Title 40—Protection of Environment--Volume 1
PART 80—REGULATION OF FUELS AND FUEL ADDITIVES
§ 80.1454   What are the recordkeeping requirements under the RFS program?
(a) Requirements for obligated parties and exporters of renewable fuel. Beginning July 1, 2010, any obligated partyor exporter of renewable fuel must keep all of the following records:
(1) Product transfer documents consistent with § 80.1453 and associated with the obligated party's or exporter of renewable fuel's activity, if any, as transferor or transferee of renewable fuel or separated RINs.
(2) Copies of all reports submitted to EPA under § 80.1451(a), as applicable.
(3) Records related to each RIN transaction, including all of the following:
(i) A list of the RINs owned, purchased, sold, separated, retired, or reinstated.
(ii) The parties involved in each RIN transaction including the transferor, transferee, and any broker or agent.
(iii) The date of the transfer of the RIN(s).
(iv) Additional information, including contracts, correspondence, and invoices, related to details of the RIN transaction and its terms.
(4) Records related to the use of RINs (by facility, if applicable) for compliance, including all of the following:
(i) Methods and variables used to calculate the Renewable Volume Obligations pursuant to § 80.1407 or § 80.1430.
(ii) List of RINs used to demonstrate compliance.
(iii) Additional information related to details of RIN use for compliance.
(5) Records related to the separation of assigned RINs from renewable fuel volume.
(6) For exported renewable fuel, invoices, bills of lading and other documents describing the exported renewable fuel.
(i) For exporters of renewable fuel for which no RINs were generated, an affidavit signed by the producer of the exported renewable fuel affirming that no RINs were generated for that volume of renewable fuel.
(ii) [Reserved]
(7) Any obligated party that uses the provisions of § 80.1444 for a small refinery must keep the following records:
(i) Copies of any notifications submitted to EPA under § 80.1444(e)(2).
(ii) Copies of the methods and variables used to calculate the number of RINs retired for the alternative RIN retirement schedule under § 80.1444(f).
(b) Requirements for all producers of renewable fuel. Beginning July 1, 2010, any domestic or RIN-generating foreign producer of a renewable fuel must keep all of the following records in addition to those required under paragraphs (c) or (d) of this section:
(1) Product transfer documents consistent with § 80.1453 and associated with the renewable fuel producer's activity, if any, as transferor or transferee of renewable fuel or separated RINs.
(2) Copies of all reports submitted to EPA under §§ 80.1449 and 80.1451(b).
(3) Records related to the generation and assignment of RINs for each facility, including all of the following:
(i) Batch volume in gallons.
(ii) Batch number.
(iii) RIN as assigned under § 80.1426, if applicable.
(iv) Identification of batches by renewable category.
(v) Type and quantity of co-products produced.
(vi) Type and quantity of feedstocks used.
(vii) Type and quantity of biointermediates used.
(viii) Type and quantity of fuel used for process heat.
(ix) All facility-determined values used in the calculations under § 80.1426(f)(4) and the data used to obtain those values.
(x) Date of production.
(xi) Results of any laboratory analysis of batch chemical composition or physical properties.
(xii) For RINs generated for ethanol produced from corn starch at a facility using an approved pathway that requires the use of one or more of the advanced technologies listed in Table 2 to § 80.1426, documentation to demonstrate that employment of the required advanced technology or technologies was conducted in accordance with the specifications in the approved pathway and Table 2 to § 80.1426, including any requirement for application to 90% of the production on a calendar year basis.
(xiii) All commercial documents and additional information related to details of RIN generation.
(4) Records related to each RIN transaction, separately for each transaction, including all of the following:
(i) A list of the RINs owned, purchased, sold, separated, retired, or reinstated.
(ii) The parties involved in each transaction including the transferor, transferee, and any broker or agent.
(iii) The date of the transfer of the RIN(s).
(iv) Additional information related to details of the transaction and its terms.
(5) Records related to the production, importation, ownership, sale or use of any volume of renewable fuel for which RINs were generated or blend of renewable fuel for which RINs were generated and gasoline or diesel fuel that any party designates for use as transportation fuel, jet fuel, or heating oil and the use of the fuel or blend as transportation fuel, jet fuel, or heating oil without further blending, in the designated form.
(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).
