Rule2022-02149
Renewable Fuel Standard (RFS) Program: Extension of Compliance and Attest Engagement Reporting Deadlines
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
February 2, 2022
Effective
January 31, 2022
Issuing agencies
Environmental Protection Agency
Abstract
The Environmental Protection Agency (EPA) is finalizing modifications of certain compliance dates under the Renewable Fuel Standard (RFS) program. First, EPA is extending the RFS compliance reporting deadline and the associated attest engagement reporting deadline for the 2019 compliance year for small refineries only. Second, EPA is extending the RFS compliance reporting deadline and the associated attest engagement reporting deadline for the 2020, 2021, and 2022 compliance years for all obligated parties. Finally, EPA is changing the way in which future RFS compliance and attest engagement reporting deadlines are determined.
Full Text
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<title>Federal Register, Volume 87 Issue 22 (Wednesday, February 2, 2022)</title>
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[Federal Register Volume 87, Number 22 (Wednesday, February 2, 2022)]
[Rules and Regulations]
[Pages 5696-5702]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-02149]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 80
[EPA-HQ-OAR-2021-0793; FRL-8521.1-01-OAR]
RIN 2060-AV57
Renewable Fuel Standard (RFS) Program: Extension of Compliance
and Attest Engagement Reporting Deadlines
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is finalizing
modifications of certain compliance dates under the Renewable Fuel
Standard (RFS) program. First, EPA is extending the RFS compliance
reporting deadline and the associated attest engagement reporting
deadline for the 2019 compliance year for small refineries only.
Second, EPA is extending the RFS compliance reporting deadline and the
associated attest engagement reporting deadline for the 2020, 2021, and
2022 compliance years for all obligated parties. Finally, EPA is
changing the way in which future RFS compliance and attest engagement
reporting deadlines are determined.
DATES:
Effective date: The amendatory instructions in this final rule are
effective on January 31, 2022.
Operational dates: For operational purposes under the Clean Air Act
(CAA), this final rule is effective as of January 27, 2022.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-HQ-OAR-2021-0793. All documents in the docket are listed on the
<a href="https://www.regulations.gov">https://www.regulations.gov</a> website. Although listed in the index, some
information is not publicly available, e.g., confidential business
information (CBI) or other information whose disclosure is restricted
by statute. Certain other material is not available on the internet and
will be publicly available only in hard copy form. Publicly available
docket materials are available electronically through <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
FOR FURTHER INFORMATION CONTACT: For questions regarding this action,
contact Karen Nelson, Office of Transportation and Air Quality,
Compliance Division, Environmental Protection Agency, 2000 Traverwood
Drive, Ann Arbor, MI 48105; telephone number: (734) 214-4657; email
address: <a href="/cdn-cgi/l/email-protection#137d767f607c7d3d787261767d537663723d747c65"><span class="__cf_email__" data-cfemail="751b1019061a1b5b1e1407101b351005145b121a03">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
Dates
Section 553(d) of the Administrative Procedure Act (APA), 5 U.S.C.
chapter 5, generally provides that rules may not take effect until 30
days after they are published in the Federal Register. EPA is issuing
this final rule under CAA section 307(d), which states, ``The
provisions of section 553 through 557 . . . of Title 5 shall not,
except as expressly provided in this section, apply to actions to which
this subsection applies.'' Thus, section 553(d) of the APA does not
apply to this rule. EPA is nevertheless acting consistently with the
policies underlying APA section 553(d) in making this final rule
effective upon signature. The purpose of this APA provision is to
``give affected parties a reasonable time to adjust their behavior
before the final rule takes effect.'' Omnipoint Corp. v. Fed. Commc'n
Comm'n, 78 F.3d 620, 630 (D.C. Cir. 1996); see also United States v.
Gavrilovic, 551 F.2d 1099, 1104 (8th Cir. 1977) (quoting legislative
history). However, when an agency grants or recognizes an exemption or
relieves a restriction, affected parties do not need a reasonable time
to adjust because the effect is not adverse. Thus, APA section 553(d)
allows an effective date less than 30 days after publication for any
rule that ``grants or recognizes an exemption or relieves a
restriction'' (see 5 U.S.C. 553(d)(1)). An accelerated effective date
[[Page 5697]]
may also be appropriate for good cause pursuant to APA section
553(d)(3) where an agency can ``balance the necessity for immediate
implementation against principles of fundamental fairness which require
that all affected persons be afforded a reasonable amount of time to
prepare for the effective date of its ruling.'' Gavrilovic, 551 F.2d at
1105.
