39600 Federal Register / Vol. 87, No. 126 / Friday, July 1, 2022 / Rules and Regulations 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 80 and 1090 

[EPA–HQ–OAR–2021–0324; FRL–8521–01– 

OAR] 

RIN 2060–AV11 

Renewable Fuel Standard (RFS) 

Program: RFS Annual Rules 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: Under section 211 of the 

Clean Air Act (CAA), the Environmental 

Protection Agency (EPA) is required to 

set standards every year to implement 

nationally applicable renewable fuel 

volume targets. This action modifies the 

2021 and 2022 statutory volume targets 

for cellulosic biofuel, advanced biofuel, 

and total renewable fuel, as well as 

establishes the 2022 volume target for 

biomass-based diesel. This action also 

modifies the previously established 

cellulosic biofuel, advanced biofuel, and 

total renewable fuel volume 

requirements for 2020. In addition, this 

action establishes the 2020, 2021, and 

2022 renewable fuel percentage 

standards for all four of the above 

biofuel categories. Finally, this action 

also addresses a judicial remand of the 

2016 standard-setting rulemaking, as 

well as several regulatory changes to the 

Renewable Fuel Standard (RFS) 

program, including regulations for the 

use of biointermediates to produce 

qualifying renewable fuel, flexibilities 

for regulated parties, and clarifications 

of existing regulations. 

DATES: This rule is effective on August 

30, 2022. The incorporation by reference 

of certain publications listed in this 

regulation is approved by the Director of 

the Federal Register as of August 30, 

2022. The incorporation by reference of 

ASTM E711–87 (R2004) was approved 

by the Director of the Federal Register 

as of July 1, 2010. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–HQ–OAR–2021–0324. 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., 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 https:// 

www.regulations.gov. 

FOR FURTHER INFORMATION CONTACT: 

Dallas Burkholder, Office of 

Transportation and Air Quality, 

Assessment and Standards Division, 

Environmental Protection Agency, 2000 

Traverwood Drive, Ann Arbor, MI 

48105; telephone number: 734–214– 

4766; email address: RFS-Rulemakings@

epa.gov. 

SUPPLEMENTARY INFORMATION: Entities 

potentially affected by this rule are 

those involved with the production, 

distribution, and sale of transportation 

fuels, including gasoline and diesel fuel, 

as well as renewable fuels such as 

ethanol, biodiesel, renewable diesel, 

and biogas. Potentially affected 

categories include: 

Category NAICS1 codes Examples of potentially affected entities 

Industry ..................................................... 324110 Petroleum refineries. 

Industry ..................................................... 325193 Ethyl alcohol manufacturing. 

Industry ..................................................... 325199 Other basic organic chemical manufacturing. 

Industry ..................................................... 424690 Chemical and allied products merchant wholesalers. 

Industry ..................................................... 424710 Petroleum bulk stations and terminals. 

Industry ..................................................... 424720 Petroleum and petroleum products merchant wholesalers. 

Industry ..................................................... 221210 Manufactured gas production and distribution. 

Industry ..................................................... 454319 Other fuel dealers. 

1 North American Industry Classification System (NAICS). 

This table is not intended to be 

exhaustive, but rather 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 parts 80 and 1090. 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. Executive Summary 

A. Legal Authorities To Modify and 

Establish Renewable Fuel Volumes 

B. 2020 Volumes 

C. 2021 Volumes 

D. 2022 Volumes 

E. Response to the ACE Remand 

F. Annual Percentage Standards 

G. Administrative Actions 

H. Biointermediates 

I. Other Changes 

J. Environmental Justice 

K. Endangered Species Act 

II. Legal Authorities To Reduce and Establish 

Volumes 

A. Authorities To Modify Statutory 

Volumes Targets 

B. Authority To Establish BBD Volumes 

C. Considerations for Retroactive and Late 

Rulemaking 

D. Considerations in Revisiting an 

Established RFS Standard 

E. Severability 

III. Volume Requirements 

A. EPA’s Assessment of the Statutory 

Factors for Each Component Category of 

Biofuel 

B. Interactions Between the RFS Annual 

Volumes 

C. Volume Requirements for 2020 

D. Volume Requirements for 2021 

E. Volume Requirements for 2022 

F. BBD Volume for 2022 

G. Summary of the RFS Volumes for 2020– 

2022 

H. Quantitative Impacts of the Volumes 

IV. Response to ACE Remand 

A. Reevaluating the 2014–2016 Annual 

Rule 

B. Consideration of Approaches for 

Responding to the ACE Remand 

C. Demonstrating Compliance With the 

2022 Supplemental Standard 

D. Authority and Consideration of the 

Benefits and Burdens 

E. Calculating a Supplemental Percentage 

Standard for 2022 

V. Percentage Standards 

A. Calculation of Percentage Standards 

B. Small Refineries and Small Refiners 

C. Modification of the 2020 BBD 

Percentage Standard 

D. Percentage Standards for 2020–2022 

VI. Administrative Actions 

A. Assessment of the Domestic Aggregate 

Compliance Approach 

B. Assessment of the Canadian Aggregate 

Compliance Approach 

VII. Biointermediates 

A. Background 

B. Effect of This Action on 

Biointermediates Provisions Proposed in 

the REGS Rule 

C. Biointermediates Regulatory Provisions 

D. Other Considerations Related to 

Biointermediates 

VIII. Amendments to Fuel Quality and RFS 

Regulations 


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Federal Register / Vol. 87, No. 126 / Friday, July 1, 2022 / Rules and Regulations 39601 

1The 2021 BBD volume requirement was 

established in the 2020 final rule. 85 FR 7016 

(February 6, 2020). 

2 85 FR 7016 (February 6, 2020). 

3As explained in Section II, we did not trigger the 

reset authority for BBD. Thus, we are not resetting 

the previously finalized 2020 and 2021 BBD 

volumes. In addition, actual BBD use in both 2020 

and 2021 is projected to exceed the previously 

finalized volumes. This is consistent with the 

findings in the 2019 and 2020 final rules, which 

established the 2020 and 2021 BBD volumes 

respectively, anticipating that additional BBD 

would be used above the BBD volumes to satisfy 

the advanced biofuel standards. Thus, we see no 

need to retroactively reconsider the BBD volumes 

in any event. As discussed in Section III.F, we are 

setting the 2022 BBD volume pursuant to our ‘‘set’’ 

authority under CAA section 211(o)(2)(B)(ii). 

A. BBD Conversion Factor for Percentage 

Standard 

B. Changes to Registration for Baseline 

Volume 

C. Changes To Attest Engagements for 

Parties Owning RINs (‘‘RIN Owner 

Only’’) 

D. Public Access to Information 

E. Clarifying the Definition of ‘‘Agricultural 

Digester’’ 

F. Definition of ‘‘Produced From 

Renewable Biomass’’ 

G. Esterification Pathway 

H. Technical Amendments 

IX. 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) 

X. Statutory Authority 

A red-line version of the regulatory 

language that incorporates the changes 

in this action is available in the docket 

for this action. 

I. Executive Summary 

The Renewable Fuel Standard (RFS) 

program began in 2006 pursuant to the 

requirements of the Energy Policy Act of 

2005 (EPAct), which were codified in 

CAA section 211(o). The statutory 

requirements were subsequently 

amended by the Energy Independence 

and Security Act of 2007 (EISA). The 

statute sets forth annual, nationally 

applicable volume targets for each of the 

four categories of renewable fuel. It also 

directs EPA to modify or establish 

volume targets in certain circumstances. 

EPA must then translate the volume 

targets into compliance obligations, 

expressed as annual percentage 

standards, that obligated parties must 

meet every year. 

In this action we are establishing the 

applicable volumes for cellulosic 

biofuel, advanced biofuel, and total 

renewable fuel for 2021 and 2022, and 

the biomass-based diesel (BBD) 

applicable volume for 2022,1 as well as 

modifying the applicable volumes that 

EPA previously established for 

cellulosic biofuel, advanced biofuel, and 

total renewable fuel for 2020.2 3 We are 

also establishing the annual percentage 

standards (also known as ‘‘percent 

standards’’) for cellulosic biofuel, BBD, 

advanced biofuel, and total renewable 

fuel that apply to gasoline and diesel 

fuel produced or imported by obligated 

parties in 2020, 2021, and 2022. In 

addition, we are addressing the remand 

of the 2016 annual rule by the U.S. 

Court of Appeals for the D.C. Circuit, in 

Americans for Clean Energy v. EPA, 864 

F.3d 691 (2017) (hereafter ‘‘ACE’’) by 

establishing a supplemental volume of 

250 million gallons for 2022. EPA 

intends to establish an additional 

supplemental volume of 250 million 

gallons for 2023 in a subsequent action. 

TABLE I–1—FINAL VOLUME REQUIREMENTS

[Billion RINs] a

Category 2020 2021 2022 

Cellulosic Biofuel ......................................................................................................................... 0.51 0.56 0.63 

Biomass-Based Diesel b .............................................................................................................. c 2.43 d 2.43 2.76 

Advanced Biofuel ......................................................................................................................... 4.63 5.05 5.63 

Total Renewable Fuel .................................................................................................................. 17.13 18.84 20.63 

Supplemental Standard ............................................................................................................... n/a n/a e 0.25 

a One Renewable Identification Number (RIN) is equivalent to one ethanol-equivalent gallon of renewable fuel. Throughout this preamble, 

RINs are generally used to describe total volumes in each of the four categories shown above, while gallons are generally used to describe volumes for individual types of biofuel such as ethanol, biodiesel, renewable diesel, etc. Exceptions include BBD, which is always given in physical 

volumes, and biogas and electricity, which are always given in RINs. bThe BBD volumes are in physical gallons (rather than RINs). 

cEstablished in the 2019 RFS annual rule (83 FR 63704, December 11, 2018). 

dEstablished in the 2020 RFS annual rule (85 FR 7016, February 6, 2020). 

eThe supplemental standard is an additional total renewable fuel obligation. Thus, the total renewable fuel obligation for 2022 is 20.87 billion 

RINs; 20.63 billion RINs for the 2022 total renewable fuel standard and 0.25 billion RINs for the supplemental standard. The supplemental standard can be satisfied with any category (D3, D4, D5, D6, or D7) of RIN. 

Finally, we are finalizing several 

regulatory changes to the RFS program, 

including regulations for the use of 

biointermediates to produce qualifying 

renewable fuel, flexibilities for regulated 

parties, and clarifications of existing 

regulations. 

The RFS program is an important 

federal policy supporting the 

production of low-greenhouse gas 

(GHG) renewable fuels, which are an 

important element of addressing climate 

change through transportation policy. 

Expanding the production and use of 

renewable fuels also helps protect 

Americans from volatile crude oil prices 

by reducing our reliance on fossil fuels. 

As detailed in this rule’s Regulatory 

Impact Analysis (RIA), EPA estimates 

that this rule will reduce the imports of 

crude oil and refined products by 

approximately 2.9 billion gallons. We 

have estimated that these reductions in 

imports will result in $227 million of 

energy security benefits. The actual 

energy security benefits could be higher 

as this estimate does not consider 

military cost impacts of changes to U.S. 

imports of crude oil and refined 

products. Finally, increasing the 

domestic production and use of 

renewable fuels will also create goodpaying American jobs; support our rural 


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39602 Federal Register / Vol. 87, No. 126 / Friday, July 1, 2022 / Rules and Regulations 

4As we explain further in Section II, we are also 

independently justifying the 2020, 2021, and 2022 

cellulosic biofuel volumes and the 2022 advanced 

biofuel and total renewable fuel volumes under the 

cellulosic waiver authority. 

5See, e.g., Americans for Clean Energy v. EPA, 

864 F.3d 691 (D.C. Cir. 2017); Monroe Energy, LLC 

v. EPA, 750 F.3d 909 (D.C. Cir. 2014); Nat’l 

Petrochemical & Refiners Ass’n v. EPA, 630 F.3d 

145, 154–58 (D.C. Cir. 2010). 

6 85 FR 7016 (February 6, 2020). EPA signed this 

rulemaking on December 19, 2019. 

7EPA extended the 2020 compliance deadline for 

obligated parties to January 31, 2022 (86 FR 17073, 

April 1, 2021). We subsequently further extended 

that deadline in a separate action (87 FR 5696, 

February 2, 2022). 

8We also call such volumes the volumes that are 

actually consumed, actually used, or actually 

supplied. In this context, we are using the term 

‘‘supply’’ distinct from the statutory term 

‘‘inadequate domestic supply’’ in CAA section 

211(o)(7)(A)(ii). 

economies, American agriculture, and 

manufacturing; and reduce the impacts 

of climate change. 

The final volume requirements in this 

action, combined with the changes EPA 

is separately taking with respect to the 

small refinery exemption (SRE) 

program, will provide much-needed 

stability to the RFS program. It will also 

strengthen the role of the program in 

advancing greater use of domestically 

produced low-carbon renewable fuels 

that are critical to building real energy 

independence in the long-term. 

Throughout this document, EPA 

discusses and addresses comments on 

the proposed rule that stakeholders 

submitted to EPA; more in-depth 

responses are located in a separate 

Response to Comments (RTC) 

document, available in the docket for 

this action. EPA also prepared an RIA to 

support this final rule, available in the 

docket for this action. 

A. Legal Authorities To Modify and 

Establish Renewable Fuel Volumes 

For the 2020, 2021, and 2022 

cellulosic biofuel, advanced biofuel, and 

total renewable fuel volumes, EPA is 

fulfilling our statutory obligation to 

‘‘reset’’ the statutory volumes in 

accordance with CAA section 

211(o)(7)(F). This provision, entitled 

‘‘Modification of Applicable Volumes,’’ 

provides that, if a waiver of any 

statutory volume target exceeds 

specified thresholds, EPA shall modify 

the statutory volume targets for all years 

following the year that the threshold 

was exceeded. This obligation has been 

triggered by EPA actions waiving 

volumes in previous annual standardsetting rulemakings. Under this 

statutory provision, we are establishing 

new volume targets for cellulosic 

biofuel, advanced biofuel, and total 

renewable fuel for 2020, 2021, and 

2022.4

When resetting the statutory targets, 

EPA must comply with the processes, 

criteria, and standards set forth in CAA 

section 211(o)(2)(B)(ii). In addition to 

reviewing the implementation of the 

program during previous years and 

coordinating with the Secretary of 

Energy and the Secretary of Agriculture, 

EPA must also analyze several factors: 

• The impact of the production and 

use of renewable fuels on the 

environment, including on air quality, 

climate change, conversion of wetlands, 

ecosystems, wildlife habitat, water 

quality, and water supply; 

• The impact of renewable fuels on 

the energy security of the U.S.; 

• The expected annual rate of future 

commercial production of renewable 

fuels, including advanced biofuels in 

each category (cellulosic biofuel and 

BBD); 

• The impact of renewable fuels on 

the infrastructure of the U.S., including 

deliverability of materials, goods, and 

products other than renewable fuel, and 

the sufficiency of infrastructure to 

deliver and use renewable fuel; 

• The impact of the use of renewable 

fuels on the cost to consumers of 

transportation fuel and on the cost to 

transport goods; and 

• The impact of the use of renewable 

fuels on other factors, including job 

creation, the price and supply of 

agricultural commodities, rural 

economic development, and food prices. 

With respect to the 2022 BBD volume, 

we are setting this volume under CAA 

section 211(o)(2)(B)(ii). The requirement 

to reset the statutory volume targets 

does not apply to BBD. However, CAA 

section 211(o)(2)(B)(ii) separately 

requires that EPA set the BBD volume 

for years including 2022 based on an 

analysis of the same statutory factors as 

the reset authority. 

In addition to these statutory 

provisions, the D.C. Circuit has also 

established principles that EPA must 

follow when promulgating RFS 

rulemakings that are retroactive (i.e., 

rules that apply to conduct prior to the 

rule becoming effective) and late (i.e., 

rules promulgated after the statutory 

deadline).5 Namely, EPA generally has 

authority to promulgate such RFS rules, 

but EPA must reasonably consider and 

mitigate the burdens on obligated 

parties caused by the issuance of these 

rules after the statutory deadline. 

Several aspects of this rulemaking are 

either retroactive or are being finalized 

after the statutory deadline, or both. 

Therefore, we consider this caselaw as 

required by the D.C. Circuit and 

consistent with our obligation to act 

reasonably. We further discuss all our 

legal authorities to modify or establish 

volumes in Section II. 

B. 2020 Volumes 

EPA established the applicable 2020 

volume requirements and percentage 

standards in late 2019.6 Since we 

promulgated those standards, significant 

and unanticipated events occurred that 

affected the fuels markets in 2020. The 

two most prominent of these events 

were: 

• The COVID–19 pandemic, which 

caused a major drop in transportation 

fuel demand, a disproportionate fall in 

gasoline demand relative to diesel 

demand, and significantly reduced 

production and use of biofuels in 2020 

below the volumes we anticipated could 

be achieved, and 

• The volume of gasoline and diesel 

fuel exempted from 2020 RFS 

obligations through SREs is far lower 

than projected in the 2020 final rule. 

These events adversely affected the 

ability of obligated parties to comply 

with the applicable standards and to 

achieve the intended volumes in the 

2020 final rule.7 As a result, we 

proposed to retroactively adjust the 

2020 volumes and standards to reflect 

the actual volumes of renewable fuels 

and transportation fuel consumed in the 

U.S. in 2020.8 In this final rule we are 

establishing revised volumes and 

standards for 2020 based on the actual 

volumes of renewable fuel and 

transportation fuel used in the U.S. in 

2020, as we proposed. As we discuss 

further in Section III, the revised 

renewable fuel volumes are supported 

by our analysis of the statutory factors 

that we must consider when resetting 

RFS volumes. Our decision to use 

updated data on actual transportation 

fuel consumption is further explained in 

Section V. 

C. 2021 Volumes 

For 2021, we proposed establishing 

volumes that were equal to the volumes 

of cellulosic biofuel, advanced biofuel, 

and total renewable fuel that were 

projected to be used in the U.S. in 2021 

based on data available at the time of 

the proposed rule. We also indicated 

our intent to update these projections in 

the final rule. As discussed in further 

detail in Section III, we believe this 

approach for 2021 is appropriate based 

on our analysis of the statutory factors 

EPA must analyze when resetting the 

RFS volumes, including our finding that 

this retroactive rulemaking has no 

ability to incentivize increased 

production and use of renewable fuel in 

2021. Consistent with our proposed 

rule, we are finalizing volumes for 2021 


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Federal Register / Vol. 87, No. 126 / Friday, July 1, 2022 / Rules and Regulations 39603 

9Throughout this document we often refer to the 

‘‘potential’’ impacts (positive or negative) of 

increased biofuel production to highlight that there 

is uncertainty associated with these impacts. The 

lack of the qualifying word ‘‘potential,’’ however, 

does not mean that there is no uncertainty. For a 

fuller discussion of the uncertainty associated with 

these impacts see the RIA. 

10See 80 FR 77420 (December 14, 2015); CAA 

section 211(o)(7)(A)(ii). 

11 85 FR 7016 (February 6, 2020). 

that are equal to the actual volumes of 

cellulosic biofuel, advanced biofuel, and 

total renewable fuel that were used in 

the U.S. in 2021. 

D. 2022 Volumes 

For 2022 we proposed a cellulosic 

biofuel volume that was equal to the 

volume of qualifying cellulosic biofuel 

projected to be used in the U.S. in 2022 

and volumes of non-cellulosic advanced 

biofuel and conventional renewable fuel 

that were consistent with the implied 

statutory targets for these categories. 

These volumes were significantly higher 

than the proposed volumes for 2020 and 

2021. In this final rule we are 

establishing volumes for 2022 that are 

consistent with the proposed volumes, 

after updating our projection of 

cellulosic biofuel use in 2022 using 

more recent data. As we discuss further 

in Section III, these volumes are based 

on our analysis of the statutory factors, 

including our assessment of the ability 

for the RFS program to incentivize 

increased production and use of 

renewable fuel in 2022 (particularly 

given the partially prospective nature of 

the 2022 standards relative to the 

entirely retrospective 2020 and 2021 

standards), the statutory intent to 

support increasing production and use 

of renewable fuels, and the potential 

positive impacts of renewable fuels on 

several of the statutory factors such as 

climate change and energy security.9

The volumes for 2022 also reflect 

market constraints on the ability of RFS 

annual volume requirements to 

incentivize increased production and 

use of renewable fuel in the near term. 

These constraints include the 

commercial availability of cellulosic 

biofuel, the price and availability of 

feedstocks, and the availability of 

infrastructure to distribute higher-level 

blends of ethanol. Finally, the volumes 

for 2022 take into consideration the 

potential adverse impacts of the 

renewable fuel volumes on several 

statutory factors including wildlife 

habitat, water quality, and water supply. 

E. Response to the ACE Remand 

In 2015, EPA established the total 

renewable fuel standard for 2016. As 

part of that rule, EPA relied upon the 

general waiver authority under a finding 

of inadequate domestic supply to reduce 

the total renewable fuel volume target 

by 500 million gallons.10 Several parties 

challenged that action, and in ACE the 

D.C. Circuit vacated EPA’s use of the 

general waiver authority, finding that 

such use exceeded EPA’s authority 

under the CAA. Specifically, EPA had 

impermissibly considered demand-side 

factors in its assessment of inadequate 

domestic supply, rather than limiting 

that assessment to supply-side factors. 

The court remanded the rule back to 

EPA for further consideration. 

We now intend to restore the full 500 

million gallons that we improperly 

waived in the 2016 rule but to do so 

over two years. Specifically, as we 

discuss further in Section IV, we are 

adding a supplemental volume 

obligation of 250 million gallons, which 

will be implemented as a supplemental 

2022 standard as we proposed. We also 

intend to propose an additional 

supplemental volume of 250 million 

gallons for 2023 in a subsequent action. 

F. Annual Percentage Standards 

The statute directs EPA to establish 

annual standards that translate the 

nationally applicable volume targets 

into compliance obligations on 

obligated parties. In this action, EPA is 

finalizing annual standards for 2020, 

2021, and 2022 for all four categories of 

renewable fuel. We are also finalizing a 

supplemental standard to address the 

ACE remand, which will apply in the 

2022 compliance year. 

The renewable fuel standards are 

expressed as a volume percentage and 

are used by each refiner and importer of 

petroleum-based gasoline or diesel fuel 

to determine their renewable fuel 

volume obligations. The specific 

formulas we use in calculating the 

renewable fuel percentage standards are 

found in 40 CFR 80.1405. In the 2020 

final rule, we modified the formulas 

used to calculate the percentage 

standards to account for a projection of 

exempt gasoline and diesel fuel volumes 

produced by small refineries and small 

refiners.11 After seeking comment on 

this issue in the proposed rule, we are 

maintaining the modified formula. 

Additionally, we project that no 

exemptions will be granted for 2020– 

2022, and thus the exempt volume of 

gasoline and diesel fuel will be zero for 

all three years. 

Four separate percentage standards 

are required under the RFS program, 

corresponding to the four separate 

renewable fuel categories shown in 

Table I–1. The final standards are 

shown in Table I.F–1. Details, including 

the projected gasoline and diesel fuel 

volumes used, can be found in Section 

V. Further details regarding the 

supplemental standard can be found in 

Section IV. 

TABLE I.F–1—PERCENTAGE STANDARDS

Category 2020 

(%) 

2021 

(%) 

2022 

(%) 

Cellulosic Biofuel ......................................................................................................................... 0.32 0.33 0.35 

Biomass-Based Diesel ................................................................................................................. 2.30 2.16 2.33 

Advanced Biofuel ......................................................................................................................... 2.93 3.00 3.16 

Renewable Fuel ........................................................................................................................... 10.82 11.19 11.59 

Supplemental Standard ............................................................................................................... n/a n/a 0.14 

G. Administrative Actions 

The regulations promulgated in 2010 

require EPA to make an annual finding 

concerning whether the 2007 baseline 

amount of U.S. agricultural land has 

been exceeded in a given year. If the 

baseline is found to have been 

exceeded, then producers using U.S. 

planted crops and crop residue as 

feedstocks for renewable fuel 

production would be required to 

comply with individual recordkeeping 

and reporting requirements to verify 

that their feedstocks are renewable 

biomass. As discussed in Section VI, we 

have concluded that 2007 baseline 

acreage has not been exceeded. 

H. Biointermediates 

Since the RFS2 program was finalized 

in 2010, we have become increasingly 


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39604 Federal Register / Vol. 87, No. 126 / Friday, July 1, 2022 / Rules and Regulations 

12See, e.g., ‘‘Environmental Justice.’’ Epa.gov, 

Environmental Protection Agency, 4 Mar. 2021, 

https://www.epa.gov/environmentaljustice. 

13The definitions and criteria for 

‘‘disproportionate impacts,’’ ‘‘difference,’’ and 

‘‘differential’’ are contained in EPA’s June 2016 

guidance document ‘‘Technical Guidance for 

Assessing Environmental Justice in Regulatory 

Analysis.’’ Epa.gov, Environmental Protection 

Agency, https://www.epa.gov/sites/default/files/ 

2016-06/documents/ejtg_5_6_16_v5.1.pdf. 

aware that some renewable fuel 

producers would like to process fuel at 

more than one facility. Specifically, 

renewable fuel producers would like to 

first have a facility process renewable 

biomass into a proto-renewable fuel (or 

‘‘biointermediate’’) and then have a 

second, separate facility process that 

biointermediate into renewable fuel. In 

some cases, it may be preferable for 

economic or practical reasons for 

renewable biomass to be subjected to 

substantial pre-processing at one facility 

before being sent to a different facility 

where it is converted into renewable 

fuel. For example, renewable biomass, 

such as separated municipal solid waste 

(MSW), may be converted into 

biocrude—a biointermediate—at one 

facility, after which the biointermediate 

producer would send the biocrude to a 

petroleum refinery that would further 

process the biocrude to produce a 

renewable gasoline or renewable diesel 

fuel. Such production methodologies 

have the potential to lower the cost of 

using cellulosic and other feedstocks for 

the production of renewable fuels by 

reducing capital costs for new facilities 

and/or the storage and transportation 

costs associated with feedstock 

handling—especially for cellulosic 

biomass. Thus, we believe that such 

technologies provide an opportunity for 

the future growth in production of the 

cellulosic biofuels required under the 

RFS program. 

In this action, we are finalizing 

provisions to allow for the use of certain 

biointermediates to produce qualifying 

renewable fuels. These provisions 

specify requirements that apply when 

renewable fuel is produced through 

sequential operations at more than one 

facility. These provisions center around 

the production, transfer, and use of 

biointermediates and the creation of 

new regulatory requirements related to 

registration, recordkeeping, and 

reporting for facilities producing or 

using a biointermediate for renewable 

fuel production. We further discuss the 

biointermediates provisions in Section 

VII. 

I. Other Changes 

We are finalizing regulatory changes 

that will assist EPA in implementing 

our fuel quality and RFS programs. 

These regulatory changes include: 

• Changes to registration requirements 

concerning baseline volumes 

• Changes to attest engagements for 

parties owning Renewable 

Identification Numbers (RINs) 

• Treatment of confidential business 

information 

• Clarifying the definition of 

‘‘agricultural digesters’’ 

• Adding pathways for stand-alone 

esterification 

• Other technical amendments to the 

RFS regulations 

Each of these regulatory changes is 

discussed in greater detail in Section 

VIII. 

J. Environmental Justice 

Executive Order 12898 (59 FR 7629, 

February 16, 1994) establishes Federal 

executive policy on environmental 

justice (‘‘EJ’’). It directs Federal 

agencies, to the greatest extent 

practicable and permitted by law, to 

make achieving EJ part of their mission 

by identifying and addressing, as 

appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on people of 

color and low-income populations in 

the United States. EPA defines EJ as the 

fair treatment and meaningful 

involvement of all people regardless of 

race, color, national origin, or income 

with respect to the development, 

implementation, and enforcement of 

environmental laws, regulations, and 

policies.12 Executive Order 14008 (86 

FR 7619, February 1, 2021) also calls on 

Federal agencies to make achieving EJ 

part of their missions ‘‘by developing 

programs, policies, and activities to 

address the disproportionately high and 

adverse human health, environmental, 

climate-related and other cumulative 

impacts on disadvantaged communities, 

as well as the accompanying economic 

challenges of such impacts.’’ It also 

declares a policy ‘‘to secure 

environmental justice and spur 

economic opportunity for disadvantaged 

communities that have been historically 

marginalized and overburdened by 

pollution and under-investment in 

housing, transportation, water and 

wastewater infrastructure and health 

care.’’ EPA also released its ‘‘Technical 

Guidance for Assessing Environmental 

Justice in Regulatory Analysis’’ 

providing recommendations on 

conducting the highest quality analysis 

feasible, recognizing that data 

limitations, time and resource 

constraints, and analytic challenges will 

vary by media and regulatory context.13

When assessing the potential for 

disproportionately high and adverse 

health or environmental impacts of 

regulatory actions on people of color, 

low-income populations, tribes, and/or 

indigenous peoples, EPA strives to 

answer three broad questions: (1) Is 

there evidence of potential EJ concerns 

in the baseline (the state of the world 

absent the regulatory action)? Assessing 

the baseline will allow EPA to 

determine whether pre-existing 

disparities are associated with the 

pollutant(s) under consideration (e.g., if 

the effects of the pollutant(s) are more 

concentrated in some population 

groups). (2) Is there evidence of 

potential EJ concerns for the regulatory 

option(s) under consideration? 

Specifically, how are the pollutant(s) 

and their effects distributed for the 

regulatory options under consideration? 

And, (3) Do the regulatory option(s) 

under consideration exacerbate or 

mitigate EJ concerns relative to the 

baseline? It is not always possible to 

assess these questions in ways that 

produce quantitative results, though it 

may still be possible to describe them 

qualitatively. 

EPA’s 2016 Technical Guidance does 

not prescribe or recommend a specific 

approach or methodology for 

conducting an EJ analysis, though a key 

consideration is consistency with the 

assumptions underlying other parts of 

the regulatory analysis when evaluating 

the baseline and regulatory options. 

Where applicable and practicable, the 

Agency endeavors to conduct such an 

analysis. Going forward, EPA is 

committed to conducting EJ analysis for 

rulemakings based on a framework 

similar to what is outlined in EPA’s 

Technical Guidance, in addition to 

investigating ways to further weave EJ 

into the fabric of the rulemaking 

process. 

In 2009, under the Endangerment and 

Cause or Contribute Findings for 

Greenhouse Gases Under Section 202(a) 

of the Clean Air Act (‘‘Endangerment 

Finding’’), EPA considered how climate 

change threatens the health and welfare 

of the U.S. population. As part of that 

consideration, EPA also considered 

risks to people of color and low-income 

individuals and communities, finding 

that certain parts of the U.S. population 

may be especially vulnerable based on 

their characteristics or circumstances. 

These groups include economically and 

socially disadvantaged communities; 

individuals at vulnerable lifestages, 

such as the elderly, the very young, and 

pregnant or nursing women; those 

already in poor health or with 

comorbidities; the disabled; those 

experiencing homelessness, mental 

illness, or substance abuse; and/or 

Indigenous or minority populations 


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Federal Register / Vol. 87, No. 126 / Friday, July 1, 2022 / Rules and Regulations 39605 

14USGCRP, 2018: Impacts, Risks, and Adaptation 

in the United States: Fourth National Climate 

Assessment, Volume II [Reidmiller, D.R., C.W. 

Avery, D.R. Easterling, K.E. Kunkel, K.L.M. Lewis, 

T.K. Maycock, and B.C. Stewart (eds.)]. U.S. Global 

Change Research Program, Washington, DC, USA, 

1515 pp. doi: 10.7930/NCA4.2018. 15USGCRP, 2016: The Impacts of Climate Change 

on Human Health in the United States: A Scientific 

Assessment. Crimmins, A., J. Balbus, J.L. Gamble, 

C.B. Beard, J.E. Bell, D. Dodgen, R.J. Eisen, N. Fann, 

M.D. Hawkins, S.C. Herring, L. Jantarasami, D.M. 

Mills, S. Saha, M.C. Sarofim, J. Trtanj, and L. Ziska, 

Eds. U.S. Global Change Research Program, 

Washington, DC, 312 pp. https://dx.doi.org/ 

10.7930/J0R49NQX. 

16Oppenheimer, M., M. Campos, R.Warren, J. 

Birkmann, G. Luber, B. O’Neill, and K. Takahashi, 

2014: Emergent risks and key vulnerabilities. In: 

Climate Change 2014: Impacts, Adaptation, and 

Vulnerability. Part A: Global and Sectoral Aspects. 

Contribution of Working Group II to the Fifth 

Assessment Report of the Intergovernmental Panel 

on Climate Change [Field, C.B., V.R. Barros, D.J. 

Dokken, K.J. Mach, M.D. Mastrandrea, T.E. Bilir, M. 

Chatterjee, K.L. Ebi, Y.O. Estrada, R.C. Genova, B. 

Girma, E.S. Kissel, A.N. Levy, S. MacCracken, P.R. 

Mastrandrea, and L.L.White (eds.)]. Cambridge 

University Press, Cambridge, United Kingdom and 

New York, NY, USA, pp. 1039–1099. 

17Porter, J.R., L. Xie, A.J. Challinor, K. Cochrane, 

S.M. Howden, M.M. Iqbal, D.B. Lobell, and M.I. 

Travasso, 2014: Food security and food production 

systems. In: Climate Change 2014: Impacts, 

Adaptation, and Vulnerability. Part A: Global and 

Sectoral Aspects. Contribution of Working Group II 

to the Fifth Assessment Report of the 

Intergovernmental Panel on Climate Change [Field, 

C.B., V.R. Barros, D.J. Dokken, K.J. Mach, M.D. 

Mastrandrea, T.E. Bilir, M. Chatterjee, K.L. Ebi, Y.O. 

Estrada, R.C. Genova, B. Girma, E.S. Kissel, A.N. 

Levy, S. MacCracken, P.R. Mastrandrea, and 

L.L.White (eds.)]. Cambridge University Press, 

Cambridge, United Kingdom and New York, NY, 

USA, pp. 485–533. 

18Smith, K.R., A.Woodward, D. CampbellLendrum, D.D. Chadee, Y. Honda, Q. Liu, J.M. 

Olwoch, B. Revich, and R. Sauerborn, 2014: Human 

health: impacts, adaptation, and co-benefits. In: 

Climate Change 2014: Impacts, Adaptation, and 

Vulnerability. Part A: Global and Sectoral Aspects. 

Contribution of Working Group II to the Fifth 

Assessment Report of the Intergovernmental Panel 

on Climate Change [Field, C.B., V.R. Barros, D.J. 

Dokken, K.J. Mach, M.D. Mastrandrea, T.E. Bilir, M. 

Chatterjee, K.L. Ebi, Y.O. Estrada, R.C. Genova, B. 

Girma, E.S. Kissel, A.N. Levy, S. MacCracken, P.R. 

Mastrandrea, and L.L. White (eds.)]. Cambridge 

University Press, Cambridge, United Kingdom and 

New York, NY, USA, pp. 709–754. 

19 IPCC, 2018: Global Warming of 1.5° C. An IPCC 

Special Report on the impacts of global warming of 

1.5° C above pre-industrial levels and related global 

greenhouse gas emission pathways, in the context 

of strengthening the global response to the threat of 

climate change, sustainable development, and 

efforts to eradicate poverty [Masson-Delmotte, V., P. 

Zhai, H.-O. Po ̈rtner, D. Roberts, J. Skea, P.R. Shukla, 

A. Pirani, W. Moufouma-Okia, C. Pe ́an, R. Pidcock, 

S. Connors, J.B.R. Matthews, Y. Chen, X. Zhou, M.I. 

Gomis, E. Lonnoy, T. Maycock, M. Tignor, and T. 

Waterfield (eds.)]. In Press. 

20National Research Council. 2011. America’s 

Climate Choices. Washington, DC: The National 

Academies Press. https://doi.org/10.17226/12781. 

21National Academies of Sciences, Engineering, 

and Medicine. 2017. Communities in Action: 

Pathways to Health Equity. Washington, DC: The 

National Academies Press. https://doi.org/ 

10.17226/24624. 

dependent on one or limited resources 

for subsistence due to factors including 

but not limited to geography, access, 

and mobility. 

Scientific assessment reports 

produced over the past decade by the 

U.S. Global Change Research Program 

(USGCRP),14 15 the Intergovernmental 

Panel on Climate Change (IPCC),16 17 18 19

and the National Academies of Science, 

Engineering, and Medicine 20 21 add 

more evidence that the impacts of 

climate change raise potential EJ 

concerns. These reports conclude that 

poorer or predominantly non-White 

communities can be especially 

vulnerable to climate change impacts 

because they tend to have limited 

adaptive capacities and are more 

dependent on climate-sensitive 

resources such as local water and food 

supplies, or have less access to social 

and information resources. Some 

communities of color, specifically 

populations defined jointly by ethnic/ 

racial characteristics and geographic 

location, may be uniquely vulnerable to 

climate change health impacts in the 

United States. In particular, the 2016 

scientific assessment on the Impacts of 

Climate Change on Human Health found 

with high confidence that 

vulnerabilities are place- and timespecific, lifestages and ages are linked to 

immediate and future health impacts, 

and social determinants of health are 

linked to greater extent and severity of 

climate change-related health impacts. 

This rule has the potential to reduce 

GHG emissions, which would benefit all 

populations including people of color, 

low-income populations, and 

indigenous populations. The manner in 

which the market responds to the 

provisions in this final rule could also 

have non-GHG impacts, including both 

positive and negative impacts. For 

instance, replacing petroleum fuels with 

renewable fuels could have impacts on 

water, air, and hazardous waste 

exposure for communities living near 

either existing or new facilities that 

produce these fuels. Replacing 

petroleum fuels with renewable fuels 

could also impact feedstock supplies 

and land use, which could impact a 

range of communities through their 

impacts on air, water, and soil quality, 

as well as water quantity. Impacts on 

water quality in particular could impact 

communities that rely on aquatic 

ecosystems for income or sustenance, 

including indigenous peoples. 

Replacing petroleum fuels with 

renewable fuels is also projected to 

cause increases in food and fuel prices, 

and these price impacts could also 

disproportionately affect low-income 

populations who spend a larger portion 

of their income on food and fuel. 

The overall EJ implications of these 

non-GHG impacts is uncertain. 

Specifically, it is uncertain whether 

these impacts are unevenly distributed 

spatially in ways that coincide with 

patterns of pre-existing exposure and 

vulnerabilities for people of color, low 

income populations, and indigenous 

peoples. Accurately evaluating the EJ 

implications would entail predicting 

where changes in production of 

renewable fuels and land use occur at a 

fine spatial scale. That is beyond the 

scope of our analysis in this rule. A 

more detailed discussion of potential EJ 

concerns as a result of this action can be 

found in Chapter 8 of the RIA. 

K. Endangered Species Act 

Section 7(a)(2) of the Endangered 

Species Act (ESA), 16 U.S.C. 1536(a)(2), 

requires that Federal agencies such as 

EPA, along with the U.S. Fish and 

Wildlife Service (USFWS) and/or the 

National Marine Fisheries Service 

(NMFS) (collectively ‘‘the Services’’), 

ensure that any action authorized, 

funded, or carried out by the agency is 

not likely to jeopardize the continued 

existence of any endangered or 

threatened species or result in the 

destruction or adverse modification of 

designated critical habitat for such 

species. Under relevant implementing 

regulations, consultation is required 

only for actions that ‘‘may affect’’ listed 

species or designated critical habitat. 50 

CFR 402.14. Consultation is not 

required where the action has no effect 

on such species or habitat. For several 

prior RFS annual standard-setting rules, 

EPA did not consult with the Services 

under section 7(a)(2). 

On September 6, 2019, the D.C. 

Circuit decided American Fuel & 

Petrochemical Manufacturers v. EPA, 

937 F.3d 559 (2019), finding that EPA 

had failed to make an effects 

determination for ESA purposes with 

regard to the 2018 RFS rule and 

remanding the rule without vacatur to 

EPA to make an appropriate effects 

determination. See id. at 598. 

On July 16, 2021, the D.C. Circuit 

decided Growth Energy v. EPA, 5 F.4th 

1 (2021), finding that EPA’s 

determination that the 2019 RFS rule 

would have no effect on listed species 

or the designated critical habitat of such 

species was arbitrary and capricious and 

remanding the rule to EPA without 

vacatur to comply with the ruling. See 

id. at 32. 

In light of this case law pertaining to 

EPA’s action in prior years and 

consistent with ESA section 7(a)(2) and 

relevant ESA implementing regulations 

at 50 CFR part 402, EPA has been 

engaged in informal consultation 


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39606 Federal Register / Vol. 87, No. 126 / Friday, July 1, 2022 / Rules and Regulations 

22A chronology of these interactions between 

EPA and the Services is available in the docket for 

this action. ‘‘Technical assistance’’ and ‘‘informal 

consultation’’ are terms used to describe aspects of 

ESA consultation with the Services, as detailed in 

the ESA Section 7 Consultation Handbook, March 

1998 (available at https://media.fisheries.noaa.gov/ 

dam-migration/esa_section7_handbook_1998_

opr5.pdf). 

23Section 7(d) of the ESA prohibits a federal 

agency from making irreversible or irretrievable 

commitments of resources that have the effect of 

foreclosing the formulation or implementation of 

reasonable and prudent alternatives which would 

not violate ESA section 7(a)(2). 

24EPA intends to respond to the D.C. Circuit’s 

remands of the ESA determinations made in the 

2018 and 2019 RFS rules in a separate proceeding. 

25See 86 FR 5182 (January 19, 2021). 

26See 81 FR 89752–89753 (December 12, 2016); 

see also API v. EPA, 706 F.3d 474 (D.C. Cir. 2013) 

(requiring that EPA’s cellulosic biofuel projections 

reflect a neutral aim at accuracy); Monroe Energy v. 

EPA, 750 F.3d 909, 915–16 (D.C. Cir. 2014) 

(affirming EPA’s broad discretion under the 

cellulosic waiver authority to reduce volumes of 

advanced biofuel and total renewable fuel); 

Americans for Clean Energy v. EPA (‘‘ACE’’), 864 

F.3d 691, 730–735 (D.C. Cir. 2017) (same); Alon 

Refining Krotz Spring, Inc. v. EPA, 936 F.3d 628, 

662–663 (D.C. Cir. 2019) (same); American Fuel & 

Petrochemical Manufacturers v. EPA, 937 F.3d 559, 

577–78 (D.C. Cir. 2019) (same). 

27Because the statutory volumes for BBD lapsed 

after 2012, the reset provision, which only applies 

including technical assistance 

discussions with the Services regarding 

this rule for over a year.22 EPA has 

prepared an ESA section 7(d) 

determination memorandum that 

discusses our decision to finalize this 

action before the consultation process is 

complete, which is also available in the 

docket for this action.23 24

II. Legal Authorities To Reduce and 

Establish Volumes 

The CAA provides EPA with several 

authorities to reduce or establish the 

nationally applicable renewable fuel 

volumes. In this action, as proposed, we 

are utilizing the cellulosic waiver 

authority along with the ‘‘reset’’ waiver 

authority to reduce the applicable 

volumes for 2020, 2021, and 2022 for 

total renewable fuel, advanced biofuel, 

and cellulosic biofuel. We are also 

utilizing our ‘‘set’’ authority to establish 

the 2022 applicable volume for BBD. We 

have also considered but declined to 

make reductions utilizing our ‘‘general’’ 

waiver authority. 

This section discusses the statutory 

authorities, additional factors we 

considered due to the retroactivity or 

lateness of this rulemaking, additional 

factors related to our reconsideration of 

the previously finalized standards for 

2020, how we are applying our 

authorities to establish the volumes, as 

well as the severability of the various 

portions of this final rule. A detailed 

summary of the comments received on 

EPA’s legal authorities to reduce and 

establish volumes and our responses to 

those comments can be found in the 

Section 2 of the RTC document. 

A. Authorities To Modify Statutory 

Volumes Targets 

In CAA section 211(o)(2), Congress 

specified increasing annual volume 

targets for total renewable fuel, 

advanced biofuel, and cellulosic biofuel 

for each year through 2022. However, 

Congress also recognized that under 

certain circumstances it would be 

appropriate for EPA to set volume 

requirements different from the 

statutory volume targets and thus 

provided waiver provisions in CAA 

section 211(o)(7). In this action, we are 

utilizing the cellulosic waiver authority 

under CAA section 211(o)(7)(D) and the 

reset authority under CAA section 

211(o)(7)(F) to reduce volumes for 2020, 

2021, and 2022. We are not using our 

general waiver authority. In addition, 

while in January 2021 we sought 

comment on the use of general waiver 

authority to reduce volumes for 2020 in 

response to several petitions from states 

and obligated parties submitted during 

the 2020 compliance year,25 we have 

determined that reductions under the 

general waiver authority are not 

necessary or appropriate in light of our 

decision to waive the volumes using our 

other authorities. 

1. Cellulosic Waiver Authority 

Section 211(o)(7)(D)(i) of the CAA 

provides that if EPA determines that the 

projected volume of cellulosic biofuel 

production for a given year is less than 

the applicable volume established under 

CAA section 211(o)(2)(B), then EPA 

must reduce the applicable volume of 

cellulosic biofuel to the projected 

volume available for that calendar year. 

In making this projection, EPA must 

take a ‘‘neutral aim at accuracy.’’ 

American Petroleum Institute (API) v. 

EPA, 706 F.3d 474, 479 (D.C. Cir. 2013). 

Pursuant to this provision, EPA has set 

the cellulosic biofuel requirement lower 

than the statutory volume for each year 

since 2010. CAA section 211(o)(7)(D)(i) 

also provides EPA with the authority to 

reduce the applicable volume of total 

renewable fuel and advanced biofuel in 

years when EPA reduces the applicable 

volume of cellulosic biofuel under that 

provision. The reduction must be less 

than or equal to the reduction in 

cellulosic biofuel. EPA has used this 

aspect of the cellulosic waiver authority 

to lower the advanced biofuel and total 

renewable fuel volumes every year since 

2014. Further discussion of the 

cellulosic waiver authority, and EPA’s 

interpretation of it, can be found in the 

2017 final rule.26

In this action, as proposed, we are 

utilizing the cellulosic waiver authority 

as required by the statute to reduce the 

applicable volume of cellulosic biofuel 

for 2020, 2021, and 2022. As described 

in Chapter 4 of the RIA, the projected 

volumes of cellulosic biofuel production 

for 2020, 2021, and 2022 are all 

significantly less than the volume 

targets in the statute. Therefore, the 

cellulosic waiver authority requires EPA 

to lower the cellulosic biofuel volume to 

the projected volume available in each 

year. Our interpretation of the 

‘‘projected volume available’’ includes 

the volume of qualifying cellulosic 

biofuel projected to be produced or 

imported and available for use as 

transportation fuel in the U.S. in that 

year. Consistent with our past 

interpretation of the term as discussed 

further in Section III.B.2, it does not 

include cellulosic carryover RINs. We 

are also utilizing the cellulosic waiver 

authority as a basis for reductions in the 

total renewable fuel and advanced 

biofuel applicable volumes for 2022. 

2. Reset Authority 

The CAA provides that EPA shall 

modify the statutorily prescribed RFS 

volumes once certain triggers are met. 

This section discusses the statutory 

requirements that trigger the use of this 

reset authority, describes the process 

and criteria for such use, and explains 

the impact of this modification on our 

other waiver authorities. In this action, 

as proposed, we are utilizing the reset 

authority to modify the volume 

requirements for 2020, 2021, and 2022 

as required by the statute and after 

careful consideration of the many 

comments received. 

a. Conditions for Resetting Volume 

Targets 

CAA section 211(o)(7)(F) sets forth 

EPA’s authority to modify, or ‘‘reset’’ 

the applicable volumes once certain 

triggers have been met. Specifically, 

EPA must reset the applicable volumes 

for a particular category of biofuel 

when, under CAA section 

211(o)(7)(F)(i), we waive at least 20 

percent of the applicable volume 

requirement for such category for two 

consecutive years, or, under CAA 

section 211(o)(7)(F)(ii), we waive at least 

50 percent of such applicable volume 

requirement for a single year. With the 

promulgation of the 2019 standards, 

these conditions have been met for three 

categories of biofuel: cellulosic biofuel, 

advanced biofuel, and total renewable 

fuel.27 We describe below, for each 


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to 2016 and subsequent years, does not apply to 

BBD. 

28 75 FR 14670 (March 26, 2010). 

29 75 FR 14675. 

30We note that all subsequent annual rules have 

also waived the cellulosic biofuel volume by more 

than 50 percent. 

31 80 FR 77420 (December 14, 2015). 

32 Id. 

33 Id. 

34 82 FR 58486 (December 12, 2017). 

35 83 FR 63704 (December 11, 2018). 

36Nat’l Wildlife Fed’n v. EPA, 286 F.3d 554, 570 

(D.C. Cir. 2002); accord Riverkeeper, Inc. v. United 

States EPA, 358 F.3d 174, 195 (2d Cir. 2004); BP 

Exploration & Oil, Inc. v. EPA, 66 F.3d 784, 802 (6th 

Cir. 1995); see also Cal. by Brown v. Watt, 668 F.2d 

1290, 1317 (D.C. Cir. 1981) (‘‘A balancing of factors 

is not the same as treating all factors equally. The 

obligation instead is to look at all factors and then 

balance the results. The Act does not mandate any 

particular balance, but vests the Secretary with 

discretion to weigh the elements. . . .’’). 

37CAA section 211(o)(2)(B)(ii)(VI). 

38The first two factors also inform our analysis 

of the statutory factor ‘‘review of the 

implementation of the program.’’ CAA section 

211(o)(2)(B)(ii). 

39The third factor (how the standards affect the 

feasibility of compliance) also informs our analysis 

of the statutory factor ‘‘the expected annual rate of 

future commercial production of renewable fuels.’’ 

CAA section 211(o)(2)(B)(ii)(III). 

category of biofuel, how these 

conditions were satisfied. 

The conditions for resetting cellulosic 

biofuel volumes were met by the 2010 

annual standard, which reduced the 

applicable cellulosic biofuel volume by 

at least 50 percent. In that rule, we 

waived the cellulosic biofuel applicable 

volume for the first time using the 

cellulosic waiver authority.28 We set the 

cellulosic biofuel applicable volume at 

6.5 million gallons for 2010.29 This 

waiver resulted in an applicable volume 

that was 93.5 percent lower than the 

applicable volume requirement 

provided in the statute (100 million 

gallons), thus triggering the reset 

requirement under CAA section 

211(o)(7)(F)(ii). However, the statute 

also provides that ‘‘no such 

modification in applicable volumes 

shall be made for any year before 2016.’’ 

CAA section 211(o)(7)(F). Therefore, 

although the trigger to modify the 

cellulosic biofuel volume target under 

the reset provision was met in 2010, the 

statute did not require a change to the 

applicable volumes until 2016.30

The conditions for resetting advanced 

biofuel volumes were met by the 2014 

and 2015 annual standards, which 

reduced the advanced biofuel applicable 

volume by at least 20 percent for two 

consecutive years. For the 2014 annual 

standard, we waived the advanced 

biofuel volume for the first time.31 We 

set the advanced biofuel volume at 2.67 

billion gallons.32 This represented a 

reduction of 28.8 percent from the 

applicable volume requirement 

provided in the statute (3.75 billion 

gallons). This reduction therefore 

triggered the first year of reductions of 

at least 20 percent under CAA section 

211(o)(7)(F)(i). For the 2015 annual 

standard, we reduced the advanced 

biofuel applicable volume to 2.88 

billion gallons.33 This represented a 

reduction of 47.6 percent from the 

applicable volume requirement 

provided in the statute (5.5 billion 

gallons). This represented the second 

consecutive year for which the 

Administrator waived volumes by at 

least 20 percent, thus triggering the 

modification of the advanced biofuel 

volume under CAA section 

211(o)(7)(F)(i). 

The conditions for resetting total 

renewable fuel volumes were met by the 

2018 and 2019 annual standards, which 

reduced the applicable total renewable 

fuel volume by at least 20 percent for 

two consecutive years. For the 2018 

annual standard, we reduced the total 

renewable fuel volume to 19.29 billion 

gallons.34 This represented a reduction 

of 25.8 percent from the applicable 

volume requirement provided in the 

statute (26 billion gallons). This 

reduction therefore triggered the first 

year of reductions of at least 20 percent 

under CAA section 211(o)(7)(F)(i). For 

the 2019 annual standard, we reduced 

the total renewable fuel volume to 19.92 

billion gallons.35 This represented a 

reduction of 29 percent from the 

applicable volume requirement 

provided in the statute (28 billion 

gallons). This represented the second 

consecutive year for which the 

Administrator waived volumes by at 

least 20 percent, thus triggering the 

modification of the total renewable fuel 

volume under CAA section 

211(o)(7)(F)(i). 

b. Factors That Must Be Analyzed 

In resetting the statutory volumes, 

EPA must comply with the processes, 

criteria, and standards set forth in CAA 

section 211(o)(2)(B)(ii). That provision 

provides that the Administrator shall, in 

coordination with the Secretary of 

Energy and the Secretary of Agriculture, 

determine the applicable volumes of 

each biofuel category specified based on 

a review of implementation of the 

program during the calendar years 

specified in the table, and an analysis of 

the impact of: 

• the impact of the production and 

use of renewable fuels on the 

environment, including on air quality, 

climate change, conversion of wetlands, 

ecosystems, wildlife habitat, water 

quality, and water supply; 

• the impact of renewable fuels on 

the energy security of the United States; 

• the expected annual rate of future 

commercial production of renewable 

fuels, including advanced biofuels in 

each category (cellulosic biofuel and 

BBD); 

• the impact of renewable fuels on 

the infrastructure of the United States, 

including deliverability of materials, 

goods, and products other than 

renewable fuel, and the sufficiency of 

infrastructure to deliver and use 

renewable fuel; 

• the impact of the use of renewable 

fuels on the cost to consumers of 

transportation fuel and on the cost to 

transport goods; and 

• the impact of the use of renewable 

fuels on other factors, including job 

creation, the price and supply of 

agricultural commodities, rural 

economic development, and food prices. 

While the statute requires that EPA 

base its determination on an analysis of 

these factors, it does not establish any 

numeric criteria, require a specific type 

of analysis (such as quantitative 

analysis), or provide guidance on how 

EPA should weigh the various factors. 

Additionally, we are not aware of 

anything in the legislative history of 

EISA that provides authoritative 

guidance on these issues. Thus, as the 

Act ‘‘does not state what weight should 

be accorded to the relevant factors,’’ it 

‘‘give[s] EPA considerable discretion to 

weigh and balance the various factors 

required by statute.’’ 36 We received 

comments on this issue, with some 

commenters suggesting that we should 

give more weight to certain factors than 

others; our responses can be found in 

Section 2 of the RTC document. 

Additionally, we also have authority 

to consider other factors, including 

implied authority to consider factors 

that inform our analysis of the statutory 

factors, as well as explicit authority to 

consider ‘‘the impact of the use of 

renewable fuels on other 

factors. . . .’’ 37 Accordingly, we have 

considered several other factors, 

including the intertwined nature of 

compliance with the 2020–2022 

standards, the size of the carryover RIN 

bank,38 how the entirely retroactive 

nature of the 2020 and 2021 standards 

as compared to the partially prospective 

nature of the 2022 annual and 

supplemental standards affects the 

feasibility of compliance,39 the supply 

of qualifying renewable fuels to U.S. 


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40The fourth factor (supply of renewable fuels) is 

based on our analysis of this same statutory factor 

(the expected annual rate of future commercial 

production of renewable fuel), as well as of 

downstream constraints on biofuel use, including 

the statutory factors relating to infrastructure and 

costs. CAA section 211(o)(2)(B)(ii)(III)–(V). 

41Soil quality is closely tied to water quality and 

is also relevant to the impact of renewable fuels on 

the environment more generally. See CAA section 

211(o)(2)(B)(ii)(I). 

42Environmental justice involves consideration 

of the impact of renewable fuels on several factors, 

including environmental and cost factors. See CAA 

section 211(o)(2)(B)(ii)(I), (V). This and the other 

non-enumerated factors are also relevant under the 

statutory factor ‘‘the impact of the use of renewable 

fuels on other factors. . . .’’ CAA section 

211(o)(2)(B)(ii)(VI). 

43See J.E.M. Ag Supply, Inc. v. Pioneer Hi-Bred 

Intern., Inc., 534 U.S. 124, 143–44 (2001) (holding 

that when two statutes are capable of coexistence 

and there is not clearly expressed legislative intent 

to the contrary, each should be regarded as 

effective). 

44Under the cellulosic waiver authority, when 

EPA reduces the volume of cellulosic biofuel, EPA 

may reduce the advanced biofuel and total 

renewable fuel volumes by the same or a lesser 

amount. 

45This is also consistent with our authority to 

apply equal reductions to the volumes of advanced 

biofuel and total renewable fuel under the 

cellulosic waiver. CAA(o)(7)(D)(i), see also 85 FR 

7016, 7047–7048 (February 6, 2020). 

46 86 FR 5182 (January 19, 2021). Comments on 

these requests are available in the docket for that 

notice, EPA–HQ–OAR–2020–0322, and the docket 

for this action. 

consumers,40 soil quality,41 and 

environmental justice.42

c. Impact on Other Statutory Authorities 

To Waive Volumes 

Our use of the reset authority in this 

action does not preclude our legal 

authority to waive volumes under the 

other waiver authorities. Nothing in the 

CAA suggests that once the volumes are 

reset they cannot be modified further, or 

that the reset authority cannot be used 

in conjunction with other waiver 

authorities such as the cellulosic waiver 

authority.43

d. Use of the Reset Authority in This 

Action 

For cellulosic biofuel for 2020, 2021 

and 2022, we believe that the 

appropriate volume after analyzing the 

various factors is the projected volume 

available in each of those years. For 

each year, this volume is equivalent to 

the resulting volume after exercise of 

the cellulosic waiver authority. Thus, 

these volumes are justified under both 

the cellulosic waiver authority and the 

reset authority. 

For advanced biofuel and total 

renewable fuel, we are establishing 

volumes equal to the actual volumes of 

such fuels available in 2020 and 2021 

under the reset authority alone. We 

recognize that the resulting volumes are 

lower than the minimum volumes that 

could result from exercising the 

cellulosic waiver authority; however, as 

we explain further in Section III, we do 

not believe that the lowest volumes 

permissible under the cellulosic waiver 

authority are appropriate based upon 

our consideration of the reset factors.44

In other words, larger reductions in 

advanced biofuel and total renewable 

fuel are warranted under the reset 

authority than could be provided 

utilizing the maximum reductions 

permissible under the cellulosic waiver 

authority alone. For 2022, we are 

utilizing both the reset authority and the 

cellulosic waiver authority to reduce the 

advanced biofuel and total renewable 

fuel standards by the same amount as 

the reduction in cellulosic biofuel. This 

results in implied non-cellulosic 

advanced biofuel and conventional 

renewable fuel volumes equal to the 

implied statutory volumes. This also 

represents the maximum permitted 

reduction under the cellulosic waiver 

authority.45

In Section III and throughout the RIA, 

we set forth our policy and technical 

rationale for the 2020, 2021, and 2022 

volumes for cellulosic biofuel, advanced 

biofuel, and total renewable fuel. Our 

analysis is framed in terms of the 

statutory factors that the reset authority 

requires us to consider, along with the 

considerations for retroactive and late 

rules identified by the D.C. Circuit. 

Since this analysis subsumes our policy 

and technical rationale for exercising 

the cellulosic waiver authority as well, 

we are not providing a separate analysis 

for the application of the cellulosic 

waiver authority. 

3. General Waiver Authority 

Section 211(o)(7)(A) of the CAA 

provides that EPA, in consultation with 

the Secretary of Agriculture and the 

Secretary of Energy, may waive the 

applicable volumes specified in the Act 

in whole or in part based on a petition 

by one or more States, by any person 

subject to the requirements of the Act, 

or by the EPA Administrator by his own 

initiative. Such a waiver must be based 

on a determination by the 

Administrator, after public notice and 

opportunity for comment that (1) 

implementation of the requirement 

would severely harm the economy or 

the environment of a State, a region, or 

the United States; or (2) there is an 

inadequate domestic supply. 

EPA received several requests for use 

of the general waiver authority for the 

2020 standards from stakeholders 

concerned about the impacts on the 

fuels markets resulting from the COVID– 

19 pandemic. These included requests 

from the governors of multiple states 

alleging that the criteria for the general 

waiver authority were satisfied and that 

lowering the required volumes for 2020 

was appropriate. In January 2021, we 

published a notice in the Federal 

Register seeking comment on these 

requests.46 We did not propose to and 

are not modifying the 2020 volumes 

utilizing the general waiver authority in 

this action. In lieu of doing so, we are 

revising the 2020 volumes under both 

the cellulosic waiver authority and the 

reset authority to the volumes actually 

used in that year. This rule thus 

addresses many of the concerns raised 

in the general waiver petitions, 

including the shortfall in RIN generation 

in 2020, uncertainty regarding SREs 

following the Tenth Circuit’s decision in 

Renewable Fuels Association (RFA) v. 

EPA, and the hurdles those may present 

to obligated parties’ compliance. 

To the extent that EPA’s independent 

action to reduce statutory volumes 

under both the cellulosic waiver 

authority and the reset authority 

satisfies the petition requests, those 

requests are now practically moot. To 

the extent any petition seeks differing 

reductions in applicable volumes than 

are set forth in this final rule, we believe 

the reductions we are finalizing are 

appropriate, and we are denying those 

requests. As discussed in Section III, the 

modified 2020 volumes reflect the 

volumes actually used in the U.S. in 

2020. Thus, compliance with these 

modified volumes will not result in 

severe economic harm, and granting the 

general waiver petitions is not needed to 

avert such harm. As such, EPA is 

denying all pending requests to lower 

the 2020 volumes based on severe 

economic harm. Specifically, we are 

denying the petitions to waive the 2020 

standards on the basis of severe 

economic harm from the following 

states: Louisiana, Oklahoma, Texas, 

Utah, Wyoming, Pennsylvania, and 

Montana. We are also denying petitions 

received from small refineries 

suggesting EPA waive volumes for 2019 

and 2020 utilizing the general waiver 

authority under a finding of severe 

economic harm. These requests sought 

reductions in individual obligations 

utilizing the general waiver authority 

under a finding of severe economic 

harm. For the reasons further discussed 

in Section 13 of the RTC document, we 

do not think that the statute should be 

read to allow for individual reductions 

in renewable volume obligations (RVOs) 

under the general waiver authority, nor 

do we believe that the petitioners have 


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47The applicable volume for BBD for 2021 was 

established in the 2020 annual rulemaking. 85 FR 

7016 (February 6, 2020). 48 85 FR 7016, 7047–7048 (February 6, 2020). 49Americans for Clean Energy v. EPA, 864 F.3d 

691, 720 (D.C. Cir. 2017) (ACE); Monroe Energy, LLC 

v. EPA, 750 F.3d 909 (D.C. Cir. 2014); Nat’l 

Petrochemical & Refiners Ass’n v. EPA, 630 F.3d 

145, 154–58 (D.C. Cir. 2010) (NPRA). 50NPRA, at 154–58 (D.C. Cir. 2010). 51ACE, 864 F.3d 691, 718 (D.C. Cir. 2017). 

52 Id. at 721. 

53This was the deadline for resetting total 

renewable fuel volumes. The deadlines for resetting 

advanced biofuel and cellulosic biofuel volumes 

passed earlier. 

54These are also the deadlines for exercising the 

cellulosic waiver authority for those years, which 

we have also missed. 

55We also intend to propose a supplemental 

standard for 2023 in a subsequent action. 

56See Motor Vehicle Manufacturers Ass’n v. State 

Farm Mutual Automobile Insurance Co., 463 U.S. 

29, 42, (1983) (‘‘an agency must be given ample 

latitude to adapt their rules and policies to the 

demands of changing circumstances); Federal 

Communications Commission (FCC) v. Fox 

Television Stations, Inc., 556 U.S. 502, 515 (2009) 

(recognizing that the Administrative Procedure Act 

‘‘makes no distinction . . . between initial agency 

action and subsequent agency action undoing or 

revising that action’’); Perez v. Mortg. Bankers 

Ass’n, 575 U.S. 92, 101 (2015) (agencies may amend 

rules by using ‘‘the same procedures when they 

amend . . . a rule as they used to issue the rule in 

the first instance’’); 5 U.S.C. 553(e) (‘‘Each agency 

shall give an interested person the right to petition 

for the issuance, amendment, or repeal of a rule.’’). 