(7) For any producer of renewable fuel made from Arundo donax or Pennisetum purpureum per § 80.1426(f)(14), all the following:
(i) Records related to all requirements and duties set forth in the registration documents described in § 80.1450(b)(1)(x)(A), including but not limited to the Risk Mitigation Plan, monitoring records and reports, and adherence to state, local and federal invasive species requirements and permits.
(ii) Records associated with feedstock purchases and transfers that identify where the feedstocks were produced and are sufficient to verify that feedstocks used were produced and transported in accordance with an EPA approved Risk Mitigation Plan or were produced on land that the EPA determined does not present a significant likelihood of invasive spread beyond the planting area of the feedstock used for production of the renewable fuel, including all the following:
( A ) Maps or electronic data identifying the boundaries of the land where each type of feedstock was produced.
( B ) Bills of lading, product transfer documents, or other commercial documents showing the quantity of feedstock purchased from each area identified above, and showing each transfer of custody of the feedstock from the location where it was produced to the renewable fuel production facility.
(8) A producer of fuel oil meeting paragraph (2) of the definition of heating oil in § 80.2 shall keep copies of all contracts which describe the fuel oil under contract with each end user.
(9) Records, including contracts, related to the implementation of a QAP under § 80.1469.
(10) Records related to any volume of renewable fuel where RINs were not generated by the renewable fuel producer or importer pursuant to § 80.1426(c).
(c) Additional requirements for imports of renewable fuel. (1) Beginning July 1, 2010, any RIN-generating foreign producer of a renewable fuel or RIN-generating importer must keep records of feedstock purchases and transfers associated with renewable fuel for which RINs are generated, sufficient to verify that feedstocks used are renewable biomass.
(i) RIN-generating foreign producers and importers of renewable fuel made from feedstocks that are planted crops or crop residue from existing foreign agricultural land, planted trees or tree residue from actively managed tree plantations, slash and pre-commercial thinnings from forestlands or biomass obtained from wildland-urban interface must maintain all the following records to verify the location where these feedstocks were produced:
(A) Maps or electronic data identifying the boundaries of the land where each type of feedstock was produced.
(B) Bills of lading, product transfer documents, or other commercial documents showing the quantity of feedstock purchased from each area identified in paragraph (c)(1)(i)(A) of this section, and showing each transfer of custody of the feedstock from the location where it was produced to the renewable fuel production facility.
(ii)(A) RIN-generating foreign producers and importers of renewable fuel made from planted crops or crop residue from existing foreign agricultural land must keep records that serve as evidence that the land from which the feedstock was obtained was cleared or cultivated prior to December 19, 2007 and actively managed or fallow, and nonforested on December 19, 2007. RIN-generating foreign producers or importers of renewable fuel made from planted trees or tree residue from actively managed tree plantations must keep records that serve as evidence that the land from which the feedstock was obtained was cleared prior to December 19, 2007 and actively managed on December 19, 2007.
(B) The records must be provided by the feedstock producer, traceable to the land in question, and consist of at least one of the following documents:
( 1 ) Sales records for planted crops or trees, crop or tree residue, or livestock; purchasing records for fertilizer, weed control, or reseeding, including seeds, seedlings, or other nursery stock.
( 2 ) A written management plan for agricultural or silvicultural purposes; documentation of participation in an agricultural or silvicultural program sponsored by a Federal, state, or local government agency.
( 3 ) Documentation of land management in accordance with an agricultural or silvicultural product certification program, an agreement for land management consultation with a professional forester that identifies the land in question.
( 4 ) Evidence of the existence and ongoing maintenance of a road system or other physical infrastructure designed and maintained for logging use, together with one of the aforementioned documents in this paragraph (c)(1)(ii)(B).
(iii) RIN-generating foreign producers and importers of renewable fuel 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 and identifying the process that was used to generate the feedstock.
(2) Beginning July 1, 2010, any RIN-generating importer of renewable fuel must keep all of the following records:
(i) Product transfer documents consistent with § 80.1453 and associated with the renewable fuel importer's activity, if any, as transferor or transferee of renewable fuel.
(ii) Copies of all reports submitted to EPA under §§ 80.1449 and 80.1451(b).
(iii) Records related to the generation and assignment of RINs for each facility, including all of the following:
(A) Batch volume in gallons.
(B) Batch number.
(C) RIN as assigned under § 80.1426.