EPA has determined that the regulatory amendments to 40 CFR part
80, subpart M, are effective upon signature because they relieve a
restriction by extending the 2019-2022 compliance reporting deadlines
(and associated attest engagement report deadlines) ahead of the
otherwise imminent 2020 and 2021 compliance reporting deadlines
(January 31, 2022, and March 31, 2023, respectively), thereby providing
obligated parties with additional time to demonstrate compliance.\1\
There is additionally good cause for immediate implementation of these
provisions such that they are effective in advance of the finalization
of two different but related RFS actions, as this will ensure regulated
parties have clarity on their present and future RFS obligations before
they are required to demonstrate compliance for the years at issue.
First, EPA has proposed to deny all pending small refinery exemption
(SRE) petitions, including 29 petitions for 2019.\2\ There is therefore
good cause for this action to be effective upon signature to extend the
regulatory deadline for small refineries to comply with their 2019
obligations (previously November 30, 2021) because EPA believes that
the most equitable approach for the small refineries that have pending
SRE petitions is to take final action on those petitions before small
refineries are required to comply with their 2019 obligations. Second,
EPA has proposed to revise the 2020 standards as well as to establish
the 2021 and 2022 standards.\3\ There is good cause for this action to
be effective upon signature to relieve regulated entities of the
requirement to comply with their 2020 obligations that may be modified
by the final 2020-2022 rule; any delay in the effectiveness of this
action past January 31, 2022, would result in confusion among regulated
entities regarding the timing of their compliance obligations.
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\1\ This action postdates the previous 2019 compliance reporting
deadline of November 30, 2021 (86 FR 17073, 17074; April 1, 2021).
\2\ 86 FR 70999 (December 14, 2021) (hereinafter ``the Proposed
SRE Denial'').
\3\ 86 FR 72436 (December 21, 2021) (hereinafter ``the 2020-2022
rule'').
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Does this action apply to me?
Entities potentially affected by this final 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:
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NAICS
Category \1\ Examples of potentially
code affected entities
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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.
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\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. This table lists the types of entities that EPA is now aware
could potentially be affected by this action. Other types of entities
not listed in the table could also be affected. To determine whether
your entity would be affected by this action, you should carefully
examine the applicability criteria in 40 CFR part 80. If you have any
questions regarding the applicability of this action to a particular
entity, consult the person listed in the FOR FURTHER INFORMATION
CONTACT section.
Table of Contents
I. Background and Extension of Deadlines
A. Extension of the 2019 RFS Compliance Reporting Deadline for
Small Refineries
B. Extension of the 2020, 2021, and 2022 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
E. Severability
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 Risks
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
K. Congressional Review Act (CRA)
III. Statutory Authority
I. Background and Extension of Deadlines
The RFS regulations establish deadlines for obligated parties with
renewable volume obligations (RVOs) to submit annual compliance reports
to EPA, and later deadlines for the same parties to submit associated
attest engagement reports. Under the previous RFS regulations,
obligated parties needed to submit compliance reports for each calendar
year by March 31 of the following year and the associated attest
engagements by June 1 of the following year.\4\ On April 1, 2021, EPA
extended the deadlines for small refineries to demonstrate compliance
with their 2019 RFS obligations and for all obligated parties to
demonstrate compliance with their 2020 RFS obligations.\5\ In that same
action, we also extended the deadlines for the corresponding attest
engagements reports.\6\
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\4\ See 40 CFR 80.1451(a) and 80.1464(d).
\5\ 86 FR 17073 (April 1, 2021).
\6\ Id.
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On November 26, 2021, we again proposed to extend certain reporting
deadlines applicable to the 2019 and 2020 compliance years, and
additionally to extend certain reporting deadlines for the 2021
compliance year, due to continued delay in the promulgation of the 2021
and 2022 standards and uncertainty around EPA's SRE policy.\7\
Following this proposal, on December 14, 2021, we issued the Proposed
SRE Denial, proposing to deny all pending SRE petitions. And on
December 21, 2021, we proposed the 2020-2022 rule to establish the 2021
and 2022 standards and to modify the 2020 standards.
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\7\ 86 FR 67419 (November 26, 2021).
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Table I-1 summarizes the new annual compliance and attest
engagement reporting deadlines for the 2019-2022 compliance years that
EPA is finalizing.
[[Page 5698]]
Obligated party commenters generally supported our proposal to extend
the compliance deadlines, although some suggested that longer
compliance deadline extensions would be helpful. In contrast, biofuels
industry groups opposed our proposal and suggested that extensions were
not necessary or disruptive to the program. We have considered these
comments, and in some cases (i.e., 2022 deadlines), slightly adjusted
our regulations in response to the comments.\8\
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\8\ Further discussion of the comments received, and our
responses to them, can be found in the Response to Comments
document, available in the docket for this action.
Table I-1--Summary of RFS Annual Compliance and Attest Engagement Reporting Deadlines for Obligated Parties for
2019-2022
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Annual compliance reporting Attest engagement reporting
Compliance year Obligated party deadline deadline
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2019....................... All obligated parties March 31, 2020.............. June 1, 2020.