57See, e.g., CAA section 211(o)(2)(B)(i) (statutory 

volume table prospectively determined by 

Congress), (o)(3)(B) (requirement for EPA to 

prospectively establish renewable fuel standards for 

the following year by Nov. 30 of the prior year). 

58CAA section 211(o)(7). 

59See 79 FR 25025 (May 2, 2014) (direct final rule 

adjusting the 2013 cellulosic biofuel applicable 

volume and percentage standard, after the 

compliance year was complete), 80 FR 77420 

(December 14, 2015) (rescinding the 2011 cellulosic 

biofuel standard for utilizing methodology 

invalidated by the court); Denial of AFPM Petition 

for Waiver of 2016 Cellulosic Biofuel Standard, 

available at: https://www.epa.gov/sites/default/files/ 

2017-01/documents/afpm-rfs-petition-decision-ltr2017-01-17.pdf; 77 FR 70752 (November 27, 2012) 

(notice of denial of requests for a waiver of the 

renewable fuel standards for 2012–2013). 

demonstrated severe economic harm as 

required by the statute. 

B. Authority To Establish BBD Volumes 

EPA has established the BBD 

requirement under CAA section 

211(o)(2)(B)(ii) since 2013 because the 

statute only provided BBD volumes 

through 2012. Thus, EPA is establishing 

an applicable volume for BBD for 2022 

under this authority, which we term the 

‘‘set’’ authority.47 As discussed in prior 

annual rulemakings, EPA is to 

determine the applicable volume of 

BBD, in coordination with the Secretary 

of Energy and the Secretary of 

Agriculture, based on an analysis of the 

same statutory factors enumerated above 

for ‘‘resetting’’ volumes for the other 

fuel categories.48 The statute also 

requires that the BBD volume be set at 

or greater than the 1.0 billion gallon 

volume requirement for 2012, but does 

not provide any other numerical criteria 

that EPA is to consider. We are 

establishing the BBD volume for 2022 at 

2.76 billion gallons as proposed. Our 

policy and technical rationale for this 

volume is also set forth in Section III 

and Chapter 10 of the RIA. 

C. Considerations for Retroactive and 

Late Rulemaking 

In this rulemaking, we proposed and 

are finalizing several late or retroactive 

standards. EPA has in the past also 

missed statutory deadlines for 

promulgating RFS standards. In those 

cases, the D.C. Circuit found that EPA 

retains authority to promulgate annual 

standards retroactively, so long as EPA 

exercises this authority reasonably.49 In 

doing so, EPA must balance the burden 

on obligated parties of a retroactive 

standard with the broader goal of the 

RFS program to increase renewable fuel 

use.50 Even if the rule does not operate 

retroactively, but is nonetheless 

promulgated after the statutory 

deadline, EPA must consider and 

mitigate the burdens on obligated 

parties associated with a delayed 

rulemaking.51 In upholding EPA’s 

retroactive standards for 2014 and 2015 

in ACE, for example, the court 

considered several specific factors, 

including the availability of RINs for 

compliance, the amount of lead time 

and adequate notice for obligated 

parties, and the availability of 

compliance flexibilities. Additionally, 

the court separately addressed 

rulemakings that were late (i.e., those 

issued after the statutory deadline) but 

were nonetheless not retroactive, 

emphasizing in that context the amount 

of lead time and adequate notice for 

obligated parties.52

In this rulemaking, we are exercising 

the reset authority after the statutory 

deadline of December 11, 2019 (i.e., one 

year after the promulgation of the 2019 

final rule, which triggered the reset 

obligation for total renewable fuel).53

We are also exercising our set authority 

for the 2022 BBD volume after the 

statutory deadline of October 31, 2020. 

We are also promulgating the 2020, 

2021, and 2022 standards after their 

statutory deadlines of November 30, 

2019, 2020, and 2021 respectively.54

The 2020 and 2021 standards are 

retroactive as they apply to gasoline and 

diesel fuel produced or imported in 

2020 and 2021. The 2022 standards, 

which apply to gasoline and diesel fuel 

produced or imported in 2022, are 

partially retroactive and partially 

prospective. We discuss in detail the 

considerations for late or retroactive 

rulemaking for each of these 

requirements further in Section III. 

In addition, in responding to the ACE 

remand of the 2016 annual rule, EPA is 

promulgating a supplemental standard 

for 2022.55 We are finalizing this 

supplemental standard after the 

statutory deadline for the 2016 

standards (November 30, 2015). As with 

the other 2022 standards, this standard 

will also be partially retroactive and 

partially prospective. We further discuss 

our response to the ACE remand in 

Section IV. 

D. Considerations in Revisiting an 

Established RFS Standard 

We are revising the previously 

finalized 2020 standards in this 

rulemaking as proposed and after 

considering the many comments 

received both for and against doing so. 

We generally have authority to 

reconsider and revise our rulemakings, 

so long as we use the same procedures 

to amend a rule as we used to 

promulgate it in the first instance and 

set forth good reasons for the 

reconsideration.56 Our authority to 

revise RFS annual rules specifically is 

further buttressed by the statutory 

structure, under which Congress created 

a prospective regulatory scheme,57 but 

expressly contemplated the possibility 

for adjustments based on unanticipated 

circumstances through waiver 

authorities.58 This understanding of our 

authority is also long-standing; we 

previously revised the 2011 and 2013 

annual rules and have also adjudicated 

on the merits numerous petitions to 

revise other annual rules.59 We believe 

our power to reconsider, as with our 

power to promulgate a rule in the first 

instance, remains extant even where the 

rule operates retroactively or is 

promulgated after the statutory 

deadline, so long as we reasonably 

consider and mitigate the burdens 

associated with a retroactive or delayed 

rulemaking as described above. 

Despite our legal authority to 

reconsider past RFS standards, we 

believe that we generally should not 

reconsider such standards. 

Reconsideration can impose costs on 

regulatory certainty and unduly disrupt 

market expectations created by 

previously promulgated standards. This 

may be particularly so where the effects 

of reconsideration are retroactive, and 

such retroactive rules must, as 

discussed above, consider and mitigate 

burdens on obligated parties. Moreover, 

in the 2020 final rule itself, we 

expressly stated that we did not intend, 


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60See Response to Comments at 173 (Docket Item 

No. EPA–HQ–OAR–2019–0136–2157). 61EPA also received two petitions from the 

American Fuel & Petrochemical Manufacturers 

(AFPM) and API in early 2020 seeking 

reconsideration of the 2020 annual rule under CAA 

section 307(d)(7)(B) in light of the RFA decision and 

its impact on EPA’s projections of SREs in 

calculating the percentage standards. These 

petitions are available in the docket. See AFPM, 

Petition for Administrative Reconsideration of 

Renewable Fuel Standard Program: Standards for 

2020 and Biomass-Based Diesel Volume for 2021 

and Other Changes, 85 FR 7,016 (Feb. 6, 2020) (Mar. 

24, 2020); API, Petition for Reconsideration of the 

RFS 2020 Rule, EPA–HQ–OAR–2019–0136 (April 6, 

2020). In the proposed rule, we did not determine 

whether these petitions met the standards for 

reconsideration under CAA section 307(d)(7)(B). 

Nonetheless, for the reasons described in this 

preamble, we believe it is appropriate to reconsider 

the 2020 standards, and we have provided the 

procedural process (i.e., a CAA section 307(d) 

rulemaking to reconsider the 2020 standards) 

requested in the petitions. 

62We recognize that we apply the modified 

definitions in calculating the percentage standards. 

However, as we explain further in Section V.B, even 

were we to use the prior definitions relating to SREs 

in the standard-setting formula, we would still 

project the same exempt volume of zero gallons. As 

a result, the application of the modified definitions 

does not affect and is severable from the percentage 

standards. 

63As we explained in Section II.D, some of the 

volumes we are establishing in this action are also 

independently justified under the cellulosic waiver 

authority, but the policy and technical analysis for 

our exercise of the cellulosic waiver is subsumed 

under our analysis of the reset factors. 

64Cellulosic biofuel corresponds directly to the 

statutory biofuel category. Cellulosic biofuel plus 

non-cellulosic advanced biofuel constitute the 

statutory advanced biofuel category. Finally, 

advanced biofuel plus conventional renewable fuel 

constitute the statutory total renewable fuel 

category. See CAA section 211(o)(2)(B)(i)(I)–(IV). 65From 2015 through 2022 the statutory target for 

cellulosic biofuel increases by 13.0 billion gallons, 

at that time, to revisit that rulemaking 

and subsequently adjust the 

standards.60

At the same time, reconsideration can 

also address the impacts of unexpected 

actions and market disruptions that 

occur after the standards have been set 

and that lead to high costs and 

uncertainty over future standards. In 

this action we are reconsidering and 

revising the 2020 standards in response 

to several unanticipated and exceptional 

events that have occurred since the 

promulgation of the 2020 standards and 

that have had direct and significant 

impacts on the fuels market and the 

ability of obligated parties to comply. 

We believe these events have created 

the unusual situation where retroactive 

reconsideration and revision of the 2020 

standards is warranted. We discuss 

these events and our rationale for 

revising the 2020 standards further in 

Section III.C.61

E. Severability 

The following portions of this 

rulemaking are mutually severable from 

each other, as numbered: (1) the 

volumes and percentage standards for 

2020, 2021, and 2022; (2) the 

reaffirmation of the modified definitions 

in the percentage standard formulas 

regarding the projection of exempt 

gasoline and diesel fuel volumes 

discussed in Section V.B; (3) the 

provisions for biointermediates 

discussed in Section VII; and (4) the 

regulatory amendments discussed in 

Section VIII. Each of the regulatory 

amendments in Section VIII is also 

severable from all the other regulatory 

amendments. If any of the above 

portions is set aside by a reviewing 

court, we intend the remainder of this 

action to remain effective. For instance, 

if a reviewing court sets aside the 

modified definitions in the percentage 

standard formula, we intend the 

remainder of the rule (including the 

2020–2022 volumes and percentage 

standards, biointermediates provisions, 

and other regulatory amendments) to 

remain effective.62

We also intend for the volumes and 

percentage standards for 2020–2022 to 

be severable from the 2022 

supplemental volume and percentage 

standard such that if a court were to set 

aside the 2022 supplemental volume 

and percentage standard, the volumes 

and percentage standards for 2020–2022 

would remain in place. Our authority 

and rationale for establishing the 2020– 

2022 volumes and standards is 

independent of those for establishing 

the supplemental volume and standard, 

and we do not believe that it would be 

appropriate to further delay 

implementation of the former if a court 

were to find defects in the latter. 

However, if the reverse were to occur, 

and a court were to set aside the 2020– 

2022 volumes and percentage standards, 

we would intend for the 2022 

supplemental standard to be set aside 

along with the 2020, 2021, and 2022 

volumes and percentage standards. This 

is because we do not find it appropriate 

for the 2022 supplemental standard to 

exist without the standard to which it is 

supplemental, i.e., the 2022 total 

renewable fuel standard. As a practical 

matter, we also expect obligated parties 

to comply with the supplemental 

standard in the same compliance 

demonstration as the rest of the 2022 

standards, as discussed further in 

Section IV.C. 

III. Volume Requirements 

In this rule we are establishing 2020, 

2021, and 2022 cellulosic biofuel, 

advanced biofuel, and total renewable 

fuel volumes under the reset 

authority.63 We are establishing the 

2022 BBD volume under our set 

authority. The volumes we are 

establishing in this rule are generally 

consistent with the proposed volumes, 

with relatively minor adjustments to 

reflect updated data since the time of 

the proposed rule. As required by both 

the reset and set authorities, we have 

analyzed the statutory factors under 

CAA section 211(o)(2)(B)(ii). We have 

also coordinated with the Secretary of 

Energy and the Secretary of Agriculture, 

including through the interagency 

review process, and their input is 

reflected in this final rule. 

In Section III.A, we summarize our 

analyses as they apply to each of three 

component categories of biofuel: 

cellulosic biofuel, non-cellulosic 

advanced biofuel, and conventional 

renewable fuel.64 In Section III.B we 

discuss the relationship between the 

volume requirements for all three years 

as part of our review of the 

implementation of the program. In 

Sections III.C through G, we describe 

the volumes for 2020, 2021, and 2022, 

along with our supporting assessment of 

the statutory factors. In Section III.H, we 

summarize the fuel costs and energy 

security benefits of the volumes. Our 

preamble discussion provides a highlevel, narrative summary of the statutory 

factors, focusing on the factors that we 

deem most appropriate. A more detailed 

discussion of all the statutory factors is 

set forth in the RIA. 

A. EPA’s Assessment of the Statutory 

Factors for Each Component Category of 

Biofuel 

The volumes for 2020, 2021, and 2022 

we are finalizing in this rule are based 

on our analyses of the statutory factors 

listed in CAA section 211(o)(2)(B)(ii). 

This section summarizes the results of 

our analyses. We received numerous 

comments on the supporting analyses 

presented in the Draft RIA of the 

proposed rule. The summaries 

presented here reflect these comments, 

where appropriate, as well as updated 

data since the time of the proposed rule. 

Further detail on our analyses of the 

statutory factors for each of the biofuel 

types can be found in the RIA. 

Additionally, a summary of the 

comments received on the analyses 

presented in the proposed rule can be 

found in the RTC document. 

1. Cellulosic Biofuel 

In EISA, Congress established 

escalating targets for cellulosic biofuel, 

reaching 16 billion gallons in 2022. 

After 2015, 84 percent of the growth in 

statutory volume of total renewable fuel 

was intended to come from cellulosic 

biofuel.65 This indicates that Congress 


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from 3.0 billion gallons to 16.0 billion gallons. 

During this same time period the statutory target for 

total renewable fuel increases by 15.5 billion 

gallons, from 20.5 billion gallons to 36.0 billion 

gallons. Thus, cellulosic biofuel was expected to 

account for 84 percent (13.0 billion gallons/15.5 

billion gallons) of the total renewable fuel increase. 

66See Chapters 5.1.2.2 and 9.4.3.2 of the RIA for 

a further discussion of the expected impact of RINs 

generated for CNG/LNG derived from biogas on the 

transportation fuel market. 

67One potential exception is corn kernel fiber. 

Corn kernel fiber is a component of distillers grains, 

which is currently sold as animal feed. Depending 

on the type of animal to which the distillers grain 

is fed, corn kernel fiber removed from the distillers 

grain through conversion to cellulosic biofuel may 

need to be replaced with additional feed. 

intended the RFS program to provide a 

significant incentive for cellulosic 

biofuels and that the focus for years 

after 2015 was to be on cellulosic. 

Consistent with this intent, our 

assessment of the statutory factors 

suggests that cellulosic biofuels have 

multiple benefits, including the 

potential for very low lifecycle GHG 

emissions that meet or exceed the 60 

percent GHG reduction threshold. 

Further, none of the feedstocks expected 

to be used to produce cellulosic biofuels 

through 2022 are specifically produced 

to be used as feedstocks for cellulosic 

biofuel production. 

Compressed natural gas and liquid 

natural gas (CNG/LNG) derived from 

biogas represents the vast majority of 

the cellulosic biofuel volume projected 

through 2022. It is generally produced 

from waste materials or residues (e.g., 

through biogas collection from landfills, 

municipal wastewater treatment facility 

digesters, agricultural digesters, and 

separated MSW digesters) and thus is 

not expected to affect the conversion of 

wetlands, ecosystems, and wildlife 

habitat, soil and water quality, the price 

and supply of agricultural commodities, 

or food prices. In some situations, such 

as at larger landfills, CNG/LNG derived 

from biogas may also be able to be 

produced at a price comparable to 

fossil-based natural gas. Despite this 

relatively low cost of production, the 

combination of the high cellulosic RIN 

price and the significant volume 

potential for CNG/LNG derived from 

biogas is expected to increase the price 

of gasoline and diesel by about $0.01 

per gallon.66

A small amount of liquid cellulosic 

biofuel was produced in 2020 and 2021 

and efforts continue to develop and 

commercialize various technologies. 

Many of their feedstocks (including 

agricultural residues and separated 

MSW) have limited uses in other 

markets.67 Because of this, using these 

feedstocks to produce liquid cellulosic 

biofuel is not expected to have 

significant adverse impacts related to 

several of the statutory factors, 

including the conversion of wetlands, 

ecosystems and wildlife habitat, soil 

and water quality, the price and supply 

of agricultural commodities, and food 

prices. 

However, the cost of producing liquid 

cellulosic biofuel is high. These high 

costs are generally the result of low 

yields (e.g., gallons of fuel per ton of 

feedstocks) and the high capital costs of 

liquid cellulosic biofuel production 

facilities. In the near term (through 

2022), the production of these fuels is 

likely to be dependent on relatively high 

cellulosic RIN prices (in addition to 

incentives from state-level programs 

such as California’s low carbon fuel 

standard (LCFS) program) to be 

economically competitive with 

petroleum-based fuels. 

2. Non-Cellulosic Advanced Biofuel 

The volume targets established by 

Congress also anticipated significant 

growth in advanced biofuel beyond 

what is needed to satisfy the cellulosic 

biofuel standard. The statutory target for 

advanced biofuel in 2022 (21 billion 

gallons) allows for up to 5 billion 

gallons of non-cellulosic advanced 

biofuel to be used towards the advanced 

biofuel volume target. In practice, the 

vast majority of non-cellulosic advanced 

biofuel in the RFS program has been 

BBD, with relatively small volumes of 

sugarcane ethanol and other advanced 

biofuels. Some of the statutory factors 

assessed by EPA suggest that the targets 

for non-cellulosic advanced biofuel 

established by Congress, or even higher 

volumes, are still appropriate. Notably, 

all advanced biofuels have the potential 

to provide significant GHG reductions 

as they are required to achieve at least 

50 percent GHG reductions relative to 

the petroleum fuels they displace. Some 

types of advanced biofuels, such as 

biodiesel and renewable diesel 

produced from fats, oils, and greases, 

have been determined to provide even 

greater reductions than the 50 percent 

threshold. 

Because the vast majority of noncellulosic advanced biofuels supplied to 

the U.S. historically have been 

advanced biodiesel and renewable 

diesel, this summary focuses on the 

impacts of these fuels. Advanced 

biodiesel and renewable diesel together 

comprise 95 percent or more of the total 

supply of non-cellulosic advanced 

biofuel over the last several years and 

are expected to supply all of the 

increase in advanced biofuel through 

2022. High domestic production 

capacity and availability of imports 

indicate that volumes of non-cellulosic 

advanced biofuel in 2022 are likely to 

exceed the implied statutory targets. 

Similarly, the feedstocks used to make 

advanced biodiesel and renewable 

diesel (e.g., soy oil, canola oil, and corn 

oil, as well as waste oils such as white 

grease, yellow grease, trap grease, 

poultry fat, and tallow) currently exist 

in sufficient quantities globally to 

supply these increasing volumes. These 

feedstocks have many existing uses, 

such that significant increases in 

volumes used for biofuels may 

potentially require replacement in other 

markets with suitable substitute 

feedstocks such as imported vegetable 

oils (including palm oil). However, 

there is also potential for some ongoing 

growth in the production of these 

feedstocks. As such, higher volume 

requirements for non-cellulosic 

advanced biofuel may provide benefits 

to the rural economy, such as increased 

domestic employment in the biofuels 

industry and increased income for 

biofuel feedstock producers. 

However, some of the factors assessed 

would support lower volumes of 

advanced biofuel. For instance, as 

described in Chapter 9 of the RIA, the 

cost of biodiesel and renewable diesel is 

significantly higher than petroleumbased diesel fuel and is expected to 

remain so through 2022. These high 

costs are expected to result in higher 

fuel prices, especially for consumers of 

finished fuels with relatively low 

renewable content (e.g., most diesel 

fuel). This in turn is expected to 

increase the cost to transport goods. 

Even if biodiesel and renewable diesel 

blends are priced similarly to petroleum 

diesel fuel at the pump after accounting 

for the relevant Federal and state 

incentives (including the RIN value), 

society as a whole nevertheless bears 

their full costs. Moreover, the fact that 

sufficient feedstocks exist to produce 

increasing quantities of advanced 

biodiesel and renewable diesel does not 

mean that those feedstocks are readily 

available or could be diverted to biofuel 

production without adverse 

consequences. As described in Chapter 

5 of the RIA, we expect only limited 

quantities of fats, oils, and greases and 

distillers corn oil to be available for 

increased biodiesel and renewable 

diesel production in future years. We 

expect that the primary feedstock 

available to support significant 

increases in advanced biodiesel and 

renewable diesel through 2022 will be 

soybean oil and other vegetable oils 

whose primary markets are for food. 

Increased demand for soybean oil could 

potentially lead to diversion of 

feedstocks from food and other current 

uses in addition to further incentivizing 


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39612 Federal Register / Vol. 87, No. 126 / Friday, July 1, 2022 / Rules and Regulations 

68EPA has developed an ‘‘Efficient Producer 

Petition Process,’’ which encourages adoption of 

efficiency improvements in new ethanol facilities 

by expediting petition review and approval. 

Existing EPA estimates for corn starch ethanol 

produced in 2022 using a dry mill process and 

natural gas fired process heat range from a 42 

percent to a 17 percent reduction over baseline 

gasoline, depending on the technologies used at the 

production facility. See the RIA for the Renewable 

Fuel Standard Program (RFS2): Final Rule. 

69See CAA section 211(o)(2)(A)(i). According to 

data from 2021, approximately 80% of all corn 

ethanol generated RINs using a grandfathered 

pathway while approximately 20% of all corn 

ethanol generated RINs using a pathway required to 

meet or exceed the 20% GHG reduction threshold. 

70Energy Information Administration (EIA) 

Monthly Energy Review. 

71Use of grandfathered biodiesel and renewable 

diesel reached a maximum of 157 million gallons 

in 2016. Since 2018, use of grandfathered biodiesel 

and renewable diesel has been very small (less than 

1 million gallons each year). See Chapter 1.6 of the 

RIA. 

72Since EPA granted E15 a CAA 211(f)(4) waiver 

in 2011 allowing E15 sales, those sales have 

increased slowly but steadily, as described further 

in Chapters 1 and 5.5 of the RIA. 

73EIA’s Monthly Energy Review (MER) for 

February 2022 estimates gasoline consumption of 

123.7 billion gallons in 2020 and 135.0 billion 

gallons in 2021, while the January 2022 Short-Term 

Energy Outlook (STEO) projects 138.9 billion 

gallons in 2022. The MER reported gasoline 

consumption in 2017–2019 at 143.0–142.7 billion 

gallons annually. 

74See Chapter 2 of the RIA for our projections of 

biofuels that will be supplied to satisfy the volume 

requirements in each year. 

increased soybean crushing and soybean 

production and increased imports of 

soybean oil. It could also potentially 

lead to increased cultivation of other 

vegetable oils such as canola or palm oil 

as a substitute for diverted soybean oil. 

Increased vegetable oil production in 

the U.S. and abroad in turn could result 

in greater conversion of wetlands, 

adverse impacts on ecosystems and 

wildlife habitat, adverse impacts on 

water quality and supply, and increased 

prices for agricultural commodities and 

food prices. 

3. Conventional Renewable Fuel 

Some of the statutory factors assessed 

for conventional renewable fuel favor 

the implied statutory volume (15 billion 

gallons) or higher volumes, while other 

factors favor lower volumes. While 

conventional renewable fuels are 

generally required by EISA to achieve 

20 percent GHG reductions relative to 

the petroleum fuels they displace, some 

conventional renewable fuel facilities 

exceed this threshold. Notably, EPA has 

developed an expedited petition process 

for ethanol production facilities using 

more efficient process technologies.68

The statute, however, also contains 

grandfathering provisions exempting 

any facility that had begun construction 

on or before December 19, 2007, from 

this requirement, so not all producers of 

conventional renewable fuels meet or 

are required to meet the 20 percent GHG 

reduction threshold.69

The vast majority of conventional 

renewable fuel that has been supplied to 

the U.S. is corn ethanol. Domestic 

production capacity for corn ethanol 

exceeds 16 billion gallons. Production 

of corn ethanol in the U.S. reached its 

historical peak of 16.1 billion gallons in 

2018.70 Higher volumes of conventional 

renewable fuel production could result 

in more domestic jobs in the biofuels 

industry. At the same time, there are 

also significant volumes of palm 

biodiesel and renewable diesel that are 

produced internationally that could 

qualify as conventional renewable fuel 

under the grandfathering provisions of 

the RFS program. In the past, small 

volumes of grandfathered biodiesel and 

renewable diesel have been supplied to 

the U.S. and contributed to satisfying 

the RFS requirements.71

Some of the analyses we conducted 

support lower volumes of conventional 

renewable fuel. As with soy biodiesel, 

increased corn production in the U.S. 

could result in greater conversion of 

wetlands, adverse impacts on 

ecosystems and wildlife habitat, adverse 

impacts on water quality and supply, 

and increased prices for agricultural 

commodities and food prices. 

Furthermore, there are constraints on 

ethanol use. The market has not 

achieved 15 billion gallons of actual use 

of conventional renewable fuel in any 

year, including those in which the RFS 

standards included an implied 

conventional renewable fuel volume of 

15 billion gallons. This was due to 

various factors, including limitations on 

ethanol use above the E10 blendwall, 

strong export markets for domesticallyproduced ethanol, the effect of SREs in 

depressing the effective RFS standards, 

and use of advanced biodiesel and 

renewable diesel, buoyed by its tax 

subsidy and other incentive programs 

such as California’s LCFS program to 

meet the implied conventional portion 

of the total renewable fuel requirement. 

While the use of ethanol as E10 has 

been, and continues to be, economical 

for refiners and blenders, the use of E10 

alone has not been sufficient to achieve 

15 billion gallons of ethanol use due to 

declining gasoline demand. The RFS 

program, along with the many other 

federal, state, local, and private 

incentive programs (e.g., the Department 

of Agriculture’s (USDA’s) Biofuels 

Infrastructure Partnership Program and 

Higher Blends Infrastructure Incentive 

Program), have had limited success in 

inducing the use of higher-level ethanol 

blends. As a result, growth in the 

nationwide average gasoline ethanol 

concentration has virtually stagnated as 

the market reached the E10 blendwall. 

While the use of higher-level ethanol 

blends has increased since 2011, that 

growth has been small compared to 

prior growth in the use of E10 and nonethanol biofuels.72 We do not anticipate 

that use of higher-level ethanol blends 

through 2022 will increase rapidly 

enough to result in significantly greater 

volumes of ethanol consumption in the 

U.S., even with the incentives created 

by the RFS program and other incentive 

programs. Excess ethanol production 

has generally been directed to exports in 

recent years rather than selling greater 

volumes of E15 or E85 domestically. We 

expect these trends in exports to 

continue given international demand for 

ethanol. 

Total demand for gasoline was lower 

in 2020 and 2021 and is expected to 

remain lower in 2022 relative to the 

volume of gasoline consumed in 2017– 

2019 according to data collected by EIA, 

which will limit the volume of ethanol 

used as E10.73 Most notably, the 

COVID–19 pandemic caused a 

significant fall in gasoline demand and 

sales of E10 starting in 2020. We expect, 

therefore, that maintaining the implied 

15 billion gallon statutory volume target 

for conventional renewable fuel going 

forward would require that volumes of 

biodiesel and renewable diesel (either 

conventional or advanced)—which are 

the least costly alternative biofuels to 

corn ethanol blended at concentrations 

greater than E10—increase to 

compensate for the limitations on corn 

ethanol use.74

Such expected increases in biodiesel 

and/or renewable diesel are associated 

with potentially significant adverse 

impacts. For instance, we project that 

much of this biodiesel and renewable 

diesel would be imported, limiting the 

potential positive impacts on the 

domestic rural economy. Further, these 

fuels could be sourced from 

grandfathered facilities that are not 

required by EPA’s regulations to achieve 

any GHG reductions relative to 

petroleum fuels. If imported biodiesel 

and renewable diesel were to increase, 

we would expect either an increase in 

the use of petroleum fuels from 

countries that previously used these 

fuels, or, alternatively, an expansion of 

palm oil production to produce 

biodiesel and renewable diesel, likely 

resulting in additional foreign land 

being converted to cropland for the 

production of palm oil. Were such 

international land-use change to occur, 

there would very likely be significant 


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Federal Register / Vol. 87, No. 126 / Friday, July 1, 2022 / Rules and Regulations 39613 

75CAA section 211(o)(5) requires that EPA 

establish a credit program as part of its RFS 

regulations, and that the credits be valid for 

obligated parties to show compliance for 12 months 

as of the date of generation. EPA implemented this 

requirement through the use of RINs, which are 

generated for the production of qualifying 

renewable fuels. Obligated parties can comply by 

blending renewable fuels themselves, or by 

purchasing the RINs that represent the renewable 

fuels from other parties that perform the blending. 

There are different ‘‘D’’ codes representing the 

different RFS standards that the various renewable 

fuels can be used to comply with. (e.g., D3 

represents cellulosic biofuel that can be used to 

comply with the cellulosic biofuel standard.) RINs 

can be used to demonstrate compliance for the year 

in which they are generated or the subsequent 

compliance year. Obligated parties can obtain more 

RINs than they need in a given compliance year, 

allowing them to ‘‘carry over’’ these excess RINs for 

use in the subsequent compliance year, although 

our regulations limit the use of these carryover RINs 

to 20 percent of the obligated party’s RVO. For the 

bank of carryover RINs to be preserved from one 

year to the next, individual carryover RINs are used 

for compliance before they expire and are 

essentially replaced with newer vintage RINs that 

are then held for use in the next year. For example, 

vintage 2020 carryover RINs must be used for 

compliance in 2021, or they will expire. However, 

vintage 2021 RINs can then be ‘‘banked’’ for use in 

2022. 

76 40 CFR 80.1427(a)(5). 

77 40 CFR 80.1427(b). 

78These discretionary waiver authorities include 

the reset and set authorities, CAA section 

211(o)(7)(F) and 211(o)(2)(B)(ii) (both of which 

direct EPA to establish RFS volumes based upon a 

‘‘review of the implementation of the program’’), 

discretionary portion of the cellulosic waiver 

authority, CAA section 211(o)(7)(D)(i) (‘‘the 

Administrator may also reduce the applicable 

volume of renewable fuel and advanced biofuels 

requirement’’), the general waiver authority, CAA 

section 211(o)(7)(A) (‘‘The Administrator . . . may 

waive the requirements’’), and the BBD waiver 

authority with regard to the extent of the reduction 

in the BBD volume, CAA section 211(o)(7)(E)(ii) 

(‘‘the Administrator . . . shall issue an order to 

reduce . . . the quantity of biomass-based diesel 

. . . by an appropriate quantity’’). 

79 Monroe Energy, 750 F.3d 909; ACE, 864 F.3d 

at 713. 

80See, e.g., 72 FR 23904 (May 1, 2007). 

81See 80 FR 77482–87 (December 14, 2015), 81 

FR 89754–55 (December 12, 2016), 82 FR 58493– 

95 (December 12, 2017), 83 FR 63708–10 (December 

11, 2018), 85 FR 7016 (February 6, 2020). 

adverse impacts on the environment, 

which may include impacts on air 

wetlands, ecosystems and wildlife 

habitats, air quality, water quality, water 

supply, and GHG emissions. 

B. Interactions Between the RFS Annual 

Volumes 

In resetting the volumes, EPA must 

review the implementation of the 

program as required by CAA section 

211(o)(2)(B)(ii). In conducting this 

review, we have completed a detailed 

assessment of the RFS program, as well 

as renewable fuel production and use 

more generally, since the beginning of 

the RFS program. This review is set 

forth at length in Chapter 1 of the RIA 

and in the RTC document. In this 

section and elsewhere in the preamble, 

we focus on specific aspects of our 

review as we deem appropriate. 

In our review, we have carefully 

considered the carryover RIN bank 75

and carryforward deficits, which are 

two compliance mechanisms that have 

been historically important to the 

implementation of the RFS program and 

that we expect to continue to play a key 

role. Specifically, the RFS regulations 

contain provisions that allow an 

obligated party to satisfy their RFS 

obligations for a given year by using up 

to 20 percent of RINs generated in the 

previous year.76 Similarly, the RFS 

regulations also allow an obligated party 

to carry forward a compliance deficit 

from one year to the next, provided the 

party meets their full RFS obligations in 

the following year.77 These provisions 

operate such that any excess RINs 

generated in one year, or any RIN 

deficits, can impact the market for RINs 

and renewable fuels in the next year. As 

such, compliance with the RFS 

standards for one year is inherently 

intertwined with compliance for the 

prior year. Section III.B.1 below 

discusses the projected volume of 

carryover RINs (net of carryforward 

deficits) that will be available for use 

towards compliance with the 2020, 

2021, and 2022 standards. We also 

evaluate whether we should set the 

2020, 2021, and 2022 volumes at levels 

that would intentionally reduce the size 

of the carryover RIN bank, and we find 

that this would not be appropriate. 

Section III.B.2 then addresses some 

special considerations regarding 

cellulosic carryover RINs, and we also 

conclude that it would not be 

appropriate to intentionally draw down 

the bank of cellulosic carryover RINs by 

including them in the cellulosic biofuel 

volume requirement. 

In reviewing the implementation of 

the program, we also recognize the 

difference between the ability of 

retroactive versus prospective volume 

requirements to affect renewable fuel 

use. As we explained in Section II, the 

2020 and 2021 standards will be 

entirely retrospective, while the 2022 

standards will apply prospectively for 

the remainder of 2022. In Section III.B.3 

below, we explain that the retroactive 

2020 and 2021 standards will not affect 

renewable fuel use in 2020 and 2021, 

respectively, but we do expect the 

somewhat prospective 2022 standards to 

significantly affect renewable fuel use in 

2022. Given this dynamic, we believe 

that higher, market-forcing renewable 

fuel volumes should occur in 2022 as 

opposed to 2020 or 2021. 

1. Treatment of Carryover RINs 

Consistent with our approach in 

recent annual rules and the proposed 

rule, we have considered the availability 

and role of carryover RINs in setting the 

volume requirements for 2020, 2021, 

and 2022. In general, we have authority 

to consider the size of the carryover RIN 

bank in deciding whether and to what 

extent to exercise any of our 

discretionary waiver authorities.78

EPA’s approach to the consideration of 

carryover RINs in exercising our 

cellulosic waiver authority was affirmed 

in Monroe Energy and ACE.79

As noted in past RFS annual rules, 

carryover RINs are a foundational 

element of the design and 

implementation of the RFS program.80

A bank of carryover RINs is extremely 

important in providing a liquid and 

well-functioning RIN market upon 

which success of the entire program 

depends, and in providing obligated 

parties compliance flexibility in the face 

of substantial uncertainties in the 

transportation fuel marketplace.81

Carryover RINs enable parties ‘‘long’’ on 

RINs to trade them to those ‘‘short’’ on 

RINs instead of forcing all obligated 

parties to comply through physical 

blending. Carryover RINs also provide 

flexibility and reduce spikes in 

compliance costs in the face of a variety 

of unforeseeable circumstances— 

including weather-related damage to 

renewable fuel feedstocks and other 

circumstances potentially affecting the 

production and distribution of 

renewable fuel—that could limit the 

availability of RINs. 

Just as the economy as a whole is able 

to function efficiently when individuals 

and businesses prudently plan for 

unforeseen events by maintaining 

inventories and reserve money 

accounts, we believe that the RFS 

program is able to function when 

sufficient carryover RINs are held in 

reserve for potential use by the RIN 

holders themselves, or for possible sale 

to others that may not have established 

their own carryover RIN reserves. Were 

there to be too few RINs in reserve, then 

even minor disruptions causing 

shortfalls in renewable fuel production 

or distribution or higher than expected 

transportation fuel demand (requiring 

greater volumes of renewable fuel to 

comply with the percentage standards 

that apply to all volumes of 

transportation fuel, including the 

unexpected volumes) could result in 

deficits and/or noncompliance by 

parties without RIN reserves. Moreover, 

because carryover RINs are individually 

and unequally held by market 

participants, a small carryover RIN bank 

may negatively impact the RIN market, 


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39614 Federal Register / Vol. 87, No. 126 / Friday, July 1, 2022 / Rules and Regulations 

82EPA extended the 2019 compliance deadline 

for small refineries to the first quarterly reporting 

deadline after the effective date of the 2021 

standards (i.e., this action). See 87 FR 5696 

(February 2, 2022). 

83 79 FR 49793–95 (August 15, 2013). 

84The calculations performed to estimate the size 

of the carryover RIN bank can be found in the 

memorandum, ‘‘Carryover RIN Bank Calculations 

for 2020–2022 Final Rule,’’ available in the docket 

for this action. 

85 In establishing the 2019 standards, we 

projected that 180.4 billion gallons of gasoline and 

diesel fuel would be used in 2019. However, based 

on 2019 RFS compliance data, 185.8 billion gallons 

was actually used. See Table 1 at https://

www.epa.gov/fuels-registration-reporting-andcompliance-help/annual-compliance-dataobligated-parties-and. This resulted in an increase 

in the renewable fuel volumes required by the 2019 

percentage standards compared to the volumes the 

standards were based on. 

86While renewable fuel use in 2019 was higher 

than in 2018, it was only marginally so and failed 

to keep up with the increase in the renewable fuel 

standards and the larger-than-expected increase in 

gasoline and diesel fuel use. 

87EPA issued a large number of SREs in recent 

years, leading to significant increase in the size of 

the carryover RIN bank. However, EPA recently 

denied all SRE petitions for 2019, resulting in these 

small refineries—most of which had been exempt 

in recent years—needing to acquire RINs to 

demonstrate compliance or carryforward a deficit. 

even when the market overall could 

satisfy the standards. In such a case, 

market disruptions could force the need 

for a retroactive waiver of the standards, 

undermining the market certainty so 

critical to the RFS program. For all of 

these reasons, the collective carryover 

RIN bank provides a necessary 

programmatic buffer that helps facilitate 

compliance by individual obligated 

parties, provides for smooth overall 

functioning of the program to the benefit 

of all market participants, and is 

consistent with the statutory provision 

allowing for the generation and use of 

credits. We anticipate that the carryover 

RIN bank will serve this very purpose 

for the still upcoming compliance with 

the 2019 standards for small refineries, 

when actual biofuel use in that year is 

expected to have fallen considerably 

short of the RFS standards.82

EPA can also rely on the availability 

of carryover RINs to support marketforcing volumes that may not be able to 

be met with renewable fuel production 

and use in that year, and in the context 

of the 2013 RFS rulemaking we noted 

that an abundance of carryover RINs 

available in that year, together with 

possible increases in renewable fuel 

production and import, justified 

maintaining the advanced and total 

renewable fuel volume requirements for 

that year at the levels specified in the 

statute.83

a. Carryover RIN Bank Size 

We project a significant drawdown in 

the number of carryover RINs as a result 

of compliance with the 2019 standards. 

After compliance with the 2019 

standards, we project that there will be 

approximately 1.83 billion total 

carryover RINs available, a decrease of 

1.65 billion RINs from the previous 

estimate of 3.48 billion total carryover 

RINs in the 2020 final rule.84 Since we 

are setting both the 2020 and 2021 

volume requirements at the actual 

volume of renewable fuel consumed in 

those years, we project that 1.83 billion 

total carryover RINs will be available for 

compliance with the 2022 standards 

(including the 2022 supplemental 

standard) as well. 

However, there remains uncertainty 

surrounding the ultimate number of 

carryover RINs that will be available for 

compliance with the 2020, 2021, and 

2022 standards (including the 2022 

supplemental standard) for several 

reasons, including the fact that 

compliance with the 2019 standards has 

not yet occurred for all parties. 

Furthermore, we note that there have 

been enforcement actions in past years 

that have resulted in the retirement of 

carryover RINs to make up for the 

generation and use of invalid RINs and/ 

or the failure to retire RINs for exported 

renewable fuel. To the extent that there 

are enforcement actions in the future, 

they could have similar results and 

require that obligated parties or 

renewable fuel exporters settle past 

enforcement-related obligations in 

addition to complying with the annual 

standards. In light of these 

uncertainties, the net result could be a 

total carryover RIN bank larger or 

smaller than 1.83 billion RINs. 

b. EPA’s Decision Regarding the 

Treatment of Carryover RINs 

We evaluated the volume of carryover 

RINs projected to be available and 

considered whether we should 

intentionally draw down the carryover 

RIN bank in setting the 2020, 2021, and 

2022 volume requirements (including 

the 2022 supplemental volume). In the 

proposed rule we stated that we did not 

believe that it would be appropriate to 

intentionally draw down the carryover 

RIN bank, and we received many 

comments on this proposed decision. 

Commenters supporting EPA’s proposed 

approach—generally obligated parties— 

agreed with EPA’s statements that 

maintaining the carryover RIN bank was 

important to provide liquidity and 

maintain a functioning RIN market. 

Many of these commenters noted that 

compliance with the 2019 standards had 

already resulted in the significant 

drawdown of the carryover RIN bank 

and fewer carryover RINs were available 

for use in 2020 than in previous years. 

Some of these commenters also stated 

that revising the 2020 volumes to 

maintain the existing bank of carryover 

RINs was insufficient, and that EPA 

should lower volumes further to 

increase the number of available 

carryover RINs. Other commenters— 

generally renewable fuel producers— 

opposed EPA’s proposal not to draw 

down the carryover RIN bank. These 

parties generally raised concerns that a 

large number of carryover RINs could 

reduce demand for renewable fuels. 

Some of these commenters similarly 

suggested that a large carryover RIN 

bank suppresses RIN prices, and that 

EPA had not demonstrated why a 

carryover RIN bank of 1.8 billion RINs 

(or even a lower volume) was 

insufficient to enable the RIN market to 

function. Our consideration of these 

comments is described briefly in this 

section, and in greater detail in Section 

2 of the RTC document. 

In this final rule we are maintaining 

the proposed approach of not 

intentionally drawing down the 

carryover RIN bank. In reaching this 

determination, we considered the 

functions of the carryover RIN bank, its 

projected size, the uncertainties 

associated with its projection, its 

potential impact on the production and 

use of renewable fuel, the ability and 

need for obligated parties to draw on it 

to comply with their obligations (both 

on an individual basis and on a marketwide basis), and the impacts of drawing 

it down on obligated parties and the 

fuels market more broadly. As 

previously described, the bank of 

carryover RINs provides important and 

necessary programmatic functions— 

including acting as a cost spike buffer— 

that will both facilitate individual 

compliance and provide for smooth 

overall functioning of the program. We 

believe that a balanced consideration of 

the possible role of carryover RINs in 

achieving the statutory volumes, versus 

maintaining an adequate bank of 

carryover RINs for important 

programmatic functions, is appropriate 

when EPA exercises its discretion under 

its statutory authorities. 

Furthermore, as noted earlier, after 

compliance with the 2019 standards, we 

project that there will be a significant 

drawdown in the number of carryover 

RINs from 3.48 down to 1.83 billion 

RINs. This drawdown is due to a 

combination of factors, including 

higher-than-projected gasoline and 

diesel fuel use,85 a shortfall in 

renewable fuel production and use,86

and EPA denying all SRE petitions for 

2019.87 While there is some uncertainty 

as to the precise amount of the 


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Federal Register / Vol. 87, No. 126 / Friday, July 1, 2022 / Rules and Regulations 39615 

88See ‘‘2019 RIN Holding Data as of March 1, 

2022,’’ available in the docket for this action. 

Carryover RIN holdings are presented in relation to 

the 2019 total RVO as this is the most recent year 

for which EPA has compliance data. 

89This number is based on 2019 compliance 

reports submitted to EPA to date. There is still some 

uncertainty in the number of obligated parties that 

will carry a deficit into 2020 as EPA has extended 

the deadline for small refineries to submit their 

2019 compliance reports. See 87 FR 5969 (February 

2, 2022). 

90See 40 CFR 80.1427(b). 

drawdown for the reasons noted above, 

it is virtually certain that the draw down 

will be significant in magnitude. 

As we describe further in Section 

III.C, there was an unanticipated and 

significant shortfall in RIN generation in 

2020 relative to the volumes that the 

2020 final rule intended for the market 

to achieve. The shortfall is anticipated 

to be smaller than the 1.83 billion total 

carryover RINs that we project will be 

available in 2020. While the carryover 

RIN bank would likely be sufficient to 

cover the shortfall in renewable fuel 

production in 2020 on aggregate, this 

does not mean that all obligated parties 

would have access to these carryover 

RINs. RIN holding data indicates that 

just four obligated parties—which 

represented approximately 40 percent of 

the 2019 total RVO—currently hold over 

half of all available 2019 RINs, and nine 

obligated parties—which represented 

approximately 55 percent of the 2019 

total RVO—hold over three-quarters of 

all available 2019 RINs.88 Conversely, 

obligated parties that collectively 

represent approximately fifteen percent 

of the 2019 total RVO currently do not 

hold any 2019 RINs whatsoever; thus, 

these parties may not have access to 

2019 carryover RINs to meet their 2020 

obligations. Requiring compliance with 

the original 2020 standards could 

therefore cause significant disruptions 

in the RIN market, especially in light of 

the fact that at least 30 obligated parties 

carried compliance deficits from 2019 

into 2020.89 These parties must fully 

meet their 2020 obligations or they will 

be in non-compliance with their RFS 

obligations. That is, they do not have 

the option to carry forward a deficit for 

a second year in a row.90 It is possible 

that these parties could purchase 

additional RINs on the market. 

However, given the shrinking size of the 

carryover RIN bank, the current holders 

of additional RINs may choose to sell 

their RINs only at very high costs or in 

the alternative choose to not sell their 

RINs but retain them for their own 

compliance purposes. Thus, and as we 

explain further in Section III.C, there is 

a substantial probability that some 

parties would not be able to acquire 

sufficient RINs to comply with the 

original 2020 standards. 

However, by revising the 2020 

standards to the actual volume of 

renewable fuel consumed, additional 

2019 RINs will likely become available 

in the marketplace. Parties holding more 

2019 RINs than are needed or able to be 

used (i.e., above the 20 percent 

carryover limit) after the revision of the 

2020 standards are also more likely to 

trade those RINs, making them available 

to other obligated parties for compliance 

with the 2020 standards. These RINs 

can also be used by small refineries to 

demonstrate compliance with their 2019 

obligations, potentially reducing the 

number of obligated parties that will 

need to carry forward a deficit. 

The advanced biofuel and total 

renewable fuel standards we are 

finalizing for 2022, moreover, are 

significantly higher than the volume of 

renewable fuel used in 2020 and 2021. 

As we explain further in Sections III.E 

and IV, while we believe that the market 

is capable of achieving the 2022 

standards (including the 2022 

supplemental standard), those standards 

are market-forcing and represent a 

significant increase in renewable fuel 

use from the levels used in 2020 and 

2021. The market may fall short of using 

such levels of biofuels, in which case 

obligated parties may rely on carryover 

RINs to achieve compliance. We believe 

that preserving the carryover RIN bank 

to provide this buffer in the event of a 

shortfall is important. Given these 

factors, as well as the uneven holding of 

carryover RINs among obligated parties 

noted above, we believe that further 

increasing the standards with the intent 

to draw down the carryover RIN bank 

could lead to significant deficit 

carryovers and non-compliance by some 

obligated parties that own relatively few 

or no carryover RINs. We do not believe 

this is an appropriate outcome. 

Therefore, consistent with the approach 

we have taken in recent annual rules, 

we are not setting the 2020, 2021, and 

2022 volume requirements (including 

the 2022 supplemental standard) at 

levels that would intentionally draw 

down the bank of carryover RINs. 

We are not determining that 1.83 

billion RINs is a bright-line threshold 

for the number of carryover RINs that 

provides sufficient market liquidity and 

allows the carryover RIN bank to play 

its important programmatic functions. 

As in past years, we are instead 

evaluating, on a case-by-case basis, the 

size of the carryover RIN bank in the 

context of the RFS standards and the 

broader transportation fuel market at 

this time. Based upon this holistic, caseby-case evaluation, we are concluding 

that it would be inappropriate to 

intentionally reduce the number of 

carryover RINs by establishing higher 

volumes than what the market achieved 

in 2020 or 2021 or what we anticipate 

the market is capable of achieving in 

2022. Conversely, while an even larger 

carryover RIN bank may provide greater 

assurance of market liquidity, we do not 

believe it would be appropriate to set 

the standards at levels specifically 

designed to increase the number of 

carryover RINs available to obligated 

parties. As we explain further in 

Sections III.D and E, for instance, given 

the market-forcing intent of the RFS 

program, it would be inappropriate to 

establish the 2020 and 2021 volumes 

below the levels the market actually 

used simply to increase the carryover 

RIN bank. 

2. Consideration of Cellulosic Carryover 

RINs 

Section 211(o)(7)(D)(i) of the CAA 

requires EPA to set the applicable 

volume of cellulosic biofuel at the 

‘‘projected volume available during [the] 

calendar year.’’ EPA has consistently 

interpreted the statutory phrase 

‘‘projected volume available’’ to refer to 

the volume of qualifying cellulosic 

biofuel projected to be produced or 

imported and available for use as 

transportation fuel in the U.S. in that 

year. This is equivalent to the projected 

number of cellulosic RINs generated in 

the year that are available for obligated 

parties to use for compliance. Since we 

first exercised the cellulosic waiver 

authority in the 2010 annual rule, we 

have never included cellulosic 

carryover RINs in this projection. 

In the proposed rule we requested 

comment on whether to include 

cellulosic carryover RINs as part of the 

‘‘projected volume available.’’ Under 

this interpretation of the cellulosic 

waiver authority, the ‘‘projected volume 

available’’ would include the projected 

volume of cellulosic biofuel plus the 

volume of available cellulosic carryover 

RINs from the prior year. EPA received 

a number of comments on this issue, 

including those supporting EPA’s 

interpretation of ‘‘projected volume 

available’’ in previous rules and those 

supporting an interpretation of this 

phrase that would include available 

carryover RINs. Both groups of 

commenters argued that their preferred 

interpretation was more consistent with 

the statutory language and the policy 

goals of the RFS program. Commenters 

opposed to including cellulosic 

carryover RINs in the projected volume 

available generally argued that 

cellulosic carryover RINs provided 

obligated parties important compliance 


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91See Chevron USA, Inc. v. Natural Resources 

Defense Council, Inc., 467 U.S. 837 (1984). 

92Cellulosic waiver credits may be purchased 

from EPA by obligated parties in years when EPA 

uses the cellulosic waiver authority to reduce the 

statutory volumes of cellulosic biofuel. Regulations 

related to cellulosic waiver credits can be found in 

40 CFR 80.1456. 

93See 40 CFR 80.1456(c)(4). 

94Moreover, unlike with carryover RINs, 

obligated parties are not allowed to carry over 

cellulosic waiver credits for use in the following 

year or use them to meet deficits from the prior 

year. See 40 CFR 80.1456(b)(1), (4). Thus, although 

cellulosic waiver credits are available for 2022, 

obligated parties will not be able to carry those over 

for use in 2023. 

95The number of cellulosic carryover RINs 

available for use in 2016 and 2017 were 39 million 

RINs (17 percent of the 2016 cellulosic biofuel 

volume requirement) and 34 million RINs (11 

percent of the 2017 cellulosic biofuel volume 

requirement) respectively. These numbers are 

similar to the number of cellulosic carryover RINs 

available for use in 2019 and 2020 (49 million RINs 

or 12 percent of the 2018 cellulosic biofuel volume 

requirement and 38 million RINs or 6 percent of the 

2020 cellulosic biofuel volume requirement). In 

2016 and 2017 cellulosic RIN prices averaged $1.89 

and $2.78 per RIN. In 2019 and 2020 cellulosic RIN 

prices averaged $1.15 and $1.49 per RIN. 

96EPA has continued to apply this projection 

methodology in years following 2018, including in 

this rule. This same projection methodology 

resulted in an over-projection of cellulosic biofuel 

production in 2019 and 2020. As such, the 

methodology does not inherently result in underprojections (or over-projections) of cellulosic 

biofuel generally or CNG/LNG derived from biogas 

more specifically. Further discussion of EPA’s 

cellulosic biofuel projection methodology can be 

found in Chapter 5.1 of the RIA. 

flexibility, just like other categories of 

carryover RINs. They further argued that 

cellulosic carryover RINs were 

especially important in light of the 

uncertainty associated with cellulosic 

biofuel production projections. 

Conversely, commenters that supported 

including cellulosic carryover RINs in 

the projected volume available generally 

argued that despite the continued rapid 

growth in cellulosic biofuel volumes, 

excess cellulosic carryover RINs could 

result in lower cellulosic RIN prices, as 

happened in 2019 and 2020. Lower 

cellulosic RIN prices in turn could 

negatively affect investment in 

cellulosic biofuel production. These 

commenters stated that adopting this 

new interpretation would ensure that 

there was a strong market for cellulosic 

biofuel and cellulosic RINs in the future 

and would result in increased 

investment in cellulosic biofuel 

production and ultimately increased 

cellulosic biofuel production. Finally, 

these commenters generally suggested 

that the existence of cellulosic waiver 

credits adequately addressed obligated 

parties’ need for compliance flexibility. 

In this rule we are finalizing 

cellulosic biofuel volumes for 2020– 

2022 that are based on the volume of 

qualifying cellulosic biofuel projected to 

be produced or imported and available 

for use as transportation fuel in the U.S. 

in that year. This is equivalent to the 

projected number of cellulosic RINs 

generated in the year that are available 

for obligated parties to use for 

compliance. Consistent with EPA’s 

longstanding approach, we have not 

included available cellulosic carryover 

RINs in our projection of the projected 

volume available. The statutory term 

‘‘projected volume available’’ does not 

directly address the topic of carryover 

RINs. Indeed, the cellulosic waiver 

provision (CAA section 211(o)(7)(D)(i)) 

does not mention carryover RINs at all, 

or otherwise refer to the statutory basis 

for such RINs (CAA section 211(o)(5)). 

Thus, we believe there are multiple 

possible interpretations of this 

ambiguous statutory provision, 

including the interpretation adopted by 

EPA in previous years. 

We continue to believe that the 

interpretation EPA adopted in previous 

years strikes an appropriate balance 

between the interests of the cellulosic 

biofuel producers, those obligated to 

purchase and use cellulosic biofuels and 

cellulosic RINs, and consumers; and 

best ensures the ongoing smooth 

implementation of the RFS program.91

Below we summarize the considerations 

we balanced in deciding to retain our 

longstanding approach in this 

rulemaking; further discussion is 

contained in the RTC document. 

While we acknowledge that some 

aspects of the cellulosic biofuel category 

(such as the cellulosic waiver authority 

and the cellulosic waiver credits) 92 are 

unique, we nevertheless believe the 

benefits of carryover RINs, discussed in 

Section III.B.1, generally apply to 

cellulosic carryover RINs. Cellulosic 

waiver credits can help obligated parties 

satisfy their cellulosic biofuel volume 

obligation, but they are not a full 

replacement for cellulosic RINs. Rather, 

to satisfy their cellulosic biofuel 

obligation, obligated parties must retire 

either a cellulosic RIN or a cellulosic 

waiver credit plus an advanced RIN.93

In other words, in the event of a 

shortfall in cellulosic RIN generation, 

absent cellulosic carryover RINs, the 

market must still rely on the advanced 

carryover RIN bank in addition to 

cellulosic waiver credits. 

Furthermore, because there are no 

statutory volume targets for cellulosic 

biofuel in 2023, and because we are 

required to establish the cellulosic 

biofuel volumes for 2023 and future 

years on the assumption that the 

Administrator will not need to issue a 

waiver for these years under CAA 

section 211(o)(2)(B)(iv), we do not 

anticipate using the cellulosic waiver 

authority for 2023. This means that it is 

unlikely that cellulosic waiver credits 

will be available in 2023.94 Including 

cellulosic carryover RINs in the 

projected volume available through 

2022 would also likely result in few to 

no cellulosic carryover RINs available 

for use in 2023. Thus, changing our 

interpretation now to draw down the 

cellulosic carryover RIN bank in this 

rule would likely create a scenario 

where few or no cellulosic carryover 

RINs and no cellulosic waiver credits 

would be available in 2023. Obligated 

parties would thus effectively lose both 

important compliance flexibilities in 

that year. We do not believe this would 

be appropriate. 

We recognize that the potential for 

lower cellulosic RIN prices could have 

a directionally negative impact on 

cellulosic biofuel investment. The 

market circumstances that resulted in 

lower cellulosic RIN prices in 2019– 

2020, however, appears to be the result 

of more than just the availability of 

cellulosic carryover RINs. Similar 

volumes of cellulosic carryover RINs, 

and higher levels of available cellulosic 

carryover RINs as a percentage of the 

cellulosic biofuel requirement, were 

available in prior years when cellulosic 

RIN prices were also much higher 

relative to 2019–2020.95 EPA’s 

assessment of the drop in cellulosic RIN 

prices in 2019–2020 suggests that there 

were multiple contributing factors, 

including a new projection methodology 

for cellulosic biofuel that underprojected cellulosic biofuel production 

in 2018 96 and the granting of a 

significant number of SREs for 2017 and 

2018. 

In projecting cellulosic biofuel 

production for 2022 using the most 

recent available data, and denying 

pending SRE petitions in a separate 

action, we are addressing several of the 

factors that we believe led to the drop 

in cellulosic RIN prices in 2019–2020. 

Most immediately, we expect the size of 

the cellulosic carryover RIN bank to 

drop from 49 million to 38 million RINs 

following 2019 compliance. We are 

continuing to project significant 

increases in cellulosic biofuel 

availability through 2022, based upon a 

methodology that takes neutral aim at 

accuracy. We do not expect the 

standards we set, moreover, to be 

effectively reduced by future grants of 

SRE petitions as they have in some past 

years. As discussed in Section VII, we 

are also finalizing regulations to allow 

for the production of qualifying 


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97See Section 5.1 of the RIA for more detail on 

annual cellulosic biofuel production. 

98Further discussion of this topic can be found 

in Section 6 of the RTC document. 

renewable fuel, including cellulosic 

biofuel, from biointermediates. While 

we cannot predict future RIN prices, 

this combination of actions should 

provide a strong market signal of EPA’s 

intention to support a robust cellulosic 

biofuel market. 

Further, despite the drop in the 

cellulosic RIN price in 2019–2020, 

cellulosic biofuel production has 

increased significantly each year since 

2014, demonstrating that cellulosic 

biofuel production can and has 

continued to increase despite volatility 

in the cellulosic RIN price.97 We do not 

believe that changing our interpretation 

of the ‘‘projected volume available’’ to 

include cellulosic carryover RINs is at 

this point necessary in order to ensure 

future growth in cellulosic biofuels. 

Instead, we believe that the existing 

policies described here are sufficient to 

provide the market with adequate 

certainty for investment and growth in 

cellulosic biofuels. EPA will continue to 

monitor the cellulosic biofuel market 

closely and assess the efficacy of the 

program in providing a sufficient 

investment environment for cellulosic 

biofuels. 

Finally, we note that the legal 

arguments made by commenters 

supporting a change to include 

cellulosic carryover RINs in the 

cellulosic volume, while still relevant, 

are less so in the context of this 

rulemaking. Commenters’ legal 

arguments generally focused on an 

interpretation of the cellulosic waiver 

authority. In this rulemaking, however, 

we are concurrently exercising both the 

cellulosic waiver authority and the reset 

authority. Under the reset authority, we 

have broad discretion to establish 

volumes, including cellulosic biofuel 

volumes lower than the volume 

required under the cellulosic waiver. 

Even were EPA’s interpretation of 

‘‘projected volume available’’ erroneous, 

we would nonetheless reduce the 

cellulosic biofuel volumes to the final 

volumes we are establishing in this 

document (not including carryover 

RINs) utilizing the reset authority. Thus, 

regardless of whether the commenters 

are correct about EPA’s legal authority 

under the cellulosic waiver, we have 

legal authority under the reset authority 

to establish volumes at the projected 

volume available of cellulosic biofuel, 

excluding any cellulosic carryover RINs. 

3. Ability for the RFS Volumes To 

Impact Renewable Fuel Supply 

In developing the volume 

requirements, we considered the timing 

of this action and its ability to impact 

renewable fuel production, imports, and 

use. Since only prospective 

requirements have a significant chance 

of affecting actual renewable fuel use, 

we proposed to establish higher 

volumes for 2022. By contrast, imposing 

higher volumes for 2020 or 2021 would 

have no effect on the production or use 

of renewable fuels in those years. The 

proposal noted that retroactively 

requiring volumes higher than what the 

market has actually supplied could 

create market disruption and thus 

interfere with program implementation 

without advancing program goals. 

Commenters generally acknowledged 

that higher volume requirements for 

2020 and 2021 would not impact 

renewable fuel production and use in 

those years. However, some commenters 

stated that revising the 2020 volumes 

after previously establishing them 

would reduce confidence in the marketforcing nature of the RFS program and 

could negatively impact renewable fuel 

production in future years. While we 

recognize these concerns, we believe 

that the unique circumstances in 2020 

(described throughout Section III and 

especially in Section III.C) justify 

revising the 2020 volumes.98

In this rule we are finalizing volumes 

consistent with the proposed approach: 

establishing volumes for 2020 and 2021 

at the level of renewable fuel used in 

these years and establishing higher 

renewable fuel volumes for 2022. With 

respect to 2020 and 2021, these years 

have already passed. Both common 

sense as well as our review of the 

implementation of the RFS program 

indicate that this final rule cannot 

retroactively affect the production or 

use of renewable fuels in 2020 or 2021, 

or consequently affect the statutory reset 

factors in CAA section 

211(o)(2)(B)(ii)(I)–(VI) insofar as they are 

based on renewable fuel production or 

use that occurred during those years 

(e.g., the impacts of the use of renewable 

fuels in 2020 and 2021 on cost, the 

environment, and so forth). It is possible 

that the proposed rule, which was 

signed on December 7, 2021, may have 

impacted renewable fuel production 

and use during 2021. Given that the 

proposal came out in December and was 

only a proposal and not a final rule, 

however, those impacts were likely to 

be quite limited. Any market effects of 

the 2020 and 2021 volumes finalized in 

this rule will be felt after the rule is 

promulgated and mediated through the 

carryover RIN bank. As we explain 

below, these mediated market effects 

can be evaluated with regard to the 

statutory factors and favor establishing 

2020 and 2021 volumes at those actually 

used. 

The situation for 2022, however, is 

different. We are issuing this final rule 

with a significant portion of the year 

remaining. Moreover, we are finalizing 

volumes using the same policy 

approach as in the proposal, which was 

issued in December 2021, albeit with 

some small changes due to updated 

data, allowing the proposal to have 

provided regulated entities with 

additional notice of the potential 

requirements. Thus, we believe that the 

RFS standards for 2022 will be able to 

significantly affect market decisions for 

renewable fuel production, import, and 

use in 2022, and consequently the 

related statutory factors. In turn, we 

believe it is appropriate to increase 

renewable fuel requirements in 2022, 

when this rule has a much greater 

chance of actually increasing renewable 

fuel use and production, as opposed to 

2020 or 2021. 

Further, there are also disadvantages 

to requiring higher volumes for 2020 

and 2021 retroactively, or similarly, to 

maintaining the 2020 standards in the 

original final rule. Such higher volumes 

would cause some combination of a 

drawdown of the carryover RIN bank, 

carryforward deficits, or potentially 

even non-compliance by obligated 

parties. While we have previously found 

an intentional drawdown of the 

carryover RIN bank to be appropriate in 

one case, we do not think it is 

appropriate to do so in this rule for 

reasons we described above in Section 

III.B.1. We also do not think that 

intentionally relying on or effectively 

compelling carryforward deficits or 

intentionally causing non-compliance is 

generally appropriate. 

Renewable fuel production and use in 

2020 was significantly lower than what 

we projected in the original 2020 final 

rule. As discussed in Section III.C, 

compliance with the original 2020 

standards would likely result in a 

significant drawdown in the number of 

carryover RINs available for use in 2021 

and 2022. As discussed in Section 

III.B.1, we currently project that as a 

result of compliance with the 2019 

standards, the number of carryover RINs 

available for compliance with the 2020 

standards will be approximately 1.83 

billion RINs, a considerable drop from 

the 3.48 billion total carryover RINs we 

projected in the 2020 final rule. We 

expect that as a result of revising the 

2020 standards to equal the actual 

volume of renewable fuels consumed, 

the number of carryover RINs available 

for compliance with the 2021 and 2022 


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99The calculations performed to project the 

number of carryover RINs that would be available 

if we did not revise the 2020 standards can be 

found in the memorandum, ‘‘Carryover RIN Bank 

Calculations for 2020–2022 Final Rule,’’ available 

in the docket for this action. Further discussion of 

the size of the advanced and cellulosic carryover 

RIN banks is contained in the above-cited memo, 

Section III.B.2, and Section 2.6 of the RTC 

document. 

