Biodiesel facilities may qualify for the exemption under 80.1403(c) from the requirement that renewable fuels achieve a minimum 20% GHG reduction as compared to baseline fuels if they "commenced construction" prior to the date of enactment of EISA. Thus, RINs may be generated for qualifying renewable fuel produced by such facilities even if their feedstock and/or pathway is not listed in Table 1 to 80.1426.

However, the fuel must meet all other requirements of the definition of the definitions in 80.1401, including the renewable biomass requirement, and RINs generated under these provisions must be assigned a D code of 6. The exemption in 80.1403(c) is limited in application to the 20% GHG reduction requirement for general renewable fuel. There are no exemptions in EISA or the RFS2 regulations from the requirements regarding GHG reduction requirements for renewable fuels identified as biomass-based diesel or advanced biofuel.

Section 80.1403(d) provides a similar exemption from the 20% GHG reduction requirements for certain ethanol production facilities that commenced construction after enactment of EISA, but before December 31, 2009. Biodiesel facilities are not eligible for this exemption, For additional discussion of the exemptions in 80.1403 , see also grandfathering.