(except small
refineries).
2019....................... Small refineries....... Next quarterly reporting Next June 1 annual attest
deadline \a\ after the engagement reporting
effective date of the 2021 deadline after the 2019
standards. compliance reporting
deadline for small
refineries.
2020....................... All obligated parties.. Next quarterly reporting Next June 1 annual attest
deadline after the 2019 engagement reporting
compliance reporting deadline after the 2020
deadline for small compliance reporting
refineries. deadline.
2021....................... All obligated parties.. Next quarterly reporting Next June 1 annual attest
deadline after the 2020 engagement reporting
compliance reporting deadline after the 2021
deadline. compliance reporting
deadline.
2022....................... All obligated parties.. Next quarterly reporting Next June 1 annual attest
deadline after either the engagement reporting
effective date of the 2023 deadline after the 2022
standards or the 2021 compliance reporting
compliance reporting deadline.
deadline, whichever is
later.
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\a\ The RFS quarterly reporting deadlines are March 31, June 1, September 1, and December 1, as specified in 40
CFR 80.1451(f)(2).
We are also finalizing a new approach to setting reporting
deadlines for obligated parties that will automatically establish the
annual compliance and attest engagement reporting deadlines for a given
compliance year based on the effective date of the subsequent
compliance year's standards, if such a date is after the March 31
regulatory deadline. We discuss this new approach in more detail in
section I.D. Comments from both obligated parties and biofuels industry
groups generally opposed the automatic extensions of the reporting
deadlines. One obligated party commenter stated that an approach for
automatic extensions should instead be considered as part of EPA's
upcoming ``Set Rule'' for years 2023 and beyond. Biofuels industry
groups stated that creating a system for automatic extensions of the
reporting deadlines would disincentivize EPA from promulgating future-
year standards on time. We have considered these comments, but we have
concluded that having regulations in place that remove one source of
uncertainty in the RFS program, were EPA to ever again be late in
promulgating standards, is in the best interest of our implementation
of the program, as it will render future rulemakings like this one to
extend compliance deadlines unnecessary and prevent placing an
unnecessary burden on obligated parties to prepare, submit, and then
possibly retract and revise compliance reports for deadlines that were
later extended. Therefore, we are finalizing our approach as
proposed.\9\
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\9\ Further discussion of the comments received on the automatic
reporting deadline extensions, and our responses to them, can be
found in section 3 of the Response to Comments document, available
in the docket for this action.
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A. Extension of the 2019 RFS Compliance Reporting Deadline for Small
Refineries
For small refineries, we are extending the 2019 compliance
reporting deadline to the next quarterly reporting deadline after the
effective date of the 2021 standards, as proposed.\10\ In December
2021, EPA proposed two RFS actions that, if finalized, are likely to
affect 2019 compliance for small refineries. First, in the 2020-2022
rule, we proposed to lower the existing 2020 standards. As explained in
that proposal, this revision is justified by decreased transportation
fuel demand due to the COVID-19 pandemic and due to a potential change
in approach to how EPA evaluates SRE petitions compared to the policy
that was in place at the time the 2020 standards were finalized.
Second, in the Proposed SRE Denial, we proposed to deny all pending SRE
petitions currently before EPA.\11\ The comment periods for these
actions close after both the previous 2019 compliance deadline for
small refineries and the previous 2020 compliance deadline for all
obligated parties. Because we have not yet made a final decision on the
SRE petitions nor finalized changes to the 2020 standards, and given
the continued uncertainty surrounding SREs under the RFS program, we
are finalizing our proposed extension of the 2019 compliance deadline
until the next quarterly reporting deadline after the 2021 standards
become effective.\12\ We note also that, if we adjust the 2020
standards downward as proposed in the 2020-2022 rule, additional
Renewable Identification Numbers (RINs) will likely become available in
the marketplace for small refineries to demonstrate compliance with
their 2019 obligations.
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\10\ The effective date of 2021 standards is generally expected
to be 60 days after publication of the action establishing the
standards in the Federal Register.
\11\ EPA currently has before it over 60 SRE petitions for 2019-
2021.
\12\ A small refinery may petition EPA for an exemption from its
RFS obligations under 40 CFR 80.1441(e)(2).
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As an example of the potential timing of this deadline, if the
final rule establishing the 2021 standards is published in the Federal
Register on May 15, 2022, then the effective date of the 2021 standards
would be 60 days later on July 14, 2022, and the 2019 compliance
reporting deadline for small refineries would be September 1, 2022,
because that would be the next quarterly reporting deadline after the
effective date of the 2021 standards.\13\ We are
[[Page 5699]]
tying the 2019 compliance reporting deadline to the effective date of
the 2021 standards to allow for the proper sequencing of deadlines such
that 2019 compliance will be complete prior to 2020 compliance, and
2020 compliance will be complete prior to 2021 compliance, given the
continued delay in promulgating the 2021 standards. As noted earlier,
we proposed to revise the 2020 standards in the 2020-2022 rule; thus,
the 2020 standards may be revised along with the promulgation of the
2021 standards. The compliance schedule finalized in this action
sequences the 2019 and 2020 compliance reporting deadlines to eliminate
the need for small refineries to demonstrate compliance with their 2020
obligations before EPA takes a final action on revising the 2020
standards.
