Extension of 2019 and 2020 Renewable Fuel Standard Compliance and Attest Engagement Reporting Deadlines, 17073-17078 [2021-06336]
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Federal Register / Vol. 86, No. 61 / Thursday, April 1, 2021 / Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
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 https://
www.regulations.gov.
40 CFR Part 80
FOR FURTHER INFORMATION CONTACT:
*
*
*
*
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[FR Doc. 2021–06616 Filed 3–31–21; 8:45 am]
BILLING CODE 6560–50–P
[EPA–HQ–OAR–2020–0725; FRL–10021–95–
OAR]
RIN 2060–AV07
Extension of 2019 and 2020 Renewable
Fuel Standard Compliance and Attest
Engagement Reporting Deadlines
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
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 sec.
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
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
SUPPLEMENTARY INFORMATION:
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 deadline
for the 2019 compliance year and the
associated deadline for submission of
attest engagement reports for the 2019
compliance year for small refineries.
The new deadlines are November 30,
2021, and June 1, 2022, respectively.
Second, EPA is extending the RFS
compliance deadline for the 2020
compliance year and the associated
deadline for submission of attest
engagement reports for the 2020
compliance year for obligated parties.
The new deadlines are January 31, 2022,
and June 1, 2022, respectively. Finally,
EPA is extending the deadline for
submission of attest engagement reports
for the 2021 compliance year for
obligated parties to September 1, 2022.
DATES: This final rule is effective on
March 30, 2021.
Operational dates: For operational
purposes under the Clean Air Act, this
final rule is effective as of March 23,
2021.
ADDRESSES: EPA has established a
docket for this action under Docket ID
No. EPA–HQ–OAR–2020–0725. All
documents in the docket are listed on
the https://www.regulations.gov
website. Although listed in the index,
some information is not publicly
available, e.g., CBI or other information
SUMMARY:
For
questions regarding this action, contact
Lauren Michaels, Office of
Transportation and Air Quality,
Assessment and Standards Division,
Environmental Protection Agency, 2000
Traverwood Drive, Ann Arbor, MI
48105; telephone number: (734) 214–
4640; email address: michaels.lauren@
epa.gov.
NAICS 1 code
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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 operational upon
signature because they relieve a
restriction by extending the 2019 and
2020 compliance deadlines (and
associated attest engagement report
deadlines) ahead of the otherwise
imminent 2020 RFS compliance
deadline of March 31, 2021, thereby
providing obligated parties with
additional time to demonstrate
compliance. There is additionally good
cause for immediate implementation of
these provisions because pending
litigation in the Supreme Court makes it
necessary for this rule to go into effect
prior to March 31, 2021, to ensure
regulated entities do not begin
complying with removed regulatory
obligations. Among other actions, EPA
is today extending the regulatory
deadline for small refineries to comply
with their 2019 RFS obligations from
March 31, 2020, to November 30, 2021,
because litigation pending before the
United States Supreme Court is
expected to resolve legal questions
regarding some small refineries’
eligibility to receive annual exemptions
from their 2019 regulatory obligations.
EPA is also extending the regulatory
deadline for all obligated parties to
comply with their 2020 RFS obligations,
from March 31, 2021, to January 31,
2022, which is required because of
agency delay in promulgating future
RFS compliance obligations and the
corresponding impact on compliance
decisions. These actions mean any delay
in the effectiveness of this final rule past
March 31, 2021, would result in
confusion among regulated entities
regarding their compliance obligations.
Does this action apply to me?
Entities potentially affected by this
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:
Examples of potentially affected entities
324110
325193
325199
424690
424710
424720
221210
Petroleum refineries.
Ethyl alcohol manufacturing.
Other basic organic chemical manufacturing.
Chemical and allied products merchant wholesalers.
Petroleum bulk stations and terminals.
Petroleum and petroleum products merchant wholesalers.
Manufactured gas production and distribution.
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NAICS 1 code
Category
Industry .........................................................................................
1 North
454319
Examples of potentially affected entities
Other fuel dealers.
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.
Outline of this Preamble
I. Background and Extension of Deadlines
A. Extension of the 2019 RFS Compliance
Deadline for Small Refineries
B. Extension of the 2020 RFS Compliance
Deadline for All Obligated Parties
C. Corresponding Attest Engagement
Report Deadlines
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
In January 2021, EPA proposed
amendments to the RFS regulations to
extend the deadline for obligated parties
to demonstrate compliance with their
2019 and 2020 RFS obligations.1 We are
finalizing the amendments as proposed
to extend the deadlines for small
refineries to submit reports
demonstrating compliance with their
2019 RFS obligations and their
corresponding attest engagement
reports. We are also finalizing
amendments to extend the deadlines for
all obligated parties to submit reports
demonstrating compliance with their
2020 RFS obligations and their
corresponding attest engagement
reports. Finally, in response to
stakeholder feedback, we are also
extending the 2021 attest engagement
report deadline for all obligated parties.
For small refineries, we are extending
the 2019 compliance deadline in light of
the continued uncertainty surrounding
small refinery exemptions (SREs) under
the RFS program.2 We are finalizing a
2019 compliance deadline for small
refineries of November 30, 2021, and an
attest engagement report deadline of
June 1, 2022. For the 2020 compliance
year, we are extending the compliance
deadline for all obligated parties
because we have not yet promulgated an
annual rulemaking establishing the 2021
RFS standards. We are finalizing a 2020
compliance deadline for all obligated
parties of January 31, 2022, and an attest
engagement report deadline of June 1,
2022. Finally, for the 2021 compliance
year, we are extending the attest
engagement report deadline for
obligated parties to September 1, 2022.
These new deadlines are summarized in
Table I.A–1 below.