(D) Identification of batches by renewable category.
(E) Type and quantity of feedstocks used.
(F) Type and quantity of fuel used for process heat.
(G) Date of import.
(H) Results of any laboratory analysis of batch chemical composition or physical properties.
(I) The EPA registration number of the foreign renewable fuel producers producing the fuel.
(J) Additional information related to details of RIN generation.
(iv) Records related to each RIN transaction, including all of the following:
(A) A list of the RINs owned, purchased, sold, separated, retired, or reinstated.
(B) The parties involved in each transaction including the transferor, transferee, and any broker or agent.
(C) The date of the transfer of the RIN(s).
(D) Additional information related to details of the transaction and its terms.
(v) Copies of registration documents required under § 80.1450.
(vi) Records related to the import of any volume of renewable fuel that the importer designates for use as transportation fuel, jet fuel, or heating oil.
(vii) For renewable fuel or biointermediate produced from a type of renewable biomass not specified in paragraphs (c)(1)(i) through (vi) of this section, documents from their feedstock suppliers and feedstock aggregators, as applicable, certifying that the feedstock qualifies as renewable biomass, describing the feedstock.
(3) Producers of renewable fuel or biointermediate produced from separated yard and food waste, biogenic oils/fats/greases, or separated MSW must comply with either the recordkeeping requirements in paragraph (j) of this section or the alternative recordkeeping requirements in § 80.1479.
(d) Additional requirements for domestic producers of renewable fuel. (1) Except as provided in paragraphs (g) and (h) of this section, any domestic producer of renewable fuel that generates RINs for such fuel must keep documents associated with feedstock purchases and transfers that identify where the feedstocks were produced and are sufficient to verify that feedstocks used are renewable biomass if RINs are generated.
(2) Domestic producers of renewable fuel made from feedstocks that are planted trees or tree residue from actively managed tree plantations, slash and pre-commercial thinnings from forestlands or biomass obtained from areas at risk of wildfire must maintain all the following records to verify the location where these feedstocks were produced:
(i) Maps or electronic data identifying the boundaries of the land where each type of feedstock was produced.
(ii) Bills of lading, product transfer documents or other commercial documents showing the quantity of feedstock purchased from each area identified in paragraph (d)(2)(i) of this section, and showing each transfer of custody of the feedstock from the location where it was produced to the renewable fuel production facility.
(3) Domestic producers of renewable fuel made from planted trees or tree residue from actively managed tree plantations must keep records that serve as evidence that the land from which the feedstock was obtained was cleared prior to December 19, 2007 and actively managed on December 19, 2007. The records must be provided by the feedstock producer and must include at least one of the following documents, which must be traceable to the land in question:
(i) Sales records for planted trees or tree residue.
(ii) Purchasing records for fertilizer, weed control, or reseeding, including seeds, seedlings, or other nursery stock.
(iii) A written management plan for silvicultural purposes.
(iv) Documentation of participation in a silvicultural program sponsored by a Federal, state, or local government agency.
(v) Documentation of land management in accordance with a silvicultural product certification program, an agreement for land management consultation with a professional forester.
(vi) Evidence of the existence and ongoing maintenance of a road system or other physical infrastructure designed and maintained for logging use, together with one of the aforementioned documents.
(4) Domestic producers of renewable fuel made from planted crops or crop residue from existing foreign agricultural land must keep all the following records:
(i) Records that serve as evidence that the land from which the feedstock was obtained was cleared or cultivated prior to December 19, 2007 and actively managed or fallow, and nonforested on December 19, 2007. The records must be provided by the feedstock producer and must include at least one of the following documents, which must be traceable to the land in question:
(A) Sales records for planted crops, crop residue, or livestock.
(B) Purchasing records for fertilizer, weed control, seeds, seedlings, or other nursery stock.
(C) A written management plan for agricultural purposes.
(D) Documentation of participation in an agricultural program sponsored by a Federal, State, or local government agency.
(E) Documentation of land management in accordance with an agricultural product certification program.
(ii) Records to verify the location where the feedstocks were produced:
(A) Maps or electronic data identifying the boundaries of the land where each type of feedstock was produced; and
(B) Bills of lading, product transfer documents or other commercial documents showing the quantity of feedstock purchased from each area identified in paragraph (d)(4)(ii)(A) of this section, and showing each transfer of custody of the feedstock from the location where it was produced to the renewable fuel facility.