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\13\ Table I.C-1 illustrates this example deadline for 2019
based on an effective date of July 14, 2022.
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On January 24, 2020, the U.S. Court of Appeals for the Tenth
Circuit issued a decision in Renewable Fuels Association v. EPA (RFA)
invalidating on multiple grounds three SREs granted by EPA.\14\ The
small refineries whose SREs were invalidated by the court in the RFA
case sought rehearing from the Tenth Circuit, which was denied on April
7, 2020.\15\ Thus, the Tenth Circuit's decision was not final until
after the 2019 compliance reporting deadline of March 31, 2020, had
already passed. On September 4, 2020, the small refinery intervenors in
that suit filed a petition for a writ of certiorari from the U.S.
Supreme Court, which was granted on January 8, 2021, in HollyFrontier
v. RFA.\16\ On June 25, 2021, the Supreme Court issued its opinion in
HollyFrontier.\17\ In line with this case law, EPA has proposed to deny
all of the pending SRE petitions in the Proposed SRE Denial, but as the
comment period for that action is still ongoing, EPA has not yet made a
final decision and there remains uncertainty about the resolution of
the 2019 and other pending SRE petitions at this time.
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\14\ Renewable Fuels Ass'n v. EPA, 948 F.3d 1206 (10th Cir.
2020) (RFA).
\15\ Order, RFA, No. 18-9533 (10th Cir. Apr. 7, 2020).
\16\ HollyFrontier Cheyenne Refining, LLC v. Renewable Fuels
Ass'n, 114 S.Ct. 2172 (2021).
\17\ Id. at 2181.
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Therefore, we believe it appropriate to extend the 2019 compliance
reporting deadline for small refineries as proposed. Additionally,
because we proposed to modify the 2020 standards in the 2020-2022 rule,
RIN availability in the market is likely to change due to the two-year
``lifespan'' of RINs. Obligated parties may satisfy up to 20 percent of
their individual 2020 obligations through the use of 2019 RINs. If
finalized, our proposed reductions to the 2020 volumes would likely
result in additional 2019 RINs being available in the market as parties
make adjustments to their RIN holdings. These 2019 RINs could thus
become available to small refineries for compliance with their 2019 RFS
obligations. We believe that it is appropriate to extend the 2019
compliance reporting deadline only for small refineries because it is
only their compliance requirements that have been affected by the
recent HollyFrontier and RFA decisions. We are extending this
flexibility to all small refineries regardless of whether they have an
SRE petition for 2019 pending before EPA. All other obligated parties'
compliance obligation deadlines for 2019 have already passed and remain
unchanged.\18\
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\18\ The 2019 compliance and attest engagement reporting
deadlines were March 31, 2020, and June 1, 2020, respectively.
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We recognize that some small refineries have already submitted
their 2019 compliance reports. However, we will allow all small
refineries to revisit their 2019 compliance reports before their new
2019 compliance reporting deadline. This means that if a small refinery
carried forward a deficit to demonstrate compliance for 2019 by
November 30, 2021, but later receives an SRE for 2019 or retires RINs
in accordance with its RVOs, that initial decision to carry forward a
deficit will not constitute a carry-forward deficit (i.e., failing to
meet the requirement to retire sufficient RINs as described in 40 CFR
80.1427(a)(1)) that would make the small refinery ineligible to do the
same for 2020 under 40 CFR 80.1427(b). Small refineries that did not
submit a compliance report by November 30, 2021, will need to submit a
compliance report to comply with the new 2019 compliance reporting
deadline, unless they receive an exemption for 2019.
This deadline extension will apply only to those parties who meet
the definition of small refinery in Clean Air Act (CAA) section
211(o)(1)(k) and 40 CFR 80.1441(e)(2)(iii) for the 2019 compliance
year. Limiting the extension in this way is appropriate because only
small refineries' compliance obligations are affected by the
HollyFrontier and RFA opinions and it is consistent with our
eligibility requirements regarding SREs. We recognize that, in recent
years, we have determined that some parties who have petitioned for
SREs have been deemed ineligible by EPA, often due to the refinery's
throughput (i.e., more than 75,000 barrels of crude oil per day) or the
nature of their business (i.e., not a petroleum refinery). The parties
that EPA has found ineligible because they do not meet the definition
of small refinery in recent years will similarly not be eligible for
the 2019 compliance date extension for small refineries.