TABLE I.A–1—ORIGINAL AND REVISED ANNUAL COMPLIANCE AND ATTEST ENGAGEMENT REPORTING DEADLINES FOR
OBLIGATED PARTIES FOR THE 2019 (AS APPLICABLE), 2020, AND 2021 COMPLIANCE YEARS
Original annual
compliance deadline
Regulated party category
Revised annual
compliance deadline
Original attest
engagement
reporting deadline
Revised attest
engagement
reporting deadline
2019 Compliance Year
Small refineries ................................................
March 31, 2020 .........
November 30, 2021 ..
June 1, 2020 .............
June 1, 2022.
June 1, 2021 .............
June 1, 2022.
June 1, 2022 .............
September 1, 2022.
2020 Compliance Year
Obligated parties ..............................................
March 31, 2021 .........
January 31, 2022 ......
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2021 Compliance Year
Obligated parties ..............................................
March 31, 2022 (unchanged)
Obligated party commenters were
generally supportive of our proposal to
extend the compliance deadlines,
although some suggested that additional
compliance deadline extensions would
be helpful. In contrast, biofuels industry
groups suggested extensions were either
not justified or excessive in length. We
also received comments from
stakeholders involved in the attest
engagement process who provided
feedback on the scope and sequencing
to replace or reduce the quantity of petroleumbased transportation fuel, heating oil, or jet fuel
used in the United States. Small refineries may
petition EPA annually for exemption from their RFS
obligations under CAA section 211(o)(9)(B). For
more information about small refinery exemptions
(SREs), see https://www.epa.gov/fuels-registrationreporting-and-compliance-help/rfs-small-refineryexemptions.
1 See
86 FR 3928 (January 15, 2021).
Renewable Fuel Standard (RFS) program,
established under Clean Air Act (CAA) section
211(o), requires a certain volume of renewable fuel
2 The
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of attest report deadline extensions. We
have considered these comments, and in
some cases, adjusted our regulations in
response to the comments.3
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A. Extension of the 2019 RFS
Compliance Deadline for Small
Refineries
The RFS regulations establish
deadlines for obligated parties with
renewable volume obligations (RVOs) to
submit annual compliance
demonstration reports to EPA, and later
deadlines for the same parties to submit
associated attest engagement reports.
Under existing RFS regulations,
obligated parties must submit
compliance demonstration reports for
each calendar year by March 31 of the
following year, and associated attest
engagements by June 1 of the following
year.4 In this action, we are revising
certain reporting deadlines applicable to
the 2019, 2020, and 2021 compliance
years.
On January 24, 2020, the U.S. Court
of Appeals for the Tenth Circuit issued
a decision in Renewable Fuels
Association (RFA) v. EPA invalidating
several SREs granted by EPA.5 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, 2020.6
Thus, the Tenth Circuit’s decision was
not final until after the 2019 compliance
reporting deadline had already passed
on March 31, 2020. 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.7 Briefing in
that case is ongoing, and oral argument
is scheduled for April 27, 2021. The
Supreme Court’s decision in
HollyFrontier has the potential to affect
the availability of SREs. Due to the
resulting uncertainty, we do not believe
it would be appropriate to require small
refineries to demonstrate compliance
with their 2019 obligations until the
Supreme Court renders a decision in
HollyFrontier.8
3 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.
4 See 40 CFR 80.1451(a) and 80.1464(d).
5 Renewable Fuels Ass’n v. EPA, 948 F.3d 1206
(10th Cir. 2020) (RFA).
6 Order, RFA, No. 18–9533 (10th Cir. Apr. 7,
2020).
7 HollyFrontier Cheyenne Refining, LLC v.
Renewable Fuels Ass’n, No. 20–472 (U.S.).
8 EPA received a letter from the Small Refineries
Coalition dated July 30, 2020, requesting that EPA
modify the 2019, 2020, and 2021 compliance
deadlines and corresponding attest engagement
reporting deadlines. The letter suggests that
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Therefore, we are finalizing our
proposed extension of the 2019
compliance deadline for small
refineries. We believe that it is
appropriate to do so only for small
refineries because it is only the
compliance requirements of these
parties that would be affected by the
outcome of the HollyFrontier case.9 All
other obligated parties’ compliance
obligations for 2019 remain the same
regardless of the HollyFrontier decision.
As stated in the proposed rule, EPA
will allow small refineries to revisit
their compliance reports in the time
period between finalization of this rule
and up to the new compliance date for
2019 established by this rulemaking.
This means that if a small refinery
carried forward a deficit to demonstrate
2019 compliance by March 31, 2020, but
later receives an SRE for 2019 or retires
RINs 10 in accordance with its
obligation, 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
March 31, 2020, will need to submit a
compliance report to comply with the
new November 30, 2021, compliance
deadline, unless they receive an
exemption for 100% relief of their RFS
compliance obligations.
This deadline extension applies only
to those parties who meet the definition
of small refinery in 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 case
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
uncertainty due to the lack of 2019 and 2020 SRE
decisions and the unknown 2021 RFS standards
‘‘make it practically impossible for small refineries
to plan for compliance.’’ This letter is available in
the docket for this action.
9 Most small refineries currently have pending
2019 SRE petitions before the agency. We are
extending this flexibility to all small refineries
because others may elect to submit petitions in the
future.
10 RINs, or renewable identification numbers, are
credits generated by renewable fuel producers and
used for compliance with RFS obligations. For more
information about RINs, see https://www.epa.gov/
renewable-fuel-standard-program/renewableidentification-numbers-rins-under-renewable-fuelstandard.
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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 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)—will continue to be
available to them to demonstrate
compliance for 2019 on the new
November 30, 2021, compliance
deadline. This means that small
refineries that carried forward a deficit
for 2019 in their initial 2019 compliance
reports (filed in 2020) 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 March 31, 2020,
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). Due to the
ongoing litigation, we take no position
on the availability of SREs for the 2019
compliance year, but refer stakeholders
to EPA’s announcement on February 24,
2021, regarding the HollyFrontier case.11
B. Extension of the 2020 RFS
Compliance Deadline for All Obligated
Parties
We are also finalizing the proposed
modification of the 2020 compliance
deadline for all obligated parties to
January 31, 2022. We are doing so
because EPA has not yet proposed the
2021 RFS 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
after.12 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
11 Available at: https://www.epa.gov/renewablefuel-standard-program/epa-signals-new-positionsmall-refinery-exemptions.
12 For discussion of obligated parties’ interest in
such extensions in past actions, see 80 FR 33099,
33149 (June 10, 2015) and 78 FR 49794, 49823
(August 15, 2013).
