act (42 U.S.C. 7671 et seq.) 19 is amended by adding the following new item at the end 20 thereof: ‘‘Sec. 619. Hydrofluorocarbons (HFCs).’’. 21 (c) FIRE SUPPRESSION AGENTS.—Section 605(a) of 22 the Clean Air Act (42 U.S.C. 7671(a)) is amended— 23 (1) by striking ‘‘or’’ at the end of paragraph 24 (2); f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00642 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 643 1 (2) by striking the period at the end of para- 2 graph (3) and inserting ‘‘; or’’; and 3 (3) by adding the following new paragraph after 4 paragraph (3): 5 ‘‘(4) is listed as acceptable for use as a fire sup- 6 pression agent for nonresidential applications in ac- 7 cordance with section 612(c).’’. 8 (d) MOTOR VEHICLE AIR CONDITIONERS.— 9 (1) Section 609(e) of the Clean Air Act (42 10 U.S.C. 7671h(e)) is amended by inserting ‘‘, group 11 I’’ after each reference to ‘‘class II’’. 12 (2) Section 609 of the Clean Air Act (42 U.S.C. 13 7671h) is amended by adding the following new sub- 14 section after subsection (e): 15 ‘‘(f) CLASS II, GROUP II SUBSTANCES.— 16 ‘‘(1) REPAIR.—The Administrator may promul- 17 gate regulations establishing requirements for repair 18 of motor vehicle air conditioners prior to adding a 19 class II, group II substance. 20 ‘‘(2) SMALL CONTAINERS.—(A) The Adminis- 21 trator may promulgate regulations establishing serv- 22 icing practices and procedures for recovery of class 23 II, group II substances from containers which con- 24 tain less than 20 pounds of such class II, group II 25 substances. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00643 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 644 1 ‘‘(B) Not later than 18 months after enactment 2 of this subsection, the Administrator shall either 3 promulgate regulations requiring that containers 4 which contain less than 20 pounds of a class II, 5 group II substance be equipped with a device or 6 technology that limits refrigerant emissions and 7 leaks from the container and limits refrigerant emis- 8 sions and leaks during the transfer of refrigerant 9 from the container to the motor vehicle air condi- 10 tioner or issue a determination that such require- 11 ments are not necessary or appropriate. 12 ‘‘(C) Not later than 18 months after enactment 13 of this subsection, the Administrator shall promul- 14 gate regulations establishing requirements for con- 15 sumer education materials on best practices associ- 16 ated with the use of containers which contain less 17 than 20 pounds of a class II, group II substance and 18 prohibiting the sale or distribution, or offer for sale 19 or distribution, of any class II, group II substance 20 in any container which contains less than 20 pounds 21 of such class II, group II substance, unless con- 22 sumer education materials consistent with such re- 23 quirements are displayed and available at point-of- 24 sale locations, provided to the consumer, or included 25 in or on the packaging of the container which con- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00644 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 645 1 tain less than 20 pounds of a class II, group II sub- 2 stance. 3 ‘‘(D) The Administrator may, through rule- 4 making, extend the requirements established under 5 this paragraph to containers which contain 30 6 pounds or less of a class II, group II substance if 7 the Administrator determines that such action would 8 produce significant environmental benefits 9 ‘‘(3) RESTRICTION OF SALES.—Effective Janu- 10 ary 1, 2014, no person may sell or distribute or offer 11 to sell or distribute or otherwise introduce into inter- 12 state commerce any motor vehicle air conditioner re- 13 frigerant in any size container unless the substance 14 has been found acceptable for use in a motor vehicle 15 air conditioner under section 612.’’. 16 (e) SAFE ALTERNATIVES POLICY.—Section 612(e) of 17 the Clean Air Act (42 U.S.C. 7671k(e)) is amended by 18 inserting ‘‘or class II’’ after each reference to ‘‘class I’’. 19 SEC. 333. BLACK CARBON. 20 (a) DEFINITION.—As used in this section, the term 21 ‘‘black carbon’’ means the light absorbing component of 22 carbonaceous aerosols. 23 (b) BLACK CARBON ABATEMENT REPORT.—Not 24 later than one year after the date of enactment of this 25 section, the Administrator shall, in consultation with other f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00645 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 646 1 appropriate Federal agencies, submit to Congress a report 2 regarding black carbon emissions. The report shall include 3 the following: 4 (1) A summary of the current research that 5 identifies— 6 (A) an inventory of the major sources of 7 black carbon emissions in the United States 8 and throughout the world, including— 9 (i) an estimate of the quantity of cur- 10 rent and projected future emissions; and 11 (ii) the net climate forcing of the 12 emissions from such sources, including 13 consideration of co-emissions of other pol- 14 lutants; 15 (B) effective and cost-effective control 16 technologies, operations, and strategies for ad- 17 ditional domestic and international black carbon 18 emissions reductions, such as diesel retrofit 19 technologies on existing on-road and off-road 20 engines and programs to address residential 21 cookstoves, forest burning, and other agri- 22 culture-based burning; 23 (C) potential metrics quantifying the cli- 24 matic effects of black carbon emissions, includ- 25 ing its radiative forcing and warming effects, f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00646 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 647 1 that may be used to compare the climate bene- 2 fits of different mitigation strategies, including 3 an assessment of the uncertainty in such 4 metrics; and 5 (D) the public health and environmental 6 benefits associated with additional controls for 7 black carbon emissions. 8 (2) Recommendations regarding— 9 (A) development of additional emissions 10 monitoring techniques and capabilities, mod- 11 eling, and other black carbon-related areas of 12 study; 13 (B) areas of focus for additional study of 14 technologies, operations, and strategies with the 15 greatest potential to reduce emissions of black 16 carbon; and 17 (C) actions, in addition to those identified 18 by the Administrator under section 851 of the 19 Clean Air Act (as amended by subsection (c)), 20 the Federal Government may take to encourage 21 or require reductions in black carbon emissions. 22 (c) BLACK CARBON MITIGATION.—Title VIII of the 23 Clean Air Act, as added by section 331 of this Act, and 24 amended by section 222 of this Act, is further amended 25 by adding after part D the following new part: f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00647 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 648 1 ‘‘PART E—BLACK CARBON 2 ‘‘SEC. 851. BLACK CARBON. 3 ‘‘(a) DOMESTIC BLACK CARBON MITIGATION.—Not 4 later than one year after the date of enactment of this 5 section, the Administrator, taking into consideration the 6 public health and environmental impacts of black carbon 7 emissions, including the effects on global warming, the 8 Arctic, and other snow and ice-covered surfaces, shall pro- 9 pose regulations under the existing authorities of this Act 10 to reduce emissions of black carbon or propose a finding 11 that existing regulations promulgated pursuant to this Act 12 adequately regulate black carbon emissions. Not later than 13 two years after the date of enactment of this section, the 14 Administrator shall promulgate final regulations under the 15 existing authorities of this Act or finalize the proposed 16 finding. 17 ‘‘(b) INTERNATIONAL BLACK CARBON MITIGA- 18 TION.— 19 ‘‘(1) REPORT.—Not later than one year after 20 the date of enactment of this section, the Adminis- 21 trator, in coordination with the Secretary of State 22 and other appropriate Federal agencies, shall trans- 23 mit a report to Congress on the amount, type, and 24 direction of all present United States financial, tech- 25 nical, and related assistance to foreign countries to f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00648 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 649 1 reduce, mitigate, and otherwise abate black carbon 2 emissions. 3 ‘‘(2) OTHER OPPORTUNITIES.—The report re- 4 quired under paragraph (1) shall also identify oppor- 5 tunities and recommendations, including action 6 under existing authorities, to achieve significant 7 black carbon emission reductions in foreign countries 8 through technical assistance or other approaches 9 to— 10 ‘‘(A) promote sustainable solutions to 11 bring clean, efficient, safe, and affordable 12 stoves, fuels, or both stoves and fuels to resi- 13 dents of developing countries that are reliant on 14 solid fuels such as wood, dung, charcoal, coal, 15 or crop residues for home cooking and heating, 16 so as to help reduce the public health, environ- 17 mental, and economic impacts of black carbon 18 emissions from these sources by— 19 ‘‘(i) identifying key regions for large- 20 scale demonstration efforts, and key part- 21 ners in each such region; and 22 ‘‘(ii) developing for each such region a 23 large-scale implementation strategy with a 24 goal of collectively reaching 20,000,000 f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00649 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 650 1 homes over 5 years with interventions that 2 will— 3 ‘‘(I) increase stove efficiency by 4 over 50 percent (or such other goal as 5 determined by the Administrator); 6 ‘‘(II) reduce emissions of black 7 carbon by over 60 percent (or such 8 other goal as determined by the Ad- 9 ministrator); and 10 ‘‘(III) reduce the incidence of se- 11 vere pneumonia in children under 5 12 years old by over 30 percent (or such 13 other goal as determined by the Ad- 14 ministrator); 15 ‘‘(B) make technological improvements to 16 diesel engines and provide greater access to 17 fuels that emit less or no black carbon; 18 ‘‘(C) reduce unnecessary agricultural or 19 other biomass burning where feasible alter- 20 natives exist; 21 ‘‘(D) reduce unnecessary fossil fuel burn- 22 ing that produces black carbon where feasible 23 alternatives exist; 24 ‘‘(E) reduce other sources of black carbon 25 emissions; and f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00650 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 651 1 ‘‘(F) improve capacity to achieve greater 2 compliance with existing laws to address black 3 carbon emissions.’’. 4 (d) AUTHORIZATION APPROPRIATIONS.—There OF 5 are authorized to be appropriated such sums as are nec- 6 essary to carry out this section. 7 SEC. 334. STATES. 8 Section 116 of the Clean Air Act (42 U.S.C. 7416) 9 is amended by adding the following at the end thereof: 10 ‘‘For the purposes of this section, the phrases ‘standard 11 or limitation respecting emissions of air pollutants’ and 12 ‘requirements respecting control or abatement of air pollu- 13 tion’ shall include any provision to: cap greenhouse gas 14 emissions, require surrender to the State or a political 15 subdivision thereof of emission allowances or offset credits 16 established or issued under this Act, and require the use 17 of such allowances or credits as a means of demonstrating 18 compliance with requirements established by a State or 19 political subdivision thereof.’’. 20 SEC. 335. STATE PROGRAMS. 21 Title VIII of the Clean Air Act, as added by section 22 331 of this Act and amended by several sections of this 23 Act, is further amended by adding after part E (as added 24 by section 333 of this Act) the following new part: f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00651 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 652 1 ‘‘PART F—MISCELLANEOUS 2 ‘‘SEC. 861. STATE PROGRAMS. 3 ‘‘Notwithstanding section 116, no State or political 4 subdivision thereof shall implement or enforce a cap and 5 trade program that covers any capped emissions emitted 6 during the years 2012 through 2017. For purposes of this 7 section, the term ‘cap and trade program’ means a system 8 of greenhouse gas regulation under which a State or polit- 9 ical subdivision issues a limited number of tradable instru- 10 ments in the nature of emission allowances and requires 11 that sources within its jurisdiction surrender such 12 tradeable instruments for each unit of greenhouse gases 13 emitted during a compliance period. For purposes of this 14 section, a ‘cap-and-trade program’ does not include a tar- 15 get or limit on greenhouse gas emissions adopted by a 16 State or political subdivision that is implemented other 17 than through the issuance and surrender of a limited num- 18 ber of tradable instruments in the nature of emission al- 19 lowances, nor does it include any other standard, limit, 20 regulation, or program to reduce greenhouse gas emissions 21 that is not implemented through the issuance and sur- 22 render of a limited number of tradeable instruments in 23 the nature of emission allowances. For purposes of this 24 section, the term ‘cap and trade program’ does not in- 25 clude, among other things, fleet-wide motor vehicle emis- 26 sion requirements that allow greater emissions with in- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00652 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 653 1 creased vehicle production, or requirements that fuels, or 2 other products, meet an average pollution emission rate 3 or lifecycle greenhouse gas standard.’’. 4 SEC. 336. ENFORCEMENT. 5 (a) REMAND.—Section 307(b) of the Clean Air Act 6 (42 U.S.C. 7607(b)) is amended by adding the following 7 new paragraph at the end thereof: 8 ‘‘(3) If the court determines that any action of 9 the Administrator is arbitrary, capricious, or other- 10 wise unlawful, the court may remand such action, 11 without vacatur, if vacatur would impair or delay 12 protection of the environment or public health or 13 otherwise undermine the timely achievement of the 14 purposes of this Act.’’. 15 (b) PETITION RECONSIDERATION.—Section FOR 16 307(d)(7)(B) of the Clean Air Act (42 U.S.C. 17 7607(d)(7)(B)) is amended as follows: 18 (1) By inserting after the second sentence ‘‘If 19 a petition for reconsideration is filed, the Adminis- 20 trator shall take final action on such petition, in- 21 cluding promulgation of final action either revising 22 or determining not to revise the action for which re- 23 consideration is sought, within 150 days after the 24 petition is received by the Administrator or the peti- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00653 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 654 1 tion shall be deemed denied for the purpose of judi- 2 cial review.’’. 3 (2) By amending the third sentence to read as 4 follows: ‘‘Such person may seek judicial review of 5 such denial, or of any other final action, by the Ad- 6 ministrator, in response to a petition for reconsider- 7 ation, in the United States court of appeals for the 8 appropriate circuit (as provided in subsection (b)).’’. 9 SEC. 337. CONFORMING AMENDMENTS. 10 (a) FEDERAL ENFORCEMENT.—Section 113 of the 11 Clean Air Act (42 U.S.C. 7413) is amended as follows: 12 (1) In subsection (a)(3), by striking ‘‘or title 13 VI,’’ and inserting ‘‘title VI, title VII, or title VIII’’. 14 (2) In subsection (b), by striking ‘‘or a major 15 stationary source’’ and inserting ‘‘a major stationary 16 source, or a covered EGU under title VIII,’’ in the 17 material preceding paragraph (1). 18 (3) In paragraph (2), by striking ‘‘or title VI’’ 19 and inserting ‘‘title VI, title VII, or title VIII’’. 20 (4) In subsection (c)— 21 (A) in the first sentence of paragraph (1), 22 by striking ‘‘or title VI (relating to strato- 23 spheric ozone control),’’ and inserting ‘‘title VI 24 (relating to stratospheric ozone control), or title f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00654 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 655 1 VII or VIII (relating to reduction of greenhouse 2 gas emissions),’’; and 3 (B) in the first sentence of paragraph (3), 4 by striking ‘‘or VI’’ and inserting ‘‘VI, VII, 5 VIII’’. 6 (5) In subsection (d)(1)(B), by striking ‘‘or VI’’ 7 and inserting ‘‘VI, VII, or VIII’’. 8 (6) In subsection (f), in the first sentence, by 9 striking ‘‘or VI’’ and inserting ‘‘VI, VII, or VIII’’. 10 (b) RETENTION STATE AUTHORITY.—Section OF 11 116 of the Clean Air Act (42 U.S.C. 7416) is amended 12 as follows: 13 (1) By striking ‘‘and 233’’ and inserting ‘‘233’’. 14 (2) By striking ‘‘of moving sources)’’ and in- 15 serting ‘‘of moving sources), and 861 (preempting 16 certain State greenhouse gas programs for a limited 17 time)’’. 18 (c) INSPECTIONS, MONITORING, ENTRY.—Sec- AND 19 tion 114(a) of the Clean Air Act (42 U.S.C. 7414(a)) is 20 amended by striking ‘‘section 112,’’ and all that follows 21 through ‘‘(ii)’’ and inserting the following: ‘‘section 112, 22 or any regulation of greenhouse gas emissions under title 23 VII or VIII, (ii)’’. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00655 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 656 1 (d) ENFORCEMENT.—Subsection (f) of section 304 of 2 the Clean Air Act (42 U.S.C. 7604(f)) is amended as fol- 3 lows: 4 (1) By striking ‘‘; or’’ at the end of paragraph 5 (3) thereof and inserting a comma. 6 (2) By striking the period at the end of para- 7 graph (4) thereof and inserting ‘‘, or’’. 8 (3) By adding the following after paragraph (4) 9 thereof: 10 ‘‘(5) any requirement of title VII or VIII.’’. 11 (e) ADMINISTRATIVE PROCEEDINGS JUDICIAL AND 12 REVIEW.—Section 307 of the Clean Air Act (42 U.S.C. 13 7607) is amended as follows: 14 (1) In subsection (a), by striking ‘‘, or section 15 306’’ and inserting ‘‘section 306, or title VII or 16 VIII’’. 17 (2) In subsection (b)(1)— 18 (A) by striking ‘‘,,’’ and inserting ‘‘,’’ in 19 each place such punctuation appears; and 20 (B) by striking ‘‘section 120,’’ in the first 21 sentence and inserting ‘‘section 120, any final 22 action under title VII or VIII,’’. 23 (3) In subsection (d)(1) by amending subpara- 24 graph (S) to read as follows: f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00656 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 657 1 ‘‘(S) the promulgation or revision of any 2 regulation under title VII or VIII,’’. Subtitle D—Carbon Market 3 Assurance 4 5 SEC. 341. CARBON MARKET ASSURANCE. 6 The Federal Power Act (16 U.S.C. 791a and fol- 7 lowing) is amended by adding at the end the following: 8 ‘‘PART IV—CARBON MARKET ASSURANCE 9 ‘‘SEC. 401. OVERSIGHT AND ASSURANCE OF CARBON MAR- 10 KETS. 11 ‘‘(a) DEFINITIONS.—In this section: 12 ‘‘(1) CONTRACT OF SALE.—The term ‘contract 13 of sale’ includes sales, agreements of sale, and 14 agreements to sell. 15 ‘‘(2) COVERED ENTITY.—The term ‘covered en- 16 tity’ shall have the meaning given in section 700 of 17 the Clean Air Act. 18 ‘‘(3) FUTURE DELIVERY.—The term ‘future de- 19 livery’ does not include any sale of any cash com- 20 modity for deferred shipment or delivery. 21 ‘‘(4) OFFSET CREATION CONTRACT.—The term 22 ‘offset creation contract’ mean a written agreement 23 for the origination and development of an offset 24 project, and the related issuance of offset credits, 25 pursuant to title VII of the Clean Air Act. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00657 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 658 1 ALLOWANCE.—The term ‘reg- ‘‘(5) REGULATED 2 ulated allowance’ means any emission allowance, 3 compensatory allowance, offset credit, or renewable 4 energy credit established or issued under the Amer- 5 ican Clean Energy and Security Act of 2009. 6 ‘‘(6) REGULATED ALLOWANCE DERIVATIVE.— 7 The term ‘regulated allowance derivative’ means an 8 instrument that is, or includes, an instrument— 9 ‘‘(A) which— 10 ‘‘(i) is of the character of, or is com- 11 monly known to the trade as, a ‘put op- 12 tion’, ‘call option’, ‘privilege’, ‘indemnity’, 13 ‘advance guaranty’, ‘decline guaranty’, or 14 ‘swap agreement’; or 15 ‘‘(ii) is a contract of sale for future 16 delivery other than an offset creation con- 17 tract; and 18 ‘‘(B) the value of which, in whole or in 19 part, is expressly linked to the price of a regu- 20 lated allowance or another regulated allowance 21 derivative. 22 ‘‘(7) REGULATED INSTRUMENT.—The term 23 ‘regulated instrument’ means a regulated allowance 24 or a regulated allowance derivative. 25 ‘‘(b) REGULATED ALLOWANCE MARKET.— f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00658 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 659 1 ‘‘(1) AUTHORITY.—The Commission shall pro- 2 mulgate regulations for the establishment, operation, 3 and oversight of markets for regulated allowances 4 not later than 18 months after the date of the enact- 5 ment of this section, and from time to time there- 6 after as may be appropriate. 7 ‘‘(2) REGULATIONS.—The regulations promul- 8 gated pursuant to paragraph (1) shall— 9 ‘‘(A) provide for effective and comprehen- 10 sive market oversight; 11 ‘‘(B) prohibit fraud, market manipulation 12 (including an entity’s fraudulent or manipula- 13 tive conduct with respect to regulated allowance 14 derivatives that benefits the entity in regulated 15 allowance markets), and excess speculation, and 16 provide measures to limit unreasonable fluctua- 17 tion in the prices of regulated allowances; 18 ‘‘(C) facilitate compliance with title VII of 19 the Clean Air Act by covered entities; 20 ‘‘(D) ensure market transparency and rec- 21 ordkeeping deemed necessary and appropriate 22 by the Commission to provide for efficient price 23 discovery; prevention of fraud, market manipu- 24 lation, and excess speculation; and compliance 25 with title VII of the Clean Air Act and section f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00659 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 660 1 610 of the Public Utility Regulatory Policies 2 Act; 3 ‘‘(E) as necessary, ensure that position 4 limitations for individual market participants 5 are established with respect to each class of 6 regulated allowances; 7 ‘‘(F) as necessary, ensure that margin re- 8 quirements are established for each class of reg- 9 ulated allowances; 10 ‘‘(G) provide for the formation and oper- 11 ation of a fair, orderly and liquid national mar- 12 ket system that allows for the best execution in 13 the trading of regulated allowances; 14 ‘‘(H) limit or eliminate counterparty risks, 15 market power concentration risks, and other 16 risks associated with over-the-counter trading; 17 and 18 ‘‘(I) establish standards for qualification 19 as, and operation of, trading facilities for regu- 20 lated allowances; 21 ‘‘(J) establish standards for qualification 22 as, and operation of, clearing organizations for 23 trading facilities for regulated allowances; and 24 ‘‘(K) include such other requirements as 25 necessary to preserve market integrity and fa- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00660 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 661 1 cilitate compliance with title VII of the Clean 2 Air Act and section 610 of the Public Utility 3 Regulatory Policies Act and the regulations pro- 4 mulgated under such title and such section. 5 ‘‘(3) ENFORCEMENT.— 6 ‘‘(A) IN GENERAL.—If the Commission de- 7 termines, after notice and an opportunity for a 8 hearing on the record, that any entity has vio- 9 lated any rule or order issued by the Commis- 10 sion under this subsection, the Commission may 11 issue an order— 12 ‘‘(i) prohibiting the entity from trad- 13 ing on a trading facility for regulated al- 14 lowances registered with the Commission, 15 and requiring all such facilities to refuse 16 the entity all privileges for such period as 17 may be specified in the order; 18 ‘‘(ii) if the entity is registered with 19 the Commission in any capacity, sus- 20 pending for a period of not more than 6 21 months, or revoking, the registration of the 22 entity; 23 ‘‘(iii) assessing the entity a civil pen- 24 alty of not more than $1,000,000 per day 25 per violation for as long as the violation f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00661 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 662 1 continues (and in determining the amount 2 of a civil penalty, the Commission shall 3 take into account the nature and serious- 4 ness of the violation and the efforts to 5 remedy the violation); and 6 ‘‘(iv) requiring disgorgement of unjust 7 profits, restitution to entities harmed by 8 the violation as determined by the Com- 9 mission, or both. 10 ‘‘(B) AUTHORITY TO SUSPEND OR REVOKE 11 REGISTRATION.—The Commission may suspend 12 for a period of not more than 6 months, or re- 13 voke, the registration of a trading facility for 14 regulated allowances or of a clearing organiza- 15 tion registered by the Commission if, after no- 16 tice and opportunity for a hearing on the 17 record, the Commission finds that— 18 ‘‘(i) the entity violated any rule or 19 order issued by the Commission under this 20 subsection; or 21 ‘‘(ii) a director, officer, employee, or 22 agent of the entity has violated any rule or 23 order issued by the Commission under this 24 subsection. 25 ‘‘(C) CEASE AND DESIST PROCEEDINGS.— f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00662 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 663 1 GENERAL.—If the Commission ‘‘(i) IN 2 determines that any entity may be vio- 3 lating, may have violated, or may be about 4 to violate any provision of this part, or any 5 regulation promulgated by, or any restric- 6 tion, condition, or order made or imposed 7 by, the Commission under this part, and if 8 the Commission finds that the alleged vio- 9 lation or threatened violation, or the con- 10 tinuation of the violation, is likely to result 11 in significant harm to covered entities or 12 market participants, or significant harm to 13 the public interest, the Commission may 14 issue a temporary order requiring the enti- 15 ty— 16 ‘‘(I) to cease and desist from the 17 violation or threatened violation; 18 ‘‘(II) to take such action as is 19 necessary to prevent the violation or 20 threatened violation; and 21 ‘‘(III) to prevent, as the Commis- 22 sion determines to be appropriate— 23 ‘‘(aa) significant harm to 24 covered entities or market par- 25 ticipants; f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00663 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 664 1 ‘‘(bb) significant harm to 2 the public interest; and 3 ‘‘(cc) frustration of the abil- 4 ity of the Commission to conduct 5 the proceedings or to redress the 6 violation at the conclusion of the 7 proceedings. 8 ‘‘(ii) TIMING OF ENTRY.—An order 9 issued under clause (i) shall be entered 10 only after notice and opportunity for a 11 hearing, unless the Commission determines 12 that notice and hearing before entry would 13 be impracticable or contrary to the public 14 interest. 15 ‘‘(iii) EFFECTIVE DATE.—A tem- 16 porary order issued under clause (i) 17 shall— 18 ‘‘(I) become effective upon serv- 19 ice upon the entity; and 20 ‘‘(II) unless set aside, limited, or 21 suspended by the Commission or a 22 court of competent jurisdiction, re- 23 main effective and enforceable pend- 24 ing the completion of the proceedings. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00664 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 665 1 REGARDING DISSIPA- ‘‘(D) PROCEEDINGS 2 TION OR CONVERSION OF ASSETS.— 3 ‘‘(i) IN GENERAL.—In a proceeding 4 involving an alleged violation of a regula- 5 tion or order promulgated or issued by the 6 Commission, if the Commission determines 7 that the alleged violation or related cir- 8 cumstances are likely to result in signifi- 9 cant dissipation or conversion of assets, 10 the Commission may issue a temporary 11 order requiring the respondent to take 12 such action as is necessary to prevent the 13 dissipation or conversion of assets. 14 ‘‘(ii) TIMING OF ENTRY.—An order 15 issued under clause (i) shall be entered 16 only after notice and opportunity for a 17 hearing, unless the Commission determines 18 that notice and hearing before entry would 19 be impracticable or contrary to the public 20 interest. 21 ‘‘(iii) EFFECTIVE DATE.—A tem- 22 porary order issued under clause (i) 23 shall— 24 ‘‘(I) become effective upon serv- 25 ice upon the respondent; and f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00665 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 666 1 ‘‘(II) unless set aside, limited, or 2 suspended by the Commission or a 3 court of competent jurisdiction, re- 4 main effective and enforceable pend- 5 ing the completion of the proceedings. 6 ‘‘(E) REVIEW OF TEMPORARY ORDERS.— 7 ‘‘(i) APPLICATION FOR REVIEW.—At 8 any time after a respondent has been 9 served with a temporary cease-and-desist 10 order pursuant to subparagraph (C) or 11 order regarding the dissipation or conver- 12 sion of assets pursuant to subparagraph 13 (D), the respondent may apply to the Com- 14 mission to have the order set aside, lim- 15 ited, or suspended. 16 ‘‘(ii) NO PRIOR HEARING.—If a re- 17 spondent has been served with a temporary 18 order entered without a prior hearing of 19 the Commission— 20 ‘‘(I) the respondent may, not 21 later than 10 days after the date on 22 which the order was served, request a 23 hearing on the application; and 24 ‘‘(II) the Commission shall hold a 25 hearing and render a decision on the f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00666 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 667 1 application at the earliest practicable 2 time. 3 ‘‘(iii) JUDICIAL REVIEW.— 4 ‘‘(I) IN GENERAL.—An entity 5 shall not be required to submit a re- 6 quest for rehearing of a temporary 7 order before seeking judicial review in 8 accordance with this subparagraph. 9 ‘‘(II) TIMING OF REVIEW.—Not 10 later than 10 days after the date on 11 which a respondent is served with a 12 temporary cease-and-desist order en- 13 tered with a prior hearing of the Com- 14 mission, or 10 days after the date on 15 which the Commission renders a deci- 16 sion on an application and hearing 17 under clause (i) with respect to any 18 temporary order entered without such 19 a prior hearing— 20 ‘‘(aa) the respondent may 21 obtain a review of the order in a 22 United States circuit court hav- 23 ing jurisdiction over the circuit in 24 which the respondent resides or 25 has a principal place of business, f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00667 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 668 1 or in the United States Court of 2 Appeals for the District of Co- 3 lumbia Circuit, for an order set- 4 ting aside, limiting, or sus- 5 pending the effectiveness or en- 6 forcement of the order; and 7 ‘‘(bb) the court shall have 8 jurisdiction to enter such an 9 order. 10 ‘‘(III) NO PRIOR HEARING.—A 11 respondent served with a temporary 12 order entered without a prior hearing 13 of the Commission may not apply to 14 the applicable court described in sub- 15 clause (II) except after a hearing and 16 decision by the Commission on the ap- 17 plication of the respondent under 18 clauses (i) and (ii). 19 ‘‘(iv) PROCEDURES.—Section 222 and 20 Part III shall apply to— 21 ‘‘(I) an application for review of 22 an order under clause (i); and 23 ‘‘(II) an order subject to review 24 under clause (iii). f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00668 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 669 1 AUTOMATIC STAY OF TEM- ‘‘(v) NO 2 PORARY ORDER.—The commencement of 3 proceedings under clause (iii) shall not, un- 4 less specifically ordered by the court, oper- 5 ate as a stay of the order of the Commis- 6 sion. 7 ‘‘(F) ACTIONS TO COLLECT CIVIL PEN- 8 ALTIES.—If any person fails to pay a civil pen- 9 alty assessed under this subsection after an 10 order assessing the penalty has become final 11 and unappealable, the Commission shall bring 12 an action to recover the amount of the penalty 13 in any appropriate United States district court. 14 In any such action, the validity or appropriate- 15 ness of the final assessment order or judgment 16 shall not be subject to review. 17 ‘‘(4) TRANSACTION FEES.— 18 ‘‘(A) IN GENERAL.—The Commission 19 shall, in accordance with this paragraph, estab- 20 lish and collect transaction fees designed to re- 21 cover the costs to the Federal Government of 22 the supervision and regulation of regulated al- 23 lowance markets and market participants, in- 24 cluding related costs for enforcement activities, 25 policy and rulemaking activities, administration, f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00669 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 670 1 legal services, and international regulatory ac- 2 tivities. 3 ‘‘(B) INITIAL FEE RATE.—Each trading 4 facility on or through which regulated allow- 5 ances are transacted shall pay to the Commis- 6 sion a fee at a rate of not more than $15 per 7 $1,000,000 of the aggregate dollar amount of 8 sales of regulated allowances transacted 9 through the facility. 10 ‘‘(C) ANNUAL ADJUSTMENT OF FEE 11 RATE.—The Commission shall, on an annual 12 basis— 13 ‘‘(i) assess the rate at which fees are 14 to be collected as necessary to meet the 15 cost recovery requirement in subparagraph 16 (A); and 17 ‘‘(ii) consistent with subparagraph 18 (B), adjust the rate as necessary in order 19 to meet the requirement. 20 ‘‘(D) REPORT ON ADEQUACY OF FEES IN 21 RECOVERING COSTS.—The Commission, shall, 22 on an annual basis, report to the Committee on 23 Energy and Commerce of the House of Rep- 24 resentatives and the Committee on Energy and 25 Natural Resources of the Senate on the ade- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00670 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 671 1 quacy of the transaction fees in providing fund- 2 ing for the Commission to regulate the regu- 3 lated allowance markets. 4 ‘‘(5) JUDICIAL REVIEW.—Judicial review of ac- 5 tions taken by the Commission under this subsection 6 shall be pursuant to part III. 7 ‘‘(6) INFORMATION-SHARING.—Within 6 8 months after a Federal agency with jurisdiction over 9 regulated allowance derivatives is delegated author- 10 ity pursuant to subsection (c)(1), the agency shall 11 enter into a memorandum of understanding with the 12 Commission relating to information sharing, which 13 shall include provisions ensuring that information re- 14 quests to markets within the respective jurisdiction 15 of the agency are properly coordinated to facilitate, 16 among other things, effective information-sharing 17 while minimizing duplicative information requests, 18 and provisions regarding the treatment of propri- 19 etary information. 20 ‘‘(7) ADDITIONAL EMPLOYEES REPORT AND AP- 21 POINTMENT.—Within 18 months after the date of 22 the enactment of this section, the Commission shall 23 submit to the President, the Committee on Energy 24 and Commerce of the House of Representatives, and 25 the Committee on Energy and Natural Resources of f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00671 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 672 1 the Senate, a report that contains recommendations 2 as to how many additional employees would be nec- 3 essary to provide robust oversight and enforcement 4 of the regulations promulgated under this sub- 5 section. As soon as practicable after the completion 6 of the report, subject to appropriations, the Commis- 7 sion shall appoint the recommended number of addi- 8 tional employees for such purposes. 9 ‘‘(c) DELEGATION AUTHORITY PRESI- OF BY THE 10 DENT.— 11 ‘‘(1) DELEGATION.—The President, taking into 12 consideration the recommendations of the inter- 13 agency working group established in subsection (d), 14 shall delegate to members of the working group and 15 the heads of other appropriate Federal agencies the 16 authority to promulgate regulations for the estab- 17 lishment, operation, and oversight of all markets for 18 regulated allowance derivatives. 19 ‘‘(2) REGULATIONS.—The regulations promul- 20 gated pursuant to paragraph (1) shall— 21 ‘‘(A) provide for effective and comprehen- 22 sive market oversight; 23 ‘‘(B) prohibit fraud, market manipulation, 24 and excess speculation, and provide measures to f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00672 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 673 1 limit unreasonable fluctuation in the prices of 2 regulated allowance derivatives; 3 ‘‘(C) facilitate compliance with title VII of 4 the Clean Air Act by covered entities; 5 ‘‘(D) ensure market transparency and rec- 6 ordkeeping necessary to provide for efficient 7 price discovery; prevention of fraud, market ma- 8 nipulation, and excess speculation; and compli- 9 ance with title VII of the Clean Air Act and 10 section 610 of the Public Utility Regulatory 11 Policies Act; 12 ‘‘(E) ensure that position limitations for 13 individual market participants are established 14 with respect to each regulated allowance deriva- 15 tive and aggregate position limitations for indi- 16 vidual market participants are established with 17 respect to all regulated allowance derivative 18 markets; 19 ‘‘(F) ensure that margin requirements are 20 established for each regulated allowance deriva- 21 tive; 22 ‘‘(G) provide for the formation and oper- 23 ation of a market system that allows for best 24 execution in the trading of regulated allowance 25 derivatives; f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00673 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 674 1 ‘‘(H) to the extent the regulations deviate 2 from the rule set forth in paragraph (4)(B), 3 limit or eliminate counterparty risks, market 4 power concentration risks, and other risks asso- 5 ciated with over-the-counter trading, and pro- 6 mulgate reporting and market transparency 7 rules for large traders; 8 ‘‘(I) ensure that market participants do 9 not evade position limits or otherwise under- 10 mine the integrity and effectiveness of the regu- 11 lations promulgated under subparagraph (C) 12 through participation in markets not subject to 13 the position limits and regulations; 14 ‘‘(J) establish standards, as necessary, for 15 qualification as, and operation of, trading facili- 16 ties for regulated allowance derivatives; 17 ‘‘(K) establish standards, as necessary, for 18 qualification as, and operation of, clearing orga- 19 nizations for trading facilities for regulated al- 20 lowance derivatives; 21 ‘‘(L) provide boards of trade designated as 22 contract markets under the Commodity Ex- 23 change Act, and market participants, with an 24 adequate transition period for compliance with f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00674 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 675 1 any new regulatory requirements established 2 under this paragraph; 3 ‘‘(M) determine whether and to what ex- 4 tent offset creation contracts, to the extent in- 5 corporating regulated allowance derivatives, 6 should be governed by the same regulations 7 that apply to other regulated allowance deriva- 8 tives; and 9 ‘‘(N) include such other requirements as 10 necessary to preserve market integrity and fa- 11 cilitate compliance with title VII of the Clean 12 Air Act and section 610 of the Public Utility 13 Regulatory Policies Act and the regulations pro- 14 mulgated under such title and such section. 15 ‘‘(3) DEADLINE.—The agencies authorized to 16 promulgate regulations for the establishment, oper- 17 ation, and oversight of markets for regulated allow- 18 ance derivatives pursuant to paragraph (1) shall 19 promulgate such regulations not later than 18 20 months after the date of enactment of this section, 21 and from time to time thereafter as may be appro- 22 priate. 23 ‘‘(4) DEFAULT RULES.— 24 ‘‘(A) An individual market participant, di- 25 rectly or in concert with another participant, f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00675 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 676 1 shall not control more than 10 percent of the 2 open interest in any regulated allowance deriva- 3 tive. 4 ‘‘(B) All contracts for the purchase or sale 5 of any regulated allowance derivative shall be 6 executed on or through a board of trade des- 7 ignated as a contract market under the Com- 8 modity Exchange Act. 9 ‘‘(C) To the extent that regulations pro- 10 mulgated under this subsection provide dif- 11 ferent rules with respect to the matters de- 12 scribed in subparagraph (A) or (B), the regula- 13 tions shall supersede subparagraph (A) or (B), 14 as the case may be. 15 ‘‘(d) WORKING GROUP.— 16 ‘‘(1) ESTABLISHMENT.—Not later than 30 days 17 after the date of the enactment of this section, the 18 President shall establish an interagency working 19 group on carbon market oversight, which shall in- 20 clude the Administrator of the Environmental Pro- 21 tection Agency and representatives of other relevant 22 agencies, to make recommendations to the President 23 regarding proposed regulations for the establish- 24 ment, operation, and oversight of markets for regu- 25 lated allowance derivatives. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00676 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 677 1 ‘‘(2) REPORT.—Not later than 180 days after 2 the date of the enactment of this section, and bienni- 3 ally thereafter, the interagency working group shall 4 submit a written report to the President and Con- 5 gress that includes its recommendations to the 6 President regarding proposed regulations for the es- 7 tablishment, operation, and oversight of markets for 8 regulated allowance derivatives and any rec- 9 ommendations to Congress for statutory changes 10 needed to ensure the establishment, operation, and 11 oversight of transparent, fair, stable, and efficient 12 markets for regulated allowance derivatives. 13 ‘‘(e) ENFORCEMENT REGULATIONS.—Each Fed- OF 14 eral agency that promulgates under subsection (c) a regu- 15 lation of conduct with respect to a regulated allowance de- 16 rivative shall have the same authority to enforce compli- 17 ance with the regulation as the Commodity Futures Trad- 18 ing Commission has to enforce compliance with any regu- 19 lation of similar conduct with respect to a contract, agree- 20 ment, or transaction over which the Commodity Futures 21 Trading Commission has jurisdiction, except that any en- 22 forcement by the Federal Energy Regulatory Commission 23 shall be pursuant to section 222 and Part III. 24 ‘‘(f) PROHIBITION ON PRICE OR MARKET MANIPULA- 25 TION, FRAUD, FALSE MISLEADING STATEMENTS AND OR f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00677 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 678 1 REPORTS.—(1) It shall be a felony punishable by a OR 2 fine of not more than $25,000,000 (or $5,000,000 in the 3 case of a person who is an individual) or imprisonment 4 for not more than 20 years, or both, together with the 5 costs of prosecution for any person, directly or indirectly— 6 ‘‘(A) in connection with a transaction involving 7 a regulated instrument, to knowingly— 8 ‘‘(i) use any manipulative or deceptive de- 9 vice or contrivance in violation of regulations 10 promulgated pursuant to this section; 11 ‘‘(ii) corner or attempt to corner the regu- 12 lated instrument; or 13 ‘‘(iii) cheat or defraud, or attempt to cheat 14 or defraud, any other person; 15 ‘‘(B) to knowingly deliver or cause to be deliv- 16 ered a false, misleading, or inaccurate report con- 17 cerning information or conditions that affect or tend 18 to affect the price of a regulated instrument; 19 ‘‘(C) to knowingly make, or cause to be made, 20 in an application, report, or document required to be 21 filed under any regulation promulgated pursuant to 22 this section, a statement which is false or misleading 23 with respect to a material fact, or to omit any mate- 24 rial fact required to be stated therein or necessary 25 to make the statements therein not misleading; or f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00678 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 679 1 ‘‘(D) to knowingly falsify, conceal, or cover up 2 by any trick, scheme, or artifice a material fact, 3 make any false, fictitious, or fraudulent statements 4 or representations, or make or use any false writing 5 or document that contains a false, fictitious, or 6 fraudulent statement or entry, to an entity on or 7 through which transactions in regulated instruments 8 occur, or are settled or cleared, acting in furtherance 9 of its official duties under this section or regulations 10 promulgated under this section. 