100The regulations at 40 CFR 80.1427(b) allows 

obligated parties to only carry forward a deficit if 

they did not carry forward a deficit from the 

previous calendar year; thus, an obligated party that 

carries forward a deficit from 2020 into 2021 may 

not carry forward a deficit from 2021 into 2022. 

101As discussed in Section V, the adjustments to 

the percentage standards would also include 

changes to the non-renewable gasoline and diesel 

volumes to reflect actual 2020 consumption. 

standards will remain at 1.83 billion 

RINs. 

Were we not to modify the 2020 

standards, we anticipate that the total 

number of carryover RINs available for 

compliance with the 2021 and 2022 

standards would decrease substantially, 

to 680 million RINs, or less than 4 

percent of the 2022 total renewable fuel 

standard.99 This would be the lowest 

quantity of carryover RINs available 

since EPA began projecting the size of 

the carryover RIN bank in 2013, far 

below the levels of carryover RINs 

available to obligated parties in recent 

years. A well-functioning RIN market is 

foundational for allowing obligated 

parties to comply with their RFS 

mandates, particularly for obligated 

parties that do not themselves produce 

or blend renewable fuels. Drawing down 

the carryover RIN bank to this level 

could significantly disrupt the 

functionality of the RIN market. 

This drawdown in the carryover RIN 

bank would be particularly concerning 

given the uneven nature of carryover 

RIN holdings and the number of 

obligated parties that carried deficits 

into 2020 discussed in the previous 

section. Taken together, these facts 

present a significant risk of market 

disruption were we to not revise the 

2020 standards. A number of obligated 

parties that have not already carried 

deficits into 2020 would likely have to 

carry deficits into 2021. Other parties 

may have to carry deficits into 2022. 

Some parties, especially those that have 

already carried a deficit into 2020, may 

not be able to acquire sufficient RINs for 

compliance in 2021 or 2022.100 If we 

were to leave the 2020 standards 

unchanged, we find that there would be 

a substantial probability that some 

obligated parties would not be able to 

comply with those standards or with the 

2021 and 2022 standards we are 

finalizing in this action. 

We emphasize that the above risks 

arise from the unanticipated shortfall in 

2020 renewable fuel use and the 

inherent potential for future unexpected 

market events. In turn, noncompliance 

may lead to significant adverse business 

impacts on these parties as well as to 

civil penalties. Particularly given our 

legal duty to consider burdens on 

obligated parties when promulgating 

retroactive standards, we do not think 

this outcome would be fair or 

appropriate. 

If these compliance difficulties occur, 

moreover, we believe that the harms 

would not just be felt by directly 

affected obligated parties but also 

extend to the entire fuels market and the 

RFS program. If insufficient RINs are 

available to obligated parties to meet 

their compliance obligations, this could 

negatively impact the regulatory and 

market certainty critical to the 

investments needed to increase 

renewable fuel volumes in 2022 and 

into the future. Uncertainty in the RFS 

program specifically, and the broader 

fuels market more generally, could 

negatively impact investment in 

increasing renewable fuel production 

and accordingly the expected future rate 

of production of renewable fuels. It 

could also negatively affect investment 

in the infrastructure necessary to deliver 

and use of greater quantities of 

renewable fuel. As discussed in greater 

detail in the RIA, biofuel production 

and use generally have positive impacts 

on climate change, energy security, job 

creation, and rural economic benefits. 

Reduced production and use of 

renewable fuels would therefore be 

expected to negatively impact these 

statutory factors. In particular, reduced 

business certainty could also deter the 

commercialization of novel advanced 

biofuels, which have the potential for 

lower costs and superior environmental 

benefits. 

Retroactively reducing the 2020 

volumes mitigates these concerns. 

Specifically, reducing the 2020 required 

volumes to the volumes of renewable 

fuel actually used in 2020 preserves an 

estimated carryover RIN bank of 1.83 

billion RINs for use in 2021, and 

establishing the 2021 volumes at the 

volumes of renewable fuel actually used 

in 2021 preserves the same estimated 

carryover RIN bank for compliance with 

the market-forcing 2022 standards. 

We note lesser reductions to 2020 or 

2021 would give rise to similar 

concerns. The magnitude of those 

concerns would depend on how high 

the 2020 and 2021 volume requirements 

are and the resulting impact on the 

carryover RIN bank. We think that some 

of these concerns, moreover, would 

remain even were we to make offsetting 

reductions to the 2022 volumes (e.g., 

were we to increase the 2021 volumes 

by 500 million gallons and decrease the 

2022 volumes by the same amount). In 

that case, even though the aggregate 

incentive for renewable fuels across all 

three years might remain the same, 

retroactively requiring compliance for 

past years would increase the risk of 

market disruption. This is because 

while we expect a significantly higher 

number of RINs to be generated in 2022 

than in either 2020 or 2021, compliance 

is still conducted on a year-by-year 

basis. As noted above, there are 

limitations on the ability of obligated 

parties to carry forward deficits into 

2022 and consequently to leverage 2022 

RIN generation to meet higher 2020 or 

2021 standards. 

C. Volume Requirements for 2020 

We proposed to revise previously 

finalized 2020 total renewable fuel, 

advanced biofuel, and cellulosic biofuel 

volumes to equal the volume of such 

fuels actually consumed in the U.S. in 

2020. We also proposed to make 

corresponding adjustments to the 

percentage standards applicable to 

obligated parties.101

As discussed previously, commenters 

generally acknowledged that higher 

volume requirements for 2020 would 

not impact renewable fuel production 

and use in 2020, but expressed concerns 

that revising the 2020 volumes after 

previously establishing them would 

reduce confidence in the market-forcing 

nature of the RFS program and could 

negatively impact renewable fuel 

production and use in future years. 

Many of these commenters stated that 

the structure of the RFS program 

automatically adjusted to the lower than 

expected demand for gasoline and 

diesel fuel, and that further 

modification of the 2020 percentage 

standards was thus unnecessary, 

especially in light of the availability of 

carryover RINs. Other commenters 

supported our proposed revisions to the 

previously established 2020 volume 

requirements, noting the impact of the 

COVID–19 pandemic and the shortfall 

in renewable fuel use relative to 

projections in the original 2020 final 

rule. 

In this rule we are finalizing revised 

2020 volumes and percentage standards 

based on the actual volumes of 

renewable fuel, gasoline, and diesel fuel 

used in 2020, consistent with the 

proposed rule. While we recognize the 

concerns raised by commenters 

opposing these changes, we believe that 

the unique circumstances in 2020 justify 

revising the 2020 volumes, and that we 


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102 85 FR 7016 (February 6, 2020). 

103We have in the past modified previously 

finalized RFS standards, including in response to 

court decisions (see 80 FR 77420 (December 14, 

2015), modifying the cellulosic biofuel standards), 

and in response to new information and petitions 

for reconsideration (see 79 FR 25025 (May 2, 2014)), 

also modifying the cellulosic biofuel standard). 

104See Figure 1.2–4 in the RIA. 

105See Figure 1.2–1 in the RIA. 

106See Figure 1.2–1 in the RIA. 

107According to EIA’s January 2022 STEO diesel 

consumption in the U.S. in 2020 was 3.51 million 

barrels per day (54.0 billion gallons). Biodiesel and 

renewable diesel in 2020 totaled 2.50 billion 

gallons, which generated 3.87 billion RINs. Thus, 

the average gallon of diesel in the U.S. was blended 

with renewable fuel that generated 0.07 RINs (3.87 

billion RINs/54.0 billion gallons), while the average 

gallon of gasoline was blended with renewable fuel 

that generated 0.10 RINs. 

108 85 FR 7053, February 6, 2020. 

109See ‘‘June 2022 Denial of Petitions for RFS 

Small Refinery Exemptions,’’ EPA–420–R–22–011, 

June 2022. 110See ‘‘Carryover RIN Bank Calculations for 

2020–2022 Final Rule,’’ available in the docket for 

this action. 

have the authority to do so as discussed 

in Sections II.C and D. 

We acknowledge that we are 

reconsidering and revising the already 

finalized 2020 standards 102 after the 

November 30, 2019, statutory deadline 

for the 2020 standards in CAA section 

211(o)(3)(B)(i). The revised 2020 

standards are also retroactive. Barring 

unusual circumstances, we generally do 

not believe it is appropriate to 

reconsider and revise previously 

finalized RFS standards, particularly 

where we are doing so retroactively.103

Nonetheless, we are doing so for 2020 

because, in compliance with the 

statutory requirement that we review 

the implementation of the RFS program, 

we have determined that critical and 

unanticipated events have occurred 

which affected fuels markets in that year 

and consequently affect compliance 

with the RFS program. Specifically, 

there was a significant, unprecedented, 

and unforeseen shortfall in renewable 

fuel use in 2020 relative to the volumes 

that we required in the original 2020 

final rule. Actual use of qualifying 

renewable fuel in 2020 (17.13 billion 

RINs) was nearly 3 billion RINs lower 

than the 20.09 billion RINs that the 2020 

final rule projected the market could 

achieve. That is, the actual shortfall is 

14.9 percent of the total renewable fuel 

volume in the original 2020 rule. This 

is the largest shortfall on record, in both 

absolute and percentage terms, since 

Congress enacted the RFS program.104

This shortfall was largely due to two 

factors: (1) the COVID–19 pandemic, 

which caused an unforeseen and drastic 

fall in transportation fuel demand 

generally and in biofuel demand more 

specifically; and (2) EPA’s projection in 

the 2020 rule that we would grant a 

large number of SREs for 2020 and our 

consequent decision to deny all pending 

2020 SRE petitions. 

In general, under the RFS program, a 

shortfall in gasoline and diesel fuel 

consumption relative to the projected 

volumes results in a corresponding 

decrease in the volume of renewable 

fuel required. This self-adjusting nature 

of the program is a function of the fact 

that the RFS standards are applied as a 

percentage to an obligated party’s 

gasoline and diesel fuel production; the 

obligation to acquire RINs for 

compliance rises and falls along with 

the sum of gasoline and diesel fuel 

production volume. Further, historical 

deviations before 2020 between the 

volumes of gasoline and diesel fuel 

actually used relative to their projected 

volumes have been relatively small, on 

the order of a few percent.105 As a 

result, we have historically not adjusted 

the RFS standards after they have been 

established to account for updated 

gasoline and diesel fuel consumption 

levels. This is consistent with our 

general policy of not reconsidering and 

revising previously finalized RFS 

standards. 

However, the situation in 2020 was 

different. As explained further in 

Section III.B, the shortfalls in 2020 were 

both significantly larger than in any 

previous year (about 12 percent) and 

disproportionately affected gasoline 

more than diesel fuel.106 This is 

important because, on average, finished 

gasoline contains more renewable 

content than finished diesel. The vast 

majority of gasoline contains at least 10 

percent ethanol, mostly in the form of 

E10, whereas the average concentration 

of renewables in diesel is considerably 

less than 10 percent.107 Thus, while the 

decrease in transportation fuel demand 

in 2020 proportionally decreased the 

required renewable fuel volume, the 

decrease in the demand for renewable 

fuel was greater given the larger drop in 

gasoline versus diesel fuel demand. In 

other words, despite the self-adjusting 

nature of the RFS standards in response 

to transportation fuel demand, the 

disproportionate fall in gasoline 

demand meant actual RIN generation 

still fell short of what was ultimately 

required for compliance. 

In addition, when we promulgated the 

2020 volume requirements, we did so 

while projecting for the first time that 

we would be granting a large number of 

SREs for 2020. Specifically, the 2020 

final rule projected that EPA would 

grant exemptions of 7.26 billion gallons 

of gasoline and diesel, equivalent to 

approximately 770 million RINs.108 We 

reallocated the projected exempted 

volumes onto the remaining obligated 

parties, thereby significantly increasing 

the obligations on those parties. 

However, EPA recently announced that 

we were denying pending SRE petitions 

before the agency, including all 

petitions for 2020.109 In other words, the 

actual exempted volume of gasoline and 

diesel fuel in 2020 is zero. Were we to 

leave the 2020 standards unchanged, 

this discrepancy between projected and 

actual exemptions would significantly 

raise the effective volume obligations for 

all obligated parties. This effect is 

independent from the COVID-related 

transportation fuel demand effects 

described above. 

Accounting for these factors, actual 

renewable fuel use in 2020 (17.13 

billion RINs) was approximately 1.23 

billion RINs lower than the estimated 

obligation for 2020 were we to leave the 

original 2020 percentage standards 

unchanged, based on available data of 

obligated gasoline and diesel fuel 

production in 2020 (18.35 billion RINs). 

As such, compliance with the original 

2020 standards would likely result in a 

significant drawdown of the number of 

carryover RINs available for use in 2021. 

As we discussed in Section III.B, this 

would present a substantial probability 

of market disruption, including of 

noncompliance by some obligated 

parties. 

While our analyses have focused on 

the availability of RINs for RFS 

compliance in 2020, the risks we 

describe must be considered in the 

broader context of the fuels market. As 

we explain in Chapter 1 of the RIA, in 

our review of the implementation of the 

RFS program, we find that the RFS 

program, the biofuels market, and the 

broader transportation fuels market are 

highly intertwined. This broader 

consideration of the larger fuels market 

further supports our concerns regarding 

maintaining the original 2020 standards. 

For one, 2020 follows a year (2019) in 

which the market already relied heavily 

on carryover RINs to meet the RFS 

obligations. As noted above, we 

anticipate the market to draw down the 

carryover RIN bank from 3.48 billion to 

1.83 billion RINs to meet compliance 

obligations for 2019. While the 3.48 

billion carryover RIN bank going into 

2019 reflected a historical high, it was 

the result of roughly three years of 

accumulation.110 That accumulation 

occurred during a period when EPA had 

incrementally raised the total renewable 

fuel volume each year and maintained 

the conventional volume at the full 

implied statutory volume of 15 billion 

gallons. At the same time, EPA had 


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111See ‘‘June 2022 Denial of Petitions for RFS 

Small Refinery Exemptions,’’ EPA–420–R–22–011, 

June 2022. 

112Q4 2020: U.S. Refining Margins Remain 

Depressed; Refining Industry in Focus. Baker & 

O’Brien Inc.; March 12, 2021. 

113Somasekhar, Arathy. ‘‘U.S. oil refiners set for 

first profit since onset of pandemic.’’ Reuters. July 

28, 2021. 

114Agarwal, Bharti. ‘‘Effect of COVID–19 

pandemic on refining and refiners.’’ IHS Markit. 

August 2020. 

115Aday, Serpil and Aday, Mehmet Seckin. 

‘‘Impact of COVID–19 on the food supply chain.’’ 

Food Quality and Safety. Volume 4, Issue 4. 

December 2020. 

116 87 FR 5696 (February 2, 2022). 

117 86 FR 72436 (December 21, 2021). 

118See Monroe Energy, LLC v. EPA, 750 F.3d 909, 

919–20 (D.C. Cir. 2014) (holding that the litigant 

‘‘had no legally settled expectation’’ regarding how 

EPA exercised its waiver authority to adjust the 

renewable volume obligations). See also AFPM, 937 

F.3d 577–78 (finding it far from obvious that biofuel 

producers had serious reliance interests in the 

annual volumes). 

granted large numbers of SREs that were 

not accounted for in setting the 

standards and significantly reduced the 

effective RFS requirements below the 

volumes we established in our annual 

rules. More recently, we have denied 

pending SRE petitions, including all 

petitions for 2019 and 2020, and we are 

not aware of any circumstances that 

would warrant EPA granting SREs in the 

future that would increase the size of 

the carryover RIN bank akin to what 

occurred leading up to 2019.111

Were we to leave the 2020 standards 

unchanged, as noted above, we would 

expect a further drawdown of the 

carryover RIN bank to the lowest 

historical levels since we began tracking 

the carryover RIN bank in 2013. The 

associated shortfall in renewable fuel 

production and use in 2020 comes on 

the heels of an already large shortfall in 

renewable fuel production and use in 

2019. As noted above, the dramatic 

reduction in the carryover RIN bank in 

2019 eliminated much of the flexibility 

the carryover RIN bank might have 

otherwise provided for 2020. Moreover, 

a significant reduction to the number of 

carryover RINs for two consecutive 

years would only increase the general 

concerns associated with relying on 

carryover RINs to meet the RFS 

obligations, especially for parties that 

generally do not own significant 

quantities of carryover RINs. 

Additional factors regarding the larger 

transportation fuels market also support 

our decision to revise the 2020 

standards. The drop in demand for 

transportation fuel due to the COVID–19 

pandemic had a significant impact on 

refiners. Refining margins (often 

referred to as the ‘‘crack spread’’) 

dropped sharply in 2020, resulting in 

broad losses across the refining industry 

in 2020.112 113 In response to this 

economic environment many refiners 

sought to minimize expenses to preserve 

available capital, taking actions such as 

delaying or cancelling capital 

expenditures.114 At the same time, 

biofuel producers were also impacted by 

a dramatic reduction in transportation 

fuel demand and challenges across the 

supply chain for agricultural 

commodities, including biofuel 

feedstocks.115 This combination of 

factors made the acquisition of the 

renewable fuel volumes necessary to 

meet the RFS obligations in 2020 

uniquely challenging, both 

economically and practically. 

Given the above reasons, we have 

decided to reconsider and revise the 

2020 volumes to those actually used. In 

doing so, we recognize that since 2020 

has already passed, this rulemaking has 

no ability to affect actual production, 

imports, and use of renewable fuel in 

2020. As such, the impact of the rule on 

those statutory factors related to 

renewable fuel production and use 

during 2020 is similarly limited. Rather, 

this final rule seeks to ensure sufficient 

RINs are available for compliance. It 

acts to relieve burdens on obligated 

parties, and in some cases the 

potentially onerous burden of noncompliance with the RFS program, the 

possibility of civil penalties, and 

associated market disruptions. This 

approach also seeks to mitigate related 

negative impacts on the regulatory and 

market certainty critical to the 

investments needed to increase 

renewable fuel volumes in 2022 and 

into the future. As discussed in Section 

III.B.3, this market certainty has an 

impact on many of the statutory factors, 

including the expected future rate of 

production of renewable fuels, the 

development of infrastructure to 

distribute and use increased volumes of 

such fuels, climate change, energy 

security, job creation, and rural 

economic benefits. 

As our reconsideration of the 2020 

standards is retroactive, we have 

considered and mitigated burdens on 

obligated parties as required by the D.C. 

Circuit’s caselaw on retroactive RFS 

standards. To begin with, as noted 

above, we have ensured sufficient RINs 

for compliance, and this factor has been 

key in our decision to reconsider and 

revise the standards to actual supply. 

We have also considered several other 

factors: 

• Adequate lead time for obligated 

parties to comply with the revised 

standards. 

• The availability of compliance 

flexibilities. 

• The impact of the revised standards 

on those parties that may have relied on 

the original standards in making 

business decisions. 

• Alternatives to revising the 2020 

volume requirements to be equal to the 

volumes actually consumed. 

Each of these factors is discussed 

below. 

Regarding lead time for obligated 

parties, we note that relatively less lead 

time is needed given that we are 

reducing the stringency of their 

obligations, as opposed to increasing 

their stringency. Nonetheless, we are 

providing significant lead time. Earlier 

this year we extended the 2020 

compliance deadline for obligated 

parties to the next quarterly reporting 

deadline after the 2019 compliance 

reporting deadline for small refineries, 

which in turn was extended in that 

same action to the next quarterly 

reporting deadline that is after the 

effective date of this rule.116 In other 

words, obligated parties will have no 

less than 5 months after the publication 

of this final rule in the Federal Register, 

and no less than 11 months after the 

publication of the 2020–2022 

proposal,117 to comply with their 2020 

obligations. Had we not adjusted the 

2020 compliance deadline, obligated 

parties would have needed to 

demonstrate compliance by March 31, 

2021. 

Regarding the availability of 

compliance flexibilities, obligated 

parties continue to have access to 

carryover RINs and carryforward 

deficits to facilitate compliance. As 

discussed above, the revision of the 

2020 volumes to those actually supplied 

preserves the carryover RIN bank and 

the availability of this flexibility. 

Regarding potential reliance interests, 

we recognize that retroactively adjusting 

the 2020 standards may disrupt market 

expectations created by the prior final 

rule, for instance on the part of biofuel 

producers that made investments or 

other parties who transacted biofuels or 

RINs, based on the higher standards 

originally finalized. As a general matter, 

these expectations may not rise to the 

level of reliance interests recognized by 

the courts.118 As discussed in Section II, 

EPA generally has authority to 

reconsider and revise prior rulemakings. 

Congress also specifically granted EPA 

multiple waiver authorities. Moreover, 

as shown in Section 1.9 of the RIA, RIN 

prices have fluctuated significantly over 

time. Thus, market actors may not 

possess legally cognizable reliance 

interests in specific RFS volumes or 


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119 87 FR 5696 (February 2, 2022). 

120We received comments suggesting that the 

lead time requirement in CAA section 211(o)(2)(B) 

also applied, such that EPA was required to 

promulgate modified standards by October 31, 2019 

(i.e., 14 months prior to the year in which the 

standards would take effect). Since the reset 

provision in CAA section 211(o)(7) provides the 

timing requirement specific for the reset rule (one 

year after the last triggering action), we believe that 

specific provision controls over the more general 

14-month provision in CAA section 211(o)(2)(B), 

which applies to establishing standards under that 

provision more generally (including for BBD after 

2012 and for all other fuel categories after 2022). In 

any event, whether we utilize the October 31, 2019 

deadline, or the December 2019 deadline, our 

exercise of the reset authority is late. 

121See 84 FR 36766 (July 29, 2019), 86 FR 72436 

(December 21, 2021). 

122The cellulosic waiver authority limits 

reductions in the statutory total renewable fuel and 

advanced biofuel volumes to no more than the 

reduction in the cellulosic biofuel volume. In the 

2020 final rule, we exercised the cellulosic waiver 

to the maximum extent, resulting in an implied 

conventional renewable fuel volume of 15 billion 

gallons and an implied non-cellulosic advanced 

biofuel volume of 4.5 billion gallons. However, the 

volumes of advanced biofuel and total renewable 

fuel actually supplied in 2020 fell short of these 

numbers. 

123See, e.g., CAA section 211(o)(3)(B)(i) 

(requiring EPA to establish standards by November 

30 of the preceding year), section (o)(7)(D)(i) 

(requiring EPA to determine whether or not to 

exercise the cellulosic waiver authority by 

November 30 of the preceding year), and section 

(o)(2)(B)(ii) (requiring EPA to establish volumes 14 

months before they apply). 

standards or specific RIN prices. Even 

hypothetically assuming that some 

market expectations amounting to 

legally cognizable reliance interests 

exist, those expectations and interests 

were already confounded by the 

significant and unanticipated events 

described above, including the COVID– 

19 pandemic’s impact on the fuels 

markets. 

Furthermore, obligated parties who 

obtained additional RINs in response to 

the original, higher 2020 standards are 

not penalized in any way. To the 

contrary, these parties will continue to 

have sufficient RINs to comply with the 

revised, lower standards and may sell 

excess RINs or carry them over for 2021 

compliance consistent with EPA’s 

regulations. Similarly, biofuel producers 

who made investments in response to 

the original 2020 standards and 

generated additional RINs are also able 

to sell these RINs in the market and may 

continue to obtain returns on their 

investments as the market demands 

additional RINs needed to meet the 

2022 standards. Although this action 

may reduce the market value of 2020 

RINs, maintaining the current 2020 

standards would force other obligated 

parties into noncompliance. We do not 

believe any potential reliance interests 

of RIN-holders would justify imposing 

the burden of non-compliance on 

obligated parties who had no reason to 

anticipate the unprecedented events of 

2020. Additionally, we have extended 

the 2020 compliance deadline so that all 

parties are still able to trade and acquire 

RINs for compliance with the 2020 

standards.119 In all cases, we believe 

that revising the standards is warranted 

based on the events and factors 

described above and that we have set 

forth a sufficiently detailed justification 

for doing so. 

Finally, we also considered 

alternatives to our final action, 

including revising the 2020 volumes to 

volumes lesser or greater than the 

volume of renewable fuel that was 

supplied, as well as leaving the original 

volumes from the 2020 final rule in 

place. We do not believe it is 

appropriate to retroactively modify the 

volumes to be lower than what the 

market actually used. We acknowledge 

that reducing the 2020 volumes further 

would allow the market to build up the 

carryover RIN bank so as to provide 

even greater market liquidity. This 

would benefit obligated parties, 

particularly those that carried forward 

deficits into 2020 or have very few or no 

carryover RINs. However, we do not 

believe this would be appropriate since 

the general purpose of the RFS program 

is to incentivize increasing production 

and use of renewable fuels over time. 

Doing so, moreover, would be 

unprecedented. While EPA has 

previously set the RFS standards at 

what the market actually used (like for 

2014 and 2015 in the 2014–2016 rule), 

we have never intentionally reduced the 

standards with the express intent to 

inflate the size of the carryover RIN 

bank. We further discuss this issue in 

the RTC document. 

At the same time, we do not believe 

that requiring higher volumes than what 

was actually used is appropriate. As 

explained above, doing so would result 

in some combination of potentially 

disruptive outcomes: (1) a reduction in 

the size of the carryover RIN bank; (2) 

obligated parties carrying deficits into 

2021; and/or (3) obligated parties being 

out of compliance with their RFS 

obligations. Given the intertwined 

nature of compliance from year to year, 

we acknowledge that requiring higher 

volumes in 2020 may increase demand 

for renewable fuels in 2022. However, 

this rule achieves the same result 

simply by requiring higher volumes in 

2022. Given that this rule cannot affect 

past years such as 2020 but can affect 

the future, we believe it is more 

appropriate to drive increasing 

renewable fuel demand prospectively, 

in 2022. Doing so also mitigates the 

compliance concerns, including the 

potential for non-compliance, described 

above. We discussed this issue further 

in Section III.B. 

The above reasons also support our 

decision to act after the statutory 

deadlines for waiving the volumes and 

establishing the 2020 standards. We 

have also further and specifically 

assessed whether it is appropriate to 

exercise the reset authority after the 

passage of the statutory deadline and 

have concluded that it is. We received 

comments from certain stakeholders 

suggesting either that EPA lacked the 

authority to utilize the reset authority 

after the deadline had passed, or that 

our discretion is limited when utilizing 

the reset authority after the deadline. 

Commenters suggested that the reset 

authority only provides for a 

prospective waiver and cannot be used 

to modify volumes that have already 

been established. As explained in 

Section II.A.2, the statutory deadline for 

resetting the total renewable fuel 

volume was in December 2019 (i.e., one 

year after the promulgation of the 2019 

standards final rule).120 The statutory 

deadlines for resetting the advanced 

biofuel and cellulosic biofuel volumes 

occurred even earlier. Despite being late 

to meet our statutory obligations, we are 

exercising the reset authority for several 

reasons. 

First, doing so satisfies our statutory 

obligation to reset the statutory 

volumes. Second, we have already 

notified the public that we intended to 

exercise the reset authority.121 This rule 

makes good on that intent and meets our 

statutory obligation. Third, the reset 

authority also provides EPA broad 

discretion to modify the renewable fuel 

volumes and to establish biofuel volume 

requirements at the volumes actually 

consumed in 2020. Such 2020 volumes 

for advanced biofuel and total 

renewable fuel could not be established 

under the cellulosic waiver authority, 

which was the legal basis for the 

original 2020 final rule.122 Nonetheless, 

we believe that these are the appropriate 

volumes for the reasons explained 

above. Fourth, we acknowledge that the 

text of the statutory reset provision does 

contemplate a prospective waiver of the 

applicable volumes. This is not, 

however, different from other statutory 

authorities in the RFS program, which 

also contemplate prospective actions.123

This includes the authority to establish 

volumes for 2023 and beyond under 

CAA section 211(o)(2)(B)(ii), which 

requires EPA to establish volume 

requirements 14 months in advance of 

when they apply based on the same 


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124See ACE at 718–9, NPRA at 154–158, Monroe 

at 920. 

125See 40 CFR 80.1451(f)(1)(i)(B)(3); 87 FR 5696 

(February 2, 2022). 

statutory factors as the reset authority. 

The D.C. Circuit has reviewed EPA’s 

belated exercise of authority under that 

and other RFS provisions and has held 

that EPA does not lose authority to act 

merely as a result of a missed 

deadline 124 and upheld our prior 

rulemakings as reasonable. Finally, EPA 

generally has the authority to reconsider 

past actions establishing the RFS 

standards and in doing so can utilize 

explicit waiver authorities provided in 

the statute to modify volumes that we 

declined to use at the time of the initial 

promulgation of the rule to reduce 

volumes beyond initial reductions. 

Nothing in the statute indicates that the 

various waiver authorities (such as the 

reset and cellulosic waiver authorities) 

cannot be used together, nor does 

anything indicate that EPA’s authorities 

are limited upon reconsideration of a 

rule. Further discussion of this topic is 

provided in Section 2 of the RTC 

document. 

The revised 2020 volumes, along with 

the original volumes, are shown in 

Table III.C–1. The revised 2020 

percentage standards are provided in 

Section V.D. 

TABLE III.C–1—REVISED VOLUME REQUIREMENTS FOR 2020 

[Billion RINs] 

Standard Original 

volume 

Revised 

volume 

Cellulosic Biofuel ..................................................................................................................................................... 0.59 0.51 

Biomas-Based Diesel .............................................................................................................................................. a 2.43 a 2.43 

Advanced Biofuel ..................................................................................................................................................... 5.09 4.63 

Total Renewable Fuel .............................................................................................................................................. 20.09 17.13 

Source: EMTS (EPA Moderated Transaction System). See ‘‘RIN supply as of 2–17–22’’ 

aThe BBD volume for 2020 is in physical gallons (rather than RINs) and was established in the 2019 final rule (83 FR 63704, December 11, 

2018). We are not revising the 2020 BBD volume in this action. 

D. Volume Requirements for 2021 

We proposed to establish the 

cellulosic biofuel, advanced biofuel, and 

total renewable fuel volumes for 2021 at 

the volumes of these fuels projected to 

be supplied to the U.S. in 2021. 

Commenters generally supported this 

proposed approach. Many commenters 

submitted updated data on renewable 

fuel use in 2021, or referenced publicly 

available data on renewable fuel use and 

asked that the 2021 volumes reflect this 

updated data. Some commenters 

suggested that the 2021 volumes should 

be set at the implied statutory levels 

despite the retroactive nature of the 

2021 volumes and the anticipated 

shortfall in renewable fuel use relative 

to the implied statutory volumes. In this 

final rule we are establishing cellulosic 

biofuel, advanced biofuel, and total 

renewable fuel volumes for 2021 at the 

volumes of these fuels supplied to the 

U.S. in 2021, as proposed. However, 

instead of basing the 2021 volumes on 

a projection of the supply in 2021 as in 

the proposed rule, we now have and are 

updating the volumes based on data on 

the actual supply of these fuels in 2021. 

While this results in some changes 

relative to the proposed volumes for 

2021, these changes are relatively small, 

and are consistent with our stated intent 

in the proposed rule to finalize volumes 

for 2021 consistent with the most 

current data available. 

Given that we are establishing 2021 

volumes on the same basis as the 2020 

volumes (i.e., at the volumes of biofuels 

actually used), the rationale for our 2021 

volumes is similar to the rationale for 

our 2020 volumes. Below we present 

some of the key similarities and also 

note differences where they exist. As 

with 2020, because this rule is being 

finalized after the end of 2021, there is 

no longer any ability for the rule to 

affect renewable fuel production, 

imports, and consumption in the U.S. in 

2021. As such, the impact of the rule on 

each of the statutory factors with regard 

to renewable fuel use and production 

during 2021 is similarly limited. Also, 

as with 2020, we could have set 

volumes for 2021 that were greater or 

lesser than the volume of renewable fuel 

that was actually consumed in 2021, but 

we do not believe that doing so would 

be appropriate for similar reasons. We 

do, however, believe that the RFS 

program should drive increases in 

renewable fuel volumes over time. 

Given that we are setting volumes for 

2020–2022 in this rule and the fact that 

retrospective volumes have limited 

ability to affect biofuel use, we believe 

that increases in volume requirements 

are more appropriate in 2022. That is 

when this rule applies prospectively for 

part of the year and has the potential to 

affect actual biofuel consumption. We 

discuss this relationship between the 

three years further in Section III.B.3. 

As with 2020 standards, the 2021 

standards are both late (relative to the 

statutory deadline of November 30, 

2020) and retroactive. Unlike for 2020, 

however, we are not modifying 

previously finalized standards for 2021. 

The lateness and retroactivity of the 

2021 standards are appropriate for 

similar reasons as for 2020. We believe 

that establishing the 2021 volumes at 

the volumes actually used properly 

balances the statutory goal of increasing 

renewable fuel use with mitigating 

burdens on obligated parties. It ensures 

that the obligated parties should have 

sufficient RINs to comply. In a separate 

action, we have extended the 

compliance reporting deadline for 2021, 

providing additional lead time. 

Obligated parties will have at least 9 

months after the publication of this 

action in the Federal Register before 

having to demonstrate compliance with 

their 2021 obligations.125 We also 

maintain the existing compliance 

flexibilities for obligated parties 

including access to carryover RINs and 

carryforward deficits. As discussed 

above, the revision of the 2020 volumes 

to those actually supplied preserves the 

carryover RIN bank that helps facilitate 

compliance, including for 2021. In 

addition, we note that this approach, of 

setting volumes at those actually used, 

is consistent with our approach in the 

2014 and 2015 standards rulemakings, 

which the D.C. Circuit upheld in ACE. 

As with the 2020 volumes, the 2021 

volumes also depend upon an exercise 

of the reset authority. We believe using 

the reset authority is appropriate for 

similar reasons as for 2020, including 

that we are statutorily obligated to reset 

2021 volumes, we have previously 

informed the public that we intended to 

reset the volumes, and the reset 

authority gives us discretion to reduce 

the total renewable fuel volume beyond 

what we could establish under the 


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126See CAA section 211(o)(7)(F) (‘‘the 

Administrator shall promulgate a rule . . . that 

modifies the applicable volumes set forth in the 

table concerned for all years following the final year 

to which the waiver applies’’). 

127The implied statutory volume for noncellulosic advanced biofuel in 2022 (5 billion 

gallons) is the difference between the statutory 

volumes for advanced biofuel (21 billion gallons) 

and cellulosic biofuel (16 billion gallons) in 2022. 

Similarly, the implied statutory volume for 

conventional renewable fuel in 2022 (15 billion 

gallons) is the difference between the statutory 

volumes for total renewable fuel (36 billion gallons) 

and advanced biofuel (21 billion gallons) in 2022. 128See Chapters 2 and 5 of the RIA. 

129See Chapter 5.1 of the RIA. 

130The projected volume available must represent 

a ‘‘neutral aim at accuracy’’ API v. EPA, 706 F.3d 

476 (D.C. Cir. 2013). 

cellulosic waiver. As with resetting the 

2020 standards, we do not believe that 

the passage of time or the retroactive 

nature of this rule deprive us of our 

ability to exercise the reset authority. 

Additionally, the statute indicates that 

when we reset the volumes, we must do 

so for all remaining years in the 

statutory volume tables, which extend 

through 2022. Thus, in resetting the 

2020 volumes, we are obligated to reset 

the 2021 and 2022 volumes.126

The volumes of cellulosic biofuel, 

advanced biofuel, and total renewable 

fuel that we are establishing for 2021 are 

shown in Table III.D–1. The BBD 

volume for 2021 was previously 

established in the 2020 final rule and is 

included in Table III.D–1 for context. 

These volumes are based on the actual 

consumption of renewable fuels in the 

U.S., as discussed in greater detail in 

Chapter 5 of the RIA. 

TABLE III.D–1—RFS VOLUMES FOR

2021 

[Billion RINs] 

Category Volume 

Cellulosic Biofuel .................. 0.56 

Biomass-Based Diesel ......... a 2.43 

Advanced Biofuel .................. 5.05 

Total Renewable Fuel .......... 18.84 

aThe BBD volume for 2021 is in physical 

gallons (rather than RINs) and was established in the 2020 final rule (85 FR 7016, February 6, 2020). We are not revising the 2021 

BBD volume in this action. 

E. Volume Requirements for 2022 

For 2022 we proposed a cellulosic 

biofuel volume that was equal to the 

volume of qualifying cellulosic biofuel 

projected to be used in the U.S. in 2022 

and volumes of non-cellulosic advanced 

biofuel and conventional renewable fuel 

that were consistent with the implied 

statutory targets for these categories.127

The proposed volumes for 2022 were 

significantly higher than the proposed 

volumes for 2020 and 2021. 

We received numerous comments on 

the proposed volumes for 2022. Many 

commenters supported the proposed 

volumes and the incentives those 

volumes provide for increased 

renewable fuel production and use in 

the U.S. Some of these commenters 

suggested that even higher volumes may 

be appropriate, particularly higher 

volumes of advanced biofuel. We also 

received many comments arguing that 

the proposed volumes were too high. 

These comments generally raised 

concerns that the implied volume for 

conventional renewable fuel (15 billion 

gallons) was far above the E10 

blendwall. To address these concerns 

these parties requested that we reduce 

the total renewable fuel volume by 1.2– 

1.5 billion gallons so that the implied 

conventional volume reflected the 

estimates of the E10 blendwall in the 

proposed rule. As an alternative means 

of reducing the implied volume of 

conventional renewable fuel below the 

blendwall, some commenters suggested 

that we retain the proposed volume for 

total renewable fuel, but increase the 

advanced biofuel volume requirement 

by 1.2–1.5 billion gallons. Finally, some 

commenters requested that we reduce 

the advanced biofuel volume. These 

commenters generally raised concerns 

about the availability and/or cost of 

advanced biofuel feedstocks, and the 

environmental impacts associated with 

increased use of these feedstocks to 

produce higher volumes of advanced 

biofuels. 

After considering these comments and 

updated data on biofuel production and 

use, we are establishing 2022 total 

renewable fuel, advanced biofuel, and 

cellulosic biofuel volumes using the 

same general approach as in the 

proposed rule. We are establishing the 

cellulosic biofuel volume at the volume 

of qualifying cellulosic biofuel projected 

to be used in the U.S. in 2022. We are 

establishing the advanced biofuel and 

total renewable fuel volumes consistent 

with the cellulosic biofuel volume and 

the implied statutory targets for noncellulosic advanced biofuel and 

conventional renewable fuel (5 billion 

gallons and 15 billion gallons, 

respectively). These volumes represent 

significant growth compared to 

historical volumes and compared to the 

volumes of these fuels used in 2020 and 

2021. The cellulosic biofuel volume we 

are finalizing for 2022 represents a 70 

million gallon increase over the volume 

of cellulosic biofuel used in 2021. This 

increase is based on the expected 

continued growth in biogas use. We also 

anticipate significant growth in the use 

of non-cellulosic advanced biofuels, 

especially in advanced renewable 

diesel.128 While we expect that 

conventional ethanol use will fall short 

of the implied 15 billion gallon volume 

in 2022 by roughly 800 million gallons, 

we project that greater volumes of 

biodiesel and renewable diesel will be 

produced and imported to offset this 

shortfall. We discuss the 2022 BBD 

volume separately in Section III.F. The 

remainder of this section discusses our 

rationale for finalizing these volumes. 

Additional discussion, including more 

detailed responses to the comments 

mentioned above, can be found in the 

RIA and the RTC document. 

The cellulosic biofuel volume for 

2022 is equal to the projected available 

volume of cellulosic biofuel.129 This 

volume represents the highest volume of 

cellulosic biofuel we can establish for 

2022 given the cellulosic waiver 

provision, which requires EPA to reduce 

the statutory cellulosic biofuel volume 

to the projected volume available.130

While EPA does have the authority to 

establish a lower cellulosic biofuel 

volume under the reset authority, we do 

not believe this would be appropriate 

for 2022, as discussed below. 

EPA’s approach to the cellulosic 

biofuel volume for 2022 seeks to realize 

the potential for GHG benefits 

associated with increased cellulosic 

biofuel production despite the relatively 

high costs of liquid cellulosic biofuels, 

and in the case of CNG/LNG derived 

from biogas, the impact on the price of 

transportation fuel. Because cellulosic 

biofuels through 2022 are projected to 

be produced from wastes or residues, 

their production is not expected to have 

significant adverse impacts on several of 

the statutory factors such as the price 

and supply of agricultural commodities, 

water quality and supply, and the 

conversion of wetlands, ecosystems, and 

wildlife habitat. Thus, while some of the 

statutory factors (such as the cost to 

consumers of transportation fuel and the 

cost to transport goods) may suggest that 

a volume of cellulosic biofuel lower 

than the volume projected to be 

produced in 2022 would be appropriate, 

we have determined that these factors 

are outweighed by other factors (such as 

climate change). 

The advanced biofuel and total 

renewable fuel volumes strike a balance 

between numerous competing statutory 

factors. They reflect the potential for 

growth in the volume of renewable fuel 

produced and consumed in the U.S., 

and the potential energy security and 

climate change benefits that producing 

and consuming increasing volumes of 

qualifying renewable fuels provide. 


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131CAA section 211(o)(1)(B)(i). 

132See ‘‘Carryover RIN Bank Calculations for 

2020–2022 Final Rule,’’ available in the docket for 

this action. 

133We prospectively established a volume for 

conventional renewable fuel for 2016 (14.5 billion 

gallons) that was lower than the statutory implied 

volume (15 billion gallons). In doing so, we 

exercised our ‘‘inadequate domestic supply’’ waiver 

authority based largely on the limited demand for 

ethanol in the United States. That decision that was 

subsequently set aside by the D.C. Circuit in ACE, 

as exceeding our waiver authority. We further 

discuss the ACE decision and our response to the 

Court’s remand in Section IV. 

134See 40 CFR 80.1451(f)(1)(i)(B)(4); 87 FR 5696 

(February 2, 2022). 

They also take into consideration the 

potential negative impacts of renewable 

fuels produced from crops such as corn 

or soybeans on environmental factors 

such as the conversion of wetlands, 

ecosystems, and wildlife habitat, water 

quality, and water supply. 

We acknowledge that the implied 

conventional renewable fuel volume is 

higher than the volume of these fuels 

projected to be consumed in the U.S. in 

2022. This may help incentivize the 

continued expansion of the 

infrastructure necessary to expand the 

use higher-level blends of ethanol, 

which remains the dominant form of 

conventional renewable fuel. In recent 

years, ethanol consumption beyond the 

E10 blendwall in the U.S. has been 

limited by infrastructure constraints—as 

well as other factors—to a volume 

significantly lower than the volume of 

ethanol produced in the U.S. and the 

total production capacity of the U.S. 

ethanol industry. If these infrastructure 

constraints can be overcome, domestic 

ethanol consumption and ultimately 

domestic ethanol production could 

increase, and this could result in job 

creation, rural economic development, 

higher corn prices, and a greater supply 

of agricultural commodities. Despite the 

incentive for higher-level ethanol 

blends, it is our expectation that ethanol 

use will fall short of 15 billion gallons. 

We project that additional volumes of 

conventional biodiesel and renewable 

diesel could be supplied in 2022 to 

fulfill a portion of that shortfall, 

including renewable fuels that are 

grandfathered under 40 CFR 80.1403 

and are thus not required to meet the 

minimum 20 percent GHG reduction 

required for all qualifying renewable 

fuel. These fuels would most likely be 

produced in foreign facilities and from 

foreign grown feedstocks. This may 

cause additional adverse environmental 

impacts and would not provide the 

same benefits to domestic job creation 

and rural economic development but 

could still provide energy security 

benefits. 

In addition, based on past experience, 

the shortfall in conventional renewable 

fuel volumes needed to meet 15 billion 

gallons means that obligated parties will 

likely need to look to other sources of 

renewable fuel beyond conventional 

renewable fuels to meet their 

compliance obligations for 2022. While 

we are establishing the non-cellulosic 

portion of the advanced biofuel 

standard at the full implied statutory 

volume of 5 billion gallons, our 

assessment of potential supply indicates 

that additional volume, particularly of 

advanced renewable diesel, will likely 

be used in 2022. This means that if, as 

expected, the market falls short of the 

implied volume of conventional 

renewable fuel in 2022, as has happened 

in several years in the past, excess 

volumes of advanced biofuel beyond 

what is needed to meet the advanced 

biofuel volume will likely be used to 

fulfill some portion of the shortfall. 

Finally, while we are projecting that 

sufficient biodiesel and renewable 

diesel, both advanced and conventional, 

will be available to help meet the 2022 

volume requirements, the market may 

fall short. In that case, the carryover RIN 

bank can still enable compliance and 

help avoid or mitigate potential market 

disruptions. As noted above, our 

decisions to establish the 2020 and 2021 

volumes at those actually supplied 

preserve the carryover RIN bank. 

Obligated parties may use these 

carryover RINs to help them comply 

with the 2022 standards. See Section 

III.B for a more detailed discussion of 

carryover RINs. 

We acknowledge that in lieu of 

relying on higher volumes of advanced 

biofuel to fulfill an expected shortfall in 

conventional biofuel, we could instead 

establish a higher advanced biofuel 

volume and corresponding lower 

conventional biofuel volume, while 

keeping the total renewable fuel volume 

the same. While this alternative would 

require larger volumes of potentially 

lower GHG fuels (i.e., advanced 

biofuels), we expect the actual impact 

on GHG emissions to be minimal given 

that much of the shortfall in 

conventional biofuel is expected to be 

made up with additional volumes of 

advanced biofuels regardless. Moreover, 

since the vast majority of ethanol is 

made from corn starch and therefore 

cannot qualify as advanced biofuel 

regardless of its GHG reductions,131 this 

alternative would reduce incentives for 

increased use of higher-level ethanol 

blends and may negatively affect 

investment in infrastructure for the 

distribution of such blends. By contrast, 

maintaining the statutory implied 

volume of conventional renewable fuel 

preserves greater incentives for 

investment in the infrastructure for 

higher-level ethanol blends and 

therefore has the potential to induce 

greater renewable fuel consumption in 

future years. Moreover, the advanced 

carryover RIN bank going into 2022 is 

expected to be very low, further favoring 

a lower advanced biofuel standard.132

We note that this approach of 

maintaining the statutory implied 

conventional and non-cellulosic 

advanced biofuel volumes is inherently 

consistent with the volumes Congress 

itself established in EISA. It is also 

consistent with EPA’s policy in prior 

years, during which we have never 

established prospective volume 

requirements lower than the implied 

statutory volume targets, with a single 

exception.133 While we have discretion 

to establish different volumes, we 

continue to believe that maintaining the 

implied statutory volumes strikes the 

proper balance based upon our 

consideration of the reset factors. 

As with 2020 and 2021, the 2022 

standards are being promulgated late; 

that is, after the statutory deadline of 

November 30, 2021. Since this rule is 

being finalized during 2022, the 2022 

standards will be partially retroactive 

and partially prospective. Despite the 

lateness and partial retroactivity of this 

rule, we nonetheless believe it is 

appropriate to establish increased 

volumes for 2022. First, the 2022 

volumes appropriately balance the 

statutory goal of increasing renewable 

fuel use with mitigating burdens on 

obligated parties. Since the 2022 

standards are partially prospective, we 

expect it will induce the market to 

produce, import, and consume 

additional biofuels in 2022. This is in 

contrast to the 2020 and 2021 standards, 

which as noted above, are entirely 

retroactive. Moreover, we find that the 

market is capable of meeting the 

increased 2022 volumes through 

increased biofuel use, and any shortfall 

can be met by carryover RINs. Overall, 

we think the 2020–2022 volumes in the 

aggregate strike the proper policy 

balance overall between the statutory 

purpose of increasing biofuel use with 

mitigating burdens on obligated parties. 

We further discuss the intertwined 

nature of these standards in Section 

III.B.3. 

Second, we are providing significant 

lead time for 2022. Obligated parties 

will have at least 11 months after the 

publication of this action in the Federal 

Register before having to demonstrate 

compliance with their 2022 

obligations.134 Moreover, the proposed 

rule provided parties with additional 


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135We acknowledge that this increase in the 2022 

BBD volume is slightly different than our actions 

in the 2019 and 2020 final rules. In those rules, we 

were setting the BBD volumes for the subsequent 

year. For instance, in the 2019 rule, we increased 

the 2020 BBD volume based on increases in the 

2019 non-cellulosic advanced volume. In this rule, 

we are setting the 2022 BBD and advanced volumes 

at the same time. In addition, because we 

established the 2021 cellulosic biofuel and 

advanced biofuel volumes retroactively at the levels 

actually consumed, the increase in non-cellulosic 

advanced biofuel from 2021 to 2022 is actually 

about 490 million gallons, or slightly less than the 

change in the implied statutory non-cellulosic 

advanced biofuel volume of 500 million gallons. 

Regardless of these differences, EPA’s goal is to 

maintain approximately the same space for other 

advanced biofuels as in recent prospective annual 

rules. We accomplish this by raising the BBD 

volume by 330 million physical gallons (equivalent 

to 500 million ethanol-equivalent gallons). We note 

that even were we to raise the BBD volume by only 

490 million ethanol-equivalent gallons, we expect 

no impact on the market given that the advanced 

biofuel and total renewable fuel standards are 

driving BBD use in 2022. 

136ACE at 721. 

137 Id. (quoting Monroe Energy, LLC v. EPA, 750 

F.3d 909, 920 (D.C. Cir. 2014)). 

advance notice. We proposed the 2022 

volumes in late 2021 and are finalizing 

very similar volumes in this action. 

Specifically, we are finalizing the same 

implied conventional and noncellulosic advanced biofuel volumes 

and a slightly lower cellulosic biofuel 

volume based on the same methodology 

with updated data. 

We also continue to provide 

compliance flexibilities such as access 

to carryover RINs and carryforward 

deficits. As discussed above, the 

revision of the 2020 volumes to those 

actually supplied preserves the 

carryover RIN bank and helps facilitate 

compliance, including for 2022. 

Finally, we have considered and 

rejected multiple alternatives to the 

2022 volumes we are finalizing. As 

discussed above, these include requiring 

lower 2022 volumes while not revising 

the 2020 standards, requiring lower 

2022 volumes but higher 2020 and 2021 

volumes, and requiring higher 2022 

advanced biofuel volumes but lower 

2022 implied conventional volumes. We 

address additional alternatives raised by 

commenters for volumes for all three 

years in the RTC document. 

We also acknowledge that we are late 

in resetting the 2022 volumes. We 

nonetheless believe that this late 

exercise of the reset authority is 

appropriate for similar reasons as for 

2020 and for 2021, including that we are 

obligated to reset the 2022 volumes, we 

have previously told the public that we 

intended to do so, and the statute 

requires us to reset 2022 if we reset 2020 

and 2021. Moreover, all the 2022 

volumes we are resetting are also 

independently justified under our 

cellulosic waiver authority. The exercise 

of that authority is also late, but it is 

justified for substantively the same 

reasons as the retroactive establishment 

of the 2022 standards described above. 

The volumes of cellulosic biofuel, 

BBD, advanced biofuel, and total 

renewable fuel we are finalizing for 

2022 are shown in Table III.E–1. The 

BBD volume for 2022 is also included 

in Table III.E–1 for context, although we 

discuss it in Section III.F. 

TABLE III.E–1—RFS VOLUMES FOR

2022 

[Billion RINs] 

Category Volume 

Cellulosic Biofuel .................. 0.63 

Biomass-Based Diesel ......... a 2.76 

Advanced Biofuel .................. 5.63 

Total Renewable Fuel .......... 20.63 

aThe BBD volume for 2022 is in physical 

gallons (rather than RINs). 

F. BBD Volume for 2022 

As described above, we are finalizing 

an advanced biofuel volume consistent 

with the statutory implied noncellulosic advanced biofuel volume of 5 

billion gallons. This represents an 

increase of 500 million gallons from the 

statutory implied non-cellulosic 

advanced biofuel volume of 4.5 billion 

gallons in prior years. Consistent with 

this and with the proposed rule, we are 

also increasing the BBD volume 

requirement by the same energyequivalent amount (330 million 

physical gallons) to 2.76 billion gallons. 

As in recent years, we believe that 

excess volumes of BBD (above 2.76 

billion gallons) will be used in 2022 to 

satisfy the advanced biofuel standard. 

Historically, the BBD standard has not 

independently driven the use of BBD in 

the market. This is due to the nested 

nature of the standards and the 

competitiveness of BBD relative to other 

advanced biofuels. Instead, the 

advanced biofuel standard, and 

occasionally the total renewable fuel 

standard, have driven the use of BBD in 

the market. We believe this trend will 

continue in 2022, and that the 2022 

advanced biofuel and total renewable 

standards will drive the use of BBD in 

the market in 2022. 

At the same time, we think it is 

important to maintain space for other 

advanced biofuels to participate in the 

RFS program. Although the BBD 

industry has matured over the past 

decade, the production of other 

advanced biofuels continues to be 

relatively low and uncertain. 

Maintaining this space for other 

advanced biofuels can facilitate in the 

long-term increased commercialization 

and use of other advanced biofuels, 

which may have superior environmental 

benefits and lower costs relative to BBD. 

Conversely, we do not think that 

increasing the size of this space is 

necessary for 2022 given that only small 

quantities of these other advanced 

biofuels have been used in recent years 

relative to the space we have already 

provided. 

The BBD volume for 2022 is 

consistent with our policy in recent 

annual rules, where we set the BBD 

volume consistent with the change, if 

any, in the non-cellulosic advanced 

biofuel volume. In the 2019 final rule, 

we set the 2020 BBD volume at 2.43 

billion gallons. This was an increase 

from the prior year’s BBD volume by the 

same energy-equivalent amount (330 

million physical gallons) as the increase 

in the 2019 non-cellulosic advanced 

biofuel volume, which had increased by 

500 million ethanol-equivalent gallons 

from 4 to 4.5 billion gallons. By 

contrast, in the 2020 final rule, when 

the 2020 non-cellulosic advanced 

biofuel volume remained constant at 4.5 

billion gallons, we also maintained the 

2021 BBD volume at 2.43 billion 

gallons. In both rules, we preserved a 

significant space for other advanced 

biofuels to compete, approximately 

equal to 850 million RINs 

(approximately equal to 566 million 

physical gallons). In reality, only 334 

million RINs of other advanced biofuel 

was available in 2020 and 227 million 

RINs in 2021, suggesting that we do not 

need to further increase the space for 

other advanced biofuels. In this rule, we 

are continuing to maintain space for 

other advanced biofuels. Since the noncellulosic advanced biofuel volume is 

increasing by 500 million gallons to 5 

billion gallons in 2022, we are 

increasing the BBD volume by the same 

energy-equivalent amount, or 330 

million physical gallons.135

We acknowledge that in finalizing the 

2022 BBD volume in this action, we are 

establishing a late BBD volume. CAA 

section 211(o)(2)(B)(ii) provides that 

EPA shall determine the applicable 

volume 14 months prior to the year for 

which the standard will apply. That 

deadline (October 31, 2020) has already 

passed. The D.C. Circuit in ACE has 

affirmed EPA’s ability to promulgate 

late BBD standards as long as those 

standards are reasonable.136 In 

evaluating the reasonableness of EPA’s 

standards, the court stated that EPA 

must ‘‘consider[] various ways to 

minimize the hardship caused to 

obligated parties.’’ 137 As in this case of 

previous annual rules, we believe that 


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138The below costs and benefits for both 2021 

and 2022 are calculated relative to the actual 

volumes of renewable fuel used in 2020. The 2022 

values therefore reflect the incremental volumes for 

both 2021 and 2022. 

139 Due to the uncertainty related to the GHG 

emission impacts of this rule (discussed in further 

detail in Chapter 3.2 of the RIA) we have not 

included a quantified projection of the GHG 

emission impacts of the rule. However, to provide 

perspective regarding the scope of the potential 

benefits, Chapter 3.2.2 of the RIA illustrates 

potential GHG benefits associated with the volumes 

in this rule using the lifecycle GHG values 

calculated in the 2010 RFS final rule and other 

prior actions. 

140Office of Management and Budget (OMB). 

Circular A–4. September 17, 2003. 

the advanced biofuel and total 

renewable fuel standards for 2022 will 

drive the use of BBD in the market, and 

thus, the BBD standard we establish is 

unlikely to result in additional burdens 

on obligated parties. Moreover, as with 

the other 2022 standards, we have 

provided parties with significant lead 

time. Additionally, the volume 

requirement we are finalizing is 

consistent with our treatment of the 

BBD volume requirement in the past 

(i.e., increasing the BBD volume 

requirement in accordance with 

increases in the implied statutory noncellulosic advanced volume so as to 

preserve space for other advanced 

biofuels). Further, the same compliance 

flexibilities available for the other 

standards also apply to BBD. We further 

discuss the BBD standard in Chapter 10 

of the RIA and in the RTC document. 

G. Summary of the RFS Volumes for 

2020–2022 

The volumes for 2020, 2021, and 2022 

are summarized in Table III.G–1. 

TABLE III.G–1—RFS VOLUMES FOR 2020, 2021, AND 2022 

[Billion RINs] 

Category 2020 2021 2022 

Cellulosic Biofuel ......................................................................................................................... 0.51 0.56 0.63 

Biomass-Based Diesel a .............................................................................................................. b 2.43 c 2.43 2.76 

Advanced Biofuel ......................................................................................................................... 4.63 5.05 5.63 

Total Renewable Fuel .................................................................................................................. 17.13 18.84 20.63 

aThe BBD volumes are in physical gallons (rather than RINs). 

bThe BBD volume for 2020 was established in the 2019 final rule (83 FR 63704, December 11, 2018). 

cThe BBD volume for 2021 was established in the 2020 final rule (85 FR 7016, February 6, 2020). 

H. Quantitative Impacts of the Volumes 

As one aspect of our analysis, we 

estimated certain quantitative impacts 

of the volumes. As explained in Chapter 

2.2 of the RIA, we have used a baseline 

of the volumes actually supplied in 

2020 to quantitatively assess the 

impacts of this rule, and thus the 2020 

volumes have no costs or benefits. We 

therefore focus on the quantitative 

impacts of the 2021 and 2022 

volumes.138 We recognize that there are 

other possible baselines that could be 

used as a point of comparison, and that 

the choice of baseline significantly 

influences our impact analyses. A 

potential alternative baseline is the 

volumes of renewable fuels that would 

be used each year from 2020–2022 in 

the absence of RFS obligations (a ‘‘No 

RFS baseline’’). While we have 

generally not used this alternative 

baseline in this rule for purposes of our 

quantitative analysis, Chapter 2.2 of the 

RIA contains a brief description of what 

such a baseline might look like, and 

how using such a baseline might affect 

our analysis of the impacts of this rule. 

Moreover, many of the qualitative 

analyses do consider a No RFS baseline. 

For some of the statutory factors (fuel 

costs, cost to transport goods, and 

energy security benefits), we were able 

to quantify the expected impacts and 

also monetize the associated societal 

impacts.139 Information and specifics on 

how fuel costs and the cost to transport 

goods are calculated are presented in 

Chapter 9 of the RIA, while energy 

security benefits are discussed in 

Chapter 4 of the RIA. A summary of the 

fuel costs to society and energy security 

benefits are shown in Tables III.H–1 and 

2. As noted above, these numbers 

estimate the impacts of the 2021 and 

2022 volumes relative to a 2020 

volumes baseline; that is, the impacts of 

the use of renewable fuel in 2021 and 

2022 relative to the use of renewable 

fuel in 2020. This is not the same as 

estimating the causal impacts of this 

rule. As described earlier in this section, 

because this rule is retroactive, it is not 

expected to affect renewable fuel use or 

production in 2020 or 2021 or to affect 

the statutory factors (including costs 

and energy security) insofar as they are 

based on renewable fuel use or 

production in those years. While this 

rule is expected to cause changes in 

renewable fuel use and production in 

2022, the renewable fuel volumes 

analyzed for 2022 are also impacted by 

other factors. These include, for 

instance, the increased use of ethanol as 

E10 given the projected increase in 

gasoline consumption in 2022. We 

further discuss these issues in Chapter 

2 of the RIA. 

TABLE III.H–1—FUEL COSTS OF THE

FINAL VOLUMES

[2021 dollars, millions] a

Year Costs b

2021 ...................................... 1,257 

2022: 

Excluding Supplemental 

Volumes ..................... 5,260 

Including Supplemental 

Volumes ..................... 5,720 

aThese costs represent the costs of producing and using biofuels relative to the petroleum fuels they displace. They do not include 

other factors, such as the potential impacts on 

soil and water quality. b In the proposal, costs for 2022 were also 

presented using 3 percent and 7 percent discount rates, following guidance to federal 

agencies on development of regulatory analyses.140 Since 2022 is now the current year, 

no discounting of future benefits is necessary 

for this final rule. 

TABLE III.H–2—ENERGY SECURITY

BENEFITS OF THE FINAL VOLUMES

[2021 dollars, millions] 

Year Benefits a

2021 ...................................... 67 

2022: 

Excluding Supplemental 

Volumes ..................... 217 

Including Supplemental 

Volumes ..................... 227 

a In the proposal, energy security benefits 

for 2022 were also presented using 3 percent 

and 7 percent discount rates, following guidance to federal agencies on development of 

regulatory analyses.141 Since 2022 is now the 

current year, no discounting of future benefits 

is necessary for this final rule. 


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141Office of Management and Budget (OMB). 

Circular A–4. September 17, 2003. 

142 80 FR 77420 (December 14, 2015). 

143 864 F.3d 691 (2017). 

144 84 FR 36762 (July 29, 2019). 

145See Docket No. EPA–HQ–OAR–2019–0136. 

146 85 FR 7016 (February 6, 2020). 

147We also refer to the supplemental total 

renewable fuel volume requirement as a 

‘‘supplemental standard’’ throughout this preamble. 

148 80 FR 77420 (December 14, 2015). The rule 

also established BBD volume for 2017. 

149 80 FR 77439 (December 14, 2015). 

150 80 FR 77499 (December 14, 2015). 

151 80 FR 77427. 

152 Id. 

153 80 FR 77444. 

154ACE, 864 F.3d 691. 

155 Id. at 696, 707. 

156We note that the precedential effect of the ACE 

decision has governed subsequent RFS annual 

rules. Compare, e.g., 82 FR 34229 & n.82 (July 21, 

2017) (2018 annual rule proposal, issued prior to 

ACE) (soliciting comment on whether it would be 

appropriate to exercise the inadequate domestic 

supply waiver authority based on the maximum 

reasonably achievable volume’’ of renewable fuel, 

which incorporates demand-side considerations), 

with 82 FR 46177 (Oct. 4, 2017) (2018 annual rule 

availability of supplemental information and 

request for comment, issued after ACE) 

(recognizing, under ACE, that EPA may not 

consider demand-side constraints in determining 

inadequate domestic supply). 

Other factors, such as job creation, the 

price and supply of agricultural 

commodities, and the impact on food 

prices are quantified but the societal 

impacts have not been monetized. We 

also provided a quantitative estimate of 

the expected annual rate of future 

commercial production of renewable 

fuels. Further information can be found 

in the RIA. We were not able to quantify 

many of the impacts of this rulemaking, 

including those of statutory factors such 

as environmental impacts and rural 

economic development. Regardless of 

whether or not we were able to quantify 

or monetize a particular impact, we 

considered each of the statutory factors. 

As we explained in Section II, the 

statute does not require quantification. 

We also did not rely solely on the 

quantitative impacts to determine the 

policy in this rulemaking. Rather, we 

find that the volumes established in this 

rulemaking are appropriate under the 

reset authority when we balance all of 

the relevant factors, which are described 

throughout this preamble and the RIA. 

IV. Response to ACE Remand 

In addition to finalizing the 

applicable volume requirements and 

percentage standards for 2020, 2021, 

and 2022, in this rulemaking we are also 

addressing the remand of the 2014–2016 

annual rule 142 by the D.C. Circuit in 

ACE.143 Previously, in the 2020 

proposal, we proposed to address the 

D.C. Circuit’s remand by retaining the 

original 2016 total renewable fuel 

standard.144 We received many 

comments both in support of and 

against this approach.145 In the 2020 

final rule, we deferred taking action in 

response to the remand.146 We are now 

addressing the remand through 

supplemental total renewable fuel 

volume requirements totaling 500 

million gallons spread over two 

years.147 We are finalizing a 250- 

million-gallon supplemental standard to 

be applied in 2022 coupled with the 

intention of proposing an additional 

250-million-gallon supplemental 

standard in a subsequent action for 

2023. We are establishing the 

supplemental total renewable fuel 

volume requirement and the 

corresponding percentage standard for 

2022 in this rulemaking. This section 

describes the relevant aspects of the 

2014–2016 annual rule, the court’s 

decision, EPA’s responsibilities 

following the court’s remand, and our 

approach. 

