By Ann Claassen

As reported in a previous blog, EPA in June extended the compliance and attest engagement reporting deadlines for the 2013 Renewable Fuel Standard (RFS) to September 30, 2014 and January 30, 2015 (respectively). Today, EPA published a direct final rule that indefinitely extends reporting deadlines. 79 Fed. Reg. 46353 (Aug. 8, 2014) (direct final rule); 79 Fed. Reg. 46387(Aug. 8, 2014)(proposed rule). Under the rule, the deadlines for these reports will be 30 and 90 days, respectively, after publication of the final 2014 RFS in the Federal Register. Adverse comments that would obligate EPA to withdraw the direct final rule and proceed under normal notice and comment rulemaking are due by September 15, 2014.

In June, EPA had indicated that the 2014 RFS final rule would be issued “shortly.” In the current notice, EPA makes no prediction for issuance of the final 2014 RFS rule. That rule is already eight months late in meeting the statutory deadline. The 2015 RFS, which has not yet been proposed, statutorily should be final by November 30 of this year. 42 USC §7545(o)(3)(B)(i). Factoring in need for review by the Office of Management and Budget (OMB), it appears the final 2014 rule will bump up against or even go past the November 30 deadline for the 2015 RFS. This brings into question the workability of the RFS program going forward and will add weight to calls for legislative reform.

EPA has not yet sent the final 2014 RFS to OMB for review. OMB has 90 days for its review (with an extension possible). As indicated in the previous blog, given the intense controversy over this rule, including claims from both sides of dire economic consequences if EPA does, or does not, reduce the statutory mandate, it is possible OMB will take at least 90 days for its review. Meanwhile, intense lobbying of Congress, EPA and the White House by parties on all sides of this issue can be expected to continue.