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2021 will remain unknown until EPA
finalizes the 2021 standards.
We are also modifying the 2020
compliance deadline to allow small
refineries who have not yet
demonstrated compliance with their
2019 obligations sufficient time between
each year’s compliance obligation
demonstration. Modifying the 2020
compliance deadline to a date after the
2019 compliance deadline for small
refineries will allow for complete 2019
compliance by all obligated parties,
including these small refineries, prior to
having to demonstrate 2020 compliance.
Requiring full compliance with the 2019
standards prior to the 2020 compliance
deadline will provide all obligated
parties and market participants with an
accurate picture of the RIN market,
including the availability of 2019
carryover RINs to comply with 2020
standards.
We are finalizing the proposed 2020
compliance date of January 31, 2022, for
all obligated parties. This deadline
allows several things to occur prior to
that compliance date. First, it allows
small refineries to complete compliance
with their 2019 obligations. Second, it
provides 60 days between the 2019 and
2020 compliance deadlines to allow for
obligated parties to make additional RIN
acquisitions, transfers, transactions, and
retirements prior to the 2020
compliance deadline. Finally, this
deadline provides 60 days between 2020
and 2021 compliance deadlines,
allowing the 2021 compliance deadline
to remain on March 31, 2022, as
currently prescribed in our
regulations.13
C. Corresponding Attest Engagement
Report Deadlines
We are finalizing the proposed
changes to the deadlines 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
compliance demonstrations. In addition,
we are also adopting a change to the
2021 attest engagement reporting
deadline for all obligated parties to
ensure enough time for attest auditors to
reasonably conduct the 2019, 2020, and
2021 attest engagement reports; this
change is supported by stakeholder
feedback on the proposed rule and
consideration of the administrative
complications that will accompany the
attest engagement compliance and
reporting deadline extensions being
finalized in this rule. However, after
consideration of public comments
received, we are not finalizing the
13 See
40 CFR 80.1451.
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proposed changes to the 2020 attest
engagement reporting deadline for RINgenerating renewable fuel producers,
RIN-generating importers of renewable
fuel, and other parties owning RINs, for
the reasons explained below.
For small refineries, given the short
period of time between when small
refineries will have to demonstrate
compliance with their 2019 and 2020
obligations, we do not believe it is
feasible for them to conduct an attest
engagement for 2019 between the new
2019 and 2020 compliance deadlines.
Therefore, we are finalizing the
requirement that small refineries
conduct their 2019 attest engagement by
June 1, 2022.
For all obligated parties, we are also
finalizing that the 2020 attest
engagement reporting deadline be June
1, 2022. We believe this will provide all
obligated parties with the time
necessary to conduct their attest
engagements in a timely manner and on
a similar schedule. Because attest
engagements are based on the
information in the previously submitted
compliance reports, sequencing the
attest engagement to occur after the
compliance deadline is a reasonable
approach. We believe that this
sequencing of reports, and the time
allowed between them, will allow
obligated parties to proceed to
demonstrate compliance with both their
2019 and 2020 RVOs in a logical and
orderly fashion with all relevant
information available and with
sufficient intervening time so as not to
pose an increased burden.
For the 2021 compliance year, we are
extending the attest engagement
reporting deadline for all obligated
parties to September 1, 2022. We agree
with feedback received from
stakeholders who prepare attest
engagement reports for obligated parties
that it would be useful to stagger attest
engagement deadlines to accommodate
the staggered nature of the annual
compliance deadlines and so as not to
overwhelm auditors and processes for
preparing and submitting reports.14 This
stakeholder highlighted concerns
regarding the proposed requirement that
the 2019 (for small refineries), 2020, and
2021 attest report deadlines would fall
on the same date, which would almost
certainly mean that the limited number
of attest auditors that perform these
services for obligated parties would not
have enough time to perform the audits
and prepare the reports, thereby creating
14 See ‘‘External Party Meeting Log for RFS
Compliance Date Extension Rule,’’ available in the
docket for this action.
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an administrative bottleneck.15 Another
commenter recommended that we
maintain at least 90 days between
respective annual compliance deadlines
and annual attest engagement reporting
deadlines.16 We agree with these
comments and believe providing an
additional three months for 2021 attest
engagements will provide auditors a
reasonable amount of time to perform
the audits. This change also will not
impact obligated parties’ plans and
actions to comply with their RFS
obligations, since the attest engagements
are after-the-fact reports summarizing
those compliance measures.
In contrast, we do not believe that
requiring small refineries to submit both
their 2019 and 2020 attest engagement
reports by June 1, 2022, will create
much additional effort for attest auditors
due to the relatively low number of
small refineries and the fact that all
other obligated parties have already
submitted their 2019 attest engagement
reports, which were due on June 1,
2020.
In response to public comment, we
are not finalizing the proposed changes
to the deadline for 2020 attest
engagement reports for RIN-generating
renewable fuel producers, RINgenerating importers of renewable fuel,
and other parties owning RINs. A
commenter stated that such a deadline
extension was unnecessary because all
the records and reports needed to
perform the attest audits and prepare
the attest engagement reports for these
parties are already available and not
dependent on the compliance deadlines
for obligated parties. The commenter
highlighted concern that attest auditors
may already be stretched to provide
sufficient time and resources to
complete all audits in such a short
window for obligated parties, and there
was no need to compound this situation
by extending the attest audit deadlines
for these parties and we agree with these
comments. Additionally, based on our
experience overseeing compliance with
reporting deadlines, we believe we
should maintain existing reporting
deadlines when possible, as this
provides regulated parties with
regulatory certainty. Therefore, we are
maintaining the 2020 attest engagement
reporting deadline of June 1, 2021, for
RIN-generating renewable fuel
producers, RIN-generating importers of
renewable fuel, and other parties
owning RINs.17 We also encourage
15 See also comments from Weaver suggesting
staggered attest report dates for 2019–2021 (Docket
Item No. EPA–HQ–OAR–2020–0725—0011.