(5) Domestic producers of renewable fuel or biointermediates produced from a type of renewable biomass not specified in paragraphs (d)(2) through (4) of this section must have documents from their feedstock suppliers and feedstock aggregators, as applicable, certifying that the feedstock qualifies as renewable biomass, describing the feedstock.
(6) Producers of renewable fuel or biointermediate produced from separated yard and food waste, biogenic oils/fats/greases, or separated MSW must comply with either the recordkeeping requirements in paragraph (j) of this section or the alternative recordkeeping requirements in § 80.1479.
(e) Additional requirements for producers of fuel exempt from the 20% GHG reduction requirement. Beginning July 1, 2010, any production facility with a baseline volume of fuel that is not subject to the 20% GHG threshold, pursuant to § 80.1403(c) and (d), must keep all of the following:
(1) Detailed engineering plans for the facility.
(2) Federal, State, and local (or foreign governmental) preconstruction approvals and permitting.
(3) Procurement and construction contracts and agreements.
(f) Requirements for other parties that own RINs. Beginning July 1, 2010, any party, other than those parties covered in paragraphs (a) and (b) of this section, that owns RINs must keep all of the following records:
(1) Product transfer documents consistent with § 80.1453 and associated with the party's activity, if any, as transferor or transferee of renewable fuel or separated RINs.
(2) Copies of all reports submitted to EPA under § 80.1451(c).
(3) Records related to each RIN transaction by renewable fuel category, including all of the following:
(i) A list of the RINs owned, purchased, sold, separated, retired, or reinstated.
(ii) The parties involved in each RIN transaction including the transferor, transferee, and any broker or agent.
(iii) The date of the transfer of the RIN(s).
(iv) Additional information related to details of the transaction and its terms.
(4) Records related to any volume of renewable fuel that the party designated for use as transportation fuel, jet fuel, or heating oil and from which RINs were separated pursuant to § 80.1429(b)(4).
(g) Aggregate compliance with renewable biomass requirement. Any producer or RIN-generating importer of renewable fuel made from planted crops or crop residue from existing U.S. agricultural land as defined in § 80.1401, or from planted crops or crop residue from existing agricultural land in a country covered by a petition approved pursuant to § 80.1457, is covered by the aggregate compliance approach and is not subject to the recordkeeping requirements for planted crops and crop residue at § 80.1454(g)(2) unless EPA publishes a finding that the 2007 baseline amount of agricultural land in the U.S. has been exceeded or, for the aggregate compliance approach in a foreign country, that the withdrawal of EPA approval of the aggregate compliance approach is warranted pursuant to § 80.1457(e).
(1) EPA will make findings concerning whether the 2007 baseline amount of agricultural land in the U.S. or other country covered by a petition approved pursuant to § 80.1457 has been exceeded and will publish these findings in the Federal Register by November 30 of the year preceding the compliance period.
(2) If EPA finds that the 2007 baseline amount of agricultural land in the U.S. or other country covered by a petition approved pursuant to § 80.1457 has been exceeded, beginning on the first day of July of the compliance period in question any producer or RIN-generating importer of renewable fuel made from planted crops or crop residue in the country for which such a finding is made must keep all the following records:
(i) Records that serve as evidence that the land from which the feedstock was obtained was cleared or cultivated prior to December 19, 2007 and actively managed or fallow, and nonforested on December 19, 2007. The records must be provided by the feedstock producer and must include at least one of the following documents, which must be traceable to the land in question:
(A) Sales records for planted crops, crop residue or livestock.
(B) Purchasing records for fertilizer, weed control, seeds, seedlings, or other nursery stock.
(C) A written management plan for agricultural purposes.
(D) Documentation of participation in an agricultural program sponsored by a Federal, state, or local government agency.
(E) Documentation of land management in accordance with an agricultural product certification program.
(ii) Records to verify the location where the feedstocks were produced:
(A) Maps or electronic data identifying the boundaries of the land where each type of feedstock was produced; and
(B) Bills of lading, product transfer documents or other commercial documents showing the quantity of feedstock purchased from each area identified in paragraph (g)(2)(ii)(A) of this section, and showing each transfer of custody of the feedstock from the location where it was produced to the renewable fuel facility.
