SECTION 2. BIODIESEL; ASTM

STANDARD

(a) Overview . (1) Sections 40A, 6426, and 6427(e) of the Code provide tax incentives for the production, sale, and use of biodiesel and biodiesel mixtures. Section 40A(d)(1) defines biodiesel as monoalkyl esters of long chain fatty acids derived from plant or animal matter which meet—

(i) The registration requirements for fuels and fuel additives established by the Environmental Protection Agency under section 211 of the Clean Air Act (42 U.S.C. 7545), and (ii) The requirements of ASTM D6751. (2) Section 6426(c)(4) of the Code disallows the biodiesel mixture credit of

§ 6426 unless the producer of the mixture obtains a certificate, in such form and manner as prescribed by the Secretary, from the producer of the biodiesel that identifies the product produced and the percentage of biodiesel and agri-biodiesel in the product. Section 40A(b)(4) provides a similar rule for the biodiesel mixture credit and biodiesel credit allowed by § 40A.

(3) Notice 2005–62, 2005–2 C.B. 443, provides a model certificate for this purpose. In completing this certificate, a biodiesel producer certifies, among other things, that the biodiesel it has produced and sold meets the requirements of ASTM D6751.

(4) The forms on which taxpayers claim the biodiesel incentives (Form 8864 ( Biodiesel and Renewable Diesel Fuels Credit ), Form 720 ( Quarterly Federal Ex- cise Tax Return ), and Form 8849 ( Claim for Refund of Excise Taxes )) require the claimant to certify that the claim relates to biodiesel that meets the requirements of ASTM D6751.

(b) Revised Specification for Biodiesel; ASTM D6751. Effective on October 13, 2008, the American Society of Testing and Materials revised the requirements of ASTM D6751 by adding a cold soak filtration test for biodiesel (the October 13, 2008 revision). (c) Transitional rule. If a claim relates to production, sale, or use of biodiesel or a biodiesel mixture and the production, sale, or use occurs before April 1, 2009, a certification that the biodiesel covered by the claim meets the requirements of ASTM D6751 is valid if the biodiesel meets the requirements of ASTM D6751 as in effect either before or after the October 13, 2008, revision adding the cold soak filtration test for biodiesel. If a claim relates to production, sale, or use of biodiesel or a biodiesel mixture and the production, sale, or use occurs after April 1, 2009, a certification that the biodiesel covered by the claim meets the requirements of ASTM D6751 is valid only if the biodiesel satisfies the requirements of ASTM D6751 as in effect after the October 13, 2008, revision adding the cold soak filtration test for biodiesel.

December 22, 2008 1298 2008–51 I.R.B.