A. Reevaluating the 2014–2016 Annual 

Rule 

1. The 2016 Renewable Fuel Standard 

On December 14, 2015, EPA 

promulgated a rulemaking establishing 

the volume requirements and 

percentage standards for 2014, 2015, 

and 2016.148 In establishing those 

standards for 2016, we utilized the 

cellulosic waiver authority under CAA 

section 211(o)(7)(D) to lower the 

cellulosic biofuel, advanced biofuel, and 

total renewable fuel volume 

requirements, and the general waiver 

authority under CAA section 

211(o)(7)(A) to lower total renewable 

fuel by an additional increment.149

As an initial step, under CAA section 

211(o)(7)(D), we lowered the cellulosic 

biofuel volume requirement by 4.02 

billion gallons, to the projected 

production of cellulosic biofuel for 

2016, as required by the statute.150

Using that same authority, we then 

elected to reduce the advanced biofuel 

and total renewable fuel volumes. We 

did not reduce the advanced biofuel 

volume requirement by the full 4.02 

billion gallons that was permitted under 

this authority, but rather by a lesser 3.64 

billion gallons that resulted in an 

advanced biofuel volume requirement 

that was ‘‘reasonably attainable.’’ 151

This allowed some advanced biofuel to 

‘‘backfill’’ for the shortfall in cellulosic 

biofuel. We then reduced the total 

renewable fuel volume by an amount 

equivalent to the reduction in advanced 

biofuel in accordance with our 

longstanding interpretation that when 

making reductions to advanced biofuel 

and total renewable fuel under CAA 

section 211(o)(7)(D), the best reading of 

the statute is to reduce them both by the 

same amount.152

As a second step, under CAA section 

211(o)(7)(A), under a finding of 

inadequate domestic supply, we further 

lowered the total renewable fuel 

standard by 500 million gallons for 

2016.153 In assessing ‘‘inadequate 

domestic supply,’’ we considered the 

availability of renewable fuel to 

consumers. Based on such demand-side 

considerations, we made the additional 

500 million gallon reduction in the total 

renewable fuel requirement. 

The 2016 total renewable fuel 

standard was challenged in court. In an 

opinion issued on July 28, 2017, the 

D.C. Circuit vacated EPA’s use of the 

general waiver authority under a finding 

of inadequate domestic supply to reduce 

the 2016 total renewable fuel standard, 

the second step of setting the 2016 total 

renewable fuel standard.154 The court in 

ACE held that EPA had improperly 

focused on the availability of renewable 

fuel to consumers for use in their 

vehicles, and that the statute instead 

requires a ‘‘supply-side’’ assessment of 

the volumes of renewable fuel that can 

be supplied to refiners, blenders, and 

importers.155 Other components of 

EPA’s interpretation of ‘‘inadequate 

domestic supply’’ were either upheld by 

the court in ACE (e.g., EPA need not 

consider carryover RINs as a ‘‘supply 

source of renewable fuel for purposes of 

determining the supply of renewable 

fuel in a given year’’) or were not 

challenged (e.g., EPA’s consideration of 

biofuel imports as part of the domestic 

supply). EPA’s use of the cellulosic 

waiver authority to provide the initial 

reduction in total renewable fuel was 

also upheld by the court. In establishing 

volume requirements for subsequent 

years, EPA has applied the court’s 

holding and not reduced volumes under 

a finding of inadequate domestic 

supply.156

2. Agency Responsibility 

The court in ACE upheld EPA’s 

volume requirements for advanced 

biofuel, BBD, and cellulosic biofuel; 

there is, therefore, no need for EPA to 

adjust those 2016 final volume 

requirements, or to take further action 

with regard to these standards in light 

of the court’s decision. The court also 

upheld EPA’s use of the cellulosic 

waiver authority to reduce the 2016 

total renewable fuel volume 

requirement. The court only vacated 

EPA’s decision to further reduce that 

requirement under the ‘‘inadequate 

domestic supply’’ waiver authority, 


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157 Id. at 703. 

158 81 FR 34778 (May 31, 2016). 

159See FCC v. Fox, 556 U.S. 502 (2009), 

acknowledging an agency’s ability to change policy 

direction. 

160 2016 RINs could also be used for up to 20 

percent of an obligated party’s 2017 compliance 

demonstrations. 

161See 40 CFR 80.1427(a)(5). 

162 Information and guidance related to annual 

compliance reporting instructions for obligated 

parties will be available at: https://www.epa.gov/ 

fuels-registration-reporting-and-compliance-help/ 

how-report-quarterly-and-annually-renewable-fuel. 

163See Section III.B for a discussion of carryover 

RINs. 

remanding this issue to EPA for further 

consideration consistent with the 

court’s opinion.157 EPA’s obligation is 

thus to reevaluate the 2016 total 

renewable fuel volume requirement in 

accordance with the court’s decision. 

B. Consideration of Approaches for 

Responding to the ACE Remand 

As discussed in the previous section, 

EPA waived 500 million gallons of total 

renewable fuel volume associated with 

the 2016 volume requirements. In 2017, 

after the compliance year had passed, 

and after obligated parties had 

demonstrated compliance with those 

requirements, we received the ACE 

court’s decision rejecting EPA’s use of 

the general waiver authority under a 

finding of inadequate domestic supply 

to reduce volumes as being beyond our 

statutory authority and remanding the 

rulemaking action back to EPA. Given 

that compliance demonstrations had 

already occurred, and we had proposed 

volume requirements for 2017 factoring 

in the 2016 standards as originally 

promulgated,158 we were faced with the 

question of whether we should reopen 

2016 compliance, or factor the waived 

volume into a future standard, as 

discussed further in this section. In this 

action, we are taking an initial step to 

address the court’s remand through a 

supplemental standard of 250 million 

gallons of total renewable fuel in 2022, 

with the intent of proposing an 

additional supplemental standard of 250 

million gallons of total renewable fuel to 

be required in 2023 in a subsequent 

action. As the court invalidated only the 

500 million gallon total renewable fuel 

reduction, we are therefore limiting our 

response to the remand to only the 2016 

total renewable fuel standard and the 

corresponding 500 million gallon 

reduction stemming from our use of the 

general waiver authority. Since total 

renewable fuel is not a subcategory 

nested within any other volume 

category, this approach will not affect 

the other standards. 

1. Response to the ACE Remand 

We proposed to address the ACE 

decision by applying a 250-milliongallon supplemental standard in 2022 

with the intention of proposing an 

additional 250-million-gallon 

supplemental standard for 2023 in a 

subsequent rulemaking action. We 

received comments both in support of 

such an approach, and against such an 

action. Despite comments suggesting we 

should not impose a supplemental 

standard, or that we should impose a 

lesser supplemental standard, we are 

finalizing the supplemental standard as 

proposed. 

Under this approach, the original 

2016 standard for total renewable fuel 

will remain unchanged and the 

compliance demonstrations that 

obligated parties made for it will 

likewise remain in place. A 

supplemental standard for 2022 will 

thus avoid the difficulties associated 

with reopening 2016 compliance, as 

discussed below. This supplemental 

standard will have the same practical 

effect as increasing the 2022 total 

renewable fuel volume requirement by 

250 million gallons, as compliance will 

be demonstrated using the same RINs as 

used for the 2022 standard. The 

percentage standard for the 

supplemental standard is calculated the 

same way as the 2022 percentage 

standards (i.e., using the same gasoline 

and diesel fuel projections), such that 

the supplemental standard is additive to 

the 2022 total renewable fuel percentage 

standard. This approach will provide a 

meaningful remedy in response to the 

court’s vacatur and remand in ACE and 

will effectuate the Congressionally 

determined renewable fuel volume for 

2016, modified only by the proper 

exercise of EPA’s waiver authorities, as 

upheld by the court in ACE and in a 

manner that can be implemented in the 

near term. It is with emphasis on these 

considerations that we are taking a 

different approach from the one 

proposed in the 2020 proposal.159

We are treating such a supplemental 

standard as a supplement to the 2022 

standards, rather than as a supplement 

to standards for 2016, which has passed. 

In order to comply with any 

supplemental standard, obligated 

parties will need to retire available 

RINs; it is thus logical to require the 

retirement of available RINs in the 

marketplace at the time of compliance 

with this supplemental standard. As 

discussed below, it is no longer possible 

for obligated parties to comply with a 

500-million-gallon 2016 obligation 

using 2015 and 2016 RINs as required 

by our regulations. Thus, compliance 

with a supplemental standard applied to 

2016 would be impossible barring EPA 

reopening compliance for all years from 

2016 onward. By applying the 

supplemental standard to 2022 instead 

of 2016, RINs generated in 2021 and 

2022 will be used to comply with the 

2022 supplemental standard. 

Additionally, as provided by our 

regulations, RINs generated in 2015 and 

2016 could only be used for 2015 and 

2016 compliance demonstrations,160

and obligated parties had an 

opportunity at that time to utilize those 

RINs for compliance or sell them to 

other parties, while ‘‘banking’’ RINs that 

could be utilized for future compliance 

years. 

In applying the supplemental 

standard to 2022, we are treating the 

supplemental standard like a 2022 

standard in all respects. That is, 

producers and importers of gasoline and 

diesel fuel that are subject to the 2022 

standards are also subject to the 

supplemental standard. The applicable 

deadlines for attest engagements and 

compliance demonstrations that apply 

to the 2022 standards also apply to the 

supplemental standard. Due to the 2022 

supplemental standard being 

administratively included in the 2022 

standard, the gasoline and diesel fuel 

volumes used by obligated parties to 

calculate their obligations to satisfy the 

2022 supplemental standard will be 

their 2022 gasoline and diesel 

production and importation. 

Additionally, obligated parties may 

effectively use 2021 RINs for up to 20 

percent of their 2022 supplemental 

standard as allowed under the RFS 

regulations.161 We intend to provide 

more guidance for obligated parties 

regarding submitting annual compliance 

reports for the 2022 compliance year on 

our website closer to the 2022 annual 

compliance reporting deadline.162

As described more fully in Section III, 

the volume requirements for 2022 are 

market-forcing, requiring a growth in 

renewable fuel volumes that we believe 

is achievable. We nevertheless believe 

that compliance with the 2022 

supplemental standard in addition to 

the 2022 annual standards is feasible 

and can be achieved through the actual 

use of renewable fuels, including 

imports, in 2022 as opposed to 

carryover RINs. However, if the 2022 

supplemental standard cannot be fully 

met through the supply of additional 

renewable fuel volumes in 2022, it 

could be met through a drawdown of 

the carryover RIN bank.163 After 

compliance with the 2019–2021 

standards, the carryover RIN bank is 

expected to consist of approximately 


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164As noted in Section III.B, we project that there 

will be 1.83 billion total carryover RINs after 

compliance with the 2019 standards. Since we are 

setting both the 2020 and 2021 volume 

requirements at the actual volume of renewable fuel 

consumed in those years, 1.83 billion total 

carryover RINs will be available for compliance 

with the 2022 standards as well. The calculations 

performed to estimate the number of carryover RINs 

currently available can be found in the 

memorandum, ‘‘Carryover RIN Bank Calculations 

for 2020–2022 Final Rule,’’ available in the docket 

for this action. 

165 85 FR 7020–22 (February 6, 2020). 

166We note that we are not changing the reporting 

regulations at 40 CFR 80.1451(a), as we do not 

believe that regulatory changes are needed to 

accommodate annual compliance demonstration for 

the 2022 supplemental standard. 

167Obligated parties demonstrate annual 

compliance by following the reporting instructions 

entitled, ‘‘Instructions for RFS0304: RFS Annual 

Compliance Report’’ (RFS0304 report). A copy of 

these reporting instructions is available in the 

docket of this action. Obligated parties will 

combine the 2022 total renewable fuel standard 

with the 2022 supplemental standard in ‘‘Field 18’’ 

of the RFS0304 report. This combined value is then 

multiplied by the obligated gasoline and diesel fuel 

volume reported as specified in reporting 

instructions for ‘‘Field 20’’ of the RFS0304 report. 

168We are not modifying the deadline for the 

attest engagement reports for the 2022 compliance 

period in this action. 

169A link to this guidance will be available at: 

https://www.epa.gov/fuels-registration-reportingand-compliance-help/how-report-quarterly-andannually-renewable-fuel. 

1.83 billion total carryover RINs for 

compliance in 2022.164 We acknowledge 

that the size of the carryover RIN bank 

may change somewhat by the 2022 

compliance deadline. However, given 

the projected size of the carryover RIN 

bank in light of the revised 2020 

standards, we think it is virtually 

certain that more than 250 million total 

carryover RINs will be available in 2022. 

We recognize that in the 2020 

proposal, we indicated that a 

supplemental standard would result in 

a drawdown of the carryover RIN bank. 

We do not believe that is the case today, 

with a 250-million-gallon supplemental 

standard as opposed to the full 500 

million gallons, and supported by our 

analysis in Chapter 5 of the RIA, 

demonstrating that the market is capable 

of achieving the supplemental volumes 

with increased biofuel use. Nonetheless, 

we acknowledge that the market has the 

option of using carryover RINs to meet 

the supplemental standard. Such use 

would be consistent with a purpose of 

the carryover RIN bank. As we stated in 

the 2020 final rule, ‘‘[t]he current bank 

of carryover RINs provides an important 

and necessary programmatic and cost 

spike buffer that will both facilitate 

individual compliance and provide for 

smooth overall functioning of the 

program.’’ 165 As discussed in Section 

III.B, we continue to believe that a 

significant carryover RIN bank is 

fundamental to the functionality and 

success of the RFS program. 

Attempting to restore waived volumes 

many years after the close of the 

compliance period brings with it 

significant challenges, particularly in 

the context of this final action where we 

are already setting market-forcing 

standards for 2022. By phasing in the 

500 million gallons of total renewable 

fuel associated with the ACE remand 

through the implementation of two 

supplemental standards over two 

compliance years, we believe that we 

can lessen both the disruption to the 

market and the burden on obligated 

parties and maintain the functionality of 

the carryover RIN bank. Imposing two 

250-million-gallon supplemental 

standards in two compliance years, as 

opposed to one 500-million-gallon 

supplemental standard in a single 

compliance year, provides additional 

notice for both obligated parties and the 

renewable fuel industry about the 

additional volume requirements and 

lessens the additional requirements for 

each compliance year. This should 

increase the likelihood that the volumes 

are met with additional renewable fuel 

use and, in turn, lessen the likelihood 

that the carryover RIN bank is drawn 

down. 

In summary, we are implementing a 

250-million-gallon supplemental 

standard in 2022 and intend to propose 

an additional 250-million-gallon 

supplemental standard in 2023, totaling 

500 million gallons, which represent the 

reduction in the 2016 total renewable 

fuel volume improperly waived under 

the general waiver authority. This 

approach addresses our obligation to 

respond to the ACE remand while 

accounting for the unique timing of 

imposing a 2016 requirement in 2022. 

This approach allows obligated parties 

to comply with the 2022 supplemental 

standard using 2021 and 2022 RINs. 

2. Consideration of Alternatives 

In the proposed rule, we laid out our 

thinking regarding an alternative 

approach of reopening 2016 

compliance. We also considered 

maintaining the 2016 standards, as 

finalized in 2016, and as proposed in 

the 2020 proposal. Finally, we 

considered additional reductions in 

2016 volumes utilizing our cellulosic or 

general waiver authority as suggested by 

several commenters. These alternatives 

are further discussed, and rejected, in 

Section 8 of the RTC document. 

C. Demonstrating Compliance With the 

2022 Supplemental Standard 

We will prescribe formats and 

procedures as specified in 40 CFR 

80.1451(j) for how obligated parties will 

demonstrate compliance with the 2022 

supplemental standard that simplifies 

the process in this unique 

circumstance.166 Although the 2022 

supplemental standard is a regulatory 

requirement separate from and in 

addition to the 2022 total renewable fuel 

standard, obligated parties will submit a 

single annual compliance report for 

both the 2022 annual standards and the 

supplemental standard. Obligated 

parties will only report a single number 

for their total renewable fuel obligation 

in the 2022 annual compliance 

report.167 Obligated parties only need to 

submit a single annual attest 

engagement report for the 2022 

compliance period that covers both the 

2022 annual standards and the 2022 

supplemental standard.168 If we set a 

2023 supplemental standard as 

intended, we intend to use the same 

approach for the annual compliance 

demonstration for the 2023 compliance 

period as well. 

To assist obligated parties with this 

unique compliance situation, we intend 

to issue guidance with instructions on 

how to calculate and report the values 

to be submitted in the 2022 compliance 

reports.169

D. Authority and Consideration of the 

Benefits and Burdens 

In establishing the 2016 total 

renewable fuel standard, EPA waived 

the required volume of total renewable 

fuel by 500 million gallons using the 

inadequate domestic supply general 

waiver authority. The use of that waiver 

authority was vacated by the court in 

ACE and the rule was remanded to the 

EPA. In order to remedy our improper 

use of the inadequate domestic supply 

general waiver authority, we find that it 

is appropriate to treat our authority to 

establish a supplemental standard at 

this time as the same authority used to 

establish the 2016 total renewable fuel 

volume requirement—CAA section 

211(o)(3)(B)(i)—which requires EPA to 

establish percentage standard 

requirements by November 30 of the 

year prior to which the standards will 

apply and to ‘‘ensure’’ that the volume 

requirements ‘‘are met.’’ EPA exercised 

this authority for the 2016 standards 

once already. However, the effect of the 

ACE vacatur is that there remain 500 

million gallons of total renewable fuel 

from the 2016 statutory volumes that 

were not included under the original 

exercise of EPA’s authority under CAA 

section 211(o)(3)(B)(i). We are now 

utilizing the same authority to correct 

our prior action, and ‘‘ensure’’ that the 


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39630 Federal Register / Vol. 87, No. 126 / Friday, July 1, 2022 / Rules and Regulations 

170 In promulgating the 2009 and 2010 combined 

BBD standard, upheld by the D.C. Circuit in NPRA 

v. EPA, 630 F.3d 145 (2010), we utilized express 

authority under section 7545(o)(2). 75 FR 14670, 

14718. 

171See also CAA section 211(o)(2)(A)(iii)(I), 

requiring that ‘‘regardless of the date of 

promulgation,’’ EPA shall promulgate ‘‘compliance 

provisions applicable to refineries, blenders, 

distributors, and importers, as appropriate, to 

ensure that the requirements of this paragraph are 

met.’’ 

172As noted earlier, we intend to propose an 

additional 250-million-gallon supplemental 

standard for 2023 in a subsequent action. 

173See ACE, 864 F.3d at 718; Monroe Energy, LLC 

v. EPA, 750 F.3d at 920; NPRA, 630 F.3d at 154– 

58. 

174ACE, 864 F.3d at 718. 

175NPRA, 630 F.3d at 154–58. 

176 84 FR 36788 (July 29, 2019). 

volume requirements ‘‘are met,’’ and we 

are doing so significantly after 

November 30, 2015. Therefore, we have 

considered how to balance benefits and 

burdens and mitigate hardship by our 

late issuance of this standard. 

Additionally, as we have in the past, we 

rely on our authority in CAA section 

211(o)(2)(A)(i) to promulgate late 

standards.170 CAA section 

211(o)(2)(A)(i) requires that EPA 

‘‘ensure’’ that ‘‘at least’’ the applicable 

volumes ‘‘are met.’’ 171 Because the D.C. 

Circuit vacated our waiver of 500 

million gallons of total renewable fuel 

from the original 2016 standards, we are 

now taking action to ensure that at least 

the applicable volumes from 2016 are 

ultimately met. We have determined 

that the appropriate means to do so is 

through the use of two 250 million 

gallon supplemental standards, one in 

2022, as finalized in this action, and in 

2023, as we intend to propose in a 

subsequent action. 

We have sought to mitigate the 

burdens of a late and partially 

retroactive standard by implementing a 

supplemental standard that applies for 

the 2022 compliance year. Although we 

established a total renewable fuel 

standard in 2016, we did so while 

erroneously waiving 500 million gallons 

of total renewable fuel through the use 

of our general waiver authority. In this 

action, we are beginning to remedy that 

error by requiring an additional 250 

million gallon total renewable fuel 

volume requirement in the 2022 

compliance year.172

As noted in Section II.C, in ACE and 

two prior cases, the court upheld EPA’s 

authority to issue late renewable fuel 

standards, even those applied 

retroactively, so long as EPA’s approach 

is reasonable.173 EPA must consider and 

mitigate the burdens on obligated 

parties associated with a delayed 

rulemaking.174 When imposing a late or 

retroactive standard, we must balance 

the burden on obligated parties of a 

retroactive standard with the broader 

goal of the RFS program to increase 

renewable fuel use.175 The approach we 

are taking in this action would 

implement a late standard, with 

partially retroactive effects, as described 

in these cases. Obligated parties made 

their RIN acquisition decisions in 2016 

based on the standards as established in 

2016 and they may have made different 

decisions had we not reduced the 2016 

total renewable fuel standard by 500 

million gallons using the general waiver 

authority. Were EPA to create a 

supplemental standard for 2016 

designed to address the use of the 

general waiver authority in 2016, we 

would be imposing a wholly retroactive 

standard on obligated parties, but 

because the supplemental standard will 

be complied with in the 2022 

compliance year, it will instead be a late 

standard with partially retroactive 

effects. Pursuant to the court’s direction, 

we have carefully considered the 

benefits and burdens of our approach 

and considered and mitigated the 

burdens to obligated parties caused by 

the lateness. 

We acknowledge that in the 2020 

proposal, we stated that a supplemental 

standard would ‘‘impose a significant 

burden on obligated parties’’ that would 

‘‘be unduly burdensome and 

inappropriate’’ and lack ‘‘any 

corresponding benefit as any additional 

standard cannot result in additional 

renewable fuel use in 2016.’’ 176 Our 

approach mitigates the associated 

burdens or even entirely avoids most of 

the burdens we described in the 2020 

proposal. As an initial matter, we 

believe that the combined 2022 total 

renewable fuel obligation and the 

supplemental standard can be met with 

actual use of renewable fuel in 2022. 

Additionally, the current size of the 

carryover RIN bank is sufficient to 

mitigate the burden on obligated parties 

from a supplemental standard and 

spreading the 500 million gallon volume 

over two compliance years also 

mitigates the burdens on the carryover 

RIN bank, should parties choose to 

comply utilizing carryover RINs. 

We believe that the approach 

described in this action provides 

benefits that outweigh potential 

burdens. Consistent with the 2016 

renewable fuel volume established by 

Congress, our supplemental standard for 

2022 and intended supplemental 

standard for 2023 are in total equivalent 

to the volume of total renewable fuel 

that we inappropriately waived for the 

2016 total renewable fuel standard. The 

use of these supplemental standards 

phased across two compliance years 

provides a meaningful remedy to the 

D.C. Circuit’s vacatur of EPA’s use of the 

general waiver authority and remand of 

the 2016 rule in ACE. While this action 

cannot result in additional renewable 

fuel used in 2016, it can result in 

additional fuel use in 2022. We believe 

that that while the additional volume in 

2022 will put increased pressure on the 

market, it is nevertheless feasible and 

achievable. 

We have carefully considered and 

designed this approach to mitigate any 

burdens on obligated parties. We have 

considered the availability of RINs to 

satisfy this additional requirement. We 

are imposing a supplemental standard 

to the 2022 standards that will apply in 

the 2022 compliance year. Doing so 

allows 2021 and 2022 RINs to be used 

for compliance with the 2022 

supplemental standard, in keeping with 

existing RFS regulations. We believe 

there will be a sufficient number of 2021 

and 2022 RINs to satisfy the 2022 

supplemental standard. 

Second, we provide significant leadtime for obligated parties by imposing 

this standard as supplemental to the 

2022 standard. Obligated parties will 

have the same amount of additional 

time to comply with this standard as the 

2022 standard, as discussed in Section 

III.E. 

Third, we are providing multiple 

mechanisms to mitigate the compliance 

burden. One step is to designate that the 

response to the ACE remand will be a 

supplement to the 2022 standards. This 

approach not only allows the use of 

2021 and 2022 RINs for compliance 

with the 2022 supplemental standard, as 

described earlier, but it also avoids the 

need for obligated parties to revise their 

2016 (and potentially 2017, 2018, 2019, 

etc.) compliance demonstrations, which 

would be a burdensome and timeconsuming process. In addition, our 

approach allows obligated parties to 

satisfy both the 2022 annual standards 

and the supplemental standard in a 

single set of compliance and attest 

engagement demonstrations. We are also 

extending the same compliance 

flexibility options already available for 

the 2022 annual standards to the 2022 

supplemental standard, including 

allowing the use of carryover RINs and 

deficit carryforward subject to the 

conditions of 40 CFR 80.1427(b)(1). We 

are also applying a supplemental 

standard for 2022 that partially 

addresses the remand, and intend to 

address the remainder of the remanded 

volumes in a future year. This will 

allow obligated parties and renewable 

fuel producers additional lead time to 

meet the standard. 


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177See CAA section 211(o)(3)(B). 178 40 CFR 80.1407. 179See 75 FR 14670 (March 26, 2010). 

Lastly, we have carefully considered 

alternatives, including retaining the 

2016 total renewable fuel volume as 

described in the 2020 proposal, and 

additional waivers. 

On balance, we find that requiring an 

additional 250 million gallons of total 

renewable fuel to be complied with 

through a supplemental standard for 

2022 (with our intention to do so again 

in 2023) to be an appropriate response 

to the court’s vacatur and remand of our 

use of the general waiver authority to 

waive the 2016 total renewable fuel 

standard by 500 million gallons. 

E. Calculating a Supplemental 

Percentage Standard for 2022 

The formulas in 40 CFR 80.1405(c) for 

calculating the applicable percentage 

standards were designed explicitly to 

associate a percentage standard for a 

particular year with the volume 

requirement for that same year. The 

formulas are not designed to address the 

approach that we are establishing in this 

action, namely the use of a 2016 volume 

requirement to calculate a 2022 

percentage standard. Nonetheless, we 

can apply the same general approach to 

calculating a supplemental percentage 

standard for 2022. 

The numerator in the formula in 40 

CFR 80.1405(c) is the supplemental 

volume of 250 million gallons of total 

renewable fuel. The values in the 

denominator remain the same as those 

used to calculate the 2022 percentage 

standards in Section V.D, which can be 

found in Table V.D–1. As described in 

Section V.D, the resulting supplemental 

total renewable fuel standard percentage 

standard for a 250-million-gallon 

volume requirement in 2022 is 0.14 

percent. 

The supplemental standard for 2022 

is a requirement for obligated parties 

separate from and in addition to the 

2022 total renewable fuel standard. The 

two percentage standards are listed 

separately in the regulations at 40 CFR 

80.1405(a), but in practice obligated 

parties will need to demonstrate 

compliance with both at the same time. 

Thus, the two percentage standards in 

Section V.D are effectively additive (i.e., 

11.59% + 0.14% = 11.73%). 

V. Percentage Standards 

EPA implements the nationally 

applicable volume requirements by 

establishing percentage standards that 

apply to obligated parties.177 The 

obligated parties are producers and 

importers of gasoline and diesel fuel, as 

defined by 40 CFR 80.1406(a). The 

standards are expressed as volume 

percentages. Each obligated party 

multiplies the percentage standards by 

the total volume of all non-renewable 

gasoline and diesel fuel they produce or 

import to determine their RVOs.178 The 

RVOs are the number of RINs that the 

obligated party is responsible for 

procuring to demonstrate compliance 

with the RFS rule for that year. Since 

there are four separate standards under 

the RFS program, there are likewise four 

separate RVOs applicable to each 

obligated party for each year. 

The volumes used to determine the 

2020, 2021, and 2022 percentage 

standards (including the 2022 

supplemental standard) are described in 

Sections III and IV and are shown in 

Table V–1. 

TABLE V–1—VOLUMES FOR USE IN DETERMINING THE APPLICABLE PERCENTAGE STANDARDS

[Billion RINs] 

Standard 2020 2021 2022 

Cellulosic Biofuel ......................................................................................................................... 0.51 0.56 0.63 

Biomass-Based Diesel a .............................................................................................................. b 2.43 c 2.43 2.76 

Advanced Biofuel ......................................................................................................................... 4.63 5.05 5.63 

Total Renewable Fuel .................................................................................................................. 17.13 18.84 20.63 

Supplemental Standard ............................................................................................................... n/a n/a 0.25 

aThe BBD volumes are in physical gallons (rather than RINs). 

bThe BBD volume requirement for 2020 was established in the 2019 standards rulemaking (83 FR 63704, December 11, 2018). 

cThe BBD volume requirement for 2021 was established in the 2020 standards rulemaking (85 FR 7016, February 6, 2020). 

In this section, we also reaffirm the 

regulatory change to the percentage 

standard formulas from the 2020 final 

rule, which account for a projection of 

the aggregate volume for SREs that we 

expect to grant for each compliance 

year. This section also provides our 

rationale for that projection of exempt 

gasoline and diesel volume. 

Additionally, we also describe our 

intended approach for evaluating SREs 

going forward. 

A. Calculation of Percentage Standards 

The formulas used to calculate the 

percentage standards applicable to 

obligated parties are provided in 40 CFR 

80.1405(c). The formulas apply to the 

estimates of the volumes of nonrenewable gasoline and diesel fuel—for 

both highway and nonroad uses—that 

are projected to be used in the year in 

which the standards will apply. EIA 

provides projected gasoline and diesel 

fuel volumes, but these include 

projections of ethanol and BBD used in 

transportation fuel. Since the percentage 

standards apply only to the nonrenewable portions of gasoline and 

diesel fuel, the volumes of renewable 

fuel are subtracted out of the EIA 

projections of gasoline and diesel fuel. 

In addition, transportation fuels other 

than gasoline or diesel fuel (e.g., natural 

gas, propane, and electricity from fossil 

fuels) are not currently subject to the 

RFS standards, and volumes of such 

fuels are not used in calculating the 

annual percentage standards or 

obligated parties’ RVOs. 

As specified in the 2010 RFS2 final 

rule,179 the percentage standards are 

based on energy-equivalent gallons of 

renewable fuel, with the cellulosic 

biofuel, advanced biofuel, and total 

renewable fuel standards based on 

ethanol equivalence and the BBD 

standard based on biodiesel 

equivalence. However, all RIN 

generation is based on ethanolequivalence. To effectuate this 

difference between BBD and the other 

three standards, the formula used to 

calculate the percentage standard for 

BBD in 40 CFR 80.1405 includes a factor 

of 1.5 to convert physical volumes of 

BBD into ethanol-equivalent volumes. 

We are applying the 1.5 conversion 

factor for the calculations of the 2020– 

2022 BBD percentage standards. 

B. Small Refineries and Small Refiners 

In CAA section 211(o)(9), Congress 

exempted small refineries from RFS 

compliance temporarily through 

December 31, 2010. Congress also 


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180 85 FR 7016 (February 6, 2020). 

181See FCC v. Fox Television Stations, Inc., 556 

U.S. 502, 515 (2009). 

182See 78 FR 49825–49826; 77 FR 1340; EPA’s 

Br., Doc No. 1757157, D.C. Cir. No. 17–1258, AFPM 

v. EPA (Oct. 25, 2018) (‘‘EPA Br. in AFPM’’). 

183Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, 

Inc., 467 U.S. 837, 842–44 (1984). 

184CAA section 211(o)(9)(B)(i). 

185CAA section 211(o)(3)(B)(i); see also CAA 

section 211(o)(2)(A)(i), (2)(A)(iii)(I), CAA section 

301(a). This projection, moreover, is hardly unique 

in the RFS program as Congress required numerous 

projections in the implementation of the program. 

See, e.g., CAA section 211(o)(7)(D) (projection of the 

volume of cellulosic biofuel production); (o)(3)(A) 

(projection of the volumes of transportation fuel, 

biomass-based diesel, and cellulosic biofuel). 

186See CAA section 211(o)(2)(A)(i), (2)(A)(iii)(I), 

(3)(B)(i); see also CAA section 301(a). 

187 77 FR 1340 (January 9, 2012). 

188 77 FR 1340 (January 9, 2012). 189EPA Br. in AFPM 72–77. 190 ‘‘Decision on 2018 Small Refinery Exemption 

Petitions,’’ Memorandum from Anne Idsal, Acting 

Assistant Administrator, Office of Air and Radiation 

to Sarah Dunham, Director, Office of Transportation 

and Air Quality. August 9, 2019. We note that this 

decision was subsequently remanded to EPA, and 

EPA issued a new decision on April 7, 2022. 

‘‘Denial of Petitions for RFS Small Refinery 

Exemptions,’’ EPA–420–R–22–005, April 2022. 

provided that small refineries could 

receive an extension of the exemption 

beyond 2010 based either on the results 

of a required Department of Energy 

(DOE) study or in response to individual 

SRE petitions demonstrating 

‘‘disproportionate economic hardship.’’ 

CAA section 211(o)(9)(B)(i). 

In the 2020 final rule, EPA revised 

certain definitions in the percentage 

standards formulas at 40 CFR 80.1405(c) 

to account for a projection of the total 

exempted volume of gasoline and diesel 

produced at small refineries, including 

for those exemptions granted after the 

final rule. We sought comment on this 

approach in the proposed rule 

associated with this action. We are 

reaffirming our modified definitions in 

this action and utilizing those 

definitions to calculate the projected 

exemptions for 2020, 2021, and 2022. 

1. Reaffirmation of the Modified 

Definitions From the 2020 Final Rule 

In the 2020 final rule, we finalized 

changes to the definitions of two 

relevant terms in the percentage 

standard formulas at 40 CFR 80.1405(c), 

GEi and DEi.180 We stated that these 

terms represent a projection of the 

exempted volume of gasoline and diesel 

fuel, regardless of whether we had 

adjudicated exemptions for that year by 

the time of the final rule establishing the 

percentage standards. The term ‘‘GEi’’, 

representing the volume of exempt 

gasoline, was defined as ‘‘the total 

amount of gasoline projected to be 

exempt in year i, in gallons, per 

§§ 80.1441 and 80.1442.’’ Similarly, the 

term ‘‘DEi’’, representing the volume of 

exempt diesel, was defined as ‘‘the total 

amount of diesel projected to be exempt 

in year i, in gallons, per §§ 80.1441 and 

80.1442.’’ 

At the time of the 2020 final rule, this 

approach entailed a change in policy.181

We acknowledged that we previously 

did not account for SREs granted after 

an annual rule, and at times we even 

suggested that doing so was 

improper.182 We set forth several 

rationales for our change in policy. As 

we explain below, our rationale for 

maintaining the 2020 final rule’s 

approach largely overlaps with the 

rationales we previously presented, but 

also differs in some respects. 

First, the basic legal rationale for the 

modified definitions remains the same. 

Namely, while the statute does not 

specifically require EPA to redistribute 

exempted volumes in this manner, this 

is a reasonable interpretation of our 

authority under Chevron v. Natural 

Resources Defense Council (NRDC).183

Indeed, making this projection 

harmonizes various statutory 

provisions. The statute authorizes small 

refineries to petition for and EPA to 

grant an exemption based on 

disproportionate economic hardship ‘‘at 

any time,’’ 184 while also directing EPA 

to promulgate standards by November 

30 of the prior year to ‘‘ensure[ ]’’ that 

the renewable fuel volumes are met.185

In other words, small refineries may 

seek and EPA may grant hardship 

exemptions at any time, including after 

the percentage standards are 

established. Meanwhile, EPA has 

authority to account for a projection of 

these exemptions in the annual rule to 

‘‘ensure’’ the renewable fuel volumes.186

In more concrete terms, accounting for 

a projection of subsequently granted 

SREs in establishing the standards better 

ensures the volumes are met by 

increasing the standards on the nonexempt obligated parties. 

Second, it remains true that this 

approach is consistent with our 

previous statements that ‘‘the Act is best 

interpreted to require issuance of a 

single annual standard in November 

that is applicable in the following 

calendar year, thereby providing 

advance notice and certainty to 

obligated parties regarding their 

regulatory requirements. Periodic 

revisions to the standards to reflect 

waivers issued to small refineries or 

refiners would be inconsistent with the 

statutory text, and would introduce an 

undesirable level of uncertainty for 

obligated parties.’’ 187 By projecting 

exempted volumes in advance of issuing 

annual standards, we can issue a single 

set of standards for each year without 

the need for subsequent revisions and 

the associated uncertainty for obligated 

parties. 

We acknowledge that in this action 

we are revising the 2020 standards 

based in part on changes to our SRE 

policies that rendered the projection in 

the 2020 final rule inaccurate. However, 

as we explain in Section III.C, the 

reconsideration of the 2020 standards is 

based on unique circumstances, 

including the significant SRE policy 

changes and effects of the COVID–19 

pandemic on transportation fuel use. 

This is not a scenario that we expect to 

recur on a regular or periodic basis. 

Third, we believe that we can project 

the exempt small refinery volume with 

reasonable accuracy despite the 

uncertainties associated with this 

projection. In prior annual rulemakings, 

we had noted that ‘‘Congress allowed 

for some imprecision to exist in the 

actual volumes of renewable fuel that 

are consumed as a result of the 

percentage standards that we set each 

November. . .’’ 188 as well as the 

inherent difficulties of projecting 

exempted small refinery volumes.189

However, we are projecting only the 

aggregate exempted volume in a given 

compliance year. We thus need not 

wrestle with the difficulties of 

predicting precisely which refineries 

will apply or the economic 

circumstances of specific refineries in a 

given compliance year. We only need to 

estimate the total exempted volume. 

Moreover, prior to the 2020 final rule, 

EPA had not articulated its prospective 

policy to adjudicating SRE petitions for 

those compliance years. For instance, in 

the 2018 final rule, we did not state our 

policy to adjudicating 2018 SRE 

petitions. Instead, we articulated that 

policy in a separate memorandum 

issued after the annual rule.190 Since 

EPA’s policy to adjudicating SRE 

petitions affects the exempted volume, 

not having established this policy at the 

time of the annual rule made it very 

challenging to project the exempted 

volume. By contrast, in this action, we 

have the benefit of a stated policy for 

adjudicating SRE petitions. As we 

explain below, we have also actually 

adjudicated numerous SRE petitions for 

2020 and 2021 based on this policy. 

These facts strongly augment our ability 

to reasonably project the exempted 

volume for 2020–2022. 

Fourth, in the 2020 final rule, we 

indicated that the revised definitions 

resulted in reallocating a projection of 

significant exempted volumes for the 

purpose of better ensuring that the 

renewable fuel volumes were met. We 


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191We also proposed a high end of the range, 

consistent with the SRE policy set forth in the 2020 

final rule. However, that policy is no longer EPA’s 

policy. Nor did we apply that policy in actually 

adjudicating any SREs for 2020, 2021, or 2022. 

Thus, it cannot the basis for the projection. 192See ‘‘April 2022 Denial of Petitions for RFS 

Small Refinery Exemptions,’’ EPA–420–R–22–005, 

April 2022; ‘‘June 2022 Denial of Petitions for RFS 

Small Refinery Exemptions,’’ EPA–420–R–22–011, 

June 2022. 

193 83 FR 63704 (December 11, 2018); 85 FR 7016 

(February 6, 2020). In this action, we are not 

reopening nor did we seek comment on the 2020 

or 2021 BBD volume requirements. 

194This action is consistent with past annual 

rules, which have generally promulgated the BBD 

percentage standard for the BBD volume set in the 

prior year’s annual rule. This is due to the unique 

statutory timing applicable to BBD, where EPA 

must set the volume 14 months in advance but 

promulgate percentage standards by November 30 

of the immediately preceding year. See CAA section 

211(o)(2)(B)(ii), (o)(3)(B)(i). 

195 85 FR 7049 (February 6, 2020). 

noted that the projection of significant 

exempt volumes was consistent not only 

with our prospective SRE policy at the 

time but also with our then-recent 

experience administering the RFS 

program and the relatively high levels of 

volumes exempted after the 

promulgation of the relevant annual 

rules. These facts have since changed. 

As we explain below, we are projecting 

an exempt volume of zero gallons based 

on our new SRE policy. Thus, the 

projection has no impact on the 

calculation of the 2020–2022 percent 

standards. Stated differently, even were 

we to apply the prior formula 

definitions used in the 2019 and earlier 

final rules, we would establish the same 

percent standards. 

Nonetheless, we are choosing to 

maintain the modified definitions for 

several reasons. First, as we explained 

above, we think the modified 

definitions properly harmonize the 

statutory directives to ‘‘ensure’’ that the 

volumes are met with the statutory 

authority to grant SREs ‘‘at any time,’’ 

including after the promulgation of the 

annual standards. Second, while we are 

not aware of any circumstances that 

would warrant EPA granting SREs given 

the technical findings in the recent SRE 

denials as explained further below, the 

statute nonetheless continues to provide 

authority to grant SREs. In the event 

EPA does grant SREs for some future 

compliance year, accounting for a 

projection of SREs would in fact better 

‘‘ensure’’ that the volumes are met. 

Third, as we noted in the 2020 final 

rule, we received numerous comments 

on this issue as well as a petition for 

reconsideration. Based on this 

significant stakeholder input, we 

conducted a comprehensive legal, 

policy, and technical analysis of this 

issue and decided to modify the 

definitions in that final rule. While we 

chose to reexamine this issue and retain 

the authority to further revise the 

definitions, we are mindful of the 

importance of maintaining regulatory 

repose and certainty where appropriate. 

Finally, in this action, we also received 

many supportive comments on our 

approach. While we also received some 

adverse comments, those commenters 

largely rehashed arguments that we 

considered and rejected at the time of 

the 2020 final rule. In any event, no 

commenter presented us with a 

sufficient rationale for changing course 

once again. We further address these 

comments in Section 7 of the RTC 

document. 

2. Projection of Exempt Volumes 

We are finalizing a projected 

exempted volume of zero gallons for all 

years. This was the low end of the range 

that we proposed, consistent with the 

Tenth Circuit’s decision in RFA v. 

EPA.191 We are finalizing this projection 

based on our recent actions denying 

pending SRE petitions for 2016–2021, 

including all petitions for 2020 and 

2021.192 In these actions, we stated, 

consistent with RFA, that SREs should 

only be granted based on hardship due 

to RFS compliance, not other factors. 

We further found, consistent with our 

prior actions, that that no small refinery 

suffers hardship due to the RFS program 

because all small refineries are able to 

pass through the RIN costs of RFS 

compliance onto their customers in the 

form of higher sales prices on gasoline 

and diesel fuel. Accordingly, we denied 

the SRE petitions. This was also the 

primary rationale for the low end of the 

projection we set forth in the proposed 

rule. We intend to apply this same 

reasoning to future SRE petitions, and 

we are not aware of any circumstances 

at the current time that would warrant 

EPA granting SREs for the 2020, 2021, 

or 2022 compliance years. Therefore, we 

project that there will be no exempt 

volume from SREs under 40 CFR 

80.1405(c) for 2020, 2021, and 2022. 

The decision denying all existing 

2020 and 2021 SRE petitions forms the 

primary basis for our 2020 and 2021 

projections. While the regulatory 

language refers to the amount of 

gasoline and diesel fuel projected to be 

exempt (i.e., the volume of exempt 

gasoline and diesel fuel as a result of 

SREs), in this action we are in the 

unique position of having adjudicated 

all 2020 SRE petitions and can use the 

actual exempt volume of gasoline and 

diesel fuel. As there has been no volume 

exempt thus far, and we do not 

anticipate granting any further 

exemptions, the best projection for use 

in the 2020 percentage standard formula 

is zero gallons of exempt gasoline and 

diesel fuel. For 2021, although we have 

only adjudicated five petitions, we 

intend to apply the same reasoning to 

any future petitions we received for 

2021. Thus, we are also projecting zero 

gallons of exempt gasoline and diesel 

fuel for 2021. Finally, for 2022, although 

we have not adjudicated any SRE 

petitions for this year, nor do we have 

any petitions pending before us, we 

intend to apply the same reasoning to 

future petitions for 2022. Thus, we are 

also projecting zero gallons of exempt 

gasoline and diesel fuel for 2022. This 

approach was supported by many 

commenters. 

EPA’s projection of zero exempt 

volume is the Agency’s best estimate 

based on the information available to us 

at this time. However, actual decisions 

on future petitions must await EPA’s 

receipt and adjudication of those 

petitions. We are not in this action 

resolving any SRE petitions or 

prejudging the outcome of future 

petitions. 

C. Modification of the 2020 BBD 

Percentage Standard 

As noted above, the percentage 

standards implement the nationally 

applicable volume requirements. Since 

EPA is modifying 2020–2022 cellulosic 

biofuel, advanced biofuel, and total 

renewable fuel volumes in this action, 

we are also establishing percentage 

standards corresponding to those 

volumes. Further, we are establishing 

the 2022 BBD volume and associated 

percentage standard using our set 

authority as described in Section III.F. 

With regard to the 2020 and 2021 BBD 

volumes, EPA is not revising such 

volumes, which were established in the 

2019 and 2020 final rules, 

respectively.193 Nonetheless, for the 

2021 BBD standard, EPA did not 

previously promulgate percentage 

standards, and thus we do so now for 

the first time.194

We are also revising the BBD 

percentage standard for the 2020 

volume. EPA previously promulgated 

the 2020 BBD volume in the 2019 final 

rule and the associated percentage 

standards in the 2020 final rule.195 In 

this action, EPA is modifying only the 

2020 BBD percentage standard, not the 

2020 BBD volume. Specifically, we are 

using the same volume requirement 

previously promulgated (2.43 billion 

gallons) but updating the other inputs 

for calculating the standard (such as the 

projections of gasoline and diesel fuel 

consumption and exempted gasoline 

and diesel fuel volumes in 2020), which 


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196See the technical memoranda, ‘‘Calculation of 

% standards for 2020,’’ ‘‘Calculation of % standards 

for 2021,’’ and ‘‘Calculation of % standards for 

2022,’’ available in the docket for this action. 

197To determine the 49-state values for gasoline 

and diesel, the amount of these fuels used in Alaska 

is subtracted from the totals provided by EIA 

because petroleum-based fuels used in Alaska do 

not incur RFS obligations. The Alaska fractions are 

determined from the June 25, 2021 EIA State Energy 

Data System (SEDS), Energy Consumption 

Estimates. In addition, fuel used in ocean-going 

vessels is also subtracted from the total because it 

is excluded from the definition of transportation 

fuel by the statute. This volume is provided directly 

by EIA. 

we term ‘‘inputs’’ in the remainder of 

this section. The full list of inputs is set 

forth in Section V.D below. 

We are updating the inputs because it 

is logical for all of the 2020 percentage 

standards to be calculated using the 

same inputs. This is consistent with 

EPA’s policy since the beginning of the 

RFS program, where we have generally 

calculated all the percentage standards 

for a given year based on the same 

inputs. Here, because we are updating 

the inputs for the other 2020 percentage 

standards, we also are modifying the 

inputs for the 2020 BBD percentage 

standard. This approach is supported by 

the nested nature of the standards, 

where BBD is a subset of the advanced 

biofuel and total renewable fuel 

standards, and compliance with all 

three standards is accomplished in part 

by using the same RINs. We believe it 

would not be appropriate to use 

updated inputs for the other standards, 

while simultaneously using what is now 

outdated data for the BBD standard 

alone. 

Additionally, the inputs we are using 

in this action are quite different from 

the inputs used in the 2020 final rule. 

As discussed in Sections II.D. and III.C., 

the projections for gasoline and diesel 

fuel consumption in 2020 final rule, 

which were used to establish the BBD 

standard, are significantly different than 

the actual gasoline and diesel fuel 

consumed in 2020. Relative to the 2020 

final rule, we are also using different 

projections of exempted gasoline and 

diesel fuel, as discussed in the prior 

section. 

Finally, we note that our modification 

of the 2020 BBD percentage standard is 

not anticipated to have any significant 

real-world impacts. The modification 

results in an increase in the BBD 

percentage standard, which will 

increase the number of RINs required 

for compliance with this standard. 

However, even were we to retain the 

original, lower standard, we would 

nonetheless expect the same number of 

BBD RINs to be used for 2020 

compliance given that BBD is nested 

within the advanced biofuel category 

and additional BBD RINs will be used 

to comply with that standard. 

D. Percentage Standards for 2020–2022 

The formulas in 40 CFR 80.1405 for 

the calculation of the percentage 

standards require the specification of a 

total of 14 variables comprising the 

renewable fuel volume requirements, 

projected gasoline and diesel demand 

for all states and territories where the 

RFS program applies, renewable fuels 

projected by EIA to be included in the 

gasoline and diesel demand, and 

projected exempt volumes of gasoline 

and diesel fuel. The values of all the 

variables used for this rule are shown in 

Table V.D–1 for the applicable 2020, 

2021, and 2022 standards (including the 

2022 supplemental standard).196

TABLE V.D–1—VOLUMES FOR TERMS IN CALCULATION OF THE PERCENTAGE STANDARDS a

Term Description 2020 2021 2022 2022 

Supplemental 

RFVCB .................. Required volume of cellulosic biofuel ............................ 0.51 0.56 0.63 0 

RFVBBD ................ Required volume of biomass-based diesel b ................. 2.43 2.43 2.76 0 

RFVAB .................. Required volume of advanced biofuel ........................... 4.63 5.05 5.63 0 

RFVRF .................. Required volume of renewable fuel .............................. 17.13 18.84 20.63 0.25 

G .......................... Projected volume of gasoline ........................................ 123.11 134.50 138.61 138.61 

D .......................... Projected volume of diesel ............................................ 49.96 49.92 56.15 56.15 

RG ....................... Projected volume of renewables in gasoline ................. 12.64 13.96 14.31 14.31 

RD ........................ Projected volume of renewables in diesel ..................... 2.16 2.08 2.45 2.45 

GS ........................ Projected volume of gasoline for opt-in areas .............. 0 0 0 0 

RGS ..................... Projected volume of renewables in gasoline for opt-in 

areas.

0 0 0 0 

DS ........................ Projected volume of diesel for opt-in areas .................. 0 0 0 0 

RDS ..................... Projected volume of renewables in diesel for opt-in 

areas.

0 0 0 0 

GE ........................ Projected volume of gasoline for exempt small refineries.0.00 0.00 0.00 0.00 

DE ........................ Projected volume of diesel for exempt small refineries 0.00 0.00 0.00 0.00 

aExcept where otherwise noted, the required volumes (i.e., the first four rows of the table) are in billion RINs. All other volumes are in billion 

gallons (not billion RINs). bThe BBD volume used in the formula represents physical gallons. The formula contains a 1.5 multiplier to convert this physical volume to ethanol-equivalent volume. 

Projected volumes of gasoline and 

diesel, and the renewable fuels 

contained within them, were derived 

from EIA’s January 2022 STEO. While 

we received 2022 transportation fuel 

demand projections from a letter sent by 

EIA on October 29, 2021, which 

included gasoline and diesel fuel 

demand projections from the October 

2021 STEO, we believe it is more 

appropriate to use demand projections 

from the more recent January 2022 

STEO. Using more up-to-date EIA data 

on projected gasoline and diesel fuel 

demand allows our assessment of 2022 

supply—and calculation of percentage 

standards—to be as accurate as possible. 

For the same reason, we have used 

updated, actual gasoline and diesel fuel 

consumption estimates for 2020 and 

2021 from EIA’s Monthly Energy 

Review (MER).197

Using the volumes shown in Table 

V.D–1, we have calculated the 

percentage standards for 2020, 2021, 

and 2022 as shown in Table V.D–2. 


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198 40 CFR 80.1454(g). EPA established the 

‘‘aggregate compliance’’ approach in the 2010 RFS2 

rule and has applied it for the U.S. in annual RFS 

rulemakings since then. See 75 FR 14701–04. In this 

final rule, we have not reexamined or reopened this 

policy, including the regulations at 40 CFR 

80.1454(g) and 80.1457. Similarly, as further 

explained below, we have applied this approach for 

Canada since our approval of Canada’s petition to 

use aggregate compliance in 2011. In this final rule, 

we have also not reexamined or reopened our 

decision on that petition. Any comments we 

received on these issues are beyond the scope of 

this rulemaking. 

199For additional analysis and the underlying 

USDA data, see ‘‘Assessment of Domestic Aggregate 

Compliance Approach 2021,’’ available in the 

docket for this action. 

200USDA also provided EPA with 2021 data from 

the discontinued Grassland Reserve Program (GRP) 

and Wetlands Reserve Program (WRP). Given this 

data, EPA estimated the total U.S. agricultural land 

both including and omitting the GRP and WRP 

acreage. In 2021, combined land under GRP and 

WRP totaled 2,993,177 acres. Subtracting the GRP 

and WRP acreage in addition to the Agriculture 

Conservation Easement Program acreage yields an 

estimate of 379.6 million total acres of U.S. 

agricultural land in 2021. Just subtracting the 

Agriculture Conservation Easement Program leads 

to an estimate of 382.6 million total acres of U.S. 

agricultural land in 2021. 

201 40 CFR 80.1457. 

202See ‘‘EPA Decision on Canadian Aggregate 

Compliance Approach Petition’’ (Docket Item No. 

EPA–HQ–OAR–2011–0199–0015). 

203The data used to make this calculation can be 

found in ‘‘Assessment of Canadian Aggregate 

Compliance Approach 2021’’ located in the docket 

to this rule. 

TABLE V.D–2—PERCENTAGE STANDARDS

Category 2020 

(percent) 

2021 

(percent) 

2022 

(percent) 

Cellulosic Biofuel ..................................................................................................................................... 0.32 0.33 0.35 

Biomass-Based Diesel ............................................................................................................................. 2.30 2.16 2.33 

Advanced Biofuel ..................................................................................................................................... 2.93 3.00 3.16 

Renewable Fuel ....................................................................................................................................... 10.82 11.19 11.59 

Supplemental Standard ........................................................................................................................... n/a n/a 0.14 

VI. Administrative Actions 

A. Assessment of the Domestic 

Aggregate Compliance Approach 

The RFS regulations specify an 

‘‘aggregate compliance’’ approach for 

demonstrating that planted crops and 

crop residue from the U.S. comply with 

the ‘‘renewable biomass’’ requirements 

that address lands from which 

qualifying feedstocks may be 

harvested.198 In the 2010 RFS2 

rulemaking, EPA established a baseline 

number of acres for U.S. agricultural 

land in 2007 (the year of EISA 

enactment) and determined that as long 

as this baseline number of acres is not 

exceeded, it is unlikely, based on our 

assessment of historical trends and 

economic considerations, that new land 

outside of the 2007 baseline is being 

devoted to crop production. The 

regulations specify, therefore, that 

renewable fuel producers using planted 

crops or crop residue from the U.S. as 

feedstock in renewable fuel production 

need not undertake individual 

recordkeeping and reporting related to 

documenting that their feedstocks come 

from qualifying lands, unless EPA 

determines through one of its annual 

evaluations that the 2007 baseline 

acreage of 402 million acres agricultural 

land has been exceeded. 

The regulations promulgated in 2010 

require EPA to make an annual finding 

concerning whether the 2007 baseline 

amount of U.S. agricultural land has 

been exceeded in a given year. If the 

baseline is found to have been 

exceeded, then producers using U.S. 

planted crops and crop residue as 

feedstocks for renewable fuel 

production would be required to 

comply with individual recordkeeping 

and reporting requirements to verify 

that their feedstocks are renewable 

biomass. 

Based on data provided by the USDA 

Farm Service Agency (FSA) and Natural 

Resources Conservation Service (NRCS), 

we have estimated that U.S. agricultural 

land reached approximately 382.6 

million acres in 2021 and thus did not 

exceed the 2007 baseline acreage of 402 

million acres.199 200

B. Assessment of the Canadian 

Aggregate Compliance Approach 

The RFS regulations specify a petition 

process through which EPA may 

approve the use of an aggregate 

compliance approach for planted crops 

and crop residue from foreign 

countries.201 On September 29, 2011, 

EPA approved such a petition from the 

Government of Canada.202

The total agricultural land in Canada 

in 2021 is estimated at 115.8 million 

acres. This total agricultural land area 

includes 94.4 million acres of cropland 

and summer fallow, 11.6 million acres 

of pastureland and 9.8 million acres of 

agricultural land under conservation 

practices. This acreage estimate is based 

on the same methodology used to set the 

2007 baseline acreage for Canadian 

agricultural land in EPA’s response to 

Canada’s petition. This acreage does not 

exceed the 2007 baseline acreage of 

122.1 million acres.203

VII. Biointermediates 

A. Background 

In order for a fuel to be a renewable 

fuel under the RFS program, it must be 

produced from renewable biomass as 

defined in the statute (as well as be used 

to displace petroleum-based 

transportation fuel, heating oil, or jet 

fuel). The RFS regulations were 

designed with the assumption that 

renewable biomass would be converted 

into renewable fuel at a single facility 

where the connection between 

renewable biomass and renewable fuel 

would be obvious and easy to verify 

(e.g., a renewable fuel producer 

purchases corn directly from several 

farmers in a region, crushes the corn in 

a mill, and then ferments the corn into 

ethanol, all at the same facility). The 

regulations therefore impose 

requirements on renewable fuel 

producers to provide EPA with 

information necessary to verify that 

their fuel was made with qualifying 

renewable biomass, through production 

processes corresponding with approved 

pathways, and in volumes 

corresponding to feedstocks used. Such 

information is necessary for oversight 

and enforcement, providing integrity 

and confidence in the program. 

Since the RFS2 regulatory program 

was promulgated in 2010, however, EPA 

has received a number of inquiries from 

companies regarding the possible use of 

renewable biomass that has been 

substantially pre-processed at one 

facility to produce a proto-renewable 

fuel (referred to as a biointermediate), 

which would then subsequently be used 

at a different facility to produce 

renewable fuel for which RINs would be 

generated. For example, a number of 

companies have approached us with the 

proposed use of woody biomass or 

separated MSW to produce a biocrude, 

a pre-processed feedstock that could 

then be processed into renewable fuel at 

a crude oil refinery. In response to these 

requests, EPA has stated that the RFS 

regulations promulgated in 2010 are 

insufficient to generally allow RINs to 


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204See 81 FR 80828 (November 16, 2016). 205See 86 FR 72465–72474 (December 21, 2021). 

206See 86 FR 72465 (December 21, 2021). 

207See 86 FR 74266 (December 21, 2021). 

208See CAA Section 211(o)(1). 

be generated in situations where 

multiple facilities are involved in the 

conversion of renewable biomass 

feedstocks into renewable fuel. The 

existing registration, engineering 

review, recordkeeping, reporting, and 

attest audit provisions extend only to 

the renewable fuel production facility 

under the assumption that the 

renewable biomass was a direct input to 

the facility. In the case of 

biointermediates, however, some steps 

of the fuel production process are not 

taking place at the renewable fuel 

production facility, rendering 

ineffective the existing oversight 

provisions to ensure production from 

renewable biomass under an EPAapproved pathway. The introduction of 

a biointermediate production facility 

without commensurate oversight 

provisions introduces the possibility of 

the same renewable biomass being 

claimed by multiple renewable fuel 

facilities, multiple RINs being generated 

on the same product, or RINs being 

generated inconsistent with an EPAapproved pathway. Additionally, 

without adequate oversight of the 

biointermediate production facility, it 

may be impossible to tell whether a socalled ‘‘renewable fuel’’ is in fact from 

renewable biomass as opposed to 

petroleum sources, as it is not always 

possible to detect a biointermediate in a 

finished fuel. Thus, in order to ensure 

that fuels produced using 

biointermediates comport with CAA 

requirements for renewable fuels, EPA 

is must extend its regulatory structure, 

including requirements for registration, 

engineering review recordkeeping, 

reporting, and attest audits, to 

biointermediate production, transfer, 

and use. 

On November 16, 2016, EPA issued 

the proposed Renewables Enhancement 

and Growth Support (REGS) rule that, 

among other things, outlined proposed 

provisions to allow the use of 

biointermediates to produce qualifying 

renewable fuels under the RFS 

program.204 The REGS proposal 

outlined a comprehensive set of 

compliance provisions, enforcement 

provisions, and oversight mechanisms 

for biointermediates that would have 

allowed biointermediates into the RFS 

program while maintaining oversight of 

the production, transfer, and use of 

biointermediates to make renewable 

fuels. A public hearing was held in 

Chicago, IL, on December 16, 2016, and 

the public comment period ended on 

January 17, 2017. However, EPA did not 

finalize the biointermediates provisions 

in the REGS proposal. 

Since 2017, we have carefully 

considered public comments received in 

response to the proposed 

biointermediates provisions in the REGS 

proposal, as well as new information 

relevant to biointermediates that has 

become available as the industry 

continues to evolve. Based on those 

comments and our updated 

understanding of the renewable fuels 

landscape, we thought further on how 

best to design and implement a 

potential biointermediates program and 

decided to propose the biointermediates 

provisions anew.205 While the 

December 2021 biointermediates 

proposal re-proposed many provisions 

of the REGS proposal, it also updated 

several key aspects of that proposal 

reflecting what we have learned since 

that time. 

We re-proposed (i.e., proposed anew) 

the biointermediates provisions for two 

main reasons. First, since the 

publication of the REGS proposal, we 

identified several areas that we wanted 

to modify or enhance based on new 

information and our updated 

understanding of how biointermediates 

may be used in the industry (based on, 

e.g., the many new and different players 

as the market has continued to evolve). 

Second, we believed it would be useful 

to provide an additional opportunity for 

stakeholders interested in 

biointermediates to comment on the 

proposed program as a whole given the 

significant changes in the new proposal 

and to the amount of time that has 

passed since the REGS proposal. 

In this action, we are finalizing 

provisions to allow for the use of 

biointermediates to produce qualifying 

renewable fuels. These provisions 

specify requirements that apply when 

renewable fuel is produced through 

sequential operations at more than one 

facility. These provisions center around 

the production, transfer, and use of 

biointermediates and the creation of 

new regulatory requirements related to 

registration, recordkeeping, and 

reporting for facilities producing or 

using a biointermediate for renewable 

fuel production. 

B. Effect of This Action on 

Biointermediates Provisions Proposed in 

the REGS Rule 

The December 2021 re-proposal of the 

biointermediates program superseded 

the previously proposed 

biointermediates provisions in the REGS 

proposal. In the December 2021 notice, 

we explained that we were re-proposing 

(i.e., proposing anew) some aspects of 

the biointermediates provisions from 

the REGS proposal without changes and 

updating other aspects.206 The 

biointermediates provisions in the 

December 2021 proposal thus replaced 

the proposed biointermediate provisions 

in the REGS proposal and had the effect 

of withdrawing that previous proposal. 

That is, we are now clarifying that we 

consider the biointermediates 

provisions in the 2016 REGS proposal 

formally withdrawn. We are not 

withdrawing any other portion of the 

REGS proposal. As we noted in the 

December 2021 proposal, we are not 

responding to any comments on the 

biointermediates provisions in the REGS 

proposal that were not resubmitted as 

comments on the December 2021 

proposal; comments on the REGS 

proposal that were not resubmitted are 

outside the scope of this action.207

C. Biointermediates Regulatory 

Provisions 

We are finalizing provisions allowing 

the use of biointermediates because we 

believe that the use of biointermediates 

to produce renewable fuels will be a 

reasonable and positive development for 

future growth in production, 

particularly of cellulosic and advanced 

biofuels. At the same time, a robust set 

of regulatory provisions for the use of 

biointermediates is needed in order to 

ensure that renewable fuels produced 

from biointermediates meet the 

statutory requirements to be produced 

from renewable biomass and via 

processes that meet the necessary 

greenhouse gas reduction thresholds.208

Additionally, we need to be able to 

oversee the validity of RINs generated in 

situations where feedstocks are allowed 

to be processed at multiple facilities, 

and where partially processed 

feedstocks, which may appear very 

similar to or have the potential to 

actually qualify as renewable fuels 

themselves, are transferred between 

parties. In many cases, biointermediates 

are processed to a point where they can 

be used directly as fuel or as a feedstock 

to produce a different renewable fuel 

with further processing. The fact that a 

biointermediate can be both a potential 

renewable fuel and a feedstock creates 

opportunities for the multiplegeneration of RINs for the same volume. 

The biointermediates program imposes 

regulatory requirements designed to 

prevent such multiple counting. 

Similarly, we need to ensure that nonqualifying feedstocks are not added to 


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209We note that there has been a long history of 

RIN fraud in the RFS program. We detail several of 

the major RIN fraud civil enforcement cases on our 

website, available at https://www.epa.gov/ 

enforcement/civil-enforcement-renewable-fuelstandard-program. 