11 ‘‘(2) If a person is found guilty of a felony established 12 in paragraph (1), the person may be prohibited from hold- 13 ing or trading regulated instruments for a period of not 14 more than 5 years pursuant to the regulations promul- 15 gated under this section, except that, if the person is a 16 covered entity, the person shall be allowed to hold suffi- 17 cient regulated allowances to meet its compliance obliga- 18 tions. 19 ‘‘(g) RELATION STATE LAW.—Nothing in this TO 20 section shall preclude, diminish or qualify any authority 21 of a State or political subdivision thereof to adopt or en- 22 force any unfair competition, antitrust, consumer protec- 23 tion, securities, commodities or any other law or regula- 24 tion, except that no such State law or regulation may re- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00679 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 680 1 lieve any person of any requirement otherwise applicable 2 under this section. 3 ‘‘(h) MARKET REPORTS.— 4 ‘‘(1) COLLECTION AND ANALYSIS OF INFORMA- 5 TION.—The Commission, in conjunction with the 6 Federal agency with jurisdiction over regulated al- 7 lowance derivatives pursuant to subsection (c)(1), 8 shall, on a continuous basis, collect and analyze the 9 following information on the functioning of the mar- 10 kets for regulated instruments established under this 11 part: 12 ‘‘(A) The status of, and trends in, the 13 markets, including prices, trading volumes, 14 transaction types, and trading channels and 15 mechanisms. 16 ‘‘(B) Spikes, collapses, and volatility in 17 prices of regulated instruments, and the causes 18 therefor. 19 ‘‘(C) The relationship between the market 20 for regulated allowances and allowance deriva- 21 tives, and the spot and futures markets for en- 22 ergy commodities, including electricity. 23 ‘‘(D) Evidence of fraud or manipulation in 24 any such market, the effects on any such mar- 25 ket of any such fraud or manipulation (or f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00680 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 681 1 threat of fraud or manipulation) that the Com- 2 mission, in conjunction with the Federal agen- 3 cy, has identified, and the effectiveness of cor- 4 rective measures undertaken by the Commis- 5 sion, in conjunction with the Federal agency, to 6 address the fraud, manipulation, or threat. 7 ‘‘(E) The economic effects of the markets, 8 including to macro- and micro-economic effects 9 of unexpected significant increases and de- 10 creases in the price of regulated instruments. 11 ‘‘(F) Any changes in the roles, activities, 12 or strategies of various market participants. 13 ‘‘(G) Regional, industrial, and consumer 14 responses to the markets, and energy invest- 15 ment responses to the markets. 16 ‘‘(H) Any other issue related to the mar- 17 kets that the Commission, in conjunction with 18 the entities, deems appropriate. 19 ‘‘(2) ANNUAL REPORTS TO THE CONGRESS.— 20 Not later than 1 month after the end of each cal- 21 endar year, the Commission, in conjunction with the 22 Federal agency, shall submit to the President, the 23 Committee on Energy and Commerce of the House 24 of Representatives, and the Committee on Energy 25 and Natural Resources of the Senate, and make f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00681 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 682 1 available to the public, a report on the matters de- 2 scribed in paragraph (1) with respect to the year, in- 3 cluding recommendations for any administrative or 4 statutory measures the Commission, in conjunction 5 with the Federal agency, considers necessary to ad- 6 dress any threats to the transparency, fairness, or 7 integrity of the markets in regulated instruments.’’. Subtitle E—Additional Market 8 Assurance 9 10 SEC. 351. REGULATION OF CERTAIN TRANSACTIONS IN DE- 11 RIVATIVES INVOLVING ENERGY COMMOD- 12 ITIES. 13 (a) ENERGY COMMODITY DEFINED.—Section 1a of 14 the Commodity Exchange Act (7 U.S.C. 1a) is amended— 15 (1) in paragraph (14), by inserting ‘‘, an energy 16 commodity,’’ after ‘‘excluded commodity’’; 17 (2) by redesignating paragraphs (13) through 18 (21) and paragraphs (22) through (34) as para- 19 graphs (14) through (22) and paragraphs (24) 20 through (36), respectively; 21 (3) by inserting after paragraph (12) the fol- 22 lowing: 23 ‘‘(13) ENERGY COMMODITY.—The term ‘energy 24 commodity’ means— 25 ‘‘(A) coal; f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00682 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 683 1 ‘‘(B) crude oil, gasoline, diesel fuel, jet 2 fuel, heating oil, and propane; 3 ‘‘(C) electricity (excluding financial trans- 4 mission rights which are subject to regulation 5 and oversight by the Federal Energy Regu- 6 latory Commission); 7 ‘‘(D) natural gas; and 8 ‘‘(E) any other substance (other than an 9 excluded commodity, a metal, or an agricultural 10 commodity) that is used as a source of energy, 11 as the Commission, in its discretion, deems ap- 12 propriate.’’; and 13 (4) by inserting after paragraph (22) (as so re- 14 designated by paragraph (2) of this subsection) the 15 following: 16 ‘‘(23) INCLUDED ENERGY TRANSACTION.—The 17 term ‘included energy transaction’ means a contract, 18 agreement, or transaction in an energy commodity 19 for future delivery that provides for a delivery point 20 of the energy commodity in the United States or a 21 territory or possession of the United States, or that 22 is offered or transacted on or through a computer 23 terminal located in the United States.’’. 24 (b) EXTENSION REGULATORY AUTHORITY OF TO 25 SWAPS INVOLVING ENERGY TRANSACTIONS.—Section f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00683 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 684 1 2(g) of such Act (7 U.S.C. 2(g)) is amended by inserting 2 ‘‘or an energy commodity’’ after ‘‘agricultural com- 3 modity’’. 4 (c) ELIMINATION EXEMPTION OVER-THE- OF FOR 5 COUNTER SWAPS INVOLVING ENERGY COMMODITIES.— 6 Section 2(h)(1) of such Act (7 U.S.C. 2(h)(1)) is amended 7 by inserting ‘‘(other than an energy commodity)’’ after 8 ‘‘exempt commodity’’. 9 (d) EXTENSION REGULATORY AUTHORITY TO IN- OF 10 ENERGY TRANSACTIONS FOREIGN BOARDS CLUDED ON 11 TRADE.—Section 4 of such Act (7 U.S.C. 6) is amend- OF 12 ed— 13 (1) in subsection (a), by inserting ‘‘, and which 14 is not an included energy transaction’’ after ‘‘terri- 15 tories or possessions’’ the 2nd place it appears; and 16 (2) in subsection (b), by adding at the end the 17 following: ‘‘The preceding sentence shall not apply 18 with respect to included energy transactions.’’. 19 (e) LIMITATION GENERAL EXEMPTIVE AUTHOR- OF 20 CFTC WITH RESPECT INCLUDED EN- ITY OF THE TO 21 TRANSACTIONS.— ERGY 22 (1) IN GENERAL.—Section 4(c) of such Act (7 23 U.S.C. 6(c)) is amended by adding at the end the 24 following: f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00684 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 685 1 ‘‘(6) The Commission may not exempt any in- 2 cluded energy transaction from the requirements of 3 subsection (a), unless the Commission provides 60 4 days advance notice to the Congress and the Posi- 5 tion Limit Energy Advisory Group and solicits pub- 6 lic comment about the exemption request and any 7 proposed Commission action.’’. 8 (2) NULLIFICATION OF NO-ACTION LETTER EX- 9 EMPTIONS TO CERTAIN REQUIREMENTS APPLICABLE 10 TO INCLUDED ENERGY TRANSACTIONS.—Beginning 11 180 days after the date of the enactment of this Act, 12 any exemption provided by the Commodity Futures 13 Trading Commission that has allowed included en- 14 ergy transactions (as defined in section 1a(13) of 15 the Commodity Exchange Act) to be conducted with- 16 out regard to the requirements of section 4(a) of 17 such Act shall be null and void. 18 (f) REQUIREMENT ESTABLISH UNIFORM SPECU- TO 19 POSITION LIMITS FOR ENERGY TRANSACTIONS.— LATIVE 20 (1) IN GENERAL.—Section 4a(a) of such Act (7 21 U.S.C. 6a(a)) is amended— 22 (A) by inserting ‘‘(1)’’ after ‘‘(a)’’; 23 (B) by inserting after the 2nd sentence the 24 following: ‘‘With respect to energy transactions, 25 the Commission shall fix limits on the aggre- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00685 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 686 1 gate number of positions which may be held by 2 any person for each month across all markets 3 subject to the jurisdiction of the Commission.’’; 4 (C) in the 4th sentence by inserting ‘‘, con- 5 sistent with the 3rd sentence,’’ after ‘‘Commis- 6 sion’’; and 7 (D) by adding after and below the end the 8 following: 9 ‘‘(2)(A) Not later than 60 days after the date of the 10 enactment of this paragraph, the Commission shall con- 11 vene a Position Limit Energy Advisory Group consisting 12 of representatives from— 13 ‘‘(i) 7 predominantly commercial short hedgers 14 of the actual energy commodity for future delivery; 15 ‘‘(ii) 7 predominantly commercial long hedgers 16 of the actual energy commodity for future delivery; 17 ‘‘(iii) 4 non-commercial participants in markets 18 for energy commodities for future delivery; and 19 ‘‘(iv) each designated contract market or de- 20 rivatives transaction execution facility upon which a 21 contract in the energy commodity for future delivery 22 is traded, and each electronic trading facility that 23 has a significant price discovery contract in the en- 24 ergy commodity. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00686 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 687 1 ‘‘(B) Not later than 60 days after the date on which 2 the advisory group is convened under subparagraph (A), 3 and annually thereafter, the advisory group shall submit 4 to the Commission advisory recommendations regarding 5 the position limits to be established in paragraph (1). 6 ‘‘(C) The Commission shall have exclusive authority 7 to grant exemptions for bona fide hedging transactions 8 and positions from position limits imposed under this Act 9 on energy transactions.’’. 10 (2) CONFORMING AMENDMENTS.— 11 (A) SIGNIFICANT PRICE DISCOVERY CON- 12 TRACTS.—Section 2(h)(7) of such Act (7 U.S.C. 13 2(h)(7)) is amended— 14 (i) in subparagraph (A)— 15 (I) by inserting ‘‘of this para- 16 graph and section 4a(a)’’ after ‘‘(B) 17 through (D)’’; and 18 (II) by inserting ‘‘of this para- 19 graph’’ before the period; and 20 (ii) in subparagraph (C)(ii)(IV)— 21 (I) in the heading, by striking 22 ‘‘LIMITATIONS OR’’; and 23 (II) by striking ‘‘position limita- 24 tions or’’. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00687 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 688 1 (B) CONTRACTS TRADED ON OR THROUGH 2 MARKETS.—Section DESIGNATED CONTRACT 3 5(d)(5) of such Act (7 U.S.C. 7(d)(5)) is 4 amended— 5 (i) in the heading by striking ‘‘LIMI- 6 TATIONS OR’’; and 7 (ii) by striking ‘‘position limitations 8 or’’. 9 (C) CONTRACTS TRADED ON OR THROUGH 10 DERIVATIVES TRANSACTION EXECUTION FACILI- 11 TIES.—Section 5a(d)(4) of such Act (7 U.S.C. 12 7a(d)(4)) is amended— 13 (i) in the heading by striking ‘‘LIMI- 14 TATIONS OR’’; and 15 (ii) by striking ‘‘position limits or’’. 16 (g) ELIMINATION SWAPS LOOPHOLE.—Sec- OF THE 17 tion 4a(c) of such Act (7 U.S.C. 6a(c)) is amended— 18 (1) by inserting ‘‘(1)’’ after ‘‘(c)’’; and 19 (2) by adding after and below the end the fol- 20 lowing: 21 ‘‘(2) For the purposes of contracts of sale for future 22 delivery and options on such contracts or commodities, the 23 Commission shall define what constitutes a bona fide 24 hedging transaction or position as a transaction or posi- 25 tion that— f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00688 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 689 1 ‘‘(A)(i) represents a substitute for transactions 2 made or to be made or positions taken or to be 3 taken at a later time in a physical marketing chan- 4 nel; 5 ‘‘(ii) is economically appropriate to the reduc- 6 tion of risks in the conduct and management of a 7 commercial enterprise; and 8 ‘‘(iii) arises from the potential change in the 9 value of— 10 ‘‘(I) assets that a person owns, produces, 11 manufactures, processes, or merchandises or 12 anticipates owning, producing, manufacturing, 13 processing, or merchandising; 14 ‘‘(II) liabilities that a person owns or an- 15 ticipates incurring; or 16 ‘‘(III) services that a person provides, pur- 17 chases, or anticipates providing or purchasing; 18 or 19 ‘‘(B) reduces risks attendant to a position re- 20 sulting from a transaction that— 21 ‘‘(i) was executed pursuant to subsection 22 (d), (g), (h)(1), or (h)(2) of section 2, or an ex- 23 emption issued by the Commission by rule, reg- 24 ulation or order; and f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00689 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 690 1 ‘‘(ii) was executed opposite a counterparty 2 for which the transaction would qualify as a 3 bona fide hedging transaction pursuant to para- 4 graph (2)(A) of this subsection.’’. 5 (h) DETAILED REPORTING AND DISAGGREGATION OF 6 MARKET DATA.—Section 4 of such Act (7 U.S.C. 6) is 7 amended by adding at the end the following: 8 ‘‘(e) DETAILED REPORTING DISAGGREGATION AND 9 MARKET DATA.— OF 10 ‘‘(1) INDEX TRADERS AND SWAP DEALERS RE- 11 PORTING.—The Commission shall issue a proposed 12 rule defining and classifying index traders and swap 13 dealers (as those terms are defined by the Commis- 14 sion) for purposes of data reporting requirements 15 and setting routine detailed reporting requirements 16 for any positions of such entities in contracts traded 17 on designated contract markets, over-the-counter 18 markets, derivatives transaction execution facilities, 19 foreign boards of trade subject to section 4(f), and 20 electronic trading facilities with respect to signifi- 21 cant price discovery contracts not later than 120 22 days after the date of the enactment of this sub- 23 section, and issue a final rule within 180 days after 24 such date of enactment. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00690 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 691 1 ‘‘(2) DISAGGREGATION OF INDEX FUNDS AND 2 OTHER DATA IN MARKETS.—Subject to section 8 3 and beginning within 60 days of the issuance of the 4 final rule required by paragraph (1), the Commis- 5 sion shall disaggregate and make public weekly— 6 ‘‘(A) the number of positions and total no- 7 tional value of index funds and other passive, 8 long-only and short-only positions (as defined 9 by the Commission) in all markets to the extent 10 such information is available; and 11 ‘‘(B) data on speculative positions relative 12 to bona fide physical hedgers in those markets 13 to the extent such information is available. 14 ‘‘(3) DISCLOSURE OF IDENTITY OF HOLDERS 15 OF POSITIONS IN INDEXES IN EXCESS OF POSITION 16 LIMITS.—The Commission shall include in its weekly 17 Commitment of Trader reports the identity of each 18 person who holds a position in an index in excess of 19 a limit imposed under section 4i.’’. 20 (i) AUTHORITY SET LIMITS PREVENT EXCES- TO TO 21 SPECULATION IN INDEXES.— SIVE 22 (1) IN GENERAL.—Section 4a of such Act (7 23 U.S.C. 6a) is amended by adding at the end the fol- 24 lowing: f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00691 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 692 1 ‘‘(f) The provisions of this section shall apply to the 2 amounts of trading which may be done or positions which 3 may be held by any person under contracts of sale of an 4 index for future delivery on or subject to the rules of any 5 contract market, derivatives transaction execution facility, 6 or over-the-counter market, or on an electronic trading fa- 7 cility with respect to a significant price discovery contract, 8 in the same manner in which this section applies to con- 9 tracts of sale of a commodity for future delivery.’’. 10 (2) REGULATIONS.—The Commodity Futures 11 Trading Commission shall issue regulations under 12 section 4a(f) of the Commodity Exchange Act within 13 180 days after the date of the enactment of this Act. 14 SEC. 352. NO EFFECT ON AUTHORITY OF THE FEDERAL EN- 15 ERGY REGULATORY COMMISSION. 16 Section 2 of the Commodity Exchange Act (7 U.S.C. 17 2) is amended by adding at the end the following:. 18 ‘‘(j) NO EFFECT FERC AUTHORITY.—This Act ON 19 shall not be interpreted to affect the jurisdiction of the 20 Federal Energy Regulatory Commission with respect to 21 the authority of the Federal Energy Regulatory Commis- 22 sion under the Federal Power Act (16 U.S.C. 791a et 23 seq.), the Natural Gas Act (15 U.S.C. 717 et seq.), or 24 other law to obtain information, carry out enforcement ac- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00692 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 693 1 tions, or otherwise carry out the responsibilities of the 2 Federal Energy Regulatory Commission.’’. 3 SEC. 353. INSPECTOR GENERAL OF THE COMMODITY FU- 4 TURES TRADING COMMISSION. 5 (a) ELEVATION OF OFFICE.— 6 (1) INCLUSION OF CFTC IN DEFINITION OF ES- 7 TABLISHMENT.— 8 (A) Section 11(1) of the Inspector General 9 Act of 1978 (5 U.S.C. App.) is amended by 10 striking ‘‘or the Federal Cochairpersons of the 11 Commissions established under section 15301 12 of title 40, United States Code;’’ and inserting 13 ‘‘the Federal Cochairpersons of the Commis- 14 sions established under section 15301 of title 15 40, United States Code; or the Chairman of the 16 Commodity Futures Trading Commission;’’. 17 (B) Section 11(2) of the Inspector General 18 Act of 1978 (5 U.S.C. App.) is amended by 19 striking ‘‘or the Commissions established under 20 section 15301 of title 40, United States Code,’’ 21 and inserting ‘‘the Commissions established 22 under section 15301 of title 40, United States 23 Code, or the Commodity Futures Trading Com- 24 mission,’’. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00693 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 694 1 (2) EXCLUSION OF CFTC FROM DEFINITION OF 2 DESIGNATED FEDERAL ENTITY.—Section 8G(a)(2) 3 of the Inspector General Act of 1978 (5 U.S.C. 4 App.) is amended by striking ‘‘the Commodity Fu- 5 tures Trading Commission,’’. 6 (b) EFFECTIVE DATE; TRANSITION RULE.— 7 (1) EFFECTIVE DATE.—The amendments made 8 by this section shall take effect 30 days after the 9 date of the enactment of this Act. 10 (2) TRANSITION RULE.—An individual serving 11 as Inspector General of the Commodity Futures 12 Trading Commission on the effective date of this 13 section pursuant to an appointment made under sec- 14 tion 8G of the Inspector General Act of 1978 (5 15 U.S.C. App.)— 16 (A) may continue so serving until the 17 President makes an appointment under section 18 3(a) of such Act consistent with the amend- 19 ments made by this section; and 20 (B) shall, while serving under subpara- 21 graph (A), remain subject to the provisions of 22 section 8G of such Act which apply with respect 23 to the Commodity Futures Trading Commis- 24 sion. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00694 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 695 1 SEC. 354. SETTLEMENT AND CLEARING THROUGH REG- 2 ISTERED DERIVATIVES CLEARING ORGANIZA- 3 TIONS. 4 (a) IN GENERAL.— 5 (1) APPLICATION TO EXCLUDED DERIVATIVE 6 TRANSACTIONS.— 7 (A) Section 2(d)(1) of the Commodity Ex- 8 change Act (7 U.S.C. 2(d)(1)) is amended— 9 (i) by striking ‘‘and’’ at the end of 10 subparagraph (A); 11 (ii) by striking the period at the end 12 of subparagraph (B) and inserting ‘‘and’’; 13 and 14 (iii) by adding at the end the fol- 15 lowing: 16 ‘‘(C) except as provided in section 4(f), the 17 agreement, contract, or transaction is settled 18 and cleared through a derivatives clearing orga- 19 nization registered with the Commission.’’. 20 (B) Section 2(d)(2) of such Act (7 U.S.C. 21 2(d)(2)) is amended— 22 (i) by striking ‘‘and’’ at the end of 23 subparagraph (B); 24 (ii) by striking the period at the end 25 of subparagraph (C) and inserting ‘‘; and’’; 26 and f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00695 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 696 1 (iii) by adding at the end the fol- 2 lowing: 3 ‘‘(D) except as provided in section 4(f), the 4 agreement, contract, or transaction is settled 5 and cleared through a derivatives clearing orga- 6 nization registered with the Commission.’’. 7 (2) APPLICATION TO CERTAIN SWAP TRANS- 8 ACTIONS.—Section 2(g) of such Act (7 U.S.C. 2(g)) 9 is amended— 10 (A) by striking ‘‘and’’ at the end of para- 11 graph (2); 12 (B) by striking the period at the end of 13 paragraph (3) and inserting ‘‘; and’’; and 14 (C) by adding at the end the following: 15 ‘‘(4) except as provided in section 4(f), settled 16 and cleared through a derivatives clearing organiza- 17 tion registered with the Commission.’’. 18 (3) APPLICATION TO CERTAIN TRANSACTIONS 19 IN EXEMPT COMMODITIES.— 20 (A) Section 2(h)(1) of such Act ( 7 U.S.C. 21 2(h)(1)) is amended— 22 (i) by striking ‘‘and’’ at the end of 23 subparagraph (A); f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00696 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 697 1 (ii) by striking the period at the end 2 of subparagraph (B) and inserting ‘‘; 3 and’’; and 4 (iii) by adding at the end the fol- 5 lowing: 6 ‘‘(C) except as provided in section 4(f), is 7 settled and cleared through a derivatives clear- 8 ing organization registered with the Commis- 9 sion.’’. 10 (B) Section 2(h)(3) of such Act (7 U.S.C. 11 2(h)(3)) is amended— 12 (i) by striking ‘‘and’’ at the end of 13 subparagraph (A); 14 (ii) by striking the period at the end 15 of subparagraph (B) and inserting ‘‘; 16 and’’; and 17 (iii) by adding at the end the fol- 18 lowing: 19 ‘‘(C) except as provided in section 4(f), set- 20 tled and cleared through a derivatives clearing 21 organization registered with the Commission.’’. 22 (4) GENERAL EXEMPTIVE AUTHORITY.—Sec- 23 tion 4(c)(1) of such Act (7 U.S.C. 6(c)(1)) is 24 amended by inserting ‘‘the agreement, contract, or 25 transaction, except as provided in section 4(h), will f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00697 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 698 1 be settled and cleared through a derivatives clearing 2 organization registered with the Commission and’’ 3 before ‘‘the Commission determines’’. 4 (5) CONFORMING AMENDMENT RELATING TO 5 SIGNIFICANT PRICE DISCOVERY CONTRACTS.—Sec- 6 tion 2(h)(7)(D) of such Act (7 U.S.C. 2(h)(7)(D)) is 7 amended by striking the heading for the subpara- 8 graph and all that follows through ‘‘As part of’’ and 9 inserting the following: 10 ‘‘(D) REVIEW OF IMPLEMENTATION.—As 11 part of’’. 12 (b) ALTERNATIVES CLEARING THROUGH DES- TO 13 CLEARING ORGANIZATIONS.—Section 4 of such IGNATED 14 Act (7 U.S.C. 6), as amended by section 351(h) of this 15 Act, is amended by adding at the end the following: 16 ‘‘(f) ALTERNATIVES CLEARING THROUGH DES- TO 17 CLEARING ORGANIZATIONS.— IGNATED 18 ‘‘(1) SETTLEMENT AND CLEARING THROUGH 19 CERTAIN OTHER REGULATED ENTITIES.—An agree- 20 ment, contract, or transaction, or class thereof, re- 21 lating to an excluded commodity, that would other- 22 wise be required to be settled and cleared by section 23 2(d)(1)(C), 2(d)(2)(D), 2(g)(4), 2(h)(1)(C), or 24 2(h)(3)(C) of this Act, or subsection (c)(1) of this 25 section may be settled and cleared through an entity f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00698 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 699 1 listed in subsections (a) or (b) of section 409 of the 2 Federal Deposit Insurance Corporation Improvement 3 Act of 1991. 4 ‘‘(2) WAIVER OF CLEARING REQUIREMENT.— 5 ‘‘(A) The Commission, in its discretion, 6 may exempt an agreement, contract, or trans- 7 action, or class thereof, that would otherwise be 8 required by section 2(d)(1)(C), 2(d)(2)(D), 9 2(g)(4), 2(h)(1)(C), or 2(h)(3)(C) of this Act, 10 or subsection (c)(1) of this section to be settled 11 and cleared through a derivatives clearing orga- 12 nization registered with the Commission from 13 such requirement. 14 ‘‘(B) In granting exemptions pursuant to 15 subparagraph (A), the Commission shall consult 16 with the Securities and Exchange Commission 17 and the Board of Governors of the Federal Re- 18 serve System regarding exemptions that relate 19 to excluded commodities or entities for which 20 the Securities Exchange Commission or the 21 Board of Governors of the Federal Reserve Sys- 22 tem serve as the primary regulator. 23 ‘‘(C) Before granting an exemption pursu- 24 ant to subparagraph (A), the Commission shall f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00699 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 700 1 find that the agreement, contract, or trans- 2 action, or class thereof— 3 ‘‘(i) is highly customized as to its ma- 4 terial terms and conditions; 5 ‘‘(ii) is transacted infrequently; 6 ‘‘(iii) does not serve a significant 7 price-discovery function in the market- 8 place; and 9 ‘‘(iv) is being entered into by parties 10 who can demonstrate the financial integ- 11 rity of the agreement, contract, or trans- 12 action and their own financial integrity, as 13 such terms and standards are determined 14 by the Commission. The standards may in- 15 clude, with respect to any federally regu- 16 lated financial entity for which net capital 17 requirements are imposed, a net capital re- 18 quirement associated with any agreement, 19 contract, or transaction subject to an ex- 20 emption from the clearing requirement 21 that is higher than the net capital require- 22 ment that would be associated with such a 23 transaction were it cleared 24 ‘‘(D) Any agreement, contract, or trans- 25 action, or class thereof, which is exempted pur- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00700 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 701 1 suant to subparagraph (A) shall be reported to 2 the Commission in a manner designated by the 3 Commission, or to such other entity the Com- 4 mission deems appropriate. 5 ‘‘(E) The Commission, the Securities and 6 Exchange Commission and the Board of Gov- 7 ernors of the Federal Reserve System shall 8 enter into a memorandum of understanding by 9 which the information reported to the Commis- 10 sion pursuant to subparagraph (D) with regard 11 to excluded commodities or entities for which 12 the Securities Exchange Commission or the 13 Board of Governors of the Federal Reserve Sys- 14 tem serve as the primary regulator may be pro- 15 vided to the other agencies. 16 ‘‘(g) SPOT FORWARD EXCLUSION.—The settle- AND 17 ment and clearing requirements of section 2(d)(1)(C), 18 2(d)(2)(D), 2(g)(4), 2(h)(1)(C), 2(h)(3)(C), or 4(c)(1) 19 shall not apply to an agreement, contract, or transaction 20 of any cash commodity for immediate or deferred ship- 21 ment or delivery, as defined by the Commission.’’. 22 (c) ADDITIONAL REQUIREMENTS APPLICABLE TO 23 APPLICANTS REGISTRATION DERIVATIVE FOR AS A 24 CLEARING ORGANIZATION.—Section 5b(c)(2) of such Act f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00701 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 702 1 (7 U.S.C. 7a-1(c)(2)) is amended by adding at the end 2 the following: 3 ‘‘(O) DISCLOSURE OF GENERAL INFORMA- 4 TION.—The applicant shall disclose publicly and 5 to the Commission information concerning— 6 ‘‘(i) the terms and conditions of con- 7 tracts, agreements, and transactions 8 cleared and settled by the applicant; 9 ‘‘(ii) the conventions, mechanisms, 10 and practices applicable to the contracts, 11 agreements, and transactions; 12 ‘‘(iii) the margin-setting methodology 13 and the size and composition of the finan- 14 cial resource package of the applicant; and 15 ‘‘(iv) other information relevant to 16 participation in the settlement and clearing 17 activities of the applicant. 18 ‘‘(P) DAILY PUBLICATION OF TRADING IN- 19 FORMATION.—The applicant shall make public 20 daily information on settlement prices, volume, 21 and open interest for contracts settled or 22 cleared pursuant to the requirements of 23 2(d)(1)(C), 2(d)(2)(D), 2(g)(4), 2(h)(1)(C), 24 2(h)(3)(C) or 4(c)(1) of this Act by the appli- 25 cant if the Commission determines that the f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00702 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 703 1 contracts perform a significant price discovery 2 function for transactions in the cash market for 3 the commodity underlying the contracts. 4 ‘‘(Q) FITNESS STANDARDS.—The applicant 5 shall establish and enforce appropriate fitness 6 standards for directors, members of any dis- 7 ciplinary committee, and members of the appli- 8 cant, and any other persons with direct access 9 to the settlement or clearing activities of the 10 applicant, including any parties affiliated with 11 any of the persons described in this subpara- 12 graph.’’. 13 (d) AMENDMENTS.— 14 (1) Section 409 of the Federal Deposit Insur- 15 ance Corporation Improvement Act of 1991 (12 16 U.S.C. 4422) is amended by adding at the end the 17 following: 18 ‘‘(c) CLEARING REQUIREMENT.—A multilateral 19 clearing organization described in subsections (a) or (b) 20 of this section shall comply with requirements similar to 21 the requirements of sections 5b and 5c or the Commodity 22 Exchange Act.’’. 23 (2) Section 407 of the Legal Certainty for 24 Bank Products Act of 2000 (7 U.S.C. 27e) is 25 amended by inserting ‘‘and the settlement and clear- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00703 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 704 1 ing requirements of sections 2(d)(1)(C), 2(d)(2)(D), 2 2(g)(4), 2(h)(1)(C), 2(h)(3)(C), and 4(c)(1) of such 3 Act’’ after ‘‘the clearing of covered swap agree- 4 ments’’. 5 (e) EFFECTIVE DATE.—The amendments made by 6 this section shall take effect 150 days after the date of 7 the enactment of this Act. 8 (f) TRANSITION RULE.—Any agreement, contract, or 9 transaction entered into before the date of the enactment 10 of this Act or within 150 days after such date of enact- 11 ment, in reliance on subsection (d), (g), (h)(1), or (h)(3) 12 of section 2 of the Commodity Exchange Act or any other 13 exemption issued by the Commission Futures Trading 14 Commission by rule, regulation, or order shall, within 90 15 days after such date of enactment, unless settled and 16 cleared through an entity registered with the Commission 17 as a derivatives clearing organization or another clearing 18 entity pursuant to section 4(f) of such Act, be reported 19 to the Commission in a manner designated by the Com- 20 mission, or to such other entity as the Commission deems 21 appropriate. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00704 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 705 1 SEC. 355. LIMITATION ON ELIGIBILITY TO PURCHASE A 2 CREDIT DEFAULT SWAP. 3 (a) IN GENERAL.—Section 4c of the Commodity Ex- 4 change Act (7 U.S.C. 6c) is amended by adding at the 5 end the following: 6 ‘‘(h) LIMITATION ELIGIBILITY PURCHASE ON TO A 7 CREDIT DEFAULT SWAP.—It shall be unlawful for any 8 person to enter into a credit default swap unless the per- 9 son— 10 ‘‘(1) owns a credit instrument which is insured 11 by the credit default swap; 12 ‘‘(2) would experience financial loss if an event 13 that is the subject of the credit default swap occurs 14 with respect to the credit instrument; and 15 ‘‘(3) meets such minimum capital adequacy 16 standards as may be established by the Commission, 17 in consultation with the Board of Governors of the 18 Federal Reserve System, or such more stringent 19 minimum capital adequacy standards as may be es- 20 tablished by or under the law of any State in which 21 the swap is originated or entered into, or in which 22 possession of the contract involved takes place.’’. 23 (b) ELIMINATION PREEMPTION STATE OF OF 24 BUCKETING LAWS REGARDING NAKED CREDIT DEFAULT 25 SWAPS.—Section 12(e)(2)(B) of such Act (7 U.S.C. 26 16(e)(2)(B)) is amended by inserting ‘‘(other than a credit f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00705 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 706 1 default swap in which the purchaser of the swap would 2 not experience financial loss if an event that is the subject 3 of the swap occurred)’’ before ‘‘that is excluded’’. 4 (c) DEFINITION CREDIT DEFAULT SWAP.—Sec- OF 5 tion 1a of such Act (7 U.S.C. 1a), as amended by section 6 351(a) of this Act, is amended by adding at the end the 7 following: 8 ‘‘(37) CREDIT DEFAULT SWAP.—the term ‘cred- 9 it default swap’ means a contract which insures a 10 party to the contract against the risk that an entity 11 may experience a loss of value as a result of an 12 event specified in the contract, such as a default or 13 credit downgrade. A credit default swap that is trad- 14 ed on or cleared by a registered entity shall be ex- 15 cluded from the definition of a security as defined in 16 this Act and in section 2(a)(1) of the Securities Act 17 of 1933 or section 3(a)(10) of the Securities Ex- 18 change Act of 1934, except it shall be deemed a se- 19 curity solely for purpose of enforcing prohibitions 20 against insider trading in sections 10 and 16 of the 21 Securities Exchange Act of 1934.’’. 22 (d) EFFECTIVE DATE.—The amendments made by 23 this section shall be effective for credit default swaps (as 24 defined in section 1a(37) of the Commodity Exchange Act) f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00706 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 707 1 entered into after 60 days after the date of the enactment 2 of this section. 3 SEC. 356. TRANSACTION FEES. 4 (a) IN GENERAL.—Section 12 of the Commodity Ex- 5 change Act (7 U.S.C. 16) is amended by redesignating 6 subsections (e), (f), and (g) as subsections (f), (g), and 7 (h), respectively, and inserting after subsection (d) the fol- 8 lowing: 9 ‘‘(e) CLEARING FEES.— 10 ‘‘(1) IN GENERAL.—The Commission shall, in 11 accordance with this subsection, charge and collect 12 from each registered clearing organization, and each 13 such organization shall pay to the Commission, 14 transaction fees at a rate calculated to recover the 15 costs to the Federal Government of the supervision 16 and regulation of futures markets, except those di- 17 rectly related to enforcement. 18 ‘‘(2) FEES ASSESSED PER SIDE OF CLEARED 19 CONTRACTS.— 20 ‘‘(A) IN GENERAL.—The Commission shall 21 determine the fee rate referred to in paragraph 22 (1), and shall apply the fee rate per side of any 23 transaction cleared. 24 ‘‘(B) AUTHORITY TO DELEGATE.— The 25 Commission may determine the procedures by f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00707 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 708 1 which the fee rate is to be applied on the trans- 2 actions subject to the fee, or delegate the au- 3 thority to make the determination to any appro- 4 priate derivatives clearing organization. 5 ‘‘(3) EXEMPTIONS.—The Commision may not 6 impose a fee under paragraph (1) on— 7 ‘‘(A) a class of contracts or transactions if 8 the Commission finds that it is in the public in- 9 terest to exempt the class from the fee; or 10 ‘‘(B) a contract or transaction cleared by 11 a registered derivatives clearing organization 12 that is— 13 ‘‘(i) subject to fees under section 31 14 of the Securities Exchange Act of 1934; or 15 ‘‘(ii) a security as defined in the Secu- 16 rities Act of 1933 or the Securities Ex- 17 change Act of 1934. 18 ‘‘(4) DATES FOR PAYMENT OF FEES.—The fees 19 imposed under paragraph (1) shall be paid on or be- 20 fore— 21 ‘‘(A) March 15 of each year, with respect 22 to transactions occurring on or after the pre- 23 ceding September 1 and on or before the pre- 24 ceding December 31; and f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00708 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 709 1 ‘‘(B) September 15 of each year, with re- 2 spect to transactions occurring on or after the 3 preceding January 1 and on or before the pre- 4 ceding August 31. 5 ‘‘(5) ANNUAL ADJUSTMENT OF FEE RATES.— 6 ‘‘(A) IN GENERAL.—Not later than April 7 30 of each fiscal year , the Commission shall, 8 by order, adjust each fee rate determined under 9 paragraph (2) for the fiscal year to a uniform 10 adjusted rate that, when applied to the esti- 11 mated aggregate number of cleared sides of 12 transactions for the fiscal year, is reasonably 13 likely to produce aggregate fee receipts under 14 this subsection for the fiscal year equal to the 15 target offsetting receipt amount for the fiscal 16 year. 17 ‘‘(B) DEFINITIONS.—In subparagraph (A): 18 ‘‘(i) ESTIMATED AGGREGATE NUMBER 19 OF CLEARED SIDES OF TRANSACTIONS.— 20 The term ‘estimated aggregate number of 21 cleared sides of transactions’ means, with 22 respect to a fiscal year, the aggregate 23 number of cleared sides of transactions to 24 be cleared by registered derivatives clear- 25 ing organizations during the fiscal year, as f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00709 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 710 1 estimated by the Commission, after con- 2 sultation with the Office of Management 3 and Budget, using the methodology re- 4 quired for making projections pursuant to 5 section 257 of the Balanced Budget and 6 Emergency Deficit Control Act of 1985. 7 ‘‘(ii) TARGET OFFSETTING RECEIPT 8 AMOUNT.—The term ‘target offsetting re- 9 ceipt amount’ means, with respect to a fis- 10 cal year, the total level of Commission 11 budget authority for all non-enforcement 12 activities of the Commission, as contained 13 in the regular appropriations Acts for the 14 fiscal year. 15 ‘‘(C) NO JUDICIAL REVIEW.—An adjusted 16 fee rate prescribed under subparagraph (A) 17 shall not be subject to judicial review. 18 ‘‘(6) PUBLICATION.—Not later than April 30 of 19 each fiscal year, the Commission shall cause to be 20 published in the Federal Register notices of the fee 21 rates applicable under this subsection for the suc- 22 ceeding fiscal year, and any estimate or projection 23 on which the fee rates are based. 24 ‘‘(7) INAPPLICABILITY PROCE- OF CERTAIN 25 RULES.—Section 553 of title 5, United DURAL f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00710 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 711 1 States Code, shall not apply with respect to any ex- 2 ercise of authority under this subsection. 3 ‘‘(8) ESTABLISHMENT OF FUTURES AND OP- 4 TIONS TRANSACTION FEE ACCOUNT; DEPOSIT OF 5 FEES.—There is established in the Treasury of the 6 United States an account which shall be known as 7 the ‘Futures and Options Transaction Fee Account’. 8 All fees collected under this subsection for a fiscal 9 year shall be deposited in the account. Amounts in 10 the account are authorized to be appropriated to 11 fund the expenditures of the Commission.’’. 12 (b) EFFECTIVE DATE.—The amendments made by 13 subsection (a) shall apply to fiscal years beginning 30 or 14 more days after the date of the enactment of this Act. 15 (c) TRANSITION RULE.—If this section becomes law 16 after March 31 and before September 1 of a fiscal year, 17 then paragraphs (5)(A) and (6) of section 12(e) of the 18 Commodity Exchange Act shall be applied, in the case of 19 the 1st fiscal year beginning after the date of the enact- 20 ment of this Act, by substituting ‘‘August 31’’ for ‘‘April 21 30’’. 22 SEC. 357. NO EFFECT ON AUTHORITY OF THE FEDERAL 23 TRADE COMMISSION. 24 Nothing in this subtitle shall be interpreted to affect 25 or diminish the jurisdiction or authority of the Federal f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00711 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 712 1 Trade Commission with respect to its authorities under 2 the Federal Trade Commission Act (15 U.S.C. 41 et seq.) 3 or the Energy Independence and Security Act of 2007 4 (Public Law 110–140) to obtain information, to carry out 5 enforcement activities or otherwise carry out the respon- 6 sibilities of the Federal Trade Commission. 7 SEC. 358. REGULATION OF CARBON DERIVATIVES MAR- 8 KETS. 9 (a) DEFAULT RULE.—Section 2 of the Commodity 10 Exchange Act (7 U.S.C. 2), as amended by section 352 11 of this Act, is amended by adding at the end the following: 12 ‘‘(k) The Commission shall have jurisdiction over the 13 establishment, operations, and oversight of markets for 14 regulated allowance derivatives (as defined in section 401 15 of the Federal Power Act (16 U.S.C. 791a and following), 16 and shall provide for the establishment, operation, and 17 oversight of the markets in accordance with the same reg- 18 ulations that apply under this Act to included energy 19 transactions.’’. 20 (b) PRESIDENTIAL DETERMINATIONS.—To the ex- 21 tent that the President delegates the authority to promul- 22 gate regulations for the establishment, operation, and 23 oversight of all markets for regulated allowance derivatives 24 to a Federal agency other than the Commodity Futures 25 Trading Commission pursuant to section 401 of the Fed- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00712 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 713 1 eral Power Act, such determination shall supersede sub- 2 section (a). To the extent that the President determines 3 that regulations promulgated pursuant to section 4 401(c)(2) of the Federal Power Act would provide for 5 more stringent and effective market oversight, such regu- 6 lations shall supersede subsection (a). Nothing in this sec- 7 tion shall be construed to affect the operation of the de- 8 fault rules established in section 401(c)(4) of the Federal 9 Power Act. TITLE IV—TRANSITIONING TO A 10 CLEAN ENERGY ECONOMY 11 Subtitle A—Industrial Sector 12 13 SEC. 401. ENSURING REAL REDUCTIONS IN INDUSTRIAL 14 EMISSIONS. 15 Title VII of the Clean Air Act is amended by insert- 16 ing after part E the following new part: 17 ‘‘PART F—ENSURING REAL REDUCTIONS IN 18 INDUSTRIAL EMISSIONS 19 ‘‘SEC. 761. PURPOSES. 20 ‘‘(a) PURPOSE PART.—The purposes of this part OF 21 are— 22 ‘‘(1) to promote a strong global effort to signifi- 23 cantly reduce greenhouse gas emissions, and, 24 through this global effort, stabilize greenhouse gas 25 concentrations in the atmosphere at a level that will f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00713 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 714 1 prevent dangerous anthropogenic interference with 2 the climate system; and 3 ‘‘(2) to prevent an increase in greenhouse gas 4 emissions in countries other than the United States 5 as a result of direct and indirect compliance costs in- 6 curred under this title. 7 ‘‘(b) PURPOSES SUBPART 1.—The purposes of OF 8 subpart 1 are additionally— 9 ‘‘(1) to rebate the owners and operators of enti- 10 ties in eligible domestic industrial sectors for their 11 greenhouse gas emission costs incurred under this 12 title, but not for costs associated with other related 13 or unrelated market dynamics; 14 ‘‘(2) to design such rebates in a way that will 15 prevent carbon leakage while also rewarding innova- 16 tion and facility-level investments in energy effi- 17 ciency performance improvements; and 18 ‘‘(3) to eliminate or reduce distribution of emis- 19 sion allowances under this part when such distribu- 20 tion is no longer necessary to prevent carbon leakage 21 from eligible industrial sectors. 22 ‘‘SEC. 762. INTERNATIONAL NEGOTIATIONS. 23 ‘‘(a) FINDING.—Congress finds that the purposes of 24 this part, as set forth in section 761, can be most effec- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00714 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 715 1 tively addressed and achieved through agreements nego- 2 tiated between the United States and foreign countries. 