(h) Alternative renewable biomass tracking requirement. Any foreign or domestic renewable fuel producer or RIN-generating importer may comply with the following alternative renewable biomass tracking requirement instead of the recordkeeping requirements in paragraphs (c)(1), (d), and (g) of this section:
(1) To comply with the alternative renewable biomass tracking requirement under this paragraph (h), a renewable fuel producer or importer must either arrange to have an independent third party conduct a comprehensive program of annual compliance surveys, or participate in the funding of an organization which arranged to have an independent third party conduct a comprehensive program of annual compliance surveys, to be carried out in accordance with a survey plan which has been approved by EPA.
(2) The annual compliance surveys under this paragraph (h) must be all the following:
(i) Planned and conducted by an independent surveyor that meets the requirements in 40 CFR 1090.55.
(ii) Conducted at renewable fuel production and import facilities and their feedstock suppliers.
(iii) Representative of all renewable fuel producers and importers in the survey area and representative of their feedstock suppliers.
(iv) Designed to achieve at least the same level of quality assurance required in paragraphs (c)(1), (d) and (g) of this section.
(3) The compliance survey program shall require the independent surveyor conducting the surveys to do all the following:
(i) Conduct feedstock audits of renewable fuel production and import facilities in accordance with the survey plan approved under this paragraph (h), or immediately notify EPA of any refusal of these facilities to allow an audit to be conducted.
(ii) Obtain the records and product transfer documents associated with the feedstocks being audited.
(iii) Determine the feedstock supplier(s) that supplied the feedstocks to the renewable fuel producer.
(iv) Confirm that feedstocks used to produce RIN-generating renewable fuels meet the definition of renewable biomass.
(v) Immediately notify EPA of any case where the feedstocks do not meet the definition of renewable biomass.
(vi) Immediately notify EPA of any instances where a renewable fuel producer, importer or feedstock supplier subject to review under the approved plan fails to cooperate in the manner described in this section.
(vii) Submit to EPA a report of each survey, within thirty days following the completion of each survey, such report to include all the following information:
(A) The identification of the person who conducted the survey.
(B) An attestation by the officer of the surveyor company that the survey was conducted in accordance with the survey plan and the survey results are accurate.
(C) Identification of the parties for whom the survey was conducted.
(D) Identification of the covered area surveyed.
(E) The dates on which the survey was conducted.
(F) The address of each facility at which the survey audit was conducted and the date of the audit.
(G) A description of the methodology used to select the locations for survey audits and the number of audits conducted.
(viii) Maintain all records relating to the survey audits conducted under this section (h) for a period of at least 5 years.
(ix) At any time permit any representative of EPA to monitor the conduct of the surveys, including observing audits, reviewing records, and analysis of the audit results.
(4) A survey plan under this paragraph (h) must include all the following:
(i) Identification of the parties for whom the survey is to be conducted.
(ii) Identification of the independent surveyor.
(iii) A methodology for determining all the following:
(A) When the audits will be conducted.
(B) The audit locations.
(C) The number of audits to be conducted during the annual compliance period.
(iv) Any other elements determined by EPA to be necessary to achieve the level of quality assurance required under paragraphs (c)(1), (d), and (g) of this section.
(5)(i) Each renewable fuel producer and importer who participates in the alternative renewable biomass tracking under this paragraph (h) must take all reasonable steps to ensure that each feedstock producer, aggregator, distributor, or supplier cooperates with this program by allowing the independent surveyor to audit their facility and by providing to the independent surveyor and/or EPA, upon request, copies of management plans, product transfer documents, and other records or information regarding the source of any feedstocks received.
(ii) Reasonable steps under paragraph (h)(5)(i) of this section must include, but typically should not be limited to: Contractual agreements with feedstock producers, aggregators, distributors, and suppliers, which require them to cooperate with the independent surveyor and/or EPA in the manner described in paragraph (h)(5)(i) of this section.
(6) The procedure for obtaining EPA approval of a survey plan under this paragraph (h), and for revocation of any such approval, are as follows:
(i) A detailed survey plan which complies with the requirements of this paragraph (h) must be submitted to EPA, no later than September 1 of the year preceding the calendar year in which the surveys will be conducted.
(ii) The survey plan must be signed by a responsible corporate officer of the renewable fuel producer or importer, or responsible officer of the organization which arranges to have an independent surveyor conduct a program of renewable biomass compliance surveys, as applicable.