16 See comments from AFPM (Docket Item No.
EPA–HQ–OAR–2020–0725–0023).
17 See 40 CFR 80.1464(d).
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parties required to submit annual attest
engagement reports to submit those
reports early, if possible, as this may
help attest auditors better sequence their
work and ensure that reports are
submitted on time.
Finally, we note that we intend to
provide additional reporting
instructions on our fuels reporting
website for the attest engagement
reports prior to the revised deadlines.18
We commonly post helpful and
detailed information that will assist
parties in submitting compliance
reports, including attest engagement
reports, to our website and we
encourage them to use our website as a
resource.
II. Statutory and Executive Order
Reviews
Additional information about these
statutes and Executive Orders can be
found at https://www.epa.gov/lawsregulations/laws-and-executive-orders.
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.
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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, the impact of concern is
any significant adverse economic
impact on small entities. An agency may
certify that a rule will not have a
significant economic impact on a
substantial number of small entities if
the rule relieves regulatory burden, has
no net burden or otherwise has a
positive economic effect on the small
18 See https://www.epa.gov/fuels-registrationreporting-and-compliance-help/program-specificinstructions-attest-engagements.
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15:54 Mar 31, 2021
Jkt 253001
entities subject to the rule. This action
extends the RFS compliance 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 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.
17077
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 not create disproportionately high
and adverse human health or
environmental effects on minority and
low-income populations.
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.
Michael Regan,
Administrator.
G. Executive Order 13045: Protection of
Children From Environmental Health
Risks and Safety Risks
For the reasons set forth in the
preamble, EPA amends 40 CFR part 80
as follows:
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.
PART 80—REGISTRATION OF FUELS
AND FUEL ADDITIVES
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.
PO 00000
Frm 00023
Fmt 4700
Sfmt 4700
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
2. Amend § 80.1451 by adding
paragraphs (a)(1)(xiv)(E) and (F) to read
as follows:
■
§ 80.1451 What are the reporting
requirements under the RFS program?
(a) * * *
(1) * * *
(xiv) * * *
(E) For obligated parties that meet the
requirements for a small refinery under
§ 80.1441(e)(2)(iii), for the 2019
compliance year, annual compliance
E:\FR\FM\01APR1.SGM
01APR1
17078
Federal Register / Vol. 86, No. 61 / Thursday, April 1, 2021 / Rules and Regulations
reports must be submitted no later than
November 30, 2021.
(F) For obligated parties, for the 2020
compliance year, annual compliance
reports must be submitted no later than
January 31, 2022.
*
*
*
*
*
3. Amend § 80.1464 by adding
paragraphs (g)(7), (8) and (9) to read as
follows:
■
§ 80.1464 What are the attest engagement
requirements under the RFS program?
(g) * * *
(7) For obligated parties that meet the
requirements for a small refinery under
§ 80.1441(e)(2)(iii), for the 2019
compliance year, reports required under
this section must be submitted to the
EPA no later than June 1, 2022.
(8) For obligated parties, for the 2020
compliance year, reports required under
this section must be submitted to the
EPA no later than June 1, 2022.
(9) For obligated parties, for the 2021
compliance year, reports required under
this section must be submitted to the
EPA no later than September 1, 2022.
*
*
*
*
*
[FR Doc. 2021–06336 Filed 3–30–21; 8:45 am]
BILLING CODE 6560–50–P
DEPARTMENT OF HOMELAND
SECURITY
Federal Emergency Management
Agency
44 CFR Part 64
[Docket ID FEMA–2021–0003; Internal
Agency Docket No. FEMA–8673]
Suspension of Community Eligibility
Federal Emergency
Management Agency, DHS.
ACTION: Final rule.
AGENCY:
This rule identifies
communities where the sale of flood
insurance has been authorized under
the National Flood Insurance Program
(NFIP) that are scheduled for
suspension on the effective dates listed
within this rule because of
noncompliance with the floodplain
management requirements of the
program. If the Federal Emergency
Management Agency (FEMA) receives
documentation that the community has
adopted the required floodplain
management measures prior to the
effective suspension date given in this
rule, the suspension will not occur.
Information identifying the current
participation status of a community can
be obtained from FEMA’s CSB available
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SUMMARY:
VerDate Sep<11>2014
15:54 Mar 31, 2021
Jkt 253001
at www.fema.gov/flood-insurance/workwith-nfip/community-status-book.
Please note that per Revisions to
Publication Requirements for
Community Eligibility Status
Information Under the National Flood
Insurance Program, notices such as this
one for scheduled suspension will no
longer be published in the Federal
Register as of June 2021 but will be
available at National Flood Insurance
Community Status and Public
Notification | FEMA.gov. Individuals
without internet access will be able to
contact their local floodplain
management official and/or State NFIP
Coordinating Office directly for
assistance.
DATES: The effective date of each
community’s scheduled suspension is
the third date (‘‘Susp.’’) listed in the
third column of the following tables.
FOR FURTHER INFORMATION CONTACT: If
you want to determine whether a
particular community was suspended
on the suspension date or for further
information, contact Adrienne L.
Sheldon, PE, CFM, Federal Insurance
and Mitigation Administration, Federal
Emergency Management Agency, 400 C
Street SW, Washington, DC 20472, (202)
674–1087. Details regarding updated
publication requirements of community
eligibility status information under the
NFIP can be found on the CSB section
at www.fema.gov.