3 ‘‘(b) STATEMENT POLICY.—It is the policy of the OF 4 United States to work proactively under the United Na- 5 tions Framework Convention on Climate Change, and in 6 other appropriate forums, to establish binding agreements, 7 including sectoral agreements, committing all major 8 greenhouse gas-emitting nations to contribute equitably to 9 the reduction of global greenhouse gas emissions. 10 ‘‘(c) NOTIFICATION FOREIGN COUNTRIES.—Not OF 11 later than January 1, 2020, the President shall notify for- 12 eign countries that an International Reserve Allowance 13 Program, as described in subpart 2, may apply to primary 14 products produced in a foreign country by a sector for 15 which the President has made a determination described 16 in section 767(c). 17 ‘‘SEC. 763. DEFINITIONS. 18 ‘‘In this part: 19 ‘‘(1) CARBON LEAKAGE.—The term ‘carbon 20 leakage’ means any substantial increase (as deter- 21 mined by the Administrator) in greenhouse gas 22 emissions by industrial entities located in other 23 countries if such increase is caused by an incre- 24 mental cost of production increase in the United f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00715 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 716 1 States resulting from the implementation of this 2 title. 3 ‘‘(2) ELIGIBLE SECTOR.—The INDUSTRIAL 4 term ‘eligible industrial sector’ means an industrial 5 sector determined by the Administrator under sec- 6 tion 764(b) to be eligible to receive emission allow- 7 ance rebates under subpart 1. 8 ‘‘(3) INDUSTRIAL SECTOR.—The term ‘indus- 9 trial sector’ means any sector that is in the manu- 10 facturing sector (as defined in NAICS codes 31, 32, 11 and 33). 12 ‘‘(4) NAICS.—The term ‘NAICS’ means the 13 North American Industrial Classification System of 14 2002. 15 ‘‘(5) OUTPUT.—The term ‘output’ means the 16 total tonnage or other standard unit of production 17 (as determined by the Administrator) produced by 18 an entity in an industrial sector. The output of the 19 cement sector is hydraulic cement, and not clinker. 20 ‘‘(6) PRIMARY PRODUCT.—The term ‘primary 21 product’ means a product manufactured by an eligi- 22 ble industrial sector that is— 23 ‘‘(A) iron, steel, steel mill products (includ- 24 ing pipe and tube), aluminum, cement, glass 25 (including flat, container, and specialty glass f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00716 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 717 1 and fiberglass), pulp, paper, chemicals, or in- 2 dustrial ceramics; or 3 ‘‘(B) any other manufactured product that 4 is sold in bulk for purposes of further manufac- 5 ture or inclusion in a finished product. 6 ‘‘Subpart 1—Emission Allowance Rebate Program 7 ‘‘SEC. 764. ELIGIBLE INDUSTRIAL SECTORS. 8 ‘‘(a) LIST.— 9 ‘‘(1) INITIAL LIST.—Not later than June 30, 10 2011, the Administrator shall publish in the Federal 11 Register a list of eligible industrial sectors pursuant 12 to subsection (b). Such list shall include the amount 13 of the emission allowance rebate per unit of produc- 14 tion that shall be provided to entities in each eligible 15 industrial sector in the following two calendar years 16 pursuant to section 765. 17 ‘‘(2) SUBSEQUENT LISTS.—Not later than Feb- 18 ruary 1, 2013, and every four years thereafter, the 19 Administrator shall publish in the Federal Register 20 an updated version of the list published under para- 21 graph (1). 22 ‘‘(b) ELIGIBLE INDUSTRIAL SECTORS.— 23 ‘‘(1) IN GENERAL.—Not later than June 30, 24 2011, the Administrator shall promulgate a rule des- 25 ignating, based on the criteria under paragraph (2), f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00717 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 718 1 the industrial sectors eligible for emission allowance 2 rebates under this subpart. 3 ‘‘(2) PRESUMPTIVELY ELIGIBLE INDUSTRIAL 4 SECTORS.— 5 ‘‘(A) ELIGIBILITY CRITERIA.—An owner or 6 operator of an entity shall be eligible to receive 7 emission allowance rebates under this subpart if 8 such entity is in an industrial sector that is in- 9 cluded in a six-digit classification of the NAICS 10 that meets the criteria in both clauses (i) and 11 (ii), or the criteria in clause (iii). 12 ‘‘(i) ENERGY OR GREENHOUSE GAS 13 INTENSITY.—As determined by the Admin- 14 istrator, the industrial sector had— 15 ‘‘(I) an energy intensity of at 16 least 5 percent, calculated by dividing 17 the cost of purchased electricity and 18 fuel costs of the sector by the value of 19 the shipments of the sector, based on 20 data described in subparagraph (E); 21 or 22 ‘‘(II) a greenhouse gas intensity 23 of at least 5 percent, calculated by di- 24 viding— f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00718 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 719 1 ‘‘(aa) the number 20 multi- 2 plied by the number of tons of 3 carbon dioxide equivalent green- 4 house gas emissions (including 5 direct emissions from fuel com- 6 bustion, process emissions, and 7 indirect emissions from the gen- 8 eration of electricity used to 9 produce the output of the sector) 10 of the sector; by 11 ‘‘(bb) the value of the ship- 12 ments of the sector, based on 13 data described in subparagraph 14 (E). 15 ‘‘(ii) TRADE INTENSITY.—As deter- 16 mined by the Administrator, the industrial 17 sector had a trade intensity of at least 15 18 percent, calculated by dividing the value of 19 the total imports and exports of such sec- 20 tor by the value of the shipments plus the 21 value of imports of such sector, based on 22 data described in subparagraph (E). 23 ‘‘(iii) VERY HIGH ENERGY OR GREEN- 24 HOUSE GAS INTENSITY.—As determined by 25 the Administrator, the industrial sector f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00719 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 720 1 had an energy or greenhouse gas intensity, 2 as calculated under clause (i)(I) or (II), of 3 at least 20 percent. 4 ‘‘(B) IRON AND STEEL SECTOR.—The Ad- 5 ministrator shall consider as in different indus- 6 trial sectors— 7 ‘‘(i) entities using integrated iron and 8 steelmaking technologies (including coke 9 ovens, blast furnaces, and other iron-mak- 10 ing technologies); and 11 ‘‘(ii) entities using electric arc furnace 12 technologies. 13 ‘‘(C) METAL PRODUCTION CLASSIFIED 14 UNDER MORE THAN ONE NAICS CODE.—In de- 15 termining eligibility under this subsection, the 16 Administrator shall— 17 ‘‘(i) aggregate data for the 18 beneficiation or other processing of iron 19 and copper ores with subsequent steps in 20 the process of metal manufacturing regard- 21 less of the NAICS code under which such 22 activity is classified; and 23 ‘‘(ii) aggregate data for the manufac- 24 turing of steel with the manufacturing of f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00720 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 721 1 steel pipe and tube made from purchased 2 steel in a nonintegrated process. 3 ‘‘(D) EXCLUSION.—The petroleum refining 4 sector shall not be an eligible industrial sector. 5 ‘‘(E) DATA SOURCES.— 6 ‘‘(i) ELECTRICITY AND FUEL COSTS, 7 SHIPMENTS.—The Adminis- VALUE OF 8 trator shall determine electricity and fuel 9 costs and the value of shipments under 10 this subsection from data from the United 11 States Census of Mineral Industries and 12 the United States Census Annual Survey 13 of Manufacturers. The Administrator shall 14 take the average of data from as many of 15 the years of 2004, 2005, and 2006 for 16 which such data are available. If such data 17 are unavailable, the Administrator shall 18 make a determination based upon 2002 or 19 2006 data from the most detailed indus- 20 trial classification level of Energy Informa- 21 tion Agency’s Manufacturing Energy Con- 22 sumption Survey (using 2006 data if it is 23 available) and the 2002 or 2007 Economic 24 Census of the United States (using 2007 25 data if it is available). If data from the f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00721 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 722 1 Manufacturing Energy Consumption Sur- 2 vey are unavailable for any sector at the 3 six-digit classification level in the NAICS, 4 then the Administrator may extrapolate 5 the information necessary to determine the 6 eligibility of a sector under this paragraph 7 from available Manufacturing Energy Con- 8 sumption Survey data pertaining to a 9 broader industrial category classified in the 10 NAICS. Fuel cost data shall not include 11 the cost of fuel used as feedstock by an in- 12 dustrial sector. 13 ‘‘(ii) IMPORTS EXPORTS.—The AND 14 Administrator shall base the value of im- 15 ports and exports under this subsection on 16 United States International Trade Com- 17 mission data. The Administrator shall take 18 the average of data from as many of the 19 years of 2004, 2005, and 2006 for which 20 such data are available. 21 ‘‘(iii) PERCENTAGES.—The Adminis- 22 trator shall round the energy intensity, 23 greenhouse gas intensity, and trade inten- 24 sity percentages under subparagraph (A) 25 to the nearest whole number. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00722 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 723 1 ‘‘(iv) GREENHOUSE GAS EMISSION 2 CALCULATIONS.—When calculating the 3 tons of carbon dioxide equivalent green- 4 house gas emissions for each sector under 5 subparagraph (A)(i)(II)(aa), the Adminis- 6 trator may, to the extent necessary with 7 respect to a sector, use economic and engi- 8 neering models and the best available in- 9 formation on technology performance levels 10 for such sector. 11 ‘‘(3) ADMINISTRATIVE DETERMINATION OF AD- 12 DITIONAL ELIGIBLE INDUSTRIAL SECTORS.— 13 ‘‘(A) INDIVIDUAL SHOWING PETITION.— 14 ‘‘(i) PETITION.—The owner or oper- 15 ator of an entity in an industrial sector 16 may petition the Administrator to des- 17 ignate as eligible industrial sectors under 18 this subpart an entity or a group of enti- 19 ties that— 20 ‘‘(I) represent a subsector of a 21 six-digit section of the NAICS code; 22 and 23 ‘‘(II) meet the eligibility criteria 24 in both clauses (i) and (ii) of para- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00723 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 724 1 graph (2)(A), or the eligibility criteria 2 in clause (iii) of paragraph (2)(A). 3 ‘‘(ii) DATA.—In making a determina- 4 tion under this subparagraph, the Admin- 5 istrator shall consider data submitted by 6 the petitioner that is specific to the entity, 7 data solicited by the Administrator from 8 other entities in the subsector, if such 9 other entities exist, and data specified in 10 paragraph (2)(E). 11 ‘‘(iii) BASIS OF SUBSECTOR DETER- 12 MINATION.—The Administrator shall de- 13 termine an entity or group of entities to be 14 a subsector of a six-digit section of the 15 NAICS code based only upon the products 16 manufactured and not the industrial proc- 17 ess by which the products are manufac- 18 tured, except that the Administrator may 19 determine an entity or group of entities 20 that manufacture a product from a virgin 21 material to be a separate subsector from 22 another entity or group of entities that 23 manufacture the same product from recy- 24 cled material. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00724 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 725 1 ACTION.—The Adminis- ‘‘(iv) FINAL 2 trator shall take final action on such peti- 3 tion no later than 6 months after the peti- 4 tion is received by the Administrator. 5 ‘‘(B) UPDATED TRADE INTENSITY DATA.— 6 The Administrator shall designate as eligible to 7 receive emission allowance rebates under this 8 subpart an industrial sector that— 9 ‘‘(i) met the energy or greenhouse gas 10 intensity criteria in paragraph (2)(A)(i) as 11 of the date of promulgation of the rule 12 under paragraph (1); and 13 ‘‘(ii) meets the trade intensity criteria 14 in paragraph (2)(A)(ii), using data from 15 any year after 2006. 16 ‘‘(C) USE OF MOST RECENT DATA.—In de- 17 termining whether to designate a sector or sub- 18 sector as an eligible industrial sector under this 19 paragraph, the Administrator shall use the 20 most recent data available from the sources de- 21 scribed in paragraph (2)(E), rather than the 22 data from the years specified in paragraph 23 (2)(E), to determine the trade intensity of such 24 sector or subsector, but only for determining 25 such trade intensity. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00725 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 726 1 ‘‘SEC. 765. DISTRIBUTION OF EMISSION ALLOWANCE RE- 2 BATES. 3 ‘‘(a) DISTRIBUTION SCHEDULE.— 4 ‘‘(1) IN GENERAL.—For each vintage year, the 5 Administrator shall distribute allowances pursuant 6 to this section no later than October 31 of the pre- 7 ceding calendar year. The Administrator shall make 8 such annual distributions to the owners and opera- 9 tors of each entity in an eligible industrial sector in 10 the amount of emission allowances calculated under 11 subsection (b), except that— 12 ‘‘(A) for vintage years 2012 and 2013, the 13 distribution for a covered entity shall be the en- 14 tity’s indirect carbon factor as calculated under 15 subsection (b)(3); and 16 ‘‘(B) for vintage year 2026 and thereafter, 17 the distribution shall be the amount calculated 18 under subsection (b) multiplied by, except as 19 modified by the President pursuant to section 20 767(c)(3)(A) for a sector— 21 ‘‘(i) 90 percent for vintage year 2026; 22 ‘‘(ii) 80 percent for vintage year 23 2027; 24 ‘‘(iii) 70 percent for vintage year 25 2028; f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00726 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 727 1 ‘‘(iv) 60 percent for vintage year 2 2029; 3 ‘‘(v) 50 percent for vintage year 2030; 4 ‘‘(vi) 40 percent for vintage year 5 2031; 6 ‘‘(vii) 30 percent for vintage year 7 2032; 8 ‘‘(viii) 20 percent for vintage year 9 2033; 10 ‘‘(ix) 10 percent for vintage year 11 2034; and 12 ‘‘(x) 0 percent for vintage year 2035 13 and thereafter. 14 ‘‘(2) RESUMPTION REDUCTION.—If the OF 15 President has modified the percentage stated in 16 paragraph (1)(B) under section 767(c)(3)(A), and 17 the President subsequently makes a determination 18 under section 767(b) for an eligible industrial sector 19 that more than 70 percent of global output for that 20 sector is produced or manufactured in countries that 21 have met at least one of the criteria in that sub- 22 section, then the reduction schedule set forth in 23 paragraph (1)(B) of this subsection shall begin in 24 the next vintage year, with the percentage reduction f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00727 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 728 1 based on the amount of the distribution of emission 2 allowances under this section in the previous year. 3 ‘‘(3) NEWLY ELIGIBLE SECTORS.—In addition 4 to receiving a distribution of emission allowances 5 under this section in the first distribution occurring 6 after an industrial sector is designated as eligible 7 under section 764(b)(3), the owner or operator of an 8 entity in that eligible industrial sector may receive a 9 prorated share of any emission allowances made 10 available for distribution under this section that 11 were not distributed for the year in which the peti- 12 tion for eligibility was granted under section 13 764(b)(3). 14 ‘‘(b) CALCULATION DIRECT INDIRECT CAR- OF AND 15 FACTORS.— BON 16 ‘‘(1) IN GENERAL.— 17 ‘‘(A) COVERED ENTITIES.—Except as pro- 18 vided in subsection (a), for covered entities, the 19 amount of emission allowance rebates shall be 20 based on the sum of the covered entity’s direct 21 and indirect carbon factors. 22 ‘‘(B) OTHER ENTITIES.—For ELIGIBLE 23 entities that are in eligible industrial sectors 24 but are not covered entities, the amount of f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00728 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 729 1 emission allowance rebates shall be based on 2 the entity’s indirect carbon factor. 3 ‘‘(C) NEW ENTITIES.—Not later than 2 4 years after the date of enactment of this title, 5 the Administrator shall issue regulations gov- 6 erning the distribution of emission allowance re- 7 bates for the first and second years of operation 8 of a new entity in an eligible industrial sector. 9 These regulations shall provide for— 10 ‘‘(i) the distribution of emission allow- 11 ance rebates to such entities based on com- 12 parable entities in the same sector; and 13 ‘‘(ii) an adjustment in the third and 14 fourth years of operation to reconcile the 15 total amount of emission allowance rebates 16 received during the first and second years 17 of operation to the amount the entity 18 would have received during the first and 19 second years of operation had the appro- 20 priate data been available. 21 ‘‘(2) DIRECT CARBON FACTOR.—The direct car- 22 bon factor for a covered entity for a vintage year is 23 the product of— f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00729 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 730 1 ‘‘(A) the average output of the covered en- 2 tity for the two years preceding the year of the 3 distribution; and 4 ‘‘(B) the most recent calculation of the av- 5 erage direct greenhouse gas emissions (ex- 6 pressed in tons of carbon dioxide equivalent) 7 per unit of output for all covered entities in the 8 sector, as determined by the Administrator 9 under paragraph (4). 10 ‘‘(3) INDIRECT CARBON FACTOR.— 11 ‘‘(A) IN GENERAL.—The indirect carbon 12 factor for an entity for a calendar year is the 13 product obtained by multiplying the average 14 output of the entity for the two years preceding 15 the years of the distribution by both the elec- 16 tricity emissions intensity factor determined 17 pursuant to subparagraph (B) and the elec- 18 tricity efficiency factor determined pursuant to 19 subparagraph (C) for the year concerned. 20 ‘‘(B) ELECTRICITY EMISSIONS INTENSITY 21 FACTOR.—Each person selling electricity to the 22 owner or operator of an entity in any sector 23 designated as an eligible industrial sector under 24 section 764(b) shall provide the owner or oper- 25 ator of the entity and the Administrator, on an f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00730 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 731 1 annual basis, the electricity emissions intensity 2 factor for the entity. The electricity emissions 3 intensity factor for the entity, expressed in tons 4 of carbon dioxide equivalents per kilowatt hour, 5 is determined by dividing— 6 ‘‘(i) the annual sum of the hourly 7 product of— 8 ‘‘(I) the electricity purchased by 9 the entity from that person in each 10 hour (expressed in kilowatt hours), 11 multiplied by 12 ‘‘(II) the cost the person selling 13 the electricity passes to the entity per 14 ton of carbon dioxide equivalent emit- 15 ted by the electricity provider per kilo- 16 watt hour, taking into account the en- 17 tity’s retail rate arrangements, by 18 ‘‘(ii) the total kilowatt hours of elec- 19 tricity purchased by the entity from that 20 person during that year. 21 ‘‘(C) ELECTRICITY EFFICIENCY FACTOR.— 22 The electricity efficiency factor is the average 23 amount of electricity (in kilowatt hours) used 24 per unit of output for all entities in the relevant 25 sector, as determined by the Administrator f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00731 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 732 1 based on the best available data, including data 2 provided under paragraph (6). 3 ‘‘(D) INDIRECT CARBON FACTOR REDUC- 4 TION.—If an electricity provider received a free 5 allocation of emission allowances pursuant to section ø782¿, the Administrator shall adjust 6 7 the indirect carbon factor to avoid rebates to 8 the eligible entity for costs that the Adminis- 9 trator determines were not incurred by the in- 10 dustrial entity because the allowances were free- 11 ly allocated to the eligible entity’s electricity 12 provider and used for the benefit of industrial 13 consumers. 14 ‘‘(4) GREENHOUSE GAS INTENSITY CALCULA- 15 TIONS.—The Administrator shall calculate the aver- 16 age direct greenhouse gas emissions (expressed in 17 tons of carbon dioxide equivalent) per unit of output 18 for all covered entities in each eligible industrial sec- 19 tor every four years using an average of the two 20 most recent years of the best available data. 21 ‘‘(5) ENSURING EFFICIENCY IMPROVEMENTS.— 22 When making greenhouse gas calculations, the Ad- 23 ministrator shall— 24 ‘‘(A) limit the average direct greenhouse 25 gas emissions per unit of output, calculated f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00732 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 733 1 under paragraph (4), for any eligible industrial 2 sector to an amount that is not greater than it 3 was in any previous calculation under this sub- 4 section; and 5 ‘‘(B) limit the electric emissions intensity 6 factor, calculated under paragraph (3)(B) and 7 resulting from a change in electricity supply, 8 for any entity to an amount that is not greater 9 than it was during any previous year. 10 ‘‘(6) DATA SOURCES.—For the purposes of this 11 subsection— 12 ‘‘(A) the Administrator shall use data from 13 the greenhouse gas registry, established under 14 section 713, where it is available; and 15 ‘‘(B) each owner or operator of an entity 16 in an eligible industrial sector and each depart- 17 ment, agency, and instrumentality of the 18 United States shall provide the Administrator 19 with such information as the Administrator 20 finds necessary to determine the direct carbon 21 factor and the indirect carbon factor for each 22 entity subject to this section. 23 ‘‘(c) TOTAL MAXIMUM DISTRIBUTION.—Notwith- 24 standing subsections (a) and (b), the Administrator shall 25 not distribute more allowances for any vintage year pursu- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00733 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 734 1 ant to this section than are allocated for use under this 2 part pursuant to section ø782¿ for that vintage year. For 3 any vintage year for which the total emission allowance 4 rebates calculated pursuant to this section exceed the 5 number of allowances allocated pursuant to section ø782¿, 6 the Administrator shall reduce each entity’s distribution 7 on a pro rata basis so that the total distribution under 8 this section equals the number of allowances allocated 9 under section ø782¿. 10 ‘‘Subpart 2—International Reserve Allowance 11 Program 12 ‘‘SEC. 766. INTERNATIONAL RESERVE ALLOWANCE PRO- 13 GRAM. 14 ‘‘(a) ESTABLISHMENT.— 15 ‘‘(1) IN GENERAL.—If the President takes an 16 action described in section 767(c)(3)(B) with respect 17 to a sector then, not later than 24 months after that 18 determination, the Administrator shall issue regula- 19 tions— 20 ‘‘(A) determining an appropriate price for 21 and offering for sale to United States importers 22 international reserve allowances; 23 ‘‘(B) requiring the submission of appro- 24 priate amounts of such allowances in conjunc- 25 tion with the importation into the United States f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00734 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 735 1 of a primary product produced or manufactured 2 by that sector; 3 ‘‘(C) exempting from the requirements of 4 subparagraph (B) primary products produced 5 in— 6 ‘‘(i) foreign countries that the United 7 Nations has identified as among the least 8 developed of developing countries; or 9 ‘‘(ii) foreign countries that the Presi- 10 dent has determined to be responsible for 11 less than 0.5 percent of total global green- 12 house gas emissions; and 13 ‘‘(D) prohibiting the introduction into 14 interstate commerce of a primary product with- 15 out submitting the required number of inter- 16 national reserve allowances in accordance with 17 such regulations, unless the product was pro- 18 duced by a covered entity under this title, or by 19 an entity that is or could be regulated under 20 this title. 21 ‘‘(2) PURPOSE OF PROGRAM.—The Adminis- 22 trator shall establish the program under paragraph 23 (1) in a manner that addresses, consistent with 24 international agreements to which the United States 25 is a party, the competitive imbalance in the costs of f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00735 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 736 1 producing or manufacturing primary products in in- 2 dustrial sectors resulting from the difference be- 3 tween— 4 ‘‘(A) the direct and indirect costs of com- 5 plying with this title; and 6 ‘‘(B) the direct and indirect costs, if any, 7 of complying in other countries with greenhouse 8 gas regulatory programs, requirements, export 9 tariffs, or other measures adopted or imposed 10 to reduce greenhouse gas emissions. 11 ‘‘(3) EMISSION REBATES.—The ALLOWANCE 12 Administrator shall take into account the value of 13 emission allowance rebates distributed under subpart 14 1 when making calculations under paragraph (2). 15 ‘‘(4) LIMITATION.—The International Reserve 16 Allowance Program may not begin before January 1, 17 2025. 18 ‘‘(b) COVERED ENTITIES.—International reserve al- 19 lowances may not be held by covered entities to comply 20 with section 722. 21 ‘‘Subpart 3—Presidential Determination 22 ‘‘SEC. 767. PRESIDENTIAL REPORTS AND DETERMINA- 23 TIONS. 24 ‘‘(a) REPORT.—Not later than January 1, 2018, the 25 President shall submit a report to Congress on the effec- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00736 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 737 1 tiveness of the distribution of emission allowance rebates 2 under subpart 1 in mitigating carbon leakage in industrial 3 sectors. Such report shall also include— 4 ‘‘(1) recommendations on how to better achieve 5 the purposes of this part, including an assessment of 6 the feasibility and usefulness of an International Re- 7 serve Allowance Program; and 8 ‘‘(2) an assessment of the amount and duration 9 of assistance, including distribution of free allow- 10 ances, being provided to eligible industrial sectors in 11 other developed countries to mitigate costs of com- 12 pliance with domestic greenhouse gas reduction pro- 13 grams in such countries. 14 ‘‘(b) PRESIDENTIAL DETERMINATION.—Not later 15 than June 30, 2022, and every four years thereafter, the 16 President, in consultation with the Administrator and 17 other appropriate agencies, shall determine, for each eligi- 18 ble industrial sector, whether more than 70 percent of 19 global output for that sector is produced or manufactured 20 in countries that have met at least one of the following 21 criteria: 22 ‘‘(1) The country is a party to an international 23 agreement to which the United States is a party 24 that includes a nationally enforceable greenhouse gas 25 emissions reduction commitment for that country f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00737 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 738 1 that is at least as stringent as that of the United 2 States. 3 ‘‘(2) The country is a party to a multilateral or 4 bilateral emission reduction agreement for that sec- 5 tor to which the United States is a party. 6 ‘‘(3) The country has an annual energy or 7 greenhouse gas intensity, as described in section 8 764(b)(2)(A)(i), for the sector that is equal to or 9 less than the energy or greenhouse gas intensity for 10 such sector in the United States in the most recent 11 calendar year for which data are available. 12 ‘‘(4) The country has implemented policies, in- 13 cluding sectoral caps, export tariffs, production fees, 14 electricity generation regulations, or greenhouse gas 15 emissions fees, that individually or collectively im- 16 pose an incremental increase on the cost of produc- 17 tion associated with greenhouse gas emissions from 18 the sector that is at least 60 percent of the cost of 19 complying with this title in the United States for 20 such sector, averaged over a two-year period. 21 ‘‘(c) EFFECT PRESIDENTIAL DETERMINATION.— OF 22 If the President makes a determination under subsection 23 (b) with respect to an eligible industrial sector that 70 24 percent or less of the global output for the sector is pro- 25 duced or manufactured in countries that have met one or f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00738 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 739 1 more of the criteria in subsection (b), then the President 2 shall, not later than June 30, 2022, and every four years 3 thereafter— 4 ‘‘(1) assess the extent to which the emission al- 5 lowance rebates provided pursuant to subpart 1 have 6 mitigated or addressed, or could mitigate or address, 7 carbon leakage in that sector; 8 ‘‘(2) assess the extent to which an International 9 Reserve Allowance Program has mitigated or ad- 10 dressed, or could mitigate or address, carbon leakage 11 in that sector and the feasibility of establishing such 12 a program; and 13 ‘‘(3) with respect to that sector— 14 ‘‘(A) modify the percentage by which direct 15 and indirect carbon factors will be multiplied 16 under section 765(a)(1)(B); 17 ‘‘(B) implement an International Reserve 18 Allowance Program under section 766 for the 19 products of the sector; or 20 ‘‘(C) take the actions in both subparagraph 21 (A) and (B). 22 ‘‘(d) REPORT CONGRESS.—Not later than June TO 23 30, 2022, and every four years thereafter, the President 24 shall transmit to the Congress a report providing notice 25 of any determination made under subsection (b), explain- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00739 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 740 1 ing the reasons for such determination, and identifying the 2 actions taken by the President under subsection (c). 3 ‘‘(e) LIMITATION.—The President may only imple- 4 ment an International Reserve Allowance Program for sec- 5 tors producing primary products.’’. 6 SEC. 402. ALLOCATIONS TO PETROLEUM REFINERIES. 7 Title VII of the Clean Air Act is amended by insert- 8 ing after part F the following new part: 9 ‘‘PART G—PETROLEUM REFINERIES 10 ‘‘SEC. 771. ALLOCATIONS TO PETROLEUM REFINERIES. 11 ‘‘(a) OUTPUT.—In this section, the term ‘output’ 12 means the total tonnage or other standard unit of produc- 13 tion (as determined by the Administrator) produced by a 14 petroleum refinery. 15 ‘‘(b) IN GENERAL.—For each vintage year between 16 2014 and 2026, the Administrator shall distribute allow- 17 ances pursuant to this section to owners and operators of 18 petroleum refineries in the United States. 19 ‘‘(c) DISTRIBUTION SCHEDULE.—The Administrator 20 shall distribute emission allowances of each vintage year 21 no later than October 31 of the preceding calendar year. 22 ‘‘(d) CALCULATION EMISSION ALLOWANCE RE- OF 23 BATES.— 24 ‘‘(1) IN GENERAL.—The amount of emission al- 25 lowance rebates distributed to each refinery shall be f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00740 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 741 1 based on the sum of the refinery’s direct and indi- 2 rect carbon factors. 3 ‘‘(2) NEW REFINERIES.—Not later than 2 years 4 after the date of enactment of this section, the Ad- 5 ministrator shall issue regulations governing the dis- 6 tribution of emission allowance rebates for the first 7 and second years of operation of a new petroleum 8 refinery. These regulations shall provide for— 9 ‘‘(A) the distribution of emission allowance 10 rebates to such petroleum refineries based on 11 comparable petroleum refineries; and 12 ‘‘(B) an adjustment in the third and 13 fourth years of operation to reconcile the total 14 amount of emission allowance rebates received 15 during the first and second years of operation 16 to the amount the petroleum refinery would 17 have received during the first and second years 18 of operation had the appropriate data been 19 available. 20 ‘‘(3) DIRECT CARBON FACTOR.—The direct car- 21 bon factor for a petroleum refinery for a vintage 22 year is the product of— 23 ‘‘(A) the average output of the petroleum 24 refinery for the two years preceding the year of 25 the distribution; and f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00741 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 742 1 ‘‘(B) the most recent calculation of the av- 2 erage direct greenhouse gas emissions (ex- 3 pressed in tons of carbon dioxide equivalent) 4 per unit of output for all petroleum refineries, 5 as determined by the Administrator under para- 6 graph (5). 7 ‘‘(4) INDIRECT CARBON FACTOR.— 8 ‘‘(A) IN GENERAL.—The indirect carbon 9 factor for a petroleum refinery for a vintage 10 year is the product obtained by multiplying the 11 average output of the petroleum refinery for the 12 two years preceding the years of the distribu- 13 tion by both the electricity emissions intensity 14 factor determined pursuant to subparagraph 15 (B) and the electricity efficiency factor deter- 16 mined pursuant to subparagraph (C) for the 17 year concerned. 18 ‘‘(B) ELECTRICITY EMISSIONS INTENSITY 19 FACTOR.—Each person selling electricity to the 20 owner or operator of a petroleum refinery shall 21 provide the owner or operator of the petroleum 22 refinery and the Administrator, on an annual 23 basis, the electricity emissions intensity factor 24 for the petroleum refinery. The electricity emis- 25 sions intensity factor for the petroleum refinery, f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00742 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 743 1 expressed in tons of carbon dioxide equivalents 2 per kilowatt hour, is determined by dividing— 3 ‘‘(i) the annual sum of the hourly 4 product of— 5 ‘‘(I) the electricity purchased by 6 the petroleum refinery from that per- 7 son in each hour (expressed in kilo- 8 watt hours), multiplied by 9 ‘‘(II) the cost the person selling 10 the electricity passes to the petroleum 11 refinery per ton of carbon dioxide 12 equivalent emitted by the electricity 13 provider per kilowatt hour, taking into 14 account the petroleum refinery’s retail 15 rate arrangements, by 16 ‘‘(ii) the total kilowatt hours of elec- 17 tricity purchased by the petroleum refinery 18 from that person during that year. 19 ‘‘(C) ELECTRICITY EFFICIENCY FACTOR.— 20 The electricity efficiency factor is the average 21 amount of electricity (in kilowatt hours) used 22 per unit of output for all petroleum refineries, 23 as determined by the Administrator based on 24 the best available data, including data provided 25 under paragraph (7). f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00743 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 744 1 CARBON FACTOR REDUC- ‘‘(D) INDIRECT 2 TION.—If an electricity provider received a free 3 allocation of emission allowances pursuant to 4 section 782, the Administrator shall adjust the 5 indirect carbon factor to avoid rebates to the 6 petroleum refinery for costs that the Adminis- 7 trator determines were not incurred by the pe- 8 troleum refinery because the allowances were 9 freely allocated to the petroleum refinery’s elec- 10 tricity provider and used for the benefit of pe- 11 troleum refineries. 12 ‘‘(5) GREENHOUSE GAS INTENSITY CALCULA- 13 TIONS.—The Administrator shall calculate the aver- 14 age direct greenhouse gas emissions (expressed in 15 tons of carbon dioxide equivalent) per unit of output 16 for all petroleum refineries not less than once every 17 five years using an average of the two most recent 18 years of the best available data. 19 ‘‘(6) ENSURING EFFICIENCY IMPROVEMENTS.— 20 When making greenhouse gas calculations, the Ad- 21 ministrator shall— 22 ‘‘(A) limit the average direct greenhouse 23 gas emissions per unit of output, calculated 24 under paragraph (5), to an amount that is not f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00744 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 745 1 greater than it was in any previous calculation 2 under this subsection; and 3 ‘‘(B) limit the electricity emissions inten- 4 sity factor, calculated under paragraph (4)(B) 5 and resulting from a change in electricity sup- 6 ply, for any petroleum refinery to an amount 7 that is not greater than it was during any pre- 8 vious year. 9 ‘‘(7) DATA SOURCES.—For the purposes of this 10 subsection— 11 ‘‘(A) the Administrator shall use data from 12 the greenhouse gas registry, established under 13 section 713, where it is available; and 14 ‘‘(B) each owner or operator of a petro- 15 leum refinery and each department, agency, and 16 instrumentality of the United States shall pro- 17 vide the Administrator with such information as 18 the Administrator finds necessary to determine 19 the direct carbon factor and the indirect carbon 20 factor for each petroleum refinery subject to 21 this section. 22 ‘‘(e) TOTAL MAXIMUM DISTRIBUTION.—The Admin- 23 istrator shall not distribute more allowances for any vin- 24 tage year pursuant to this section than are allocated for 25 use under this part pursuant to section 782 for that vin- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00745 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 746 1 tage year. For any vintage year for which the total emis- 2 sion allowance rebates calculated pursuant to this section 3 exceed the number of allowances allocated pursuant to sec- 4 tion 782, the Administrator shall reduce each petroleum 5 refinery’s distribution on a pro rata basis so that the total 6 distribution under this section equals the number of allow- 7 ances allocated under section 782.’’. Subtitle B—Green Jobs and 8 Worker Transition 9 10 PART 1—GREEN JOBS 11 SEC. 421. CLEAN ENERGY CURRICULUM DEVELOPMENT 12 GRANTS. 13 (a) AUTHORIZATION.—The Secretary of Education is 14 authorized to award grants, on a competitive basis, to eli- 15 gible partnerships to develop programs of study (con- 16 taining the information described in section 122(c)(1)(A) 17 of the Carl D. Perkins Career and Technical Education 18 Act of 2006 (20 U.S.C. 2342), that are focused on emerg- 19 ing careers and jobs in renewable energy, energy effi- 20 ciency, and climate change mitigation. The Secretary of 21 Education shall consult with the Secretary of Labor and 22 the Secretary of Energy prior to the issuance of a solicita- 23 tion for grant applications. 24 (b) ELIGIBLE PARTNERSHIPS.—For purposes of this 25 section, an eligible partnership shall include— f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00746 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 747 1 (1) at least 1 local educational agency eligible 2 for funding under section 131 of the Carl D. Per- 3 kins Career and Technical Education Act of 2006 4 (20 U.S.C. 2351) or an area career and technical 5 education school or education service agency de- 6 scribed in such section; 7 (2) at least 1 postsecondary institution eligible 8 for funding under section 132 of such Act (20 9 U.S.C. 2352); and 10 (3) representatives of the community including 11 business, labor organizations, and industry that have 12 experience in clean energy. 13 (c) APPLICATION.—An eligible partnership seeking a 14 grant under this section shall submit an application to the 15 Secretary at such time and in such manner as the Sec- 16 retary may require. Applications shall include— 17 (1) a description of the eligible partners and 18 partnership, the roles and responsibilities of each 19 partner, and a demonstration of each partner’s ca- 20 pacity to support the program; 21 (2) a description of the career area or areas 22 within the field of clean energy to be developed, the 23 reason for the choice, and evidence of the labor mar- 24 ket need to prepare students in that area; f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00747 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 748 1 (3) a description of the new or existing program 2 of study and both secondary and postsecondary com- 3 ponents; 4 (4) a description of the students to be served by 5 the new program of study; 6 (5) a description of how the program of study 7 funded by the grant will be replicable and dissemi- 8 nated to schools outside of the partnership, including 9 urban and rural areas; 10 (6) a description of applied learning that will be 11 incorporated into the program of study and how it 12 will incorporate or reinforce academic learning; 13 (7) a description of how the program of study 14 will be delivered; 15 (8) a description of how the program will pro- 16 vide accessibility to students, especially economically 17 disadvantaged, low performing, and urban and rural 18 students; 19 (9) a description of how the program will ad- 20 dress placement of students in nontraditional fields 21 as described in section 3(20) of the Carl D. Perkins 22 Career and Technical Education Act of 2006 (20 23 U.S.C. 2302(20)); and 24 (10) a description of how the applicant proposes 25 to consult or has consulted with a labor organiza- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00748 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 749 1 tion, labor management partnership, apprenticeship 2 program, or joint apprenticeship and training pro- 3 gram that provides education and training in the 4 field of study for which the applicant proposes to de- 5 velop a curriculum. 6 (d) PRIORITY.—The Secretary shall give priority to 7 applications that— 8 (1) use online learning or other innovative 9 means to deliver the program of study to students, 10 educators, and instructors outside of the partner- 11 ship; and 12 (2) focus on low performing students and spe- 13 cial populations as defined in section 3(29) of the 14 Carl D. Perkins Career and Technical Education 15 Act of 2006 (20 U.S.C. 2302(29)). 16 (e) PEER REVIEW.—The Secretary shall convene a 17 peer review process to review applications for grants under 18 this section and to make recommendations regarding the 19 selection of grantees. Members of the peer review com- 20 mittee shall include— 21 (1) educators who have experience imple- 22 menting curricula with comparable purposes; and 23 (2) business and industry experts in clean en- 24 ergy-related fields. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00749 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 750 1 FUNDS.—Grants awarded under this (f) USES OF 2 section shall be used for the development, implementation, 3 and dissemination of programs of study (as described in 4 section 122(c)(1)(A) of the Carl D. Perkins Career and 5 Technical Education Act (20 U.S.C. 342(c)(1)(A))) in ca- 6 reer areas related to clean energy, renewable energy, en- 7 ergy efficiency, and climate change mitigation. 8 SEC. 422. INCREASED FUNDING FOR ENERGY WORKER 9 TRAINING PROGRAM. 10 Section 171(e)(8) of the Workforce Investment Act 11 of 1998 (29 U.S.C. 2916(e)(8)) is amended by striking 12 ‘‘$125,000,000’’ and inserting ‘‘$150,000,000’’. 13 PART 2—CLIMATE CHANGE WORKER 14 ADJUSTMENT ASSISTANCE 15 SEC. 425. PETITIONS, ELIGIBILITY REQUIREMENTS, AND 16 DETERMINATIONS. 17 (a) PETITIONS.— 18 (1) FILING.—A petition for certification of eli- 19 gibility to apply for adjustment assistance for a 20 group of workers under this part may be filed by 21 any of the following: 22 (A) The group of workers. 23 (B) The certified or recognized union or 24 other duly authorized representative of such 25 workers. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00750 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 751 1 (C) Employers of such workers, one-stop 2 operators or one-stop partners (as defined in 3 section 101 of the Workforce Investment Act of 4 1998 (29 U.S.C. 2801)), including State em- 5 ployment security agencies, or the State dis- 6 located worker unit established under title I of 7 such Act, on behalf of such workers. 8 The petition shall be filed simultaneously with the 9 Secretary of Labor and with the Governor of the 10 State in which such workers’ employment site is lo- 11 cated. 