We note that all of the existing regulatory flexibilities for small
refineries--including the ability to satisfy up to 20 percent of their
2019 RVOs using 2018 carryover RINs under 40 CFR 80.1427(a)(5) and the
ability to carry forward a deficit from 2019 to 2020 if they did not
carry forward a deficit from 2018 under 40 CFR 80.1427(b)--continue to
be available to them to demonstrate compliance for 2019 by the new 2019
compliance reporting deadline. This means that small refineries that
carried forward a deficit for 2019 in their initial 2019 compliance
reports (filed in 2020 or 2021) can reverse that decision in new
compliance reports and retain their ability to carry forward a deficit
for 2020. It also means that small refineries that did not submit a
2019 compliance report by November 30, 2021, can also carry forward a
deficit for 2020. Finally, small refineries can either carry forward a
deficit for 2019 (if they did not do so for 2018) or for 2020 (if they
do not do so for 2019).
B. Extension of the 2020, 2021, and 2022 RFS Compliance Reporting
Deadline for All Obligated Parties
As proposed, we are finalizing the extension of the 2020 compliance
reporting deadline for all obligated parties from January 31, 2022, to
the next quarterly reporting deadline after the 2019 compliance
reporting deadline for small refineries, and the extension of the 2021
compliance reporting deadline for all obligated parties from March 31,
2022, to the next quarterly reporting deadline after the 2020
compliance reporting deadline. Also, in response to comments and in
order to ensure proper sequencing of the compliance reporting
deadlines, we are extending the 2022 compliance reporting deadline for
all obligated parties from March 31, 2023, to the next quarterly
reporting deadline after either the effective date of the 2023
standards or the 2021 compliance reporting deadline, whichever is
later. We are doing so because EPA has not yet established the 2021 or
2022 standards, including applicable volumes, and we recognize the
importance to obligated parties of planning their compliance for a
given calendar year by understanding their obligations for the years
before and
[[Page 5700]]
after.\19\ This is particularly true given the two-year ``lifespan''
for RINs, such that 2020 RINs can be used for compliance with either
2020 or 2021 obligations. Compliance obligations for 2021 and 2022 will
remain unknown until EPA finalizes the 2021 and 2022 standards.
Additionally, EPA has proposed to modify the 2020 standards in the
2020-2022 rule. Delaying the 2020 compliance deadline until after EPA
completes its revision of the 2020 standards would avoid unnecessary
RIN retirements and corresponding unretirements due to potential
modification of the standards. Finally, several commenters noted that
it is likely that the 2022 compliance reporting deadline will be
affected by the new sequencing of the 2019, 2020, and 2021 compliance
reporting deadlines, and recommended that EPA take the same approach to
extending the 2022 deadline as for 2020 and 2021. We agree with the
commenters and are extending the 2022 compliance reporting deadline as
well. However, unlike 2019, 2020, and 2021, for 2022 we have not yet
proposed the subsequent year's standards (i.e., the 2023 standards).
Therefore, we are establishing the 2022 compliance reporting deadline
as the next quarterly reporting deadline after either the effective
date of the 2023 standards or the 2021 compliance reporting deadline,
whichever is later. This will ensure that obligated parties know their
2023 obligations before complying with their 2022 obligations,
consistent with our approach for 2019-2021.
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\19\ For discussion of obligated parties' interest in such
extensions in past actions, see 80 FR 33100, 33149-50 (June 10,
2015) and 78 FR 49794, 49823 (August 15, 2013).
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These deadline extensions will allow proper sequencing of the
compliance dates. It will allow small refineries to complete compliance
with their 2019 obligations before having to comply with their 2020 RFS
obligations. It will also allow for obligated parties to make
additional RIN acquisitions, transfers, transactions, and retirements
prior to the compliance reporting deadlines by providing at least 60
days between each of the 2019-2022 compliance reporting deadlines.
Using the prior example, if the final rule establishing the 2021
standards has an effective date of July 14, 2022, the 2019 compliance
reporting deadline for small refineries would be September 1, 2022.
Furthermore, by operation of law, under this scenario, the 2020
compliance reporting deadline for all obligated parties would be
December 1, 2022, the 2021 compliance reporting deadline would be March
31, 2023, and the 2022 compliance reporting deadline would be June 1,
2023.\20\
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\20\ Table I.C-1 illustrates these example deadlines for 2020,
2021, and 2022 based on an effective date of July 14, 2022.