SUPPLEMENTARY INFORMATION: The NFIP
enables property owners to purchase
Federal flood insurance that is not
otherwise generally available from
private insurers. In return, communities
agree to adopt and administer local
floodplain management measures aimed
at protecting lives, new and
substantially improved construction,
and development in general from future
flooding. Section 1315 of the National
Flood Insurance Act of 1968, as
amended, 42 U.S.C. 4022, prohibits the
sale of NFIP flood insurance unless an
appropriate public body adopts
adequate floodplain management
measures with effective enforcement
measures. The communities listed in
this document no longer meet that
statutory requirement for compliance
with NFIP regulations, 44 CFR part 59.
Accordingly, the communities will be
suspended on the effective date listed in
the third column. As of that date, flood
insurance will no longer be available in
the community. FEMA recognizes
communities may adopt and submit the
required documentation after this rule is
published but prior to the actual
suspension date. These communities
will not be suspended and will continue
to be eligible for the sale of NFIP flood
PO 00000
Frm 00024
Fmt 4700
Sfmt 4700
insurance. Their current NFIP
participation status can be verified at
anytime on the CSB section at fema.gov.
In addition, FEMA publishes a Flood
Insurance Rate Map (FIRM) that
identifies the Special Flood Hazard
Areas (SFHAs) in these communities.
The date of the published FIRM is
indicated in the fourth column of the
table. No direct federal financial
assistance (except assistance pursuant to
the Robert T. Stafford Disaster Relief
and Emergency Assistance Act not in
connection with a flood) may be
provided for construction or acquisition
of buildings in identified SFHAs for
communities not participating in the
NFIP and identified for more than a year
on FEMA’s initial FIRM for the
community as having flood-prone areas
(section 202(a) of the Flood Disaster
Protection Act of 1973, 42 U.S.C.
4106(a), as amended). This prohibition
against certain types of federal
assistance becomes effective for the
communities listed on the date shown
in the last column. The Administrator
finds that notice and public comment
procedures under 5 U.S.C. 553(b), are
impracticable and unnecessary because
communities listed in this final rule
have been adequately notified.
Each community receives 6-month,
90-day, and 30-day notification letters
addressed to the Chief Executive Officer
stating that the community will be
suspended unless the required
floodplain management measures are
met prior to the effective suspension
date. Since these notifications were
made, this final rule may take effect
within less than 30 days.
National Environmental Policy Act.
FEMA has determined that the
community suspension(s) included in
this rule is a non-discretionary action
and therefore the National
Environmental Policy Act of 1969 (42
U.S.C. 4321 et seq.) does not apply.
Regulatory Flexibility Act. The
Administrator has determined that this
rule is exempt from the requirements of
the Regulatory Flexibility Act because
the National Flood Insurance Act of
1968, as amended, Section 1315, 42
U.S.C. 4022, prohibits flood insurance
coverage unless an appropriate public
body adopts adequate floodplain
management measures with effective
enforcement measures. The
communities listed no longer comply
with the statutory requirements, and
after the effective date, flood insurance
will no longer be available in the
communities unless remedial action
takes place.
Regulatory Classification. This final
rule is not a significant regulatory action
under the criteria of section 3(f) of
E:\FR\FM\01APR1.SGM
01APR1
]]>Agencies
[Federal Register Volume 86, Number 61 (Thursday, April 1, 2021)]
[Rules and Regulations]
[Pages 17073-17078]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-06336]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 80
[EPA-HQ-OAR-2020-0725; FRL-10021-95-OAR]
RIN 2060-AV07
Extension of 2019 and 2020 Renewable Fuel Standard Compliance and
Attest Engagement Reporting Deadlines
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
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
deadline for the 2019 compliance year and the associated deadline for
submission of attest engagement reports for the 2019 compliance year
for small refineries. The new deadlines are November 30, 2021, and June
1, 2022, respectively. Second, EPA is extending the RFS compliance
deadline for the 2020 compliance year and the associated deadline for
submission of attest engagement reports for the 2020 compliance year
for obligated parties. The new deadlines are January 31, 2022, and June
1, 2022, respectively. Finally, EPA is extending the deadline for
submission of attest engagement reports for the 2021 compliance year
for obligated parties to September 1, 2022.
DATES: This final rule is effective on March 30, 2021.
Operational dates: For operational purposes under the Clean Air
Act, this final rule is effective as of March 23, 2021.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-HQ-OAR-2020-0725. All documents in the docket are listed on the
https://www.regulations.gov website. Although listed in the index, some
information is not publicly available, e.g., 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 https://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: For questions regarding this action,
contact Lauren Michaels, Office of Transportation and Air Quality,
Assessment and Standards Division, Environmental Protection Agency,
2000 Traverwood Drive, Ann Arbor, MI 48105; telephone number: (734)
214-4640; email address: [email protected].
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 sec. 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 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 operational upon signature because they relieve a
restriction by extending the 2019 and 2020 compliance deadlines (and
associated attest engagement report deadlines) ahead of the otherwise
imminent 2020 RFS compliance deadline of March 31, 2021, thereby
providing obligated parties with additional time to demonstrate
compliance. There is additionally good cause for immediate
implementation of these provisions because pending litigation in the
Supreme Court makes it necessary for this rule to go into effect prior
to March 31, 2021, to ensure regulated entities do not begin complying
with removed regulatory obligations. Among other actions, EPA is today
extending the regulatory deadline for small refineries to comply with
their 2019 RFS obligations from March 31, 2020, to November 30, 2021,
because litigation pending before the United States Supreme Court is
expected to resolve legal questions regarding some small refineries'
eligibility to receive annual exemptions from their 2019 regulatory
obligations. EPA is also extending the regulatory deadline for all
obligated parties to comply with their 2020 RFS obligations, from March
31, 2021, to January 31, 2022, which is required because of agency
delay in promulgating future RFS compliance obligations and the
corresponding impact on compliance decisions. These actions mean any
delay in the effectiveness of this final rule past March 31, 2021,
would result in confusion among regulated entities regarding their
compliance obligations.
