OMB reveals expected timeline for post-2022 RFS rule, other rules

The Biden administration has signaled its intent to publish a proposed rule setting Renewable Fuel Standard renewable volume obligations (RVOs) for 2023 and beyond next spring. A variety of other rulemakings impacting biofuel producers are also scheduled to be taken up by federal agencies in the near-term, including those related to RFS fuel pathways, the Biopreferred program, and permitting for certain corn ethanol plants.

Abstracts of the expected rulemakings are included in the White House Office of Management and Budget’s Fall 2021 Unified Agenda of Regulatory and Deregulatory Actions, published on Dec. 10.

The OMB’s unified fall agenda provides expected timelines for several rulemakings already in progress, including the EPA’s recently released proposed rules to set 2020, 2021 and 2022 RVOs and extend certain RFS compliance reporting deadlines, and the agency’s ongoing rulemaking to revise greenhouse gas (GHG) emissions standards for model year (MY) 2023 and later light-duty vehicles.

The EPA released a proposed rule to revise 2020 RFS RVOs and set new RVOs for 2021 and 2022 on Dec. 7.  The proposed rule also updates and re-proposes a provision originally included in the long-stalled Renewables Enhancement and Growth Support rule to allow for the production, transfer and use of biointermediates to generate qualifying fuel under the RFS program, and includes a variety of other provisions updating the RFS program. A public comment period on the rule is open through Feb. 4. The OMB’s unified agenda indicates a final rule could be released as soon as February 2022.

The unified agenda also addresses the proposed rule released by EPA in mid-November that aims to further delay certain RFS compliance and attest engagement report deadlines and change the way the agency sets those deadlines moving forward, but does not provide an expected date for publication of a final rule.

The EPA’s final rule to revise GHG emissions standards for MY 2023 and later vehicles is currently expected to be released before the end of the year, according to the OMB. Representatives of the ethanol industry have urged the EPA to address GHG reductions made possible through the use of high-octane, low-carbon renewable fuels as part of the rulemaking.

According to the 2021 fall unified agenda, the EPA is currently expected to issue a notice of proposed rulemaking for the post-2022 RFS in May 2022. Statutory provisions of the Clean Air Act governing the RFS program provides target RVOs only through 2022. Starting in 2023, the EPA must set those volumes based on an analysis of factors specified in statute. The upcoming rulemaking will establish volume requirements beginning in 2023, according to the OMB. A final rule is currently expected to be issued in December 2022.

The unified agenda also indicates that the EPA plans to issue a proposed rule in January 2022 focused on RFS canola oil pathways for renewable diesel, jet fuel, naphtha and liquid propane gas (LPG). An abstract published by the OMB states that the proposed rule will provide an opportunity to comment on an analysis of lifecycle GHGs associated with biofuels produced from canola oil via a hydrotreating process. A final rule is currently expected to be published in July 2022.

The EPA is also set to reconsider prevention of significant deterioration (PSD), nonattainment new source review, and Title V treatment of corn milling facilities under the “major emitting facility” definition, according to the unified agenda. The OMB said the rulemaking would convene a proceeding to reconsider portions of a final rule issued in May 2007 that applies to nonattainment areas. A notice of proposed rulemaking is expected to be released in February. The OMB provided no estimate of when a final rule could be issued.

The USDA is also expected to issue a final rule on its Biobased Markets Program, also referred to as the BIopreferred program, in June 2022. The rulemaking will update the program to reflect provisions included in the 2018 Farm Bill.

Additional information is available on the OMB website.