(iii) The survey plan must be sent to the attention of “RFS Program” to the address in § 80.10(a).
(iv) EPA will send a letter to the party submitting a survey plan under this section, either approving or disapproving the survey plan.
(v) EPA may revoke any approval of a survey plan under this section for cause, including an EPA determination that the approved survey plan had proved inadequate in practice or that it was not fully implemented.
(7)(i) No later than December 1 of the year preceding the year in which the surveys will be conducted, the contract with the independent surveyor shall be in effect, and an amount of money necessary to carry out the entire survey plan shall be paid to the independent surveyor or placed into an escrow account with instructions to the escrow agent to pay the money to the independent surveyor during the course of the conduct of the survey plan.
(ii) No later than December 15 of the year preceding the year in which the surveys will be conducted, EPA must receive a copy of the contract with the independent surveyor, proof that the money necessary to carry out the survey plan has either been paid to the independent surveyor or placed into an escrow account, and, if placed into an escrow account, a copy of the escrow agreement, to be sent to the official designated in paragraph (h)(6)(iii) of this section.
(8) A failure of any renewable fuel producers or importer to fulfill or cause to be fulfilled any of the requirements of this paragraph (h) will cause the option for such party to use the alternative quality assurance requirements under this paragraph (h) to be void ab initio.
(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 MSW, or biogenic waste oils/fats/greases. Except for parties complying with the alternative recordkeeping requirements in § 80.1479, a renewable fuel or biointermediate producer that produces fuel or biointermediate from separated yard waste, separated food waste, separated MSW, or biogenic waste oils/fats/greases must keep all the following additional records:
(1) For separated yard waste, separated food waste, and biogenic waste oils/fats/greases:
(i) Documents demonstrating the amounts, by weight, purchased of separated yard waste, separated food waste, or biogenic waste oils/fats/greases for use as a feedstock in producing renewable fuel.
(ii) Documents demonstrating the location of any establishment(s) from which the waste stream consisting solely of separated yard waste, separated food waste, or biogenic waste oils/fats/greases is collected.
(iii) Such other records as may be requested by EPA.
(2) For separated municipal solid waste:
(i) Contracts and documents memorializing the sale of paper, cardboard, plastics, rubber, textiles, metals, and glass separated from municipal solid waste for recycling.
(ii) Documents demonstrating the amounts by weight purchased of post-recycled separated yard and food waste for use as a feedstock in producing renewable fuel.
(iii) Documents demonstrating the fuel sampling methods used pursuant to § 80.1426(f)(9) and the results of all fuel analyses to determine the non-fossil fraction of fuel made from separated municipal solid waste.
(iv) Such other records as may be requested by EPA.
(k) Additional requirements for producers of renewable fuel using biogas. (1) Biogas/CNG/LNG and electricity in pathways involving feedstocks other than grain sorghum. A renewable fuel producer that generates RINs for renewable CNG, renewable LNG or renewable electricity pursuant to § 80.1426(f)(10) or (11), or that uses process heat from biogas to produce renewable fuel pursuant to § 80.1426(f)(12) shall keep all of the following additional records:
(i) Documentation recording the sale of renewable CNG, renewable LNG or renewable electricity for use as transportation fuel relied upon in § 80.1426(f)(10), § 80.1426(f)(11), or for use of biogas for process heat to make renewable fuel as relied upon in § 80.1426(f)(12) and the transfer of title of the biogas/CNG/LNG or renewable electricity from the point of biogas production to the facility which sells or uses the fuel for transportation purposes.
(ii) Documents demonstrating the volume and energy content of biogas/CNG/LNG, or kilowatts of renewable electricity, relied upon under § 80.1426(f)(10) that was delivered to the facility which sells or uses the fuel for transportation purposes.
(iii) Documents demonstrating the volume and energy content of biogas/CNG/LNG, or kilowatts of renewable electricity, relied upon under § 80.1426(f)(11), or biogas relied upon under § 80.1426(f)(12) that was placed into the commercial distribution.
(iv) Documents demonstrating the volume and energy content of biogas relied upon under § 80.1426(f)(12) at the point of distribution.
