Proposed Rule: Renewable Fuel Standard (RFS) Program: Extension of Compliance and Attest Engagement Reporting Deadlines Public Comment DEADLINE: January 3, 2022 PUBLIC HEARING: December 3, 2021

December 03, 2021

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The Environmental Protection Agency (EPA) is proposing to modify certain compliance dates under the Renewable Fuel Standard (RFS) program. First, EPA is proposing to extend the RFS compliance reporting deadline and the associated attest engagement reporting deadline for the 2019 compliance year for small refineries only. Second, EPA is proposing to extend the RFS compliance reporting deadline and the associated attest engagement reporting deadline for the 2020 and 2021 compliance years for all obligated parties. Finally, EPA is proposing to change the way in which future RFS compliance and attest engagement reporting deadlines are determined.

DATES: Comments. Comments must be received on or before January 3, 2022. Public hearing. EPA will hold a virtual public hearing on December 3, 2021. Please refer to the SUPPLEMENTARY INFORMATION section for additional
information on the public hearing.

ADDRESSES: Comments. You may send your comments, identified by Docket ID No. EPA–HQ–OAR–2021–0793 ....

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Public hearing. The virtual public hearing will be held on December 3, 2021. The hearing will begin at 10 a.m. Eastern Time (ET) and end when all parties who wish to speak have had an opportunity to do so. All hearing attendees (including even those who do not intend to provide testimony) should register for the public hearing by November 30, 2021.

Information on how to register can be found at https://www.epa.gov/renewable-fuel-standardprogram/proposed-extension-renewablefuel-standard-compliance-deadlines.
Additional information regarding the hearing appears below under SUPPLEMENTARY INFORMATION

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Entities potentially affected by this proposed rule are those involved with the production, distribution, and sale of
transportation fuels, including gasoline, diesel, and renewable fuels such as ethanol, biodiesel, renewable diesel,
and biogas. Potentially affected categories include:
Category NAICS1
code
Examples of
potentially
affected entities
Industry .... 324110 Petroleum refineries.
Industry .... 325193 Ethyl alcohol manufacturing.
Industry .... 325199 Other basic organic
chemical manufacturing.
Industry .... 424690 Chemical and allied
products merchant
wholesalers.
Industry .... 424710 Petroleum bulk stations and terminals.
Industry .... 424720 Petroleum and petroleum products merchant wholesalers.
Industry .... 221210 Manufactured gas
production and distribution.
Industry .... 454319 Other fuel dealers.
1 North American Industry Classification
System (NAICS).
This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be
affected by this action

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I. Background and Proposed Extension of Deadlines
A. Extension of the 2019 RFS Compliance Reporting Deadline for Small Refineries
B. Extension of the 2020 and 2021 RFS Compliance Reporting Deadline for All Obligated Parties
C. Corresponding Attest Engagement Reporting Deadlines
D. Annual Compliance and Attest Engagement Reporting Deadlines Based on Effective Date
II. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and
Regulatory Review
B. Paperwork Reduction Act (PRA)
C. Regulatory Flexibility Act (RFA)
D. Unfunded Mandates Reform Act (UMRA)
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments
G. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risk

H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use
I. National Technology Transfer and Advancement Act (NTTAA) and 1 CFR Part 51
J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations
III. Statutory Authority READ MORE

Biofuels, Ag Push EPA to Enforce RFS: Ag, Biofuels Groups Tell EPA Resetting RFS Deadlines is Admission of Future Delays (DTN Progressive Farmer)

Ethanol industry wants no more delays on RVOs (Farm Progress)

Biofuels Groups Protest EPA Plan For Automatic RFS Compliance Delays (Inside EPA)

Excerpt from DTN Progressive Farmer: With rumors swirling EPA will cut Renewable Fuel Standard volumes perhaps in the coming days, biofuels and agriculture groups on Friday pressed the agency to get the law back on track during a public hearing on a proposal to extend 2019-2021 compliance deadlines for refiners.

EPA missed the statutory deadline to finalize volumes for 2022 on Tuesday and is more than one year overdue on finalizing 2021 volumes.

Biofuels and agriculture groups expressed frustration to EPA officials about the tardiness of the RFS program.

When it comes to the latest proposal, those groups said they believe the agency would open up the program for continued delays.