Does this action apply to me?
Entities potentially affected by this 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 NAICS \1\ 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.
[[Page 17074]]
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. 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.
Outline of this Preamble
I. Background and Extension of Deadlines
A. Extension of the 2019 RFS Compliance Deadline for Small
Refineries
B. Extension of the 2020 RFS Compliance Deadline for All
Obligated Parties
C. Corresponding Attest Engagement Report Deadlines
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
In January 2021, EPA proposed amendments to the RFS regulations to
extend the deadline for obligated parties to demonstrate compliance
with their 2019 and 2020 RFS obligations.\1\ We are finalizing the
amendments as proposed to extend the deadlines for small refineries to
submit reports demonstrating compliance with their 2019 RFS obligations
and their corresponding attest engagement reports. We are also
finalizing amendments to extend the deadlines for all obligated parties
to submit reports demonstrating compliance with their 2020 RFS
obligations and their corresponding attest engagement reports. Finally,
in response to stakeholder feedback, we are also extending the 2021
attest engagement report deadline for all obligated parties.
---------------------------------------------------------------------------
\1\ See 86 FR 3928 (January 15, 2021).
---------------------------------------------------------------------------
For small refineries, we are extending the 2019 compliance deadline
in light of the continued uncertainty surrounding small refinery
exemptions (SREs) under the RFS program.\2\ We are finalizing a 2019
compliance deadline for small refineries of November 30, 2021, and an
attest engagement report deadline of June 1, 2022. For the 2020
compliance year, we are extending the compliance deadline for all
obligated parties because we have not yet promulgated an annual
rulemaking establishing the 2021 RFS standards. We are finalizing a
2020 compliance deadline for all obligated parties of January 31, 2022,
and an attest engagement report deadline of June 1, 2022. Finally, for
the 2021 compliance year, we are extending the attest engagement report
deadline for obligated parties to September 1, 2022. These new
deadlines are summarized in Table I.A-1 below.
---------------------------------------------------------------------------
\2\ The Renewable Fuel Standard (RFS) program, established under
Clean Air Act (CAA) section 211(o), requires a certain volume of
renewable fuel to replace or reduce the quantity of petroleum-based
transportation fuel, heating oil, or jet fuel used in the United
States. Small refineries may petition EPA annually for exemption
from their RFS obligations under CAA section 211(o)(9)(B). For more
information about small refinery exemptions (SREs), see https://www.epa.gov/fuels-registration-reporting-and-compliance-help/rfs-small-refinery-exemptions.
Table I.A-1--Original and Revised Annual Compliance and Attest Engagement Reporting Deadlines for Obligated Parties for the 2019 (as Applicable), 2020,
and 2021 Compliance Years
--------------------------------------------------------------------------------------------------------------------------------------------------------
Original annual compliance Revised annual compliance Original attest engagement Revised attest engagement
Regulated party category deadline deadline reporting deadline reporting deadline
--------------------------------------------------------------------------------------------------------------------------------------------------------
2019 Compliance Year
--------------------------------------------------------------------------------------------------------------------------------------------------------
Small refineries............... March 31, 2020............... November 30, 2021........... June 1, 2020................ June 1, 2022.
--------------------------------------------------------------------------------------------------------------------------------------------------------
2020 Compliance Year
--------------------------------------------------------------------------------------------------------------------------------------------------------
Obligated parties.............. March 31, 2021............... January 31, 2022............ June 1, 2021................ June 1, 2022.
--------------------------------------------------------------------------------------------------------------------------------------------------------
2021 Compliance Year
--------------------------------------------------------------------------------------------------------------------------------------------------------
Obligated parties.............. March 31, 2022 (unchanged) June 1, 2022................ September 1, 2022.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Obligated party commenters were generally supportive of our
proposal to extend the compliance deadlines, although some suggested
that additional compliance deadline extensions would be helpful. In
contrast, biofuels industry groups suggested extensions were either not
justified or excessive in length. We also received comments from
stakeholders involved in the attest engagement process who provided
feedback on the scope and sequencing
[[Page 17075]]
of attest report deadline extensions. We have considered these
comments, and in some cases, adjusted our regulations in response to
the comments.\3\
---------------------------------------------------------------------------
\3\ 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.
---------------------------------------------------------------------------
A. Extension of the 2019 RFS Compliance Deadline for Small Refineries
The RFS regulations establish deadlines for obligated parties with
renewable volume obligations (RVOs) to submit annual compliance
demonstration reports to EPA, and later deadlines for the same parties
to submit associated attest engagement reports. Under existing RFS
regulations, obligated parties must submit compliance demonstration
reports for each calendar year by March 31 of the following year, and
associated attest engagements by June 1 of the following year.\4\ In
this action, we are revising certain reporting deadlines applicable to
the 2019, 2020, and 2021 compliance years.
---------------------------------------------------------------------------
\4\ See 40 CFR 80.1451(a) and 80.1464(d).
---------------------------------------------------------------------------
On January 24, 2020, the U.S. Court of Appeals for the Tenth
Circuit issued a decision in Renewable Fuels Association (RFA) v. EPA
invalidating several SREs granted by EPA.\5\ 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.\6\ Thus, the
Tenth Circuit's decision was not final until after the 2019 compliance
reporting deadline had already passed on March 31, 2020. 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.\7\ Briefing in that case
is ongoing, and oral argument is scheduled for April 27, 2021. The
Supreme Court's decision in HollyFrontier has the potential to affect
the availability of SREs. Due to the resulting uncertainty, we do not
believe it would be appropriate to require small refineries to
demonstrate compliance with their 2019 obligations until the Supreme
Court renders a decision in HollyFrontier.\8\
---------------------------------------------------------------------------
\5\ Renewable Fuels Ass'n v. EPA, 948 F.3d 1206 (10th Cir. 2020)
(RFA).