210We discuss lifecycle and pathway 

considerations for the use of biointermediates in 

Section VII.D.2. This section also addresses the 

interplay between the biointermediates program 

and facility-specific pathways under 40 CFR 

80.1416. 

211We discuss the product transfer document 

requirements for biointermediates in Section 

VII.C.6. 

212We discuss the registration, reporting, and 

recordkeeping requirements for biointermediate 

producers and renewable fuel producers in Section 

VII.C.7. 

biointermediates during transit and 

counted as qualifying for subsequent 

RIN generation. Finally, we must also 

ensure that renewable fuels produced 

from biointermediates are produced 

under EPA-approved pathways to 

ensure that applicable GHG threshold 

reductions are met. As the history of the 

RFS program has demonstrated, the 

value of RINs provides considerable 

incentive for fraudulent activity, and 

therefore it is important for the integrity 

of the program that mechanisms be in 

place to verify their validity.209

The finalized biointermediate 

provisions are designed to ensure that 

biointermediates are produced, 

transferred, and used in a manner 

consistent with Clean Air Act and EPA 

regulatory requirements. The 

registration, reporting, and 

recordkeeping requirements for 

biointermediate producers discussed in 

Section VII.C.7 will demonstrate that a 

biointermediate producer can make 

qualifying biointermediate under an 

approved pathway, and the 

biointermediate-related modifications to 

the renewable fuel producer’s 

registration, reporting, and 

recordkeeping requirements will help 

ensure that biointermediates are used 

consistent with approved pathways to 

make qualifying renewable fuel. The 

transfer limits discussed in Section 

VII.C.4 coupled with the product 

transfer document requirements 

discussed in Section VII.C.6 will allow 

the effective tracking of 

biointermediates from the point the 

biointermediate is produced to the point 

the biointermediate is used to help 

ensure that biointermediates are not 

contaminated or multiple-counted for 

RIN generation during transport. 

We are also finalizing independent 

third-party oversight measures to allow 

verification that biointermediates are 

produced, transferred, and used 

appropriately. As discussed in Section 

VII.C.5, biointermediate producers and 

renewable fuels must participate in the 

RFS Quality Assurance Program (QAP), 

which will verify production of both the 

biointermediate and resultant renewable 

fuels. As discussed in Section VII.C.8, 

biointermediate producers and 

renewable fuel producers will also have 

to undergo an annual attest engagement 

audit, which verifies that registration, 

reporting, and recordkeeping 

information is consistent with EPA’s 

regulatory requirements for 

biointermediate production, transfer, 

and use. 

As discussed in Section VII.C.9, we 

are also finalizing provisions that 

address situations where a 

biointermediate is improperly 

produced. These provisions establish 

which parties are liable when an 

improperly produced biointermediate is 

identified and how any RINs generated 

from fuel produced from the improperly 

produced biointermediate will be 

treated. We believe these provisions will 

provide strong incentives for 

biointermediate producers and 

renewable fuel producers to produce, 

transfer, and use biointermediates in a 

manner consistent with Clean Air Act 

and EPA regulatory requirements. 

1. General Biointermediates Program 

Structure 

We are finalizing the general program 

structure as proposed with 

modifications based on comments. 

Under today’s biointermediates 

program, approved pathways in Table 1 

to 40 CFR 80.1426 (hereafter ‘‘Table 1’’) 

will continue to identify the renewable 

biomass feedstocks and processes that 

are acceptable to make renewable fuel 

for the respective pathways; however, 

with the finalization of the 

biointermediates program, the processes 

specified can now be conducted across 

two different facilities.210 Since 

biointermediates are altered from the 

feedstocks listed in Table 1, the 

regulations require renewable fuel 

producers to have sufficient information 

from the biointermediate producer to 

verify that the biointermediate is made 

from the renewable biomass feedstock 

listed in the approved pathway being 

used by the renewable fuel producer.211

Similarly, the biointermediate producer 

must have sufficient documentation 

from the feedstock supplier(s) to 

demonstrate that the feedstock used to 

produce the biointermediate was 

renewable biomass. The regulations 

further require the renewable fuel 

producer to keep records and report to 

EPA information sufficient to verify that 

the biointermediate used to produce the 

renewable fuel is produced from 

renewable biomass consistent with the 

EPA-approved pathway. The 

biointermediate producer must also 

independently keep records and report 

to EPA information to demonstrate that 

biointermediates were produced from 

qualifying renewable biomass 

feedstocks under EPA-approved 

pathways.212

We are not changing the current 

system in which, with very few 

exceptions (i.e., RINs generated for 

biogas to renewable CNG, renewable 

LNG, or renewable electricity), only the 

renewable fuel producer is permitted to 

generate RINs. This means that the party 

that produces renewable fuel from a 

biointermediate generates RINs, rather 

than the producer of the 

biointermediate. This approach is the 

easiest to both implement and enforce, 

and will involve no disruption from 

current practices. If we were to allow for 

different points of RIN generation, it 

would add unnecessary complexity and 

difficulty into the program, and 

introduce an opportunity for fraudulent 

multiple-generation of RINs for the same 

volume of fuel. While renewable fuel 

producers are not precluded from 

entering into contracts with 

biointermediate producers that could 

provide for transfer of some or all of the 

RIN value to the biointermediate 

producer, under the biointermediates 

provisions only the renewable fuel 

producer will be able to generate and 

assign the RIN within the EPA 

Moderated Transaction System (EMTS). 

We discuss specific provisions related 

to the biointermediate provisions being 

finalized in this document below. In 

general, we received many public 

comments that were supportive of our 

general approach to allow to produce 

renewable fuels using biointermediates. 

We summarize and respond to all 

comments received relating to 

biointermediates in Section 10 of the 

RTC document. 

2. Implementation Dates 

We are finalizing our proposal that 

the biointermediates provisions will be 

implemented starting 60 days after the 

publication of the final rule in the 

Federal Register. Recognizing the 

amount of time that has passed since 

EPA first identified the need to revise 

the regulations in order to allow the use 

of biointermediates and stakeholders’ 

continued interest in such use, we are 

beginning program implementation as 

soon as possible. As explained at 

proposal, the start date of the program 

is necessarily linked to the scope and 

complexity of the biointermediates 


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213See 86 FR 72466 (December 21, 2021). 

214We are finalizing the definition of 

biointermediate in 40 CFR 80.1401. 

215The pathway petition process is described in 

40 CFR 80.1416. 

provisions being finalized.213 In general, 

public comments supported our 

proposal to begin implementing the 

biointermediate provisions as soon as 

possible. We also received a number of 

public comments suggesting a multitude 

of changes, many of which would have 

significantly increased the scope and/or 

complexity of the biointermediates 

program and thus the amount of time 

EPA would need to begin implementing 

it. While we address these suggestions 

individually in this preamble or the 

RTC document, we note that we have 

finalized a program that we can 

implement quickly and effectively so 

that parties can begin producing 

biointermediates as soon as practical. 

3. Definition of Biointermediate 

a. General Approach to Defining 

Biointermediates 

We are finalizing as proposed our 

general approach to defining 

biointermediates that are allowed in the 

program.214 We explained in the 

December 2021 proposal that the broad 

definition of biointermediate in the 

REGS proposal would have allowed any 

product that met that definition to be 

used as a biointermediate. We also 

noted that, based on comments received 

on the REGS proposal and subsequent 

information and experience, the onesize-fits-all regulatory framework in the 

REGS proposal would not actually work 

in all of the potential biointermediates 

situations anticipated. Therefore, in 

December 2021 we instead proposed to 

specifically identify permissible 

biointermediates by adding individual 

types to the definition of 

biointermediates. By allowing only 

those particular types of 

biointermediates for which we have 

adequate information and confidence in 

our ability to effectively oversee their 

production, distribution, and use, we 

can ensure that RINs are generated only 

for fuels produced from 

biointermediates that in turn are 

produced from renewable biomass 

under EPA-approved pathways. We also 

noted at proposal that, under this 

approach, in order for us to allow a new 

biointermediate into the program we 

would need to modify the regulatory 

definition of biointermediates via 

rulemaking. Recognizing that 

undergoing a rulemaking to add new 

biointermediates into the program could 

take time, we sought comment on 

whether we should allow for an 

administrative process to approve 

biointermediates outside of a 

rulemaking. 

Several commenters suggested that we 

either revert to the proposed 

biointermediates definition in the REGS 

proposal or allow for an administrative 

process akin to the pathway petition 

process for the approval of new 

biointermediates.215 These commenters 

suggested that a rulemaking process 

would take too long to allow for EPA to 

approve new biointermediates. They 

also noted that they believed that the 

proposed regulatory provisions 

provided sufficient safeguards to allow 

a broader range of biointermediates than 

the proposed definition would allow. 

Other commenters supported our 

general approach to defining 

biointermediates. These commenters 

noted that the approach balanced the 

allowing of needed flexibility in the RFS 

program to allow for renewable fuels to 

be produced at multiple facilities with 

ensuring proper oversight of a more 

complex production and distribution 

chain. 

While we appreciate the desire of the 

commenters for greater flexibility and 

responsiveness, their comments did not 

assuage our implementation and 

oversight concerns. Each 

biointermediate has particular 

compliance and enforcement 

considerations, including how to track 

the biointermediate back to renewable 

biomass, how a biointermediate may be 

processed with other feedstocks to 

produce renewable fuel, and how a 

biointermediate fits within existing 

pathways. Furthermore, commenters 

failed to specify how the proposed 

biointermediate provisions could 

address our implementation and 

oversight concerns for any and all future 

potential biointermediates. While we 

have sufficient information on and 

understanding of the specific 

biointermediates that we proposed for 

inclusion in the December 2021 

proposal and those additional 

biointermediates that we are finalizing 

as discussed in Section VII.C.3.c, it is 

difficult to anticipate whether the 

biointermediates program will be 

effective for biointermediates with asyet unknown production, distribution, 

and use considerations. As such, we 

continue to believe that the most 

reasonable approach is a 

biointermediates program that allows us 

to consider and, if necessary, address 

these challenges on a biointermediateby-biointermediate basis. We are thus 

finalizing as proposed our proposal to 

define the scope of the program by 

specifying the particular 

biointermediates that will be eligible to 

produce qualifying renewable fuels. In 

other words, under this approach, we 

are defining the specific situations in 

which it would be permitted to process 

feedstocks into renewable fuels at 

multiple facilities. Also under this 

approach, if we do not list a 

‘‘biointermediate’’ explicitly in the 

definition of biointermediate, that 

purported ‘‘biointermediate’’ is not 

lawful for use in making renewable 

fuels under the RFS program. In order 

for a new biointermediate to be brought 

into the program under this approach, 

we will amend the regulations via 

notice-and-comment rulemaking to add 

the new biointermediate to the list, at 

which time we will also make any other 

necessary regulatory changes needed to 

provide proper oversight for its 

potentially unique circumstances. 

We appreciate commenters concerned 

that adding new biointermediates via 

notice-and-comment rulemaking will 

take time; however, we note that we will 

likely continue to periodically issue 

rulemakings related to the RFS program 

to set volume requirements, promulgate 

new pathways, and technically amend 

the RFS regulatory provisions. These 

ongoing regulatory activities will 

provide ample opportunities to add new 

biointermediates to the program with 

any other necessary regulatory changes 

on a regular basis. 

As explained at proposal, our 

approach to defining biointermediates is 

not intended to affect pre-processing 

steps for feedstocks in Table 1 that are 

limited to form changes. We recognize 

that it has been common practice for 

some feedstocks listed in Table 1 to 40 

CFR 80.1426 to be pre-processed at 

separate facilities before they are 

delivered to a renewable fuel 

production facility and used to produce 

renewable fuel. We do not intend to 

disrupt this practice. However, in order 

to assure that we can verify that 

renewable fuel was made with 

qualifying renewable biomass, through 

production processes corresponding 

with approved pathways, we need to 

impose limits on the type of preprocessing of qualifying feedstocks that 

will be allowed without becoming 

subject to the biointermediate 

requirements. We believe we have 

appropriately balanced these interests 

by allowing the pre-processing of 

feedstocks listed in approved pathways 

at facilities other than the renewable 

fuel production facility, but only if the 

pre-processing results only in a form 

change such as chopping, crushing, 

grinding, pelletizing, filtering, 

compacting/compression, centrifuging, 


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216See 86 FR 72466–72469 (December 21, 2021). 

217The definitions of each of specific 

biointermediate allowed under the program are 

being promulgated at 40 CFR 80.1401. 

218See 86 FR 72475 (December 21, 2021). 

219See 86 FR 72485 (December 21, 2021). 

220See 84 FR 36801 (July 29, 2019) for the 

proposed esterification pathway and 86 FR 72473– 

72474 (December 21, 2021) for a discussion of FFA 

feedstocks and the proposed esterification pathway. 

degumming, dewatering/drying, 

melting, or the addition of water to 

produce a slurry. Unlike other processes 

that would lead to a biointermediate, 

even though these form-change 

processes are conducted at an upstream 

location, the feedstock can reasonably 

be expected to continue to be derived 

from renewable biomass, be used to 

produce renewable fuel under an EPAapproved pathway, and EPA can be 

reasonably expected to be able to verify 

it. 

In the NPRM, we sought comment on 

whether we should expand or narrow 

the types of pre-processing that should 

be allowed for feedstocks at facilities 

other than the renewable fuel 

production facilities that will not result 

in a biointermediate. Several 

commenters noted that we should allow 

for additional types of pre-processing 

steps. Based on these comments, we are 

adding the bleaching and degumming of 

vegetable oils as non-prohibited preprocessing steps. These pre-processing 

steps are consistent with our stated 

intent in the proposal to avoid 

disrupting existing renewable fuel 

production processes where renewable 

biomass is not substantially altered in a 

manner that would make us question 

our ability to oversee the program. We 

have not included pre-processing steps 

that raise concerns over our ability to 

ensure that a biointermediate was 

produced from renewable biomass. 

Allowing such processes would require 

additional regulatory oversight, such as 

the biointermediate provisions being 

finalized in this document. 

To implement this approach, we are 

finalizing a prohibition on the 

production of a renewable fuel at more 

than one facility unless the renewable 

fuel production facility is using a 

biointermediate as defined in 40 CFR 

80.1401 or is using feedstocks identified 

in Table 1 to 40 CFR 80.1426 that were 

pre-processed at a different facility and 

the pre-processing was limited to 

chopping, crushing, grinding, 

pelletizing, filtering, compacting, 

compression, centrifuging, degumming, 

dewatering/drying, melting, or the 

addition of water to produce a slurry. 

Our intent with this prohibition is to 

make clear the specific situations where 

feedstocks will be allowed to be 

processed at multiple facilities without 

being subject to the biointermediates 

provisions. 

b. Biocrude, Free Fatty Acid (FFA) 

Feedstock, and Undenatured Ethanol 

In the NPRM, we proposed an initial 

list of biointermediates that included 

biocrude, FFA feedstock, and 

undenatured ethanol. We proposed 

these three biointermediates because we 

believed they could effectively be 

accommodated by the proposed 

biointermediates provisions. We noted 

that these biointermediates are likely to 

be available in measurable quantities in 

the near future and that our proposed 

biointermediate regulations could 

ensure proper compliance oversight and 

enforcement.216 We also noted that 

since parties exist that are relatively 

close to or already capable of producing 

renewable fuels from biocrude, FFA 

feedstock, and undenatured ethanol, it 

is relatively clear to us how they will do 

so and what the compliance oversight 

issues might be with these 

biointermediates. Because we had 

sufficient knowledge and understanding 

to be confident that our 

biointermediates regulations can ensure 

proper compliance and oversight, 

proposed that it would be appropriate to 

allow the use of these biointermediates 

to produce renewable fuel under a 

biointermediates program. 

All commenters that spoke to the 

issue of inclusion of biocrude, FFA 

feedstock, and undenatured ethanol 

supported the inclusion of these 

biointermediates into the program. As 

supported by commenters, we are 

finalizing the inclusion of biocrude, 

FFA feedstock, and undenatured 

ethanol.217

To effectuate the inclusion of these 

biointermediates in the definition of the 

program, we proposed specific 

definitions of biocrude, FFA feedstock, 

and undenatured ethanol. We 

developed these proposed definitions 

based on discussions we had with 

parties that were interested in 

producing these biointermediates prior 

to the December 2021 proposal. We 

received several comments suggesting 

clarifications for each proposed 

definition. 

Regarding biocrude, in the NPRM we 

proposed to define biocrude as ‘‘a liquid 

biointermediate produced from 

renewable biomass through gasification 

or pyrolysis at a biointermediate 

production facility to be used to 

produce renewable fuel at a refinery as 

defined in 40 CFR 1090.80.’’ 218 We 

proposed to limit biocrude to these two 

production processes because we 

believed that gasification or pyrolysis of 

qualifying renewable biomass to make 

biocrude was consistent with the 

existing EPA-approved pathways, 

specifically Row M of Table 1 to 40 CFR 

80.1426. We received a number of 

comments suggesting that we allow for 

additional processes for the production 

of biocrude. Some commenters noted 

that additional processes are already 

covered by current pathways listed in 

Table 1 of 80.1426 (e.g., thermo-catalytic 

hydrodeoxygenation listed in Row M). 

Others asked whether certain types of 

pyrolysis (e.g., hydrothermal 

liquefaction) would be covered under 

the proposed definition. Finally, some 

commenters noted that there are a 

number of potential processing 

technologies to produce biocrude that 

EPA should consider adding to the 

proposed biocrude definition. We 

appreciate commenters highlighting that 

biointermediate producers could use 

other processes to make 

biointermediates consistent with our 

proposed approach. Therefore, we have 

modified the definition of biocrude to 

clarify that it must be produced from a 

process already covered under pathway 

M under Table 1 of 80.1426 (e.g., 

pyrolysis or gasification), or a process 

identified in an approved pathway 

under 40 CFR 80.1416 for the 

production of renewable fuel produced 

from biocrude. 

Due to the significant amount of 

energy needed to process renewable 

biomass, it is important that only 

processes we have determined are 

consistent with meeting the applicable 

GHG reduction thresholds are used to 

produce biocrude. We are therefore 

structuring the biocrude definition to 

clearly limit biocrude production to 

processes covered by an EPA-approved 

pathway that can account for the GHG 

reduction, while reducing barriers for 

processes that can demonstrate they 

meet the GHG reduction. 

We also received several comments 

on the proposed FFA feedstock 

definition, and we are finalizing some 

suggested changes to that definition 

based on comments. In the NPRM, we 

proposed to define FFA feedstock as ‘‘a 

biointermediate that is composed of at 

least 80 percent free fatty acids that are 

separated from renewable biomass.’’ 219

We also proposed to include a provision 

that FFA feedstock must not include 

any free fatty acids from the refining of 

crude palm oil. We explained that this 

proposed definition is consistent with 

the lifecycle analysis that supported the 

proposed stand-alone esterification 

pathway in the 2020 RVO rule,220 and 

that it would ensure that only those FFA 


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39640 Federal Register / Vol. 87, No. 126 / Friday, July 1, 2022 / Rules and Regulations 

221The definitions for biomass-based sugars, 

digestate, glycerin, biodiesel distillate bottoms, and 

soapstock will be included with other definitions 

specified in 40 CFR 80.1401. 

222See ‘‘Potential Biointermediates Memo’’ 

located in the docket for this action, docket ID 

EPA–HQ–OAR–2021–0324–0271. 

feedstocks that would fall under 

currently approved pathways would be 

used to produce renewable fuels. 

We are finalizing changes to the FFA 

feedstock definition in two areas based 

on suggestions from public commenters. 

First, several commenters suggested that 

the 80 percent requirement was too 

restrictive and may limit the use of 

many FFA feedstocks that could 

currently be produced and used in the 

market. These commenters suggested 

that we reduce the limit to 50 or 60 

percent. As explained in the RTC 

document, we believe these comments 

have merit and are therefore finalizing 

that FFA feedstock must contain at least 

50 percent free fatty acids. 

Second, one commenter suggested 

that we specify a test method to measure 

FFA concentration in FFA feedstock as 

part of the definition. While we 

generally agree with the idea of a 

biointermediate producer specifying 

how they intend to measure FFA 

concentration, we want to ensure that 

we are accommodating the number of 

test methods that could be used to 

measure FFA concentration. Therefore, 

in response to this suggestion, we are 

finalizing a requirement for 

biointermediate producers that make 

FFA feedstock to submit as part of 

registration a description of the method 

they will use to determine FFA 

concentration in FFA feedstock. In 

acting on registrations, EPA will either 

approve use of the proposed 

measurement method or require an 

alternate method. 

Regarding undenatured ethanol, we 

proposed to define the specific 

biointermediate as ‘‘ethanol that has not 

been denatured as required in 27 CFR 

parts 19 through 21.’’ We received a 

comment suggesting that we expand the 

definition of undenatured ethanol to 

include specially denatured alcohols 

under the Department of Treasury’s 

Alcohol and Tobacco Tax and Trade 

Bureau (TTB) requirements at 27 CFR 

parts 20 and 21. Specially denatured 

alcohols (SDAs) are alcohols that are 

denatured to make them unfit for 

human consumption, but not in a 

manner that qualifies them as denatured 

fuel ethanol under EPA’s fuel quality 

regulations at 40 CFR part 1090 or 

industry specifications at ASTM 

International (ASTM) D4806. The 

commenter suggested that these 

alcohols could be used to make 

renewable fuel and that TTB requires 

specific tracking of SDAs to ensure that 

they are not used for human 

consumption. We believe, as 

commenters suggest, that SDAs should 

qualify as a biointermediate. We 

recognize that parties that may wish to 

produce ethanol for use as a 

biointermediate must comport with TTB 

requirements for the distribution of the 

ethanol to renewable fuel production 

facilities, and those parties may wish to 

utilize the provisions of 27 CFR parts 20 

and 21 to create SDAs instead of either 

obtaining waivers to TTB requirements 

to distribute undenatured ethanol or 

denaturing the ethanol to create 

denatured fuel ethanol (which can 

render the ethanol no longer suitable for 

use to produce a renewable fuel). We 

did not intend to exclude SDAs from the 

program and have expanded the 

definition of undenatured ethanol to 

include SDAs as suggested. However, as 

we discuss in more detail in the RTC 

document, TTB requirements are not a 

substitute for the biointermediates 

provisions as TTB’s provisions are not 

intended to demonstrate that renewable 

fuels were produced consistent with 

CAA and EPA regulatory requirements. 

We also note that we received a 

number of comments asking to clarify 

the treatment of foreign produced 

undenatured ethanol. We discuss this 

issue in Section VII.C.9. 

c. Additional Allowed Biointermediates 

Recognizing that there may be 

additional potential biointermediates 

that are consistent with our criteria for 

inclusion in the program at this time 

(i.e., in this rulemaking), we sought 

comment on other potential 

biointermediates for inclusion in the 

final rule. In the NPRM, we noted that 

we would consider adding a potential 

biointermediate in the final rulemaking 

if its production, transfer, and use to 

produce renewable fuel would be 

sufficiently and appropriately covered 

by the regulatory framework we were 

proposing. Specifically, we noted our 

intention to base our consideration of 

potential additional biointermediates on 

whether the proposed biointermediates 

provisions would adequately limit 

opportunities to generate fraudulent 

RINs through multiple-counting, 

whether we could ascertain that 

feedstocks used to produce the potential 

biointermediate qualify as renewable 

biomass using an EPA-approved 

pathway, and whether there are any 

unique considerations for the potential 

biointermediate that would require 

further regulatory requirements to 

ensure that generated RINs are valid. We 

asked that commenters suggesting a 

potential additional biointermediate 

specifically address these criteria in 

their comments. We also asked 

commenters to provide information 

describing the type of potential 

biointermediate, the potential volume of 

renewable fuel(s) that could be 

produced from it, and the timeline for 

its development and ultimate 

production. Finally, we noted that we 

intended to finalize only those potential 

biointermediates that meet the criteria 

described above: would be effectively 

overseen under the proposed 

compliance and oversight provisions, 

have a low likelihood of being 

susceptible to generation of fraudulent 

RINs, can be verified as being produced 

from renewable biomass, and would not 

require further regulatory provisions. 

We received comments suggesting 

several additional biointermediates for 

inclusion in the final rule. We note that 

many commenters did not supply 

adequate information for us to 

determine whether it would be 

appropriate, based on our criteria, to 

include a potential biointermediate in 

the program. In such cases, given our 

uncertainty regarding whether the 

regulatory provisions would be 

sufficient to oversee production and use 

of the biointermediate, we have not 

added the potential biointermediate to 

the list at this time. We discuss each of 

these potential biointermediates 

specifically in the RTC document. 

However, some commenters did 

provide enough information for us to 

determine that we can appropriately 

include the potential biointermediate 

under the biointermediates provisions. 

In these cases, commenters adequately 

described the potential biointermediate 

and described how the proposed 

biointermediate provisions would be 

sufficient to mitigate the generation of 

fraudulent RINs. Based on the 

suggestions and descriptions from 

comments, we are finalizing the 

addition of five additional 

biointermediates in the final 

rulemaking. Specifically, we are adding 

the following to the biointermediates 

definition in this action: biomass-based 

sugars, digestate, glycerin, biodiesel 

distillate bottoms, and soapstock. We 

are also promulgating definitions, 

largely based commenters suggestions, 

for each of these specific 

biointermediates.221 We note that EPA 

identified all of these biointermediates 

in the proposal as potentials for 

inclusion,222 and we discuss these 

biointermediates and associated 

comments in the RTC document. 

We received many comments on one 

particular potential biointermediate: 

biogas. Commenters suggested that we 


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Federal Register / Vol. 87, No. 126 / Friday, July 1, 2022 / Rules and Regulations 39641 

223The regulatory requirements pertaining to 

limits on biointermediate transfers are being 

promulgated at 40 CFR 80.1476(g). 

224 Informally, this type of relationship is called 

a ‘‘many-to-one’’ relationship. Under this approach, 

many biointermediate production facilities can only 

transfer biointermediates to a single renewable fuel 

production facility. In contrast, under a ‘‘many-tomany’’ relationship biointermediate production 

facilities could transfer biointermediates to many 

renewable fuel production facilities, and renewable 

fuel production facilities could receive 

biointermediates from many biointermediate 

production facilities. 

should allow biogas transported via 

commercial pipeline, sometimes called 

renewable natural gas or RNG, to be 

used as a biointermediate in the 

production of renewable hydrogen, 

renewable methanol, and a variety of 

other renewable fuels. Commenters also 

noted that many of the proposed 

biointermediate provisions would likely 

need to be revised in order for biogas to 

be used as a biointermediate. We are not 

adding biogas to the definition of 

biointermediate in this action. While we 

acknowledge the opportunities for 

additional advanced and cellulosic 

biofuels that allowing the use of biogas 

or RNG as a biointermediate would 

provide, we also note, as some 

commenters highlighted, that the 

biointermediate provisions currently 

being finalized are not appropriate for 

biogas used as a biointermediate, 

especially when that biogas or RNG is 

distributed via commercial pipeline. We 

neither developed nor proposed 

provisions that would be necessary to 

address the unique circumstances 

associated with biogas as a 

biointermediate. We intend to address 

the use of biogas as a biointermediate 

when we address issues related to the 

use of biogas to make renewable 

electricity (so-called ‘‘eRINs’’) in a 

future action. 

4. Limits on Biointermediate Transfers 

We are finalizing as proposed the 

requirement that the processing of a 

biointermediate must only occur at a 

single facility before the biointermediate 

is transported to a renewable fuel 

production facility.223 Under this 

approach, only two parties would be 

involved in the transformation of a 

renewable biomass feedstock under an 

approved pathway into renewable fuel. 

While it is possible that in the future the 

production of certain biointermediates 

may require processing at multiple 

facilities, most if not all of the inquiries 

regarding biointermediates that we have 

received thus far have only involved 

two facilities: one to produce the 

biointermediate and another to turn it 

into renewable fuel. Additionally, while 

it is relatively straightforward for EPA to 

track biointermediates and enforce the 

applicable requirements when there is 

one biointermediate producer, 

significant implementation and 

enforcement concerns arise when more 

than one facility is involved in the 

production of a given biointermediate, 

as each extra production step adds 

another layer of complexity and 

potential for fraud to occur. Thus, the 

final regulations do not allow the 

production of biointermediates to occur 

at multiple facilities. 

We are also finalizing as proposed the 

limit restricting the transfer of 

biointermediates from a biointermediate 

production facility to a single renewable 

fuel production facility, while 

renewable fuel production facilities may 

receive biointermediates from multiple 

biointermediate production facilities.224

This limitation will significantly 

simplify tracking of biointermediates 

and therefore enable EPA to oversee RIN 

generation for renewable fuels produced 

from biointermediates. While many 

commenters asserted that the proposed 

limit would make biointermediate 

transfer and use more difficult, without 

this restriction on biointermediates 

transfers the use of non-qualifying 

feedstocks would be difficult to detect 

and therefore likely to occur. 

Additionally, we do not believe this 

limitation will unreasonably limit the 

production and use of biointermediates. 

In order for EPA and independent third 

parties to effectively audit whether 

qualifying biointermediates (i.e., 

biointermediates produced from 

qualifying renewable biomass under an 

EPA-approved pathway) in the exact 

amounts (i.e., the biointermediate did 

not have a RIN generated for it as a 

renewable fuel or have non-qualifying 

feedstocks added to the biointermediate 

during transport) were used in 

producing renewable fuel, all facilities 

that produced and used 

biointermediates as well as all the 

locations where biointermediates were 

distributed and stored need to be 

systematically audited. If there were no 

limits on biointermediates transfers, this 

could be potentially hundreds of 

facilities and locations located 

throughout the world. Such oversight 

would be unrealistic for EPA or 

independent third parties to 

accomplish, which would leave open 

opportunities for the generation of 

invalid or fraudulent RINs and 

undermine the use of real renewable 

fuels. If we were to allow 

biointermediate production facilities to 

transfer product to multiple renewable 

fuel production facilities and renewable 

fuel production facilities to also receive 

product from multiple biointermediate 

producers, some parties could take 

advantage of the increased complexity 

in tracking relationships and batches to 

use non-qualifying feedstocks to make 

renewable fuel or generate fraudulent 

RINs through multiple layers of 

multiple-counting. 

We also note that allowing a many-tomany relationship would require both a 

significant investment in EPA tracking 

capability and a significant overhaul of 

the RFS quality assurance program 

(QAP). Both of these efforts would 

significantly delay the implementation 

of a biointermediates program. As such, 

we have finalized the biointermediates 

transfer limits as a means of quickly 

implementing the program while 

balancing our ability to ensure proper 

oversight. We may reconsider the limits 

on biointermediate transfers in the 

future as we gain more experience with 

biointermediates. 

Relatedly, we are also finalizing as 

proposed registration provisions that 

require the biointermediate producer to 

designate as part of their registration 

information submitted to EPA the 

receiving renewable fuel production 

facility to which biointermediate will be 

transferred. Recognizing that 

biointermediate producers may need to 

periodically change the receiving 

renewable fuel production facility, we 

are allowing biointermediate producers 

to change their designated renewable 

fuel production facility no more than 

one time per calendar year unless, in its 

sole discretion, EPA determines it is 

appropriate to allow the biointermediate 

producer to change its designated 

renewable fuel production facility more 

than once in a year. An example of a 

situation where EPA would consider it 

appropriate is the closure of the 

receiving renewable fuel production 

facility. This once-a-year limitation is 

necessary to implement the many-to-one 

transfer limitation. Without such a 

limitation, biointermediate producers 

could redesignate their associated 

renewable fuel production facility an 

unlimited number of times which 

would undermine the purpose of the 

many-to-one limit (i.e., establishing a set 

of provisions that allows us to maintain 

oversight). 

We do not believe this registration 

requirement imposes an undue practical 

burden on transfers of biointermediates. 

We note that under the biointermediates 

program being finalized in this action, 

the newly designated receiving 

renewable fuel production facility must 

be registered to use the biointermediate, 

which in turn requires an engineering 

review by a professional engineer (PE) 

to determine that the renewable fuel 


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39642 Federal Register / Vol. 87, No. 126 / Friday, July 1, 2022 / Rules and Regulations 

225The RFS QAP provisions are located 

throughout 40 CFR part 80, subpart M. In this 

action, we are modifying the regulatory RFS QAP 

regulatory provisions at 40 CFR 80.1469, 80.1471, 

and 80.1471 as well as creating a new section at 40 

CFR 80.1477 that describes the verification of 

biointermediates specifically. 

226See 86 FR 72470 (December 21, 2021) 

(‘‘Further, we are proposing that the 

biointermediate producer and renewable fuel 

producer must use the same QAP vendor to ensure 

consistent oversight of the two facilities.’’). 

227PTD requirements for biointermediates, 

renewable fuels, and RINs under the RFS program 

are described at 40 CFR 80.1453. 

228A transfer of title for a biointermediate is 

when one party (the transferer) transfers ownership 

of a batch or a portion of a batch of biointermediate 

to another party (the transferee). A transfer of 

custody for a biointermediate is when the transferer 

transfers physical custody of the batch or portion 

of a batch to the transferee without transferring 

ownership of the biointermediate. Such transfers of 

custody are common in the distribution of 

feedstocks, blendstocks, and fuels whereby those 

products are distributed via pipelines, railcars, and 

trucks operated by parties that never take title to the 

product being transferred. We anticipate that the 

distribution of biointermediates will be the same as 

other products covered by EPA’s fuel quality and 

RFS programs. 

production facility can use the 

biointermediate under an approved 

pathway. This process can take several 

months to arrange for a PE to conduct 

the engineering review, submit the 

registration update to EPA, and have it 

ultimately accepted by EPA. Also, as 

discussed in Section VII.C.5, both the 

biointermediate and renewable fuel 

producers must have their respective 

facilities audited under the QAP 

program, which also contributes to the 

amount of time needed to change the 

designated receiving renewable fuel 

production facility. Consequently, 

because of the time to conduct new 

engineering reviews and have new 

QAPs approved by EPA, limiting 

biointermediate producers to changing 

the designated receiving renewable fuel 

producer once per calendar year does 

not in fact impose any additional 

restriction. 

These biointermediate transfer 

provisions will both enable the 

production and use of biointermediates 

and enhance our ability to provide 

compliance and enforcement oversight. 

Based on our discussions with parties 

interested in the production and use of 

biointermediates, we believe that in 

most cases parties intend for a single 

renewable fuel production facility to 

receive all biointermediate produced 

from a biointermediate production 

facility. The biointermediates transfer 

provisions are also designed to be 

consistent with our understanding of 

how biointermediate transfers would be 

contracted by biointermediate and 

renewable fuel productions and how 

renewable fuel production facilities 

would be designed to accommodate the 

use of biointermediates. We intend to 

review the limits on biointermediate 

transfers in the future as we gain more 

experience with the biointermediates 

program. 

5. RFS Quality Assurance Program 

(QAP) and Biointermediates 

We are finalizing revisions to the RFS 

QAP to expand coverage to 

biointermediate production and use as 

proposed.225 The existing RFS QAP 

provides for auditing of renewable fuel 

production facilities by independent 

third-party auditors who review 

feedstock elements, process elements, 

and RIN generation elements to 

determine if renewable fuel production 

is consistent with EPA requirements. 

These independent third-party auditors 

verify the RINs generated from 

renewable fuel production facilities that 

participate in QAP. Under this action, 

we are finalizing our proposed 

requirement for both biointermediate 

producers and renewable fuel producers 

that use biointermediates to participate 

in the RFS QAP program. Independent 

third-party auditors will review 

feedstock and process elements for 

biointermediate production facilities to 

verify, among other things, that 

biointermediates are produced using 

renewable biomass and via processes 

consistent with the applicable 

renewable fuel pathway(s). Mandatory 

participation of both the 

biointermediate and renewable fuel 

producers will help ensure that RINs 

generated from biointermediates are 

valid, which in turn will allow EPA to 

balance the competing priorities of 

allowing the timely use of 

biointermediates for the production of 

renewable fuel in the near term and 

establishing a program that we can 

effectively oversee for the long term. 

Additionally, in order for a renewable 

fuel producer to generate a Q–RIN, we 

are finalizing a requirement that both 

the biointermediate producer and the 

renewable fuel producer must have in 

place an EPA-approved pathwayspecific QAP. This is necessary to 

provide the level of assurance that is 

expected from the RFS QAP. If we 

allowed the renewable fuel producer to 

generate Q–RINs without the 

biointermediate producer’s information 

being verified, it could undermine the 

level of compliance assurance provided 

by Q–RINs. Furthermore, allowing the 

production and use of biointermediates 

to go unverified would provide 

increased opportunity for the use of 

unapproved feedstocks and the 

generation of fraudulent RINs through 

multiple-counting. Having an 

independent third-party auditor verify 

the production of both the 

biointermediate and the renewable fuel 

is necessary to help oversee the added 

complexity that results from having 

renewable fuel processing occur at two 

different facilities. Finally, since the 

focus of the QAP system is the validity 

of RINs and both the biointermediate 

producer and the renewable fuel 

producer must follow approved 

pathway processes for RINs to be valid, 

it would not be appropriate to allow the 

generation of Q–RINs without a QAP for 

the biointermediate producer. 

Further, we are finalizing a 

requirement that the biointermediate 

producer and renewable fuel producer 

must use the same QAP vendor to 

ensure consistent oversight of the two 

facilities. We believe that the same 

auditor should verify both the 

biointermediate and renewable fuel 

production facility to ensure that the 

corresponding records, product transfer 

documents, and reported information 

agree between the two facilities. If we 

allowed separate auditors to verify the 

biointermediate and renewable fuel 

production facilities, the auditors may 

not be able to effectively implement 

their QAP and track biointermediate 

production, distribution, and use. We 

note that we are finalizing regulatory 

text that makes it clear our intent to 

require that the same independent 

auditor verify both the biointermediate 

producer and renewable fuel producer 

which was missing from the proposed 

regulations in the NPRM.226

6. Product Transfer Documents (PTDs) 

We are finalizing, with modifications 

relative to proposal, PTD requirements 

for the transfer of custody and title of 

biointermediates from the 

biointermediate production facility to 

the renewable fuel production 

facility.227 228 PTD requirements are 

needed to provide renewable fuel 

producers using biointermediates the 

information they need to ensure the 

validity of RINs they generate. Under 

the biointermediates requirements being 

finalized in this action, the 

biointermediate producer must transfer 

to the renewable fuel producer PTDs for 

each batch of biointermediate. Since 

renewable fuel producers must have 

information about the feedstocks and 

processes used to produce 

biointermediates in order to ensure that 

they are generating valid RINs, the 

biointermediate PTD regulations require 

parties to transfer more information 

than is included in typical PTD 

requirements in the fuels regulations. 

The PTD must contain information 


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Federal Register / Vol. 87, No. 126 / Friday, July 1, 2022 / Rules and Regulations 39643 

229For reference, these elements include the 

name and address of the transferor and transferee, 

the transferor’s and transferee’s EPA-issued 

registration numbers, the volume of biointermediate 

being transferred, the date of the transfer, and the 

location of the biointermediate at the time of the 

transfer. 

230See 40 CFR part 1090, subpart L. 

231A bill of lading is a document issued by a 

carrier to a shipper that details the type, quantity, 

and destination of the goods being carried. Under 

EPA’s fuels programs, parties have typically 

included PTD language requirements on bills of 

lading for the product being transferred; however, 

EPA does not specify which specific document that 

EPA’s PTD language requirements is included on as 

long as a document containing the applicable, 

required PTD language accompanies the transfer. 

232The record retention requirements for RFS are 

located at 40 CFR 80.1454(n). 

233 In general, we expect titles of transfer to occur 

primarily between biointermediate and renewable 

fuel producers. 

related to the feedstock, volume, and 

processes used in the production of the 

biointermediate. Additionally, to the 

extent that any portion of the 

biointermediate is not derived from 

renewable biomass, biointermediate 

producers are required to identify the 

renewable content (expressed by weight 

or volume percent as appropriate) of the 

biointermediate that can be used to 

make renewable fuel for which RINs 

could be generated. If applicable, 

biointermediate producers must also 

convey information regarding the 

cellulosic content (by weight or volume 

percent as appropriate) of the 

biointermediate. Information on these 

breakdowns, if applicable, must be 

transferred via the PTD to the renewable 

fuel producer so it can properly generate 

RINs for renewable fuel produced from 

the biointermediate. In all situations 

where a renewable fuel producer is 

required to utilize information related to 

the production of a biointermediate 

under 40 CFR 80.1426(f) to generate 

RINs, the biointermediate producer 

must transfer with PTDs records 

describing applicable calculations to the 

renewable fuel producer. For example, a 

biointermediate producer must transfer 

records that include all of the inputs 

and assumptions required to calculate 

the feedstock energy according to 

equations in 40 CFR 80.1426(f)(3)–(4), 

including the mass of the feedstock or 

biointermediate (M), average moisture 

content of the feedstock or 

biointermediate (m), converted fraction 

(CF), and the energy content of the 

feedstock or biointermediate 

components converted into renewable 

fuel (E). Copies of these records must be 

transferred on each occasion when any 

party transfers title of a biointermediate. 

Several commenters noted that 

including PTD requirements for 

transfers of custody and title for 

biointermediate transfers would be a 

departure from similar PTD 

requirements for renewable fuels, which 

only require PTDs to accompany 

transfers of title. Other commenters 

contended that it is unnecessary to 

include information and copies of 

records related to the production of the 

biointermediate for each party that takes 

custody of the biointermediates, as it is 

only the renewable fuel producer that 

ultimately needs the records 

demonstrating that the biointermediate 

was produced from renewable biomass 

under an EPA-approved pathway. Other 

commenters argued even further that no 

PTD requirements were necessary at all 

for transfers of biointermediates as such 

information would be documented 

using customary business practices that 

include necessary information on bills 

of lading. 

While we acknowledge commenters’ 

concerns about the potential burdens of 

requiring PTD for biointermediates 

transfers of custody as well as title, 

PTDs for custodial transfers of 

biointermediates are necessary to 

address our concerns over potential 

multiple-counting of biointermediates 

for RIN generation and contamination of 

biointermediates with non-qualifying 

feedstocks during distribution. PTDs 

accompanying transfers of custody of 

products establish a paper trail that can 

be verified by third-party auditors and 

EPA. This is particularly important in 

the case of biointermediates because, 

unlike most other feedstocks covered 

under the RFS program (e.g., corn 

starch), biointermediates can often be 

used as both a renewable fuel and a 

feedstock. This potential dual use 

significantly increases the opportunities 

for multiple-counting of a single volume 

as both a biointermediate and a 

renewable fuel, and for associated RIN 

fraud. 

However, we recognize that much of 

the information that we proposed to 

require be transferred along with each 

custody transfer of a batch of 

biointermediate is only necessary for the 

renewable fuel producer. Therefore, we 

are requiring that only the basic 

identifying information for the batch of 

biointermediate be included on PTDs 

for transfers of custody.229 We note that 

this approach is consistent with how we 

handle transfers of custody for gasoline 

and diesel fuel under 40 CFR part 1090, 

which also applies to the transfer of 

most renewable fuels, such as denatured 

ethanol and biodiesel, under the RFS 

program.230 We believe, as some 

commenters suggested, that basic 

identifying information for batches of 

biointermediates is likely already 

included on bills of lading 231 for the 

distribution of biointermediates and 

similar products; as such, requiring this 

information be provided via a PTD for 

custody transfers will not be 

unnecessarily burdensome. However, it 

is important to also require this 

information via PTDs for custody 

transfers so that parties will keep such 

information in a standardized format for 

third-party and EPA auditing. We also 

note, that without regulatory PTD 

requirements, parties would likely not 

maintain PTDs for periods of time 

consistent with the record retention 

periods under the RFS program.232

We also received comments on our 

proposed PTD requirements that the 

information we proposed to require for 

transfers of title 233 of biointermediates 

is unnecessary to track their 

distribution. However, as discussed 

more thoroughly in Section VII.C.1, 

because the renewable fuel producer is 

ultimately responsible for the validity of 

any RINs generated from the 

biointermediate, it is necessary that the 

renewable fuel producer receive 

sufficient information from the 

biointermediate producer to 

demonstrate that the biointermediate, 

and therefore the renewable fuel, was 

produced from renewable biomass 

under an approved pathway. It would 

therefore be inappropriate not to require 

the transfer of any of this information 

between the biointermediate and 

renewable fuel producers. We also point 

out that even if some of the information 

specified in the PTD requirements for 

biointermediates is covered as part of 

customary business practice, not all of 

it is, and parties may not keep the PTDs 

as records in a way that is conducive to 

third-party and EPA oversight. We are 

therefore finalizing PTD provisions 

requiring that the information necessary 

to demonstrate that the biointermediate 

was produced from renewable biomass 

and via a process included under an 

EPA-approved pathway be included for 

transfers of title for the biointermediate. 

We are not finalizing proposed 

changes to PTD requirements for RINs 

generated from renewable fuel produced 

from biointermediates. In the NPRM, we 

proposed that RIN PTDs would need to 

identify that the RINs were generated for 

renewable fuels produced from 

biointermediates as well as the EPAissued company and facility numbers of 

the biointermediate producer. We 

explained that by requiring such 

information on the RIN PTDs, parties 

that transfer or use such RINs would 

better understand whether they were 

transferring and using RINs generated 

from renewable fuels produced from 


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39644 Federal Register / Vol. 87, No. 126 / Friday, July 1, 2022 / Rules and Regulations 

234See 40 CFR 80.1473(a). 

235The registration requirements for 

biointermediate producers and the modifications to 

the registration requirements for renewable fuel 

producers are both located at 40 CFR 80.1450. 

236See 40 CFR 80.1450(d) for changes where a 

biointermediate producer must update their 

registration information. 

237The reporting requirements for 

biointermediate producers as well as the modified 

reporting requirements for renewable fuel 

producers are located at 40 CFR 80.1451. The 

modifications to the EMTS reporting requirements 

for RIN generation are located at 40 CFR 80.1452. 

biointermediates. All commenters, 

including those that we believed would 

appreciate such information, opposed 

the additional requirement for RIN 

PTDs. These commenters noted that 

they could already obtain such 

information and that inclusion of such 

information on PTDs may cause RINs 

from biointermediates to not be traded 

and would be unnecessarily disruptive 

to existing RIN transactions. We 

appreciate the commenters’ concerns 

and are, therefore, not finalizing the 

proposed RIN PTD language. Although 

we are not finalizing the proposed RIN 

PTD language, we stress here again that 

it is a violation of the RFS regulations 

to transfer or use an invalid RIN and it 

is incumbent upon all parties to 

undertake due diligence to ascertain the 

validity of RINs that they transfer or use 

to meet an RVO. 

7. Registration, Reporting, and 

Recordkeeping Requirements 

We are finalizing registration, 

reporting, and recordkeeping 

requirements related to the production, 

distribution, and use of 

biointermediates for both 

biointermediate producers and 

renewable fuel producers largely as 

proposed. Under the RFS program, the 

renewable fuel producer is always 

responsible for verifying and 

demonstrating that the renewable fuel it 

produces is derived from renewable 

biomass and was produced in 

accordance with an approved renewable 

fuel production pathway.234 If the 

renewable fuel producer is using a 

biointermediate, however, the direct 

link between the renewable fuel 

producer and the renewable biomass 

supplier is lost. In such cases, the 

biointermediate producer is required to 

verify and provide records (in the form 

of PTDs) to the renewable fuel producer 

that demonstrate the feedstock used to 

make the biointermediate meets the 

definition of renewable biomass and is 

part of the approved renewable fuel 

production pathway that the renewable 

fuel producer intends to use to generate 

RINs. Therefore, additional registration, 

recordkeeping, and reporting 

requirements associated with 

biointermediates are needed to provide 

the renewable fuel producer with the 

information necessary to verify that the 

fuel they produce qualifies as renewable 

fuel for which RINs may be generated. 

We discuss each of these 

requirements separately in Sections 

VII.C.7.a through c below. 

a. Registration 

We are finalizing as proposed 

registration requirements for 

biointermediates producers and 

corresponding changes to renewable 

fuel producers’ registration 

requirements to allow for the 

production, distribution, and use of 

biointermediates.235 Under the 

biointermediates program, 

biointermediate producers must register 

with EPA by facility in a manner similar 

to renewable fuel producers. The 

registration information submitted by 

the biointermediate producer must 

include the basic company information 

(e.g., company name, address of 

production facility, etc.) required for all 

EPA fuels program registrants. In 

addition, biointermediate producers 

must provide basic operational 

information, such as the capacity of 

their production facility, the processes 

utilized to produce the biointermediate, 

the feedstocks they will use, a 

description of their biointermediate 

product, and the pathway(s) they 

believe the biointermediate product 

could be used in. 

Similar to renewable fuel producers, 

biointermediate producers must arrange 

for an independent third-party engineer 

to conduct a review for each facility. 

This independent third-party 

engineering review must include a site 

visit and review of the registration 

submission to independently evaluate 

the facility’s ability to produce the 

biointermediate under an EPA-approved 

pathway. To implement the facility 

transfer limits discussed in Section 

VII.C.4, a biointermediate producer 

must identify the single renewable fuel 

production facility that will use its 

biointermediate product as part of the 

registration information reviewed by the 

third-party engineer and submitted to 

EPA. 

In order to use a biointermediate, 

existing renewable fuel producers must 

also update their registration 

information to demonstrate that the 

renewable fuel production facility can 

produce qualifying renewable fuel from 

the biointermediate. A renewable fuel 

producer cannot use a biointermediate 

until EPA has accepted both the 

biointermediate producer’s and the 

renewable fuel producer’s registration 

materials reflecting the production and 

use of the biointermediate. 

Similar to renewable fuel producers’ 

registrations, biointermediate producers 

must submit updated registration 

information every three years, including 

a new independent third-party 

engineering review. In addition, 

biointermediate producers must update 

their registration materials between 

three-year updates if specified changes 

in their operations occur.236 A 

biointermediate producer must also 

comply with any other applicable 

registration requirements related to the 

particular renewable biomass 

feedstock(s) that would otherwise apply 

to a renewable fuel producer (e.g., 

submitting separated food waste plans 

and requirements related to the use of 

crop residue as a feedstock). 

We note that acceptance by EPA of a 

registration submission does not 

represent a determination by EPA of 

substantive compliance with applicable 

regulatory requirements. 

Biointermediate producers, as has been 

the case for all renewable fuel producers 

since the start of the RFS program, are 

responsible for ensuring on a continual 

basis that all applicable regulatory 

requirements are satisfied. For 

biointermediate producers, this 

includes, but is not limited to, the 

requirement to produce 

biointermediates from renewable 

biomass and in compliance with EPAapproved pathways. 

b. Reporting and EMTS 

We are finalizing, with minor 

revisions based on comments received, 

reporting requirements for 

biointermediates producers that will 

help EPA oversee the program and that 

will serve as the basis for third-party 

verification of the production, 

distribution, and use of 

biointermediates.237 Under the 

biointermediates program, 

biointermediate producers must submit 

quarterly reports to EPA that include 

feedstock and process information by 

batch, volume of the batch, renewable 

content of the batch, and cellulosic 

content of the batch (if applicable), as 

well as the specific renewable fuel 

facility where the batch of 

biointermediate was sent to be used for 

the production of renewable fuel. The 

biointermediate producer must also 

designate each batch that is intended to 

be used as a renewable fuel feedstock, 

so that the biointermediate batches are 

directly linked to the renewable fuel 


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Federal Register / Vol. 87, No. 126 / Friday, July 1, 2022 / Rules and Regulations 39645 

238The related forms for RFS producers are 

available at: https://www.epa.gov/fuels-registrationreporting-and-compliance-help/how-reportquarterly-and-annually-renewable-fuel. 

239The recordkeeping requirements for 

biointermediate producers are located at 40 CFR 

80.1454. 

240The requirements for annual attest 

engagements for biointermediate producers and the 

modification for annual attest engagements for 

renewable fuel producers are located at 40 CFR 

80.1464. 241The liability provisions for biointermediate 

producers and renewable fuel producers that use 

biointermediates is located at 40 CFR 80.1461. 

batches produced from that 

biointermediate. Like renewable fuel 

producers, biointermediate producers 

may also have to submit periodic 

reports based on their use of specific 

feedstocks or processes. 

We are also finalizing as proposed 

changes to the periodic reporting 

requirements for renewable fuel 

producers that use a biointermediate to 

help EPA ensure that biointermediates 

are being used appropriately. These 

changes include the reporting of the 

types and quantities of biointermediates 

used to produce batches of renewable 

fuel and the processes used and 

proportion of renewable volume 

attributable to each biointermediate.238

These revised reporting requirements 

will help EPA monitor compliance 

concerning the production and use of 

biointermediates by linking the volume 

of biointermediate produced by a 

biointermediate producer with the 

volume of renewable fuel produced by 

a renewable fuel producer. 

We are finalizing as proposed 

provisions requiring that renewable fuel 

producers report additional information 

in EMTS related to the generation of 

RINs from renewable fuels produced 

from biointermediates. For EMTS, the 

renewable fuel producer utilizing 

biointermediates in the production of 

renewable fuel must report the type and 

quantity of biointermediates used for 

the batch and the EPA company and 

facility registration number for each 

biointermediate production facility. 

Renewable fuel producers utilizing 

biointermediates must report in EMTS 

the total co-products and the 

process(es), feedstock(s), and 

biointermediate(s) used and proportion 

of renewable volume attributable to 

each process and feedstock. 

By the effective date of this action, we 

intend to complete modifications to 

EMTS to accommodate these updated 

reporting requirements for producers of 

renewable fuel to help track and ensure 

that biointermediates are used 

appropriately. Due to the similarity 

between the ways that biointermediates 

will be used and existing feedstocks are 

already being used, biointermediates 

use will be tracked through EMTS. In 

addition, aligning batches of RINs 

generated for renewable fuel with the 

biointermediate batches used to produce 

the fuel will help EPA ensure that 

volumes of biointermediates are 

appropriately used to generate valid 

RINs. 

These reporting requirements and 

tracking in EMTS will help EPA 

monitor the generation of RINs for 

renewable fuel produced from 

biointermediates, thereby reducing the 

potential for fraud and enhancing the 

integrity of the program. 

In the proposed rule, we sought 

comment on whether any additional 

functionality in EMTS would be helpful 

to implement the biointermediate 

program. Specifically, we sought 

comment on whether we should 

implement functionality that would 

allow transactors of RINs to see whether 

a RIN was generated from a 

biointermediate. We received several 

comments with suggestions on potential 

functional improvements to EMTS. We 

will consider such feedback as we 

prioritize future EMTS development. 

c. Recordkeeping 

We are finalizing recordkeeping 

requirements for biointermediate 

producers as proposed.239 Under these 

recordkeeping requirements, 

biointermediate producers must comply 

with essentially the same feedstock and 

process-related recordkeeping 

requirements as those in place for 

renewable fuel producers. Since the 

biointermediate producer is a party 

between suppliers of feedstocks listed in 

Table 1 and the renewable fuel 

producer, the biointermediate producer 

must maintain records related to the 

purchase of feedstocks used to produce 

the biointermediate. Biointermediate 

producers must also maintain 

appropriate records that demonstrate 

that feedstocks meet the definition of 

renewable biomass. Finally, 

biointermediate producers must keep 

records of any calculations the 

biointermediate producer used to 

determine the renewable content and 

cellulosic content of the 

biointermediate, as applicable. This 

information must be conveyed to any 

renewable fuel producer that uses the 

biointermediate as part of the required 

PTDs as discussed in Section VII.C.6. 

Renewable fuel producers must 

maintain these PTDs in addition to 

complying with their current 

recordkeeping requirements. 

8. Attest Engagements 

We are finalizing attest engagement 

requirements for biointermediate 

producers as proposed.240 Under the 

biointermediates program, 

biointermediate producers must 

undergo annual attest engagements 

similar to annual attest engagement 

requirements for renewable fuel 

producers. The attest engagements for 

biointermediate producers will help 

ensure that information contained in 

records is consistent with reported 

information to EPA as part of 

registration and periodic reporting. The 

attest engagement for biointermediate 

producers must be conducted by an 

outside certified public accountant or 

certified independent auditor following 

procedures specified in the regulations 

to determine whether the underlying 

records for the biointermediate, the 

reported information to EPA, and copies 

of PTDs provided to the renewable fuel 

producer agree. The attest auditor must 

also validate the list of renewable fuel 

producers receiving any transfer of 

biointermediate batches to assure that 

the transfer limits discussion in Section 

VII.C.4 are met. The attest auditor must 

issue a report to EPA detailing the audit, 

their procedures, and any findings. We 

are also finalizing corresponding 

changes to the attest engagements for 

renewable fuel producers to ensure that 

attest auditors verify records, reports, 

and PTDs related to the use of a 

biointermediate by the renewable fuel 

producer. 

9. Liability, Prohibited Activities, and 

Invalid RINs Related to 

Biointermediates 

We are finalizing with modifications 

provisions that establish prohibited 

activities related to biointermediates, 

how biointermediate producers and 

renewable fuel producers will be held 

liable, when biointermediates will be 

determined to be invalid, and 

provisions related to the treatment of 

invalid RINs related to biointermediates. 

a. Liability in Cases Where a 

Biointermediate is Noncompliant 

We are finalizing as proposed 

provisions that specify that both the 

biointermediate producer and 

renewable fuel producer are liable for 

cases where a biointermediate is 

determined not to comport with 

applicable regulatory requirements.241

Renewable fuel producers are ultimately 

responsible for ensuring that any 

biointermediate used to produce 

renewable fuel complies with the 

applicable statutory and regulatory 

requirements, consistent with the 


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39646 Federal Register / Vol. 87, No. 126 / Friday, July 1, 2022 / Rules and Regulations 

242The prohibited activities related to the 

production, distribution, and use of 

biointermediates, as well as other prohibited 

activities under the RFS, are located at 40 CFR 

80.1460. 

243The allowable form changes, i.e., form changes 

that do not result in substantial alteration of the 

renewable biomass feedstock, are described in the 

regulations at 40 CFR 80.1460(k)(2). 

244 86 FR 72495. 

245See 40 CFR 80.1460(f). 

requirement that they use qualifying 

feedstocks and processes to produce 

renewable fuels and generate RINs. 

Submission and EPA acceptance of 

feedstock and process descriptions in 

registration materials does not represent 

a determination by EPA that the actual 

feedstocks and processes used by a 

facility are in fact compliant with the 

RFS regulations; the responsibility of 

ensuring that they comply with 

applicable requirements on a continuing 

basis rests with both the renewable fuel 

producer and the biointermediate 

producer. 

In order to fulfill the statutory 

mandate that renewable fuel is 

produced from renewable biomass, the 

renewable fuel producer must be able to 

demonstrate that the feedstocks they are 

using are, or are derived from, 

renewable biomass and are consistent 

with the feedstocks permitted under the 

renewable fuel production pathway 

utilized. When a biointermediate is 

being used to produce renewable fuel, 

the renewable fuel producer may not 

have direct access to the information 

needed to make these demonstrations. 

Therefore, the biointermediate producer 

must demonstrate both to EPA and to 

the renewable fuel producer that the 

biointermediate is produced from 

renewable biomass and via processes 

consistent with the applicable pathway. 

To ensure appropriate levels of 

oversight by renewable fuel producers, 

we do not believe that the renewable 

fuel producer should be held harmless 

in the event that the biointermediate is 

determined to not be derived from 

renewable biomass or is determined to 

be unauthorized under the pathway 

utilized by the renewable fuel producer. 

Therefore, either or both the 

biointermediate producer and the 

renewable fuel producer are potentially 

liable for violations involving the 

improper production or characterization 

of a biointermediate used to produce 

renewable fuel for which RINs were 

generated. This is true both where any 

errors could be characterized as having 

been made in good faith, and in 

situations involving deliberate fraud. 

This approach has been used 

extensively in other EPA fuels programs 

(e.g., gasoline and diesel programs) 

where it is presumed that violations that 

occur at downstream locations (e.g., a 

retail station selling gasoline) were 

caused by all parties that produced, 

distributed, or carried the fuel. If, for 

example, a biointermediate producer 

were to use feedstocks that do not meet 

the definition of a renewable biomass, 

then both the biointermediate producer 

and the renewable fuel producer could 

be liable for the violation. Another 

example is if a party generated a RIN for 

a product as a renewable fuel and then 

sold that product as a biointermediate to 

a renewable fuel producer who also 

generated a RIN for the product. In such 

a case, both the original producer of the 

biointermediate and the renewable fuel 

producer will be liable under this 

approach. 

b. Prohibited Activities 

We are finalizing as proposed several 

amendments and additions to the 

prohibited activities related to the 

production, distribution, and use of 

biointermediates.242 Specifically, we are 

finalizing the following prohibited 

activities: 

• No person may introduce into 

commerce for use in the production of 

a renewable fuel any biointermediate 

produced from a feedstock or through a 

process that is not described in the 

person’s EPA-accepted registration 

information; 

• No person may produce a 

renewable fuel at more than one facility 

unless the person uses a biointermediate 

as defined under § 80.1401 or the 

renewable biomass is not substantially 

altered; 243

• No person may transfer a 

biointermediate from a biointermediate 

production facility to a facility other 

than the renewable fuel production 

facility specified in the biointermediate 

producer’s EPA-accepted registration 

information; 

• No person may isolate or 

concentrate non-characteristic 

components of the feedstock to yield a 

biointermediate not identified in a 

registration accepted by EPA; and 

• No person may generate a RIN for 

fuel that was produced from a 

biointermediate for which the fuel and 

biointermediate were not audited under 

an EPA-approved quality assurance 

plan. 

• No person may transfer a 

biointermediate without complying 

with the PTD requirements in 40 CFR 

80.1453(f). 

We are modifying from our proposal 

the prohibited act that ‘‘no person may 

isolate or concentrate non-characteristic 

components of the feedstock to yield an 

intermediate product not contemplated 

by EPA in establishing an approved 

pathway that the biointermediate 

producer and the renewable fuel 

producer are using to convert renewable 

biomass to renewable fuel.’’ 244 The 

purpose of this proposed prohibited act 

was to ensure that a biointermediate 

producer will not isolate or concentrate 

certain components of feedstocks to 

produce a biointermediate that will no 

longer comport with the EPA-approved 

pathway identified in the 

biointermediate producer’s accepted 

registration submission. For example, if 

a party is registered to produce a 

biointermediate for the production of 

cellulosic biofuel, the party would be 

prohibited from removing all cellulosic 

material from a cellulosic feedstock and 

still representing the biointermediate as 

being cellulosic. However, we recognize 

that the proposed language did not 

clearly communicate our intent or the 

prohibited act. We are therefore 

rewording the prohibited act to say that 

no person may isolate or concentrate 

non-characteristic components of the 

feedstock to yield a biointermediate not 

identified in a registration accepted by 

EPA. The purpose of this clarification is 

to state that biointermediate producers 

may not deviate from the processes and 

feedstocks for the production of 

biointermediates that EPA has accepted 

and registered them to use. We note that 

using a biointermediate or other 

feedstock that is inconsistent with a 

facility’s registration information is 

prohibited regardless of this specifically 

enumerated prohibited act as it is a 

violation of the RFS regulations for a 

party to fail to meet any requirement of 

40 CFR part 80, subpart M.245 The 

inclusion of this prohibited act is for 

emphasis and clarity. 

We are also adding a prohibited 

activity that states that no person may 

transfer a biointermediate without 

complying with the PTD requirements 

at 40 CFR 80.1453(f). As described in 

Section VII.C.6, the PTD requirements 

for biointermediates are an integral 

aspect of ensuring that renewable fuel 

producers have the necessary 

information to generate valid RINs. 

PTDs are also a fundamental component 

of our oversight and verification 

provisions for biointermediates and 

renewable fuels produced from 

biointermediates. We also received a 

comment that asked EPA to clarify the 

treatment of RINs for renewable fuels 

produced from biointermediates that 

were not accompanied by PTDs or were 

accompanied by incomplete or noncompliant PTDs. The commenter noted 

that because PTD review would be part 

of the QAP process for biointermediates 


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Federal Register / Vol. 87, No. 126 / Friday, July 1, 2022 / Rules and Regulations 39647 

246See 40 CFR 80.1460(f). 