12 (2) ACTION BY GOVERNORS.—Upon receipt of a 13 petition filed under paragraph (1), the Governor 14 shall— 15 (A) ensure that rapid response activities 16 and appropriate core and intensive services (as 17 described in section 134 of the Workforce In- 18 vestment Act of 1998 (29 U.S.C. 2864)) au- 19 thorized under other Federal laws are made 20 available to the workers covered by the petition 21 to the extent authorized under such laws; and 22 (B) assist the Secretary in the review of 23 the petition by verifying such information and 24 providing such other assistance as the Secretary 25 may request. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00751 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 752 1 BY THE SECRETARY.—Upon receipt (3) ACTION 2 of the petition, the Secretary shall promptly publish 3 notice in the Federal Register and on the website of 4 the Department of Labor that the Secretary has re- 5 ceived the petition and initiated an investigation. 6 (4) HEARINGS.—If the petitioner, or any other 7 person found by the Secretary to have a substantial 8 interest in the proceedings, submits not later than 9 10 days after the date of the Secretary’s publication 10 under paragraph (3) a request for a hearing, the 11 Secretary shall provide for a public hearing and af- 12 ford such interested persons an opportunity to be 13 present, to produce evidence, and to be heard. 14 (b) ELIGIBILITY.— 15 (1) IN GENERAL.—A group of workers shall be 16 certified by the Secretary as eligible to apply for ad- 17 justment assistance under this part pursuant to a 18 petition filed under subsection (a) if— 19 (A) the group of workers is employed in— 20 (i) energy producing and transforming 21 industries; 22 (ii) industries dependent upon energy 23 industries; 24 (iii) energy-intensive manufacturing 25 industries; f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00752 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 753 1 (iv) consumer goods manufacturing; 2 or 3 (v) other industries whose employment 4 the Secretary determines has been ad- 5 versely affected by any requirement of title 6 VII of the Clean Air Act; 7 (B) the Secretary determines that a sig- 8 nificant number or proportion of the workers in 9 such workers’ employment site have become to- 10 tally or partially separated, or are threatened to 11 become totally or partially separated from em- 12 ployment; and 13 (C) the sales, production, or delivery of 14 goods or services have decreased as a result of 15 any requirement of title VII of the Clean Air 16 Act, including— 17 (i) the shift from reliance upon fossil 18 fuels to other sources of energy, including 19 renewable energy, that results in the clos- 20 ing of a facility or layoff of employees at 21 a facility that mines, produces, processes, 22 or utilizes fossil fuels to generate elec- 23 tricity; 24 (ii) a substantial increase in the cost 25 of energy required for a manufacturing fa- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00753 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 754 1 cility to produce items whose prices are 2 competitive in the marketplace, to the ex- 3 tent the cost is not offset by allowance al- 4 location to the facility pursuant to title VII 5 of the Clean Air Act; or 6 (iii) other documented occurrences 7 that the Secretary determines are indica- 8 tors of an adverse impact on an industry 9 described in subparagraph (A) as a result 10 of any requirement of title VII of the 11 Clean Air Act. 12 (2) WORKERS IN PUBLIC AGENCIES.—A group 13 of workers in a public agency shall be certified by 14 the Secretary as eligible to apply for climate change 15 adjustment assistance pursuant to a petition filed if 16 the Secretary determines that a significant number 17 or proportion of the workers in the public agency 18 have become totally or partially separated from em- 19 ployment, or are threatened to become totally or 20 partially separated as a result of any requirement of 21 title VII of the Clean Air Act. 22 (3) ADVERSELY WORK- AFFECTED SERVICE 23 ERS.—A group of workers shall be certified as eligi- 24 ble to apply for climate change adjustment assist- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00754 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 755 1 ance pursuant to a petition filed if the Secretary de- 2 termines that— 3 (A) a significant number or proportion of 4 the service workers at an employment site 5 where a group of workers has been certified by 6 the Secretary as eligible to apply for adjustment 7 assistance under this part pursuant to para- 8 graph (1) have become totally or partially sepa- 9 rated from employment, or are threatened to 10 become totally or partially separated; and 11 (B) a loss of business in the firm providing 12 service workers to an employment site is di- 13 rectly attributable to one or more of the docu- 14 mented occurrences listed in paragraph (1)(C). 15 (c) AUTHORITY INVESTIGATE COLLECT IN- TO AND 16 FORMATION.— 17 (1) IN GENERAL.—The Secretary shall, in de- 18 termining whether to certify a group of workers 19 under subsection (d), obtain information the Sec- 20 retary determines to be necessary to make the cer- 21 tification, through questionnaires and in such other 22 manner as the Secretary determines appropriate 23 from— 24 (A) the workers’ employer; f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00755 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 756 1 (B) officials of certified or recognized 2 unions or other duly authorized representatives 3 of the group of workers; or 4 (C) one-stop operators or one-stop partners 5 (as defined in section 101 of the Workforce In- 6 vestment Act of 1998 (29 U.S.C. 2801)); or 7 (2) VERIFICATION OF INFORMATION.—The Sec- 8 retary shall require an employer, union, or one-stop 9 operator or partner to certify all information ob- 10 tained under paragraph (1) from the employer, 11 union, or one-stop operator or partner (as the case 12 may be) on which the Secretary relies in making a 13 determination under subsection (d), unless the Sec- 14 retary has a reasonable basis for determining that 15 such information is accurate and complete without 16 being certified. 17 (3) PROTECTION OF CONFIDENTIAL INFORMA- 18 TION.—The Secretary may not release information 19 obtained under paragraph (1) that the Secretary 20 considers to be confidential business information un- 21 less the employer submitting the confidential busi- 22 ness information had notice, at the time of submis- 23 sion, that the information would be released by the 24 Secretary, or the employer subsequently consents to 25 the release of the information. Nothing in this para- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00756 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 757 1 graph shall be construed to prohibit the Secretary 2 from providing such confidential business informa- 3 tion to a court in camera or to another party under 4 a protective order issued by a court. 5 (d) DETERMINATION SECRETARY BY THE OF 6 LABOR.— 7 (1) IN GENERAL.—As soon as possible after the 8 date on which a petition is filed under subsection 9 (a), but in any event not later than 40 days after 10 that date, the Secretary, in consultation with the 11 Secretary of Energy and the Administrator of the 12 Environmental Protection Agency, as necessary, 13 shall determine whether the petitioning group meets 14 the requirements of subsection (b) and shall issue a 15 certification of eligibility to apply for assistance 16 under this part covering workers in any group which 17 meets such requirements. Each certification shall 18 specify the date on which the total or partial separa- 19 tion began or threatened to begin. Upon reaching a 20 determination on a petition, the Secretary shall 21 promptly publish a summary of the determination in 22 the Federal Register and on the website of the De- 23 partment of Labor, together with the Secretary’s 24 reasons for making such determination. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00757 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 758 1 LIMITATION.—A certification (2) ONE YEAR 2 under this section shall not apply to any worker 3 whose last total or partial separation from the em- 4 ployment site before the worker’s application under 5 section 426(a) occurred more than 1 year before the 6 date of the petition on which such certification was 7 granted. 8 (3) REVOCATION OF CERTIFICATION.—When- 9 ever the Secretary determines, with respect to any 10 certification of eligibility of the workers of an em- 11 ployment site, that total or partial separations from 12 such site are no longer a result of the factors speci- 13 fied in subsection (b)(1), the Secretary shall termi- 14 nate such certification and promptly have notice of 15 such termination published in the Federal Register 16 and on the website of the Department of Labor, to- 17 gether with the Secretary’s reasons for making such 18 determination. Such termination shall apply only 19 with respect to total or partial separations occurring 20 after the termination date specified by the Secretary. 21 (e) INDUSTRY NOTIFICATION ASSISTANCE.— OF 22 Upon receiving a notification of a determination under 23 subsection (d) with respect to a domestic industry the Sec- 24 retary of Labor shall notify the representatives of the do- 25 mestic industry affected by the determination, employers f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00758 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 759 1 publicly identified by name during the course of the pro- 2 ceeding relating to the determination, and any certified 3 or recognized union or, to the extent practicable, other 4 duly authorized representative of workers employed by 5 such representatives of the domestic industry, of— 6 (1) the adjustment allowances, training, and 7 other benefits available under this part; 8 (2) the manner in which to file a petition and 9 apply for such benefits; and 10 (3) the availability of assistance in filing such 11 petitions; 12 (4) notify the Governor of each State in which 13 one or more employers in such industry are located 14 of the Secretary’s determination and the identity of 15 the employers; and 16 (5) upon request, provide any assistance that is 17 necessary to file a petition under subsection (a). 18 (f) BENEFIT INFORMATION WORKERS, PRO- TO 19 TRAINING.— VIDERS OF 20 (1) IN GENERAL.—The Secretary shall provide 21 full information to workers about the adjustment al- 22 lowances, training, and other benefits available 23 under this part and about the petition and applica- 24 tion procedures, and the appropriate filing dates, for 25 such allowances, training and services. The Sec- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00759 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 760 1 retary shall provide whatever assistance is necessary 2 to enable groups of workers to prepare petitions or 3 applications for program benefits. The Secretary 4 shall make every effort to insure that cooperating 5 State agencies fully comply with the agreements en- 6 tered into under section 426(a) and shall periodically 7 review such compliance. The Secretary shall inform 8 the State Board for Vocational Education or equiva- 9 lent agency, the one-stop operators or one-stop part- 10 ners (as defined in section 101 of the Workforce In- 11 vestment Act of 1998 (29 U.S.C. 2801), and other 12 public or private agencies, institutions, and employ- 13 ers, as appropriate, of each certification issued 14 under subsection (d) and of projections, if available, 15 of the needs for training under as a result of such 16 certification. 17 (2) NOTICE BY MAIL.—The Secretary shall pro- 18 vide written notice through the mail of the benefits 19 available under this part to each worker whom the 20 Secretary has reason to believe is covered by a cer- 21 tification made under subsection (d)— 22 (A) at the time such certification is made, 23 if the worker was partially or totally separated 24 from the adversely affected employment before 25 such certification, or— f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00760 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 761 1 (B) at the time of the total or partial sepa- 2 ration of the worker from the adversely affected 3 employment, if subparagraph (A) does not 4 apply. 5 (3) NEWSPAPERS; WEBSITE.—The Secretary 6 shall publish notice of the benefits available under 7 this part to workers covered by each certification 8 made under subsection (d) in newspapers of general 9 circulation in the areas in which such workers reside 10 and shall make such information available on the 11 website of the Department of Labor. 12 SEC. 426. PROGRAM BENEFITS. 13 (a) CLIMATE CHANGE ADJUSTMENT ALLOWANCE.— 14 (1) ELIGIBILITY.—Payment of a climate change 15 adjustment allowance shall be made to an adversely 16 affected worker covered by a certification under sec- 17 tion 425(b) who files an application for such allow- 18 ance for any week of unemployment which begins on 19 or after the date of such certification, if the fol- 20 lowing conditions are met: 21 (A) Such worker’s total or partial separa- 22 tion before the worker’s application under this 23 part occurred— 24 (i) on or after the date, as specified in 25 the certification under which the worker is f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00761 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 762 1 covered, on which total or partial separa- 2 tion began or threatened to begin in the 3 adversely affected employment; 4 (ii) before the expiration of the 2-year 5 period beginning on the date on which the 6 determination under section 425(d) was 7 made; and 8 (iii) before the termination date, if 9 any, determined pursuant to section 10 425(d)(3). 11 (B) Such worker had, in the 52-week pe- 12 riod ending with the week in which such total 13 or partial separation occurred, at least 26 14 weeks of full-time employment or 1,040 hours 15 of part time employment in adversely affected 16 employment, or, if data with respect to weeks of 17 employment are not available, equivalent 18 amounts of employment computed under regu- 19 lations prescribed by the Secretary. For the 20 purposes of this paragraph, any week in which 21 such worker— 22 (i) is on employer-authorized leave for 23 purposes of vacation, sickness, injury, ma- 24 ternity, or inactive duty or active duty 25 military service for training; f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00762 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 763 1 (ii) does not work because of a dis- 2 ability that is compensable under a work- 3 men’s compensation law or plan of a State 4 or the United States; 5 (iii) had his employment interrupted 6 in order to serve as a full-time representa- 7 tive of a labor organization in such firm; or 8 (iv) is on call-up for purposes of active 9 duty in a reserve status in the Armed 10 Forces of the United States, provided such 11 active duty is ‘‘Federal service’’ as defined 12 in section 8521(a)(1) of title 5, United 13 States Code, 14 shall be treated as a week of employment. 15 (C) Such worker is enrolled in a training 16 program approved by the Secretary under sub- 17 section (b)(2). 18 (2) INELIGIBILITY FOR CERTAIN OTHER BENE- 19 FITS.—An adversely affected worker receiving a pay- 20 ment under this section shall be ineligible to receive 21 any other form of unemployment insurance for the 22 period in which such worker is receiving a climate 23 change adjustment allowance under this section. 24 (3) REVOCATION.—If— 25 (A) the Secretary determines that— f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00763 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 764 1 (i) the adversely affected worker— 2 (I) has failed to begin participa- 3 tion in the training program the en- 4 rollment in which meets the require- 5 ment of paragraph (1)(C); or 6 (II) has ceased to participate in 7 such training program before com- 8 pleting such training program; and 9 (ii) there is no justifiable cause for 10 such failure or cessation; or 11 (B) the certification made with respect to 12 such worker under section 425(d) is revoked 13 under paragraph (3) of such section, 14 no adjustment allowance may be paid to the ad- 15 versely affected worker under this part for the week 16 in which such failure, cessation, or revocation oc- 17 curred, or any succeeding week, until the adversely 18 affected worker begins or resumes participation in a 19 training program approved by the Secretary under 20 section (b)(2). 21 (4) WAIVERS OF TRAINING REQUIREMENTS.— 22 The Secretary may issue a written statement to an 23 adversely affected worker waiving the requirement to 24 be enrolled in training described in subsection (b)(2) 25 if the Secretary determines that it is not feasible or f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00764 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 765 1 appropriate for the worker, because of 1 or more of 2 the following reasons: 3 (A) RECALL.—The worker has been noti- 4 fied that the worker will be recalled by the em- 5 ployer from which the separation occurred. 6 (B) MARKETABLE SKILLS.— 7 (i) IN GENERAL.—The worker pos- 8 sesses marketable skills for suitable em- 9 ployment (as determined pursuant to an 10 assessment of the worker, which may in- 11 clude the profiling system under section 12 303(j) of the Social Security Act (42 13 U.S.C. 503(j)), carried out in accordance 14 with guidelines issued by the Secretary) 15 and there is a reasonable expectation of 16 employment at equivalent wages in the 17 foreseeable future. 18 (ii) MARKETABLE SKILLS DEFINED.— 19 For purposes of clause (i), the term ‘‘mar- 20 ketable skills’’ may include the possession 21 of a postgraduate degree from an institu- 22 tion of higher education (as defined in sec- 23 tion 102 of the Higher Education Act of 24 1965 (20 U.S.C. 1002)) or an equivalent 25 institution, or the possession of an equiva- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00765 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 766 1 lent postgraduate certification in a special- 2 ized field. 3 (C) RETIREMENT.—The worker is within 2 4 years of meeting all requirements for entitle- 5 ment to either— 6 (i) old-age insurance benefits under 7 title II of the Social Security Act (42 8 U.S.C. 401 et seq.) (except for application 9 therefor); or 10 (ii) a private pension sponsored by an 11 employer or labor organization. 12 (D) HEALTH.—The worker is unable to 13 participate in training due to the health of the 14 worker, except that a waiver under this sub- 15 paragraph shall not be construed to exempt a 16 worker from requirements relating to the avail- 17 ability for work, active search for work, or re- 18 fusal to accept work under Federal or State un- 19 employment compensation laws. 20 (E) ENROLLMENT UNAVAILABLE.—The 21 first available enrollment date for the training 22 of the worker is within 60 days after the date 23 of the determination made under this para- 24 graph, or, if later, there are extenuating cir- 25 cumstances for the delay in enrollment, as de- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00766 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 767 1 termined pursuant to guidelines issued by the 2 Secretary. 3 (F) TRAINING NOT AVAILABLE.—Training 4 described in subsection (b)(2) is not reasonably 5 available to the worker from either govern- 6 mental agencies or private sources (which may 7 include area career and technical education 8 schools, as defined in section 3 of the Carl D. 9 Perkins Career and Technical Education Act of 10 2006 (20 U.S.C. 2302), and employers), no 11 training that is suitable for the worker is avail- 12 able at a reasonable cost, or no training funds 13 are available. 14 (5) WEEKLY AMOUNTS.—The climate change 15 adjustment allowance payable to an adversely af- 16 fected worker for a week of unemployment shall be 17 an amount equal to 70 percent of the average weekly 18 wage of such worker, but in no case shall such 19 amount exceed the average weekly wage for all work- 20 ers in the State where the adversely affected worker 21 resides. 22 (6) MAXIMUM DURATION OF BENEFITS.—An el- 23 igible worker may receive a climate change adjust- 24 ment allowance under this subsection for a period of 25 not longer than 156 weeks. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00767 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 768 1 (b) EMPLOYMENT SERVICES AND TRAINING.— 2 (1) INFORMATION SERV- AND EMPLOYMENT 3 ICES.—The Secretary shall make available, directly 4 or through agreements with the States under section 5 427(a) to adversely affected workers covered by a 6 certification under section 425(a) the following in- 7 formation and employment services: 8 (A) Comprehensive and specialized assess- 9 ment of skill levels and service needs, including 10 through— 11 (i) diagnostic testing and use of other 12 assessment tools; and 13 (ii) in-depth interviewing and evalua- 14 tion to identify employment barriers and 15 appropriate employment goals. 16 (B) Development of an individual employ- 17 ment plan to identify employment goals and ob- 18 jectives, and appropriate training to achieve 19 those goals and objectives. 20 (C) Information on training available in 21 local and regional areas, information on indi- 22 vidual counseling to determine which training is 23 suitable training, and information on how to 24 apply for such training. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00768 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 769 1 (D) Information on training programs and 2 other services provided by a State pursuant to 3 title I of the Workforce Investment Act of 1998 4 and available in local and regional areas, infor- 5 mation on individual counseling to determine 6 which training is suitable training, and informa- 7 tion on how to apply for such training. 8 (E) Information on how to apply for finan- 9 cial aid, including referring workers to edu- 10 cational opportunity centers described in section 11 402F of the Higher Education Act of 1965 (20 12 U.S.C. 1070a–16), where applicable, and noti- 13 fying workers that the workers may request fi- 14 nancial aid administrators at institutions of 15 higher education (as defined in section 102 of 16 such Act (20 U.S.C. 1002)) to use the adminis- 17 trators’ discretion under section 479A of such 18 Act (20 U.S.C. 1087tt) to use current year in- 19 come data, rather than preceding year income 20 data, for determining the amount of need of the 21 workers for Federal financial assistance under 22 title IV of such Act (20 U.S.C. 1070 et seq.). 23 (F) Short-term prevocational services, in- 24 cluding development of learning skills, commu- 25 nications skills, interviewing skills, punctuality, f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00769 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 770 1 personal maintenance skills, and professional 2 conduct to prepare individuals for employment 3 or training. 4 (G) Individual career counseling, including 5 job search and placement counseling, during the 6 period in which the individual is receiving a cli- 7 mate change adjustment allowance or training 8 under this part, and after receiving such train- 9 ing for purposes of job placement. 10 (H) Provision of employment statistics in- 11 formation, including the provision of accurate 12 information relating to local, regional, and na- 13 tional labor market areas, including— 14 (i) job vacancy listings in such labor 15 market areas; 16 (ii) information on jobs skills nec- 17 essary to obtain jobs identified in job va- 18 cancy listings described in subparagraph 19 (A); 20 (iii) information relating to local occu- 21 pations that are in demand and earnings 22 potential of such occupations; and 23 (iv) skills requirements for local occu- 24 pations described in subparagraph (C). f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00770 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 771 1 (I) Information relating to the availability 2 of supportive services, including services relat- 3 ing to child care, transportation, dependent 4 care, housing assistance, and need-related pay- 5 ments that are necessary to enable an indi- 6 vidual to participate in training. 7 (2) TRAINING.— 8 (A) APPROVAL OF AND PAYMENT FOR 9 TRAINING.—If the Secretary determines, with 10 respect to an adversely affected worker that— 11 (i) there is no suitable employment 12 (which may include technical and profes- 13 sional employment) available for an ad- 14 versely affected worker; 15 (ii) the worker would benefit from ap- 16 propriate training; 17 (iii) there is a reasonable expectation 18 of employment following completion of 19 such training; 20 (iv) training approved by the Sec- 21 retary is reasonably available to the worker 22 from either governmental agencies or pri- 23 vate sources (including area career and 24 technical education schools, as defined in 25 section 3 of the Carl D. Perkins Career f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00771 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 772 1 and Technical Education Act of 2006, and 2 employers); 3 (v) the worker is qualified to under- 4 take and complete such training; and 5 (vi) such training is suitable for the 6 worker and available at a reasonable cost, 7 the Secretary shall approve such training for 8 the worker. Upon such approval, the worker 9 shall be entitled to have payment of the costs 10 of such training (subject to the limitations im- 11 posed by this section) paid on the worker’s be- 12 half by the Secretary directly or through a 13 voucher system. 14 (B) DISTRIBUTION.—The Secretary shall 15 establish procedures for the distribution of the 16 funds to States to carry out the training pro- 17 grams approved under this paragraph, and shall 18 make an initial distribution of the funds made 19 available as soon as practicable after the begin- 20 ning of each fiscal year. 21 (C) ADDITIONAL RULES REGARDING AP- 22 PROVAL OF AND PAYMENT FOR TRAINING.— 23 (i) For purposes of applying subpara- 24 graph (A)(iii), a reasonable expectation of 25 employment does not require that employ- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00772 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 773 1 ment opportunities for a worker be avail- 2 able, or offered, immediately upon the 3 completion of training approved under 4 such subparagraph. 5 (ii) If the costs of training an ad- 6 versely affected worker are paid by the 7 Secretary under subparagraph (A), no 8 other payment for such costs may be made 9 under any other provision of Federal law. 10 No payment may be made under subpara- 11 graph (A) of the costs of training an ad- 12 versely affected worker or an adversely af- 13 fected incumbent worker if such costs— 14 (I) have already been paid under 15 any other provision of Federal law; or 16 (II) are reimbursable under any 17 other provision of Federal law and a 18 portion of such costs have already 19 been paid under such other provision 20 of Federal law. 21 The provisions of this clause shall not 22 apply to, or take into account, any funds 23 provided under any other provision of Fed- 24 eral law which are used for any purpose 25 other than the direct payment of the costs f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00773 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 774 1 incurred in training a particular adversely 2 affected worker, even if such use has the 3 effect of indirectly paying or reducing any 4 portion of the costs involved in training the 5 adversely affected worker. 6 (D) TRAINING PROGRAMS.—The training 7 programs that may be approved under subpara- 8 graph (A) include— 9 (i) employer-based training, includ- 10 ing— 11 (I) on-the-job training if ap- 12 proved by the Secretary under sub- 13 section (c); and 14 (II) joint labor-management ap- 15 prenticeship programs; 16 (ii) any training program provided by 17 a State pursuant to title I of the Work- 18 force Investment Act of 1998; 19 (iii) any training program approved 20 by a private industry council established 21 under section 102 of such Act; 22 (iv) any programs in career and tech- 23 nical education described in section 3(5) of 24 the Carl D. Perkins Career and Technical 25 Education Act of 2006; f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00774 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 775 1 (v) any program of remedial edu- 2 cation; 3 (vi) any program of prerequisite edu- 4 cation or coursework required to enroll in 5 training that may be approved under this 6 paragraph; 7 (vii) any training program for which 8 all, or any portion, of the costs of training 9 the worker are paid— 10 (I) under any Federal or State 11 program other than this part; or 12 (II) from any source other than 13 this part; 14 (ix) any training program or 15 coursework at an accredited institution of 16 higher education (described in section 102 17 of the Higher Education Act of 1965 (20 18 U.S.C. 1002)), including a training pro- 19 gram or coursework for the purpose of— 20 (I) obtaining a degree or certifi- 21 cation; or 22 (II) completing a degree or cer- 23 tification that the worker had pre- 24 viously begun at an accredited institu- 25 tion of higher education; and f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00775 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 776 1 (viii) any other training program ap- 2 proved by the Secretary. 3 (3) SUPPLEMENTAL ASSISTANCE.—The Secretary 4 may, as appropriate, authorize supplemental assistance 5 that is necessary to defray reasonable transportation and 6 subsistence expenses for separate maintenance in a case 7 in which training for a worker is provided in a facility that 8 is not within commuting distance of the regular place of 9 residence of the worker. 10 (c) ON-THE-JOB TRAINING REQUIREMENTS.— 11 (1) IN GENERAL.—The Secretary may approve 12 on-the-job training for any adversely affected worker 13 if— 14 (A) the Secretary determines that on-the- 15 job training— 16 (i) can reasonably be expected to lead 17 to suitable employment with the employer 18 offering the on-the-job training; 19 (ii) is compatible with the skills of the 20 worker; 21 (iii) includes a curriculum through 22 which the worker will gain the knowledge 23 or skills to become proficient in the job for 24 which the worker is being trained; and f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00776 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 777 1 (iv) can be measured by benchmarks 2 that indicate that the worker is gaining 3 such knowledge or skills; and 4 (B) the State determines that the on-the- 5 job training program meets the requirements of 6 clauses (iii) and (iv) of subparagraph (A). 7 (2) MONTHLY PAYMENTS.—The Secretary shall 8 pay the costs of on-the-job training approved under 9 paragraph (1) in monthly installments. 10 (3) CONTRACTS FOR ON-THE-JOB TRAINING.— 11 (A) IN GENERAL.—The Secretary shall en- 12 sure, in entering into a contract with an em- 13 ployer to provide on-the-job training to a work- 14 er under this subsection, that the skill require- 15 ments of the job for which the worker is being 16 trained, the academic and occupational skill 17 level of the worker, and the work experience of 18 the worker are taken into consideration. 19 (B) TERM OF CONTRACT.—Training under 20 any such contract shall be limited to the period 21 of time required for the worker receiving on- 22 the-job training to become proficient in the job 23 for which the worker is being trained, but may 24 not exceed 156 weeks in any case. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00777 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 778 1 OF CERTAIN EMPLOYERS.—The (4) EXCLUSION 2 Secretary shall not enter into a contract for on-the- 3 job training with an employer that exhibits a pattern 4 of failing to provide workers receiving on-the-job 5 training from the employer with— 6 (A) continued, long-term employment as 7 regular employees; and 8 (B) wages, benefits, and working condi- 9 tions that are equivalent to the wages, benefits, 10 and working conditions provided to regular em- 11 ployees who have worked a similar period of 12 time and are doing the same type of work as 13 workers receiving on-the-job training from the 14 employer. 15 (d) ADMINISTRATIVE EMPLOYMENT SERVICES AND 16 FUNDING.— 17 (1) ADMINISTRATIVE FUNDING.—In addition to 18 any funds made available to a State to carry out this section ll for a fiscal year, the State shall receive 19 20 for the fiscal year a payment in an amount that is 21 equal to 15 percent of the amount of such funds and 22 shall— 23 (A) use not more than 2⁄3 of such payment 24 for the administration of the climate change ad- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00778 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 779 1 justment assistance for workers program under 2 this part, including for— 3 (i) processing waivers of training re- 4 quirements under subsection (a)(4); and 5 (ii) collecting, validating, and report- 6 ing data required under this part; and 7 (B) use not less than 1⁄3 of such payment 8 for information and employment services under 9 subsection (b)(1). 10 (2) EMPLOYMENT SERVICES FUNDING.— 11 (A) IN GENERAL.—In addition to any 12 funds made available to a State to carry out 13 subsection (b)(2) and the payment under para- 14 graph (1) for a fiscal year, the Secretary shall 15 provide to the State for the fiscal year a reason- 16 able payment for the purpose of providing em- 17 ployment and services under subsection (b)(1). 18 (B) VOLUNTARY RETURN OF FUNDS.—A 19 State that receives a payment under subpara- 20 graph (A) may decline or otherwise return such 21 payment to the Secretary. 22 (e) JOB SEARCH ALLOWANCES.—The Secretary of 23 Labor may provide adversely affected workers a one-time 24 job search allowance in accordance with regulations pre- 25 scribed by the Secretary. Any job search allowance pro- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00779 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 780 1 vided shall be available only under the following cir- 2 cumstances and conditions: 3 (1) The worker is no longer eligible for the cli- 4 mate change adjustment allowance under subsection 5 (a) and has completed the training program required 6 by subsection (a)(1)(E). 7 (2) The Secretary determines that the worker 8 cannot reasonably be expected to secure suitable em- 9 ployment in the commuting area in which the worker 10 resides. 11 (3) An allowance granted shall provide reim- 12 bursement to the worker of all necessary job search 13 expenses as prescribed by the Secretary in regula- 14 tions. Such reimbursement under this subsection 15 may not exceed $1,500 for any worker. 16 (f) RELOCATION ALLOWANCE AUTHORIZED.— 17 (1) IN GENERAL.—Any adversely affected work- 18 er covered by a certification issued under section 19 425 may file an application for a relocation allow- 20 ance with the Secretary, and the Secretary may 21 grant the relocation allowance, subject to the terms 22 and conditions of this subsection. 23 (2) CONDITIONS FOR GRANTING ALLOWANCE.— 24 A relocation allowance may be granted if all of the 25 following terms and conditions are met: f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00780 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 781 1 (A) ASSIST AN ADVERSELY AFFECTED 2 WORKER.—The relocation allowance will assist 3 an adversely affected worker in relocating with- 4 in the United States. 5 (B) LOCAL AVAIL- EMPLOYMENT NOT 6 ABLE.—The Secretary determines that the 7 worker cannot reasonably be expected to secure 8 suitable employment in the commuting area in 9 which the worker resides. 10 (C) TOTAL SEPARATION.—The worker is 11 totally separated from employment at the time 12 relocation commences. 13 (D) SUITABLE EMPLOYMENT OBTAINED.— 14 The worker— 15 (i) has obtained suitable employment 16 affording a reasonable expectation of long- 17 term duration in the area in which the 18 worker wishes to relocate; or 19 (ii) has obtained a bona fide offer of 20 such employment. 21 (E) APPLICATION.—The worker filed an 22 application with the Secretary at such time and 23 in such manner as the Secretary shall specify 24 by regulation. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00781 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 782 1 OF ALLOWANCE.—The relocation (3) AMOUNT 2 allowance granted to a worker under paragraph (1) 3 includes— 4 (A) all reasonable and necessary expenses 5 (including, subsistence and transportation ex- 6 penses at levels not exceeding amounts pre- 7 scribed by the Secretary in regulations) in- 8 curred in transporting the worker, the worker’s 9 family, and household effects; and 10 (B) a lump sum equivalent to 3 times the 11 worker’s average weekly wage, up to a max- 12 imum payment of $1,500. 13 (4) LIMITATIONS.—A relocation allowance may 14 not be granted to a worker unless— 15 (A) the relocation occurs within 182 days 16 after the filing of the application for relocation 17 assistance; or 18 (B) the relocation occurs within 182 days 19 after the conclusion of training, if the worker 20 entered a training program approved by the 21 Secretary under subsection (b)(2). 22 (g) HEALTH INSURANCE CONTINUATION.—Not later 23 than 1 year after the date of enactment of this part, the 24 Secretary of Labor shall prescribe regulations to provide, 25 for the period in which an adversely affected worker is f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00782 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 783 1 participating in a training program described in sub- 2 section (b)(2), 80 percent of the monthly premium of any 3 health insurance coverage that an adversely affected work- 4 er was receiving from such worker’s employer prior to the 5 separation from employment described in section 425(b), 6 to be paid to any health care insurance plan designated 7 by the adversely affected worker receiving an allowance 8 under this section. 9 SEC. 427. GENERAL PROVISIONS. 10 (a) AGREEMENTS WITH STATES.— 11 (1) IN GENERAL.—The Secretary is authorized 12 on behalf of the United States to enter into an 13 agreement with any State, or with any State agency 14 (referred to in this section as ‘‘cooperating States’’ 15 and ‘‘cooperating States agencies’’ respectively). 16 Under such an agreement, the cooperating State 17 agency— 18 (A) as agent of the United States, shall re- 19 ceive applications for, and shall provide, pay- 20 ments on the basis provided in this part; 21 (B) in accordance with paragraph (6), 22 shall make available to adversely affected work- 23 ers covered by a certification under section 24 425(d) the employment services described in 25 section 426(b)(1); f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00783 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 784 1 (C) shall make any certifications required 2 under section 425(d); 3 (D) shall otherwise cooperate with the Sec- 4 retary and with other State and Federal agen- 5 cies in providing payments and services under 6 this part. 7 Each agreement under this section shall provide the 8 terms and conditions upon which the agreement may 9 be amended, suspended, or terminated. 10 (2) FORM DATA.—Each AND MANNER OF 11 agreement under this section shall— 12 (A) provide the Secretary with the author- 13 ity to collect any data the Secretary determines 14 necessary to meet the requirements of this part; 15 and 16 (B) specify the form and manner in which 17 any such data requested by the Secretary shall 18 be reported. 19 (3) RELATIONSHIP TO UNEMPLOYMENT INSUR- 20 ANCE.—Each agreement under this section shall 21 provide that an adversely affected worker receiving 22 a climate change adjustment allowance under this 23 part shall not be eligible for unemployment insur- 24 ance otherwise payable to such worker under the 25 laws of the State. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00784 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 785 1 (4) REVIEW.—A determination by a cooper- 2 ating State agency with respect to entitlement to 3 program benefits under an agreement is subject to 4 review in the same manner and to the same extent 5 as determinations under the applicable State law 6 and only in that manner and to that extent. 7 (5) COORDINATION.—Any agreement entered 8 into under this section shall provide for the coordi- 9 nation of the administration of the provisions for 10 employment services, training, and supplemental as- 11 sistance under section 426 and under title I of the 12 Workforce Investment Act of 1998 upon such terms 13 and conditions as are established by the Secretary in 14 consultation with the States and set forth in such 15 agreement. Any agency of the State jointly admin- 16 istering such provisions under such agreement shall 17 be considered to be a cooperating State agency for 18 purposes of this part. 19 (6) RESPONSIBILITIES OF COOPERATING AGEN- 20 CIES.—Each cooperating State agency shall, in car- 21 rying out paragraph (1)(B)— 22 (A) advise each worker who applies for un- 23 employment insurance of the benefits under this 24 part and the procedures and deadlines for ap- 25 plying for such benefits; f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00785 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 786 1 (B) facilitate the early filing of petitions 2 under section 425(a) for any workers that the 3 agency considers are likely to be eligible for 4 benefits under this part; 5 (C) advise each adversely affected worker 6 to apply for training under section 426(b) be- 7 fore, or at the same time, the worker applies for 8 climate change adjustment allowances under 9 section 426(a); 10 (D) perform outreach to, intake of, and 11 orientation for adversely affected workers and 12 adversely affected incumbent workers covered 13 by a certification under section 426(a) with re- 14 spect to assistance and benefits available under 15 this part; 16 (E) make employment services described in 17 section 426(b)(1) available to adversely affected 18 workers and adversely affected incumbent work- 19 ers covered by a certification under section 20 425(d) and, if funds provided to carry out this 21 part are insufficient to make such services 22 available, make arrangements to make such 23 services available through other Federal pro- 24 grams; and f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00786 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 787 1 (F) provide the benefits and reemployment 2 services under this part in a manner that is 3 necessary for the proper and efficient adminis- 4 tration of this part, including the use of state 5 agency personnel employed in accordance with a 6 merit system of personnel administration stand- 7 ards, including— 8 (i) making determinations of eligibility 9 for, and payment of, climate change read- 10 justment allowances and health care ben- 11 efit replacement amounts; 12 (ii) developing recommendations re- 13 garding payments as a bridge to retire- 14 ment and lump sum payments to pension 15 plans in accordance with this subsection; 16 and 17 (iii) the provision of reemployment 18 services to eligible workers, including refer- 19 ral to training services. 20 (7) In order to promote the coordination of 21 workforce investment activities in each State with 22 activities carried out under this part, any agreement 23 entered into under this section shall provide that the 24 State shall submit to the Secretary, in such form as 25 the Secretary may require, the description and infor- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00787 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 788 1 mation described in paragraphs (8) and (14) of sec- 2 tion 112(b) of the Workforce Investment Act of 3 1998 (29 U.S.C. 2822(b)) and a description of the 4 State’s rapid response activities under section 5 221(a)(2)(A). 