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C. Corresponding Attest Engagement Reporting Deadlines
We are finalizing the deadline extension for attest engagement
reports required under 40 CFR 80.1464(g) for small refineries for 2019
compliance demonstrations and for all obligated parties for 2020 and
2021 compliance demonstrations to the next June 1 annual attest
engagement reporting deadline after the applicable 2019-2021 compliance
reporting deadline. Also, in response to comments and in order to
ensure proper sequencing of the attest engagement reporting deadlines,
we are extending the 2022 attest engagement reporting deadline for all
obligated parties from June 1, 2023, to the next June 1 annual attest
engagement reporting deadline after the 2022 compliance reporting
deadline. Using the prior example where the final rule establishing the
2021 standards has an effective date of July 14, 2022, under this
approach, the 2019 attest engagement reporting deadline for small
refineries and the 2020 and 2021 attest engagement reporting deadline
for all obligated parties would be due on June 1, 2023, and the 2022
attest engagement reporting deadline for all obligated parties would be
due on June 1, 2024.
We are extending these attest engagement reporting deadlines to
ensure enough time for attest auditors to reasonably conduct the 2019,
2020, 2021, and 2022 attest engagement reports. Because the annual
attest engagement reporting deadline occurs only once each year (June
1), it is likely that with the new compliance deadline extensions,
several of the affected 2019, 2020, 2021, and 2022 attest engagement
reports will be due on the same June 1 deadline (either in 2023 or
2024). This change will therefore minimize confusion and maximize
efficiency for the attest auditors to conduct and prepare reports.
Table I.C-1 illustrates the example deadlines for the 2019-2022
annual compliance and attest engagement reporting deadlines. Note that
these dates do not represent the actual reporting deadlines, which will
be based on the effective date of the 2021 standards. We will post the
actual reporting deadlines on our reporting deadlines website.\21\
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\21\ The reporting deadlines website is available at: <a href="https://www.epa.gov/fuels-registration-reporting-and-compliance-help/reporting-deadlines-fuel-programs">https://www.epa.gov/fuels-registration-reporting-and-compliance-help/reporting-deadlines-fuel-programs</a>.
Table I.C-1--Example RFS Annual Compliance and Attest Engagement Reporting Deadlines for Obligated Parties \a\
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Annual compliance Attest engagement reporting
Compliance year Obligated party reporting deadline deadline
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2019........................ All obligated parties March 31, 2020.......... June 1, 2020.
(except small
refineries).
2019........................ Small refineries........ September 1, 2022....... June 1, 2023.
2020........................ All obligated parties... December 1, 2022........ June 1, 2023.
2021........................ All obligated parties... March 31, 2023.......... June 1, 2023.
2022........................ All obligated parties... June 1, 2023............ June 1, 2024.
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\a\ Example based on an effective date of July 14, 2022, for the final rule establishing the 2021 standards.
D. Annual Compliance and Attest Engagement Reporting Deadlines Based on
Effective Date
For annual compliance and annual attest engagement reporting
deadlines for 2023 and beyond, we are finalizing the same approach as
that outlined above for 2019-2022. Under this approach, for 2023 and
beyond, the annual compliance reporting deadline will be the latest
date of the following:
<bullet> March 31st of the subsequent calendar year;
[[Page 5701]]
<bullet> The next quarterly reporting deadline after the effective
date of the subsequent compliance year's standards (typically 60 days
after publication of the final rule in the Federal Register); or
<bullet> The next quarterly reporting deadline under 40 CFR
80.1451(f)(2) after the annual compliance reporting deadline for the
prior compliance year.
Under this approach, which is consistent with the proposal, the
annual compliance reporting deadline will also be at least 60 days
after publication of the subsequent year's standards in the Federal
Register and 60 days after the prior year's compliance reporting
deadline. This approach will also avoid EPA having to repeatedly extend
compliance reporting deadlines for obligated parties should
promulgation of the subsequent year's standards be delayed, and will
provide regulatory certainty for obligated parties. We will continue to
strive to promulgate the standards for a given compliance year prior to
the beginning of that year, and the provisions finalized in this action
will apply only in the unusual circumstance where promulgation of the
following year's standards are significantly delayed.
Similarly, for 2023 and beyond, we are tying the annual attest
engagement reporting deadline to the effective date of the standards in
the same manner as finalized for the 2019-2022 annual attest engagement
reporting deadlines, which will make it the latest date of the
following:
<bullet> June 1 of the subsequent calendar year; or
<bullet> The next June 1 annual attest engagement reporting
deadline after the annual compliance reporting deadline.
Under this approach, annual attest engagement reports will be due
at least 60 days after the annual compliance reporting deadline like
under the current regulations.
To help communicate the annual compliance and annual attest
engagement reporting deadlines, we will also post the annual compliance
and annual attest engagement reporting deadlines on our website.\22\
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\22\ Information related to annual compliance and attest
engagement reporting is available at: <a href="https://www.epa.gov/fuels-registration-reporting-and-compliance-help/reporting-fuel-programs">https://www.epa.gov/fuels-registration-reporting-and-compliance-help/reporting-fuel-programs</a>.