247The primary difference between the foreign 

renewable fuel producer requirements under 40 

CFR 80.1466 and the foreign biointermediate 

producer requirements under 40 CFR 80.1478 is 

that foreign biointermediate producers do not have 

to post a bond. Bonds are required in cases where 

a foreign party generates or owns RINs (i.e., foreign 

RIN-generating foreign producers and foreign RIN 

owners). Since foreign biointermediate producers 

are not generating RINs, we are not requiring them 

to post a bond. However, if a foreign 

biointermediate producer would otherwise be 

required to post as bond by either generating or 

owning RINs, the bonding provisions under 40 CFR 

80.1466 would apply. 

and renewable fuels produced from 

biointermediates, they believed it likely 

that the issue of RINs being generated 

from biointermediates without 

compliant PTDs would occur and that 

EPA should identify how those RINs 

would be treated. Under the scenario 

outlined by the commenter, the RINs 

would be invalid under 40 CFR 80.1431 

because the regulations at 40 CFR 

80.1426(a)(1)(iii) require that the 

renewable fuel producer meet the 

applicable recordkeeping requirements, 

which include maintaining copies of all 

applicable PTDs. Again, we note that 

regardless of the inclusion in the 

regulations of this specifically 

enumerated prohibited act, it is a 

violation of the RFS regulations for a 

party to fail to meet any requirement of 

40 CFR part 80, subpart M, including 

the requirements to transfer and 

maintain compliance PTDs.246

We believe that these prohibited 

activities will provide certainty to 

regulated parties with regard to the 

production, distribution and use of 

biointermediates and renewable fuels 

made from biointermediates. These 

provisions will help to provide strong 

incentives on the part of renewable fuel 

producers to diligently be involved in 

overseeing the production, transfer, and 

use of biointermediates. Finally, these 

provisions are necessary to address the 

increased complexity of allowing 

renewable fuels to be processed at more 

than one production facility. 

c. Invalid RINs From Biointermediates 

We are finalizing as proposed 

provisions that address the treatment of 

invalid RINs generated on renewable 

fuels produced from biointermediates. 

Due to the potential complexity 

involved in determining the validity of 

RINs generated for renewable fuel 

produced from a biointermediate, we 

are requiring that if any of the RINs in 

any batch of renewable fuel produced 

from a biointermediate are deemed 

invalid, then all RINs generated for that 

batch of renewable fuel will be 

considered invalid except to the extent 

that EPA, in its sole discretion, 

determines that some of these RINs 

would be valid. Circumstances in which 

invalid RINs generated on renewable 

fuels produced from biointermediates 

could arise include: where multiple 

biointermediates and/or nonbiointermediate feedstocks are 

simultaneously processed to make 

renewable fuel with the same D-code; 

where biointermediates and/or nonbiointermediate feedstocks are 

simultaneously processed that result in 

multiple D-codes; and where 

biointermediates are co-processed with 

non-renewable biomass (e.g., crude oil). 

Given the range of scenarios utilizing 

biointermediates to produce renewable 

fuels that would be permitted under this 

action and based on discussions with 

parties that have expressed interest in 

using various types of biointermediates 

in the future, we believe it is important 

to address such circumstances clearly in 

the regulations as apportioning which 

RINs were tied to which gallons of 

renewable fuel made in these situations 

is complicated. 

In all cases where a RIN is generated 

for a batch of renewable fuel produced 

using a biointermediate is invalid, we 

are requiring that all RINs generated 

from the renewable fuel be presumed 

invalid unless EPA, in its sole 

discretion, determines that a portion of 

the RINs should remain valid. This 

means that even if multiple, different 

RIN batches would be generated in 

EMTS for apportioned volumes of the 

batch of renewable fuel, all RIN batches 

in their entirety would be invalid if any 

amount of non-qualifying 

biointermediate was used to generate 

any RIN on any volume of the 

renewable fuel. This will also include 

situations where the multiple RIN 

batches were for different D-codes or 

where multiple types of 

biointermediates were used. We believe 

this provision is appropriate to avoid 

having to determine specifically which 

RINs are invalid in situations where 

biointermediates are processed 

simultaneously with other feedstocks, as 

apportioning RINs based on the 

constituent components of a renewable 

fuel is highly complex when multiple 

biointermediates and other feedstocks, 

all with differing feedstock energies and 

volumes, are used. This provision will 

provide a strong incentive for renewable 

fuel producers to conduct due diligence 

oversight procedures on the 

biointermediate producer to avoid the 

invalidation of an entire batch of RINs. 

We are also finalizing that, where the 

renewable fuel is a renewable diesel, 

renewable gasoline, renewable diesel 

blendstock, or renewable gasoline 

blendstock, if a RIN is invalid under 40 

CFR 80.1431(a)(1), the gallon of gasoline 

or diesel fuel for which the RIN was 

generated would incur an RVO. The 

regulations for calculating RVOs at 40 

CFR 80.1407(f)(1) already exclude 

‘‘[a]ny renewable fuel as defined in 

§ 80.1401’’ from the volume of gasoline 

or diesel fuel produced or imported 

used to calculate an obligated party’s 

annual RVO. In many cases, RINs are 

determined to be invalid because the 

renewable fuel was not made from 

renewable biomass, the RINs were 

multiple-counted, or were otherwise 

invalidly generated. In such cases, any 

volume of renewable gasoline or 

renewable diesel fuel will no longer be 

considered renewable fuel and therefore 

cannot be excluded from an obligated 

party’s RVO. 

10. Foreign Biointermediate Producers 

We are finalizing provisions for the 

use of biointermediates produced by 

foreign biointermediate producers. In 

general, foreign biointermediate 

producers are subject to the same 

regulatory requirements (e.g., 

recordkeeping, reporting, registration, 

and PTD requirements) as domestic 

biointermediate producers. However, 

we are finalizing requirements for 

additional requirements for foreign 

biointermediates in two main areas. 

For the first requirement, under the 

biointermediates program, foreign 

biointermediate producers must comply 

with requirements similar to those for 

foreign renewable fuel producers as 

described in 40 CFR 80.1466 related to 

inspection and audit, agent appointment 

for service of process, and the 

application of U.S. substantive and 

procedural laws to any civil or criminal 

enforcement action.247 These 

requirements for foreign biointermediate 

producers will allow EPA to monitor the 

producers and carry out enforcement 

actions should a violation occur outside 

the U.S. 

For the second requirement, we are 

finalizing a requirement that foreign 

biointermediate producers may only 

transfer their biointermediates to 

domestic and foreign RIN-generating 

renewable fuel producers. This means 

that foreign biointermediate producers 

will not be allowed to transfer their 

biointermediate to non-RIN-generating 

foreign producers. This limitation serves 

three purposes. One, non-RIN 

generating renewable fuel producers are 

not subject to certain requirements for 

registration that we believe are 

necessary to effectively oversee the 

production of biointermediates. RINgenerating renewable fuel producers are 

required to provide in EMTS the type 


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39648 Federal Register / Vol. 87, No. 126 / Friday, July 1, 2022 / Rules and Regulations 

248The requirements regarding the distribution of 

foreign renewable fuels are described at § 80.1466 

and for foreign biointermediates at § 80.1478. 

249Under the biointermediates program, foreign 

undenatured ethanol is not presumed to be a 

biointermediate. Under the provisions for foreign 

undenatured ethanol, the importer of the 

undenatured ethanol must denature the ethanol and 

generate RINs for the denatured fuel ethanol as a 

renewable fuel. However, under the 

biointermediates program, for any undenatured 

ethanol (foreign or domestic) to be used as a 

biointermediate, the producer of the undenatured 

ethanol must designate the undenatured ethanol as 

a biointermediate and comply with the applicable 

provisions for the production, transfer, and use of 

the undenatured ethanol as a biointermediate. 

and volume of the biointermediate used 

and the registration number of the 

biointermediate production facility as 

well as obtain a bond based on the 

number of RINs they produce. The 

existence of foreign biointermediate 

producer’s information in EMTS allows 

EPA to oversee all parties in the chain 

of RIN generation. This information is 

not available if foreign biointermediates 

are transferred to foreign non-RIN 

generation renewable fuel producers. 

The bond provides financial assets for 

EPA to leverage should an issue with 

the validity of the RINs come into 

question. Without these controls, we 

cannot effectively oversee and enforce 

potential issues with foreign produced 

renewable fuels made from 

biointermediates. 

Two, it is unreasonable for the 

importer of a renewable fuel produced 

from a biointermediate to maintain 

formal contractual relationships with 

the biointermediate producer,248 each 

party outside of the United States that 

distributed the biointermediate outside 

of the United States, and the foreign 

renewable fuel producer. Importers of 

renewable fuel are typically domestic 

companies that specialize in the 

importation and distribution of products 

into the U.S. and often lack the foreign 

presence to effectively and 

independently oversee biointermediate 

production, transfer, and use by foreign 

parties. We have structured the 

biointermediates program to provide 

incentives (e.g., through the treatment of 

invalid RINs discussed in Section 

VII.C.9) for renewable fuel producers to 

ensure that biointermediate producer 

complies with applicable EPA 

regulatory requirements. We believe the 

chain of parties involved in the 

production of renewable fuel from a 

biointermediate outside the U.S. is too 

attenuated for the importer of the 

renewable fuel to reasonably conduct 

due diligence without the safeguards 

imposed by EPA for RIN-generating 

foreign producers discussed previously. 

Three, similar to the concerns 

highlighted for importers, we do not 

believe that the RFS QAP provisions 

would effectively cover a situation with 

three parties—a foreign biointermediate 

producer, non-RIN-generating foreign 

producer, and renewable fuel 

importer—in the chain. As discussed in 

Section VII.C.5, RIN-generating 

renewable fuel producers that use 

biointermediates must participate in the 

RFS QAP and that the same QAP 

auditor must verify both the foreign 

biointermediate producer and RINgenerating foreign producer. Adding a 

third-party in this chain would 

significantly increase the complexity of 

the QAP verification process and would 

necessitate further amendments to the 

RFS QAP program and associated 

implementation measures to verify RINs 

generated from such a production chain. 

To accommodate these three-party 

verification schemes (i.e., verification of 

the biointermediate producer, the 

foreign renewable fuel producer, and 

the renewable fuel importer), we would 

require consider time to develop our 

systems and review quality assurance 

plans, which could significantly delay 

implementation of the program and 

acceptance of foreign biointermediates 

into the program. 

We received comments suggesting 

that we exempt foreign ethanol 

producers that produce undenatured 

ethanol used as a biointermediate from 

the transfer limits discussed in Section 

VII.C.4. Specifically, commenters 

suggested that we exempt foreign 

ethanol producers that designate their 

undenatured ethanol as a 

biointermediate from the batch 

segregation requirement and the limit 

on biointermediate producers supplying 

only a single renewable fuel production 

facility.249 As explained above, these 

requirements are in place to ensure that 

biointermediates are produced using 

qualifying renewable biomass under an 

EPA-approved pathway and are not 

multiple-counted for RIN generation. 

Commenters said that they believed that 

existing provisions for foreign ethanol 

producers under the RFS coupled with 

TTB requirements for the control and 

tracking of undenatured ethanol in the 

U.S. rendered the biointermediate 

provisions unnecessary. They noted that 

the proposed biointermediate provisions 

would likely make the transfer of 

foreign undenatured ethanol for use as 

a biointermediate infeasible. Finally, 

some commenters noted that foreign 

ethanol producers cannot meet the 

proposed foreign biointermediate 

provisions under their current 

production and distribution practices. 

We are not finalizing any changes to 

the requirements for foreign 

biointermediate producers as they apply 

to foreign undenatured ethanol 

producers at this time. While we 

appreciate commenters’ concerns 

regarding how the foreign ethanol 

producer provisions intersect with the 

biointermediates provisions, we believe 

that the tracking afforded by the 

biointermediate provisions is necessary 

to ensure that undenatured ethanol, 

including foreign undenatured ethanol, 

is properly produced (i.e., produced 

from qualifying renewable biomass 

under an EPA-approved pathway), 

distributed (i.e. not commingled with 

non-qualifying undenatured ethanol), 

and used (i.e., only used as a 

biointermediate and not double-counted 

as renewable fuel and a 

biointermediate). We do not believe it is 

appropriate at this time to create 

disparate regulatory regimes for 

different biointermediates. One of the 

primary goals of establishing a common 

regulatory framework that applies to all 

biointermediates is to help ensure 

consistency and fairness in the 

treatment of renewable fuels produced 

at multiple locations while at the same 

time ensuring the valid generation of 

RINs. Creating a separate regulatory 

regime for foreign undenatured ethanol 

is not consistent with our intent to 

create a common regulatory framework 

that could address the use of many 

different types of biointermediate. 

Commenters failed to explain how 

TTB requirements, which are largely 

designed to ensure that undenatured 

ethanol is appropriately taxed, would 

effectively ensure that undenatured 

ethanol used as a biointermediate to 

produce renewable fuel was produced 

from qualifying renewable biomass and 

used under an EPA-approved pathway 

consistent with the RFS program 

requirements. We also note that TTB 

requirements only apply to domestic 

undenatured ethanol and do nothing to 

effectively track and oversee 

undenatured ethanol produced and 

distributed outside of the U.S. While we 

appreciate that TTB requirements for 

undenatured ethanol could help ensure 

the tracking of undenatured ethanol in 

the U.S., we do not believe those 

requirements are substitutes for the 

biointermediate provisions, especially 

as they apply to foreign biointermediate 

producers. 

Furthermore, as mentioned above, the 

foreign biointermediate producer 

provisions largely mirror the 

requirements that already apply to 

foreign renewable fuel producers, 

including foreign ethanol producers. 

Therefore, we believe that foreign 


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250See Martin R. Haverly et al., Biobased Carbon 

Content Quantification through AMS Radiocarbon 

Analysis of Liquid Fuels, 237 Fuel, 1108, (2019). 

251See ASTM D6866–10, ‘‘Standard Test Methods 

for Determining the Biobased Content of Solid, 

Liquid, and Gaseous Samples Using Radiocarbon 

Analysis,’’ available in the docket for this action. 

ethanol producers should already be 

meeting the requirements as specified in 

40 CFR 80.1466, and the foreign 

biointermediate producer provisions 

should not impose any additional 

burden on parties that are already 

complying with the regulations. 

D. Other Considerations Related to 

Biointermediates 

1. C–14 Testing and Mass Balance for 

RIN Generation 

We are finalizing provisions that 

ensure for the accurate measurement of 

renewable content in cases where 

biointermediates are co-processed with 

petroleum feedstocks at a renewable 

fuel production facility. Specifically, we 

are finalizing three options: (1) C–14 

measurement using Method B of ASTM 

D6866, (2) C–14 measurement using 

Method C of ASTM D6866 (with some 

restrictions as explained below), and (3) 

facility-specific, alternative methods for 

measuring renewable content as 

approved by EPA. Under this approach, 

we would not allow the use of mass 

balance as specifically described in the 

regulations at 40 CFR 80.1426(f)(4)(i)(A) 

(i.e., ‘‘Method A’’); however, we may 

consider other mass balance approaches 

when considering facility-specific, 

alternative methods. 

We proposed that only C–14 testing, 

specifically Method B (accelerator mass 

spectrometry) of ASTM D6866, be used 

in cases where biointermediates are coprocessed with petroleum feedstocks at 

a renewable fuel production facility. We 

explained that we were proposing to 

require C–14 testing because we 

believed that the volume of 

biointermediate co-processed with 

petroleum at a crude refinery would 

likely be a small fraction of the 

refinery’s throughput, which would 

make it difficult to rely on a mass 

balance approach for RIN generation.250

Our primary concern was, and still is, 

that the co-processed fuel would 

contain little or no renewable content 

from the biointermediate and that using 

the mass balance approach, which 

determines renewable content based on 

assumptions rather than direct 

measurement, could overestimate 

renewable content and therefore result 

in the generation of RINs for the 

nonrenewable portion of the coprocessed fuel. Thus, in order to 

determine if and how much renewable 

content is actually present, we believed 

C–14 testing of the finished fuel would 

be necessary. We also sought comment 

on potential alternatives to direct C–14 

measurement of renewable content of 

co-processed fuels. 

We received a range of comments on 

our proposal. Some commenters 

recognized that Method B of ASTM 

D6866 is the most accurate way to 

measure renewable content in processed 

fuels, and with the support of these 

comments and for the reasons set out in 

the proposed rule, we are finalizing the 

use of Method B of ASTM D6866 as one 

option for the measurement of 

renewable content of co-processed 

renewable fuels from biointermediates. 

Other commenters mentioned that 

mass balance could be more accurate 

than direct C–14 measurement in some 

circumstances, especially at lower 

concentrations of renewable content or 

when samples are contaminated with 

artificial C14 (the latter of which would 

make the test not compliant with ASTM 

D6866–22). However, commenters did 

not provide any new data or information 

suggesting how mass balance could 

more accurately measure low 

concentrations of renewable content. 

Specifically, commenters did not 

address how ‘‘Method A’’ as specified in 

the regulations at 40 CFR 

80.1426(f)(4)(i)(A) could produce 

accurate results at low renewable fuel 

concentrations. As explained above, we 

are concerned that a mass-balance 

approach may not accurately estimate 

renewable content in a finished fuel 

when very small amounts of 

biointermediates are co-processed with 

petroleum fuels and are therefore 

finalizing our proposal that ‘‘Method A’’ 

cannot be used to determine renewable 

content for co-processed renewable 

fuels produced from biointermediates. 

In the NPRM, we also sought 

comment on the potential use of Method 

C of ASTM D6866. We received 

comments asserting that this method is 

more cost-effective than method B. 

While some comments expressed 

concern that Method C is less accurate, 

especially at lower concentrations of 

biogenic content, other commenters 

stated that it should be allowed for use 

as it has a similar absolute uncertainty 

as Method B of ASTM D6866. While we 

appreciate that Method C is cheaper and 

more widely available, we still have 

concerns about its efficacy at lower 

concentrations of renewable content in 

co-processed fuels. Based on 

commenters’ suggestions, we are 

finalizing provisions that allow for the 

use of Method C of ASTM D6866 when 

the renewable content of the coprocessed fuel is at or above 10 percent. 

ASTM D6866–10 discusses how the 

increased accuracy of Method B, relative 

to Method C, is recommended when 

measuring below 10 percent renewable 

content, so limiting Method C to 

circumstances in which the renewable 

content at or above 10 percent balances 

the concern for accuracy with the cost 

of analysis.251

We received several suggestions in 

response to our request for other 

potential alternatives. Commenters 

suggested that statistical models could 

be developed based on initial C–14 

validation testing which could be 

approved as facility-specific 

approaches. Other commenters 

requested that we allow the use of a 

performance-based approach to 

approving new methods for renewable 

content measurements similar to what 

we allow under our performance-based 

measurement system (PBMS) under the 

40 CFR part 1090 fuel quality 

regulations. 

While we continue to believe that 

direct C–14 measurement, specifically 

Method B of ASTM D6866, is the most 

accurate and precise way to determine 

the renewable content of co-processed 

fuels, we recognize that other methods, 

especially when tailored to a specific 

facility, could provide an accurate 

assessment of renewable content in coprocessed fuels made from 

biointermediates. Based on commenters’ 

suggestions that we provide a 

mechanism to approve facility-specific 

measurement procedures, we are 

finalizing an approach under which 

EPA can approve facility-specific 

alternatives to testing using Method B or 

Method C of ASTM D6866. This is 

consistent to what we currently allow 

for co-processed renewable fuels (see 40 

CFR 80.1426(f)(9)(ii)), and we believe 

that such a facility-specific approach 

can potentially accommodate a wide 

range of alternatives. However, we note 

that while we may approve mass 

balance approaches tailored to specific 

facilities under this option, we would 

only intend to approve such an 

approach if the renewable fuel producer 

provides sufficient information about all 

inputs and outputs for the facility that 

is co-processing the biointermediate and 

validates assumptions used in any mass 

balance approach with data and testing 

that demonstrate that renewable 

biomass actually results in the 

production of renewable fuel. 

2. Implications of Using 

Biointermediates for Lifecycle GHG 

Assessments 

We are not making any changes to 

Table 1 to 40 CFR 80.1426 as a result 


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of allowing biointermediates to be used 

under the RFS program. Each renewable 

fuel pathway consists of a fuel type, 

feedstock, and production process. 

Under the RFS program, we must assess 

lifecycle GHG emissions for each 

potential pathway to determine whether 

it meets the GHG reduction threshold, 

as compared to the 2005 statutory 

petroleum baseline, for one or more of 

the four renewable fuel categories. Table 

1 contains the many generally 

applicable pathways for which we have 

we assessed the lifecycle GHG 

emissions and assigned D codes. We are 

finalizing our proposed approach to 

creating and implementing a 

biointermediates program that 

maintains the framework of the existing 

pathways in Table 1 and provides that 

those pathways can now be followed 

through the production and use of a 

biointermediate. That is, the Table 1 

pathways can now be implemented at 

more than one facility—a 

biointermediate production facility and 

the renewable fuel production facility. 

Before this action, each pathway 

involved the conversion of a type of 

renewable biomass feedstock to a 

renewable fuel at one facility. The 

allowance of biointermediates in this 

action means that, under certain 

circumstances, a feedstock can now be 

processed at more than one facility. This 

additional flexibility does not change 

the requirement that to be eligible to 

generate RINs, fuels must be produced 

through an approved pathway. 

Although Table 1 does not explicitly list 

biointermediates or biointermediate 

processing requirements, fuels produced 

from biointermediates can qualify for 

existing Table 1 pathways. For example, 

row M in Table 1 includes a pathway for 

renewable gasoline produced from crop 

residue through a process of ‘‘catalytic 

pyrolysis and upgrading process . . . 

utilizing natural gas, biogas, and/or 

biomass as the only process energy 

sources.’’ Crop residue converted to 

biocrude via catalytic pyrolysis at one 

facility and then upgraded to renewable 

gasoline at another facility that uses 

only natural gas for process energy 

would be eligible for cellulosic biofuel 

(D-code 3) RINs through the row M 

pathway provided that all other 

applicable regulatory requirements are 

satisfied. As this example illustrates, the 

addition of a biointermediate does not 

change the pathway other than 

conducting the same processing steps at 

two facilities instead of one. 

We do not believe that the additional 

flexibility for biointermediates provided 

in this action necessitates changes to 

Table 1 on the basis of lifecycle GHG 

emissions. EPA evaluated the lifecycle 

GHG emissions associated with each 

pathway before it was added to Table 1 

and determined that each pathway met 

the applicable GHG reduction 

requirement corresponding to the RFS 

fuel category. In general, these 

evaluations assumed that the bulk 

renewable biomass would be converted 

to renewable fuel at one facility. 

Compared to these prior evaluations, 

allowing the processing of renewable 

biomass to renewable fuel to occur at 

more than one facility may affect the 

emissions associated with transporting 

the bulk biomass, biointermediates and 

renewable fuels through the supply 

chain. However, we expect that in most 

cases the overall transportation 

emissions would decrease or be 

minimally affected. We anticipate that a 

supply chain that includes 

biointermediates would likely involve a 

‘‘hub and spoke’’ arrangement with 

multiple biointermediate production 

facilities, located close to biomass 

collection points, that supply 

biointermediates to a single renewable 

fuel production facility. Relative to a 

supply chain that involves conversion at 

one facility, the hub and spoke model 

would reduce transport distances of 

bulk biomass and add transport of 

biointermediates. Renewable biomass is 

typically less energy dense (i.e., less 

calorific energy per ton) than the 

resulting biointermediate. Renewable 

biomass is also typically more 

challenging logistically to transport than 

biointermediates because it is often 

more difficult to store (i.e., more likely 

to degrade) and less uniform in shape 

and consistency relative to the 

biointermediate. For these reasons, bulk 

biomass typically requires more energy 

and associated GHG emissions to 

transport relative to the resulting 

biointermediate. In some cases, the 

biointermediate supply-chain may add 

to the overall transport distance of 

materials relative to a supply chain with 

only one facility, but in these cases, we 

expect the lower GHG emissions per 

ton-mile of material transport to offset 

the longer overall distance. Thus, by 

replacing transport of renewable 

biomass with transport of 

biointermediates we expect the 

biointermediate supply chains to either 

reduce or not significantly affect supply 

chain transportation and distribution 

related GHG emissions. For these 

reasons, and given that transportation 

and distribution GHG emissions are 

often small relative to other lifecycle 

stages, we do not expect the allowance 

of biointermediates to significantly 

increase the lifecycle GHG emissions 

associated with these fuel pathways 

relative to our existing estimates. 

Under the biointermediates 

provisions, all of the pathways currently 

applicable to renewable fuel under 

Table 1 would allow for the use of 

biointermediates provided 

implementation of the pathway using a 

biointermediate: (1) starts with the 

renewable biomass feedstock specified 

in the Table 1 pathway; (2) produces the 

fuel specified in the Table 1 pathway; 

(3) converts the renewable biomass 

feedstock to a biointermediate and the 

biointermediate to the renewable fuel 

using processes that are consistent with 

the production process requirements 

specified in the Table 1 pathway; and, 

(4) satisfies all of the other applicable 

regulatory requirements. Of course, 

qualifying renewable fuel cannot be 

made from a biointermediate if the fuel 

production pathway is not listed in 

Table 1 or otherwise approved by EPA. 

In addition to the generally applicable 

pathways in Table 1, EPA has also 

approved many facility-specific 

pathways in response to petitions 

submitted pursuant to the process at 40 

CFR 80.1416. These approvals are based 

on our evaluations of the GHG 

emissions associated with the particular 

processes, materials used, fuels 

produced, and process energy types and 

amounts outlined and described in each 

of the facility-specific petition requests. 

Because our lifecycle GHG analyses and 

pathway approvals are specific to the 

precise processes, materials, etc. 

described in petitions, we are not 

allowing existing facility-specific 

pathways to introduce the use of a 

biointermediate under their existing 

approvals. To the extent that the 

facility-specific determinations are 

already tailored to the particular 

circumstances of each pathway, we do 

not anticipate this restriction will 

directly affect implementation of the 

previously approved facility-specific 

pathways. In a limited number of cases, 

EPA previously approved facilityspecific pathways that include use of a 

biointermediate. Existing pathway 

approvals that expressly allow for the 

use of a particular biointermediate are 

not affected by this action. However, if 

a facility producing fuel through a 

facility-specific pathway makes any 

changes in its feedstocks, processes or 

fuels produced that are outside the 

scope of its existing facility-specific 

pathway, including by introducing the 

use of a biointermediate, it would need 

to petition EPA for a new pathway 

evaluation pursuant to 40 CFR 80.1416. 

As a general matter, renewable fuel 

produced through facility-specific 

pathways must be produced in 


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252For purposes of this section, a ‘‘grandfathered 

facility’’ is a renewable fuel production facility that 

has volumes that are exempt from the renewable 

fuel lifecycle GHG reduction threshold under 40 

CFR 80.1403(c). This provision exempts (i.e., 

‘‘grandfathers’’) facilities that commenced 

construction on or before December 19, 2007, did 

not discontinue construction for a period of 18 

months after commencement of construction, and 

completed construction by December 19, 2010. 

253For grandfathered facilities, baseline volume is 

the maximum volume of grandfathered fuel for 

which the facility is allowed to generate RINs. For 

non-grandfathered facilities, baseline volume is 

intended to indicate the maximum amount of 

renewable fuel that the facility is capable of 

producing. Actual peak capacity, however, may not 

be a good indicator of maximum capacity. 

254Because the baseline volume of an exempt 

(i.e., grandfathered) facility is by definition tied to 

either December 19, 2007, or December 31, 2009 

(see 40 CFR 80.1403(c) and (d) and 

80.1450(b)(1)(v)(B)), current production capacity is 

not relevant for such a facility. 

255Facilities can also choose to keep their 

baseline volume as actual peak capacity. 

accordance with the RFS regulations at 

40 CFR part 80, subpart M, including 

the requirements for producing 

renewable fuel from biointermediates 

that are being finalized in this action. 

Facility-specific petitions may also 

include specific conditions, as 

determined through the informal 

adjudication and pursuant to 40 CFR 

80.1426(a)(1)(iii), 40 CFR 

80.1416(b)(1)(vii), 80.1450(i), and 

80.1451(b)(1)(ii)(W), that apply to fuel 

production and RIN generation. Moving 

forward, we intend that future facilityspecific pathway approvals will allow 

for the use of particular 

biointermediates that are regulatorily 

defined at 40 CFR 80.1401, and that 

such pathways will be governed by the 

applicable requirements for producing 

renewable fuel from biointermediates, 

as well as any facility-specific 

conditions and requirements. 

VIII. Amendments to Fuel Quality and 

RFS Regulations 

This section describes the regulatory 

changes we are finalizing for the fuel 

quality and RFS programs. We address 

comments related to these regulatory 

changes in Section 11 of the RTC 

document. 

A. BBD Conversion Factor for 

Percentage Standard 

In the proposed rule we noted our 

observation that the average 

Equivalence Value of BBD appears to 

have grown over time without 

stabilizing, and that the average future 

Equivalence Value for BBD was likely to 

be at least 1.55. We therefore proposed 

replacing the factor of 1.5 in the 

percentage standard formula for BBD 

with a factor of at least 1.55. We did not 

propose changing any other aspect of 

the percentage standard formula for 

BBD. We received several adverse 

comments on this proposed definition. 

In light of these comments, we are not 

finalizing this proposed change in this 

rule. We will continue to monitor the 

average number of RINs generated per 

gallon of BBD, and may consider this 

change in a future rule. 

B. Changes to Registration for Baseline 

Volume 

We are finalizing as proposed revised 

registration requirements at 40 CFR 

80.1450(b)(1)(v) as well as revisions to 

the definition of ‘‘baseline volume’’ at 

40 CFR 80.1401 to allow a non-exempt 

(i.e., non-grandfathered) renewable fuel 

producer to use either nameplate 

capacity or actual peak capacity for their 

facility’s baseline volume if permitted 

capacity cannot be determined. We are 

not changing the requirements for 

establishing the baseline volume of 

grandfathered facilities.252 253 All nongrandfathered facilities with an 

applicable permitted capacity will 

continue to be required to register using 

that permitted capacity pursuant to 40 

CFR 80.1450(b)(1)(v)(A). 

We are finalizing this revision in 

order to allow for more up-to-date 

information to be used in establishing 

the baseline volumes of nongrandfathered facilities. The existing 

provision at 40 CFR 80.1450(b)(1)(v)(C) 

requires facilities to use actual peak 

capacity if the applicable air permit 

does not include a permitted maximum 

rate annual volume output. However, 

actual peak capacity is based on actual 

production tied to when EISA was 

enacted (i.e., December 2007), which is 

now well more than a decade in the 

past. This historical peak capacity is not 

necessarily an accurate reflection of the 

facility’s current production capacity. 

Since the passage of EISA, facilities may 

have improved efficiency, expanded the 

facility, or experienced an increase in 

production due to increased demand, 

resulting in larger production than the 

year used to calculate actual peak 

capacity. Having accurate capacity 

information for registered renewable 

fuel facilities is important for EPA in 

helping to identify whether facilities are 

generating an appropriate number of 

RINs.254 This change will allow a nonexempt facility to choose whether to use 

actual peak capacity or nameplate 

capacity if permitted capacity cannot be 

determined. Non-exempt facilities 

already registered using actual peak 

capacity will have the option to switch 

to nameplate capacity at any time.255

This change will have no impact on 

facilities who choose not to use this 

option. 

C. Changes to Attest Engagements for 

Parties Owning RINs (‘‘RIN Owner 

Only’’) 

We are exempting parties that transact 

a relatively small number of RINs from 

the annual attest engagement 

requirements. In order to qualify for this 

exemption, parties must be registered 

solely as a ‘‘RIN Owner’’. They may not 

be registered or engaged in any other 

role under the RFS program (e.g., 

obligated party, exporter of renewable 

fuel, renewable fuel producer, 

renewable fuel importer, etc.). Until this 

action, such parties were required to 

submit an annual attest engagement 

under 40 CFR 80.1464(c), regardless of 

the number of RINs they transacted or 

held in a compliance year. For example, 

a party whose only activity was to buy 

and sell a single RIN in any given 

compliance year would have been 

required to complete an attest 

engagement for that year. Additionally, 

some parties that own a small number 

of RINs have difficulty selling small 

denominations of RINs (e.g., hundreds 

of separated D6 RINs) and may end up 

holding those RINs until they expire. 

These parties would have had to then 

arrange for an annual attest engagement 

performed by a certified professional 

accountant (CPA) for those RINs, which 

can be quite costly especially when 

compared to the relatively low value of 

the small number of RINs owned. 

We believe that parties who, in a 

given compliance year, are registered as 

a ‘‘RIN Owner’’ only, who transact 

10,000 or fewer RINs, and who do not 

exceed a RIN holding threshold under 

40 CFR 80.1435, should not be required 

to complete an attest engagement for 

that compliance year. A party who is 

registered as a ‘‘RIN Owner Only’’ does 

not generate RINs and does not have an 

RVO. We believe that the information 

contained in EMTS and RIN activity 

reports for these RIN Owners who 

transact a relatively small number of 

RINs and who do not exceed a RIN 

holding threshold, conveys the 

necessary compliance information, and 

that the attest engagements for these 

parties do not add much value relative 

to their expense. Many of the affected 

parties are smaller businesses that are 

required to arrange the services of a CPA 

to perform their annual attest 

engagement. Making this change to the 

attest engagement requirements may 

result in a cost savings to these typically 

smaller businesses, without adversely 

affecting RFS program oversight. 

We intend that the total number of 

RINs transacted in the year be counted 

toward the 10,000 RIN limit. RINs 

‘‘transacted’’ includes RINs retired for 


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39652 Federal Register / Vol. 87, No. 126 / Friday, July 1, 2022 / Rules and Regulations 

256 5 U.S.C. 552(b)(4). 

257We note that CAA section 114(c) explicitly 

excludes emissions data from treatment as 

confidential information. 

258Argus Leader, 139 S. Ct. at 2366. 

259 Id. at 2363. 

260 Id. (internal citations omitted). 

261 Id. (internal citations omitted). 

262 ‘‘Exemption 4 After the Supreme Court’s 

Ruling in Food Marketing Institute v. Argus Leader 

Media and Accompanying Step-by-Step Guide,’’ 

Office of Information Policy, U.S. DOJ, (October 4, 

2019), available at https://www.justice.gov/oip/ 

exemption-4-after-supreme-courts-ruling-foodmarketing-institute-v-argus-leader-media. 

263See id.; see also ‘‘Step-by-Step Guide for 

Determining if Commercial or Financial 

Information Obtained from a Person is Confidential 

under Exemption 4 of the FOIA,’’ Office of 

Information Policy, U.S. DOJ, (updated October 7, 

2019), available at https://www.justice.gov/oip/stepstep-guide-determining-if-commercial-or-financialinformation-obtained-person-confidential. 

264See, e.g., ‘‘Clean Air Act Fuels Settlement 

Information,’’ U.S. EPA, available at https://

www.epa.gov/enforcement/clean-air-act-fuelssettlement-information; ‘‘Civil Enforcement of the 

Renewable Fuel Standard Program,’’ U.S. EPA, 

available at https://www.epa.gov/enforcement/civilenforcement-renewable-fuel-standard-program. 

265EPA began posting RFS enforcement-related 

determinations and actions in 2013. See ‘‘Civil 

Enforcement of the Renewable Fuel Standard 

Program,’’ U.S. EPA, available at https://

www.epa.gov/enforcement/civil-enforcementrenewable-fuel-standard-program. EPA has been 

posting gasoline and diesel enforcement actions for 

much longer. See ‘‘Clean Air Act Fuels Settlement 

Information,’’ U.S. EPA, available at https://

www.epa.gov/enforcement/clean-air-act-fuelssettlement-information. 

reasons other than compliance 

retirements, such as the reason code 

‘‘voluntary RIN retirement.’’ This means 

that if a party buys 5,000 RINs and sells 

6,000 RINs in a year, the party will have 

transacted 11,000 RINs and must 

complete the attest engagement for that 

year. We are finalizing the 10,000 RIN 

limit based upon programmatic 

experience—specifically, we believe it 

reflects a reasonable level of activity 

below which the utility of the attest 

engagement is reduced. 

D. Public Access to Information 

Exemption 4 of the Freedom of 

Information Act (FOIA) exempts from 

disclosure ‘‘trade secrets and 

commercial or financial information 

obtained from a person [that is] 

privileged or confidential.’’ 256 In order 

for information to meet the 

requirements of Exemption 4, EPA must 

find that the information is either: (1) a 

trade secret, or (2) commercial or 

financial information that is: (a) 

obtained from a person, and (b) 

privileged or confidential. Information 

meeting these criteria is commonly 

referred to as ‘‘confidential business 

information’’ or ‘‘CBI.’’ 257

In June 2019, the U.S. Supreme Court 

issued its decision in Food Marketing 

Institute v. Argus Leader Media, 139 S. 

Ct. 2356 (2019) (Argus Leader). Argus 

Leader addressed the meaning of 

‘‘confidential’’ within the context of 

FOIA Exemption 4. The Court held that 

‘‘[a]t least where commercial or 

financial information is both 

customarily and actually treated as 

private by its owner and provided to the 

government under an assurance of 

privacy, the information is ‘confidential’ 

within the meaning of Exemption 4.’’ 258

The Court identified two conditions 

‘‘that might be required for information 

communicated to another to be 

considered confidential.’’ 259 Under the 

first condition, ‘‘information 

communicated to another remains 

confidential whenever it is customarily 

kept private, or at least closely held, by 

the person imparting it.’’ 260 The second 

condition provides that ‘‘information 

might be considered confidential only if 

the party receiving it provides some 

assurance that it will remain secret.’’ 261

The Court found the first condition 

necessary for information to be 

considered confidential within the 

meaning of Exemption 4, but did not 

address whether the second condition 

must also be met. 

Following the issuance of the Court’s 

opinion, the U.S. Department of Justice 

(DOJ) issued guidance concerning the 

confidentiality prong of Exemption 4, 

articulating ‘‘the newly defined 

contours of Exemption 4’’ post-Argus 

Leader.262 Where the Government 

provides an express or implied 

indication to the submitter prior to or at 

the time the information is submitted to 

the Government that the Government 

would publicly disclose the 

information, then the submitter 

generally cannot reasonably expect 

confidentiality of the information upon 

submission, and the information is not 

entitled to confidential treatment under 

Exemption 4.263

Since the proposed rule, we have 

made some editorial changes to the final 

regulations to improve the readability of 

the new provisions and to harmonize 

the terminology used. These changes do 

not change the substance of the final 

regulations from what was proposed. 

1. Treatment of Information Contained 

in Enforcement Actions and Invalid RIN 

Determinations 

EPA has a longstanding practice of 

posting on its website or otherwise 

publicly releasing information 

describing fuels violations and invalid 

RIN determinations.264 Accordingly, we 

are finalizing regulations to codify the 

types of information contained in fuelsrelated enforcement actions and invalid 

RIN determinations that are not entitled 

to confidential treatment pursuant to 

Exemption 4 of FOIA. This action 

covers information within notices of 

violation, settlement agreements, 

administrative complaints, civil 

complaints, criminal information, and 

criminal indictments related to EPA’s 

fuel quality and RFS regulations in 40 

CFR parts 80 and 1090 and invalid RIN 

determinations related to EPA’s RFS 

regulations in 40 CFR part 80. 

Since at least 2013,265 EPA has posted 

on its website or otherwise publicly 

released information relating to 

violations of the fuel quality and RFS 

regulations. This information includes 

the company name and identification 

number, the total quantity of fuel and 

information relating to the exceedance 

of the fuel standard associated with the 

violation, information relating to the 

generation, transfer, or use of credits or 

RINs, and the total quantity of RINs in 

question. Therefore, EPA has already 

provided an implied indication to any 

submitters of such information after at 

least 2013 that EPA may publicly 

disclose such information. Accordingly, 

the information is not entitled to 

confidential treatment, and EPA intends 

to continue to release such information 

without further notice. 

Through this action, we are also 

providing an express indication that 

such information is not entitled to 

confidential treatment and may be 

affirmatively disclosed to the public 

without providing further notice or 

process to the affected businesses. This 

action effectively serves as an advance 

confidentiality determination through 

rulemaking and covers the information 

identified below. Accordingly, 40 CFR 

2.201 through 2.215 and 2.301 do not 

apply to the specified information 

submitted under this part and under 40 

CFR part 1090, which is determined 

through this rulemaking to not qualify 

for confidential treatment. In particular, 

this action impacts certain information 

contained in EPA determinations that 

RINs are invalid under 40 CFR 

80.1474(b)(4)(i)(C)(2) and (b)(4)(ii)(C)(2), 

notices of violation, settlement 

agreements, administrative complaints, 

civil complaints, criminal information, 

and criminal indictments. The 

information that EPA intends to 

continue release in the context of these 

determinations and actions includes the 

company name and company 

identification number, the facility name 

and facility identification number, the 

total quantity of fuel and information 

relating to the exceedance of the fuel 

standard associated with the violation, 

information relating to the generation, 

transfer, or use of credits or RINs, the 


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266The Pathways II final rule contained a list of 

feedstocks EPA determined are ‘‘predominately 

cellulosic feedstocks’’: ‘‘Crop residue, slash, precommercial thinnings and tree residue, switchgrass, 

miscanthus, Arundo donax, Pennisetum 

purpureum, and biogas from landfills, municipal 

wastewater treatment facility digesters, agricultural 

digesters, and separated MSW digesters’’ (79 FR 

42130–31, July 18, 2014). EPA further determined 

that feedstocks with minimum average adjusted 

Continued 

total quantity of RINs in question, the 

batch number(s) and the D codes of the 

RINs in question, the time period when 

the RINs in question were generated or 

when the violation occurred, and any 

other information relevant to describing 

the violation at issue. Additionally, in 

response to a comment that EPA 

received on the NPRM, the information 

that EPA intends to continue to release 

in the context of these determinations 

and actions also includes information 

relating to an obligated party’s failure to 

meet its RVOs. While we believe that 

this information is already included as 

information relating to the use of RINs 

or as any other information relevant to 

describing the violation at issue, we are 

explicitly including it in this 

determination for the avoidance of 

doubt and the sake of clarity. We are 

codifying this determination at 40 CFR 

80.11 and 80.1402(b), as well as at 40 

CFR 1090.15. 

Publicly disclosing this information is 

important for providing transparency to 

stakeholders and the public with respect 

to violations of EPA’s fuel quality and 

RFS programs and the relief EPA is 

seeking to remedy those violations 

through its enforcement actions. Public 

disclosure is also important to the 

successful operation and integrity of the 

RFS program as it may prevent parties 

from unwittingly transferring or 

attempting to use invalid RINs for 

compliance, in contravention of the RFS 

regulations, or from buying invalid RINs 

that they will be unable to use for 

compliance. For these reasons, we are 

providing an express indication through 

this final rule that such information is 

not entitled to confidential treatment. 

2. Treatment of Information Contained 

in Requests Submitted Under the RFS 

Program 

We are finalizing regulations that 

would help facilitate our processing of 

claims that RFS-related information 

should be withheld from public 

disclosure under FOIA, 5 U.S.C. 

552(b)(4), as CBI. These regulations 

identify certain types of RFS 

information collected by EPA under 40 

CFR part 80, subpart M, that EPA 

considers as not entitled to confidential 

treatment pursuant to Exemption 4 of 

the FOIA and that EPA may release 

without further notice. 

These regulations provide an express 

indication that we will not consider 

certain basic information (identified 

below) incorporated into EPA actions on 

petitions and submissions, as well as 

that same information as it appears in 

the submissions to EPA under 40 CFR 

part 80, subpart M, to be entitled to 

confidential treatment under Exemption 

4 of the FOIA. This determination will 

apply prospectively to submissions and 

requests under the RFS program 

received by EPA after publication of the 

final rule, and EPA’s decisions on those 

submissions and requests. In particular, 

the provisions of 40 CFR 80.1402 will 

apply to all submissions to EPA under 

40 CFR part 80, subpart M, including, 

but not limited to: SREs submitted 

under 40 CFR 80.1441, small refiner 

exemptions under 40 CFR 80.1442, 

pathway petitions under 40 CFR 

80.1416, and compliance demonstration 

reports. Accordingly, such information 

will be released to a FOIA requester 

upon request without further notice to 

the submitter if no other FOIA 

exemption applies and without 

following EPA’s procedures set forth in 

40 CFR part 2, subpart B. EPA may also 

elect to proactively release the 

information without further notice to 

the submitter and without following 

EPA’s procedures set forth in 40 CFR 

part 2, subpart B. We are codifying this 

determination at 40 CFR 80.1402(c) and 

(d). 

Through this action, we are providing 

an express indication that such 

information is not entitled to 

confidential treatment and may be 

affirmatively disclosed to the public 

without providing further notice to 

affected businesses. This action 

effectively serves as an advance 

confidentiality determination through 

rulemaking covering the information 

identified below. Accordingly, the 

provisions of 40 CFR 2.201 through 

2.215 and 2.301 do not apply to the 

specified information submitted under 

this part that is determined through this 

rulemaking not to qualify for 

confidential treatment. In particular, the 

information affected by this action is the 

submitter’s name, the name and location 

of the facility, the date the submission 

was transmitted to EPA, any EPA-issued 

company or facility identification 

numbers associated with the 

submission, the general nature or 

purpose of the submission, and the 

relevant time period for the submission 

as applicable. Additionally, for 

submissions making requests that EPA 

must adjudicate (e.g., new pathway 

petitions, petitions for exemptions or 

compliance flexibility, etc.), under this 

action, once we have adjudicated the 

request, we may release the following 

information: the submitter’s name; the 

name and location of the facility; the 

date the request was transmitted to EPA; 

any EPA-issued company or facility 

identification numbers associated with 

the request, the general nature or 

purpose of the request, the relevant time 

period for the request, the extent to 

which EPA either granted or denied the 

request (i.e., whether EPA grants a 

request in part and the portions granted 

and denied, but not EPA’s basis for the 

decision or any information that is not 

provided in 40 CFR 80.1402(d)), and 

any relevant terms and conditions. For 

information submitted under 40 CFR 

part 80, subpart M, and not specified in 

the regulations at 40 CFR 80.1402, EPA 

will continue to evaluate such CBI 

claims in accordance with 40 CFR part 

2, subpart B. 

It is appropriate to release the 

information described above in the 

interest of transparency and to provide 

the public with information about 

entities seeking exemptions or requests 

under part 80, subpart M. This approach 

will also provide certainty to submitters 

regarding the release of information 

under 40 CFR part 80, subpart M. With 

this advance notice, each submitter will 

have certainty regarding how EPA will 

treat the information specified above, 

and, as applicable, have the discretion 

to decide whether to make such a 

request with the understanding that 

EPA will release certain information 

about the request without further notice 

to the submitter. 

E. Clarifying the Definition of 

‘‘Agricultural Digester’’ 

We are finalizing as proposed our 

clarifying amendments for the definition 

of ‘‘agricultural digester’’ in 40 CFR 

80.1401. Row Q in Table 1 to 40 CFR 

80.1426 makes renewable compressed 

natural gas, renewable liquefied natural 

gas, and renewable electricity eligible to 

generate cellulosic biofuel (D3) RINs if 

the fuel is produced from, among other 

feedstocks, biogas from agricultural 

digesters (and if the producer meets all 

other applicable requirements under the 

RFS program). An agricultural digester 

was previously defined at 40 CFR 

80.1401 as ‘‘an anaerobic digester that 

processes predominantly cellulosic 

materials, including animal manure, 

crop residues, and/or separated yard 

waste.’’ In the preamble to the Pathways 

II final rule, we explained that 

predominantly cellulosic materials are 

materials that are at least 75 percent 

cellulose, hemi-cellulose or lignin by 

mass.266 In the proposed rule, we 


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cellulosic content of 75 percent, measured on a dry 

mass basis, were ‘‘predominantly cellulosic,’’ 

meaning fuel produced from these feedstocks 

would be eligible to generate 100 percent cellulosic 

RINs. 

267 79 FR 42128, 42140 (July 18, 2014). 

268The regulations at 40 CFR 80.1426(f)(4) 

specifying that RIN generation is based on the 

feedstock energy of the renewable biomass were 

established in the March 2010 RFS2 final rule. 

269FFA feedstock is a biointermediate, as 

discussed in Section VII.C.3.b. 

proposed clarifying amendments to the 

definition of ‘‘agricultural digester’’ 

based on multiple questions we have 

received from stakeholders asking if 

they could generate D3 RINs for biogas 

produced in a digester if materials that 

are not predominantly cellulosic are 

used in the digester. We are finalizing 

revisions to the definition of agricultural 

digester to clarify that only animal 

manure, crop residues, and/or separated 

yard waste with an adjusted cellulosic 

content of at least 75 percent can be 

processed in such a digester, and that 

each and every material processed in an 

agricultural digester must have an 

adjusted cellulosic content of at least 75 

percent. This revision does not change 

our interpretation or implementation of 

the applicable requirements but will 

make it easier for the regulated 

community to understand the extant 

limitations on generating D3 RINs for 

biogas produced in agricultural 

digesters. 

The preamble to the Pathways II rule 

makes it clear that the term 

‘‘predominantly cellulosic’’ means that 

eligible feedstocks must contain a 

cellulosic content of at least 75 percent, 

and that this term does not authorize 

renewable fuel producers to introduce 

non-predominantly cellulosic materials 

into an agricultural digester. In the 

Pathways II rulemaking, we analyzed 

what we understood to be the most 

common inputs—animal manure, crop 

residues, and separated yard waste— 

and determined that all are 

predominantly cellulosic.267 Consistent 

with this understanding and analysis, 

we narrowly defined ‘‘agricultural 

digester’’ based on use of these three 

feedstocks. Allowing other materials 

into the digester or any materials that 

are not at least 75 percent cellulosic 

would therefore be inconsistent with the 

analysis underlying the rule and the 

definition of agricultural digester. 

In addition to maintaining 

consistency with the Pathways II 

analysis, limiting the feedstocks that can 

be used in an agricultural digester to 

animal manure, crop residue, and 

separated yard waste also makes 

implementation and oversight of 

pathways that include biogas from 

agricultural digesters much more 

straightforward. Specifically, because 

EPA has already determined that these 

three renewable biomass feedstocks are 

predominantly cellulosic, no further 

steps are needed to demonstrate that 

100 percent of the fuel produced from 

a digester that is limited to animal 

manure, crop residue, and separated 

yard waste is eligible to generate 

cellulosic RINs. Our clarification of the 

definition of agricultural digester does 

not, however, mean that parties cannot 

generate D3 RINs for biogas produced 

from other feedstocks or in other types 

of digesters (e.g., municipal wastewater 

treatment facility digesters, separated 

MSW digesters, or other waste digesters 

that convert the cellulosic components 

of biomass to biogas). The existing 

pathways allow D3 RINs to be generated 

for renewable compressed natural gas, 

renewable liquified natural gas, and 

renewable electricity produced from 

‘‘biogas from the cellulosic components 

of biomass processed in other waste 

digesters’’ under Row Q of Table 1 to 40 

CFR 80.1426. For example, if the only 

renewable biomass inputs to an ‘‘other 

waste digester’’ are all predominantly 

cellulosic, the resulting fuel would be 

eligible to generate 100 percent D3 RINs, 

even though the digester may not be an 

‘‘agricultural digester.’’ If one or more of 

the inputs to an ‘‘other waste digester’’ 

are not predominantly cellulosic, the 

resulting fuel may be eligible to generate 

D3 RINs for only the portion of the fuel 

that was demonstrated to be produced 

from cellulosic biomass through proper 

testing and D5 RINs for the rest of the 

fuel produced (under the pathway 

contained in Row T) as specified at 40 

CFR 80.1426(f)(15)(i)(B). 

Thus, the ability to generate cellulosic 

RINs for 100 percent of the fuel 

produced under the pathway in row Q 

is predicated on the assumption and 

associated requirement that all the 

inputs to a digester are predominantly 

cellulosic. In order to maintain the 

streamlined approach to qualifying the 

output of an agricultural digester as 100 

percent cellulosic, we are revising the 

definition to provide an exclusive list of 

the feedstocks that such digesters may 

process, as well as to clarify that each 

and every material processed in an 

agricultural digester must have an 

adjusted cellulosic content of at least 75 

percent. These revisions are consistent 

with the RFS regulations and the 

analyses undertaken for the Pathway II 

rule that formed the basis for the 

agricultural digester pathways. They are 

a clarification of the regulatory text, but 

not a change in our interpretation of our 

existing regulations or practice in 

implementing them. The revisions 

additionally clarify that a digester that 

processes a material that is less than 75 

percent cellulosic content is not an 

agricultural digester, even if the total 

cellulosic content of all the processed 

materials taken together exceeds the 75 

percent threshold. 

F. Definition of ‘‘Produced From 

Renewable Biomass’’ 

We proposed to define, in 40 CFR 

80.1401, that ‘‘produced from renewable 

biomass’’ means the energy in the 

finished fuel comes from renewable 

biomass. The purpose of this proposed 

definition was to provide additional 

clarity on what fuels qualify as 

renewable fuel, in alignment with the 

statutory and regulatory definition of 

renewable fuel and our pre-existing 

interpretation of the statute and 

regulations. The RFS regulations 

include formulas to determine the 

number of gallon-RINs generated for 

fuel that is produced by co-processing 

renewable biomass and non-renewable 

feedstocks simultaneously to produce a 

fuel based on the share of the feedstock 

energy that is from renewable 

biomass.268 Thus, the proposed 

definition was intended merely to 

reinforce what the regulations at 40 CFR 

80.1426(f)(4) already require—that the 

RIN generator must base the RINs 

generated for a renewable fuel on the 

energy coming from the renewable 

biomass used to produce the fuel. 

We received many comments on this 

proposed definition. Given the breadth 

and depth of these comments, we 

require additional time to consider these 

comments and are not finalizing a 

definition of ‘‘produced from renewable 

biomass’’ in this rule. During the 

pendency of our consideration, we will 

continue to implement our longstanding interpretation of the existing 

requirements at 40 CFR 80.1426(f)(4) as 

described above. 

G. Esterification Pathway 

We are adding ‘‘esterification’’ as a 

production process in rows F and H of 

Table 1 to 40 CFR 80.1426. This 

addition makes biodiesel, renewable 

diesel, heating oil, or jet fuel produced 

from a qualifying renewable biomass 

feedstock through an esterification 

process eligible for BBD (D4) or 

advanced biofuel (D5) RINs. We expect 

this revision to primarily result in D4 

RIN generation for biodiesel produced 

from FFA feedstock through an 

esterification process.269

In the 2020 proposed rule, we 

proposed to revise rows F and H of 

Table 1 to 40 CFR 80.1426 by changing 

the existing process ‘‘TransVerDate Sep<11>2014 17:59 Jun 30, 2022 Jkt 256001 PO 00000 Frm 00056 Fmt 4701 Sfmt 4700 E:\FR\FM\01JYR2.SGM 01JYR2

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270 84 FR 36801 (July 29, 2019). 

271 85 FR 7016, 7058 (February 6, 2020). 

272 86 FR 72473 (December 21, 2021). 273Commonly used base catalysts include sodium 

hydroxide (NaOH), potassium hydroxide (KOH), 

and sodium methoxide (NaOCH3). 

Esterification’’ to be ‘‘Transesterification 

with or without esterification 

pretreatment’’ and adding 

‘‘esterification’’ as eligible production 

processes.270 In the 2020 final rule, we 

added ‘‘Transesterification with or 

without esterification pretreatment’’ to 

rows F and H of Table 1 to 80.1426, but 

we did not add the standalone 

esterification pathway at that time, 

stating that the standalone esterification 

process, which uses FFA feedstocks, 

‘‘remains under consideration and may 

be finalized in a future action.’’ 271

In the 2020–2022 proposed rule, we 

indicated that if we finalized the 

biointermediate program and included 

FFA feedstocks in the definition of 

biointermediate, then we would also 

finalize the standalone esterification 

pathway previously proposed in the 

2020 proposed rule.272 This final rule 

includes FFA feedstocks as one of the 

biointermediates specifically included 

in the definition of biointermediate. 

Thus, as stated in the proposed rule, we 

are finalizing the standalone 

esterification pathway. 

The most commonly used method to 

produce biodiesel is transesterification, 

which involves reacting triglycerides 

with methanol, typically under the 

presence of a base catalyst.273 While the 

main component of renewable biomass 

feedstocks that are fats, oils, and greases 

is typically triglycerides, other 

components, such as FFA, can also 

exist. Removal or conversion of the FFA 

from the fat, oil, or grease is important 

where the traditional base-catalyzed 

transesterification production process is 

used because FFA will inhibit the 

transesterification reaction. 

Esterification can be used either as a 

pre-treatment step or as a direct 

standalone process to convert FFA 

feedstocks to biodiesel. When 

esterification is used as a pre-treatment 

step, the FFA is converted through acid 

esterification and then followed with 

the traditional base-catalyzed 

transesterification of triglycerides. 

When standalone esterification is used, 

the FFA feedstock is converted directly 

to biodiesel via acid esterification. 

H. Technical Amendments 

We are making numerous technical 

amendments to the RFS regulations. 

These amendments are being made to 

correct minor inaccuracies, clarify, and 

update the current regulations. These 

changes are described in Table VIII.H– 

1 below. 

TABLE VIII.H–1—MISCELLANEOUS TECHNICAL AMENDMENTS TO RFS REGULATIONS

Part and section of title 40 Description of amendment 

80.1401 ................................ Amended by revising the definition of ‘‘Foreign renewable fuel producer’’ to mirror the regional applicability requirement in § 80.1426(b)(1) and clarifying that foreign ethanol producers are considered foreign renewable fuel 

producers, consistent with this action’s biointermediate provisions. 

80.1401 ................................ Amended by revising the definition of ‘‘Renewable fuel’’ to reiterate that undenatured ethanol is not renewable 

fuel. 

80.1401, 80.1426(f)(5)(i)–(iii), 

(f)(5)(iv)(A) and (B), and 

(f)(5)(v), 

80.1450(b)(1)(vii)(A) and 

(B) and (b)(1)(viii), 

80.1451(b)(1)(ii)(R), and 

80.1454(j).

Amended by moving the definitions of ‘‘Separated yard waste,’’ ‘‘Separated food waste,’’ and ‘‘Separated municipal solid waste’’ from § 80.1426(f)(5) to the RFS definitions section (§ 80.1401) and updating associated crossreferences. 

80.1401, 80.1426(f)(17)(i), 

80.1450(b)(1)(xii), 

80.1451(b)(1)(ii)(T), 

80.1454(l), and 80.1468(b).

Amended by updating the incorporation by reference (IBR) for ‘‘Standard Specification for Diesel Fuel,’’ ASTM 

D975–13a, to now be ASTM D975–21, which is the most recent ASTM version. 

80.1401 and 80.1468(b) ....... Amended by updating the IBR for ‘‘Standard Specification for Biodiesel Fuel Blend Stock (B100) for Middle Distillate Fuels,’’ ASTM D6751–09, to now be ASTM D6751–20a, which is the most recent ASTM version. 

80.1401 and 80.1471(c) ....... Amended by adding a definition of ‘‘Professional liability insurance’’ consistent with its definition in 31 CFR 

50.5(q) and removing the previous cross-reference to this definition in § 80.1471(c). 

80.1426(f)(7)(v)(A) and 

80.1468(b).

Amended by updating the IBR for ‘‘Standard Test Methods for Analysis of Wood Fuels,’’ ASTM E870–82(2006), 

to now be ASTM E870–82(2019), which is the most recent ASTM version. 

80.1426(f)(7)(v)(B) and 

80.1468(b).

Amended by updating the IBR for ‘‘Standard Test Methods for Direct Moisture Content Measurement of Wood 

and Wood-Based Materials,’’ ASTM D4442–07, to now be ASTM D4442–20, which is the most recent ASTM 

version. 

80.1426(f)(7)(v)(B) and 

80.1468(b).

Amended by updating the IBR for ‘‘Standard Test Method for Laboratory Standardization and Calibration of HandHeld Moisture Meters,’’ ASTM D4444–08, to now be ASTM D4444–13 (2018), which is the most recent ASTM 

version. 

80.1426(f)(8)(ii)(B) and 

80.1468(b).

Amended by updating the IBR for ‘‘Standard Guide for the Use of the Joint American Petroleum Institute (API) 

and ASTM Adjunct for Temperature and Pressure Volume Correction Factors for Generalized Crude Oils, Refined Products, and Lubricating Oils: API Manual of Petroleum Measurement Standards (MPMS) Chapter 

11.1,’’ ASTM D1250–08, to now be ASTM D1250–19e1, which is the most recent ASTM version. 

80.1426(f)(9)(ii), 

80.1430(e)(2), and 

80.1468(b).

Amended by updating the IBR for ‘‘Standard Test Methods for Determining the Biobased Content of Solid, Liquid, 

and Gaseous Samples Using Radiocarbon Analysis,’’ ASTM D6866–08, to now be ASTM D6866–22, which is 

the most recent ASTM version. 

80.1426(f)(17)(i) ................... Amended by adding ‘‘renewable gasoline,’’ consistent with other related sections. 

80.1426(f)(17)(i)(B)(1) and 

(2), 80.1450(b)(1)(xii)(B) 

and (C), 

80.1451(b)(1)(ii)(T)(1), and 

80.1454(l)(1).

Amended by replacing ‘‘diesel’’ with ‘‘distillate’’ to clarify that parties that blend renewable jet fuel with conventional jet fuel must currently comply with these requirements. This would remove perceived ambiguity over 

whether these provisions apply to producers of blended renewable jet fuel (jet fuel is not diesel fuel per the definition of ‘‘diesel fuel’’ at 40 CFR 80.2 but rather distillate fuel). 


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TABLE VIII.H–1—MISCELLANEOUS TECHNICAL AMENDMENTS TO RFS REGULATIONS—Continued 

Part and section of title 40 Description of amendment 

80.1428(b)(2) ........................ Amended to be consistent with the restriction that independent third-party auditors may not own RINs under 

§ 80.1471(a)(3). 

80.1429(b)(9) ........................ Amended to limit the number of RINs that a party can separate when they incur an RVO due to redesignating 

certified-NTDF under § 80.1408. This is consistent with similar situations involving exporters of renewable fuel 

or importers of gasoline and diesel fuel. 

80.1450(g)(11)(ii), 

80.1473(f), 80.1474(b)(2) 

and (3), (b)(4)(i)(C), and 

(b)(4)(ii)(C).

Amended by updating the email address for EPA’s EMTS help desk to fuelsprogramsupport@epa.gov. 

80.1450(h)(2)(i) .................... Amended by changing the time for responding to EPA’s notice of intent to deactivate a company’s registration 

from 14 to 30 calendar days to allow additional time for company action. 

80.1451(b)(1)(ii)(T)(2) and 

80.1454(l)(3).

Amended to clarify reporting instructions and move the affidavit requirement from the reporting section 

(§ 80.1451) to the recordkeeping section (§ 80.1454). 

80.1460(b)(6) ........................ Amended to clarify that generating a RIN for fuel for which RINs have previously been generated is not a prohibited act if those RINs were generated pursuant to § 80.1426(c)(6). 

80.1464(a)(3)(ii), (b)(3)(ii), 

and (c)(2)(ii).

Amended to modify the attest engagements requirements to be consistent with the RIN activity report requirements in § 80.1451(c)(2). 

80.1464(a)(4)(ii), (b)(5)(ii), 

and (c)(3)(ii) and 

80.1475(a)(2) and (d)(4).

Amended by updating outdated references to expired provisions of part 80 to part 1090. 

80.1464(a)(7), (b)(8), (c)(7), 

(i)(1)(i), and (i)(2)(i).

Amended to add the requirement that the attest auditor verifies the submission of required compliance reports 

and states as a finding any compliance reports missing. 

80.1464(b)(4)(i) and (iii) ....... Amended to modify the requirements to include verification of last date of independent third-party engineering review as occurring within the three-year cycle under § 80.1450(d)(3). 

80.1469(c)(1)(vii) .................. Amended to modify the requirements for Quality Assurance Plans to allow for a renewable fuel for which RINs 

were previously generated to be used as a feedstock if done in accordance with § 80.1426(c)(6). 

80.1471(c) ............................ Amended to correct an erroneous reference to 31 CFR 50.5(q) to now be 31 CFR 50.4(t), and to allow comparable financial strength ratings if acceptable to EPA. 

80.1475(d)(1) and (3) ........... Amended by correcting erroneous references to paragraph (b) to now be to paragraph (c). 

IX. Statutory and Executive Order 

Reviews 

Additional information about these 

statutes and Executive orders can be 

found at http://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 an economically 

significant regulatory action that was 

submitted to the Office of Management 

and Budget (OMB) for review. Any 

changes made in response to OMB 

recommendations have been 

documented in the docket. EPA 

prepared an analysis of potential costs 

and benefits associated with this action. 

This analysis is presented in the RIA, 

available in the docket for this action. 