6 (8) CONTROL MEASURES.— 7 (A) IN GENERAL.—The Secretary shall re- 8 quire each cooperating State and cooperating 9 State agency to implement effective control 10 measures and to effectively oversee the oper- 11 ation and administration of the climate change 12 adjustment assistance program under this part, 13 including by means of monitoring the operation 14 of control measures to improve the accuracy 15 and timeliness of the data being collected and 16 reported. 17 (B) DEFINITION.—For purposes of sub- 18 paragraph (A), the term ‘‘control measures’’ 19 means measures that— 20 (i) are internal to a system used by a 21 State to collect data; and 22 (ii) are designed to ensure the accu- 23 racy and verifiability of such data. 24 (9) DATA REPORTING.— f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00788 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 789 1 GENERAL.—Any agreement entered (A) IN 2 into under this section shall require the cooper- 3 ating State or cooperating State agency to re- 4 port to the Secretary on a quarterly basis com- 5 prehensive performance accountability data, to 6 consist of— 7 (i) the core indicators of performance 8 described in subparagraph (B)(i); 9 (ii) the additional indicators of per- 10 formance described in subparagraph 11 (B)(ii), if any; and 12 (iii) a description of efforts made to 13 improve outcomes for workers under the 14 climate change adjustment assistance pro- 15 gram. 16 (B) CORE INDICATORS DESCRIBED.— 17 (i) IN GENERAL.—The core indicators 18 of performance described in this subpara- 19 graph are— 20 (I) the percentage of workers re- 21 ceiving benefits under this part who 22 are employed during the second cal- 23 endar quarter following the calendar 24 quarter in which the workers cease re- 25 ceiving such benefits; f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00789 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 790 1 (II) the percentage of such work- 2 ers who are employed in each of the 3 third and fourth calendar quarters fol- 4 lowing the calendar quarter in which 5 the workers cease receiving such bene- 6 fits; and 7 (III) the earnings of such work- 8 ers in each of the third and fourth 9 calendar quarters following the cal- 10 endar quarter in which the workers 11 cease receiving such benefits. 12 (ii) ADDITIONAL INDICATORS.—The 13 Secretary and a cooperating State or co- 14 operating State agency may agree upon 15 additional indicators of performance for 16 the climate change adjustment assistance 17 program under this part, as appropriate. 18 (C) STANDARDS WITH RESPECT TO RELI- 19 ABILITY OF DATA.—In preparing the quarterly 20 report required by subparagraph (A), each co- 21 operating State or cooperating State agency 22 shall establish procedures that are consistent 23 with guidelines to be issued by the Secretary to 24 ensure that the data reported are valid and reli- 25 able. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00790 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 791 1 OF ELIGIBILITY FOR PRO- (10) VERIFICATION 2 GRAM BENEFITS.— 3 (A) IN GENERAL.—An agreement under 4 this section shall provide that the State shall 5 periodically redetermine that a worker receiving 6 benefits under this part who is not a citizen or 7 national of the United States remains in a sat- 8 isfactory immigration status. Once satisfactory 9 immigration status has been initially verified 10 through the immigration status verification sys- 11 tem described in section 1137(d) of the Social 12 Security Act (42 U.S.C. 1320b-7(d)) for pur- 13 poses of establishing a worker’s eligibility for 14 unemployment compensation, the State shall 15 reverify the worker’s immigration status if the 16 documentation provided during initial 17 verification will expire during the period in 18 which that worker is potentially eligible to re- 19 ceive benefits under this part. The State shall 20 conduct such redetermination in a timely man- 21 ner, utilizing the immigration status verification 22 system described in section 1137(d) of the So- 23 cial Security Act (42 U.S.C. 1320b-7(d)). 24 (B) PROCEDURES.—The Secretary shall 25 establish procedures to ensure the uniform ap- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00791 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 792 1 plication by the States of the requirements of 2 this paragraph. 3 (b) ADMINISTRATION ABSENT STATE AGREE- 4 MENT.— 5 (1) In any State where there is no agreement 6 in force between a State or its agency under sub- 7 section (a), the Secretary shall promulgate regula- 8 tions for the performance of all necessary functions 9 under section 426, including provision for a fair 10 hearing for any worker whose application for pay- 11 ments is denied. 12 (2) A final determination under paragraph (1) 13 with respect to entitlement to program benefits 14 under section 426 is subject to review by the courts 15 in the same manner and to the same extent as is 16 provided by section 205(g) of the Social Security Act 17 (42 U.S.C. 405(g)). 18 (c) PROHIBITION CONTRACTING WITH PRIVATE ON 19 ENTITIES.—Neither the Secretary nor a State may con- 20 tract with any private for-profit or nonprofit entity for the 21 administration of the climate change adjustment assist- 22 ance program under this part. 23 (d) PAYMENT TO THE STATES.— 24 (1) IN GENERAL.—The Secretary shall from 25 time to time certify to the Secretary of the Treasury f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00792 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 793 1 for payment to each cooperating State the sums nec- 2 essary to enable such State as agent of the United 3 States to make payments provided for by this part. 4 (2) RESTRICTION.—All money paid a State 5 under this subsection shall be used solely for the 6 purposes for which it is paid; and money so paid 7 which is not used for such purposes shall be re- 8 turned, at the time specified in the agreement under 9 this section, to the Secretary of the Treasury. 10 (3) BONDS.—Any agreement under this section 11 may require any officer or employee of the State cer- 12 tifying payments or disbursing funds under the 13 agreement or otherwise participating in the perform- 14 ance of the agreement, to give a surety bond to the 15 United States in such amount as the Secretary may 16 deem necessary, and may provide for the payment of 17 the cost of such bond from funds for carrying out 18 the purposes of this part. 19 (e) LABOR STANDARDS.— 20 (1) PROHIBITION ON DISPLACEMENT.—An indi- 21 vidual in an apprenticeship program or on-the-job 22 training program under this part shall not displace 23 (including a partial displacement, such as a reduc- 24 tion in the hours of non-overtime work, wages, or 25 employment benefits) any employed employee. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00793 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 794 1 ON IMPAIRMENT OF CON- (2) PROHIBITION 2 TRACTS.—An apprenticeship program or on-the-job 3 raining program under this Act shall not impair an 4 existing contract for services or collective bargaining 5 agreement, and no such activity that would be incon- 6 sistent with the terms of a collective bargaining 7 agreement shall be undertaken without the written 8 concurrence of the labor organization and employer 9 concerned. 10 (3) ADDITIONAL STANDARDS.—The Secretary, 11 or a State acting under an agreement described in 12 subsection (a) may pay the costs of on-the-job train- 13 ing, notwithstanding any other provision of this sec- 14 tion, only if— 15 (A) in the case of training which would be 16 inconsistent with the terms of a collective bar- 17 gaining agreement, the written concurrence of 18 the labor organization concerned has been ob- 19 tained; 20 (B) the job for which such adversely af- 21 fected worker is being trained is not being cre- 22 ated in a promotional line that will infringe in 23 any way upon the promotional opportunities of 24 currently employed individuals; f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00794 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 795 1 (C) such training is not for the same occu- 2 pation from which the worker was separated 3 and with respect to which such worker’s group 4 was certified pursuant to section 425(d); 5 (D) the employer is provided reimburse- 6 ment of not more than 50 percent of the wage 7 rate of the participant, for the cost of providing 8 the training and additional supervision related 9 to the training; and 10 (E) the employer has not received payment 11 under with respect to any other on-the-job 12 training provided by such employer which failed 13 to meet the requirements of subparagraphs (A) 14 through (D). 15 (f) DEFINITIONS.—As used in this part the following 16 definitions apply: 17 (1) The term ‘‘adversely affected employment’’ 18 means employment at an employment site, if work- 19 ers at such site are eligible to apply for adjustment 20 assistance under this part. 21 (2) The term ‘‘adversely affected worker’’ 22 means an individual who has been totally or partially 23 separated from employment and is eligible to apply 24 for adjustment assistance under this part. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00795 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 796 1 (3) The term ‘‘average weekly wage’’ means 1⁄13 2 of the total wages paid to an individual in the quar- 3 ter in which the individual’s total wages were highest 4 among the first 4 of the last 5 completed calendar 5 quarters immediately before the quarter in which oc- 6 curs the week with respect to which the computation 7 is made. Such week shall be the week in which total 8 separation occurred, or, in cases where partial sepa- 9 ration is claimed, an appropriate week, as defined in 10 regulations prescribed by the Secretary. 11 (4) The term ‘‘average weekly hours’’ means 12 the average hours worked by the individual (exclud- 13 ing overtime) in the employment from which he has 14 been or claims to have been separated in the 52 15 weeks (excluding weeks during which the individual 16 was sick or on vacation) preceding the week speci- 17 fied in the last sentence of paragraph (4). 18 (5) The term ‘‘benefit period’’ means, with re- 19 spect to an individual— 20 (A) the benefit year and any ensuing pe- 21 riod, as determined under applicable State law, 22 during which the individual is eligible for reg- 23 ular compensation, additional compensation, or 24 extended compensation; or f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00796 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 797 1 (B) the equivalent to such a benefit year 2 or ensuing period provided for under the appli- 3 cable Federal unemployment insurance law. 4 (6) The term ‘‘consumer goods manufacturing’’ 5 means the electrical equipment, appliance, and com- 6 ponent manufacturing industry and transportation 7 equipment manufacturing. 8 (7) The term ‘‘employment site’’ means a single 9 facility or site of employment. 10 (8) The term ‘‘energy-intensive manufacturing 11 industries’’ means all industrial sectors, entities, or 12 groups of entities that meet the energy or green- 13 house gas intensity criteria in section 14 765(b)(2)(A)(i) of the Clean Air Act based on the 15 most recent data available. 16 (9) The term ‘‘energy producing and trans- 17 forming industries’’ means the coal mining industry, 18 oil and gas extraction, electricity power generation, 19 transmission and distribution, and natural gas dis- 20 tribution. 21 (10) The term ‘‘industries dependent on energy 22 industries’’ means rail transportation and pipeline 23 transportation. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00797 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 798 1 (11) The term ‘‘on-the-job training’’ means 2 training provided by an employer to an individual 3 who is employed by the employer. 4 (12) The terms ‘‘partial separation’’ and ‘‘par- 5 tially separated’’ refer, with respect to an individual 6 who has not been totally separated, that such indi- 7 vidual has had— 8 (A) his or her hours of work reduced to 80 9 percent or less of his average weekly hours in 10 adversely affected employment; and 11 (B) his or her wages reduced to 80 percent 12 or less of his average weekly wage in such ad- 13 versely affected employment. 14 (13) The term ‘‘public agency’’ means a depart- 15 ment or agency of a State or political subdivision of 16 a State or of the Federal government. 17 (14) The term ‘‘Secretary’’ means the Secretary 18 of Labor. 19 (15) The term ‘‘service workers’’ means work- 20 ers supplying support or auxiliary services to an em- 21 ployment site. 22 (16) The term ‘‘State’’ includes the District of 23 Columbia and the Commonwealth of Puerto Rico: 24 and the term ‘‘United States’’ when used in the geo- 25 graphical sense includes such Commonwealth. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00798 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 799 1 (17) The term ‘‘State agency’’ means the agen- 2 cy of the State which administers the State law. 3 (18) The term ‘‘State law’’ means the unem- 4 ployment insurance law of the State approved by the 5 Secretary of Labor under section 3304 of the Inter- 6 nal Revenue Code of 1954. 7 (19) The terms ‘‘total separation’’ and ‘‘totally 8 separated’’ refer to the layoff or severance of an in- 9 dividual from employment with an employer in which 10 adversely affected employment exists. 11 (20) The term ‘‘unemployment insurance’’ 12 means the unemployment compensation payable to 13 an individual under any State law or Federal unem- 14 ployment compensation law, including chapter 85 of 15 title 5, United States Code, and the Railroad Unem- 16 ployment Insurance Act. The terms ‘‘regular com- 17 pensation’’, ‘‘additional compensation’’, and ‘‘ex- 18 tended compensation’’ have the same respective 19 meanings that are given them in section 205(2), (3), 20 and (4) of the Federal-State Extended Unemploy- 21 ment Compensation Act of 1970 (26 U.S.C. 3304 22 note.) 23 (21) The term ‘‘week’’ means a week as defined 24 in the applicable State law. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00799 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 800 1 (22) The term ‘‘week of unemployment’’ means 2 a week of total, part-total, or partial unemployment 3 as determined under the applicable State law or 4 Federal unemployment insurance law. 5 (g) SPECIAL RULE WITH RESPECT MILITARY TO 6 SERVICE.— 7 (1) IN GENERAL.—Notwithstanding any other 8 provision of this part, the Secretary may waive any 9 requirement of this part that the Secretary deter- 10 mines is necessary to ensure that an adversely af- 11 fected worker who is a member of a reserve compo- 12 nent of the Armed Forces and serves a period of 13 duty described in paragraph (2) is eligible to receive 14 a climate change adjustment allowance, training, 15 and other benefits under this part in the same man- 16 ner and to the same extent as if the worker had not 17 served the period of duty. 18 (2) PERIOD DESCRIBED.—An ad- OF DUTY 19 versely affected worker serves a period of duty de- 20 scribed in this paragraph if, before completing train- 21 ing under this part, the worker— 22 (A) serves on active duty for a period of 23 more than 30 days under a call or order to ac- 24 tive duty of more than 30 days; or f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00800 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 801 1 (B) in the case of a member of the Army 2 National Guard of the United States or Air Na- 3 tional Guard of the United States, performs 4 full-time National Guard duty under section 5 502(f) of title 32, United States Code, for 30 6 consecutive days or more when authorized by 7 the President or the Secretary of Defense for 8 the purpose of responding to a national emer- 9 gency declared by the President and supported 10 by Federal funds. 11 (h) FRAUD AND RECOVERY OF OVERPAYMENTS.— 12 (1) RECOVERY OF PAYMENTS TO WHICH AN IN- 13 DIVIDUAL WAS NOT ENTITLED.—If the Secretary or 14 a court of competent jurisdiction determines that 15 any person has received any payment under this 16 part to which the individual was not entitled, such 17 individual shall be liable to repay such amount to 18 the Secretary, as the case may be, except that the 19 Secretary shall waive such repayment if such agency 20 or the Secretary determines that— 21 (A) the payment was made without fault 22 on the part of such individual; and 23 (B) requiring such repayment would cause 24 a financial hardship for the individual (or the 25 individual’s household, if applicable) when tak- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00801 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 802 1 ing into consideration the income and resources 2 reasonably available to the individual (or house- 3 hold) and other ordinary living expenses of the 4 individual (or household). 5 (2) MEANS OF RECOVERY.—Unless an overpay- 6 ment is otherwise recovered, or waived under para- 7 graph (1), the Secretary shall recover the overpay- 8 ment by deductions from any sums payable to such 9 person under this part, under any Federal unem- 10 ployment compensation law or other Federal law ad- 11 ministered by the Secretary which provides for the 12 payment of assistance or an allowance with respect 13 to unemployment. Any amount recovered under this 14 section shall be returned to the Treasury of the 15 United States. 16 (3) PENALTIES FRAUD.—Any person FOR 17 who— 18 (A) makes a false statement of a material 19 fact knowing it to be false, or knowingly fails 20 to disclose a material fact, for the purpose of 21 obtaining or increasing for that person or for 22 any other person any payment authorized to be 23 furnished under this part, or 24 (B) makes a false statement of a material 25 fact knowing it to be false, or knowingly fails f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00802 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 803 1 to disclose a material fact, when providing in- 2 formation to the Secretary during an investiga- 3 tion of a petition under section 425(c), 4 shall be imprisoned for not more than one year, or fined 5 under title 18, United States Code, or both, and be ineli- 6 gible for any further payments under this part. 7 (i) REGULATIONS.—The Secretary shall prescribe 8 such regulations as may be necessary to carry out the pro- 9 visions of this part. 10 (j) STUDY OLDER WORKERS.—The Secretary ON 11 shall conduct a study examine the circumstances of older 12 adversely affected workers and the ability of such workers 13 to access their retirement benefits. The Secretary shall 14 transmit a report to Congress not later than 2 years after 15 the date of enactment of this part on the findings of the 16 study and the Secretary’s recommendations on how to en- 17 sure that adversely affected workers within 2 years of re- 18 tirement are able to access their retirement benefits. ø(k) SPENDING LIMIT.—For each fiscal year, the 19 20 total amount of funds disbursed for the purposes described 21 in section 426 shall not exceed the amount deposited in 22 that fiscal year into the Climate Change Worker Assist- 23 ance Fund established under section ø782(j)¿ of the Clean 24 Air Act. The annual spending limit for any succeeding 25 year shall be increased by the difference, if any, between f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00803 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 804 1 the amount of the prior year’s disbursements and the 2 spending limitation for that year. The Secretary shall pro- 3 mulgate rules to ensure that this spending limit is not ex- 4 ceeded. Such rules shall provide that workers who receive 5 any of the benefits described in section 426 receive full 6 benefits, and shall include the establishment of a waiting 7 list for workers in the event that the requests for assist- 8 ance exceed the spending limit.¿ Subtitle C—Consumer Assistance 9 10 SEC. 431. ENERGY TAX CREDIT. 11 Subpart C of part IV of subchapter A of chapter 1 12 of the Internal Revenue Code of 1986 is amended by in- 13 serting after section 36A the following new section: 14 ‘‘SEC. 36B. ENERGY TAX CREDIT. 15 ‘‘(a) ALLOWANCE CREDIT.—In the case of an eli- OF 16 gible individual, there shall be allowed as a credit against 17 the tax imposed by this subtitle for the taxable year an 18 amount equal to— 19 ‘‘(1) for an eligible individual with applicable 20 income of less than $6,000, the phase in rate times 21 the applicable income; 22 ‘‘(2) for an eligible individual with applicable 23 income that is greater than or equal to $6,000 and 24 is less than or equal to the phase down amount, the 25 maximum energy tax credit; f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00804 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 805 1 ‘‘(3) for an individual with applicable income 2 that exceeds the phase down amount, an amount 3 equal to— 4 ‘‘(A) the maximum energy tax credit 5 minus; or 6 ‘‘(B) the difference between the individ- 7 ual’s applicable income and the phase down 8 amount multiplied by .2. 9 ‘‘(b) COORDINATION WITH ENERGY REFUND RE- 10 THROUGH STATE HUMAN SERVICE AGENCIES.— CEIVED 11 The amount described in subsection (a) shall be reduced 12 by 1⁄12 for each month in which the individual or his or 13 her spouse received a refund under section 432 of the Safe 14 Climate Act. 15 ‘‘(1) The Secretary of the Treasury shall pro- 16 mulgate regulations that instruct States on how to 17 inform adult individuals who receive a refund under 18 section 432 of the Safe Climate Act of the number 19 of months he or she received a refund and how such 20 information shall be provided to the Internal Rev- 21 enue Service. 22 ‘‘(2) The Secretary of the Treasury shall estab- 23 lish a telephone and online system that allows an in- 24 dividual to inquire about the number of months she 25 or he received such a refund. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00805 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 806 1 ‘‘(3) In the case of an individual that does not 2 report the number of months a refund was provided 3 under section 432 of the Safe Climate Act or re- 4 corded an incorrect number of months, the Secretary 5 of the Treasury shall adjust the energy tax credit 6 based on the information received from States, pro- 7 vided that the Secretary of the Treasury has made 8 a determination that the information meets a suffi- 9 cient standard for accuracy. 10 ‘‘(c) DEFINITIONS SPECIAL RULES.—For pur- AND 11 poses of this section— 12 ‘‘(1) ELIGIBLE INDIVIDUAL.— 13 ‘‘(A) IN GENERAL.—The term ‘eligible in- 14 dividual’ means any individual other than— 15 ‘‘(i) any nonresident alien individual; 16 ‘‘(ii) any individual with respect to 17 whom a deduction under section 151 is al- 18 lowable to another taxpayer for a taxable 19 year beginning in the calendar year in 20 which the individual’s taxable year begins; 21 and 22 ‘‘(iii) an estate or trust. 23 ‘‘(B) IDENTIFICATION NUMBER REQUIRE- 24 MENT.—Such term shall not include any indi- 25 vidual who— f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00806 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 807 1 ‘‘(i) in the case of a return that is not 2 a joint return, does not include the social 3 security number of the individual; and 4 ‘‘(ii) in the case of joint return, does 5 not include the social security number of 6 at least one of the taxpayers on such re- 7 turn. 8 For purposes of the preceding sentence, the so- 9 cial security number shall not include a TIN 10 issued by the Internal Revenue Service. 11 ‘‘(2) APPLICABLE INCOME.—Applicable income 12 means the larger of— 13 ‘‘(A) earned income as defined in section 14 32(c)(2), except that such term shall not in- 15 clude net earnings from self-employment which 16 are not taken into account in computing taxable 17 income; and 18 ‘‘(B) adjusted gross income. 19 ‘‘(3) PHASE IN RATE.—The Secretary of the 20 Treasury shall compute the phase in rates each year 21 for the energy credit for joint returns and for re- 22 turns that are not filed jointly with respect to each 23 relevant number of qualifying individuals such that 24 the phase in rate equals the maximum energy tax 25 credit divided by $6,000. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00807 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 808 1 ENERGY TAX CREDIT.— ‘‘(4) MAXIMUM 2 ‘‘(A) IN GENERAL.— 3 ‘‘(i) The maximum energy tax credit 4 shall vary based on the number of individ- 5 uals in the tax filing unit. 6 ‘‘(ii) The maximum energy tax credit 7 for a filing unit of a particular size shall 8 be equal to the average annual reduction in 9 purchasing power for low-income house- 10 holds of that household size, as calculated 11 by the Environmental Protection Agency, 12 that results from the regulation of green- 13 house gas emissions under title VII of the 14 Clean Air Act. 15 ‘‘(iii) The Environmental Protection 16 Agency, in consultation with other appro- 17 priate federal agencies, shall calculate the 18 maximum energy tax credit by August 31 19 of each year for the following calendar year 20 using the most recent, reliable data avail- 21 able. 22 ‘‘(B) ENERGY CALCULA- TAX CREDIT 23 TION.— 24 ‘‘(i) DISTRIBUTION.—For each cal- 25 endar year, the Environmental Protection f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00808 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 809 1 Agency shall determine pursuant to sub- 2 paragraph (B)(iii) the aggregate reduction 3 in purchasing power among all United 4 States households that results from the 5 regulation of greenhouse gas emissions 6 under title VII of the Clean Air Act and 7 distribute that aggregate reduction in pur- 8 chasing power among all United States 9 households based on— 10 ‘‘(I) households’ share of total 11 consumption by all households; 12 ‘‘(II) the carbon intensity and 13 covered-emissions intensity of house- 14 holds’ consumption; and 15 ‘‘(III) the share of households’ 16 carbon and covered-emissions con- 17 sumption that is not financed by Fed- 18 eral benefits subject to a cost of living 19 adjustment that offsets increased car- 20 bon costs. 21 ‘‘(ii) MAXIMUM ENERGY TAX CRED- 22 IT.—The maximum energy tax credit shall 23 be equal to the arithmetic mean value of 24 the amount allocated under clause (i) to 25 households of a specified household size in f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00809 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 810 1 the lowest income quintile. Tax filing units 2 that include 5 or more individuals shall be 3 eligible for the arithmetic mean value of 4 the amount allocated under clause (i) to 5 households that includes 5 or more individ- 6 uals. 7 ‘‘(iii) AGGREGATE REDUCTION IN 8 POWER.—For purposes of PURCHASING 9 this section, the aggregate reduction in 10 purchasing power shall be based on the 11 projected total market value of the emis- 12 sions allowances used to demonstrate com- 13 pliance with title VII of the Clean Air Act 14 in that year, adjusted to reflect costs that 15 were not incurred by households as a re- 16 sult of allowances freely allocated pursuant to section ø782¿ of the Clean Air Act, as 17 18 estimated by the Environmental Protection 19 Agency, and calculated in a way generally 20 recognized as suitable by experts in evalu- 21 ating such purchasing power impacts. 22 ‘‘(iv) INCOME QUINTILES.—Income 23 quintiles shall be determined by ranking 24 households according to income adjusted 25 for household size, and shall be constructed f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00810 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 811 1 so that each quintile contains an equal 2 number of people. 3 ‘‘(5) PHASE DOWN AMOUNT.— 4 ‘‘(A) In the case of an eligible individual 5 who has no qualifying individuals, the phase 6 down amount shall be— 7 ‘‘(i) $20,000 in the case of an indi- 8 vidual who does not file a joint return; and 9 ‘‘(ii) $25,000 in the case of a joint re- 10 turn. 11 ‘‘(B) In the case of an eligible individual 12 who files a joint return and has at least one 13 qualifying individual— 14 ‘‘(i) If the eligible individual has one 15 qualifying individual, the lowest income 16 level that exceeds the phaseout amount as 17 defined in section 32(b)(2) at which a mar- 18 ried couple with one qualifying child is in- 19 eligible for the earned income credit for the 20 taxable year. 21 ‘‘(ii) If the eligible individual has two 22 qualifying individuals, the lowest income 23 level that exceeds the phaseout amount as 24 defined in section 32(b)(2) at which a mar- 25 ried couple with two qualifying children is f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00811 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 812 1 ineligible for the earned income credit for 2 the taxable year. 3 ‘‘(iii) If the eligible individual claims 4 three or more qualifying individuals, the 5 lowest income level that exceeds the phase- 6 out amount as defined in section 32(b)(2) 7 at which a married couple with three or 8 more qualifying children is ineligible for 9 the earned income credit for the taxable 10 year. 11 ‘‘(C) In the case of an eligible individual 12 who does not file a joint return and has at least 13 one individual qualifying individual— 14 ‘‘(i) If the eligible individual has one 15 qualifying individual, the lowest income 16 level that exceeds the phaseout amount as 17 defined in section 32(b)(2) at which a sin- 18 gle individual with one qualifying child is 19 ineligible for the earned income credit for 20 the taxable year. 21 ‘‘(ii) If the eligible individual has two 22 qualifying individuals, the lowest income 23 level that exceeds the phaseout amount as 24 defined in section 32(b)(2) at which a sin- 25 gle individual with two qualifying children f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00812 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 813 1 is ineligible for the earned income credit 2 for the taxable year. 3 ‘‘(iii) If the eligible individual has 4 three or more qualifying individuals, the 5 lowest income level that exceeds the phase- 6 out amount as defined in section 32(b)(2) 7 at which a single individual with three or 8 more qualifying children is ineligible for 9 the earned income credit for the taxable 10 year. 11 ‘‘(6) QUALIFYING INDIVIDUAL.—A qualifying 12 individual is an individual whom the eligible indi- 13 vidual claims as a dependent under section 151, or 14 as a qualifying child for the earned income credit 15 under section 32(c)(3) or the child tax credit under 16 section 24, or both. The term qualifying individual 17 does not include— 18 ‘‘(A) someone claimed as a dependent 19 under section 151 if that dependent is claimed 20 as a qualifying child for the earned income tax 21 credit or the child tax credit on a tax form by 22 someone other than the eligible individual; and 23 ‘‘(B) the eligible individual and, if a joint 24 return, his or her spouse. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00813 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 814 1 ‘‘(7) NUMBER OF PEOPLE IN THE TAX FILING 2 UNIT.—The number of people in the tax filing unit 3 shall equal the sum of the number of qualifying indi- 4 viduals plus— 5 ‘‘(A) in the case of a joint return, 2; and 6 ‘‘(B) in the case of a return that is not 7 filed jointly, 1. 8 ‘‘(d) TREATMENT OF POSSESSIONS.— 9 ‘‘(1) PAYMENTS TO POSSESSIONS.— 10 ‘‘(A) MIRROR POSSESSION.—The CODE 11 Secretary of the Treasury shall pay to each pos- 12 session of the United States with a mirror code 13 tax system amounts equal to the loss to that 14 possession by reason of the amendments made 15 by this section. Such amounts shall be deter- 16 mined by the Secretary of the Treasury based 17 on information provided by the Government of 18 the respective possession. 19 ‘‘(B) OTHER POSSESSIONS.—The Sec- 20 retary of the Treasury shall pay to each posses- 21 sion of the United States which does not have 22 a mirror code tax system amounts estimated by 23 the Secretary of the Treasury as being equal to 24 the aggregate benefits that would have been 25 provided to residents of such possession by rea- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00814 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 815 1 son of the amendments made by this section if 2 a mirror code tax system had been in effect in 3 such possession. The preceding sentence shall 4 not apply for a given taxable year with respect 5 to any possession of the United States unless 6 such possession has a plan, which has been ap- 7 proved by the Secretary of the Treasury, under 8 which such possession will promptly distribute 9 such payments to residents of such possession. 10 ‘‘(2) COORDINATION WITH CREDIT ALLOWED 11 AGAINST UNITED STATES INCOME TAXES.—No cred- 12 it shall be allowed against United States income 13 taxes for any taxable year under this section to any 14 person— 15 ‘‘(A) to whom a credit is allowed against 16 taxes imposed by the possession by reason of 17 the amendments made by this section for such 18 taxable year; or 19 ‘‘(B) who is eligible for a payment under 20 a plan described in paragraph (1)(B) with re- 21 spect to such taxable year. 22 ‘‘(e) AMOUNT CREDIT BE DETERMINED OF TO 23 UNDER TABLES.—The amount of the credit allowed by 24 this section shall be determined under tables prescribed 25 by the Secretary. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00815 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 816 1 ‘‘(f) INFLATION ADJUSTMENTS.— In the case of any 2 taxable year beginning after 2009, dollar amounts in sub- 3 section (c)(4)(A) shall be increased by an amount equal 4 to such dollar amount, multiplied by the cost-of-living ad- 5 justment determined under section 1(f)(3) of the Internal 6 Revenue Code of 1986. 7 ‘‘(g) TREATMENT OTHER PROGRAMS.—The en- IN 8 ergy tax credit provided under this section shall not be 9 considered income or resources for any purpose under any 10 Federal, State, or local laws, including, but not limited 11 to, laws relating to an income tax or public assistance pro- 12 gram (including, but not limited to, health care, cash aid, 13 child care, nutrition programs, and housing assistance), 14 and no participating State or political subdivision thereof 15 shall decrease any assistance otherwise provided an indi- 16 vidual or individuals because of the receipt of an energy 17 tax credit under this Act.’’. 18 SEC. 432. ENERGY REFUND PROGRAM FOR LOW-INCOME 19 CONSUMERS. 20 (a) ENERGY REFUND PROGRAM.— 21 (1) The Administrator of the Environmental 22 Protection Agency, or the agency designated by the 23 Administrator shall formulate and administer the 24 ‘‘Energy Refund Program’’. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00816 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 817 1 (2) At the request of the State agency, eligible 2 low-income households within the State shall receive 3 a monthly cash energy refund equal to the estimated 4 loss in purchasing power resulting from this Act. 5 (b) ELIGIBILITY.— 6 (1) ELIGIBLE HOUSEHOLDS.—Participation in 7 the Energy Refund Program shall be limited to a 8 household that— 9 (A) the State agency determines to be par- 10 ticipating in (i) the Supplemental Nutrition As- 11 sistance Program authorized by the Food and 12 Nutrition Act of 2008 (7 U.S.C. 2011 et seq.); 13 (ii) the Food Distribution Program on Indian 14 Reservations authorized by section 4(b) of such 15 Act (7 U.S.C. 2013(b)); or (iii) the program for 16 nutrition assistance in Puerto Rico or American 17 Samoa under section 19 of the such Act (7 18 U.S.C. 2028); 19 (B) has gross income that does not exceed 20 150 percent of the poverty line; or 21 (C) consists of a single individual or a 22 married couple and (i) receives the subsidy de- 23 scribed in section 1860D–14 of the Social Secu- 24 rity Act (42 U.S.C. 1395w–114); or (ii)(I) par- 25 ticipates in the program under section XVIII of f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00817 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 818 1 the Social Security Act; and (II) meets the in- 2 come requirements described in section 1860D– 3 14(a)(1) or (a)(2) of such Act (42 U.S.C. 4 1395w–114(a)(1) or (a)(2)). 5 (2) STREAMLINED ELIGIBILITY FOR CERTAIN 6 BENEFICIARIES.—The Administrator, in consulta- 7 tion with the Secretary of Health and Human Serv- 8 ices, the Commissioner of Social Security, the Rail- 9 road Retirement Board, the Secretary of Veterans 10 Affairs, and the State agencies shall develop proce- 11 dures to ensure that low-income beneficiaries of the 12 benefit programs they administer receive the energy 13 refund for which they are eligible. 14 (3) LIMITATION.—Notwithstanding any provi- 15 sion of law, the Administrator shall establish proce- 16 dures to ensure that individuals that qualify for the 17 refund under paragraph (1)(B) and that do not par- 18 ticipate in the Supplemental Nutrition Assistance 19 Program are United States citizens, United States 20 nationals, or individuals lawfully residing in the 21 United States. 22 (4) NATIONAL STANDARDS.—The Adminis- 23 trator shall establish uniform national standards of 24 eligibility in accordance with the provisions of this 25 section. No State agency shall impose any other f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00818 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 819 1 standard or requirement as a condition of eligibility 2 or refund receipt under the program. Assistance in 3 the Energy Refund Program shall be furnished 4 promptly to all eligible households who make appli- 5 cation for such participation. 6 (c) MONTHLY ENERGY REFUND AMOUNT.— 7 (1) MONTHLY ENERGY REFUND.—The monthly 8 refund under this subsection for households of 1, 2, 9 3, 4, and 5 or more members shall be equal to the 10 maximum energy tax credit amount calculated under 11 section 36B(c)(4) of the Internal Revenue Code of 12 1986 for each household size, divided by 12 and 13 rounded to the nearest whole dollar amount. 14 (2) MONTHLY ELIGIBILITY.—A household shall 15 not be eligible for the refund under this section for 16 months that the household has not established eligi- 17 bility under subsection (b). 18 (d) DELIVERY MECHANISM.— 19 (1) Subject to standards and an implementation 20 schedule set by the Administrator, the energy refund 21 shall be provided in monthly installments via— 22 (A) direct deposit into the eligible house- 23 hold’s designated bank account; 24 (B) the State’s electronic benefit transfer 25 system; or f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00819 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 820 1 (C) another Federal or State mechanism, 2 if such a mechanism is approved by the Admin- 3 istrator. 4 (2) Such standards shall include— 5 (A)(i) defining the required level of recipi- 6 ent protection regarding privacy; 7 (ii) guidance on how recipients are offered 8 choices, when relevant, about the delivery mech- 9 anism; 10 (iii) guidance on ease of use and access to 11 the refund, including the prohibition of fees 12 charged to recipients for withdrawals or other 13 services; and 14 (iv) cost-effective protections against im- 15 proper accessing of the energy refund; 16 (B) operating standards that provide for 17 interoperability between States and law enforce- 18 ment monitoring; and 19 (C) other standards, as determined by the 20 Administrator or the Administrator’s designee. 21 (e) INFORMATION ABOUT REFUND PROVIDED TO 22 HOUSEHOLDS AND INTERNAL REVENUE SERVICE.— 23 (1) By January 31 of each year, for each adult 24 that was a member of a household that received an 25 energy refund under this section in the State during f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00820 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 821 1 the prior calendar year, each State shall issue a 2 form that conforms to standards established by the 3 Secretary of the Treasury under section 36B(b) of 4 the Internal Revenue Code of 1986, containing— 5 (A) the name, address, and social security 6 number of the adult household member; and 7 (B) the number of months the individual 8 was a member of a household that received an 9 energy refund under this section. 10 (2) States shall provide this information to the 11 Internal Revenue Service in accordance to standards 12 and regulations set forth by the Secretary of the 13 Treasury. 14 (f) ADMINISTRATION.— 15 (1) IN GENERAL.—The State agency of each 16 participating State shall assume responsibility for 17 the certification of applicant households and for the 18 issuance of refunds and the control and account- 19 ability thereof. 20 (2) PROCEDURES.—Under standards estab- 21 lished by the Administrator, the State agency shall 22 establish procedures governing the administration of 23 the Energy Refund Program that the State agency 24 determines best serve households in the State, in- 25 cluding households with special needs, such as f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00821 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 822 1 households with elderly or disabled members, house- 2 holds in rural areas, homeless individuals, and 3 households residing on reservations as defined in the 4 Indian Child Welfare Act of 1978 and the Indian Fi- 5 nancing Act of 1974. In carrying out this para- 6 graph, a State agency— 7 (A) shall provide timely, accurate, and fair 8 service to applicants for, and participants in, 9 the Energy Refund Program; 10 (B) shall permit an applicant household to 11 apply to participate in the program at the time 12 that the household first contacts the State 13 agency, and shall consider an application that 14 contains the name, address, and signature of 15 the applicant to be sufficient to constitute an 16 application for participation; 17 (C) shall screen any applicant household 18 for the Supplemental Nutrition Assistance Pro- 19 gram, the State’s medical assistance program 20 under section XIX of the Social Security Act, 21 State Childrens Health Insurance Program 22 under section XXI of the Social Security Act, 23 and a State program that provides basic assist- 24 ance under a State program funded under title 25 IV of the Social Security Act or with qualified f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00822 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 823 1 State expenditures as defined in section 2 409(a)(7) of the Social Security Act for eligi- 3 bility for the Energy Refund Program and, if 4 eligible, shall enroll such applicant household in 5 the Energy Refund Program; 6 (D) shall complete certification of and pro- 7 vide a refund to any eligible household not later 8 than thirty days following its filing of an appli- 9 cation; 10 (E) shall use appropriate bilingual per- 11 sonnel and materials in the administration of 12 the program in those portions of the State in 13 which a substantial number of members of low- 14 income households speak a language other than 15 English; and 16 (F) shall utilize State agency personnel 17 who are employed in accordance with the cur- 18 rent standards for a Merit System of Personnel 19 Administration or any standards later pre- 20 scribed by the Office of Personnel Management 21 pursuant to section 208 of the Intergovern- 22 mental Personnel Act of 1970 (42 U.S.C. 4728) 23 modifying or superseding such standards relat- 24 ing to the establishment and maintenance of 25 personnel standards on a merit basis to make f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00823 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 824 1 all tentative and final determinations of eligi- 2 bility and ineligibility. 