The annual compliance and attest engagement reporting deadlines will
be posted at: <a href="https://www.epa.gov/fuels-registration-reporting-and-compliance-help/reporting-deadlines-fuel-programs">https://www.epa.gov/fuels-registration-reporting-and-compliance-help/reporting-deadlines-fuel-programs</a>.
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E. Severability
We intend for our action in this final rule modifying the
compliance reporting deadlines for 2019 for small refineries and 2020,
2021 and 2022 for all obligated parties, as well as the associated
annual attest engagement reporting deadlines, to be severable from our
modifications of the regulations relating to future compliance
deadlines (i.e., for compliance years 2023 and beyond).
II. Statutory and Executive Order Reviews
Additional information about these statutes and Executive orders
can be found at <a href="https://www.epa.gov/laws-regulations/laws-and-executive-orders">https://www.epa.gov/laws-regulations/laws-and-executive-orders</a>.
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
This action is not a significant regulatory action and was
therefore not submitted to the Office of Management and Budget (OMB)
for review.
B. Paperwork Reduction Act (PRA)
This action does not impose any new information collection burden
under the PRA. OMB has previously approved the information collection
activities contained in the existing regulations and has assigned OMB
control number 2060-0725 and 2060-0723. This action only makes a one-
time change in the compliance dates for certain regulated parties and
adjusts the due date of their compliance reports and attest engagements
to reflect this change. It does not change the information to be
collected or increase the frequency of collection.
C. Regulatory Flexibility Act (RFA)
I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA. In
making this determination, EPA concludes that the impact of concern for
this rule is any significant adverse economic impact on small entities
and that the agency is certifying that this rulemaking will not have a
significant economic impact on a substantial number of small entities
if the rule has no net burden on the small entities subject to the
rule. This action extends the RFS compliance and attest engagement
reporting deadlines. We do not anticipate that there will be any costs
associated with these changes. We have therefore concluded that this
action will have no net regulatory burden for all directly regulated
small entities.
D. Unfunded Mandates Reform Act (UMRA)
This action does not contain an unfunded mandate of $100 million or
more as described in UMRA, 2 U.S.C. 1531-1538, and does not
significantly or uniquely affect small governments. This action imposes
no enforceable duty on any state, local or tribal governments.
Requirements for the private sector do not exceed $100 million in any
one year.
E. Executive Order 13132: Federalism
This action does not have federalism implications. It will not have
substantial direct effects on the states, on the relationship between
the National Government and the states, or on the distribution of power
and responsibilities among the various levels of government.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have tribal implications as specified in
Executive Order 13175. This rule only affects RFS obligated parties.
Thus, Executive Order 13175 does not apply to this action.
G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
EPA interprets Executive Order 13045 as applying only to those
regulatory actions that concern environmental health or safety risks
that EPA has reason to believe may disproportionately affect children,
per the definition of ``covered regulatory action'' in section 2-202 of
the Executive order. This action is not subject to Executive Order
13045 because it does not concern an environmental health risk or
safety risk.
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This action is not subject to Executive Order 13211, because it is
not a significant regulatory action under Executive Order 12866.
I. National Technology Transfer and Advancement Act (NTTAA) and 1 CFR
Part 51
This action does not involve technical standards.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
The EPA believes that this action is not subject to Executive Order
12898 (59 FR 7629, February 16, 1994) because it does establish an
environmental health or safety standard. This action addresses the RFS
compliance and attest
[[Page 5702]]
engagement reporting deadlines and does not impact the standards
themselves.
K. Congressional Review Act (CRA)
This action is subject to the CRA, and the EPA will submit a rule
report to each House of the Congress and to the Comptroller General of
the United States. This action is not a ``major rule'' as defined by 5
U.S.C. 804(2).
III. Statutory Authority
Statutory authority for this action comes from section 211(o) of
the Clean Air Act, 42 U.S.C. 7545(o).
List of Subjects in 40 CFR Part 80
Environmental protection, Administrative practice and procedure,
Air pollution control, Diesel fuel, Fuel additives, Gasoline, Imports,
Oil imports, Penalties, Petroleum, Renewable fuel, Reporting and
recordkeeping requirements.
Dated: January 27, 2022.
Michael S. Regan,
Administrator.
For the reasons set forth in the preamble, EPA amends 40 CFR part
80 as follows:
PART 80--REGULATION OF FUELS AND FUEL ADDITIVES
0
1. The authority citation for part 80 continues to read as follows:
Authority: 42 U.S.C. 7414, 7521, 7542, 7545, and 7601(a).
Subpart M--Renewable Fuel Standard
0
2. Amend Sec. 80.1451 by:
0
a. Revising paragraph (a)(1) introductory text;
0
b. Removing and reserving paragraph (a)(1)(xiv);
0
c. Revising paragraph (f) introductory text; and
0
d. Adding paragraph (f)(1) and headings for paragraphs (f)(2) and (3).
