2017 RFS rule among regulations subject to additional review

The rule to set 2014 volume obligations under the renewable fuel standard (RFS) is among 30 recent rules published by the U.S. EPA set to be temporarily delayed in order to allow for additional review by the Trump administration. The Renewable Fuels Association has called the new “simply procedural,” and noted the action is not expected to impact implementation, enforcement or compliance with the program, while Growth Energy has described the action as what appears to be a “standard review.”

On Jan. 20, Chief of Staff Reince Priebus sent a memorandum to the heads of executive departments and agencies directing them to delay implementation of certain recent and pending regulations in order to allow the new administration an opportunity for review. Included in the momorandum is a notice with respect to regulations that have been published in the Federal Register but have not taken effect. These regulations are to be subject to a temporary delay in their effective date, spanning 60 days from the date of the Jan. 20 memorandum, “for the purpose of reviewing questions of fact, law, and policy that they raise.”

 “Where appropriate and as permitted by applicable law, you should consider proposing for notice and comment a rule to delay the effective date for regulations beyond that 60-day period,” said Priebus in the memorandum. “In cases where the effective date has been delayed in order to review questions of fact, law, or policy, you should consider potentially proposing further notice-and-comment rulemaking.”

Following the delay in effective date, the memorandum states that for regulations that raise no substantial questions of law or policy, no further action need to be taken. However, for those regulations that raise substantial questions of law or policy, agencies should notify the Office of Management and Budget director and take further appropriate action in consultation with the OMB director.

The EPA is set to publish a delay of effective date for 30 final regulations it published between Oct. 28 and Jan. 17 in the Federal Register on Jan. 26. A pre-publication version of that notice lists the 2017 RFS rule, which set final 2017 renewable volume requirements (RVOs) along with 2018 RVOs for biomass-based diesel. The final rule, which was published in the Federal Register on Dec. 12, was originally scheduled to go into effect Feb. 10. The effective date has now been delayed until March 21. 

Within its notice, the EPA said, that where appropriate, it may consider delaying effective dates of the 30 regulations it references beyond March 2017. If the agency were to do so, consistent with the memorandum issued by Priebus, it would propose any later effective date for public comment.

“This postponement of the effective date for the 2017 RVO rule is simply procedural,” said Bob Dinneen, president of the RFA. “It is not expected to affect implementation, enforcement, or compliance with the RFS. Regardless of the effective date, the 2017 RVO final rule applies to the 2017 ‘compliance year,’ which began on Jan. 1, 2017 and ends on Dec. 31, 2017. The deadline by which obligated parties must demonstrate compliance with the 2017 RVO is unaffected by this action, and we do not expect this postponement to result in any substantive changes to the contents of 2017 RVO rule itself.”

Growth Energy has also indicated the review seems to be procedural. “This appears to be a standard review of pending rules by a new administration,” said Emily Skor, CEO of Growth Energy. “The RVOs, which were finalized last year, happened to fall within the selected timeframe. We are continuing to seek additional clarification.”

The Biotechnology Innovation Organization has also weighed in. “Donald Trump gave his commitment to the RFS during the campaign, and we expect the administration will honor that commitment by implementing the 2017 RFS rule in a timely manner, which will drive investment in advanced biofuels and create jobs,” said Brent Erickson, executive vice president of the Industrial and Environmental Section at BIO.