3 (3) REGULATIONS.— 4 (A) Except as provided in subparagraph 5 (B) the Administrator shall issue such regula- 6 tions consistent with this section as the Admin- 7 istrator deems necessary or appropriate for the 8 effective and efficient administration of the En- 9 ergy Refund Program and shall promulgate all 10 such regulations in accordance with the proce- 11 dures set forth in section 553 of title 5, United 12 States Code. 13 (B) Without regard to section 553 of title 14 5 of such Code, the Administrator may, during 15 the period beginning with the effective date of 16 this section and ending two years after such 17 date, by rule promulgate as final any proce- 18 dures that are substantially the same as the 19 procedures governing the Supplemental Nutri- 20 tion Assistance Program at 7 C.F.R. 273.2, 21 273.12.273.15. 22 (g) TREATMENT.—The value of the refund provided 23 under this Act shall not be considered income or resources 24 for any purpose under any Federal, State, or local laws, 25 including, but not limited to, laws relating to an income f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00824 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 825 1 tax, or public assistance programs (including, but not lim- 2 ited to, health care, cash aid, child care, nutrition pro- 3 grams, and housing assistance) and no participating State 4 or political subdivision thereof shall decrease any assist- 5 ance otherwise provided an individual or individuals be- 6 cause of the receipt of a refund under this Act. 7 (h) PROGRAM INTEGRITY.—For purposes of ensuring 8 program integrity and complying with the requirements of 9 the Improper Payment Information Act of 2002, the Ad- 10 ministrator shall— 11 (1) to the maximum extent possible rely on and 12 coordinate with the quality control sample and re- 13 view procedures of section 16(c)(2), (3), (4), and (5) 14 of the Supplemental Nutrition Assistance Program; 15 and 16 (2) develop procedures to monitor the compli- 17 ance with and accuracy of State agencies in pro- 18 viding forms to household members and the Internal 19 Revenue Service under subsection (f). 20 (i) DEFINITIONS.— 21 (1) ADMINISTRATOR.—The term ‘‘Adminis- 22 trator’’ means the Administrator of the Environ- 23 mental Protection Agency or the head of another 24 agency designated by the Administrator. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00825 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 826 1 SYS- (2) ELECTRONIC BENEFIT TRANSFER 2 TEM.—The term ‘‘electronic benefit transfer system’’ 3 means a system by which household benefits or re- 4 funds defined under subsection (d) are issued from 5 and stored in a central databank via electronic ben- 6 efit transfer cards. 7 (3) GROSS INCOME.—The term ‘‘gross income’’ 8 means the gross income of a household that is deter- 9 mined in accordance with standards and procedures 10 established under section 5 of the Food and Nutri- 11 tion Act of 2008 (7 U.S.C. 2014) and its imple- 12 menting regulations. 13 (4) HOUSEHOLD.—The term ‘‘household’’ 14 means— 15 (A)(i) except as provided in subparagraph 16 (C), an individual or a group of individuals who 17 are a household under section 3(n) of the Food 18 and Nutrition Act of 2008 (7 U.S.C. 2012(n)); 19 and 20 (ii) a single individual or married couple 21 that receive benefits under section 1860D–14 of 22 the Social Security Act (42 U.S.C. 1395w– 23 114). 24 (B) The Administrator shall establish rules 25 for providing the energy refund in an equitable f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00826 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 827 1 and administratively simple manner to house- 2 holds where the group of individuals who live 3 together includes a combination of members de- 4 scribed in clauses (i) and (ii) of subparagraph 5 (A), or includes additional members not de- 6 scribed in clause (i) or clause (ii) of subpara- 7 graph (A). 8 (C) The Administrator shall establish rules 9 regarding the eligibility and delivery of the en- 10 ergy refund to groups of individuals described 11 in section 3(n)(4) or (5) of the Food and Nutri- 12 tion Act of 2008 (7 U.S.C. 2012(n)). 13 (5) POVERTY LINE.—The term ‘‘poverty line’’ 14 has the meaning given the term in section 673(2) of 15 the Community Services Block Grant Act (42 U.S.C. 16 9902(2)), including any revision required by that 17 section. 18 (6) STATE.—The term ‘‘State’’ means the 50 19 States, the District of Columbia, the Commonwealth 20 of Puerto Rico, American Samoa, the United States 21 Virgin Islands, Guam, and the Commonwealth of the 22 Northern Mariana Islands. 23 (7) STATE AGENCY.—The term ‘‘State agency’’ 24 means an agency of State government, including the 25 local offices thereof, that has responsibility for ad- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00827 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 828 1 ministration of the 1 or more federally aided public 2 assistance programs within the State, and in those 3 States where such assistance programs are operated 4 on a decentralized basis, the term shall include the 5 counterpart local agencies administering such pro- 6 grams. 7 (8) OTHER TERMS.—Other terms not defined in 8 this Act shall have the same meaning applied in the 9 Supplemental Nutrition Assistance Program unless 10 the Administrator finds for good cause that applica- 11 tion of a particular definition would be detrimental 12 to the purposes of the Energy Refund Program. 13 (j) AUTHORIZATION APPROPRIATIONS.— Such OF 14 sums as are necessary are hereby appropriated for the En- 15 ergy Refund Program under this section. Subtitle D—Exporting Clean 16 Technology 17 18 SEC. 441. FINDINGS AND PURPOSES. 19 (a) FINDINGS.—Congress finds the following: 20 (1) Protecting Americans from the impacts of 21 climate change requires global reductions in green- 22 house gas emissions. 23 (2) Although developing countries are histori- 24 cally least responsible for the cumulative greenhouse 25 gas emissions that are causing climate change and f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00828 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 829 1 continue to have very low per capita greenhouse gas 2 emissions, their overall greenhouse gas emissions are 3 increasing as they seek to grow their economies and 4 reduce energy poverty for their populations. 5 (3) Many developing countries lack the financial 6 and technical resources to adopt clean energy tech- 7 nologies and absent assistance their greenhouse gas 8 emissions will continue to increase. 9 (4) Investments in clean energy technology co- 10 operation can substantially reduce global greenhouse 11 gas emissions while providing developing countries 12 with incentives to adopt policies that will address 13 competitiveness concerns related to regulation of 14 United States greenhouse gas emissions. 15 (5) Investments in clean technology in devel- 16 oping countries will increase demand for clean en- 17 ergy products, open up new markets for United 18 States companies, spur innovation, and lower costs. 19 (6) Under Article 4 of the United Nations 20 Framework Convention on Climate Change, devel- 21 oped country parties, including the United States, 22 committed to ‘‘take all practicable steps to promote, 23 facilitate, and finance, as appropriate, the transfer 24 of, or access to, environmentally sound technologies 25 and know-how to other parties, particularly devel- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00829 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 830 1 oping country parties, to enable them to implement 2 the provisions of the Convention’’. 3 (7) Under the Bali Action Plan, developed 4 country parties to the United Nations Framework 5 Convention on Climate Change, including the United 6 States, committed to ‘‘enhanced action on the provi- 7 sion of financial resources and investment to support 8 action on mitigation and adaptation and technology 9 cooperation,’’ including, inter alia, consideration of 10 ‘‘improved access to adequate, predictable, and sus- 11 tainable financial resources and financial and tech- 12 nical support, and the provision of new and addi- 13 tional resources, including official and concessional 14 funding for developing country parties’’. 15 (b) PURPOSES.—The purposes of this subtitle are— 16 (1) to provide United States assistance and le- 17 verage private resources to encourage widespread 18 implementation, in developing countries, of activities 19 that reduce, sequester, or avoid greenhouse gas 20 emissions; and 21 (2) to provide such assistance in a manner 22 that— 23 (A) encourages such countries to adopt 24 policies and measures, including sector-based 25 and cross-sector policies and measures, that f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00830 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 831 1 substantially reduce, sequester, or avoid green- 2 house gas emissions; and 3 (B) promotes the successful negotiation of 4 a global agreement to reduce greenhouse gas 5 emissions under the United Nations Framework 6 Convention on Climate Change. 7 SEC. 442. DEFINITIONS. 8 In this subtitle: 9 (1) ALLOWANCE.—The term ‘‘allowance’’ 10 means an emission allowance established under sec- 11 tion 721 of the Clean Air Act. 12 (2) APPROPRIATE COMMIT- CONGRESSIONAL 13 TEES.—The term ‘‘appropriate congressional com- 14 mittees’’ means— 15 (A) the Committees on Energy and Com- 16 merce, Foreign Affairs, and Financial Services 17 of the House of Representatives; and 18 (B) the Committees on Environment and 19 Public Works, Energy and Natural Resources, 20 and Foreign Relations of the Senate. 21 (3) CONVENTION.—The term ‘‘Convention’’ 22 means the United Nations Framework Convention 23 on Climate Change, done at New York on May 9, 24 1992, and entered into force on March 21, 1994. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00831 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 832 1 COUNTRY.—The term ‘‘devel- (4) DEVELOPING 2 oping country’’ means a country eligible to receive 3 official development assistance according to the in- 4 come guidelines of the Development Assistance Com- 5 mittee of the Organization for Economic Coopera- 6 tion and Development. 7 (5) ELIGIBLE COUNTRY.—The term ‘‘eligible 8 country’’ means a developing country that is deter- 9 mined by the interagency group under section 444 10 to be eligible to receive assistance from the Inter- 11 national Clean Technology Account. 12 (6) INTERAGENCY GROUP.—The term ‘‘inter- 13 agency group’’ means the group established by the 14 President under section 443 to administer distribu- 15 tions from the International Clean Technology Ac- 16 count. 17 (7) INTERNATIONAL CLEAN TECHNOLOGY AC- 18 COUNT.—The term ‘‘International Clean Technology 19 Account’’ means the account to which the Adminis- 20 trator allocates allowances under section 782(o) of 21 the Clean Air Act. 22 (8) LEAST DEVELOPED COUNTRY.—The term 23 ‘‘least developed country’’ means a foreign country 24 the United Nations has identified as among the least 25 developed of developing countries. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00832 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 833 1 ACTIVITY.—The term ‘‘quali- (9) QUALIFYING 2 fying activity’’ means an activity that meets the cri- 3 teria in section 445. 4 (10) QUALIFYING ENTITY.—The term ‘‘quali- 5 fying entity’’ means a national, regional, or local 6 government in, or a nongovernmental organization 7 or private entity located or operating in, an eligible 8 country. 9 SEC. 443. GOVERNANCE. 10 (a) OVERSIGHT.—The Secretary of State, or such 11 other Federal agency head as the President may des- 12 ignate, in consultation with the interagency group estab- 13 lished under subsection (b), shall oversee distributions of 14 allowances from the International Clean Technology Ac- 15 count. 16 (b) INTERAGENCY GROUP.—The President shall es- 17 tablish an interagency group to administer the Inter- 18 national Clean Technology Account. The Members of the 19 interagency group shall include— 20 (1) the Secretary of State; 21 (2) the Administrator of the Environmental 22 Protection Agency; 23 (3) the Secretary of Energy; 24 (4) the Secretary of the Treasury; f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00833 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 834 1 (5) the Administrator of the United States 2 Agency for International Development; and 3 (6) any other head of a Federal agency or exec- 4 utive branch appointee that the President may des- 5 ignate. 6 (c) CHAIRPERSON.—The Secretary of State shall 7 serve as the chairperson of the interagency group. 8 (d) SUPPLEMENT NOT SUPPLANT.—Allowances dis- 9 tributed from the International Clean Technology Account 10 shall be used to supplement, and not to supplant, any 11 other Federal, State, or local resources available to carry 12 out activities that are qualifying activities under this sub- 13 title. 14 SEC. 444. DETERMINATION OF ELIGIBLE COUNTRIES. 15 (a) IN GENERAL.—The interagency group shall de- 16 termine a country to be an eligible country for the pur- 17 poses of this subtitle if a country meets the following cri- 18 teria: 19 (1) The country is a developing country that— 20 (A) has entered into an international 21 agreement to which the United States is a 22 party, under which such country agrees to take 23 actions to produce measurable, reportable, and 24 verifiable greenhouse gas emissions mitigation; 25 or f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00834 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 835 1 (B) is determined by the interagency group 2 to have in force national policies and measures 3 that are capable of producing measurable, re- 4 portable, and verifiable greenhouse gas emis- 5 sions mitigation. 6 (2) The country has developed a nationally ap- 7 propriate mitigation strategy that seeks to achieve 8 substantial reductions, sequestration, or avoidance of 9 greenhouse gas emissions, relative to business-as- 10 usual levels. 11 (3) Subject to subsection (b)(1), such other cri- 12 teria as the President determines will serve the pur- 13 poses of this subtitle or other United States national 14 security, foreign policy, environmental, or economic 15 objectives. 16 (b) EXCEPTIONS.— 17 (1) Subsection (a)(3) applies only to bilateral 18 assistance under section 446(c). 19 (2) The eligibility criteria in this section do not 20 apply in the case of least developed countries receiv- 21 ing assistance under section 445(7) for the purpose 22 of building capacity to meet such eligibility criteria. 23 SEC. 445. QUALIFYING ACTIVITIES. 24 Assistance under this subtitle may be provided only 25 to qualifying entities for clean technology activities (in- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00835 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 836 1 cluding building relevant technical and institutional capac- 2 ity) that contribute to substantial, measurable, reportable, 3 and verifiable reductions, sequestration, or avoidance of 4 greenhouse gas emissions including— 5 (1) deployment of technologies to capture and 6 sequester carbon dioxide emissions from electric gen- 7 erating units or large industrial sources (except that 8 assistance under this subtitle for such deployment 9 shall be limited to the cost of retrofitting existing fa- 10 cilities with such technologies or the incremental 11 cost of purchasing and installing such technologies 12 at new facilities); 13 (2) deployment of renewable electricity genera- 14 tion from wind, solar, sustainably-produced biomass, 15 geothermal, marine, or hydrokinetic sources; 16 (3) substantial increases in the efficiency of 17 electricity transmission, distribution, and consump- 18 tion; 19 (4) deployment of low- or zero emissions tech- 20 nologies that are facing financial or other barriers to 21 their widespread deployment which could be ad- 22 dressed through support under this subtitle in order 23 to reduce, sequester, or avoid emission; 24 (5) reduction in transportation sector emissions 25 through increased transportation system and vehicle f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00836 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 837 1 efficiency or use of transportation fuels that have 2 lifecycle greenhouse gas emissions that are substan- 3 tially lower than those attributable to fossil fuel- 4 based alternatives; 5 (6) reduction in black carbon emissions; or 6 (7) capacity building activities, including— 7 (A) developing and implementing meth- 8 odologies and programs for measuring and 9 quantifying greenhouse gas emissions and 10 verifying emissions mitigation; 11 (B) assessing, developing, and imple- 12 menting technology and policy options for 13 greenhouse gas emissions mitigation and avoid- 14 ance of future emissions, including sector and 15 cross-sector mitigation strategies; and 16 (C) providing other forms of technical as- 17 sistance to facilitate the qualification for, and 18 receipt of, assistance under this Act. 19 SEC. 446. ASSISTANCE. 20 (a) IN GENERAL.—The Secretary of State, or such 21 other Federal agency head as the President may des- 22 ignate, is authorized to provide assistance, through the 23 distribution of allowances, from the International Clean 24 Technology Account for qualifying activities that take 25 place in eligible countries. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00837 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 838 1 (b) DISTRIBUTION OF ALLOWANCES.— 2 (1) IN GENERAL.—The Secretary of State, or 3 such other Federal agency head as the President 4 may designate, after consultation with the inter- 5 agency group, shall distribute allowances from the 6 International Clean Technology Account— 7 (A) in the form of bilateral assistance in 8 accordance with paragraph (4); 9 (B) to multilateral funds or institutions 10 pursuant to the Convention or an agreement 11 negotiated under the Convention; or 12 (C) through some combination of the 13 mechanisms identified in subparagraphs (A) 14 and (B). 15 (2) GLOBAL ENVIRONMENT FACILITY.—For any 16 allowances provided to the Global Environment Fa- 17 cility pursuant to paragraph (1)(B), the President 18 shall designate the Secretary of the Treasury to dis- 19 tribute those allowances to the Global Environment 20 Facility. 21 (3) DISTRIBUTION THROUGH INTERNATIONAL 22 FUND OR INSTITUTION.—If allowances are distrib- 23 uted to a multilateral fund or institution, as author- 24 ized in paragraph (1), the Secretary of State, or 25 such other Federal agency head as the President f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00838 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 839 1 may designate, shall seek to ensure the establish- 2 ment and implementation of adequate mechanisms 3 to— 4 (A) apply and enforce the criteria for de- 5 termination of eligible countries and qualifying 6 activities under sections 444 and 445, respec- 7 tively; and 8 (B) require public reporting describing the 9 process and methodology for selecting the ulti- 10 mate recipients of assistance and a description 11 of each activity that received assistance, includ- 12 ing the amount of obligations and expenditures 13 for assistance. 14 (4) BILATERAL ASSISTANCE.— 15 (A) IN GENERAL.—Bilateral assistance 16 under paragraph (1) shall be carried out by the 17 Administrator of the United States Agency for 18 International Development, in consultation with 19 the interagency group. 20 (B) LIMITATIONS.—Not more than 15 per- 21 cent of allowances made available to carry out 22 bilateral assistance under this subtitle in any 23 year shall be distributed to support activities in 24 any single country. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00839 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 840 1 CRITERIA.—Not later than (C) SELECTION 2 2 years after the date of enactment of this sub- 3 title, the Administrator of the United States 4 Agency for International Development, after 5 consultation with the interagency group, shall 6 develop and publish a set of criteria to be used 7 in evaluating activities within eligible countries 8 for bilateral assistance under this subtitle. 9 (D) CRITERIA REQUIREMENTS.—The cri- 10 teria under subparagraph (C) shall require 11 that— 12 (i) the activity is a qualifying activity; 13 (ii) the activity will be conducted as 14 part of an eligible country’s nationally ap- 15 propriate mitigation strategy or as part of 16 an eligible country’s actions towards pro- 17 viding a nationally appropriate mitigation 18 strategy to reduce, sequester, or avoid 19 emissions being implemented by the eligi- 20 ble country; 21 (iii) the activity will not have adverse 22 effects on human health, safety, or welfare, 23 the environment, or natural resources; f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00840 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 841 1 (iv) any technologies deployed through 2 bilateral assistance under this subtitle will 3 be properly implemented and maintained; 4 (v) the activity will not cause any net 5 loss of United States jobs or displacement 6 of United States production; 7 (vi) costs of the activity will be shared 8 by the host country government, private 9 sector parties, or a multinational develop- 10 ment bank, except that this clause does not 11 apply to least developed countries; and 12 (vii) the activity meets such other re- 13 quirements as the interagency group deter- 14 mines appropriate to further the purposes 15 of this subtitle. 16 (E) CRITERIA PREFERENCES.—The cri- 17 teria under subparagraph (C) shall give pref- 18 erence to activities that— 19 (i) promise to achieve large-scale 20 greenhouse gas reductions, sequestration, 21 or avoidance at a national, sectoral or 22 cross-sectoral level; 23 (ii) have the potential to catalyze a 24 shift within the host country towards wide- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00841 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 842 1 spread deployment of low- or zero-carbon 2 energy technologies; 3 (iii) build technical and institutional 4 capacity and other activities that are un- 5 likely to be attractive to private sector 6 funding; or 7 (iv) maximize opportunities to lever- 8 age other sources of assistance and cata- 9 lyze private-sector investment. 10 (c) MONITORING, EVALUATION, ENFORCE- AND 11 MENT.—The Secretary of State, or such other Federal 12 agency head as the President may designate, in consulta- 13 tion with the interagency group, shall establish and imple- 14 ment a system to monitor and evaluate the performance 15 of activities receiving assistance under this subtitle. The 16 Secretary of State, or such other Federal agency head as 17 the President may designate, shall have the authority to 18 suspend or terminate assistance in whole or in part for 19 an activity if it is determined that the activity is not oper- 20 ating in compliance with the approved proposal. 21 (d) COORDINATION WITH U.S. FOREIGN ASSIST- 22 ANCE.—Subject to the direction of the President, the Sec- 23 retary of State shall, to the extent practicable, seek to 24 align activities under this section with broader develop- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00842 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 843 1 ment, poverty alleviation, or natural resource management 2 objectives and initiatives in the recipient country. 3 (e) ANNUAL REPORTS.—Not later than March 1, 4 2012, and annually thereafter, the President shall submit 5 to the appropriate congressional committees a report on 6 the assistance provided under this subtitle during the prior 7 fiscal year. Such report shall include— 8 (1) a description of the amount and value of al- 9 lowances distributed during the prior fiscal year; 10 (2) a description of each activity that received 11 assistance during the prior fiscal year, and a de- 12 scription of the anticipated and actual outcomes; 13 (3) an assessment of any adverse effects to 14 human health, safety, or welfare, the environment, 15 or natural resources as a result of activities sup- 16 ported under this subtitle; 17 (4) an assessment of the success of the assist- 18 ance provided under this subtitle to improving the 19 technical and institutional capacity to implement 20 substantial emissions reductions; and 21 (5) an estimate of the greenhouse gas emissions 22 reductions, sequestration, or avoidance achieved by 23 assistance provided under this subtitle during the 24 prior fiscal year. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00843 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 844 Subtitle E—Adapting to Climate 1 Change 2 3 PART 1—DOMESTIC ADAPTATION 4 Subpart A—National Climate Change Adaptation 5 Program 6 SEC. 451. NATIONAL CLIMATE CHANGE ADAPTATION PRO- 7 GRAM. 8 The President shall establish within the United 9 States Global Change Research Program a National Cli- 10 mate Change Adaptation Program for the purpose of in- 11 creasing the overall effectiveness of Federal climate 12 change adaptation efforts. 13 SEC. 452. CLIMATE SERVICES. 14 The Secretary of Commerce, acting through the Ad- 15 ministrator of the National Oceanic and Atmospheric Ad- 16 ministration (NOAA), shall establish within NOAA a Na- 17 tional Climate Service to develop climate information, 18 data, forecasts, and warnings at national and regional 19 scales, and to distribute information related to climate im- 20 pacts to State, local, and tribal governments and the pub- 21 lic to facilitate the development and implementation of 22 strategies to reduce society’s vulnerability to climate varia- 23 bility and change. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00844 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 845 1 SEC. 453. STATE PROGRAMS TO BUILD RESILIENCE TO CLI- 2 MATE CHANGE IMPACTS. 3 (a) DISTRIBUTION OF ALLOWANCES.— 4 (1) IN GENERAL.—Not later than September 5 30, 2012, and annually thereafter through 2050, the 6 Administrator shall distribute allowances allocated 7 for purposes of this subpart pursuant to section ø782¿ of the Clean Air Act ratably among the State 8 9 governments based on the product of— 10 (A) each State’s population; and 11 (B) each State’s allocation factor as deter- 12 mined under paragraph (2). 13 (2) STATE ALLOCATION FACTORS.— 14 (A) IN GENERAL.—Except as provided in 15 subparagraph (B), the allocation factor for a 16 State shall be the quotient of— 17 (i) the per capita income of all indi- 18 viduals in the United States, divided by 19 (ii) the per capita income of all indi- 20 viduals in such State. 21 (B) LIMITATION.—If the allocation factor 22 for a State as calculated under subparagraph 23 (A) would exceed 1.2, then the allocation factor 24 for such State shall be 1.2. If the allocation fac- 25 tor for a State as calculated under subpara- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00845 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 846 1 graph (A) would be less than 0.8, then the allo- 2 cation factor for such State shall be 0.8. 3 (C) PER CAPITA INCOME.—For purposes 4 of this paragraph, per capita income shall be— 5 (i) determined at 2-year intervals; and 6 (ii) equal to the average of the annual 7 per capita incomes for the most recent pe- 8 riod of 3 consecutive years for which satis- 9 factory data are available from the Depart- 10 ment of Commerce at the time such deter- 11 mination is made. 12 (b) SALE ALLOWANCES.—Each State receiving OF 13 emission allowances under this section shall sell such al- 14 lowances within 1 year of receipt, either directly or 15 through consignment to the Administrator for auction. 16 States shall deposit the proceeds of such sales within the 17 State Energy and Environment Development (SEED) 18 Fund established pursuant to section 131 of the American 19 Clean Energy and Security Act of 2009. Emission allow- 20 ances distributed under this section that are not sold with- 21 in 1 year of receipt by a State shall be returned to the 22 Administrator, who shall distribute such allowances to the 23 remaining States ratably in accordance with the formula 24 in subsection (a). f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00846 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 847 1 PROCEEDS.—States shall, in accordance (c) USE OF 2 with a State climate adaptation plan approved pursuant 3 to subsection (d), use the proceeds of sales of emission 4 allowances distributed under this section exclusively for 5 the implementation of projects, programs, or measures to 6 build resilience to the impacts of climate change, includ- 7 ing— 8 (1) extreme weather events such as flooding 9 and tropical cyclones; 10 (2) more frequent heavy precipitation events; 11 (3) water scarcity and adverse impacts on water 12 quality; 13 (4) stronger and longer heat waves; 14 (5) more frequent and severe droughts; 15 (6) rises in sea level; 16 (7) ecosystem disruption; 17 (8) increased air pollution; and 18 (9) effects on public health. 19 (d) STATE CLIMATE ADAPTATION PLANS.— 20 (1) IN GENERAL.—Not later than 2 years after 21 the date of enactment of this Act, the Administrator, 22 or such other Federal agency head or heads as the 23 President may designate, shall promulgate regula- 24 tions establishing requirements for submission and 25 approval of State climate adaptation plans under f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00847 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 848 1 this section. Receipt of emission allowances pursuant 2 to this section shall be contingent on approval of a 3 State climate adaptation plan meeting the require- 4 ments of such guidelines. 5 (2) REQUIREMENTS.—Regulations promulgated 6 under this subsection shall require, at minimum, 7 that— 8 (A) State climate adaptation plans assess 9 and prioritize the State’s vulnerability to a 10 broad range of impacts of climate change, based 11 on the best available science; 12 (B) State climate adaptation plans identify 13 and prioritize specific cost-effective projects, 14 programs, and measures to build resilience to 15 predicted impacts of climate change; and 16 (C) in order to be eligible to receive emis- 17 sion allowances under this section, a State shall 18 submit a revised State climate adaptation plan 19 for approval not less frequently than every 5 20 years. 21 (3) COORDINATION WITH PRIOR PLANNING EF- 22 FORTS.—In promulgating regulations under this 23 subsection, the Administrator, or such other Federal 24 agency head or heads as the President may des- 25 ignate, shall draw upon lessons learned and best f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00848 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 849 1 practices from preexisting State climate adaptation 2 planning efforts and shall seek to avoid duplication 3 of such efforts. 4 (e) REPORTING.—Each State receiving emission al- 5 lowances under this section shall submit to the Adminis- 6 trator, or such other Federal agency head or heads as the 7 President may designate, within 12 months after each re- 8 ceipt of such allowances and once every 2 years thereafter 9 until the proceeds from the sale of emission allowances 10 received under this section are fully expended, a report 11 that— 12 (1) provides a full accounting for the State’s 13 use of proceeds of sales of emission allowances dis- 14 tributed under this section, including a description 15 of the projects, programs, or measures funded 16 through such proceeds; and 17 (2) includes a report prepared by an inde- 18 pendent third party, in accordance with such regula- 19 tions as are promulgated by the Administrator or 20 such other Federal agency head or heads as the 21 President may designate, evaluating the performance 22 of the projects, programs, or measures funded under 23 this section. 24 (f) ENFORCEMENT.—If the Administrator, or such 25 other Federal agency head or heads as the President may f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00849 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 850 1 designate, determines that a State is not in compliance 2 with this section, the Administrator may withhold a por- 3 tion of the allowances, the value of which is equal to up 4 to twice the value of the allowances that the State failed 5 to use in accordance with the requirements of this section, 6 that such State would otherwise be eligible to receive 7 under this section in 1 or more later years. Allowances 8 withheld pursuant to this subsection shall be distributed 9 among the remaining States ratably in accordance with 10 the formula in subsection (a). 11 Subpart B—Public Health and Climate Change 12 SEC. 461. SENSE OF CONGRESS ON PUBLIC HEALTH AND 13 CLIMATE CHANGE. 14 It is the sense of the Congress that the Federal Gov- 15 ernment, in cooperation with international, State, tribal, 16 and local governments, concerned public and private orga- 17 nizations, and citizens, should use all practicable means 18 and measures— 19 (1) to assist the efforts of public health and 20 health care professionals, first responders, States, 21 tribes, municipalities, and local communities to in- 22 corporate measures to prepare health systems to re- 23 spond to the impacts of climate change; 24 (2) to ensure— f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00850 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 851 1 (A) that the Nation’s health professionals 2 have sufficient information to prepare for and 3 respond to the adverse health impacts of cli- 4 mate change; 5 (B) the utility and value of scientific re- 6 search in advancing understanding of— 7 (i) the health impacts of climate 8 change; and 9 (ii) strategies to prepare for and re- 10 spond to the health impacts of climate 11 change; 12 (C) the identification of communities vul- 13 nerable to the health effects of climate change 14 and the development of strategic response plans 15 to be carried out by health professionals for 16 those communities; 17 (D) the improvement of health status and 18 health equity through efforts to prepare for and 19 respond to climate change; and 20 (E) the inclusion of health policy in the de- 21 velopment of climate change responses; 22 (3) to encourage further research, interdiscipli- 23 nary partnership, and collaboration among stake- 24 holders in order to— f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00851 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 852 1 (A) understand and monitor the health im- 2 pacts of climate change; and 3 (B) improve public health knowledge and 4 response strategies to climate change; 5 (4) to enhance preparedness activities, and pub- 6 lic health infrastructure, relating to climate change 7 and health; 8 (5) to encourage each and every American to 9 learn about the impacts of climate change on health; 10 and 11 (6) to assist the efforts of developing nations to 12 incorporate measures to prepare health systems to 13 respond to the impacts of climate change. 14 SEC. 462. RELATIONSHIP TO OTHER LAWS. 15 Nothing in this subpart in any manner limits the au- 16 thority provided to or responsibility conferred on any Fed- 17 eral department or agency by any provision of any law 18 (including regulations) or authorizes any violation of any 19 provision of any law (including regulations), including any 20 health, energy, environmental, transportation, or any 21 other law or regulation. 22 SEC. 463. NATIONAL STRATEGIC ACTION PLAN. 23 (a) REQUIREMENT.— 24 (1) IN GENERAL.—The Secretary of Health and 25 Human Services, within 2 years after the date of the f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00852 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 853 1 enactment of this Act, on the basis of the best avail- 2 able science, and in consultation pursuant to para- 3 graph (2), shall publish a strategic action plan to as- 4 sist health professionals in preparing for and re- 5 sponding to the impacts of climate change on public 6 health in the United States and other nations, par- 7 ticularly developing nations. 8 (2) CONSULTATION.—In developing or making 9 any revision to the national strategic action plan, the 10 Secretary shall— 11 (A) consult with the Director of the Cen- 12 ters for Disease Control and Prevention, the 13 Administrator of the Environmental Protection 14 Agency, the Director of the National Institutes 15 of Health, the Secretary of Energy, other ap- 16 propriate Federal agencies, Indian tribes, State 17 and local governments, public health organiza- 18 tions, scientists, and other interested stake- 19 holders; and 20 (B) provide opportunity for public input. 21 (b) CONTENTS.— 22 (1) IN GENERAL.—The Secretary, acting 23 through the Director of the Centers for Disease 24 Control and Prevention and other appropriate Fed- 25 eral agencies, shall assist health professionals in pre- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00853 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 854 1 paring for and responding effectively and efficiently 2 to the health effects of climate change through 3 measures including— 4 (A) developing, improving, integrating, and 5 maintaining domestic and international disease 6 surveillance systems and monitoring capacity to 7 respond to health-related effects of climate 8 change, including on topics addressing— 9 (i) water, food, and vector borne infec- 10 tious diseases and climate change; 11 (ii) pulmonary effects, including re- 12 sponses to aeroallergens; 13 (iii) cardiovascular effects, including 14 impacts of temperature extremes; 15 (iv) air pollution health effects, includ- 16 ing heightened sensitivity to air pollution; 17 (v) hazardous algal blooms; 18 (vi) mental and behavioral health im- 19 pacts of climate change; 20 (vii) the health of refugees, displaced 21 persons, and vulnerable communities; 22 (viii) the implications for communities 23 vulnerable to health effects of climate 24 change, as well as strategies for responding f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00854 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 855 1 to climate change within these commu- 2 nities; and 3 (ix) local and community-based health 4 interventions for climate-related health im- 5 pacts; 6 (B) creating tools for predicting and moni- 7 toring the public health effects of climate 8 change on the international, national, regional, 9 State, and local levels, and providing technical 10 support to assist in their implementation; 11 (C) developing public health communica- 12 tions strategies and interventions for extreme 13 weather events and disaster response situations; 14 (D) identifying and prioritizing commu- 15 nities and populations vulnerable to the health 16 effects of climate change, and determining ac- 17 tions and communication strategies that should 18 be taken to inform and protect these commu- 19 nities and populations from the health effects of 20 climate change; 21 (E) developing health communication, pub- 22 lic education, and outreach programs aimed at 23 public health and health care professionals, as 24 well as the general public, to promote prepared- 25 ness and response strategies relating to climate f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00855 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 856 1 change and public health, including the identi- 2 fication of greenhouse gas reduction behaviors 3 that are health-promoting; and 4 (F) developing academic and regional cen- 5 ters of excellence devoted to— 6 (i) researching relationships between 7 climate change and health; 8 (ii) expanding and training the public 9 health workforce to strengthen the capacity 10 of such workforce to respond to and pre- 11 pare for the health effects of climate 12 change; 13 (iii) creating and supporting academic 14 fellowships focusing on the health effects 15 of climate change; and 16 (iv) training senior health ministry of- 17 ficials from developing nations to strength- 18 en the capacity of such nations to— 19 (I) prepare for and respond to 20 the health effects of climate change; 21 and 22 (II) build an international net- 23 work of public health professionals 24 with the necessary climate change 25 knowledge base; f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00856 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 857 1 (G) using techniques, including health im- 2 pact assessments, to assess various climate 3 change public health preparedness and response 4 strategies on international, national, State, re- 5 gional, tribal, and local levels, and make rec- 6 ommendations as to those strategies that best 7 protect the public health; 8 (H)(i) assisting in the development, imple- 9 mentation, and support of State, regional, trib- 10 al, and local preparedness, communication, and 11 response plans (including with respect to the 12 health departments of such entities) to antici- 13 pate and reduce the health threats of climate 14 change; and 15 (ii) pursuing collaborative efforts to de- 16 velop, integrate, and implement such plans; 17 (I) creating a program to advance research 18 as it relates to the effects of climate change on 19 public health across Federal agencies, including 20 research to— 21 (i) identify and assess climate change 22 health effects preparedness and response 23 strategies; 24 (ii) prioritize critical public health in- 25 frastructure projects related to potential f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00857 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 858 1 climate change impacts that affect public 2 health; and 3 (iii) coordinate preparedness for cli- 4 mate change health impacts, including the 5 development of modeling and forecasting 6 tools; 7 (J) providing technical assistance for the 8 development, implementation, and support of 9 preparedness and response plans to anticipate 10 and reduce the health threats of climate change 11 in developing nations; and 12 (K) carrying out other activities deter- 13 mined appropriate by the Secretary to plan for 14 and respond to the impacts of climate change 15 on public health. 16 (c) REVISION.—The Secretary shall revise the na- 17 tional strategic action plan not later than July 1, 2014, 18 and every 4 years thereafter, to reflect new information 19 collected pursuant to implementation of the national stra- 20 tegic action plan and otherwise, including information 21 on— 22 (1) the status of critical environmental health 23 parameters and related human health impacts; 24 (2) the impacts of climate change on public 25 health; and f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00858 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 859 1 (3) advances in the development of strategies 2 for preparing for and responding to the impacts of 3 climate change on public health. 4 (d) IMPLEMENTATION.— 5 (1) IMPLEMENTATION HHS.—The THROUGH 6 Secretary shall exercise the Secretary’s authority 7 under this subpart and other provisions of Federal 8 law to achieve the goals and measures of the na- 9 tional strategic action plan. 10 (2) OTHER PUBLIC HEALTH PROGRAMS AND 11 INITIATIVES.—The Secretary and Federal officials of 12 other relevant Federal agencies shall administer 13 public health programs and initiatives authorized by 14 provisions of law other than this subpart, subject to 15 the requirements of such statutes, in a manner de- 16 signed to achieve the goals of the national strategic 17 action plan. 18 (3) CDC.