[Federal Register Volume 89, Number 59 (Tuesday, March 26, 2024)]
[Notices]
[Pages 20961-20962]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-06375]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-11849-01-OAR]


Notice of Denial of Petition for Partial Waiver of 2023 
Cellulosic Biofuel Standard Under the Renewable Fuel Standard Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Denial of petition.

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SUMMARY: The Environmental Protection Agency (EPA) is providing notice 
of its final action entitled Denial of AFPM Petition for Partial Waiver 
of 2023 Cellulosic Biofuel Standard (``AFPM Petition Denial Action''), 
in which EPA

[[Page 20962]]

denied a petition from the American Fuel & Petrochemical Manufacturers 
(AFPM) for a partial waiver of the 2023 cellulosic biofuel standard 
under the Renewable Fuel Standard (RFS) program. EPA is providing this 
notice for public awareness of, and the basis for, EPA's decision 
issued on March 15, 2024.

DATES: March 26, 2024.

FOR FURTHER INFORMATION CONTACT: Lauren Michaels, Office of 
Transportation and Air Quality, Compliance Division, Environmental 
Protection Agency, 2000 Traverwood Drive, Ann Arbor, MI 48105; 
telephone number: (734) 214-4640; email address: 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    The Clean Air Act (CAA) provides that EPA, in consultation with the 
Secretary of Agriculture and the Secretary of Energy, may waive the 
volume requirements under the RFS program, in whole or in part, under 
specified circumstances, including when EPA finds that ``there is an 
inadequate domestic supply'' or that the RFS volume requirements 
``would severely harm the economy or environment of a State, a region, 
or the United States'' (``severe economic harm'').\1\ Section 
211(o)(7)(A) is structured to allow any person subject to the 
requirements of the RFS program to petition EPA to waive, in whole or 
in part, the volume requirements.
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    \1\ EPA refers to the authority in CAA section 211(o)(7)(A) as 
the ``general waiver authority.''
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    On December 22, 2023, AFPM requested that EPA issue a partial 
waiver of the 2023 cellulosic biofuel standard under CAA section 
211(o)(7)(D) and CAA section 211(o)(7)(A)(i).\2\ On March 4, 2024, AFPM 
submitted an update to its original petition.\3\
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    \2\ AFPM, ``Petition for Partial Waiver of 2023 Cellulosic 
Biofuel Volumetric Requirements,'' December 22, 2023 (``AFPM 
Petition'').
    \3\ AFPM, ``AFPM's Petition for Partial Waiver of the 2023 
Cellulosic Biofuel Volumetric Requirements--Update,'' March 4, 2024.
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II. Decision

    Our assessment of the volume of 2023 cellulosic RINs and 2022 
cellulosic carryover RINs indicates that obligated parties will be able 
to readily comply with the existing 2023 cellulosic biofuel standard. 
Moreover, obligated parties will still be able to comply by carrying a 
cellulosic RIN deficit into 2024, if necessary. On the other hand, a 
partial waiver of the 2023 cellulosic biofuel standard would be 
injurious to the RFS program because it would be disruptive to program 
participants and could result in reduced future demand for cellulosic 
biofuel production. For these and all other reasons described in the 
AFPM Petition Denial Action, and after consultation with the Secretary 
of Agriculture and the Secretary of Energy under CAA section 
211(o)(7)(A), the RFS program is best served by maintaining the 
existing 2023 cellulosic biofuel standard and we are denying the AFPM 
Petition.

III. Judicial Review

    Section 307(b)(1) of the CAA governs judicial review of final 
actions by EPA. This section provides, in part, that petitions for 
review must be filed only in the United States Court of Appeals for the 
District of Columbia Circuit: (i) when the agency action consists of 
``any other nationally applicable. . .final action taken by the 
Administrator,'' or (ii) when a final action is locally or regionally 
applicable but ``such action is based on a determination of nationwide 
scope or effect and if in taking such action the Administrator finds 
and publishes that such action is based on such a determination.'' The 
CAA reserves to EPA the complete discretion to decide whether to invoke 
the exception in (ii) described in the preceding sentence.\4\
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    \4\ Sierra Club v. EPA, 47 F.4th 738, 745 (D.C. Cir. 2022) 
(``EPA's decision whether to make and publish a finding of 
nationwide scope or effect is committed to the agency's discretion 
and thus is unreviewable''); Texas v. EPA, 983 F.3d 826, 834-35 (5th 
Cir. 2020).
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    This final action is ``nationally applicable'' within the meaning 
of CAA section 307(b)(1). Whether an action is ``nationally 
applicable'' is a narrow inquiry based only on the ``face'' of the 
action.\5\ The question is whether the action itself is nationally 
applicable, not whether the nature and scope of the arguments raised or 
relief sought by a petitioner challenging the action are nationally 
applicable.\6\ On its face, this final action is nationally applicable 
because it denies a petition to waive a portion of the nationally 
applicable 2023 cellulosic biofuel standard promulgated in the Set Rule 
for all parties who qualify as obligated parties \7\ and thus are 
subject to the requirements of the RFS program no matter their location 
across the country. Parties that have registered with EPA as obligated 
parties under the RFS program are located in all states except Alaska, 
which is not subject to the RFS program.\8\ In denying this petition, 
EPA applied a consistent interpretation of the relevant CAA provisions 
and the Agency's ``common, nationwide analytical method'' for 
evaluating the fuels available, the fuels market data, and the RIN data 
to determine whether a partial waiver is necessary to enable compliance 
with the 2023 cellulosic biofuel standard.\9\ This final action applies 
equally to all obligated parties.
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    \5\ Dalton Trucking, Inc. v. EPA, 808 F.3d 875, 881 (D.C. Cir. 
2015); Hunt Refining Co. v. EPA, 90 F.4th 1107, 1110 (11th Cir. 
2024) (``Hunt'').
    \6\ S. Ill. Power Coop. v. EPA, 863 F.3d 666, 670-71 (7th Cir. 
2017); ATK Launch Sys., Inc. v. EPA, 651 F.3d 1194, 1198-1199 (10th 
Cir. 2011); RMS of Ga., LLC v. EPA, 64 F.4th 1368, 1372-1373 (11th 
Cir. 2023); Hunt, 90 F.4th at 1110-1112.
    \7\ 40 CFR 80.2 (``obligated party''), 80.1406.
    \8\ CAA section 211(o)(2)(A)(i); 40 CFR 80.1407(f)(3).
    \9\ S. Ill. Power, 863 F.3d at 671; ATK Launch Sys.,651 F.3d at 
1197; Hunt, 90 F.4th at 1112; Oklahoma v. EPA, ---; F.4th ---, 2024 
WL 799356 at *3 (10th Cir. Feb. 27, 2024).
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    For these reasons, this final action is nationally applicable. 
Under CAA section 307(b)(1), petitions for judicial review of this 
action must be filed in the United States Court of Appeals for the 
District of Columbia Circuit by May 28, 2024.

Joseph Goffman,
Assistant Administrator, Office of Air and Radiation.
[FR Doc. 2024-06375 Filed 3-25-24; 8:45 am]
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