B. Paperwork Reduction Act (PRA) 

The information collection activities 

in this rule have been submitted for 

approval to the Office of Management 

and Budget (OMB) under the PRA. The 

Information Collection Request (ICR) 

document that EPA prepared has been 

assigned EPA ICR number 2691.02. You 

can find a copy of the ICR in the docket 

for this rule, and it is briefly 

summarized here. The information 

collection requirements are not 

enforceable until OMB approves them. 

The information to be collected is 

necessary to implement the inclusion of 

biointermediates to the RFS program. 

Biointermediate producers and 

importers will be added as respondents 

and certain existing respondents (e.g., 

renewable fuel producers) may have 

additional reporting and recordkeeping 

requirements related to their use of 

biointermediates. Recordkeeping and 

reporting requirements include the 

registration of biointermediate 

producers and their facilities; product 

transfer documentation; records 

retention related to the production, 

transfer, and use of biointermediates; 

annual attest engagements; quality 

assurance plans for biointermediates; 

and the submission of information 

related to renewable fuels produced 

using biointermediates. These items are 

discussed in detail in the supporting 

statement in the docket. 

Respondents/affected entities: 

Biointermediate producers, renewable 

fuel producers, biointermediate 

importers, and third parties who submit 

reports for these parties. 

Respondent’s obligation to respond: 

Mandatory, under 40 CFR parts 80 and 

1090. 

Estimated number of respondents: 

5,052. 

Frequency of response: On occasion, 

daily, quarterly, or annually. 

Total estimated burden: 167,385 

hours (per year). Burden is defined at 5 

CFR 1320.3(b). 

Total estimated cost: $9,262,146 (per 

year), all of which is purchased services, 

and which includes $0 annualized 

capital or operation & maintenance 

costs. 

An agency may not conduct or 

sponsor, and a person is not required to 

respond to, a collection of information 

unless it displays a currently valid OMB 

control number. The OMB control 

numbers for EPA’s regulations in 40 

CFR are listed in 40 CFR part 9. When 

OMB approves this ICR, EPA will 

announce that approval in the Federal 

Register and publish a technical 

amendment to 40 CFR part 9 to display 

the OMB control number for the 

approved information collection 

activities contained in this final rule. 

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 rule will not have a 

significant economic impact on a 

substantial number of small entities if 


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274See Chapter 11 of the RIA. 

275For a further discussion of the ability of 

obligated parties to recover the cost of RINs see 

‘‘Denial of Petitions for Rulemaking to Change the 

RFS Point of Obligation,’’ EPA–420–R–17–008, 

November 2017; ‘‘April 2022 Denial of Petitions for 

RFS Small Refinery Exemptions,’’ EPA–420–R–22– 

005, April 2022; ‘‘June 2022 Denial of Petitions for 

RFS Small Refinery Exemptions,’’ EPA–420–R–22– 

011, June 2022. 

276A cost-to-sales ratio of 1 percent represents a 

typical agency threshold for determining the 

significance of the economic impact on small 

entities. See ‘‘Final Guidance for EPA Rulewriters: 

Regulatory Flexibility Act as amended by the Small 

Business Regulatory Enforcement Fairness Act,’’ 

November 2006. 

277 75 FR 14670 (March 26, 2010). 

the rule has no net burden on the small 

entities subject to the rule. 

With respect to the biointermediate 

provisions, participation in the 

biointermediates program is purely 

voluntary. We do not believe that a 

small biointermediate producer or 

renewable fuel producer will choose to 

take advantage of the biointermediate 

program unless there is sufficient 

economic incentive for them to do so. 

Current small renewable fuel producers 

will not be compelled to use 

biointermediates, and as such, any costs 

associated with these provisions are also 

purely voluntary. Also, the 

biointermediates program will create 

new opportunities for small entities that 

may be able to build smaller operations 

than a full-scale renewable fuel 

production facility. These entities 

would likely not be able to otherwise 

participate in the RFS program. With 

respect to the other amendments to the 

RFS regulations, this action makes 

relatively minor corrections and 

modifications to those regulations. As 

such, we do not anticipate that there 

will be any significant adverse 

economic impact on directly regulated 

small entities as a result of these 

provisions. 

The small entities directly regulated 

by the annual percentage standards 

associated with the RFS volumes are 

small refiners, which are defined at 13 

CFR 121.201. With respect to the 2020, 

2021, and 2022 percentage standards 

and 2022 supplemental standard, we 

have evaluated the impacts on small 

entities from two perspectives: as if the 

standards were a standalone action or if 

they are a part of the overall impacts of 

the RFS program as a whole. 

To evaluate the impacts of the volume 

requirements on small entities, we have 

conducted a screening analysis 274 to 

assess whether we should make a 

finding that this action will not have a 

significant economic impact on a 

substantial number of small entities. 

Currently available information shows 

that the impact on small entities from 

implementation of this rule will not be 

significant. We have reviewed and 

assessed the available information, 

which shows that obligated parties, 

including small entities, are able to 

recover the cost of acquiring the RINs 

necessary for compliance with the RFS 

standards through higher sales prices of 

the petroleum products they sell than 

would be expected in the absence of the 

RFS program.275 This is true whether 

they acquire RINs by purchasing 

renewable fuels with attached RINs or 

purchase separated RINs. The costs of 

the RFS program are thus being passed 

on to consumers in the highly 

competitive marketplace. Even if we 

were to assume that the cost of 

acquiring RINs was not recovered by 

obligated parties, a cost-to-sales ratio 

test shows that the costs to small 

entities of the RFS standards established 

in this action are far less than 1 percent 

of the value of their sales.276

While the screening analysis 

described above supports a certification 

that this rule will not have a significant 

economic impact on small refiners, we 

continue to believe that it is more 

appropriate to consider the standards as 

a part of our ongoing implementation of 

the overall RFS program. When 

considered this way, the impacts of the 

RFS program as a whole on small 

entities were addressed in the RFS2 

final rule, which was the rule that 

implemented the entire program as 

required by EISA 2007.277 As such, the 

Small Business Regulatory Enforcement 

Fairness Act (SBREFA) panel process 

that took place prior to the 2010 rule 

was also for the entire RFS program and 

looked at impacts on small refiners 

through 2022. 

For the SBREFA process for the RFS2 

final rule, we conducted outreach, factfinding, and analysis of the potential 

impacts of the program on small 

refiners, which are all described in the 

Final Regulatory Flexibility Analysis, 

located in the rulemaking docket (EPA– 

HQ–OAR–2005–0161). This analysis 

looked at impacts to all refiners, 

including small refiners, through the 

year 2022 and found that the program 

would not have a significant economic 

impact on a substantial number of small 

entities, and that this impact was 

expected to decrease over time, even as 

the standards increased. For gasoline 

and/or diesel small refiners subject to 

the standards, the analysis included a 

cost-to-sales ratio test, a ratio of the 

estimated annualized compliance costs 

to the value of sales per company. From 

this test, we estimated that all directly 

regulated small entities would have 

compliance costs that are less than one 

percent of their sales over the life of the 

program (75 FR 14862, March 26, 2010). 

We have determined that this final 

rule will not impose any additional 

requirements on small entities beyond 

those already analyzed, since the 

impacts of this rule are not greater or 

fundamentally different than those 

already considered in the analysis for 

the RFS2 final rule assuming full 

implementation of the RFS program. 

The cellulosic biofuel, advanced 

biofuel, and total renewable fuel 

volumes remain significantly below the 

statutory volume targets analyzed in the 

RFS2 final rule. Compared to the burden 

that would be imposed under the 

volumes that we assessed in the 

screening analysis for the RFS2 final 

rule (i.e., the volumes specified in the 

CAA), the volume requirements in this 

rule reduce burden on small entities. 

Regarding the BBD standard, it is a 

nested standard within the advanced 

biofuel category, and as discussed in 

Section III.F, the 2022 BBD volume 

requirement is below the volume of BBD 

that is anticipated to be produced and 

used to satisfy the advanced biofuel and 

total renewable fuel requirements. In 

other words, the volume of BBD actually 

used in 2022 will be driven not by the 

2022 BBD standard, but rather by the 

2022 advanced biofuel and total 

renewable fuel standards. The net result 

of the standards being promulgated in 

this action is a reduction in burden as 

compared to implementation of the 

statutory volume targets assumed in the 

RFS2 final rule analysis. 

While the rule will not have a 

significant economic impact on a 

substantial number of small entities, 

there are existing compliance 

flexibilities in the program that small 

entities can take advantage of. These 

flexibilities include being able to 

comply through RIN trading rather than 

renewable fuel blending, 20 percent RIN 

rollover allowance (up to 20 percent of 

an obligated party’s RVO can be met 

using previous-year RINs), and deficit 

carry-forward (the ability to carry over 

a deficit from a given year into the 

following year, provided that the deficit 

is satisfied together with the next year’s 

RVO). In the RFS2 final rule, we 

discussed other potential small entity 

flexibilities that had been suggested by 

the SBREFA panel or through 

comments, but we did not adopt them, 

in part because we had serious concerns 

regarding our authority to do so. 

In sum, this final rule will not change 

the compliance flexibilities currently 

offered to small entities under the RFS 

program and available information 

shows that the impact on small entities 


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from implementation of this rule will 

not be significant when viewed either 

from the perspective of it being a 

standalone action or a part of the overall 

RFS program. 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 implements mandates 

specifically and explicitly set forth in 

CAA section 211(o), and we believe that 

this action represents the least costly, 

most cost-effective approach to achieve 

the statutory requirements. 

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 action will be 

implemented at the Federal level and 

affects transportation fuel refiners, 

blenders, marketers, distributors, 

importers, exporters, and renewable fuel 

producers and importers. Tribal 

governments will be affected only to the 

extent they produce, purchase, or use 

regulated fuels. 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 implements specific 

standards established by Congress in 

statutes (CAA section 211(o)). While 

this action is not covered by Executive 

Order 13045, a discussion of 

environmental health impacts is 

included in Chapter 3 of the RIA. 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This action is not a ‘‘significant 

energy action’’ because it is not likely to 

have a significant adverse effect on the 

supply, distribution, or use of energy. 

This action establishes the required 

renewable fuel content of the 

transportation fuel supply for 2020, 

2021, and 2022 pursuant to the CAA. 

The RFS program and this rule are 

designed to achieve positive effects on 

the nation’s transportation fuel supply 

by increasing energy independence and 

security. 

I. National Technology Transfer and 

Advancement Act (NTTAA) and 1 CFR 

Part 51 

This action involves technical 

standards. We are updating the existing 

test methods and standards in the RFS 

regulations to more recent versions. In 

accordance with the requirements of 1 

CFR 51.5, we are incorporating by 

reference the use of test methods and 

standards from ASTM International. A 

detailed discussion of these test 

methods and standards can be found in 

Section VIII.H. The standards and test 

methods may be obtained through the 

ASTM International website 

(www.astm.org) or by calling ASTM 

International at (877) 909–2786. (In 

addition to the standards and test 

methods listed below, ASTM E711 is 

also referenced in the regulatory text of 

this final rule. It was approved for IBR 

as of July 1, 2010, and no changes are 

being finalized.) 

TABLE IX.I–1—STANDARDS AND TEST METHODS TO BE INCORPORATED BY REFERENCE

Organization and standard or test method Description 

ASTM D975–21, Standard Specification for Diesel Fuel, approved August 1, 2021.Diesel fuel specifications that must be met to qualify for RINs for renewable fuels. 

ASTM D1250–19e1, Standard Guide for the Use of the Joint API and 

ASTM Adjunct for Temperature and Pressure Volume Correction 

Factors for Generalized Crude Oils, Refined Products, and Lubricating Oils: API MPMS Chapter 11.1, approved May 1, 2019.

Standard guide used by industry for determining temperature corrected 

standardized volumes under the RFS program. 

ASTM D4442–20, Standard Test Methods for Direct Moisture Content 

Measurement of Wood and Wood-Based Materials, approved March 

1, 2020.

Test method used for determining moisture content of wood samples 

that must be met when qualifying for RINs for renewable fuels. 

ASTM D4444–13 (2018), Standard Test Method for Laboratory Standardization and Calibration of Hand-Held Moisture Meters, reapproved 

July 1, 2018.

Test method used for determining moisture content of wood samples 

that must be met when qualifying for RINs for renewable fuels. 

ASTM D6751–20a, Standard Specification for Biodiesel Fuel Blend 

Stock (B100) for Middle Distillate Fuels, approved August 1, 2020.

Biodiesel fuel specifications that must be met to qualify for RINs for renewable fuels. 

ASTM D6866–22, Standard Test Methods for Determining the 

Biobased Content of Solid, Liquid, and Gaseous Samples Using Radiocarbon Analysis, approved March 15, 2022.

Radiocarbon dating test method to determine the renewable content of 

transportation fuel. 

ASTM E870–82 (2019), Standard Test Methods for Analysis of Wood 

Fuels, reapproved April 1, 2019.

Test method that covers the proximate and ultimate analysis of wood 

fuels, as well as the determination of the gross caloric value of wood 

sampled and prepared by prescribed test methods and analyzed according to ASTM established procedures that must be met when 

qualifying for RINs for renewable fuels. 


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J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Due to time constraints and 

uncertainty about where impacts are 

likely to occur, EPA is able to evaluate 

only qualitatively the extent to which 

this action may result in 

disproportionately high and adverse 

human health or environmental effects 

on minority populations, low-income 

populations, and/or indigenous peoples, 

as specified in Executive Order 12898 

(59 FR 7629, February 16, 1994). While 

there is the potential for GHG emission 

reductions as a result of this action, both 

positive and negative changes in air and 

water quality could also occur due to 

increases in biofuel production. Land 

use change to bring more corn, soy, or 

other crops into production in response 

to the action could also affect air, water, 

and soil quality in specific locations. 

These environmental changes, 

combined with future climate change 

impacts, may be unevenly distributed 

across geographies and thus affect 

different demographics, such as people 

of color, low income, or indigenous 

populations. Such effects are uncertain 

and challenging to predict on a granular 

spatial scale. A summary of our 

approach for considering potential EJ 

concerns as a result of this action can be 

found in Section I.J, and our EJ analysis 

(including a discussion of this action’s 

potential impacts on GHGs, air quality, 

water quality, and fuel and food prices) 

can be found in Chapter 8 of the RIA, 

available in the docket for this action. 

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 a ‘‘major rule’’ as 

defined by 5 U.S.C. 804(2). 

X. Statutory Authority 

Statutory authority for this action 

comes from sections 114, 203–05, 208, 

211, and 301 of the Clean Air Act, 42 

U.S.C. 7414, 7522–24, 7542, 7545, and 

7601. 

List of Subjects 

40 CFR Part 80 

Environmental protection, 

Administrative practice and procedure, 

Air pollution control, Diesel fuel, Fuel 

additives, Gasoline, Imports, 

Incorporation by reference, Oil imports, 

Petroleum, Renewable fuel. 

40 CFR Part 1090 

Environmental protection, 

Administrative practice and procedure, 

Air pollution control, Diesel fuel, Fuel 

additives, Gasoline, Imports, Oil 

imports, Petroleum, Renewable fuel. 

Michael S. Regan, 

Administrator. 

For the reasons set forth in the 

preamble, EPA amends 40 CFR parts 80 

and 1090 as follows: 

PART 80—REGULATION OF FUELS 

AND FUEL ADDITIVES 

■ 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 A—General Provisions 

■ 2. Add § 80.11 to read as follows: 

§ 80.11 Confidentiality of information. 

(a) Except as specified in paragraph 

(b) of this section, information obtained 

by the Administrator or his 

representatives pursuant to this part 

shall be treated, in so far as its 

confidentiality is concerned, in 

accordance with the provisions of 40 

CFR part 2, subpart B. 

(b) Information contained in EPA 

notices of violation, settlement 

agreements, administrative complaints, 

civil complaints, criminal information, 

and criminal indictments is not entitled 

to confidential treatment and therefore 

EPA may publicly disclose such 

information. Such information includes 

the company name and EPA-issued 

company identification number, the 

facility name and EPA-issued facility 

identification number, the total quantity 

of fuel and parameter, the time or time 

period when the violation occurred, 

information relating to the generation, 

transfer, or use of credits, and any other 

information relevant to describing the 

violation. 

Subpart M—Renewable Fuel Standard 

■ 3. Amend § 80.1401 by: 

■ a. Revising the definition of 

‘‘Agricultural digester’’; 

■ b. Adding in alphabetical order the 

definition of ‘‘Approved pathway’’; 

■ c. Revising the definition of ‘‘Baseline 

volume’’; 

■ d. Adding in alphabetical order the 

definition of ‘‘Biocrude’’; 

■ e. Revising the definition of 

‘‘Biodiesel’’; 

■ f. Adding in alphabetical order the 

definitions of ‘‘Biodiesel distillation 

bottoms’’, ‘‘Biointermediate’’, 

‘‘Biointermediate import facility’’, 

‘‘Biointermediate importer’’, 

‘‘Biointermediate producer’’, 

‘‘Biointermediate production facility’’, 

and ‘‘Biomass-based sugars’’; 

■ g. Revising the definitions of 

‘‘Combined heat and power (CHP)’’ and 

‘‘Co-processed’’; 

■ h. Adding in alphabetical order the 

definition of ‘‘Digestate’’; 

■ i. Revising the definitions ‘‘Facility’’ 

and ‘‘Foreign renewable fuel producer’’; 

■ j. Adding in alphabetical order the 

definitions of ‘‘Free fatty acid (FFA) 

feedstock’’ and ‘‘Glycerin’’; 

■ k. Revising paragraph (1) in the 

definition of ‘‘Non-ester renewable 

diesel’’ and the definition of ‘‘Nonrenewable feedstock’’; 

■ l. Adding in alphabetical order the 

definition of ‘‘Professional liability 

insurance’’; 

■ m. Revising the definitions of 

‘‘Quality assurance audit’’ and ‘‘Quality 

assurance plan’’, paragraph (7) in the 

definition of ‘‘Renewable biomass’’, and 

the introductory text and paragraph 

(1)(i) in the definition of ‘‘Renewable 

fuel’’; and 

■ m. Adding in alphabetical order the 

definitions of ‘‘Separated food waste’’, 

‘‘Separated municipal solid waste 

(MSW)’’, ‘‘Separated yard waste’’, 

‘‘Soapstock’’, and ‘‘Undenatured 

ethanol’’. 

The revisions and additions read as 

follows: 

§ 80.1401 Definitions. 

* * * * * 

Agricultural digester means an 

anaerobic digester that processes only 

animal manure, crop residues, or 

separated yard waste with an adjusted 

cellulosic content of at least 75%. Each 

and every material processed in an 

agricultural digester must have an 

adjusted cellulosic content of at least 

75%. 

* * * * * 

Approved pathway means a pathway 

listed in Table 1 to § 80.1426 or in a 

petition approved under § 80.1416. 

* * * * * 

Baseline volume means the permitted 

capacity or, if permitted capacity cannot 

be determined, the actual peak capacity 

or nameplate capacity as applicable 

pursuant to § 80.1450(b)(1)(v)(A) 

through (C), of a specific renewable fuel 

production facility on a calendar year 

basis. 

Biocrude means a liquid 

biointermediate that meets all the 

following requirements: 

(1) It is produced at a biointermediate 

production facility using one or more of 

the following processes: 


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(i) A process identified in row M 

under Table 1 to § 80.1426. 

(ii) A process identified in a pathway 

listed in a petition approved under 

§ 80.1416 for the production of 

renewable fuel produced from biocrude. 

(2) It is to be used to produce 

renewable fuel at a refinery as defined 

in 40 CFR 1090.80. 

Biodiesel means a mono-alkyl ester 

that meets ASTM D6751 (incorporated 

by reference, see § 80.1468). 

Biodiesel distillation bottoms means 

the heavier product from distillation at 

a biodiesel production facility that does 

not meet the definition of biodiesel. 

* * * * * 

Biointermediate means any feedstock 

material that is intended for use to 

produce renewable fuel and meets all of 

the following requirements: 

(1) It is produced from renewable 

biomass. 

(2) It has not previously had RINs 

generated for it. 

(3) It is produced at a facility 

registered with EPA that is different 

than the facility at which it is used as 

feedstock material to produce renewable 

fuel. 

(4) It is produced from the feedstock 

material identified in an approved 

pathway, will be used to produce the 

renewable fuel listed in that approved 

pathway, and is produced and 

processed in accordance with the 

process(es) listed in that approved 

pathway. 

(5) Is one of the following types of 

biointermediate: 

(i) Biocrude. 

(ii) Biodiesel distillate bottoms. 

(iii) Biomass-based sugars. 

(iv) Digestate. 

(v) Free fatty acid (FFA) feedstock. 

(vi) Glycerin. 

(vii) Soapstock. 

(viii) Undenatured ethanol. 

(6) It is not a feedstock material 

identified in an approved pathway that 

is used to produce the renewable fuel 

specified in that approved pathway. 

Biointermediate import facility means 

any facility as defined in 40 CFR 

1090.80 where a biointermediate is 

imported from outside the covered 

location into the covered location. 

Biointermediate importer means any 

person who owns, leases, operates, 

controls, or supervises a biointermediate 

import facility. 

Biointermediate producer means any 

person who owns, leases, operates, 

controls, or supervises a biointermediate 

production facility. 

Biointermediate production facility 

means all of the activities and 

equipment associated with the 

production of a biointermediate starting 

from the point of delivery of feedstock 

material to the point of final storage of 

the end biointermediate product, which 

are located on one property, and are 

under the control of the same person (or 

persons under common control). 

* * * * * 

Biomass-based sugars means sugars 

(e.g., dextrose, sucrose, etc.) extracted 

from renewable biomass under an 

approved pathway, other than through a 

form change described in 

§ 80.1460(k)(2). 

* * * * * 

Combined heat and power (CHP), also 

known as cogeneration, refers to 

industrial processes in which waste heat 

from the production of electricity is 

used for process energy in a 

biointermediate or renewable fuel 

production facility. 

* * * * * 

Co-processed means that renewable 

biomass or a biointermediate was 

simultaneously processed with fossil 

fuels or other non-renewable feedstock 

in the same unit or units to produce a 

fuel that is partially derived from 

renewable biomass or a biointermediate. 

* * * * * 

Digestate means the material that 

remains following the anaerobic 

digestion of renewable biomass in an 

anaerobic digester. Digestate must only 

contain the leftovers that were unable to 

be completely converted to biogas in an 

anaerobic digestor that is part of an 

EPA-accepted registration under 

§ 80.1450. 

* * * * * 

Facility means all of the activities and 

equipment associated with the 

production of renewable fuel or a 

biointermediate starting from the point 

of delivery of feedstock material to the 

point of final storage of the end product, 

which are located on one property, and 

are under the control of the same person 

(or persons under common control). 

* * * * * 

Foreign renewable fuel producer 

means a person from a foreign country 

or from an area outside the covered 

locations who produces renewable fuel 

for use in transportation fuel, heating 

oil, or jet fuel for export to the covered 

location. Foreign ethanol producers are 

considered foreign renewable fuel 

producers. 

* * * * * 

Free fatty acid (FFA) feedstock means 

a biointermediate that is composed of at 

least 50 percent free fatty acids. FFA 

feedstock must not include any free 

fatty acids from the refining of crude 

palm oil. 

* * * * * 

Glycerin means a coproduct from the 

production of biodiesel that primarily 

contains glycerol. 

* * * * * 

Non-ester renewable diesel * * * 

(1) A fuel or fuel additive that meets 

the Grade No. 1–D or No. 2–D 

specification in ASTM D975 

(incorporated by reference, see 

§ 80.1468) and can be used in an engine 

designed to operate on conventional 

diesel fuel; or 

* * * * * 

Non-renewable feedstock means a 

feedstock (or any portion thereof) that 

does not meet the definition of 

renewable biomass or biointermediate 

in this section. 

* * * * * 

Professional liability insurance means 

insurance coverage for liability arising 

out of the performance of professional 

or business duties related to a specific 

occupation, with coverage being tailored 

to the needs of the specific occupation. 

Examples include abstracters, 

accountants, insurance adjusters, 

architects, engineers, insurance agents 

and brokers, lawyers, real estate agents, 

stockbrokers, and veterinarians. For 

purposes of this definition, professional 

liability insurance does not include 

directors and officers liability insurance. 

* * * * * 

Quality assurance audit means an 

audit of a renewable fuel production 

facility or biointermediate production 

facility conducted by an independent 

third-party auditor in accordance with a 

QAP that meets the requirements of 

§§ 80.1469, 80.1472, and 80.1477. 

Quality assurance plan, or QAP, 

means the list of elements that an 

independent third-party auditor will 

check to verify that the RINs generated 

by a renewable fuel producer or 

importer are valid or to verify the 

appropriate production of a 

biointermediate. A QAP includes both 

general and pathway specific elements. 

* * * * * 

Renewable biomass * * * 

(7) Separated yard waste or food 

waste, including recycled cooking and 

trap grease. 

* * * * * 

Renewable fuel means a fuel that 

meets all the following requirements: 

(1)(i) Fuel that is produced either 

from renewable biomass or from a 

biointermediate produced from 

renewable biomass. 

* * * * * 

Separated food waste means a 

feedstock stream consisting of food 


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waste kept separate since generation 

from other waste materials, and which 

includes food and beverage production 

waste and post-consumer food and 

beverage waste. 

Separated municipal solid waste 

(MSW) means material remaining after 

separation actions have been taken to 

remove recyclable paper, cardboard, 

plastics, rubber, textiles, metals, and 

glass from municipal solid waste, and 

which is composed of both cellulosic 

and non-cellulosic materials. 

Separated yard waste means a 

feedstock stream consisting of yard 

waste kept separate since generation 

from other waste materials. 

* * * * * 

Soapstock means an emulsion, or the 

oil obtained from separation of that 

emulsion, produced by washing oils 

listed as a feedstock in an approved 

pathway with water. 

* * * * * 

Undenatured ethanol means a liquid 

that meets one of the definitions in 

paragraph (1) of this definition: 

(1)(i) Ethanol that has not been 

denatured as required in 27 CFR parts 

19 through 21. 

(ii) Specially denatured alcohol as 

defined in 27 CFR 21.11. 

(2) Undenatured ethanol is not 

renewable fuel. 

* * * * * 

■ 4. Revise § 80.1402 to read as follows: 

§ 80.1402 Availability of information; 

confidentiality of information. 

(a) Beginning January 1, 2020, no 

claim of business confidentiality may be 

asserted by any person with respect to 

information submitted to EPA under 

§ 80.1451(c)(2)(ii)(E), whether submitted 

electronically or in paper format. 

(b) The following information 

contained in EPA determinations that 

RINs are invalid under 

§ 80.1474(b)(4)(i)(C)(2) and 

(b)(4)(ii)(C)(2), notices of violation, 

settlement agreements, administrative 

complaints, civil complaints, criminal 

information, and criminal indictments 

arising under this subpart is not entitled 

to confidential treatment and the 

provisions of 40 CFR 2.201 through 

2.215 and 2.301 do not apply: 

(1) The company name. 

(2) The name and location of the 

facility at which the fuel associated with 

the RINs in question was allegedly 

produced or imported. 

(3) The EPA-issued company or 

facility identification number of the 

party that produced the fuel or 

generated the RINs in question. 

(4) The total quantity of fuel and RINs 

in question. 

(5) The time period when the fuel was 

allegedly produced. 

(6) The time period when the RINs in 

question were generated. 

(7) The batch number(s) and the D 

code(s) of the RINs in question. 

(8) Information relating to the 

generation, transfer, or use of RINs. 

(9) The shortfall in RINs related to an 

obligated party’s failure to meet its 

renewable volume obligation. 

(10) Any other information relevant to 

describing the violation. 

(c) The following information 

contained in submissions under this 

subpart is not entitled to confidential 

treatment and the provisions of 40 CFR 

2.201 through 2.215 and 2.301 do not 

apply: 

(1) Submitter’s name. 

(2) The name and location of the 

facility, if applicable. 

(3) The date the submission was 

transmitted to EPA. 

(4) Any EPA-issued company or 

facility identification numbers 

associated with the submission. 

(5) The purpose of the submission. 

(6) The relevant time period for the 

submission, if applicable. 

(d) The following information 

incorporated into EPA determinations 

on submissions under this subpart is not 

entitled to confidential treatment and 

the provisions of 40 CFR 2.201 through 

2.215 and 2.301 do not apply: 

(1) Submitter’s name. 

(2) The name and location of the 

facility, if applicable. 

(3) The date the submission was 

transmitted to EPA. 

(4) Any EPA-issued company or 

facility identification numbers 

associated with the submission. 

(5) The purpose of the submission. 

(6) The relevant time period of the 

submission, if applicable. 

(7) The extent to which EPA granted 

or denied the request and any relevant 

terms and conditions. 

(e) Except as otherwise specified in 

this section, any information submitted 

under this part claimed as confidential 

remains subject to evaluation by EPA 

under 40 CFR part 2, subpart B. 

(f) EPA may disclose the information 

specified in paragraphs (a) through (d) 

of this section on its website, or 

otherwise make it available to interested 

parties, without additional notice or 

process, notwithstanding any claims 

that the information is entitled to 

confidential treatment under 40 CFR 

part 2, subpart B. 

■ 5. Amend § 80.1405 by revising 

paragraph (a)(11) and adding paragraphs 

(a)(12) and (13) to read as follows: 

§ 80.1405 What are the Renewable Fuel 

Standards? 

(a) * * * 

(11) Renewable Fuel Standards for 

2020. (i) The value of the cellulosic 

biofuel standard for 2020 shall be 0.32 

percent. 

(ii) The value of the biomass-based 

diesel standard for 2020 shall be 2.30 

percent. 

(iii) The value of the advanced biofuel 

standard for 2020 shall be 2.93 percent. 

(iv) The value of the renewable fuel 

standard for 2020 shall be 10.82 percent. 

(12) Renewable Fuel Standards for 

2021. (i) The value of the cellulosic 

biofuel standard for 2021 shall be 0.33 

percent. 

(ii) The value of the biomass-based 

diesel standard for 2021 shall be 2.16 

percent. 

(iii) The value of the advanced biofuel 

standard for 2021 shall be 3.00 percent. 

(iv) The value of the renewable fuel 

standard for 2021 shall be 11.19 percent. 

(13) Renewable Fuel Standards for 

2022. (i) The value of the cellulosic 

biofuel standard for 2022 shall be 0.35 

percent. 

(ii) The value of the biomass-based 

diesel standard for 2022 shall be 2.33 

percent. 

(iii) The value of the advanced biofuel 

standard for 2022 shall be 3.16 percent. 

(iv) The value of the renewable fuel 

standard for 2022 shall be 11.59 percent. 

(v) The value of the supplemental 

total renewable fuel standard for 2022 

shall be 0.14 percent. 

* * * * * 

■ 6. Amend § 80.1407 by revising 

paragraph (f)(1) to read as follows: 

§ 80.1407 How are the Renewable Volume 

Obligations calculated? 

* * * * * 

(f) * * * 

(1) Any renewable fuel. Renewable 

fuel for which a RIN is invalidly 

generated under § 80.1431 may not be 

excluded from a party’s renewable 

volume obligations. 

* * * * * 

§ 80.1408 [Amended] 

■ 7. Amend § 80.1408(a)(2)(i)(B) and 

(a)(2)(ii)(B) by removing ‘‘§ 80.1454(t)’’ 

and adding ‘‘§ 80.1454(o)’’ in its place. 

■ 8. Amend § 80.1415 by revising 

paragraphs (c)(2)(ii) and (iii) to read as 

follows: 

§ 80.1415 How are equivalence values 

assigned to renewable fuel? 

* * * * * 

(c) * * * 

(2) * * * 

(ii) For each feedstock, 

biointermediate, component, or additive 


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that is used to make the renewable fuel, 

provide a description, the percent input, 

and identify whether or not it is 

renewable biomass or is derived from 

renewable biomass. 

(iii) For each feedstock or 

biointermediate that also qualifies as a 

renewable fuel, state whether or not 

RINs have been previously generated for 

such feedstock. 

* * * * * 

■ 9. Amend § 80.1416 by revising 

paragraphs (b)(1)(ii) and (iii) to read as 

follows: 

§ 80.1416 Petition process for evaluation 

of new renewable fuels pathways. 

* * * * * 

(b)(1) * * * 

(ii) A technical justification that 

includes a description of the renewable 

fuel, feedstock(s), and 

biointermediate(s) used to make it, and 

the production process. The justification 

must include process modeling flow 

charts. 

(iii) A mass balance for the pathway, 

including feedstocks and 

biointermediates, fuels produced, coproducts, and waste materials 

production. 

* * * * * 

■ 10. Amend § 80.1426 by: 

■ a. Adding paragraph (a)(4); 

■ b. Removing the headings from 

paragraphs (c)(2) and (3); 

■ c. Adding paragraph (c)(8); 

■ d. Revising paragraph (f)(1); 

■ e. Immediately following paragraph 

(f)(1), in table 1 to § 80.1426 revising 

entries F and H; 

■ f. Revising paragraph (f)(3)(vi); 

■ g. Revising the heading of paragraph 

(f)(4); 

■ h. In paragraph (f)(4)(i)(A)(1), revising 

the definitions of ‘‘FER’’ and ‘‘FENR’’; 

■ i. Adding paragraph (f)(4)(iv); 

■ j. Revising and republishing 

paragraph (f)(5); 

■ k. Revising paragraphs (f)(7)(v)(A) and 

(B), (f)(8)(ii)(B), (f)(9)(ii), (f)(15)(i) 

introductory text, and (f)(16)(iii); 

■ l. Adding a heading to paragraph 

(f)(17); 

■ m. Revising paragraphs (f)(17)(i) 

introductory text and (f)(17)(i)(B)(1) and 

(2). 

The additions and revisions read as 

follows: 

§ 80.1426 How are RINs generated and 

assigned to batches of renewable fuel? 

(a) * * * 

(4) Where a feedstock or 

biointermediate is used to produce 

renewable fuel and is not entirely 

renewable biomass, RINs may only be 

generated for the portion of fuel that is 

derived from renewable biomass, as 

calculated under paragraph (f)(4) of this 

section. 

* * * * * 

(c) * * * 

(8) RINs must not be generated for a 

biointermediate. 

* * * * * 

(f) * * * 

(1) Applicable pathways. (i) D codes 

shall be used in RINs generated by 

producers or importers of renewable 

fuel according to the pathways listed in 

Table 1 to this section, paragraph (f)(6) 

of this section, or as approved by the 

Administrator. 

(ii) In choosing an appropriate D code, 

producers and importers may disregard 

any incidental, de minimis feedstock 

contaminants that are impractical to 

remove and are related to customary 

feedstock production and transport. 

(iii) Tables 1 and 2 to this section do 

not apply to, and impose no 

requirements with respect to, volumes 

of fuel for which RINs are generated 

pursuant to paragraph (f)(6) of this 

section. 

(iv) Pathways in Table 1 to this 

section and advanced technologies in 

Table 2 to this section also apply in 

cases where the renewable fuel 

producer is using a biointermediate. 

(v) For the purposes of identifying the 

appropriate pathway in Table 1 to this 

section, biointermediates used for the 

production of renewable fuel are 

considered to be equivalent to the 

renewable biomass from which they 

were derived, with the following 

exceptions: 

(A) Oil that is physically separated 

from any woody or herbaceous biomass 

and used to produce renewable fuel 

shall not generate D-code 3 or 7 RINs. 

(B) Sugar or starch that is physically 

separated from cellulosic biomass and 

used to produce renewable fuel shall 

not generate D-code 3 or 7 RINs. 

(vi) If a renewable fuel producer uses 

a biointermediate for the production of 

renewable fuel, additional requirements 

apply to both the renewable fuel 

producer and the biointermediate 

producer as described in § 80.1476. 

TABLE 1 TO § 80.1426—APPLICABLE D CODES FOR EACH FUEL PATHWAY FOR USE IN GENERATING RINS

Fuel type Feedstock Production process 

requirements D-code 

*******

F .............................................. Biodiesel, renewable diesel, 

jet fuel and heating oil.

Soy bean oil; Oil from annual 

covercrops; Oil from algae 

grown photosynthetically; 

Biogenic waste oils/fats/ 

greases; Camelina sativa 

oil; Distillers corn oil; Distillers sorghum oil; Commingled distillers corn oil 

and sorghum oil.

One of the following: 

Transesterification with or 

without esterification pretreatment, Esterification, or 

Hydrotreating; excludes 

processes that co-process 

renewable biomass and petroleum.

4 

*******

H ............................................. Biodiesel, renewable diesel, 

jet fuel and heating oil.

Soy bean oil; Oil from annual 

covercrops; Oil from algae 

grown photosynthetically; 

Biogenic waste oils/fats/ 

greases; Camelina sativa 

oil; Distillers corn oil; Distillers sorghum oil; Commingled distillers corn oil 

and sorghum oil.

One of the following: 

Transesterification with or 

without esterification pretreatment, Esterification, or 

Hydrotreating; includes only 

processes that co-process 

renewable biomass and petroleum.

5 

*******


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* * * * * 

(3) * * * 

(vi)(A) If a producer produces a single 

type of renewable fuel using two or 

more different feedstocks or 

biointermediates which are processed 

simultaneously, and each batch is 

comprised of a single type of fuel, then 

the number of gallon-RINs that shall be 

generated for a batch of renewable fuel 

and assigned a particular D code shall 

be determined according to the formulas 

in Table 4 to this section. 

Where: 

VRIN,CB = RIN volume, in gallons, for use in 

determining the number of gallon-RINs 

that shall be generated for a batch of 

cellulosic biofuel with a D code of 3. 

VRIN,BBD = RIN volume, in gallons, for use in 

determining the number of gallon-RINs 

that shall be generated for a batch of 

biomass-based diesel with a D code of 4. 

VRIN,AB = RIN volume, in gallons, for use in 

determining the number of gallon-RINs 

that shall be generated for a batch of 

advanced biofuel with a D code of 5. 

VRIN,RF = RIN volume, in gallons, for use in 

determining the number of gallon-RINs 

that shall be generated for a batch of 

renewable fuel with a D code of 6. 

VRIN,CD = RIN volume, in gallons, for use in 

determining the number of gallon-RINs 

that shall be generated for a batch of 

cellulosic diesel with a D code of 7. 

EV = Equivalence value for the renewable 

fuel per § 80.1415. 

VS = Standardized volume of the batch of 

renewable fuel at 60 °F, in gallons, 

calculated in accordance with paragraph 

(f)(8) of this section. 

FE3 = Feedstock energy from all feedstocks or 

biointermediates whose pathways have 

been assigned a D code of 3 under an 

approved pathway, in Btu. 

FE4 = Feedstock energy from all feedstocks or 

biointermediates whose pathways have 

been assigned a D code of 4 under an 

approved pathway, in Btu. 

FE5 = Feedstock energy from all feedstocks or 

biointermediates whose pathways have 

been assigned a D code of 5 under an 

approved pathway, in Btu. 

FE6 = Feedstock energy from all feedstocks or 

biointermediates whose pathways have 

been assigned a D code of 6 under an 

approved pathway, in Btu. 

FE7 = Feedstock energy from all feedstocks or 

biointermediates whose pathways have 

been assigned a D code of 7 under an 

approved pathway, in Btu. 

(B) Feedstock energy values, FE, shall 

be calculated according to the following 

formula: 

FE = M * (1¥m) * CF * E 

Where: 

FE = Feedstock or biointermediate energy, in 

Btu. 

M = Mass of feedstock or biointermediate, in 

pounds, measured on a daily or perbatch basis. 

m = Average moisture content of the 

feedstock or biointermediate, in mass 

percent. 

CF = Converted Fraction in annual average 

mass percent, except as otherwise 

provided by § 80.1451(b)(1)(ii)(U), 

representing that portion of the feedstock 

or biointermediate that is converted into 

renewable fuel by the producer. 

E = Energy content of the components of the 

feedstock or biointermediate that are 

converted to renewable fuel, in annual 

average Btu/lb, determined according to 

paragraph (f)(7) of this section. 

(4) Renewable fuel that is produced by 

co-processing renewable biomass 

(including a biointermediate) and nonrenewable feedstocks simultaneously to 

produce a fuel that is partially 

renewable. (i) * * * 

(A) * * * 

(1) * * * 

FER = Feedstock energy from renewable 

biomass (including the renewable 

portion of a biointermediate) used to 

make the transportation fuel, in Btu. 

FENR = Feedstock energy from non-renewable 

feedstocks (including the non-renewable 

portion of a biointermediate) used to 

make the transportation fuel, heating oil, 

or jet fuel, in Btu. 

* * * * * 


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Table 4 to §80.1426-Number of Gallon-RINs to Assign to Batch-RINs With D Codes 

Dependent on Feedstock 

D Code to Use in Batch-RIN Number of Gallon-RINs 

D=3 FE3 

V: =EV* V. * 

RIN,CB 5 FE3 + FE4 + FE5 + FE6 + FE7 

D=4 FE4 

V: =EV* V. * RIN,BBD 5 FE3 + FE4 + FE5 + FE6 + FE7 

D=5 FE5 

V: =EV* V. * 

RIN,AB 5 FE3 + FE4 + FE5 + FE6 + FE7 

D=6 FE6 

V: =EV* V. * 

RIN,RF s FE3 + FE4 + FEs + FE6 + FE7 

D=7 FE7 

V: =EV* V. * 

RIN,cv 5 FE3 + FE4 + FE5 + FE6 + FE7 
39664 Federal Register / Vol. 87, No. 126 / Friday, July 1, 2022 / Rules and Regulations 

(iv) RIN-generating parties must 

calculate RIN volume VRIN for coprocessed fuels produced from a 

biointermediate as described in 

paragraph (f)(4)(i)(B) of this section and 

calculate the renewable fraction of a fuel 

R using one of the following: 

(A) Method B of ASTM D6866 

(incorporated by reference, see 

§ 80.1468) as described in paragraph 

(f)(9)(ii) of this section. 

(B) If the renewable content of the coprocessed fuel is 10 percent or greater, 

Method C of ASTM D6866 as described 

in paragraph (f)(9)(ii) of this section. 

(C) Any other EPA-approved method 

under paragraph (f)(9)(ii) of this section. 

(5) Renewable fuel produced from 

separated yard waste, separated food 

waste, and separated MSW. (i)(A) 

Separated yard waste is deemed to be 

composed entirely of cellulosic 

materials. 

(B) Separated food waste is deemed to 

be composed entirely of non-cellulosic 

materials, unless a party demonstrates 

that a portion of the feedstock is 

cellulosic through approval of their 

facility registration. 

(ii)(A) A feedstock qualifies as 

separated yard waste or separated food 

waste only if it is collected according to 

a plan submitted to and accepted by 

EPA under the registration procedures 

specified in § 80.1450(b)(1)(vii). 

(B) A feedstock qualifies as separated 

MSW only if it is collected according to 

a plan submitted to and approved by 

EPA. 

(iii) Separation and recycling actions 

for separated MSW are considered to 

occur if: 

(A) Recyclable paper, cardboard, 

plastics, rubber, textiles, metals, and 

glass that can be recycled are separated 

and removed from the municipal solid 

waste stream to the extent reasonably 

practicable according to a plan 

submitted to and approved by U.S. EPA 

under the registration procedures 

specified in § 80.1450(b)(1)(viii); and 

(B) The fuel producer has evidence of 

all contracts relating to the disposition 

of paper, cardboard, plastics, rubber, 

textiles, metals, and glass that are 

recycled. 

(iv)(A) The number of gallon-RINs 

that shall be generated for a batch of 

renewable fuel derived from separated 

yard waste shall be equal to a volume 

VRIN and is calculated according to the 

following formula: 

VRIN = EV * VS

Where: 

VRIN = RIN volume, in gallons, for use in 

determining the number of cellulosic 

biofuel gallon-RINs that shall be 

generated for the batch. 

EV = Equivalence value for the batch of 

renewable fuel per § 80.1415. 

Vs = Standardized volume of the batch of 

renewable fuel at 60 °F, in gallons, 

calculated in accordance with paragraph 

(f)(8) of this section. 

(B) The number of gallon-RINs that 

shall be generated for a batch of 

renewable fuel derived from separated 

food waste shall be equal to a volume 

VRIN and is calculated according to the 

following formula: 

VRIN = EV * VS

Where: 

VRIN = RIN volume, in gallons, for use in 

determining the number of cellulosic or 

advanced biofuel gallon-RINs that shall 

be generated for the batch. 

EV = Equivalence value for the batch of 

renewable fuel per § 80.1415. 

VS = Standardized volume of the batch of 

renewable fuel at 60 °F, in gallons, 

calculated in accordance with paragraph 

(f)(8) of this section. 

(v) The number of cellulosic biofuel 

gallon-RINs that shall be generated for 

the cellulosic portion of a batch of 

renewable fuel derived from separated 

MSW shall be determined according to 

the following formula: 

VRIN = EV * VS * R 

Where: 

VRIN = RIN volume, in gallons, for use in 

determining the number of cellulosic 

biofuel gallon-RINs that shall be 

generated for the batch. 

EV = Equivalence value for the batch of 

renewable fuel per § 80.1415. 

VS = Standardized volume of the batch of 

renewable fuel at 60 °F, in gallons, 

calculated in accordance with paragraph 

(f)(8) of this section. 

R = The calculated non-fossil fraction of the 

fuel as measured by a carbon-14 dating 

test method as provided in paragraph 

(f)(9) of this section, except that for 

biogas-derived fuels made from 

separated MSW, no testing is required 

and R = 1. 

* * * * * 

(7) * * * 

(v) * * * 

(A) ASTM E870 or ASTM E711 for 

gross calorific value (both incorporated 

by reference, see § 80.1468). 

(B) ASTM D4442 or ASTM D4444 for 

moisture content (both incorporated by 

reference, see § 80.1468). 

* * * * * 

(8) * * * 

(ii) * * * 

(B) The standardized volume of 

biodiesel at 60 °F, in gallons, as 

calculated from the use of the American 

Petroleum Institute Refined Products 

Table 6B, as referenced in ASTM D1250 

(incorporated by reference, see 

§ 80.1468). 

* * * * * 

(9) * * * 

(ii) Parties must use Method B or 

Method C of ASTM D6866 (incorporated 

by reference, see § 80.1468), or an 

alternative test method as approved by 

EPA. 

* * * * * 

(15) * * * 

(i) If a producer seeking to generate D 

code 3 or D code 7 RINs produces a 

single type of renewable fuel using two 

or more feedstocks or biointermediates 

converted simultaneously, and at least 

one of the feedstocks or 

biointermediates does not have a 

minimum 75% average adjusted 

cellulosic content, one of the following 

additional requirements apply: 

* * * * * 

(16) * * * 

(iii) Recordkeeping requirements 

under § 80.1454(n). 

(17) Qualifying use demonstration for 

certain renewable fuels. (i) For purposes 

of this section, any renewable fuel other 

than ethanol, biodiesel, renewable 

gasoline, or renewable diesel that meets 

the Grade No. 1–D or No. 2–D 

specification in ASTM D975 

(incorporated by reference, see 

§ 80.1468) is considered renewable fuel 

and the producer or importer may 

generate RINs for such fuel only if all of 

the following apply: 

* * * * * 

(B) * * * 

(1) Blending the renewable fuel into 

gasoline or distillate fuel to produce a 

transportation fuel, heating oil, or jet 

fuel that meets all applicable standards 

under this part and 40 CFR part 1090. 

(2) Entering into a written contract for 

the sale of the renewable fuel, which 

specifies the purchasing party must 

blend the fuel into gasoline or distillate 

fuel to produce a transportation fuel, 

heating oil, or jet fuel that meets all 

applicable standards under this part and 

40 CFR part 1090. 

* * * * * 

■ 11. Amend § 80.1428 by revising 

paragraph (b)(2) to read as follows: 

§ 80.1428 General requirements for RIN 

distribution. 

* * * * * 

(b) * * * 

(2) Unless otherwise specified, any 

person that has registered pursuant to 

§ 80.1450 can own a separated RIN. 

* * * * * 

■ 12. Amend § 80.1429 by revising 

paragraph (b)(9) introductory text to 

read as follows: 

§ 80.1429 Requirements for separating 

RINs from volumes of renewable fuel. 

* * * * * 


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(b) * * * 

(9) Except as provided in paragraphs 

(b)(2) through (5) and (8) of this section, 

parties whose non-export renewable 

volume obligations are solely related to 

the importation of products listed in 

§ 80.1407(c) or (e), the addition of 

blendstocks into a volume of finished 

gasoline, finished diesel fuel, or BOB, or 

that incur a renewable volume 

obligation (RVO) under § 80.1408, can 

only separate RINs from volumes of 

renewable fuel if the number of gallonRINs separated in a calendar year is less 

than or equal to a limit set as follows: 

* * * * * 

■ 13. Amend § 80.1430 by revising 

paragraph (e)(2) to read as follows: 

§ 80.1430 Requirements for exporters of 

renewable fuels. 

* * * * * 

(e) * * * 

(2) Determination of the renewable 

portion of the blend using Method B or 

Method C of ASTM D6866 (incorporated 

by reference, see § 80.1468), or an 

alternative test method as approved by 

the EPA. 

* * * * * 

■ 14. Amend § 80.1431 by adding 

paragraph (a)(3) to read as follows: 

§ 80.1431 Treatment of invalid RINs. 

(a) * * * 

(3) If any RIN generated for a batch of 

renewable fuel produced using a 

biointermediate is invalid, then all RINs 

generated for that batch of renewable 

fuel are deemed invalid, unless EPA in 

its sole discretion determines that some 

portion of those RINs are valid. 

* * * * * 

§ 80.1435 [Amended] 

■ 15. Amend § 80.1435(a)(4) by 

removing ‘‘§ 80.1454(u)’’ and adding 

‘‘§ 80.1454(p)’’ in its place. 

■ 16. Amend § 80.1449 by revising 

paragraph (a)(4)(iii) to read as follows: 

§ 80.1449 What are the Production Outlook 

Report requirements? 

(a) * * * 

(4) * * * 

(iii) Feedstocks, biointermediates, and 

production processes to be used at each 

production facility. 

* * * * * 

■ 17. Amend § 80.1450 by: 

■ a. Revising paragraphs (b) 

introductory text, (b)(1) introductory 

text, (b)(1)(i), and (b)(1)(ii) introductory 

text; 

■ b. Adding paragraph (b)(1)(ii)(B); 

■ c. Revising paragraphs (b)(1)(iii), 

(b)(1)(iv)(A)(1) and (2), (b)(1)(iv)(B)(3), 

(b)(1)(v)(B) and (C), (b)(1)(vii)(A) 

introductory text, (b)(1)(vii)(B) 

introductory text, (b)(1)(viii) 

introductory text, (b)(1)(viii)(B)(1) 

through (3), (b)(1)(xii) introductory text, 

(b)(1)(xii)(B), (b)(1)(xii)(C) introductory 

text, (b)(1)(xiii)(A), (b)(1)(xiii)(B) 

introductory text, (b)(1)(xiii)(B)(1) and 

(5), and (b)(1)(xv) introductory text; 

■ d. Adding paragraph (b)(1)(xvi); 

■ e. Revising paragraphs (b)(2)(i)(A) and 

(B), (b)(2)(ii)(A) through (C), (b)(2)(iv), 

and (d); 

■ f. Adding a heading to paragraph (g); 

and 

■ g. Revising the second sentence of 

paragraph (g) introductory text, 

paragraphs (g)(5) through (7) and (9) and 

(g)(10)(ii), the second sentence of 

paragraph (g)(11)(ii), (h)(1)(i), and the 

last sentence of paragraph (h)(2)(i). 

The revisions and additions read as 

follows: 

§ 80.1450 What are the registration 

requirements under the RFS program? 

* * * * * 

(b) Producers. Any RIN-generating 

foreign producer, any non-RINgenerating foreign producer, any 

domestic renewable fuel producer that 

generates RINs, or any biointermediate 

producer that transfers any 

biointermediate for the production of a 

renewable fuel for RIN generation, must 

provide EPA the information specified 

under 40 CFR 1090.805 if such 

information has not already been 

provided under the provisions of this 

part, and must receive EPA-issued 

company and facility identification 

numbers prior to the generation of any 

RINs for their fuel or for fuel made with 

their ethanol, or prior to the transfer of 

any biointermediate to be used in the 

production of a renewable fuel for 

which RINs may be generated. Unless 

otherwise specifically indicated, all the 

following registration information must 

be submitted to EPA at least 60 days 

prior to the intended generation of RINs 

or the intended transfer of any 

biointermediate to be used in the 

production of a renewable fuel for 

which RINs may be generated. 

Renewable fuel producers may generate 

RINs for a renewable fuel under this 

part after EPA has accepted their 

registration and they have met all other 

applicable requirements under this part. 

(1) A description of the types of 

renewable fuels, ethanol, or 

biointermediates that the producer 

intends to produce at the facility and 

that the facility is capable of producing 

without significant modifications to the 

existing facility. For each type of 

renewable fuel, ethanol, or 

biointermediate the renewable fuel 

producer or foreign ethanol producer 

must also provide all the following: 

(i)(A) A list of all the feedstocks and 

biointermediates the facility intends to 

utilize without significant modification 

to the existing facility. 

(B) A description of the type(s) of 

renewable biomass that will be used as 

feedstock material to produce the 

biointermediate, if applicable. 

(C) A list of the EPA-issued company 

and facility registration numbers of all 

biointermediate producers and 

biointermediate production facilities 

that will supply biointermediates for 

renewable fuel production. 

(ii) A description of the facility’s 

renewable fuel, ethanol, or 

biointermediate production processes, 

including: 

* * * * * 

(B) For registrations indicating the 

production of any biointermediate, the 

biointermediate producer must provide 

all of the following: 

(1) For each biointermediate 

production facility, the company name, 

EPA company registration number, and 

EPA facility registration number of the 

renewable fuel producer and renewable 

fuel production facility at which the 

biointermediate produced from the 

biointermediate production facility will 

be transferred and used. 

(2) Copies of documents and 

corresponding calculations 

demonstrating production capacity of 

each biointermediate produced at the 

biointermediate production facility. 

(3) For each type of feedstock that the 

biointermediate producer intends to 

process the biointermediate producer 

must provide all the following: 

(i) A list of all the feedstocks the 

facility intends to utilize without 

significant modification to the existing 

facility. 

(ii) A description of the type(s) of 

renewable biomass that will be used as 

feedstock material to produce the 

biointermediate. 

(4) The approved pathway(s) that the 

biointermediate could be used in to 

produce renewable fuel. 

(iii) The type(s) of co-products 

produced with each type of renewable 

fuel, ethanol, or biointermediate. 

(iv) * * * 

(A) * * * 

(1) Each type of process heat fuel used 

at the facility to produce the renewable 

fuel, ethanol, or biointermediate. 

(2) The name and address of the 

company supplying each process heat 

fuel to the renewable fuel facility, 

foreign ethanol facility, or 

biointermediate production facility. 

(B) * * * 


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(3) An affidavit from the biogas 

supplier stating its intent to supply 

biogas to the renewable fuel producer, 

foreign ethanol producer, or 

biointermediate producer, and the 

quantity and energy content of the 

biogas that it intends to provide to the 

renewable fuel producer or foreign 

ethanol producer. 

(v) * * * 

(B) For facilities claiming the 

exemption described in § 80.1403(c) or 

(d): 

(1) Applicable air permits issued by 

EPA, state, local air pollution control 

agencies, or foreign governmental 

agencies that govern the construction 

and/or operation of the renewable fuel 

facility that were: 

(i) Issued or revised no later than 

December 19, 2007, for facilities 

described in § 80.1403(c); or 

(ii) Issued or revised no later than 

December 31, 2009, for facilities 

described in § 80.1403(d). 

(2) If the air permits specified in 

paragraph (b)(1)(v)(B)(1) of this section 

do not specify the maximum rated 

annual volume output of renewable 

fuel, copies of documents demonstrating 

the facility’s actual peak capacity. 

(C) For facilities not claiming the 

exemption described in § 80.1403(c) or 

(d) and that are exempt from air permit 

requirements or for which the maximum 

rated annual volume output of 

renewable fuel is not specified in their 

air permits, appropriate documentation 

demonstrating the facility’s actual peak 

capacity or nameplate capacity. 

* * * * * 

(vii)(A) For a renewable fuel 

producer, foreign ethanol producer, or 

biointermediate producer using 

separated yard waste: 

* * * * * 

(B) For a renewable fuel producer, 

foreign ethanol producer, or 

biointermediate producer using 

separated food waste: 

* * * * * 

(viii) For a renewable fuel producer, 

foreign ethanol producer, or 

biointermediate producer using 

separated municipal solid waste: 

* * * * * 

(B) * * * 

(1) Extent and nature of recycling that 

occurred prior to receipt of the waste 

material by the renewable fuel producer, 

foreign ethanol producer, or 

biointermediate producer; 

(2) Identification of available 

recycling technology and practices that 

are appropriate for removing recycling 

materials from the waste stream by the 

fuel producer, foreign ethanol producer, 

or biointermediate producer; and 

(3) Identification of the technology or 

practices selected for implementation by 

the fuel producer, foreign ethanol 

producer, or biointermediate producer 

including an explanation for such 

selection, and reasons why other 

technologies or practices were not. 

* * * * * 

(xii) For a producer or importer of any 

renewable fuel other than ethanol, 

biodiesel, renewable gasoline, 

renewable diesel that meets the Grade 

No. 1–D or No. 2–D specification in 

ASTM D975 (incorporated by reference, 

see § 80.1468), biogas, or renewable 

electricity, all the following: 

* * * * * 

(B) A statement regarding whether the 

renewable fuel producer or importer 

will blend the renewable fuel into 

gasoline or diesel fuel or enter into a 

written contract for the sale and use of 

a specific quantity of the renewable fuel 

with a party who blends the fuel into 

gasoline or distillate fuel to produce a 

transportation fuel, heating oil, or jet 

fuel that meets all applicable standards 

under this part and 40 CFR part 1090. 

(C) If the renewable fuel producer or 

importer enters into a written contract 

for the sale and use of a specific 

quantity of the renewable fuel with a 

party who blends the fuel into gasoline 

or distillate fuel to produce a 

transportation fuel, heating oil, or jet 

fuel, provide all the following: 

* * * * * 

(xiii)(A) A renewable fuel producer 

seeking to generate D code 3 or D code 

7 RINs, a foreign ethanol producer 

seeking to have its product sold as 

cellulosic biofuel after it is denatured, 

or a biointermediate producer seeking to 

have its biointermediate made into 

cellulosic biofuel, who intends to 

produce a single type of fuel using two 

or more feedstocks converted 

simultaneously, where at least one of 

the feedstocks does not have a 

minimum 75% average adjusted 

cellulosic content, and who uses only a 

thermochemical process to convert 

feedstock into renewable fuel, must 

provide all the following: 

(1) Data showing the average adjusted 

cellulosic content of the feedstock(s) to 

be used to produce fuel or 

biointermediate, based on the average of 

at least three representative samples. 

Cellulosic content data must come from 

an analytical method certified by a 

voluntary consensus standards body or 

using a method that would produce 

reasonably accurate results as 

demonstrated through peer reviewed 

references provided to the third party 

engineer performing the engineering 

review at registration. Samples must be 

of representative feedstock from the 

primary feedstock supplier that will 

provide the renewable fuel or 

biointermediate producer with 

feedstock subsequent to registration. 

(2) For renewable fuel and 

biointermediate producers who want to 

use a new feedstock(s) after initial 

registration, updates to their registration 

under paragraph (d) of this section 

indicating the average adjusted 

cellulosic content of the new feedstock. 

(3) For renewable fuel producers 

already registered as of August 18, 2014, 

to produce a single type of fuel that 

qualifies for D code 3 or D code 7 RINs 

(or would do so after denaturing) using 

two or more feedstocks converted 

simultaneously using only a 

thermochemical process, the 

information specified in this paragraph 

(b)(1)(xiii)(A) shall be provided at the 

next required registration update under 

paragraph (d) of this section. 

(B) A renewable fuel producer seeking 

to generate D code 3 or D code 7 RINs, 

a foreign ethanol producer seeking to 

have its product sold as cellulosic 

biofuel after it is denatured, or a 

biointermediate producer seeking to 

have its biointermediate made into 

cellulosic biofuel, who intends to 

produce a single type of fuel using two 

or more feedstocks converted 

simultaneously, where at least one of 

the feedstocks does not have a 

minimum 75% adjusted cellulosic 

content, and who uses a process other 

than a thermochemical process or a 

combination of processes to convert 

feedstock into renewable fuel or 

biointermediate, must provide all the 

following: 

(1) The expected overall fuel or 

biointermediate yield, calculated as the 

total volume of fuel produced per batch 

(e.g., cellulosic biofuel plus all other 

fuel) divided by the total feedstock mass 

per batch on a dry weight basis (e.g., 

cellulosic feedstock plus all other 

feedstocks). 

* * * * * 

(5) For renewable fuel producers 

already registered as of August 18, 2014, 

to produce a single type of fuel that 

qualifies for D code 3 or D code 7 RINs 

(or would do so after denaturing) using 

two or more feedstocks converted 

simultaneously using a combination of 

processes or a process other than a 

thermochemical process, the 

information specified in this paragraph 

(b)(1)(xiii)(B) shall be provided at the 

next required registration update under 

paragraph (d) of this section. 

* * * * * 

(xv) For a producer of cellulosic 

biofuel made from crop residue, a 


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foreign ethanol producer making 

ethanol from crop residue and seeking 

to have it sold after denaturing as 

cellulosic biofuel, or a biointermediate 

producer producing a biointermediate 

for use in the production of a cellulosic 

biofuel made from crop residue, provide 

all the following information: 

* * * * * 

(xvi) For FFA feedstock, the 

biointermediate producer must provide 

a description of how the 

biointermediate producer will 

determine FFA concentration. 

(2) * * * 

(i) * * * 

(A) For a domestic renewable fuel 

production facility, a foreign ethanol 

production facility, or a biointermediate 

production facility, a professional 

engineer who is licensed by an 

appropriate state agency in the United 

States, with professional work 

experience in the chemical engineering 

field or related to renewable fuel 

production. 

(B) For a foreign renewable fuel or 

foreign biointermediate production 

facility, an engineer who is a foreign 

equivalent to a professional engineer 

licensed in the United States with 

professional work experience in the 

chemical engineering field or related to 

renewable fuel production. 

(ii) * * * 

(A) The third-party shall not be 

operated by the renewable fuel 

producer, foreign ethanol producer, or 

biointermediate producer, or any 

subsidiary or employee of the renewable 

fuel producer foreign ethanol producer, 

or biointermediate producer. 

(B) The third-party shall be free from 

any interest in the renewable fuel 

producer, foreign ethanol producer, or 

biointermediate producer’s business. 

(C) The renewable fuel producer, 

foreign ethanol producer, or 

biointermediate producer shall be free 

from any interest in the third-party’s 

business. 

* * * * * 

(iv) The renewable fuel producer, 

foreign ethanol producer, or 

biointermediate producer must retain 

records of the review and verification, 

as required in § 80.1454(b)(6) or (i)(4), as 

applicable. 

* * * * * 

(d) Registration updates. (1)(i)(A) Any 

renewable fuel producer or any foreign 

ethanol producer that makes changes to 

their facility that will allow them to 

produce renewable fuel or use a 

biointermediate that is not reflected in 

the producer’s registration information 

on file with EPA must update their 

registration information and submit a 

copy of an updated independent thirdparty engineering review on file with 

EPA at least 60 days prior to producing 

the new type of renewable fuel. 

(B) Any biointermediate producer 

who makes changes to their 

biointermediate production facility that 

will allow them to produce a 

biointermediate for use in the 

production of a renewable fuel that is 

not reflected in the biointermediate 

producer’s registration information on 

file with EPA must update their 

registration information and submit a 

copy of an updated independent thirdparty engineering review on file with 

EPA at least 60 days prior to producing 

the new biointermediate for use in the 

production of the renewable fuel. 

(ii) The renewable fuel producer, 

foreign ethanol producer, or 

biointermediate producer may also 

submit an addendum to the 

independent third-party engineering 

review on file with EPA provided the 

addendum meets all the requirements in 

paragraph (b)(2) of this section and 

verifies for EPA the most up-to-date 

information at the producer’s existing 

facility. 

(2)(i) Any renewable fuel producer or 

any foreign ethanol producer that makes 

any other changes to a facility that will 

affect the producer’s registration 

information but will not affect the 

renewable fuel category for which the 

producer is registered per paragraph (b) 

of this section must update their 

registration information 7 days prior to 

the change. 

(ii)(A) Any biointermediate producer 

that makes any other changes to a 

biointermediate production facility that 

will affect the biointermediate 

producer’s registration must update 

their registration information 7 days 

prior to the change. 