—In furtherance of the national stra- 19 tegic action plan, the Secretary, acting through the 20 Director of the Centers for Disease Control and Pre- 21 vention and the head of any other appropriate Fed- 22 eral agency, shall— 23 (A) conduct scientific research to assist 24 health professionals in preparing for and re- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00859 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 860 1 sponding to the impacts of climate change on 2 public health; and 3 (B) provide funding for— 4 (i) research on the health effects of 5 climate change; and 6 (ii) preparedness planning on the 7 international, national, State, regional, and 8 local levels to respond to or reduce the bur- 9 den of health effects of climate change; 10 and 11 (C) carry out other activities determined 12 appropriate by the Director or the head of such 13 agency to prepare for and respond to the im- 14 pacts of climate change on public health. 15 SEC. 464. ADVISORY BOARD. 16 (a) ESTABLISHMENT.—The Secretary shall establish 17 a permanent science advisory board comprised of not less 18 than 10 and not more than 20 members. 19 (b) APPOINTMENT MEMBERS.—The Secretary OF 20 shall appoint the members of the science advisory board 21 from among individuals— 22 (1) who have expertise in public health and 23 human services, climate change, and other relevant 24 disciplines; and f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00860 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 861 1 (2) at least 1⁄2 of whom are recommended by 2 the President of the National Academy of Sciences. 3 (c) FUNCTIONS.—The science advisory board shall— 4 (1) provide scientific and technical advice and 5 recommendations to the Secretary on the domestic 6 and international impacts of climate change on pub- 7 lic health, populations and regions particularly vul- 8 nerable to the effects of climate change, and strate- 9 gies and mechanisms to prepare for and respond to 10 the impacts of climate change on public health; and 11 (2) advise the Secretary regarding the best 12 science available for purposes of issuing the national 13 strategic action plan. 14 SEC. 465. REPORTS. 15 (a) NEEDS ASSESSMENT.— 16 (1) IN GENERAL.—The Secretary shall seek to 17 enter into, by not later than 6 months after the date 18 of the enactment of this Act, an agreement with the 19 National Research Council and the Institute of Med- 20 icine to complete a report that— 21 (A) assesses the needs for health profes- 22 sionals to prepare for and respond to climate 23 change impacts on public health; and 24 (B) recommends programs to meet those 25 needs. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00861 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 862 1 (2) SUBMISSION.—The agreement under para- 2 graph (1) shall require the completed report to be 3 submitted to the Congress and the Secretary and 4 made publicly available not later than 1 year after 5 the date of the agreement. 6 (b) CLIMATE CHANGE HEALTH PROTECTION AND 7 PROMOTION REPORTS.— 8 (1) IN GENERAL.—The Secretary, in consulta- 9 tion with the advisory board established under sec- 10 tion 464, shall ensure the issuance of reports to aid 11 health professionals in preparing for and responding 12 to the adverse health effects of climate change 13 that— 14 (A) review scientific developments on 15 health impacts of climate change; and 16 (B) recommend changes to the national 17 strategic action plan. 18 (2) SUBMISSION.—The Secretary shall submit 19 the reports required by paragraph (1) to the Con- 20 gress and make such reports publicly available not 21 later than July 1, 2013, and every 4 years there- 22 after. 23 SEC. 466. DEFINITIONS. 24 In this subpart: f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00862 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 863 1 IMPACT ASSESSMENT.—The term (1) HEALTH 2 ‘‘health impact assessment’’ means a combination of 3 procedures, methods, and tools by which a policy, 4 program, or project may be judged as to its potential 5 effects on the health of a population, and the dis- 6 tribution of those effects within the population. 7 (2) NATIONAL STRATEGIC ACTION PLAN.—The 8 term ‘‘national strategic action plan’’ means the 9 plan issued and revised under section 463. 10 (3) SECRETARY.—Unless otherwise specified, 11 the term ‘‘Secretary’’ means the Secretary of Health 12 and Human Services. 13 SEC. 467. CLIMATE CHANGE HEALTH PROTECTION AND 14 PROMOTION FUND. 15 (a) ESTABLISHMENT FUND.—There is hereby es- OF 16 tablished in the Treasury a separate account that shall 17 be known as the Climate Change Health Protection and 18 Promotion Fund. 19 (b) AVAILABILITY AMOUNTS.—All amounts de- OF 20 posited into the Climate Change Health Protection and 21 Promotion Fund shall be available to the Secretary to 22 carry out this subpart subject to further appropriation. 23 (c) DISTRIBUTION FUNDS HHS.—In carrying OF BY 24 out this subpart, the Secretary may make funds deposited f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00863 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 864 1 in the Climate Change Health Protection and Promotion 2 Fund available to— 3 (1) other departments, agencies, and offices of 4 the Federal Government; 5 (2) foreign, State, tribal, and local govern- 6 ments; and 7 (3) such other entities as the Secretary deter- 8 mines appropriate. 9 (d) SUPPLEMENT, NOT REPLACE.—It is the intent 10 of Congress that funds made available to carry out this 11 subpart should be used to supplement, and not replace, 12 existing sources of funding for public health. 13 Subpart C—Natural Resource Adaptation 14 SEC. 471. PURPOSES. 15 The purposes of this subpart are to— 16 (1) establish an integrated Federal program to 17 protect, restore, and conserve the Nation’s natural 18 resources in response to the threats of climate 19 change and ocean acidification; and 20 (2) provide financial support and incentives for 21 programs, strategies, and activities that protect, re- 22 store, and conserve the Nation’s natural resources in 23 response to the threats of climate change and ocean 24 acidification. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00864 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 865 1 SEC. 472. NATURAL RESOURCES CLIMATE CHANGE ADAP- 2 TATION POLICY. 3 It is the policy of the Federal Government, in co- 4 operation with State and local governments, Indian tribes, 5 and other interested stakeholders to use all practicable 6 means and measures to protect, restore, and conserve nat- 7 ural resources to enable them to become more resilient, 8 adapt to, and withstand the impacts of climate change and 9 ocean acidification. 10 SEC. 473. DEFINITIONS. 11 In this subpart: 12 (1) COASTAL STATE.—The term ‘‘coastal 13 State’’ has the meaning given the term in section 14 304 of the Coastal Zone Management Act of 1972 15 (16 U.S.C. 1453). 16 (2) CORRIDORS.—The term ‘‘corridors’’ means 17 areas that provide connectivity, over different time 18 scales (including seasonal or longer), of habitat or 19 potential habitat and that facilitate the ability of ter- 20 restrial, marine, estuarine, and freshwater fish, wild- 21 life, or plants to move within a landscape as needed 22 for migration, gene flow, or dispersal, or in response 23 to the impacts of climate change and ocean acidifica- 24 tion or other impacts. 25 (3) ECOLOGICAL PROCESSES.—The term ‘‘eco- 26 logical processes’’ means biological, chemical, or f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00865 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 866 1 physical interaction between the biotic and abiotic 2 components of an ecosystem and includes— 3 (A) nutrient cycling; 4 (B) pollination; 5 (C) predator-prey relationships; 6 (D) soil formation; 7 (E) gene flow; 8 (F) disease epizootiology; 9 (G) larval dispersal and settlement; 10 (H) hydrological cycling; 11 (I) decomposition; and 12 (J) disturbance regimes such as fire and 13 flooding. 14 (4) HABITAT.—The term ‘‘habitat’’ means the 15 physical, chemical, and biological properties that are 16 used by fish, wildlife, or plants for growth, reproduc- 17 tion, survival, food, water, and cover, on a tract of 18 land, in a body of water, or in an area or region. 19 (5) INDIAN TRIBE.—The term ‘‘Indian tribe’’ 20 has the meaning given the term in section 4 of the 21 Indian Self-Determination and Education Assistance 22 Act (25 U.S.C. 450b). 23 (6) NATURAL RESOURCES.—The term ‘‘natural 24 resources’’ means the terrestrial, freshwater, estua- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00866 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 867 1 rine, and marine fish, wildlife, plants, land, water, 2 habitats, and ecosystems of the United States. 3 (7) NATURAL RESOURCES ADAPTATION.—The 4 term ‘‘natural resources adaptation’’ means the pro- 5 tection, restoration, and conservation of natural re- 6 sources to enable them to become more resilient, 7 adapt to, and withstand the impacts of climate 8 change and ocean acidification. 9 (8) RESILIENCE.—Each of the terms ‘‘resil- 10 ience’’ and ‘‘resilient’’ means the ability to resist or 11 recover from disturbance and preserve diversity, pro- 12 ductivity, and sustainability. 13 (9) STATE.—The term ‘‘State’’ means— 14 (A) a State of the United States; 15 (B) the District of Columbia; and 16 (C) the Commonwealth of Puerto Rico, 17 Guam, the United States Virgin Islands, the 18 Northern Mariana Islands, and American 19 Samoa. 20 SEC. 474. COUNCIL ON ENVIRONMENTAL QUALITY. 21 The Chair of the Council on Environmental Quality 22 shall— 23 (1) advise the President on implementation and 24 development of— f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00867 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 868 1 (A) a Natural Resources Climate Change 2 Adaptation Strategy required under section 3 476; and 4 (B) Federal natural resource agency adap- 5 tation plans required under section 478; 6 (2) serve as the Chair of the Natural Resources 7 Climate Change Adaptation Panel established under 8 section 475; and 9 (3) coordinate Federal agency strategies, plans, 10 programs, and activities related to protecting, restor- 11 ing, and maintaining natural resources to become 12 more resilient, adapt to, and withstand the impacts 13 of climate change and ocean acidification. 14 SEC. 475. NATURAL RESOURCES CLIMATE CHANGE ADAP- 15 TATION PANEL. 16 (a) ESTABLISHMENT.—Not later than 90 days after 17 the date of the enactment of this subpart, the President 18 shall establish a Natural Resources Climate Change Adap- 19 tation Panel, consisting of— 20 (1) the head, or their designee, of each of— 21 (A) the National Oceanic and Atmospheric 22 Administration; 23 (B) the Forest Service; 24 (C) the National Park Service; f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00868 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 869 1 (D) the United States Fish and Wildlife 2 Service; 3 (E) the Bureau of Land Management; 4 (F) the United States Geological Survey; 5 (G) the Bureau of Reclamation; 6 (H) the Bureau of Indian Affairs; 7 (I) the Environmental Protection Agency; 8 and 9 (J) the Army Corps of Engineers; 10 (2) the Chair of the Council on Environmental 11 Quality; and 12 (3) the heads of such other Federal agencies or 13 departments with jurisdiction over natural resources 14 of the United States, as determined by the Presi- 15 dent. 16 (b) FUNCTIONS.—The Panel shall serve as a forum 17 for interagency consultation on and the coordination of the 18 development and implementation of a national Natural 19 Resources Climate Change Adaptation Strategy required 20 under section 476. 21 (c) CHAIR.—The Chair of the Council on Environ- 22 mental Quality shall serve as the Chair of the Panel. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00869 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 870 1 SEC. 476. NATURAL RESOURCES CLIMATE CHANGE ADAP- 2 TATION STRATEGY. 3 (a) IN GENERAL.—Not later than one year after the 4 date of the enactment of this subpart, the President, 5 through the Natural Resources Climate Change Adapta- 6 tion Panel established under section 475, shall develop a 7 Natural Resources Climate Change Adaptation Strategy 8 to protect, restore, and conserve natural resources to en- 9 able them to become more resilient, adapt to, and with- 10 stand the impacts of climate change and ocean acidifica- 11 tion and to identify opportunities to mitigate those im- 12 pacts. 13 (b) DEVELOPMENT REVISION.—In developing AND 14 and revising the Strategy, the Panel shall— 15 (1) base the strategy on the best available 16 science; 17 (2) develop the strategy in close cooperation 18 with States and Indian tribes; 19 (3) coordinate with other Federal agencies as 20 appropriate; 21 (4) consult with local governments, conservation 22 organizations, scientists, and other interested stake- 23 holders; 24 (5) provide public notice and opportunity for 25 comment; and f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00870 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 871 1 (6) review and revise the Strategy every 5 years 2 to incorporate new information regarding the im- 3 pacts of climate change and ocean acidification on 4 natural resources and advances in the development 5 of strategies for becoming more resilient and adapt- 6 ing to those impacts. 7 (c) CONTENTS.—The National Resources Adaptation 8 Strategy shall include— 9 (1) an assessment of the vulnerability of nat- 10 ural resources to climate change and ocean acidifica- 11 tion, including the short-term, medium-term, long- 12 term, cumulative, and synergistic impacts; 13 (2) a description of current research, observa- 14 tion, and monitoring activities at the Federal, State, 15 tribal, and local level related to the impacts of cli- 16 mate change and ocean acidification on natural re- 17 sources, as well as identification of research and 18 data needs and priorities; 19 (3) identification of natural resources that are 20 likely to have the greatest need for protection, res- 21 toration, and conservation because of the adverse ef- 22 fects of climate change and ocean acidification; 23 (4) specific protocols for integrating climate 24 change and ocean acidification adaptation strategies 25 and activities into the conservation and management f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00871 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 872 1 of natural resources by Federal departments and 2 agencies to ensure consistency across agency juris- 3 dictions and resources; 4 (5) specific actions that Federal departments 5 and agencies shall take to protect, conserve, and re- 6 store natural resources to become more resilient, 7 adapt to, and withstand the impacts of climate 8 change and ocean acidification, including a timeline 9 to implement those actions; 10 (6) specific mechanisms for ensuring commu- 11 nication and coordination among Federal depart- 12 ments and agencies, and between Federal depart- 13 ments and agencies and State natural resource agen- 14 cies, United States territories, Indian tribes, private 15 landowners, conservation organizations, and other 16 nations that share jurisdiction over natural resources 17 with the United States; 18 (7) specific actions to develop and implement 19 consistent natural resources inventory and moni- 20 toring protocols through interagency coordination 21 and collaboration; and 22 (8) a process for guiding the development of de- 23 tailed agency- and department-specific adaptation 24 plans required under section 478 to address the im- 25 pacts of climate change and ocean acidification on f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00872 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 873 1 the natural resources in the jurisdiction of each 2 agency. 3 (d) IMPLEMENTATION.—Consistent with its authori- 4 ties under other laws and with Federal trust responsibil- 5 ities with respect to Indian lands, each Federal depart- 6 ment or agency with representation on the National Re- 7 sources Climate Change Adaptation Panel shall consider 8 the impacts of climate change and ocean acidification and 9 integrate the elements of the strategy into agency plans, 10 environmental reviews, programs, and activities related to 11 the conservation, restoration, and management of natural 12 resources. 13 SEC. 477. NATURAL RESOURCES ADAPTATION SCIENCE 14 AND INFORMATION. 15 (a) COORDINATION.—Not later than 90 days after 16 the date of the enactment of this subpart, the Secretary 17 of Commerce, acting through the Administrator of the Na- 18 tional Oceanic and Atmospheric Administration, and the 19 Secretary of the Interior, acting through the Director of 20 the United States Geological Survey, shall establish a co- 21 ordinated process for developing and providing science and 22 information needed to assess and address the impacts of 23 climate change and ocean acidification on natural re- 24 sources. The process shall be led by the National Climate 25 Change and Wildlife Science Center established within the f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00873 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 874 1 United States Geological Survey under subsection (d) and 2 the National Climate Service of the National Oceanic and 3 Atmospheric Administration. 4 (b) FUNCTIONS.—The Secretaries shall ensure that 5 such process avoids duplication and that the National Oce- 6 anic and Atmospheric Administration and the United 7 States Geological Survey shall— 8 (1) provide technical assistance to Federal de- 9 partments and agencies, State and local govern- 10 ments, Indian tribes, and interested private land- 11 owners in their efforts to assess and address the im- 12 pacts of climate change and ocean acidification on 13 natural resources; 14 (2) conduct and sponsor research and provide 15 Federal departments and agencies, State and local 16 governments, Indian tribes, and interested private 17 landowners with research products, decision and 18 monitoring tools and information, to develop strate- 19 gies for assisting natural resources to become more 20 resilient, adapt to, and withstand the impacts of cli- 21 mate change and ocean acidification; and 22 (3) assist Federal departments and agencies in 23 the development of the adaptation plans required 24 under section 478. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00874 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 875 1 (c) SURVEY.—Not later than one year after the date 2 of enactment of this subpart and every 5 years thereafter, 3 the Secretary of Commerce and the Secretary of the Inte- 4 rior shall undertake a climate change and ocean acidifica- 5 tion impact survey that— 6 (1) identifies natural resources considered likely 7 to be adversely affected by climate change and ocean 8 acidification; 9 (2) includes baseline monitoring and ongoing 10 trend analysis; 11 (3) uses a stakeholder process to identify and 12 prioritize needed monitoring and research that is of 13 greatest relevance to the ongoing needs of natural 14 resource managers to address the impacts of climate 15 change and ocean acidification; and 16 (4) identifies decision tools necessary to develop 17 strategies for assisting natural resources to become 18 more resilient and adapt to and withstand the im- 19 pacts of climate change and ocean acidification. 20 (d) NATIONAL CLIMATE CHANGE WILDLIFE AND 21 SCIENCE CENTER.— 22 (1) ESTABLISHMENT.—The Secretary of the In- 23 terior shall establish the National Climate Change 24 and Wildlife Science Center within the United States 25 Geological Survey. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00875 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 876 1 (2) FUNCTIONS.—The Center shall, in collabo- 2 ration with Federal and State natural resources 3 agencies and departments, Indian tribes, univer- 4 sities, and other partner organizations— 5 (A) assess and synthesize current physical 6 and biological knowledge and prioritize sci- 7 entific gaps in such knowledge in order to fore- 8 cast the ecological impacts of climate change on 9 fish and wildlife at the ecosystem, habitat, com- 10 munity, population, and species levels; 11 (B) develop and improve tools to identify, 12 evaluate, and, where appropriate, link scientific 13 approaches and models for forecasting the im- 14 pacts of climate change and adaptation on fish, 15 wildlife, plants, and their habitats, including 16 monitoring, predictive models, vulnerability 17 analyses, risk assessments, and decision support 18 systems to help managers make informed deci- 19 sions; 20 (C) develop and evaluate tools to adapt- 21 ively manage and monitor the effects of climate 22 change on fish and wildlife at national, regional, 23 and local scales; and 24 (D) develop capacities for sharing stand- 25 ardized data and the synthesis of such data. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00876 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 877 1 (e) SCIENCE ADVISORY BOARD.— 2 (1) ESTABLISHMENT.—Not later than 180 days 3 after the date of enactment of this subpart, the Sec- 4 retary of Commerce and the Secretary of the Inte- 5 rior shall establish and appoint the members of a 6 Science Advisory Board, to be comprised of not 7 fewer than 10 and not more than 20 members— 8 (A) who have expertise in fish, wildlife, 9 plant, aquatic, and coastal and marine biology, 10 ecology, climate change, ocean acidification, and 11 other relevant scientific disciplines; 12 (B) who represent a balanced membership 13 among Federal, State, Indian tribes, and local 14 representatives, universities, and conservation 15 organizations; and 16 (C) at least 1⁄2 of whom are recommended 17 by the President of the National Academy of 18 Sciences. 19 (2) DUTIES.—The Science Advisory Board 20 shall— 21 (A) advise the Secretaries on the state-of- 22 the-science regarding the impacts of climate 23 change and ocean acidification on natural re- 24 sources and scientific strategies and mecha- 25 nisms for protecting, restoring, and conserving f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00877 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 878 1 natural resources to enable them to become 2 more resilient, adapt to, and withstand the im- 3 pacts of climate change and ocean acidification; 4 and 5 (B) identify and recommend priorities for 6 ongoing research needs on such issues. 7 (3) COLLABORATION.—The Science Advisory 8 Board shall collaborate with other climate change 9 and ecosystem research entities in other Federal 10 agencies and departments. 11 (4) AVAILABILITY TO THE PUBLIC.—The advice 12 and recommendations of the Science Advisory Board 13 shall be made available to the public. 14 SEC. 478. FEDERAL NATURAL RESOURCE AGENCY ADAPTA- 15 TION PLANS. 16 (a) DEVELOPMENT.—Not later than 1 year after the 17 date of the development of a Natural Resources Climate 18 Change Adaptation Strategy under section 476, each de- 19 partment or agency that has a representative on the Nat- 20 ural Resources Climate Change Adaptation Panel estab- 21 lished under section 475 shall— 22 (1) complete an adaptation plan for that de- 23 partment or agency, respectively, implementing the 24 Natural Resources Climate Change Adaptation 25 Strategy under section 476 and consistent with the f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00878 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 879 1 Natural Resources Climate Change Adaptation Pol- 2 icy under section 472, detailing the department’s or 3 agency’s current and projected efforts to address the 4 potential impacts of climate change and ocean acidi- 5 fication on natural resources within the depart- 6 ment’s or agency’s jurisdiction and necessary addi- 7 tional actions, including a timeline for implementa- 8 tion of those actions; 9 (2) provide opportunities for review and com- 10 ment on that adaptation plan by the public, includ- 11 ing in the case of a plan by the Bureau of Indian 12 Affairs, review by Indian tribes; and 13 (3) submit such plan to the President for ap- 14 proval. 15 (b) REVIEW PRESIDENT SUBMISSION BY AND TO 16 CONGRESS.— 17 (1) REVIEW BY PRESIDENT.—The President 18 shall— 19 (A) approve an adaptation plan submitted 20 under subsection (a)(3) if the plan meets the 21 requirements of subsection (c) and is consistent 22 with the strategy developed under section 476; 23 (B) decide whether to approve the plan 24 within 60 days after submission; and f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00879 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 880 1 (C) if the President disapproves a plan, di- 2 rect the department or agency to submit a re- 3 vised plan to the President under subsection 4 (a)(3) within 60 days after such disapproval. 5 (2) SUBMISSION TO CONGRESS.—Not later than 6 30 days after the date of approval of such adapta- 7 tion plan by the President, the department or agen- 8 cy shall submit the approved plan to the Committee 9 on Natural Resources of the House of Representa- 10 tives, the Committee on Energy and Natural Re- 11 sources of the Senate, and the committees of the 12 House of Representatives and the Senate with prin- 13 cipal jurisdiction over the department or agency. 14 (c) REQUIREMENTS.—Each adaptation plan shall— 15 (1) establish programs for assessing the current 16 and future impacts of climate change and ocean 17 acidification on natural resources within the depart- 18 ment’s or agency’s, respectively, jurisdiction, includ- 19 ing cumulative and synergistic effects, and for iden- 20 tifying and monitoring those natural resources that 21 are likely to be adversely affected and that have 22 need for conservation; 23 (2) identify and prioritize the department’s or 24 agency’s strategies and specific conservation actions 25 to address the current and future impacts of climate f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00880 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 881 1 change and ocean acidification on natural resources 2 within the scope of the department’s or agency’s ju- 3 risdiction and to develop and implement strategies to 4 protect, restore, and conserve such resources to be- 5 come more resilient, adapt to, and better withstand 6 those impacts, including— 7 (A) the protection, restoration, and con- 8 servation of terrestrial, marine, estuarine, and 9 freshwater habitats and ecosystems; 10 (B) the establishment of terrestrial, ma- 11 rine, estuarine, and freshwater habitat linkages 12 and corridors; 13 (C) the restoration and conservation of ec- 14 ological processes; 15 (D) the protection of a broad diversity of 16 native species of fish, wildlife, and plant popu- 17 lations across their range; and 18 (E) the protection of fish, wildlife, and 19 plant health, recognizing that climate can alter 20 the distribution and ecology of parasites, patho- 21 gens, and vectors; 22 (3) describe how the department or agency will 23 integrate such strategies and conservation activities 24 into plans, programs, activities, and actions of the 25 department or agency, related to the conservation f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00881 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 882 1 and management of natural resources and establish 2 new plans, programs, activities, and actions as nec- 3 essary; 4 (4) establish methods for assessing the effec- 5 tiveness of strategies and conservation actions taken 6 to protect, restore, and conserve natural resources to 7 enable them to become more resilient, adapt to, and 8 withstand the impacts of climate change and ocean 9 acidification, and for updating those strategies and 10 actions to respond to new information and changing 11 conditions; 12 (5) include a description of current and pro- 13 posed mechanisms to enhance cooperation and co- 14 ordination of natural resources adaptation efforts 15 with other Federal agencies, State and local govern- 16 ments, Indian tribes, and nongovernmental stake- 17 holders; 18 (6) include specific written guidance to resource 19 managers to— 20 (A) explain how managers are expected to 21 address the effects of climate change and ocean 22 acidification; 23 (B) identify how managers are to obtain 24 any site-specific information that may be nec- 25 essary; and f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00882 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 883 1 (C) reflect best practices shared among rel- 2 evant agencies, while also recognizing the 3 unique missions, objectives, and responsibilities 4 of each agency; and 5 (7) identify and assess data and information 6 gaps necessary to develop natural resources adapta- 7 tion plans and strategies. 8 (d) IMPLEMENTATION.— 9 (1) IN GENERAL.—Upon approval by the Presi- 10 dent, each department or agency that serves on the 11 Natural Resources Climate Change Adaptation 12 Panel shall implement its adaptation plan through 13 existing and new plans, policies, programs, activities, 14 and actions to the extent not inconsistent with exist- 15 ing authority. 16 (2) CONSIDERATION OF IMPACTS.— 17 (A) IN GENERAL.—To the maximum ex- 18 tent practicable and consistent with applicable 19 law, every natural resource management deci- 20 sion made by the department or agency shall 21 consider the impacts of climate change and 22 ocean acidification on those natural resources. 23 (B) GUIDANCE.—The Council on Environ- 24 mental Quality shall issue guidance for Federal f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00883 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 884 1 departments and agencies for considering those 2 impacts. 3 (e) REVISION REVIEW.—Not less than every 5 AND 4 years, each adaptation plan under this section shall be re- 5 viewed and revised to incorporate the best available science 6 and other information regarding the impacts of climate 7 change and ocean acidification on natural resources. 8 SEC. 479. STATE NATURAL RESOURCES ADAPTATION 9 PLANS. 10 (a) REQUIREMENT.—In order to be eligible for funds 11 under section 480, not later than 1 year after the develop- 12 ment of a Natural Resources Climate Change Adaptation 13 Strategy required under section 476 each State shall pre- 14 pare a State natural resources adaptation plan detailing 15 the State’s current and projected efforts to address the 16 potential impacts of climate change and ocean acidifica- 17 tion on natural resources and coastal areas within the 18 State’s jurisdiction. 19 (b) REVIEW OR APPROVAL.— 20 (1) IN GENERAL.—Each State adaptation plan 21 shall be reviewed and approved or disapproved by 22 the Secretary of the Interior and, as applicable, the 23 Secretary of Commerce. Such approval shall be 24 granted if the plan meets the requirements of sub- 25 section (c) and is consistent with the Natural Re- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00884 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 885 1 sources Climate Change Adaptation Strategy re- 2 quired under section 476. 3 (2) APPROVAL OR DISAPPROVAL.—Within 180 4 days after transmittal of such a plan, or a revision 5 to such a plan, the Secretary of the Interior and, as 6 applicable, the Secretary of Commerce shall approve 7 or disapprove the plan by written notice. 8 (3) RESUBMITTAL.—Within 90 days after 9 transmittal of a resubmitted adaptation plan as a re- 10 sult of disapproval under paragraph (3), the Sec- 11 retary of the Interior and, as applicable, the Sec- 12 retary of Commerce, shall approve or disapprove the 13 plan by written notice. 14 (c) CONTENTS.—A State natural resources adapta- 15 tion plan shall— 16 (1) include a strategy for addressing the im- 17 pacts of climate change and ocean acidification on 18 terrestrial, marine, estuarine, and freshwater fish, 19 wildlife, plants, habitats, ecosystems, wildlife health, 20 and ecological processes, that— 21 (A) describes the impacts of climate 22 change and ocean acidification on the diversity 23 and health of the fish, wildlife and plant popu- 24 lations, habitats, ecosystems, and associated ec- 25 ological processes; f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00885 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 886 1 (B) establishes programs for monitoring 2 the impacts of climate change and ocean acidifi- 3 cation on fish, wildlife, and plant populations, 4 habitats, ecosystems, and associated ecological 5 processes; 6 (C) describes and prioritizes proposed con- 7 servation actions to assist fish, wildlife, plant 8 populations, habitats, ecosystems, and associ- 9 ated ecological processes in becoming more re- 10 silient, adapting to, and better withstanding 11 those impacts; 12 (D) includes strategies, specific conserva- 13 tion actions, and a time frame for implementing 14 conservation actions for fish, wildlife, and plant 15 populations, habitats, ecosystems, and associ- 16 ated ecological processes; 17 (E) establishes methods for assessing the 18 effectiveness of strategies and conservation ac- 19 tions taken to assist fish, wildlife, and plant 20 populations, habitats, ecosystems, and associ- 21 ated ecological processes in becoming more re- 22 silient, adapt to, and better withstand the im- 23 pacts of climate changes and ocean acidification 24 and for updating those strategies and actions to f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00886 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 887 1 respond appropriately to new information or 2 changing conditions; 3 (F) is incorporated into a revision of the 4 State wildlife action plan (also known as the 5 State comprehensive wildlife strategy)— 6 (i) that has been submitted to the 7 United States Fish and Wildlife Service; 8 and 9 (ii) that has been approved by the 10 Service or on which a decision on approval 11 is pending; and 12 (G) is developed— 13 (i) with the participation of the State 14 fish and wildlife agency, the State coastal 15 agency, the State agency responsible for 16 administration of Land and Water Con- 17 servation Fund grants, the State Forest 18 Legacy program coordinator, and other 19 State agencies considered appropriate by 20 the Governor of such State; and 21 (ii) in coordination with the Secretary 22 of the Interior, and where applicable, the 23 Secretary of Commerce and other States 24 that share jurisdiction over natural re- 25 sources with the State; and f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00887 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 888 1 (2) include, in the case of a coastal State, a 2 strategy for addressing the impacts of climate 3 change and ocean acidification on the coastal zone 4 that— 5 (A) identifies natural resources that are 6 likely to be impacted by climate change and 7 ocean acidification and describes those impacts; 8 (B) identifies and prioritizes continuing re- 9 search and data collection needed to address 10 those impacts including— 11 (i) acquisition of high resolution 12 coastal elevation and nearshore bathymetry 13 data; 14 (ii) historic shoreline position maps, 15 erosion rates, and inventories of shoreline 16 features and structures; 17 (iii) measures and models of relative 18 rates of sea level rise or lake level changes, 19 including effects on flooding, storm surge, 20 inundation, and coastal geological proc- 21 esses; 22 (iv) habitat loss, including projected 23 losses of coastal wetlands and potentials 24 for inland migration of natural shoreline 25 habitats; f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00888 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 889 1 (v) ocean and coastal species and eco- 2 system migrations, and changes in species 3 population dynamics; 4 (vi) changes in storm frequency, in- 5 tensity, or rainfall patterns; 6 (vii) saltwater intrusion into coastal 7 rivers and aquifers; 8 (viii) changes in chemical or physical 9 characteristics of marine and estuarine 10 systems; 11 (ix) increased harmful algal blooms; 12 and 13 (x) spread of invasive species; 14 (C) identifies and prioritizes adaptation 15 strategies to protect, restore, and conserve nat- 16 ural resources to enable them to become more 17 resilient, adapt to, and withstand the impacts of 18 climate change and ocean acidification, includ- 19 ing— 20 (i) protection, maintenance, and res- 21 toration of ecologically important coastal 22 lands, coastal and ocean ecosystems, and 23 species biodiversity and the establishment 24 of habitat buffer zones, migration cor- 25 ridors, and climate refugia; and f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00889 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 890 1 (ii) improved planning, siting policies, 2 and hazard mitigation strategies; 3 (D) establishes programs for the long-term 4 monitoring of the impacts of climate change 5 and ocean acidification on the ocean and coastal 6 zone and to assess and adjust, when necessary, 7 such adaptive management strategies; 8 (E) establishes performance measures for 9 assessing the effectiveness of adaptation strate- 10 gies intended to improve resilience and the abil- 11 ity of natural resources in the coastal zone to 12 adapt to and withstand the impacts of climate 13 change and ocean acidification and of adapta- 14 tion strategies intended to minimize those im- 15 pacts on the coastal zone and to update those 16 strategies to respond to new information or 17 changing conditions; and 18 (F) is developed with the participation of 19 the State coastal agency and other appropriate 20 State agencies and in coordination with the 21 Secretary of Commerce and other appropriate 22 Federal agencies. 23 (d) PUBLIC INPUT.—States shall provide for solicita- 24 tion and consideration of public and independent scientific 25 input in the development of their plans. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00890 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 891 1 (e) COORDINATION WITH OTHER PLANS.—The State 2 plan shall take into consideration research and informa- 3 tion contained in, and coordinate with and integrate the 4 goals and measures identified in, as appropriate, other 5 natural resources conservation strategies, including— 6 (1) the national fish habitat action plan; 7 (2) plans under the North American Wetlands 8 Conservation Act (16 U.S.C. 4401 et seq.); 9 (3) the Federal, State, and local partnership 10 known as ‘‘Partners in Flight’’; 11 (4) federally approved coastal zone management 12 plans under the Coastal Zone Management Act of 13 1972 (16 U.S.C. 1451 et seq.); 14 (5) federally approved regional fishery manage- 15 ment plants and habitat conservation activities 16 under the Magnuson-Stevens Fishery Conservation 17 and Management Act (16 U.S.C. 1801 et seq.); 18 (6) the national coral reef action plan; 19 (7) recovery plans for threatened species and 20 endangered species under section 4(f) of the Endan- 21 gered Species Act of 1973 (16 U.S.C. 1533(f)); 22 (8) habitat conservation plans under section 10 23 of that Act (16 U.S.C. 1539); 24 (9) other Federal, State, and tribal plans for 25 imperiled species; f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00891 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 892 1 (10) State or tribal hazard mitigation plans; 2 (11) State or tribal water management plans; 3 and 4 (12) other State-based strategies that com- 5 prehensively implement adaptation activities to re- 6 mediate the effects of climate change and ocean 7 acidification on terrestrial, marine, and freshwater 8 fish, wildlife, plants, and other natural resources. 9 (f) UPDATING.—Each State plan shall be updated 10 not less than every 5 years. 11 (g) FUNDING.— 12 (1) IN GENERAL.—Funds allocated to States 13 under section 480 shall be used only for activities 14 that are consistent with a State natural resources 15 adaptation plan that has been approved by the Sec- 16 retaries of Interior and Commerce. 17 (2) FUNDING PRIOR TO THE APPROVAL OF A 18 STATE PLAN.—Until the earlier of the date that is 19 3 years after the date of the enactment of this sub- 20 part or the date on which a State receives approval 21 for the State strategy, a State shall be eligible to re- 22 ceive funding under section 480 for adaptation ac- 23 tivities that are— 24 (A) consistent with the comprehensive 25 wildlife strategy of the State and, where appro- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00892 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 893 1 priate, other natural resources conservation 2 strategies; and 3 (B) in accordance with a workplan devel- 4 oped in coordination with— 5 (i) the Secretary of the Interior; and 6 (ii) the Secretary of Commerce, for 7 any coastal State subject to the condition 8 that coordination with the Secretary of 9 Commerce shall be required only for those 10 portions of the strategy relating to activi- 11 ties affecting the coastal zone. 12 (3) PENDING APPROVAL.—During the period 13 for which approval by the applicable Secretary of a 14 State plan is pending, the State may continue receiv- 15 ing funds under section 480 pursuant to the 16 workplan described in paragraph (2)(B). 17 SEC. 480. NATURAL RESOURCES CLIMATE CHANGE ADAP- 18 TATION FUND. 19 (a) ESTABLISHMENT FUND.—There is hereby es- OF 20 tablished in the Treasury a separate account that shall 21 be known as the Natural Resources Climate Change Adap- 22 tation Account. 23 (b) AVAILABILITY AMOUNTS.—All amounts de- OF 24 posited into the Natural Resources Climate Change Adap- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00893 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 894 1 tation Fund shall be available without further appropria- 2 tion or fiscal year limitation. 3 (c) ALLOCATIONS.— 4 (1) STATES.—38.5 percent of the amounts 5 made available for each fiscal year to carry out this 6 subpart shall be provided to States to carry out nat- 7 ural resources adaptation activities in accordance 8 with State natural resources adaptation plans ap- 9 proved under section 479. Specifically— 10 (A) 32.5 percent shall be available to State 11 wildlife agencies in accordance with the appor- 12 tionment formula established under the second 13 subsection (c) of section 4 of the Pittman-Rob- 14 ertson Wildlife Restoration Act (16 U.S.C. 15 669c), as added by section 902(e) of H.R. 5548 16 as introduced in the 106th Congress and en- 17 acted into law by section 1(a)(2) of Public Law 18 106–553 (114 Stat. 2762A–119); and 19 (B) 6 percent shall be available to State 20 coastal agencies pursuant to the formula estab- 21 lished by the Secretary of Commerce under sec- 22 tion 306(c) of the Coastal Management Act of 23 1972 (16 U.S.C. 1455(c)). f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00894 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 895 1 OF THE INTERIOR.—Of the (2) DEPARTMENT 2 amounts made available for each fiscal year to carry 3 out this subpart— 4 (A) 17 percent shall be allocated to the 5 Secretary of the Interior for use in funding— 6 (i) natural resources adaptation activi- 7 ties carried out— 8 (I) under endangered species, mi- 9 gratory species, and other fish and 10 wildlife programs administered by the 11 National Park Service, the United 12 States Fish and Wildlife Service, the 13 Bureau of Indian Affairs, and the Bu- 14 reau of Land Management; 15 (II) on wildlife refuges, National 16 Park Service land, and other public 17 land under the jurisdiction of the 18 United States Fish and Wildlife Serv- 19 ice, the Bureau of Land Management, 20 the Bureau of Indian Affairs, or the 21 National Park Service; or 22 (III) within Federal water man- 23 aged by the Bureau of Reclamation 24 and the National Park Service; and f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00895 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 896 1 (ii) for the implementation of the Na- 2 tional Fish and Wildlife Habitat and Cor- 3 ridors Identification Program pursuant to 4 section 481; 5 (B) 5 percent shall be allocated to the Sec- 6 retary of the Interior for natural resources ad- 7 aptation activities carried out under cooperative 8 grant programs, including— 9 (i) the cooperative endangered species 10 conservation fund authorized under section 11 6 of the Endangered Species Act of 1973 12 (16 U.S.C. 1535); 13 (ii) programs under the North Amer- 14 ican Wetlands Conservation Act (16 15 U.S.C. 4401 et seq.); 16 (iii) the Neotropical Migratory Bird 17 Conservation Fund established by section 18 478(a) of the Neotropical Migratory Bird 19 Conservation Act (16 U.S.C. 6108(a)); 20 (iv) the Coastal Program of the 21 United States Fish and Wildlife Service; 22 (v) the National Fish Habitat Action 23 Plan; 24 (vi) the Partners for Fish and Wildlife 25 Program; f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00896 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 897 1 (vii) the Landowner Incentive Pro- 2 gram; 3 (viii) the Wildlife Without Borders 4 Program of the United States Fish and 5 Wildlife Service; and 6 (ix) the Migratory Species Program 7 and Park Flight Migratory Bird Program 8 of the National Park Service; and 9 (C) 3 percent shall be allocated to the Sec- 10 retary of the Interior to provide financial assist- 11 ance to Indian tribes to carry out natural re- 12 sources adaptation activities through the Tribal 13 Wildlife Grants Program of the United States 14 Fish and Wildlife Service. 