That is because EPA's proposal would move future compliance deadlines to after RFS volumes are finalized each year. This would automatically extend reporting deadlines when RFS volume obligations are delayed.

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"There's a growing sense of frustration among ACE members that we once again find ourselves testifying at another EPA hearing when we merely need the agency to follow the law when it comes to the Renewable Fuel Standard," said Ron Lamberty, senior vice president of the American Coalition for Ethanol, or ACE.

"We need to be very clear even if these proposed compliance extensions go into effect that should no way be viewed as an implicit acceptance of EPA's failure to do its job and establish RVOs by Nov. 30 of each year for the following year."

Lamberty told agency officials during the Zoom hearing that EPA expects the RVO deadline to be "missed regularly and that needs to continue to be the exception."

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EPA argues for deadline extensions because the agency has yet to decide on more than 50 pending small-refinery exemption petitions for 2019 and 2020, and because 2021 volume requirements have not been set.

Geoff Cooper, president and CEO of the Renewable Fuels Association, asked the agency to "immediately" decide the pending SRE petitions and require refiners to comply with 2019 and 2020 obligations, as well as to release volume proposals for 2021 and 2022. He also asked EPA to resist calls from the refining industry to reopen and slash 2020 volumes.

"EPA's RVO is a percentage-based standard that already accommodates fluctuations in the actual consumption of gasoline and diesel fuel," he said.

"No further adjustment to the 2020 RVO is necessary or legally permissible. RFA fully understands that the previous administration left the RFS program in disarray and failed to meet its deadlines for deciding SRE petitions and issuing RVOs. Extending the compliance deadlines again would only exacerbate the uncertainty and instability created by the past administration."

Chris Bliley, senior vice president of regulatory affairs for Growth Energy, said agency inaction on the RFS is harming Biden administration efforts to cut greenhouse gas emissions in transportation.

Growth Energy asked the EPA to update greenhouse gas models that show corn ethanol has 46% lower GHG emissions than gasoline, to restore year-round E15 sales, to follow a 2017 court order to restore 500 million gallons waived from the RFS, and to set volumes for 2021 and 2022.

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"The intent of the RFS is to blend more biofuels into our nation's transportation fuel supply. Period. It is not meant to reward oil companies for suing to prevent higher blends and then demand that the agency further delay compliance."

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Kate Shenk, director of regulatory affairs at the National Biodiesel Board, said EPA's proposal would weaken the RFS by allowing obligated parties to assume they don't need to necessarily comply.

"What is also concerning about this proposal is that EPA is attempting to sneak in an automatic delay in the compliance reporting for future years," she said.

"However, what we see is an admission that EPA will miss the statutory deadlines going forward and making it easier to do so. With EPA's current non-actions on issuing the RVO coupled with this proposal, EPA is acting as if there's no statutory deadline for promulgating annual rules." READ MORE

Excerpt from Farm Progress: Also speaking on Friday, Secretary of Agriculture Tom Vilsack told ag reporters he anticipates actions from the Biden administration on biofuels to create more stability than the past administration. Vilsack says he’s worked very closely with EPA Administrator Michael Regan in reinforcing the importance of EPA to take actions regarding the RFS to provide much desired stability.

“The administrator has indicated that he is not going to be granting the waivers in quite the same way that the Trump administration granted them that created instability in the program,” Vilsack says of the nearly 80 waiver requests granted during the Trump administration that undercut the RVOs established during those years.

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“EPA has had ample time to decide pending 2019 and 2020 SRE petitions following the Supreme Court’s June 2021 decision in the HollyFrontier v. RFA case, which left intact two important holdings from the Tenth Circuit Court’s January 2020 decision in the RFA v. EPA case,” explains Renewable Fuels Association President and CEO Geoff Cooper in prepared testimony. “We strongly encourage EPA to immediately decide the remaining 2019 and 2020 SRE petitions in a manner consistent with the unappealed holdings of the Tenth Circuit decision. And immediately upon deciding those petitions, EPA should require compliance with the final 2019 and 2020 standards.”

Growth Energy Senior Vice President of Regulatory Affairs Chris Bliley testified that instead of delaying the RVOs, EPA should take immediate steps to restore integrity to the RFS, restore lost biofuel demand, “and remove remaining hurdles to E15 and higher biofuel blends.” READ MORE