\6\ Order, RFA, No. 18-9533 (10th Cir. Apr. 7, 2020).
\7\ HollyFrontier Cheyenne Refining, LLC v. Renewable Fuels
Ass'n, No. 20-472 (U.S.).
\8\ EPA received a letter from the Small Refineries Coalition
dated July 30, 2020, requesting that EPA modify the 2019, 2020, and
2021 compliance deadlines and corresponding attest engagement
reporting deadlines. The letter suggests that uncertainty due to the
lack of 2019 and 2020 SRE decisions and the unknown 2021 RFS
standards ``make it practically impossible for small refineries to
plan for compliance.'' This letter is available in the docket for
this action.
---------------------------------------------------------------------------
Therefore, we are finalizing our proposed extension of the 2019
compliance deadline for small refineries. We believe that it is
appropriate to do so only for small refineries because it is only the
compliance requirements of these parties that would be affected by the
outcome of the HollyFrontier case.\9\ All other obligated parties'
compliance obligations for 2019 remain the same regardless of the
HollyFrontier decision.
---------------------------------------------------------------------------
\9\ Most small refineries currently have pending 2019 SRE
petitions before the agency. We are extending this flexibility to
all small refineries because others may elect to submit petitions in
the future.
---------------------------------------------------------------------------
As stated in the proposed rule, EPA will allow small refineries to
revisit their compliance reports in the time period between
finalization of this rule and up to the new compliance date for 2019
established by this rulemaking. This means that if a small refinery
carried forward a deficit to demonstrate 2019 compliance by March 31,
2020, but later receives an SRE for 2019 or retires RINs \10\ in
accordance with its obligation, 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 March 31, 2020, will need to submit a
compliance report to comply with the new November 30, 2021, compliance
deadline, unless they receive an exemption for 100% relief of their RFS
compliance obligations.
---------------------------------------------------------------------------
\10\ RINs, or renewable identification numbers, are credits
generated by renewable fuel producers and used for compliance with
RFS obligations. For more information about RINs, see https://www.epa.gov/renewable-fuel-standard-program/renewable-identification-numbers-rins-under-renewable-fuel-standard.
---------------------------------------------------------------------------
This deadline extension applies only to those parties who meet the
definition of small refinery in 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 case 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 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)--will
continue to be available to them to demonstrate compliance for 2019 on
the new November 30, 2021, compliance deadline. This means that small
refineries that carried forward a deficit for 2019 in their initial
2019 compliance reports (filed in 2020) 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 March 31, 2020, 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). Due to the ongoing litigation, we take
no position on the availability of SREs for the 2019 compliance year,
but refer stakeholders to EPA's announcement on February 24, 2021,
regarding the HollyFrontier case.\11\
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\11\ Available at: https://www.epa.gov/renewable-fuel-standard-program/epa-signals-new-position-small-refinery-exemptions.
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B. Extension of the 2020 RFS Compliance Deadline for All Obligated
Parties
We are also finalizing the proposed modification of the 2020
compliance deadline for all obligated parties to January 31, 2022. We
are doing so because EPA has not yet proposed the 2021 RFS 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
after.\12\ 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
[[Page 17076]]
2021 will remain unknown until EPA finalizes the 2021 standards.
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\12\ For discussion of obligated parties' interest in such
extensions in past actions, see 80 FR 33099, 33149 (June 10, 2015)
and 78 FR 49794, 49823 (August 15, 2013).
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We are also modifying the 2020 compliance deadline to allow small
refineries who have not yet demonstrated compliance with their 2019
obligations sufficient time between each year's compliance obligation
demonstration. Modifying the 2020 compliance deadline to a date after
the 2019 compliance deadline for small refineries will allow for
complete 2019 compliance by all obligated parties, including these
small refineries, prior to having to demonstrate 2020 compliance.
Requiring full compliance with the 2019 standards prior to the 2020
compliance deadline will provide all obligated parties and market
participants with an accurate picture of the RIN market, including the
availability of 2019 carryover RINs to comply with 2020 standards.
We are finalizing the proposed 2020 compliance date of January 31,
2022, for all obligated parties. This deadline allows several things to
occur prior to that compliance date. First, it allows small refineries
to complete compliance with their 2019 obligations. Second, it provides
60 days between the 2019 and 2020 compliance deadlines to allow for
obligated parties to make additional RIN acquisitions, transfers,
transactions, and retirements prior to the 2020 compliance deadline.
Finally, this deadline provides 60 days between 2020 and 2021
compliance deadlines, allowing the 2021 compliance deadline to remain
on March 31, 2022, as currently prescribed in our regulations.\13\
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\13\ See 40 CFR 80.1451.
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C. Corresponding Attest Engagement Report Deadlines
We are finalizing the proposed changes to the deadlines 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 compliance demonstrations. In addition, we are also
adopting a change to the 2021 attest engagement reporting deadline for
all obligated parties to ensure enough time for attest auditors to
reasonably conduct the 2019, 2020, and 2021 attest engagement reports;
this change is supported by stakeholder feedback on the proposed rule
and consideration of the administrative complications that will
accompany the attest engagement compliance and reporting deadline
extensions being finalized in this rule. However, after consideration
of public comments received, we are not finalizing the proposed changes
to the 2020 attest engagement reporting deadline for RIN-generating
renewable fuel producers, RIN-generating importers of renewable fuel,
and other parties owning RINs, for the reasons explained below.
For small refineries, given the short period of time between when
small refineries will have to demonstrate compliance with their 2019
and 2020 obligations, we do not believe it is feasible for them to
conduct an attest engagement for 2019 between the new 2019 and 2020
compliance deadlines. Therefore, we are finalizing the requirement that
small refineries conduct their 2019 attest engagement by June 1, 2022.
For all obligated parties, we are also finalizing that the 2020
attest engagement reporting deadline be June 1, 2022. We believe this
will provide all obligated parties with the time necessary to conduct
their attest engagements in a timely manner and on a similar schedule.