The revisions and additions read as follows:
Sec. 80.1451 What are the reporting requirements under the RFS
program?
(a) * * *
(1) Annual compliance reports must include all the following
information:
* * * * *
(f) Report submission deadlines. The submission deadlines for
annual and quarterly reports are as follows:
(1) Annual compliance reports--(i) Obligated parties. (A) Except as
specified in paragraph (f)(1)(i)(B) of this section, for obligated
parties, annual compliance reports must be submitted by whichever of
the following dates is latest:
(1) March 31 of the subsequent calendar year.
(2) The next quarterly reporting deadline under paragraph (f)(2) of
this section after the date the subsequent compliance year's renewable
fuel standards become effective in Sec. 80.1405(a).
(3) The next quarterly reporting deadline under paragraph (f)(2) of
this section after the annual compliance reporting deadline for the
prior compliance year.
(B)(1) For obligated parties that meet the requirements for a small
refinery under Sec. 80.1441(e)(2)(iii), for the 2019 compliance year,
annual compliance reports must be submitted no later than the next
quarterly reporting deadline under paragraph (f)(2) of this section
after the date the 2021 renewable fuel standards become effective in
Sec. 80.1405(a).
(2) For the 2020 compliance year, annual compliance reports must be
submitted no later than the next quarterly reporting deadline in
paragraph (f)(2) of this section after the deadline in paragraph
(f)(1)(i)(B)(1) of this section.
(3) For the 2021 compliance year, annual compliance reports must be
submitted no later than the next quarterly reporting deadline in
paragraph (f)(2) of this section after the deadline in paragraph
(f)(1)(i)(B)(2) of this section.
(4) For the 2022 compliance year, annual compliance reports must be
submitted by whichever of the following dates is latest:
(i) The next quarterly reporting deadline under paragraph (f)(2) of
this section after the date the 2023 renewable fuel standards become
effective in Sec. 80.1405(a).
(ii) The next quarterly reporting deadline in paragraph (f)(2) of
this section after the deadline in paragraph (f)(1)(i)(B)(3) of this
section.
(ii) All other parties. For all parties other than obligated
parties, annual compliance reports must be submitted by March 31 of the
subsequent year.
(iii) Deadline publication. The annual compliance reporting
deadline will be calculated in accordance with paragraph (f)(1)(i) of
this section and published on EPA's website.
(2) Quarterly compliance reports. * * *
(3) Report certification. * * *
* * * * *
0
3. Amend Sec. 80.1464 by:
0
a. Revising paragraph (d); and
0
b. Removing and reserving paragraph (g); and
0
c. Removing paragraph (i)(3).
The revision reads as follows:
Sec. 80.1464 What are the attest engagement requirements under the
RFS program?
* * * * *
(d) Report submission deadlines--(1) Obligated parties. (i) Except
as specified in paragraph (d)(1)(ii) of this section, for obligated
parties, annual attest engagement reports must be submitted to EPA by
whichever of the following dates is latest:
(A) June 1 of the subsequent calendar year.
(B) The next June 1 annual attest engagement reporting deadline
after the annual compliance reporting deadline under Sec.
80.1451(f)(1)(i)(A).
(ii)(A) For obligated parties that meet the requirements for a
small refinery under Sec. 80.1441(e)(2)(iii), for the 2019 compliance
year, annual attest engagement reports must be submitted to EPA no
later than the next June 1 annual attest engagement reporting deadline
after the annual compliance reporting deadline under Sec.
80.1451(f)(1)(i)(B)(1).
(B) For obligated parties, for the 2020 compliance year, annual
attest engagement reports must be submitted to EPA no later than the
next June 1 annual attest engagement reporting deadline after the
annual compliance reporting deadline under Sec.
80.1451(f)(1)(i)(B)(2).
(C) For obligated parties, for the 2021 compliance year, annual
attest engagement reports must be submitted to EPA no later than the
next June 1 annual attest engagement reporting deadline after the
annual compliance reporting deadline under Sec.
80.1451(f)(1)(i)(B)(3).
(D) For obligated parties, for the 2022 compliance year, annual
attest engagement reports must be submitted to EPA no later than the
next June 1 annual attest engagement reporting deadline after the
annual compliance reporting deadline under Sec.
80.1451(f)(1)(i)(B)(4).
(2) All other parties. All parties other than obligated parties
must submit annual attest engagement reports to EPA by June 1 of the
subsequent calendar year.
(3) Deadline publication. The annual attest engagement reporting
deadline will be calculated in accordance with paragraph (d)(1) of this
section and published on EPA's website.
* * * * *
[FR Doc. 2022-02149 Filed 1-31-22; 8:45 am]
BILLING CODE 6560-50-P
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