(B)(1) Any biointermediate producer 

that intends to change the designated 

renewable fuel production facility under 

paragraph (b)(1)(ii)(B)(1) of this section 

for one of its biointermediate 

production facilities must update their 

registration information with EPA at 

least 30 days prior to transferring the 

biointermediate to the newly designated 

renewable fuel production facility. 

(2) A biointermediate producer may 

only change the designated renewable 

fuel production facility under paragraph 

(b)(1)(ii)(B)(1) of this section for each 

biointermediate production facility one 

time per calendar year unless EPA, in its 

sole discretion, allows the 

biointermediate producer to change the 

designated renewable fuel production 

facility more frequently. 

(3) All renewable fuel producers, 

foreign ethanol producers, and 

biointermediate producers must update 

registration information and submit an 

updated independent third-party 

engineering review according to the 

schedule in paragraph (d)(3)(i) or (ii) of 

this section, and include the 

information specified in paragraph 

(d)(3)(iii) or (iv) of this section, as 

applicable: 

(i) For all renewable fuel producers 

and foreign ethanol producers registered 

in calendar year 2010, the updated 

registration information and 

independent third-party engineering 

review must be submitted to EPA by 

January 31, 2013, and by January 31 of 

every third calendar year thereafter; or 

(ii) For all renewable fuel producers, 

foreign ethanol producers, and 

biointermediate producers registered in 

any calendar year after 2010, the 

updated registration information and 

independent third-party engineering 

review must be submitted to EPA by 

January 31 of every third calendar year 

after the first year of registration. 

(iii) For all renewable fuel producers, 

in addition to conducting the 

engineering review and written report 

and verification required by paragraph 

(b)(2) of this section, the updated 

independent third-party engineering 

review must include a detailed review 

of the renewable fuel producer’s 

calculations used to determine VRIN of 

a representative sample of batches of 

each type of renewable fuel produced 

since the last registration. The 

representative sample must be selected 

in accordance with the sample size 

guidelines set forth at 40 CFR 

1090.1805. 

(iv) For biointermediate producers, in 

addition to conducting the engineering 

review and written report and 

verification required by paragraph (b)(2) 

of this section, the updated independent 

third-party engineering review must 

include a detailed review of the 

biointermediate producer’s calculations 

used to determine the renewable 

biomass and cellulosic renewable 

biomass proportions, as required to be 

reported to EPA under § 80.1451(j), of a 

representative sample of batches of each 

type of biointermediate produced since 

the last registration. The representative 

sample must be selected in accordance 

with the sample size guidelines set forth 

at 40 CFR 1090.1805. 

* * * * * 

(g) Independent third-party auditors. 

* * * Registration information must be 

submitted at least 30 days prior to 

conducting audits of renewable fuel 

production or biointermediate 

production facilities. * * * 

* * * * * 


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(5) List of audited producers. Name, 

address, and company and facility 

identification numbers of all renewable 

fuel production or biointermediate 

production facilities that the 

independent third-party auditor intends 

to audit under § 80.1472. 

(6) Audited producer associations. An 

affidavit, or electronic consent, from 

each renewable fuel producer, foreign 

renewable fuel producer, or 

biointermediate producer stating its 

intent to have the independent thirdparty auditor conduct a quality 

assurance audit of any of the renewable 

fuel producer’s or foreign renewable 

fuel producer’s facilities. 

(7) Independence affidavits. An 

affidavit stating that an independent 

third-party auditor and its contractors 

and subcontractors are independent, as 

described in § 80.1471(b), of any 

renewable fuel producer, foreign 

renewable fuel producer, or 

biointermediate producer. 

* * * * * 

(9) Registration updates. (i) Any 

independent third-party auditor who 

makes changes to its quality assurance 

plan(s) that will allow it to audit new 

renewable fuel production or 

biointermediate production facilities 

that is not reflected in the independent 

third-party auditor’s registration 

information on file with EPA must 

update its registration information and 

submit a copy of an updated QAP on 

file with EPA at least 60 days prior to 

auditing new renewable fuel production 

or biointermediate production facilities. 

(ii) Any independent third-party 

auditor who makes any changes other 

than those specified in paragraphs 

(g)(9)(i), (iii), and (iv) of this section that 

will affect the third-party auditor’s 

registration information must update its 

registration information 7 days prior to 

the change. 

(iii) Independent third-party auditors 

must update their QAPs at least 60 days 

prior to verifying RINs generated or 

biointermediate produced by a 

renewable fuel or biointermediate 

production facility, respectively, for a 

pathway not covered in the independent 

third-party auditor’s QAPs. 

(iv) Independent third-party auditors 

must update their QAPs at least 60 days 

prior to verifying RINs generated or 

biointermediate produced by any 

renewable fuel or biointermediate 

production facility not identified in the 

independent third-party auditor’s 

existing registration. 

(10) * * * 

(ii) The independent third-party 

auditor submits an affidavit affirming 

that he or she has only verified RINs 

and biointermediates using a QAP 

approved under § 80.1469, notified all 

appropriate parties of all potentially 

invalid RINs as described in 

§ 80.1471(d), and fulfilled all of his or 

her RIN replacement obligations under 

§ 80.1474. 

* * * * * 

(11) * * * 

(ii) * * * Communications should be 

sent to the EMTS support line 

(fuelsprogramsupport@epa.gov). * * * 

* * * * * 

(h) * * * 

(1) * * * 

(i) Unless the party is a 

biointermediate producer, the party has 

reported no activity in EMTS for 

twenty-four consecutive months. 

* * * * * 

(2) * * * 

(i) * * * The party will have 30 

calendar days from the date of the 

notification to correct the deficiencies 

identified or explain why there is no 

need for corrective action. 

* * * * * 

■ 18. Amend § 80.1451 by: 

■ a. Revising paragraphs (b)(1)(ii)(K) 

and (L), the first sentence of paragraph 

(b)(1)(ii)(R), (b)(1)(ii)(T), (b)(1)(ii)(U) 

introductory text, (g)(1)(i), (g)(1)(ii) 

introductory text, (g)(1)(ii)(A) through 

(C), (K), and (L), and (g)(2)(vii) and 

(viii); 

■ b. Redesignating paragraph (g)(2)(x) as 

paragraph (g)(2)(xi) and adding a new 

paragraph (g)(2)(x); and 

■ c. Redesignating paragraphs (j) and (k) 

as paragraphs (k) and (l) and adding a 

new paragraph (j). 

The revisions and additions read as 

follows: 

§ 80.1451 What are the reporting 

requirements under the RFS program? 

* * * * * 

(b) * * * 

(1) * * * 

(ii) * * * 

(K) The types and quantities of 

feedstocks and biointermediates used. 

(L) The process(es), feedstock(s), and 

biointermediate(s) used and proportion 

of renewable volume attributable to 

each process, feedstock, and 

biointermediate. 

* * * * * 

(R) Producers or importers of 

renewable fuel made from separated 

municipal solid waste must report the 

amount of paper, cardboard, plastics, 

rubber, textiles, metals, and glass 

separated from municipal solid waste 

for recycling. * * * 

* * * * * 

(T) Producers or importers of any 

renewable fuel other than ethanol, 

biodiesel, renewable gasoline, 

renewable diesel that meets the Grade 

No. 1–D or No. 2–D specification in 

ASTM D975 (incorporated by reference, 

see § 80.1468), biogas or renewable 

electricity, must report, on a quarterly 

basis, all the following for each volume 

of fuel: 

(1) Total volume of renewable fuel 

produced or imported, total volume of 

renewable fuel blended into gasoline 

and distillate fuel by the producer or 

importer, and the percentage of 

renewable fuel in each batch of finished 

fuel. 

(2) If the producer or importer 

generates RINs under 

§ 80.1426(f)(17)(i)(B)(2), report the 

name, location, and contract 

information for each party that 

purchased the renewable fuel. 

(U) Producers generating D code 3 or 

D code 7 RINs for fuel derived from 

feedstocks or biointermediates other 

than biogas (including through 

pathways listed in rows K, L, M, and N 

of Table 1 to § 80.1426), and that was 

produced from two or more feedstocks 

converted simultaneously, at least one 

of which has less than 75% average 

adjusted cellulosic content, and using a 

combination of processes or a process 

other than a thermochemical process or 

a combination of processes shall report 

all of the following: 

* * * * * 

(g) * * * 

(1)(i) RIN and biointermediate 

verification reports for each renewable 

fuel or biointermediate production 

facility audited by the independent 

third-party auditor shall be submitted 

according to the schedule specified in 

paragraph (f)(2) of this section. 

(ii) The RIN and biointermediate 

verification reports shall include all the 

following information for each batch of 

renewable fuel produced or imported 

verified per § 80.1469(c), where ‘‘batch’’ 

means a discrete quantity of renewable 

fuel produced or imported and assigned 

a unique batch-RIN per § 80.1426(d): 

(A) The RIN generator or 

biointermediate producer’s name. 

(B) The RIN generator or 

biointermediate producer’s EPA 

company registration number. 

(C) The renewable fuel or 

biointermediate producer’s EPA facility 

registration number. 

* * * * * 

(K) The volume and type of each 

feedstock and biointermediate used to 

produce the verified batch. 

(L) Whether the feedstocks and 

biointermediates used to produce each 

verified batch met the definition of 

renewable biomass. 

* * * * * 


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(2) * * * 

(vii) A list of all renewable fuel and 

biointermediate facilities including the 

EPA’s company and facility registration 

numbers audited under an approved 

quality assurance plan under § 80.1469 

along with the date the independent 

third-party auditor conducted the onsite visit and audit. 

(viii) Mass and energy balances 

calculated for each renewable fuel and 

biointermediate production facility 

audited under an approved quality 

assurance plan under § 80.1469. 

* * * * * 

(x) A list of all biointermediates that 

were identified as potentially 

improperly produced biointermediates 

under § 80.1477(d). 

* * * * * 

(j) Biointermediate producers. For 

each biointermediate production 

facility, any biointermediate producer 

must submit quarterly reports for 

biointermediate batch production to 

EPA containing all of the information in 

this paragraph (j). 

(1) Include all the following 

information for each batch of 

biointermediate produced: 

(i) The biointermediate producer’s 

name. 

(ii) The biointermediate producer’s 

EPA company registration number. 

(iii) The biointermediate producer’s 

EPA facility registration number. 

(iv) The applicable compliance 

period. 

(v) The production date. 

(vi) The batch number. 

(vii) For batches of biointermediates 

intended for use to produce cellulosic 

biofuels, the adjusted cellulosic content 

of each batch and certification that the 

cellulosic content of each batch was 

derived from cellulose, hemicellulose, 

or lignin that was derived from 

renewable biomass. 

(viii) The volume of each batch 

produced. 

(ix) The types and quantities of 

feedstocks used. 

(x) The renewable fuel type(s) each 

batch of biointermediate was designated 

to be used as a feedstock material for. 

(xi) The EPA company registration 

number and EPA facility registration 

number for each renewable fuel 

producer or foreign renewable fuel 

producer that received each batch. 

(xii) The percentage of each batch of 

biointermediate that met the definition 

of renewable biomass and certification 

that this portion of the batch of 

biointermediate was derived from 

renewable biomass. 

(xiii) The process(es) and feedstock(s) 

used and proportion of biointermediate 

volume attributable to each process and 

feedstock. 

(xiv) The type of co-products 

produced with each batch. 

(xv) The quantity of co-products 

produced in each quarter. 

(xvi) Any additional information the 

Administrator may require. 

(2) Quarterly reports under this 

paragraph (j) must be submitted 

according to the schedule in paragraph 

(f)(2) of this section. 

* * * * * 

■ 19. Amend § 80.1452 by redesignating 

paragraph (b)(16) as paragraph (b)(18) 

and adding new paragraphs (b)(16) and 

(17) to read as follows: 

§ 80.1452 What are the requirements 

related to the EPA Moderated Transaction 

System (EMTS)? 

* * * * * 

(b) * * * 

(16) The type and quantity of each 

biointermediate used for the batch, if 

applicable. 

(17) The EPA facility registration 

number of each biointermediate 

production facility at which a 

biointermediate used for the batch was 

produced, if applicable. 

* * * * * 

■ 20. Amend § 80.1453 by adding 

paragraph (f) to read as follows: 

§ 80.1453 What are the product transfer 

document (PTD) requirements for the RFS 

program? 

* * * * * 

(f)(1) On each occasion when any 

party transfers title or custody of a 

biointermediate, the transferor must 

provide to the transferee documents that 

include all of the following information: 

(i) The name and address of the 

transferor and transferee. 

(ii) The transferor’s and transferee’s 

EPA company registration and 

applicable facility registration numbers. 

(iii) The volume of biointermediate 

that is being transferred. 

(iv) The date of the transfer. 

(v) The location of the 

biointermediate at the time of the 

transfer. 

(vi) The following statement 

designating the volume of 

biointermediate as feedstock for the 

production of a renewable fuel: ‘‘This 

volume is designated and intended for 

use as biointermediate in the production 

of renewable fuel as defined in 40 CFR 

80.1401. Parties may not generate RINs 

on this feedstock material and it must 

remain segregated from all products 

until received by a designated 

renewable fuel production facility.’’ 

(2) In addition to the information 

specified in paragraph (f)(1) of this 

section, on each occasion when any 

party transfers title of a biointermediate 

or when any party transfers a 

biointermediate to a renewable fuel 

production facility, the transferor must 

provide to the transferee documents that 

include all of the following information: 

(i) The renewable fuel type the 

biointermediate was designated to be 

used as a feedstock material for by the 

biointermediate producer under 

§ 80.1476(i). 

(ii) The composition of the 

biointermediate being transferred, 

including: 

(A) The type and quantity of each 

feedstock that was used to make the 

biointermediate. 

(B) The percentage of each feedstock 

that is renewable biomass, rounded to 

two decimal places. 

(C) For a biointermediate that 

contains both renewable and nonrenewable feedstocks: 

(1) The percentage of each feedstock 

that is not renewable biomass, rounded 

to two decimal places. 

(2) The feedstock energy from the 

renewable biomass used to make the 

biointermediate, in Btu. 

(3) The feedstock energy from the 

non-renewable biomass used to make 

the biointermediate, in Btu. 

(4) The total percentage of the 

biointermediate that may generate RINs, 

rounded to two decimal places. 

(5) The total percentage of the 

biointermediate that may not generate 

RINs, rounded to two decimal places. 

(D) For a biointermediate that 

contains cellulosic material: 

(1) The percentage of each feedstock 

that is cellulosic, rounded to two 

decimal places. 

(2) The percentage of each feedstock 

that is non-cellulosic, rounded to two 

decimal places, if applicable. 

(3) If the biointermediate is intended 

for use in the production of a cellulosic 

biofuel, the total percentage of the 

biointermediate that may generate 

cellulosic RINs, rounded to two decimal 

places. 

(4) For separated municipal solid 

waste, the cellulosic portion of the 

biointermediate is equivalent to the 

biogenic portion. 

(5) For separated food waste, the noncellulosic percentage is assumed to be 

zero percent unless it is demonstrated to 

be partially cellulosic. 

(6) For separated yard waste, 100% of 

separated yard waste is deemed to be 

cellulosic. 

(7) The following statement: ‘‘I certify 

that the cellulosic content of this 

feedstock was derived from cellulose, 

hemicellulose, or lignin that was 

derived from renewable biomass.’’ 


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(iii) Copies of records specified in 

§ 80.1454(i)(3), (5), and (6) for the 

volume being transferred, as applicable. 

■ 21. Amend § 80.1454 by: 

■ a. Redesignating paragraphs (b)(3)(vii) 

through (xii) as paragraphs (b)(3)(viii) 

through (xiii), respectively, and adding 

a new paragraph (b)(3)(vii); 

■ b. Revising paragraph (b)(6), the first 

sentence of paragraph (d)(4), and 

paragraphs (i) and (j) introductory text; 

■ c. Adding a heading to paragraph (k); 

■ d. Revising paragraphs (l) 

introductory text and (l)(1); 

■ e. Redesignating paragraph (l)(3) as 

paragraph (l)(4) and adding a new 

paragraph (l)(3); 

■ f. Revising the first sentence of 

paragraph (m) introductory text; 

■ g. Redesignating paragraph (m)(10) as 

paragraph (m)(11) and adding a new 

paragraph (m)(10); 

■ h. Removing paragraphs (n) through 

(q); 

■ i. Redesignating paragraphs (s) 

through (v) as paragraphs (n) through 

(q); 

■ j. Revising newly redesignated 

paragraph (n) introductory text; 

■ k. Revising paragraph (r); 

■ l. Adding new paragraphs (s) through 

(v); and 

■ m. Removing paragraph (w). 

The revisions and additions read as 

follows: 

§ 80.1454 What are the recordkeeping 

requirements under the RFS program? 

* * * * * 

(b) * * * 

(3) * * * 

(vii) Type and quantity of 

biointermediates used. 

* * * * * 

(6) Copies of registration documents 

required under § 80.1450, including 

information on fuels and products, 

feedstocks, biointermediates, facility 

production processes, process changes, 

and capacity, energy sources, and a 

copy of the independent third party 

engineering review report submitted to 

EPA per § 80.1450(b)(2). 

* * * * * 

(d) * * * 

(4) Domestic producers of renewable 

fuel or biointermediates made from any 

other type of renewable biomass must 

have documents from their feedstock 

supplier certifying that the feedstock 

qualifies as renewable biomass, 

describing the feedstock. * * * 

* * * * * 

(i) Requirements for biointermediate 

producers. In addition to any other 

applicable records a biointermediate 

producer must maintain under this 

section, any biointermediate producer 

producing a biointermediate must keep 

all of the following records: 

(1) Product transfer documents 

consistent with § 80.1453(f) and 

associated with the biointermediate 

producer’s activities, if any, as 

transferor or transferee of 

biointermediates. 

(2) Copies of all reports submitted to 

EPA under § 80.1451(i). 

(3) Records related to the production 

of biointermediates for each 

biointermediate production facility, 

including all of the following: 

(i) Batch volume. 

(ii) Batch number. 

(iii) Type and quantity of co-products 

produced. 

(iv) Type and quantity of feedstocks 

used. 

(v) Type and quantity of fuel used for 

process heat. 

(vi) Calculations per § 80.1426(f), as 

applicable. 

(vii) Date of production. 

(viii) Results of any laboratory 

analysis of batch chemical composition 

or physical properties. 

(4) Copies of registration documents 

required under § 80.1450, including 

information on products, feedstocks, 

facility production processes, process 

changes, and capacity, energy sources, 

and a copy of the independent third 

party engineering review submitted to 

EPA per § 80.1450(b)(2)(i). 

(5) Records demonstrating that 

feedstocks are renewable biomass, as 

required under paragraphs (d), (g), (h), 

and (j) of this section, as applicable. 

(6) For any biointermediate made 

from Arundo donax or Pennisetum 

purpureum per § 80.1426(f)(14), all 

applicable records described in 

paragraph (b)(7) of this section. 

(7) Records, including contracts, 

related to the implementation of a QAP 

under §§ 80.1469 and 80.1477. 

(j) Additional requirements for 

producers that use separated yard 

waste, separate food waste, separated 

municipal solid waste, or biogenic waste 

oils/fats/greases. A renewable fuel or 

biointermediate producer that produces 

fuel or biointermediate from separated 

yard waste, separated food waste, 

separated municipal solid waste, or 

biogenic waste oils/fats/greases must 

keep all the following additional 

records: 

* * * * * 

(k) Additional requirements for 

producers of renewable fuel using 

biogas. * * * 

* * * * * 

(l) Additional requirements for 

producers or importers of any renewable 

fuel other than ethanol, biodiesel, 

renewable gasoline, renewable diesel, 

biogas, or renewable electricity. A 

renewable fuel producer that generates 

RINs for any renewable fuel other than 

ethanol, biodiesel, renewable gasoline, 

renewable diesel that meets the Grade 

No. 1–D or No. 2–D specification in 

ASTM D975 (incorporated by reference, 

see § 80.1468), biogas or renewable 

electricity shall keep all of the following 

additional records: 

(1) Documents demonstrating the total 

volume of renewable fuel produced, 

total volume of renewable fuel blended 

into gasoline and distillate fuel, and the 

percentage of renewable fuel in each 

batch of finished fuel. 

* * * * * 

(3) For each batch of renewable fuel 

that generated RINs under 

§ 80.1426(f)(17)(i)(B)(2), one or more 

affidavits from the party that blended or 

used the renewable fuel that includes all 

the following information: 

(i) Quantity of renewable fuel 

received from the producer or importer. 

(ii) Date the renewable fuel was 

received from producer. 

(iii) A description of the fuel that the 

renewable fuel was blended into and the 

blend ratios for each batch, if 

applicable. 

(iv) A description of the finished fuel, 

and a statement that the fuel meets all 

applicable standards and was sold for 

use as a transportation fuel, heating oil 

or jet fuel. 

(v) Quantity of assigned RINs received 

with the renewable fuel, if applicable. 

(vi) Quantity of assigned RINs that the 

end user separated from the renewable 

fuel, if applicable. 

* * * * * 

(m) Requirements for independent 

third-party auditors. * * * 

(10) Copies of all reports required 

under § 80.1464. 

* * * * * 

(n) Additional requirements for 

producers of renewable fuel using crop 

residue. Producers of renewable fuel 

using crop residue must keep records of 

all of the following: 

* * * * * 

(r) Transaction requirement. 

Beginning July 1, 2010, all parties must 

keep transaction information sent to 

EMTS in addition to other records 

required under this section. 

(1) For buy or sell transactions of 

separated RINs, parties must retain 

records substantiating the price reported 

to EPA under § 80.1452. 

(2) For buy or sell transactions of 

separated RINs on or after January 1, 

2020, parties must retain records 

demonstrating the transaction 

mechanism (e.g., spot market or 

fulfilling a term contract). 


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(s) Record retention requirement. (1) 

The records required under paragraphs 

(a) through (d), (f) through (l), (n), and 

(r) of this section and under § 80.1453 

must be kept for five years from the date 

they were created, except that records 

related to transactions involving RINs 

must be kept for five years from the date 

of the RIN transaction. 

(2) The records required under 

paragraph (e) of this section must be 

kept through calendar year 2022. 

(t) Record availability requirement. 

On request by the EPA, the records 

required under this section and under 

§ 80.1453 must be made available to the 

Administrator or the Administrator’s 

authorized representative. For records 

that are electronically generated or 

maintained, the equipment or software 

necessary to read the records shall be 

made available; or, if requested by the 

EPA, electronic records shall be 

converted to paper documents. 

(u) Record transfer requirement. The 

records required in paragraphs (b)(3) 

and (c)(1) of this section must be 

transferred with any renewable fuel sent 

to the importer of that renewable fuel by 

any non-RIN-generating foreign 

producer. 

(v) English language records. Any 

document requested by the 

Administrator under this section must 

be submitted in English or must include 

an English translation. 

■ 22. Amend § 80.1460 by revising 

paragraphs (b)(5) and (6) and adding 

paragraphs (b)(8) and (k) to read as 

follows: 

§ 80.1460 What acts are prohibited under 

the RFS program? 

* * * * * 

(b) * * * 

(5) Introduce into commerce any 

renewable fuel produced from a 

feedstock, biointermediate, or through a 

process that is not described in the 

person’s registration information. 

(6) Generate a RIN for fuel for which 

RINs have previously been generated 

unless the RINs were generated under 

§ 80.1426(c)(6). 

* * * * * 

(8) Generate a RIN for fuel that was 

produced from a biointermediate for 

which the fuel and biointermediate 

were not audited under an EPAapproved quality assurance plan. 

* * * * * 

(k) Biointermediate-related violations. 

No person may do any of the following: 

(1) Introduce into commerce for use in 

the production of a renewable fuel any 

biointermediate produced from a 

feedstock or through a process that is 

not described in the person’s 

registration information. 

(2) Produce a renewable fuel at more 

than one facility unless the person uses 

a biointermediate or the renewable 

biomass is not substantially altered. 

Form changes of renewable biomass 

such as bleaching through adsorption, 

rendering fats, chopping, crushing, 

grinding, pelletizing, filtering, 

compacting/compression, centrifuging, 

degumming, dewatering/drying, 

melting, triglycerides resulting from 

deodorizing, or the addition of water to 

produce a slurry do not constitute 

substantial alteration. 

(3) Transfer a biointermediate from a 

biointermediate production facility to a 

facility other than the renewable fuel 

production facility specified in the 

biointermediate producer’s registration 

under § 80.1450(b)(1)(ii)(B)(1). 

(4) Isolate or concentrate noncharacteristic components of the 

feedstock to yield a biointermediate not 

identified in a registration accepted by 

EPA. 

(5) No person may transfer a 

biointermediate without complying 

with the PTD requirements in 

§ 80.1453(f) 

■ 23. Amend § 80.1461 by revising 

paragraphs (a)(1) and (2) and adding 

paragraph (e) to read as follows: 

§ 80.1461 Who is liable for violations 

under the RFS program? 

(a) * * * 

(1) Any person who violates a 

prohibition under § 80.1460(a) through 

(d) or (g) through (k) is liable for the 

violation of that prohibition. 

(2) Any person who causes another 

person to violate a prohibition under 

§ 80.1460(a) through (d) or (g) through 

(k) is liable for a violation of 

§ 80.1460(e). 

* * * * * 

(e) Biointermediate liability. When a 

biointermediate contained in any 

storage tank at any facility owned, 

leased, operated, controlled, or 

supervised by any biointermediate 

producer, biointermediate importer, 

renewable fuel producer, or foreign 

ethanol producer is found in violation 

of a prohibition described in 

§ 80.1460(k)(1) and (3), the following 

persons shall be deemed in violation: 

(1) Each biointermediate producer, 

biointermediate importer, renewable 

fuel producer, renewable fuel importer, 

or foreign ethanol producer who owns, 

leases, operates, controls, or supervises 

the facility where the violation is found. 

(2) Each biointermediate producer, 

biointermediate importer, renewable 

fuel producer, renewable fuel importer, 

or foreign ethanol producer who 

manufactured, imported, sold, offered 

for sale, dispensed, offered for supply, 

stored, transported, or caused the 

transportation of any biointermediate 

that is in the storage tank containing the 

biointermediate found to be in violation. 

(3) Each carrier who dispensed, 

supplied, stored, or transported any 

biointermediate that was in the storage 

tank containing the biointermediate 

found to be in violation, provided that 

EPA demonstrates, by reasonably 

specific showings using direct or 

circumstantial evidence, that the carrier 

caused the violation. 

■ 24. Amend § 80.1463 by revising 

paragraph (d) to read as follows: 

§ 80.1463 What penalties apply under the 

RFS program? 

* * * * * 

(d) Any person liable under 

§ 80.1461(a) for a violation of 

§ 80.1460(b)(1) through (4) or (6) 

through (8) is subject to a separate day 

of violation for each day that an invalid 

RIN remains available for an obligated 

party or exporter of renewable fuel to 

demonstrate compliance with the RFS 

program. 

■ 25. Amend § 80.1464 by: 

■ a. Removing ‘‘§ 80.127’’ everywhere it 

appears and adding ‘‘40 CFR 

1090.1805’’ in its place; 

■ b. Revising paragraph (a)(3)(ii); 

■ c. Adding paragraph (a)(7); 

■ d . Revising paragraph (b)(1)(v)(A); 

■ e. Adding paragraph (b)(1)(v)(C); 

■ f. Revising paragraphs (b)(3)(ii) and 

(b)(4)(i); 

■ g. Adding paragraphs (b)(4)(iii) and 

(b)(8); 

■ h. Revising paragraphs (c) 

introductory text and (c)(2)(ii); 

■ i. Adding paragraphs (c)(6) and (7) 

and (h); and 

■ j. Revising the heading of paragraph 

(i)(1), paragraphs (i)(1)(i) and (iii), the 

heading of paragraph (i)(2), and 

paragraphs (i)(2)(i) and (ii). 

The revisions and additions read as 

follows: 

§ 80.1464 What are the attest engagement 

requirements under the RFS program? 

* * * * * 

(a) * * * 

(3) * * * 

(ii) Obtain the database, spreadsheet, 

or other documentation used to generate 

the information in the RIN activity 

reports; compare the RIN transaction 

samples reviewed under paragraph 

(a)(2) of this section with the 

corresponding entries in the database or 

spreadsheet and report as a finding any 

discrepancies; compute the total 

number of current-year and prior-year 

RINs owned at the start and end of each 

quarter, and for parties that reported 

RIN activity for RINs assigned to a 


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volume of renewable fuel, the volume 

and type of renewable fuel owned at the 

end of each quarter, as represented in 

these documents; and state whether this 

information agrees with the party’s 

reports to EPA. 

* * * * * 

(7) Compliance reports. Compare the 

list of compliance reports submitted to 

EPA during the compliance period to 

the reporting requirements for the entity 

in § 80.1451. Report as a finding any 

reporting requirements that were not 

completed. 

(b) * * * 

(1) * * * 

(v)(A) Obtain documentation, as 

required under § 80.1451(b), (d), and (e), 

associated with feedstock and 

biointermediate purchases for a 

representative sample of feedstocks and 

biointermediates separately, selected in 

accordance with the guidelines in 40 

CFR 1090.1805, of renewable fuel 

batches produced or imported during 

the year being reviewed. 

* * * * * 

(C) Verify that biointermediates were 

properly identified in the reports, as 

applicable. 

* * * * * 

(3) * * * 

(ii) Obtain the database, spreadsheet, 

or other documentation used to generate 

the information in the RIN activity 

reports; compare the RIN transaction 

samples reviewed under paragraph 

(b)(2) of this section with the 

corresponding entries in the database or 

spreadsheet and report as a finding any 

discrepancies; report the total number of 

each RIN generated during each quarter 

and compute and report the total 

number of current-year and prior-year 

RINs owned at the start and end of each 

quarter, and for parties that reported 

RIN activity for RINs assigned to a 

volume of renewable fuel, the volume of 

renewable fuel owned at the end of each 

quarter, as represented in these 

documents; and state whether this 

information agrees with the party’s 

reports to EPA. 

(4) * * * 

(i) Obtain documentation of 

independent third-party engineering 

reviews required under § 80.1450(b)(2). 

Such documentation must include the 

date of the last engineering review along 

with date of the actual site visit by the 

professional engineer. 

* * * * * 

(iii) Verify that independent thirdparty engineering reviews conducted 

under § 80.1450(d)(3) occurred within 

the three-year cycle. Report as a finding 

if the engineering review was not 

updated as part of the three-year cycle 

under § 80.1450(d)(3). 

* * * * * 

(8) Compliance reports. Compare the 

list of compliance reports submitted to 

EPA during the compliance period to 

the reporting requirements for the entity 

in § 80.1451. Report as a finding any 

reporting requirements that were not 

completed. 

(c) Other parties owning RINs. Except 

as specified in paragraph (c)(6) of this 

section, the following attest procedures 

must be completed for any party other 

than an obligated party or renewable 

fuel producer or importer that owns any 

RINs during a calendar year: 

* * * * * 

(2) * * * 

(ii) Obtain the database, spreadsheet, 

or other documentation used to generate 

the information in the RIN activity 

reports; compare the RIN transaction 

samples reviewed under paragraph 

(c)(1) of this section with the 

corresponding entries in the database or 

spreadsheet and report as a finding any 

discrepancies; compute the total 

number of current-year and prior-year 

RINs owned at the start and end of each 

quarter, and for parties that reported 

RIN activity for RINs assigned to a 

volume of renewable fuel, the volume of 

renewable fuel owned at the end of each 

quarter, as represented in these 

documents; and state whether this 

information agrees with the party’s 

reports to EPA. 

* * * * * 

(6) Low-volume RIN owner exemption. 

Any party who meets all the following 

criteria in a given compliance period is 

not required to submit an attest 

engagement for that compliance period: 

(i) The party must be solely registered 

as a party owning RINs (i.e., a ‘‘RIN 

Owner Only’’) and must not also be 

registered in any other role under 

§ 80.1450 (e.g., the party must not also 

be an obligated party, exporter of 

renewable fuel, renewable fuel 

producer, RIN generating importer, etc.). 

(ii) The party must have transacted 

(e.g., generated, bought, sold, separated, 

or retired) 10,000 or fewer RINs in the 

given compliance period. 

(iii) The party has not exceeded the 

RIN holding threshold(s) specified in 

§ 80.1435. 

(7) Compliance reports. Compare the 

list of compliance reports submitted to 

EPA during the compliance period to 

the reporting requirements for the entity 

in § 80.1451. Report as a finding any 

reporting requirements that were not 

completed. 

* * * * * 

(h) Biointermediate producers. The 

following attest reports must be 

completed for any biointermediate 

producer that produces a 

biointermediate in a compliance year: 

(1) Biointermediate production 

reports. (i) Obtain and read copies of the 

quarterly biointermediate production 

reports required under § 80.1451(i); 

compare the reported information to the 

requirements under § 80.1451(i); and 

report as a finding any missing or 

incomplete information in the reports. 

(ii) Obtain any database, spreadsheet, 

or other documentation used to generate 

the information in the biointermediate 

production reports; compare the 

corresponding entries in the database or 

spreadsheet and report as a finding any 

discrepancies. 

(iii) For a representative sample of 

biointermediate batches, selected in 

accordance with the guidelines in 40 

CFR 1090.1805, obtain records required 

under § 80.1454(i); compare these 

records to the corresponding batch 

entries in the reports procured in 

paragraph (h)(1)(i) of this section and 

report as a finding any discrepancies. 

(iv) Obtain the list of designated 

renewable fuel production facilities 

under § 80.1450(b)(1)(ii)(B)(1); compare 

the list of registered designated 

renewable fuel production facilities to 

those identified in the biointermediate 

production report; and report as a 

finding any discrepancies. 

(v) Provide the list of renewable fuel 

producers receiving any transfer of 

biointermediate batches and calculate 

the total volume from the batches 

received. 

(2) Independent third-party 

engineering review. (i) Obtain 

documentation of independent thirdparty engineering reviews required 

under § 80.1450(b)(2). 

(ii) Review and verify the written 

verification and records generated as 

part of the independent third-party 

engineering review. 

(iii) Provide the date of the 

submission of the last engineering 

review along with the date of the actual 

site visit by the professional engineer. 

Report as a finding if the engineering 

review was not updated as part of the 

three-year cycle under § 80.1450(d)(3). 

(iv) Compare and provide the total 

volume of produced biointermediate 

during the compliance year as compared 

to the production capacity stated in the 

engineering review and report as a 

finding if the volume of produced 

biointermediate is greater than the 

stated production capacity. 

(3) Product transfer documents. (i) 

Obtain contracts, invoices, or other 

documentation for each batch in the 


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representative sample under paragraph 

(h)(1)(iii) of this section and the 

corresponding copies of product transfer 

documents required under § 80.1453; 

compare the product transfer documents 

with the contracts and invoices and 

report as a finding any discrepancies. 

(ii) Verify that the product transfer 

documents obtained in paragraph 

(h)(3)(i) of this section contain the 

applicable information required under 

§ 80.1453 and report as a finding any 

product transfer document that does not 

contain the required information. 

(iii) Verify the accuracy of the 

information contained in the product 

transfer documents reviewed pursuant 

to paragraph (h)(3)(ii) of this section 

with the records obtained and reviewed 

under paragraph (h)(1)(iii) of this 

section and report as a finding any 

exceptions. 

(i) * * * 

(1) Comparing RIN and 

biointermediate verification reports with 

approved QAPs. (i) Obtain and read 

copies of reports required under 

§ 80.1451(g)(1). Compare the list of 

compliance reports submitted to EPA 

during the compliance period to the 

reporting requirements for the entity in 

§ 80.1451. Report as a finding any 

reporting requirements that were not 

completed. 

* * * * * 

(iii) Confirm that the independent 

third-party auditor only verified RINs 

and biointermediates covered by 

approved QAPs under § 80.1469. 

Identify as a finding any discrepancies. 

(2) Checking third-party auditor’s RIN 

and biointermediate verification. (i) 

Obtain and read copies of reports 

required under § 80.1451(g)(2). Compare 

the list of compliance reports submitted 

to EPA during the compliance period to 

the reporting requirements for the entity 

in § 80.1451. Report as a finding any 

reporting requirements that were not 

completed. 

(ii) Obtain all notifications of 

potentially invalid RINs and potentially 

improperly produced biointermediate 

submitted to the EPA under 

§§ 80.1474(b)(3) and 80.1477(d)(2) 

respectively. 

* * * * * 

■ 26. Revise § 80.1468 to read as 

follows: 

§ 80.1468 Incorporation by reference. 

(a) Certain material is incorporated by 

reference into this part with the 

approval of the Director of the Federal 

Register under 5 U.S.C. 552(a) and 1 

CFR part 51. All approved incorporation 

by reference (IBR) material is available 

for inspection at U.S. EPA and at the 

National Archives and Records 

Administration (NARA). Contact U.S. 

EPA at: U.S. EPA, Air and Radiation 

Docket and Information Center, WJC 

West Building, Room 3334, 1301 

Constitution Ave. NW, Washington, DC 

20460; (202) 566–1742. For information 

on the availability of this material at 

NARA, email fr.inspection@nara.gov, or 

go to www.archives.gov/federal-register/ 

cfr/ibr-locations.html. The material may 

be obtained from the source(s) in the 

following paragraph(s) of this section. 

(b) ASTM International, 100 Barr 

Harbor Dr., P.O. Box C700, West 

Conshohocken, PA 19428–2959; (877) 

909–2786; www.astm.org. 

(1) ASTM D975–21, Standard 

Specification for Diesel Fuel, approved 

August 1, 2021 (‘‘ASTM D975’’); IBR 

approved for §§ 80.1401; 80.1426(f); 

80.1450(b); 80.1451(b); 80.1454(l). 

(2) ASTM D1250–19e1, Standard 

Guide for the Use of the Joint API and 

ASTM Adjunct for Temperature and 

Pressure Volume Correction Factors for 

Generalized Crude Oils, Refined 

Products, and Lubricating Oils: API 

MPMS Chapter 11.1, approved May 1, 

2019 (‘‘ASTM D1250’’); IBR approved 

for § 80.1426(f). 

(3) ASTM D4442–20, Standard Test 

Methods for Direct Moisture Content 

Measurement of Wood and Wood-Based 

Materials, approved March 1, 2020 

(‘‘ASTM D4442’’); IBR approved for 

§ 80.1426(f). 

(4) ASTM D4444–13 (Reapproved 

2018), Standard Test Method for 

Laboratory Standardization and 

Calibration of Hand-Held Moisture 

Meters, reapproved July 1, 2018 

(‘‘ASTM D4444’’); IBR approved for 

§ 80.1426(f). 

(5) ASTM D6751–20a, Standard 

Specification for Biodiesel Fuel Blend 

Stock (B100) for Middle Distillate Fuels, 

approved August 1, 2020 (‘‘ASTM 

D6751’’); IBR approved for § 80.1401. 

(6) ASTM D6866–22, Standard Test 

Methods for Determining the Biobased 

Content of Solid, Liquid, and Gaseous 

Samples Using Radiocarbon Analysis, 

approved March 15, 2022 (‘‘ASTM 

D6866’’); IBR approved for §§ 80.1426(f); 

80.1430(e). 

(7) ASTM E711–87 (R2004), Standard 

Test Method for Gross Calorific Value of 

Refuse-Derived Fuel by the Bomb 

Calorimeter, reapproved 2004 (‘‘ASTM 

E711’’); IBR approved for § 80.1426(f). 

(8) ASTM E870–82 (Reapproved 

2019), Standard Test Methods for 

Analysis of Wood Fuels, reapproved 

April 1, 2019 (‘‘ASTM E870’’); IBR 

approved for § 80.1426(f). 

■ 27. Amend § 80.1469 by revising the 

introductory text and paragraphs 

(c)(1)(vi) and (vii), (c)(2)(i), (c)(3)(i), 

(c)(5), and (f)(1) and (2) to read as 

follows: 

§ 80.1469 Requirements for Quality 

Assurance Plans. 

This section specifies the 

requirements for Quality Assurance 

Plans (QAPs) for renewable fuels and 

biointermediates. 

* * * * * 

(c) * * * 

(1) * * * 

(vi) Feedstock(s) and 

biointermediate(s) are consistent with 

production process and D code being 

used as permitted under the approved 

pathway and is consistent with 

information recorded in EMTS. 

(vii) Feedstock(s) and 

biointermediate(s) are not renewable 

fuel for which RINs were previously 

generated unless the RINs were 

generated under § 80.1426(c)(6). For 

renewable fuels that have RINs 

generated under § 80.1426(c)(6), verify 

that renewable fuels used as a feedstock 

meet all applicable requirements of this 

paragraph (c)(1). 

* * * * * 

(2) * * * 

(i) Production process is consistent 

with the renewable fuel producer or 

biointermediate producer’s registration 

under § 80.1450(b). 

* * * * * 

(3) * * * 

(i) If applicable, renewable fuel was 

designated for qualifying uses as 

transportation fuel, heating oil, or jet 

fuel in the covered location pursuant to 

§ 80.1453. 

* * * * * 

(5) Representative sampling. 

Independent third-party auditors may 

use a representative sample of batches 

of renewable fuel or biointermediate in 

accordance with the procedures 

described in 40 CFR 1090.1805 for all 

components of this paragraph (c) except 

for paragraphs (c)(1)(ii) and (iii), 

(c)(2)(ii), (c)(3)(vi), and (c)(4)(ii) and (iii) 

of this section. If a facility produces 

both a renewable fuel and a 

biointermediate, the independent thirdparty auditor must select separate 

representative samples for the 

renewable fuel and biointermediate. 

* * * * * 

(f) * * * 

(1) A new QAP must be submitted to 

EPA according to paragraph (e) of this 

section and the independent third-party 

auditor must update their registration 

according to § 80.1450(g)(9) whenever 

any of the following changes occur at a 

renewable fuel or biointermediate 

production facility audited by an 


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independent third-party auditor and the 

auditor does not possess an appropriate 

pathway-specific QAP that encompasses 

the change: 

(i) Change in feedstock or 

biointermediates. 

(ii) Change in type of fuel or 

biointermediate produced. 

(iii) Change in facility operations or 

equipment that may impact the 

capability of the QAP to verify that RINs 

are validly generated or 

biointermediates are properly produced. 

(2) A QAP ceases to be valid as the 

basis for verifying RINs or a 

biointermediate under a new pathway 

until a new pathway-specific QAP, 

submitted to the EPA under this 

paragraph (f), is approved pursuant to 

paragraph (e) of this section. 

■ 28. Amend § 80.1471 by: 

■ a. Revising paragraphs (b)(1), (4), (5), 

and (6) and (c); 

■ b. Adding paragraph (e)(5); and 

■ c. Revising paragraphs (f)(1) 

introductory text, (f)(1)(ii), and (g). 

The revisions and addition read as 

follows: 

§ 80.1471 Requirements for QAP auditors. 

* * * * * 

(b) * * * 

(1) The independent third-party 

auditor and its contractors and 

subcontractors must not be owned or 

operated by the renewable fuel 

producer, foreign renewable fuel 

producer, or biointermediate producer 

or any subsidiary or employee of the 

renewable fuel producer, foreign 

ethanol producer, or biointermediate 

producer. 

* * * * * 

(4) The independent third-party 

auditor and its contractors and 

subcontractors must be free from any 

interest or the appearance of any 

interest in the renewable fuel producer, 

foreign renewable fuel producer, or 

biointermediate producer’s business. 

(5) The renewable fuel producer, 

foreign renewable fuel producer, or 

biointermediate producer must be free 

from any interest or the appearance of 

any interest in the third-party auditor’s 

business and the businesses of thirdparty auditor’s contractors and 

subcontractors. 

(6) The independent third-party 

auditor and its contractors and 

subcontractors must not have performed 

an attest engagement under § 80.1464 

for the renewable fuel producer, foreign 

renewable fuel producer, or 

biointermediate producer in the same 

calendar year as a QAP audit conducted 

pursuant to § 80.1472. 

* * * * * 

(c) Independent third-party auditors 

must maintain professional liability 

insurance. Independent third-party 

auditors must use insurance providers 

that possess a financial strength rating 

in the top four categories from Standard 

& Poor’s or Moody’s (i.e., AAA, AA, A, 

or BBB for Standard & Poor’s and Aaa, 

Aa, A, or Baa for Moody’s), or a 

comparable rating acceptable to EPA. 

Independent third-party auditors must 

disclose the level of professional 

liability insurance they possess when 

entering into contracts to provide RIN 

verification services. 

* * * * * 

(e) * * * 

(5) The independent third-party 

auditor must not identify RINs 

generated for renewable fuel produced 

using a biointermediate as having been 

verified under a QAP unless the 

biointermediate used to produce the 

renewable fuel was verified under an 

approved QAP pursuant to § 80.1477. 

(f)(1) Except as specified in paragraph 

(f)(2) of this section, auditors may only 

verify RINs that have been generated 

after the audit required under § 80.1472 

has been completed. Auditors may only 

verify biointermediates that were 

produced after the audit required under 

§ 80.1472 has been completed. Auditors 

must only verify RINs generated from 

renewable fuels produced from 

biointermediates after the audit required 

under § 80.1472 has been completed for 

both the biointermediate production 

facility and the renewable fuel 

production facility. 

* * * * * 

(ii) Verification of RINs or 

biointermediates may continue for no 

more than 200 days following an on-site 

visit or 380 days after an on-site visit if 

a previously the EPA-approved remote 

monitoring system is in place at the 

renewable fuel production facility. 

* * * * * 

(g) The independent third-party 

auditor must permit any representative 

of the EPA to monitor at any time the 

implementation of QAPs and renewable 

fuel and biointermediate production 

facility audits. 

* * * * * 

■ 29. Amend § 80.1472 by revising 

paragraphs (a)(4), (b)(3)(i) introductory 

text, (b)(3)(ii)(B), and (b)(3)(iii) to read 

as follows: 

§ 80.1472 Requirements for quality 

assurance audits. 

(a) * * * 

(4) Each audit shall include a review 

of documents generated by the 

renewable fuel producer or 

biointermediate producer. 

(b) * * * 

(3) * * * 

(i) As applicable, the independent 

third-party auditor shall conduct an onsite visit at the renewable fuel 

production facility, foreign ethanol 

production facility, or biointermediate 

production facility: 

* * * * * 

(ii) * * * 

(B) 380 days after the previous on-site 

visit if a previously approved (by EPA) 

remote monitoring system is in place at 

the renewable fuel production facility, 

foreign ethanol production facility, or 

biointermediate production facility, as 

applicable. The 380-day period shall 

start the day after the previous on-site 

visit ends. 

(iii) An on-site visit shall include 

verification of all QAP elements that 

require inspection or evaluation of the 

physical attributes of the renewable fuel 

production facility, foreign ethanol 

production facility, or biointermediate 

production facility, as applicable. 

* * * * * 

§ 80.1473 [Amended] 

■ 30. Amend § 80.1473(f) by removing 

the text ‘‘support@epamts-support.com’’ 

and adding, in its place, the text 

‘‘fuelsprogramsupport@epa.gov’’. 

§ 80.1474 [Amended] 

■ 31. Amend § 80.1474(b) by removing 

the text ‘‘support@epamts-support.com’’ 

wherever it appears and adding, in its 

place, the text ‘‘fuelsprogramsupport@

epa.gov’’. 

■ 32. Amend § 80.1475 by: 

■ a. In paragraph (a)(2), removing the 

text ‘‘§§ 80.125 through 80.127 and 

§ 80.130’’ and adding, in its place, the 

text ‘‘40 CFR 1090.1800 through 

1090.1850’’; 

■ b. Revising the first sentence of 

paragraph (d)(1) and paragraph (d)(3); 

and 

■ c. In paragraph (d)(4) introductory 

text, removing the text ‘‘§ 80.127’’ and 

adding, in its place, the text ‘‘40 CFR 

1090.1805’’. 

The revisions read as follows: 

§ 80.1475 What are the additional attest 

engagement requirements for parties that 

redesignate certified NTDF as MVNRLM 

diesel fuel? 

* * * * * 

(d) * * * 

(1) For each of the volumes listed in 

paragraphs (c)(1)(iii) through (vi) of this 

section, obtain a separate listing of all 

tenders from the refiner or importer for 

the reporting period. * * * 

* * * * * 

(3) Agree the volume totals on the 

listing to the tender volume total in the 


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inventory reconciliation analysis 

obtained in paragraph (c) of this section. 

* * * * * 

■ 33. Add § 80.1476 to read as follows: 

§ 80.1476 Requirements for 

biointermediate producers. 

Biointermediate producers must 

comply with the following 

requirements: 

(a) Registration. No later than 60 days 

prior to the transfer of any 

biointermediate to be used in the 

production of a renewable fuel for 

which RINs may be generated, 

biointermediate producers must register 

with EPA pursuant to the requirements 

of § 80.1450(b). 

(b) Reporting. Biointermediate 

producers must comply with the 

reporting requirements in § 80.1451(j). 

(c) Recordkeeping. Biointermediate 

producers must comply with the 

recordkeeping requirements in 

§ 80.1454(i). 

(d) PTDs. Biointermediate producers 

must comply with the PTD 

requirements in § 80.1453(f). 

(e) Quality Assurance Plans. Prior to 

the transfer of any biointermediate to be 

used in the production of a renewable 

fuel for which RINs may be generated, 

biointermediate producers must have an 

approved quality assurance plan 

pursuant to § 80.1477(b) and the 

independent third-party auditor must 

have conducted a site visit of the 

biointermediate production facility 

under § 80.1472. 

(f) Attest engagements. 

Biointermediate producers must comply 

with the annual attest engagement 

requirements in § 80.1464(h). 

(g) Limitations on biointermediate 

transfers and production. (1) A 

biointermediate producer must transfer 

all biointermediates produced from a 

single biointermediate facility to a 

single renewable fuel production facility 

as designated under 

§ 80.1450(b)(1)(ii)(B)(1). 

(2)(i) Except as specified in paragraph 

(g)(2)(ii) of this section, a batch of 

biointermediate must be segregated from 

other batches of biointermediate (even if 

it is the same type of biointermediate), 

other feedstocks, foreign ethanol, and 

renewable fuels from the point that the 

batch of biointermediate is produced to 

the point where the batch of 

biointermediate is received at the 

renewable fuel production facility 

designated under 

§ 80.1450(b)(1)(ii)(B)(1). 

(ii)(A) Batches of biointermediate may 

be commingled between the 

biointermediate production facility and 

the designated renewable fuel 

production facility as long as each batch 

is produced at the same biointermediate 

production facility, is the same type of 

biointermediate, and no other 

feedstocks, biointermediates, foreign 

ethanol, or renewable fuels are 

comingled. 

(B) A renewable fuel producer may 

commingle batches of biointermediate at 

an off-site storage tank if all the 

following conditions are met: 

(1) Only batches of the same type of 

biointermediate are commingled and no 

other feedstocks, biointermediates, 

foreign ethanol, or renewable fuels are 

comingled in the off-site storage tank. 

(2) The renewable fuel producer owns 

or is the sole position holder in the offsite storage tank. 

(3) Renewable fuel producers that 

receive biointermediate at a renewable 

fuel production facility may not be a 

biointermediate producer. 

(4) A biointermediate must not be 

used to make another biointermediate. 

(5) A foreign biointermediate 

producer must not transfer 

biointermediate to a non-RIN-generating 

foreign producer. 

(h) Batch numbers and volumes. (1) 

Each batch of biointermediate produced 

at a biointermediate production facility 

must be assigned a number (the ‘‘batch 

number’’), consisting of the EPAassigned company registration number, 

the EPA-assigned facility registration 

number, the last two digits of the year 

in which the batch was produced, and 

a unique number for the batch, 

beginning with the number one for the 

first batch produced each calendar year 

and each subsequent batch during the 

calendar year being assigned the next 

sequential number (e.g., 4321–54321– 

95–000001, 4321–54321–95–000002, 

etc.). 

(2) For biointermediates measured on 

a volume basis, the volume of each 

batch of biointermediate must be 

adjusted to a standard temperature of 

60 °F as specified in § 80.1426(f)(8). 

(i) Designation. Each batch of 

biointermediate produced at a 

biointermediate production facility 

must be designated for use in the 

production of a renewable fuel in 

accordance with the biointermediate 

producer’s registration under § 80.1450. 

The designation for the batch of 

biointermediate must be clearly 

indicated on PTDs for the 

biointermediate as described in 

§ 80.1453(f)(1)(vi). The same batch or a 

portion of a batch may not be designated 

as both a biointermediate and a 

renewable fuel. 

■ 34. Add § 80.1477 to read as follows: 

§ 80.1477 Requirements for QAPs for 

biointermediate producers. 

(a) Independent third-party auditors 

that verify biointermediate production 

must meet the requirements of 

§ 80.1471(a) through (c) and (f) through 

(h), as applicable. 

(b) QAPs approved by EPA to verify 

biointermediate production must meet 

the requirements in § 80.1469(c) through 

(f), as applicable. 

(c) Quality assurance audits, when 

performed, must be conducted in 

accordance with the requirements in 

§ 80.1472(a) and (b)(3). 

(d)(1) If an independent third-party 

auditor identifies a potentially 

improperly produced biointermediate, 

the independent third-party auditor 

must notify EPA, the biointermediate 

producer, and the renewable fuel 

producer that may have been transferred 

the biointermediate within five business 

days of the identification, including an 

initial explanation of why the 

biointermediate may have been 

improperly produced. 

(2) If RINs were generated from the 

potentially improperly produced 

biointermediate, the RIN generator must 

follow the applicable identification and 

treatment of PIRs as specified in 

§ 80.1474. 

(e) For the generation of Q–RINs for 

renewable fuels that were produced 

from a biointermediate, the 

biointermediate must be verified under 

an approved QAP as described in 

paragraph (b) of this section and the RIN 

generating facility must be verified 

under an approved QAP as described in 

§ 80.1469. 

■ 35. Add § 80.1478 to read as follows: 

§ 80.1478 Requirements for foreign 

biointermediate producers and importers. 

(a) Foreign biointermediate producer. 

For purposes of this subpart, a foreign 

biointermediate producer is a person 

located outside the United States, the 

Commonwealth of Puerto Rico, the 

Virgin Islands, Guam, American Samoa, 

and the Commonwealth of the Northern 

Mariana Islands (collectively referred to 

in this section as ‘‘the United States’’) 

that has been approved by EPA to 

produce biointermediate for use in the 

production of renewable fuel by a RINgenerating renewable fuel producer. 

(b) Foreign biointermediate producer 

requirements. Any foreign 

biointermediate producer must meet all 

requirements that apply to 

biointermediate producers under this 

subpart as a condition of being 

approved as a foreign biointermediate 

producer under this subpart. 

(c) Foreign biointermediate producer 

commitments. Any foreign 


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biointermediate producer must commit 

to the following provisions as a 

condition of being registered as a foreign 

biointermediate producer under this 

subpart: 

(1) Any EPA inspector or auditor must 

be given full, complete, and immediate 

access to conduct inspections and 

audits of the foreign biointermediate 

producer facility. 

(i) Inspections and audits may be 

either announced in advance by EPA, or 

unannounced. 

(ii) Access will be provided to any 

location where: 

(A) Biointermediate is produced. 

(B) Documents related to foreign 

biointermediate producer operations are 

kept. 

(C) Biointermediate is stored or 

transported between the foreign 

biointermediate producer and the 

renewable fuel producer, including 

storage tanks, vessels, and pipelines. 

(iii) EPA inspectors and auditors may 

be EPA employees or contractors to 

EPA. 

(iv) Any documents requested that are 

related to matters covered by 

inspections and audits must be 

provided to an EPA inspector or auditor 

on request. 

(v) Inspections and audits may 

include review and copying of any 

documents related to the following: 

(A) The volume of biointermediate 

produced or delivered to renewable fuel 

production facilities. 

(B) Transfers of title or custody to the 

biointermediate. 

(C) Work performed and reports 

prepared by independent third parties 

and by independent auditors under the 

requirements of this section, including 

work papers. 

(vi) Inspections and audits by EPA 

may include interviewing employees. 

(vii) Any employee of the foreign 

biointermediate producer must be made 

available for interview by the EPA 

inspector or auditor, on request, within 

a reasonable time period. 

(viii) English language translations of 

any documents must be provided to an 

EPA inspector or auditor, on request, 

within 10 business days. 

(ix) English language interpreters 

must be provided to accompany EPA 

inspectors and auditors, on request. 

(2) An agent for service of process 

located in the District of Columbia must 

be named, and service on this agent 

constitutes service on the foreign 

biointermediate producer or any 

employee of the foreign biointermediate 

producer for any action by EPA or 

otherwise by the United States related to 

the requirements of this subpart. 

(3) The forum for any civil or criminal 

enforcement action related to the 

provisions of this section for violations 

of the Clean Air Act or regulations in 

this title promulgated thereunder must 

be governed by the Clean Air Act, 

including the EPA administrative forum 

where allowed under the Clean Air Act. 

(4) United States substantive and 

procedural laws apply to any civil or 

criminal enforcement action against the 

foreign biointermediate producer or any 

employee of the foreign biointermediate 

producer related to the provisions of 

this section. 

(5) Applying to be an approved 

foreign biointermediate producer under 

this section, or producing or exporting 

biointermediate under such approval, 

and all other actions to comply with the 

requirements of this subpart relating to 

such approval constitute actions or 

activities covered by and within the 

meaning of the provisions of 28 U.S.C. 

1605(a)(2), but solely with respect to 

actions instituted against the foreign 

biointermediate producer, its agents and 

employees in any court or other tribunal 

in the United States for conduct that 

violates the requirements applicable to 

the foreign biointermediate producer 

under this subpart, including conduct 

that violates the False Statements 

Accountability Act of 1996 (18 U.S.C. 

1001) and section 113(c)(2) of the Clean 

Air Act (42 U.S.C. 7413). 

(6) The foreign biointermediate 

producer, or its agents or employees, 

will not seek to detain or to impose civil 

or criminal remedies against EPA 

inspectors or auditors for actions 

performed within the scope of EPA 

employment or contract related to the 

provisions of this section. 

(7) The commitment required by this 

paragraph (c) must be signed by the 

owner or president of the foreign 

biointermediate producer company. 

(8) In any case where the 

biointermediate produced at a foreign 

biointermediate production facility is 

stored or transported by another 

company between the production 

facility and the vessel that transports the 

biointermediate to the United States, the 

foreign biointermediate producer must 

obtain from each such other company a 

commitment that meets the 

requirements specified in paragraphs 

(c)(1) through (7) of this section, and 

these commitments must be included in 

the foreign biointermediate producer’s 

application to be an approved foreign 

biointermediate producer under this 

subpart. 

(d) Sovereign immunity. By 

submitting an application to be an 

approved foreign biointermediate 

producer under this subpart, or by 

producing and exporting 

biointermediate fuel to the United States 

under such approval, the foreign 

biointermediate producer, and its agents 

and employees, without exception, 

become subject to the full operation of 

the administrative and judicial 

enforcement powers and provisions of 

the United States without limitation 

based on sovereign immunity, with 

respect to actions instituted against the 

foreign biointermediate producer, its 

agents and employees in any court or 

other tribunal in the United States for 

conduct that violates the requirements 

applicable to the foreign 

biointermediate producer under this 

subpart, including conduct that violates 

the False Statements Accountability Act 

of 1996 (18 U.S.C. 1001) and section 

113(c)(2) of the Clean Air Act (42 U.S.C. 

7413). 

(e) English language reports. Any 

document submitted to EPA by a foreign 

biointermediate producer must be in 

English or must include an English 

language translation. 

(f) Withdrawal or suspension of 

foreign biointermediate producer 

approval. EPA may withdraw or 

suspend a foreign biointermediate 

producer’s approval where any of the 

following occur: 

(1) A foreign biointermediate 

producer fails to meet any requirement 

of this section. 

(2) A foreign government fails to 

allow EPA inspections or audits as 

provided in paragraph (c)(1) of this 

section. 

(3) A foreign biointermediate 

producer asserts a claim of, or a right to 

claim, sovereign immunity in an action 

to enforce the requirements in this 

subpart. 

(g) Additional requirements for 

applications, reports, and certificates. 

Any application for approval as a 

foreign biointermediate producer, any 

report, certification, or other submission 

required under this section shall be: 

(1) Submitted in accordance with 

procedures specified by the 

Administrator, including use of any 

forms that may be specified by the 

Administrator. 

(2) Signed by the president or owner 

of the foreign biointermediate producer 

company, or by that person’s immediate 

designee, and must contain the 

following declarations: 

(i) Certification. 

‘‘I hereby certify: 

That I have actual authority to sign on 

behalf of and to bind [NAME OF 

FOREIGN BIOINTERMEDIATE 

PRODUCER] with regard to all 

statements contained herein; 

That I am aware that the information 

contained herein is being Certified, or 


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submitted to the United States 

Environmental Protection Agency, 

under the requirements of 40 CFR part 

80, subpart M, and that the information 

is material for determining compliance 

under these regulations; and 

That I have read and understand the 

information being Certified or 

submitted, and this information is true, 

complete and correct to the best of my 

knowledge and belief after I have taken 

reasonable and appropriate steps to 

verify the accuracy thereof.’’ 

(ii) Affirmation. 

‘‘I affirm that I have read and 

understand the provisions of 40 CFR 

part 80, subpart M, including 40 CFR 

80.1478 apply to [NAME OF FOREIGN 

BIOINTERMEDIATE PRODUCER]. 

Pursuant to Clean Air Act section 113(c) 

and 18 U.S.C. 1001, the penalty for 

furnishing false, incomplete or 

misleading information in this 

certification or submission is a fine of 

up to $10,000 U.S., and/or 

imprisonment for up to five years.’’ 

(h) Requirements for biointermediate 

importers. Any biointermediate 

importer must meet all the following 

requirements: 

(1) For each biointermediate batch, 

any biointermediate importer must have 

an independent third party do all the 

following: 

(i) Determine the volume of 

biointermediate in the truck, railcar, 

vessel, or other shipping container. 

(ii) Determine the name and EPAassigned registration number of the 

foreign biointermediate producer that 

produced the biointermediate. 

(iii) Determine the name and country 

of registration of the truck, railcar, 

vessel, or other shipping container used 

to transport the biointermediate to the 

United States. 

(iv) Determine the date and time the 

truck, railcar, vessel, or other shipping 

container arrives at the United States 

port of entry. 

(2) Any biointermediate importer 

must submit documentation of the 

information determined under 

paragraph (h)(1) of this section within 

30 days following the date any truck, 

railcar, vessel, or other shipping 

container transporting biointermediate 

arrives at the United States port of entry 

to all the following: 

(i) The foreign biointermediate 

producer. 

(ii) The renewable fuel producer. 

(3) The biointermediate importer and 

the independent third party must keep 

records of the audits and reports 

required under paragraphs (h)(1) and (2) 

of this section for five years from the 

date of creation. 

PART 1090—REGULATION OF FUELS, 

FUEL ADDITIVES, AND REGULATED 

BLENDSTOCKS 

■ 36. The authority citation for part 

1090 continues to read as follows: 

Authority: 42 U.S.C. 7414, 7521, 7522– 

7525, 7541, 7542, 7543, 7545, 7547, 7550, 

and 7601. 

Subpart A—General Provisions 

■ 37. Amend § 1090.15 by: 

■ a. In paragraphs (a) and (d), removing 

the text ‘‘(b) and (c)’’ and adding, in its 

place, the text ‘‘(b) through (d)’’ 

■ b. In paragraph (c) introductory text, 

removing the word ‘‘section’’ and 

adding, in its place, the word ‘‘part’’; 

■ c. Redesignating paragraph (d) as 

paragraph (e); and 

■ d. Adding a new paragraph (d). 

The addition reads as follows: 

§ 1090.15 Confidential business 

information. 

* * * * * 

(d)(1) The following information 

contained in any enforcement action 

taken under this part is not entitled to 

confidential treatment under 40 CFR 

part 2, subpart B: 

(i) The company’s name. 

(ii) The facility’s name. 

(iii) Any EPA-issued company and 

facility identification numbers. 

(iv) The time or time period when any 

violation occurred. 

(v) The quantity of fuel, fuel additive, 

or regulated blendstock affected by the 

violation. 

(vi) Information relating to the 

exceedance of the fuel standard 

associated with the violation. 

(vii) Information relating to the 

generation, transfer, or use of credits 

associated with the violation. 

(viii) Any other information relevant 

to describing the violation. 

(2) Enforcement actions within the 

scope of paragraph (d)(1) of this section 

include notices of violation, settlement 

agreements, administrative complaints, 

civil complaints, criminal information, 

and criminal indictments. 

* * * * * 

[FR Doc. 2022–12376 Filed 6–30–22; 8:45 am] 

BILLING CODE 6560–50–P 


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