Because attest engagements are based on the information in the
previously submitted compliance reports, sequencing the attest
engagement to occur after the compliance deadline is a reasonable
approach. We believe that this sequencing of reports, and the time
allowed between them, will allow obligated parties to proceed to
demonstrate compliance with both their 2019 and 2020 RVOs in a logical
and orderly fashion with all relevant information available and with
sufficient intervening time so as not to pose an increased burden.
For the 2021 compliance year, we are extending the attest
engagement reporting deadline for all obligated parties to September 1,
2022. We agree with feedback received from stakeholders who prepare
attest engagement reports for obligated parties that it would be useful
to stagger attest engagement deadlines to accommodate the staggered
nature of the annual compliance deadlines and so as not to overwhelm
auditors and processes for preparing and submitting reports.\14\ This
stakeholder highlighted concerns regarding the proposed requirement
that the 2019 (for small refineries), 2020, and 2021 attest report
deadlines would fall on the same date, which would almost certainly
mean that the limited number of attest auditors that perform these
services for obligated parties would not have enough time to perform
the audits and prepare the reports, thereby creating an administrative
bottleneck.\15\ Another commenter recommended that we maintain at least
90 days between respective annual compliance deadlines and annual
attest engagement reporting deadlines.\16\ We agree with these comments
and believe providing an additional three months for 2021 attest
engagements will provide auditors a reasonable amount of time to
perform the audits. This change also will not impact obligated parties'
plans and actions to comply with their RFS obligations, since the
attest engagements are after-the-fact reports summarizing those
compliance measures.
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\14\ See ``External Party Meeting Log for RFS Compliance Date
Extension Rule,'' available in the docket for this action.
\15\ See also comments from Weaver suggesting staggered attest
report dates for 2019-2021 (Docket Item No. EPA-HQ-OAR-2020-0725--
0011.
\16\ See comments from AFPM (Docket Item No. EPA-HQ-OAR-2020-
0725-0023).
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In contrast, we do not believe that requiring small refineries to
submit both their 2019 and 2020 attest engagement reports by June 1,
2022, will create much additional effort for attest auditors due to the
relatively low number of small refineries and the fact that all other
obligated parties have already submitted their 2019 attest engagement
reports, which were due on June 1, 2020.
In response to public comment, we are not finalizing the proposed
changes to the deadline for 2020 attest engagement reports for RIN-
generating renewable fuel producers, RIN-generating importers of
renewable fuel, and other parties owning RINs. A commenter stated that
such a deadline extension was unnecessary because all the records and
reports needed to perform the attest audits and prepare the attest
engagement reports for these parties are already available and not
dependent on the compliance deadlines for obligated parties. The
commenter highlighted concern that attest auditors may already be
stretched to provide sufficient time and resources to complete all
audits in such a short window for obligated parties, and there was no
need to compound this situation by extending the attest audit deadlines
for these parties and we agree with these comments. Additionally, based
on our experience overseeing compliance with reporting deadlines, we
believe we should maintain existing reporting deadlines when possible,
as this provides regulated parties with regulatory certainty.
Therefore, we are maintaining the 2020 attest engagement reporting
deadline of June 1, 2021, for RIN-generating renewable fuel producers,
RIN-generating importers of renewable fuel, and other parties owning
RINs.\17\ We also encourage
[[Page 17077]]
parties required to submit annual attest engagement reports to submit
those reports early, if possible, as this may help attest auditors
better sequence their work and ensure that reports are submitted on
time.
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\17\ See 40 CFR 80.1464(d).
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Finally, we note that we intend to provide additional reporting
instructions on our fuels reporting website for the attest engagement
reports prior to the revised deadlines.\18\
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\18\ See https://www.epa.gov/fuels-registration-reporting-and-compliance-help/program-specific-instructions-attest-engagements.
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We commonly post helpful and detailed information that will assist
parties in submitting compliance reports, including attest engagement
reports, to our website and we encourage them to use our website as a
resource.
II. Statutory and Executive Order Reviews
Additional information about these statutes and Executive Orders
can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.
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, the impact of concern is any significant
adverse economic impact on small entities. An agency may certify that a
rule will not have a significant economic impact on a substantial
number of small entities if the rule relieves regulatory burden, has no
net burden or otherwise has a positive economic effect on the small
entities subject to the rule. This action extends the RFS compliance
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 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 not create
disproportionately high and adverse human health or environmental
effects on minority and low-income populations.
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.
Michael Regan,
Administrator.
For the reasons set forth in the preamble, EPA amends 40 CFR part
80 as follows:
PART 80--REGISTRATION 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 adding paragraphs (a)(1)(xiv)(E) and (F) to
read as follows:
Sec. 80.1451 What are the reporting requirements under the RFS
program?
(a) * * *
(1) * * *
(xiv) * * *
(E) 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
[[Page 17078]]
reports must be submitted no later than November 30, 2021.
(F) For obligated parties, for the 2020 compliance year, annual
compliance reports must be submitted no later than January 31, 2022.
* * * * *
0
3. Amend Sec. 80.1464 by adding paragraphs (g)(7), (8) and (9) to read
as follows:
Sec. 80.1464 What are the attest engagement requirements under the
RFS program?
(g) * * *
(7) For obligated parties that meet the requirements for a small
refinery under Sec. 80.1441(e)(2)(iii), for the 2019 compliance year,
reports required under this section must be submitted to the EPA no
later than June 1, 2022.
(8) For obligated parties, for the 2020 compliance year, reports
required under this section must be submitted to the EPA no later than
June 1, 2022.
(9) For obligated parties, for the 2021 compliance year, reports
required under this section must be submitted to the EPA no later than
September 1, 2022.
* * * * *
[FR Doc. 2021-06336 Filed 3-30-21; 8:45 am]
BILLING CODE 6560-50-P