15 (3) LAND AND WATER CONSERVATION FUND.— 16 (A) DEPOSITS.— 17 (i) IN GENERAL.—Of the amounts 18 made available for each fiscal year to carry 19 out this subpart, 12 percent shall be de- 20 posited into the Land and Water Conserva- 21 tion Fund established under section 2 of 22 the Land and Water Conservation Fund 23 Act of 1965 (16 U.S.C. 460l–5). f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00897 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 898 1 OF DEPOSITS.—Deposits into (ii) USE 2 the Land and Water Conservation Fund 3 under this paragraph shall— 4 (I) be supplemental to authoriza- 5 tions provided under section 3 of the 6 Land and Water Conservation Fund 7 Act of 1965 (16 U.S.C. 460l–6), 8 which shall remain available for non- 9 adaptation needs; and 10 (II) be available for expenditure 11 to carry out this subpart without fur- 12 ther appropriation or fiscal year limi- 13 tation. 14 (B) ALLOCATIONS.—Of the amounts de- 15 posited under this paragraph into the Land and 16 Water Conservation Fund— 17 (i) 1⁄6 shall be allocated to the Sec- 18 retary of the Interior and made available 19 on a competitive basis to carry out natural 20 resources adaptation activities through the 21 acquisition of land and interests in land 22 under section 6 of the Land and Water 23 Conservation Fund Act of 1965 (16 U.S.C. 24 460l–8)— f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00898 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 899 1 (I) to States in accordance with 2 their natural resources adaptation 3 plans, and to Indian tribes; 4 (II) notwithstanding section 5 of 5 that Act (16 U.S.C. 460l–7); and 6 (III) in addition to any funds 7 provided pursuant to annual appro- 8 priations Acts, the Energy Policy Act 9 of 2005 (42 U.S.C. 15801 et seq.), or 10 any other authorization for non- 11 adaptation needs; 12 (ii) 1⁄3 shall be allocated to the Sec- 13 retary of the Interior to carry out natural 14 resources adaptation activities through the 15 acquisition of lands and interests in land 16 under section 7 of the Land and Water 17 Conservation Fund Act of 1965 (16 U.S.C. 18 460l–9); 19 (iii) 1⁄6 shall be allocated to the Sec- 20 retary of Agriculture and made available to 21 the States and Indian tribes to carry out 22 natural resources adaptation activities 23 through the acquisition of land and inter- 24 ests in land under section 7 of the Forest 25 Legacy Program under the Cooperative f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00899 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 900 1 Forestry Assistance Act of 1978 (16 2 U.S.C. 2103c); and 3 (iv) 1⁄3 shall be allocated to the Sec- 4 retary of Agriculture to carry out natural 5 resources adaptation activities through the 6 acquisition of land and interests in land 7 under section 7 of the Land and Water 8 Conservation Fund Act of 1965 (16 U.S.C. 9 460l–9). 10 (C) EXPENDITURE OF FUNDS.—In allo- 11 cating funds under subparagraph (B), the Sec- 12 retary of the Interior and the Secretary of Agri- 13 culture shall take into consideration factors in- 14 cluding— 15 (i) the availability of non-Federal con- 16 tributions from State, local, or private 17 sources; 18 (ii) opportunities to protect fish and 19 wildlife corridors or otherwise to link or 20 consolidate fragmented habitats; 21 (iii) opportunities to reduce the risk of 22 catastrophic wildfires, drought, extreme 23 flooding, or other climate-related events 24 that are harmful to fish and wildlife and 25 people; and f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00900 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 901 1 (iv) the potential for conservation of 2 species or habitat types at serious risk due 3 to climate change, ocean acidification, and 4 other stressors. 5 (4) FOREST SERVICE.—Of the amounts made 6 available for each fiscal year to carry out this sub- 7 part, 5 percent shall be allocated to the Secretary of 8 Agriculture for use in funding natural resources ad- 9 aptation activities carried out on national forests 10 and national grasslands under the jurisdiction of the 11 Forest Service. 12 (5) DEPARTMENT COMMERCE.—Of the OF 13 amounts made available for each fiscal year to carry 14 out this subpart, 7 percent shall be allocated to the 15 Secretary of Commerce for use in funding natural 16 resources adaptation activities to protect, maintain, 17 and restore coastal, estuarine, and marine resources, 18 habitats, and ecosystems, including such activities 19 carried out under— 20 (A) the coastal and estuarine land con- 21 servation program; 22 (B) the community-based restoration pro- 23 gram; 24 (C) the Coastal Zone Management Act of 25 1972 (16 U.S.C. 1451 et seq.), that are specifi- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00901 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 902 1 cally designed to strengthen the ability of coast- 2 al, estuarine, and marine resources, habitats, 3 and ecosystems to adapt to and withstand the 4 impacts of climate change and ocean acidifica- 5 tion; 6 (D) the Open Rivers Initiative; 7 (E) the Magnuson-Stevens Fishery Con- 8 servation and Management Act (16 U.S.C. 9 1801 et seq.); 10 (F) the Marine Mammal Protection Act of 11 1972 (16 U.S.C. 1361 et seq.); 12 (G) the Endangered Species Act of 1973 13 (16 U.S.C. 1531 et seq.); 14 (H) the Marine Protection, Research, and 15 Sanctuaries Act of 1972 (33 U.S.C. 1401 et 16 seq.); 17 (I) the Coral Reef Conservation Act of 18 2000 (16 U.S.C. 6401 et seq.); and 19 (J) the Estuary Restoration Act of 2000 20 (33 U.S.C. 2901 et seq.). 21 (6) ENVIRONMENTAL PROTECTION AGENCY.— 22 Of the amounts made available each fiscal year to 23 carry out this section, 7.5 percent shall be allocated 24 to the Administrator for use in natural resources ad- 25 aptation activities restoring and protecting— f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00902 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 903 1 (A) large-scale freshwater aquatic eco- 2 systems, such as the Everglades, the Great 3 Lakes, Flathead Lake, the Missouri River, the 4 Mississippi River, the Colorado River, the Sac- 5 ramento-San Joaquin Rivers, the Ohio River, 6 the Columbia-Snake River System, the Apa- 7 lachicola, Chattahoochee, and Flint River Sys- 8 tem, the Connecticut River, and the Yellowstone 9 River; 10 (B) large-scale estuarine ecosystems, such 11 as Chesapeake Bay, Long Island Sound, Puget 12 Sound, the Mississippi River Delta, the San 13 Francisco Bay Delta, Narragansett Bay, and 14 Albemarle-Pamlico Sound; and 15 (C) freshwater and estuarine ecosystems, 16 watersheds, and basins identified as priorities 17 by the Administrator, working in cooperation 18 with other Federal agencies, States, Indian 19 tribes, local governments, scientists, and other 20 conservation partners. 21 (7) CORPS OF ENGINEERS.—Of the amounts 22 made available each fiscal year to carry out this sec- 23 tion, 5 percent shall be available to the Secretary of 24 the Army for use by the Corps of Engineers to carry f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00903 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 904 1 out natural resources adaptation activities restor- 2 ing— 3 (A) large-scale freshwater aquatic eco- 4 systems, such as the ecosystems described in 5 paragraph (6)(A); 6 (B) large-scale estuarine ecosystems, such 7 as the ecosystems described in paragraph 8 (6)(B); 9 (C) freshwater and estuarine ecosystems, 10 watersheds, and basins identified as priorities 11 by the Corps of Engineers, working in coopera- 12 tion with other Federal agencies, States, Indian 13 tribes, local governments, scientists, and other 14 conservation partners; and 15 (D) habitats and ecosystems through the 16 implementation of estuary habitat restoration 17 projects authorized by the Estuary Restoration 18 Act of 2000 (33 U.S.C. 2901 et seq.), project 19 modifications for improvement of the environ- 20 ment, aquatic restoration and protection 21 projects authorized by section 206 of the Water 22 Resources Development Act of 1996 (33 U.S.C. 23 2330), and other appropriate programs and ac- 24 tivities. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00904 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 905 1 (d) USE OF FUNDS BY FEDERAL DEPARTMENTS AND 2 AGENCIES.—Funds allocated to Federal departments and 3 agencies under this section shall only be used for natural 4 resources adaptation activities that are consistent with an 5 adaptation plan developed and approved by the President 6 under section 478. 7 (e) STATE COST SHARING.—Notwithstanding any 8 other provision of law, a State that receives a grant with 9 amounts allocated under this section shall use funds from 10 non-Federal sources to pay 10 percent of the costs of each 11 activity carried out using amounts provided under the 12 grant. 13 SEC. 481. NATIONAL WILDLIFE HABITAT AND CORRIDORS 14 INFORMATION PROGRAM. 15 (a) ESTABLISHMENT.—Within 6 months of the date 16 of enactment of this subpart, the Secretary of the Interior, 17 in cooperation with the States and Indian tribes, shall es- 18 tablish a National Fish and Wildlife Habitat and Cor- 19 ridors Information Program in accordance with the re- 20 quirements of this section. 21 (b) PURPOSE.—The purpose of this program is to— 22 (1) support States and Indian tribes in the de- 23 velopment of a geographic information system data- 24 base of fish and wildlife habitat and corridors that 25 would inform planning and development decisions f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00905 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 906 1 within each State, enable each State to model cli- 2 mate impacts and adaptation, and provide geo- 3 graphically specific enhancements of State wildlife 4 action plans; 5 (2) ensure the collaborative development, with 6 the States and Indian tribes, of a comprehensive, 7 national geographic information system database of 8 maps, models, data, surveys, informational products, 9 and other geospatial information regarding fish and 10 wildlife habitat and corridors, that— 11 (A) is based on consistent protocols for 12 sampling and mapping across landscapes that 13 take into account regional differences; and 14 (B) that utilizes— 15 (i) existing and planned State- and 16 tribal-based geographic information system 17 databases; and 18 (ii) existing databases, analytical 19 tools, metadata activities, and other infor- 20 mation products available through the Na- 21 tional Biological Information Infrastruc- 22 ture maintained by the Secretary and non- 23 governmental organizations; and 24 (3) facilitate the use of such databases by Fed- 25 eral, State, local, and tribal decisionmakers to incor- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00906 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 907 1 porate qualitative information on fish and wildlife 2 habitat and corridors at the earliest possible stage 3 to— 4 (A) prioritize and target natural resources 5 adaptation strategies and activities; 6 (B) avoid, minimize, and mitigate the im- 7 pacts on fish and wildlife habitat and corridors 8 in siting energy development, water, trans- 9 mission, transportation, and other land use 10 projects; 11 (C) assess the impacts of existing develop- 12 ment on habitats and corridors; and 13 (D) develop management strategies to en- 14 hance the ability of fish, wildlife, and plant spe- 15 cies to migrate or respond to shifting habitats 16 within existing habitats and corridors. 17 (c) HABITAT CORRIDORS INFORMATION SYS- AND 18 TEM.— 19 (1) IN GENERAL.—The Secretary, in coopera- 20 tion with the States and Indian tribes, shall develop 21 a Habitat and Corridors Information System. 22 (2) CONTENTS.—The System shall— 23 (A) include maps, data, and descriptions of 24 fish and wildlife habitat and corridors, that— f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00907 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 908 1 (i) have been developed by Federal 2 agencies, State wildlife agencies and nat- 3 ural heritage programs, Indian tribes, local 4 governments, nongovernmental organiza- 5 tions, and industry; 6 (ii) meet accepted Geospatial Inter- 7 operability Framework data and metadata 8 protocols and standards; 9 (B) include maps and descriptions of pro- 10 jected shifts in habitats and corridors of fish 11 and wildlife species in response to climate 12 change; 13 (C) assure data quality and make the data, 14 models, and analyses included in the System 15 available at scales useful to decisionmakers— 16 (i) to prioritize and target natural re- 17 sources adaptation strategies and activi- 18 ties; 19 (ii) to assess the impacts of proposed 20 energy development, water, transmission, 21 transportation, and other land use projects 22 and avoid, minimize, and mitigate those 23 impacts on habitats and corridors; 24 (iii) to assess the impacts of existing 25 development on habitats and corridors; and f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00908 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 909 1 (iv) to develop management strategies 2 to enhance the ability of fish, wildlife, and 3 plant species to migrate or respond to 4 shifting habitats within existing habitats 5 and corridors; 6 (D) establish a process for updating maps 7 and other information as landscapes, habitats, 8 corridors, and wildlife populations change or as 9 other information becomes available; 10 (E) encourage the development of collabo- 11 rative plans by Federal and State agencies and 12 Indian tribes to monitor and evaluate the effi- 13 cacy of the System to meet the needs of deci- 14 sionmakers; 15 (F) identify gaps in habitat and corridor 16 information, mapping, and research that should 17 be addressed to fully understand and assess 18 current data and metadata, and to prioritize re- 19 search and future data collection activities for 20 use in updating the System and provide support 21 for those activities; 22 (G) include mechanisms to support collabo- 23 rative research, mapping, and planning of habi- 24 tats and corridors by Federal and State agen- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00909 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 910 1 cies, Indian tribes, and other interested stake- 2 holders; 3 (H) incorporate biological and geospatial 4 data on species and corridors found in energy 5 development and transmission plans, including 6 renewable energy initiatives, transportation, and 7 other land use plans; 8 (I) be based on the best scientific informa- 9 tion available; and 10 (J) identify, prioritize, and describe key 11 parcels of non-Federal land located within the 12 boundaries of units of the National Park Sys- 13 tem, National Wildlife Refuge System, National 14 Forest System, or National Grassland System 15 that are critical to maintenance of wildlife habi- 16 tat and migration corridors. 17 (d) FINANCIAL OTHER SUPPORT.—The Sec- AND 18 retary may provide support to the States and Indian 19 tribes, including financial and technical assistance, for ac- 20 tivities that support the development and implementation 21 of the System. 22 (e) COORDINATION.—The Secretary, in cooperation 23 with the States and Indian tribes, shall make rec- 24 ommendations on how the information developed in the 25 System may be incorporated into existing relevant State f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00910 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 911 1 and Federal plans affecting fish and wildlife, including 2 land management plans, the State Comprehensive Wildlife 3 Conservation Strategies, and appropriate tribal conserva- 4 tion plans, to ensure that they— 5 (1) prevent unnecessary habitat fragmentation 6 and disruption of corridors; 7 (2) promote the landscape connectivity nec- 8 essary to allow wildlife to move as necessary to meet 9 biological needs, adjust to shifts in habitat, and 10 adapt to climate change; and 11 (3) minimize the impacts of energy, develop- 12 ment, water, transportation, and transmission 13 projects and other activities expected to impact habi- 14 tat and corridors. 15 (f) DEFINITIONS.—In this section: 16 (1) GEOSPATIAL FRAME- INTEROPERABILITY 17 WORK.—The term ‘‘Geospatial Interoperability 18 Framework’’ means the strategy utilized by the Na- 19 tional Biological Information Infrastructure that is 20 based upon accepted standards, specifications, and 21 protocols adopted through the International Stand- 22 ards Organization, the Open Geospatial Consortium, 23 and the Federal Geographic Data Committee, to 24 manage, archive, integrate, analyze, and make acces- 25 sible geospatial and biological data and metadata. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00911 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 912 1 (2) SECRETARY.—The term ‘‘Secretary’’ means 2 the Secretary of the Interior. 3 SEC. 482. ADDITIONAL PROVISIONS REGARDING INDIAN 4 TRIBES. 5 (a) FEDERAL TRUST RESPONSIBILITY.—Nothing in 6 this subpart is intended to amend, alter, or give priority 7 over the Federal trust responsibility to Indian tribes. 8 (b) EXEMPTION FROM FOIA.—If a Federal depart- 9 ment or agency receives any information related to sacred 10 sites or cultural activities identified by an Indian tribe as 11 confidential, such information shall be exempt from disclo- 12 sure under section 552 of title 5, United States Code, pop- 13 ularly known as the Freedom of Information Act (5 U.S.C. 14 552). 15 (c) APPLICATION OTHER LAW.—The Secretary of OF 16 the Interior may apply the provisions of Public Law 93– 17 638 where appropriate in the implementation of this sub- 18 part. 19 PART 2—INTERNATIONAL CLIMATE CHANGE 20 ADAPTATION PROGRAM 21 SEC. 491. FINDINGS AND PURPOSES. 22 (a) FINDINGS.—Congress finds the following: 23 (1) Global climate change is a potentially sig- 24 nificant national and global security threat multi- 25 plier and is likely to exacerbate competition and con- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00912 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 913 1 flict over agricultural, vegetative, marine, and water 2 resources and to result in increased displacement of 3 people, poverty, and hunger within developing coun- 4 tries. 5 (2) The strategic, social, political, economic, 6 cultural, and environmental consequences of global 7 climate change are likely to have disproportionate 8 adverse impacts on developing countries, which have 9 less economic capacity to respond to such impacts. 10 (3) The countries most vulnerable to climate 11 change, due both to greater exposure to harmful im- 12 pacts and to lower capacity to adapt, are developing 13 countries with very low industrial greenhouse gas 14 emissions that have contributed less to climate 15 change than more affluent countries. 16 (4) To a much greater degree than developed 17 countries, developing countries rely on the natural 18 and environmental systems likely to be affected by 19 climate change for sustenance, livelihoods, and eco- 20 nomic growth and stability. 21 (5) Within developing countries there may be 22 varying climate change adaptation and resilience 23 needs among different communities and populations, 24 including impoverished communities, children, 25 women, and indigenous peoples. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00913 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 914 1 (6) The consequences of global climate change, 2 including increases in poverty and destabilization of 3 economies and societies, are likely to pose long-term 4 challenges to the national security, foreign policy, 5 and economic interests of the United States. 6 (7) It is in the national security, foreign policy, 7 and economic interests of the United States to rec- 8 ognize, plan for, and mitigate the international stra- 9 tegic, social, political, cultural, environmental, 10 health, and economic effects of climate change and 11 to assist developing countries to increase their resil- 12 ience to those effects. 13 (8) Under Article 4 of the United Nations 14 Framework Convention on Climate Change, devel- 15 oped country parties, including the United States, 16 committed to ‘‘assist the developing country parties 17 that are particularly vulnerable to the adverse effects 18 of climate change in meeting costs of adaptation to 19 those adverse effects’’. 20 (9) Under the Bali Action Plan, developed 21 country parties to the United Nations Framework 22 Convention on Climate Change, including the United 23 States, committed to ‘‘enhanced action on the provi- 24 sion of financial resources and investment to support 25 action on mitigation and adaptation and technology f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00914 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 915 1 cooperation,’’ including, inter alia, consideration of 2 ‘‘improved access to adequate, predictable, and sus- 3 tainable financial resources and financial and tech- 4 nical support, and the provision of new and addi- 5 tional resources, including official and concessional 6 funding for developing country parties’’. 7 (b) PURPOSES.—The purposes of this part are— 8 (1) to provide new and additional assistance 9 from the United States to the most vulnerable devel- 10 oping countries, including the most vulnerable com- 11 munities and populations therein, in order to sup- 12 port the development and implementation of climate 13 change adaptation programs and activities that re- 14 duce the vulnerability and increase the resilience of 15 communities to climate change impacts, including 16 impacts on water availability, agricultural produc- 17 tivity, flood risk, coastal resources, timing of sea- 18 sons, biodiversity, economic livelihoods, health and 19 diseases, and human migration; and 20 (2) to provide such assistance in a manner that 21 protects and promotes the national security, foreign 22 policy, environmental, and economic interests of the 23 United States to the extent such interests may be 24 advanced by minimizing, averting, or increasing re- 25 silience to climate change impacts. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00915 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 916 1 SEC. 492. DEFINITIONS. 2 In this part: 3 (1) ALLOWANCE.—The term ‘‘allowance’’ 4 means an emission allowance established under sec- 5 tion 721 of the Clean Air Act. 6 (2) APPROPRIATE COMMIT- CONGRESSIONAL 7 TEES.—The term ‘‘appropriate congressional com- 8 mittees’’ means— 9 (A) the Committees on Energy and Com- 10 merce, Financial Services, and Foreign Affairs 11 of the House of Representatives; and 12 (B) the Committees on Environment and 13 Public Works and Foreign Relations of the Sen- 14 ate. 15 (3) DEVELOPING COUNTRY.—The term ‘‘devel- 16 oping country’’ means a country eligible to receive 17 official development assistance according to the in- 18 come guidelines of the Development Assistance Com- 19 mittee of the Organization for Economic Coopera- 20 tion and Development. 21 (4) MOST VULNERABLE DEVELOPING COUN- 22 TRIES.—The term ‘‘most vulnerable developing 23 countries’’ means, as determined by the Adminis- 24 trator of USAID, developing countries that are at 25 risk of substantial adverse impacts of climate change 26 and have limited capacity to respond to such im- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00916 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 917 1 pacts, considering the approaches included in any 2 international treaties and agreements. 3 (5) MOST VULNERABLE COMMUNITIES AND 4 POPULATIONS.—The term ‘‘most vulnerable commu- 5 nities and populations’’ means communities and pop- 6 ulations that are at risk of substantial adverse im- 7 pacts of climate change and have limited capacity to 8 respond to such impacts, including impoverished 9 communities, children, women, and indigenous peo- 10 ples. 11 (6) PROGRAM.—The term ‘‘Program’’ means 12 the International Climate Change Adaptation Pro- 13 gram established under section 493. 14 (7) USAID.—The term ‘‘USAID’’ means the 15 United States Agency for International Develop- 16 ment. 17 (8) UNITED NATIONS FRAMEWORK CONVEN- 18 TION ON CLIMATE CHANGE.—The term ‘‘United Na- 19 tions Framework Convention on Climate Change’’ or 20 ‘‘Convention’’ means the United Nations Framework 21 Convention on Climate Change done at New York on 22 May 9, 1992, and entered into force on March 21, 23 1994. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00917 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 918 1 SEC. 493. INTERNATIONAL CLIMATE CHANGE ADAPTATION 2 PROGRAM. 3 (a) ESTABLISHMENT.—The Secretary of State, in 4 consultation with the Administrator of USAID, the Sec- 5 retary of the Treasury, and the Administrator of the Envi- 6 ronmental Protection Agency, shall establish an Inter- 7 national Climate Change Adaptation Program in accord- 8 ance with the requirements of this part. 9 (b) ALLOWANCE ACCOUNT.—Allowances allocated 10 pursuant to section 782(n) of the Clean Air Act shall be 11 available for distribution to carry out the Program estab- 12 lished under subsection (a). 13 (c) SUPPLEMENT NOT SUPPLANT.—Assistance pro- 14 vided under this part shall be used to supplement, and 15 not to supplant, any other Federal, State, or local re- 16 sources available to carry out activities of the type carried 17 out under the Program. 18 SEC. 494. DISTRIBUTION OF ALLOWANCES. 19 (a) IN GENERAL.—The Secretary of State, or such 20 other Federal agency head as the President may des- 21 ignate, after consultation with the Secretary of the Treas- 22 ury, the Administrator of USAID, and the Administrator 23 of the Environmental Protection Agency, shall direct the 24 distribution of allowances to carry out the Program— 25 (1) in the form of bilateral assistance pursuant 26 to the requirements under section 495; f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00918 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 919 1 (2) to multilateral funds or international insti- 2 tutions pursuant to the Convention or an agreement 3 negotiated under the Convention; or 4 (3) through a combination of the mechanisms 5 identified under paragraphs (1) and (2). 6 (b) LIMITATION.— 7 (1) CONDITIONAL DISTRIBUTION TO MULTILAT- 8 ERAL FUNDS OR INTERNATIONAL INSTITUTIONS.— 9 In any fiscal year, the Secretary of State, or such 10 other Federal agency head as the President may 11 designate, in consultation with the Administrator of 12 USAID, the Secretary of the Treasury, and the Ad- 13 ministrator of the Environmental Protection Agency, 14 shall distribute at least 40 percent and up to 60 per- 15 cent of the allowances available to carry out the Pro- 16 gram to one or more multilateral funds or inter- 17 national institutions that meet the requirements of 18 paragraph (2), if any such fund or institution exists, 19 and shall annually certify in a report to the appro- 20 priate congressional committees that any multilat- 21 eral fund or international institution receiving allow- 22 ances under this section meets the requirements of 23 paragraph (2) or that no multilateral fund or inter- 24 national institution that meets the requirements of 25 paragraph (2) exists, as the case may be. The Sec- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00919 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 920 1 retary of State shall notify the appropriate congres- 2 sional committees not less than 15 days prior to any 3 transfer of allowances to a multilateral fund or 4 international institution pursuant to this section. 5 (2) MULTILATERAL FUND OR INTERNATIONAL 6 INSTITUTION ELIGIBILITY.—A multilateral fund or 7 international institution is eligible to receive allow- 8 ances available to carry out the Program— 9 (A) if— 10 (i) such fund or institution is estab- 11 lished pursuant to— 12 (I) the Convention; or 13 (II) an agreement negotiated 14 under the Convention; or 15 (ii) the allowances are directed to one 16 or more multilateral development banks or 17 international development institutions, pur- 18 suant to an agreement negotiated under 19 such Convention; and 20 (B) if such fund or institution— 21 (i) specifies the terms and conditions 22 under which the United States is to pro- 23 vide allowances to the fund or institution, 24 and under which the fund or institution is 25 to provide assistance to recipient countries; f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00920 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 921 1 (ii) ensures that assistance from the 2 United States to the fund or institution 3 and the principal and income of the fund 4 or institution are disbursed only for pur- 5 poses that are consistent with those de- 6 scribed in section 491(b)(1); 7 (iii) requires a regular meeting of a 8 governing body of the fund or institution 9 that includes representation from countries 10 among the most vulnerable developing 11 countries and provides public access; 12 (iv) requires that local communities 13 and indigenous peoples in areas where any 14 activities or programs are planned are en- 15 gaged through adequate disclosure of in- 16 formation, public participation, and con- 17 sultation; and 18 (v) prepares and makes public an an- 19 nual report that— 20 (I) describes the process and 21 methodology for selecting the recipi- 22 ents of assistance from the fund or in- 23 stitution, including assessments of 24 vulnerability; f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00921 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 922 1 (II) describes specific programs 2 and activities supported by the fund 3 or institution and the extent to which 4 the assistance is addressing the adap- 5 tation needs of the most vulnerable 6 developing countries, and the most 7 vulnerable communities and popu- 8 lations therein; 9 (III) describes the performance 10 goals for assistance authorized under 11 the fund or institution and expresses 12 such goals in an objective and quan- 13 tifiable form, to the extent practicable; 14 (IV) describes the performance 15 indicators to be used in measuring or 16 assessing the achievement of the per- 17 formance goals described in subclause 18 (III); 19 (V) provides a basis for rec- 20 ommendations for adjustments to as- 21 sistance authorized under this part to 22 enhance the impact of such assist- 23 ance; and 24 (VI) describes the participation 25 of other nations and international or- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00922 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 923 1 ganizations in supporting and gov- 2 erning the fund or institution. 3 (c) OVERSIGHT.— 4 (1) DISTRIBUTION TO MULTILATERAL FUNDS 5 OR INTERNATIONAL INSTITUTIONS.—The Secretary 6 of State, or such other Federal agency head as the 7 President may designate, in consultation with the 8 Administrator of USAID, shall oversee the distribu- 9 tion of allowances available to carry out the Pro- 10 gram to a multilateral fund or international institu- 11 tion under subsection (b). 12 (2) BILATERAL ASSISTANCE.—The Adminis- 13 trator of USAID, in consultation with the Secretary 14 of State, shall oversee the distribution of allowances 15 available to carry out the Program for bilateral as- 16 sistance under section 495. 17 SEC. 495. BILATERAL ASSISTANCE. 18 (a) ACTIVITIES AND FOREIGN AID.— 19 (1) IN GENERAL.—In order to achieve the pur- 20 poses of this part, the Administrator of USAID may 21 carry out programs and activities and distribute al- 22 lowances to any private or public group (including 23 international organizations and faith-based organiza- 24 tions), association, or other entity engaged in peace- 25 ful activities to— f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00923 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 924 1 (A) provide assistance to the most vulner- 2 able developing countries for— 3 (i) the development of national or re- 4 gional climate change adaptation plans, in- 5 cluding a systematic assessment of socio- 6 economic vulnerabilities in order to identify 7 the most vulnerable communities and pop- 8 ulations; 9 (ii) associated national policies; and 10 (iii) planning, financing, and execu- 11 tion of adaptation programs and activities; 12 (B) support investments, capacity-building 13 activities, and other assistance, to reduce vul- 14 nerability and promote community-level resil- 15 ience related to climate change and its impacts 16 in the most vulnerable developing countries, in- 17 cluding impacts on water availability, agricul- 18 tural productivity, flood risk, coastal resources, 19 timing of seasons, biodiversity, economic liveli- 20 hoods, health, human migration, or other social, 21 economic, political, cultural, or environmental 22 matters; 23 (C) support climate change adaptation re- 24 search in or for the most vulnerable developing 25 countries; f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00924 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 925 1 (D) reduce vulnerability and provide in- 2 creased resilience to climate change for local 3 communities and livelihoods in the most vulner- 4 able developing countries by encouraging— 5 (i) the protection and rehabilitation of 6 natural systems; 7 (ii) the enhancement and diversifica- 8 tion of agricultural, fishery, and other live- 9 lihoods; and 10 (iii) the reduction of disaster risks; 11 (E) support the deployment of technologies 12 to help the most vulnerable developing countries 13 respond to the destabilizing impacts of climate 14 change and encourage the identification and 15 adoption of appropriate renewable and efficient 16 energy technologies that are beneficial in in- 17 creasing community-level resilience to the im- 18 pacts of global climate change in those coun- 19 tries; and 20 (F) encourage the engagement of local 21 communities through disclosure of information, 22 consultation, and the communities’ informed 23 participation relating to the development of 24 plans, programs, and activities to increase com- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00925 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 926 1 munity-level resilience to climate change im- 2 pacts. 3 (2) LIMITATIONS.—Not more than 10 percent 4 of the allowances made available to carry out bilat- 5 eral assistance under this part in any year shall be 6 distributed to support activities in any single coun- 7 try. 8 (3) PRIORITIZING ASSISTANCE.—In providing 9 assistance under this section, the Administrator of 10 USAID shall give priority to countries, including the 11 most vulnerable communities and populations there- 12 in, that are most vulnerable to the adverse impacts 13 of climate change, determined by the likelihood and 14 severity of such impacts and the country’s capacity 15 to adapt to such impacts. 16 (b) COMMUNITY ENGAGEMENT.— 17 (1) IN GENERAL.—The Administrator of 18 USAID shall ensure that local communities, includ- 19 ing the most vulnerable communities and popu- 20 lations therein, in areas where any programs or ac- 21 tivities are carried out pursuant to this section are 22 engaged in, through disclosure of information, public 23 participation, and consultation, the design, imple- 24 mentation, monitoring, and evaluation of such pro- 25 grams and activities. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00926 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 927 1 DISCLOSURE.—For (2) CONSULTATION AND 2 each country receiving assistance under this section, 3 the Administrator of USAID shall establish a proc- 4 ess for consultation with, and disclosure of informa- 5 tion to, local, national, and international stake- 6 holders regarding any programs and activities car- 7 ried out pursuant to this section. 8 (c) COORDINATION.— 9 (1) ALIGNMENT OF ACTIVITIES.—Subject to the 10 direction of the President and the Secretary of 11 State, the Administrator of USAID shall, to the ex- 12 tent practicable, seek to align activities under this 13 section with broader development, poverty allevi- 14 ation, or natural resource management objectives 15 and initiatives in the recipient country. 16 (2) COORDINATION OF ACTIVITIES.—The Ad- 17 ministrator of USAID shall ensure that there is co- 18 ordination among the activities under this section, 19 subtitle D of this title, and part E of title VII of the 20 Clean Air Act, in order to maximize the effectiveness 21 of United States assistance to developing countries. 22 (d) REPORTING.— 23 (1) INITIAL REPORT.—Not later than 180 days 24 after the date of enactment of this part, the Admin- 25 istrator of USAID, in consultation with the Sec- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00927 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 928 1 retary of State, shall submit to the President and 2 the appropriate congressional committees an initial 3 report that— 4 (A) based on the most recent information 5 available from reliable public sources or knowl- 6 edge obtained by USAID on a reliable basis, as 7 determined by the Administrator of USAID, 8 identifies the developing countries, including the 9 most vulnerable communities and populations 10 therein, that are most vulnerable to climate 11 change impacts and in which assistance may 12 have the greatest and most sustainable benefit 13 in reducing vulnerability to climate change; and 14 (B) describes the process and methodology 15 for selecting the recipients of assistance under 16 subsection (a)(1). 17 (2) ANNUAL REPORTS.—Not later than 18 18 months after the date on which the initial report is 19 submitted pursuant to paragraph (1), and annually 20 thereafter, the Administrator of USAID, in consulta- 21 tion with the Secretary of State, shall submit to the 22 President and the appropriate congressional commit- 23 tees a report that— 24 (A) describes the extent to which global cli- 25 mate change, through its potential negative im- f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00928 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 929 1 pacts on sensitive populations and natural re- 2 sources in the most vulnerable developing coun- 3 tries, may threaten, cause, or exacerbate polit- 4 ical, economic, environmental, cultural, or social 5 instability or international conflict in those re- 6 gions; 7 (B) describes the ramifications of any po- 8 tentially destabilizing impacts climate change 9 may have on the national security, foreign pol- 10 icy, and economic interests of the United 11 States, including— 12 (i) the creation of environmental mi- 13 grants and internally displaced peoples; 14 (ii) international or internal armed 15 conflicts over water, food, land, or other 16 resources; 17 (iii) loss of agricultural and other live- 18 lihoods, cultural stability, and other causes 19 of increased poverty and economic desta- 20 bilization; 21 (iv) decline in availability of resources 22 needed for survival, including water; 23 (v) increased impact of natural disas- 24 ters (including droughts, flooding, and 25 other severe weather events); f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00929 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 930 1 (vi) increased prevalence or virulence 2 of climate-related diseases; and 3 (vii) intensified urban migration; 4 (C) describes how allowances available 5 under this section were distributed during the 6 previous fiscal year to enhance the national se- 7 curity, foreign policy, and economic interests of 8 the United States and assist in avoiding the 9 economically, politically, environmentally, cul- 10 turally, and socially destabilizing impacts of cli- 11 mate change in most vulnerable developing 12 countries; 13 (D) identifies and recommends the devel- 14 oping countries, including the most vulnerable 15 communities and populations therein, that are 16 most vulnerable to climate change impacts and 17 in which assistance may have the greatest and 18 most sustainable benefit in reducing vulner- 19 ability to climate change, including in the form 20 of deploying technologies, investments, capacity- 21 building activities, and other types of assistance 22 for adaptation to climate change impacts and 23 approaches to reduce greenhouse gases in ways 24 that may also provide community-level resilience 25 to climate change impacts; and f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00930 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 931 1 (E) describes cooperation undertaken with 2 other nations and international organizations to 3 carry out this part. 4 (e) MONITORING AND EVALUATION.— 5 (1) IN GENERAL.—The Administrator of 6 USAID shall establish and implement a system to 7 monitor and evaluate the effectiveness and efficiency 8 of assistance provided under this section in order to 9 maximize the long-term sustainable development im- 10 pact of such assistance, including the extent to 11 which such assistance is meeting the purposes of 12 this part and addressing the adaptation needs of de- 13 veloping countries. 14 (2) REQUIREMENTS.—In carrying out para- 15 graph (1), the Administrator of USAID shall— 16 (A) in consultation with national govern- 17 ments in recipient countries, establish perform- 18 ance goals for assistance authorized under this 19 section and express such goals in an objective 20 and quantifiable form, to the extent practicable; 21 (B) establish performance indicators to be 22 used in measuring or assessing the achievement 23 of the performance goals described in subpara- 24 graph (A), including an evaluation of— f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00931 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC F:\TB\EC\ACES09_001.XML 932 1 (i) the extent to which assistance 2 under this section provided for disclosure 3 of information to, consultation with, and 4 informed participation by local commu- 5 nities; 6 (ii) the extent to which local commu- 7 nities participated in the design, implemen- 8 tation, and evaluation of programs and ac- 9 tivities implemented pursuant to this sec- 10 tion; and 11 (iii) the impacts of such participation 12 on the goals and objectives of the pro- 13 grams and activities implemented under 14 this section; 15 (C) provide a basis for recommendations 16 for adjustments to assistance authorized under 17 this section to enhance the impact of such as- 18 sistance; and 19 (D) include, in the annual report to the 20 appropriate congressional committees and other 21 relevant agencies required under subsection 22 (d)(2), findings resulting from the monitoring 23 and evaluation of programs and activities under 24 this section. f:\VHLC\051509\051509.136.xml (434753|13) May 15, 2009 (1:09 p.m.) VerDate 0ct 09 2002 13:09 May 15, 2009 Jkt 000000 PO 00000 Frm 00932 Fmt 6652 Sfmt 6201 C:\TEMP\ACES09~1.XML HOLCPC |
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