(v) Affidavits, EPA-approved documentation, or data from a real-time electronic monitoring system, confirming that the amount of the biogas/CNG/LNG or renewable electricity relied upon under § 80.1426(f)(10) and (11) was used for transportation purposes only, and for no other purpose. The RIN generator shall obtain affidavits, or monitoring system data under this paragraph (k), at least once per calendar quarter.
(vi) The biogas or renewable electricity producer's Compliance Certification required under Title V of the Clean Air Act.
(vii) Any other records as requested by EPA.
(2) Biogas and electricity in pathways involving grain sorghum as feedstock. A renewable fuel producer that produces fuel pursuant to a pathway that uses grain sorghum as a feedstock must keep all the following additional records, as appropriate:
(i) Contracts and documents memorializing the purchase and sale of biogas and the transfer of biogas from the point of generation to the ethanol production facility.
(ii) If the advanced biofuel pathway is used, documents demonstrating the total kilowatt-hours (kWh) of electricity used from the grid, and the total kWh of grid electricity used on a per gallon of ethanol basis, pursuant to § 80.1426(f)(13).
(iii) Affidavits from the biogas producer used at the facility, and all parties that held title to the biogas, confirming that title and environmental attributes of the biogas relied upon under § 80.1426(f)(13) were used for producing ethanol at the renewable fuel production facility and for no other purpose. The renewable fuel producer must obtain these affidavits for each quarter.
(iv) The biogas producer's Compliance Certification required under Title V of the Clean Air Act.
(v) Such other records as may be requested by EPA.
(l) Additional requirements for producers or importers of any renewable fuel other than ethanol, biodiesel, renewable gasoline, renewable diesel, biogas-derived renewable fuel, 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 § 80.12), biogas-derived renewable fuel or renewable electricity must keep all 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.
(2) Contracts and documents memorializing the sale of renewable fuel to parties who blend the fuel into gasoline or diesel fuel to produce a transportation fuel, heating oil or jet fuel, or who use the renewable fuel in its neat form for a qualifying fuel use.
(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.
(4) Such other records as may be requested by EPA.
(m) Requirements for independent third-party auditors. Any independent third-party auditor (as described at § 80.1471) must keep all of the following records for a period of at least five years:
(1) Copies of all reports submitted to the EPA under § 80.1451(g), as applicable.
(2) Records related to the implementation of a QAP under § 80.1469 for each facility including records from facility audits and ongoing and quarterly monitoring activities.
(3) Records related to the verification of RINs under § 80.1471(e).
(4) Copies of communications sent to and received from renewable fuel producers or foreign renewable fuel producers, feedstock suppliers, purchasers of RINs, and obligated parties.
(5) Copies of all notes relating to the implementation of a QAP under § 80.1469.
(6) List of RINs reported to the EPA and renewable fuel producers or foreign renewable fuel producers as potentially invalidly generated under § 80.1474 compliance.
(7) Records related to the professional liability insurance requirement under § 80.1471(c).
(8) Copies of all records related to any financial assurance instrument as required under § 80.1470 under a quality assurance plan implemented under § 80.1469(a) during the interim period.
(9) Copies of all records and notifications related to the identification of a potentially invalid RIN under § 80.1474(b).
(10) Copies of all reports required under § 80.1464.
(11) Such other records as may be requested by EPA.
(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:
(1) The specific crop residue feedstock(s) utilized to produce renewable fuel for each batch of renewable fuel produced.
(2) The total quantity of each specific crop residue feedstock used for each batch.
(3) Total amount of fuel produced under the crop residue pathway for each batch.
(o) Requirements for parties that redesignate certified NTDF as MVNRLM diesel fuel. Parties that redesignate certified NTDF as MVNRLM diesel fuel under § 80.1408 must keep all of the following additional records:
(1) Records related to all transactions in which certified NTDF is redesignated as MVNRLM diesel fuel.
(2) Records related to all transactions in which MVNRLM diesel fuel is redesignated to a non-transportation use.
(3) Records related to the volume of MVNRLM diesel fuel received.
(4) Records related to the volume of MVNRLM diesel fuel delivered.
(5) Records related to the volume of certified NTDF received.
(6) Records related to the volume of certified NTDF delivered.
(p) Requirements for recordkeeping of RIN holdings for all parties transacting or owning RINs. (1) Starting January 1, 2020, parties must retain records related to end-of-day separated D6 RIN holdings, and any associated calculations recorded in order to meet the RIN holdings requirements described in § 80.1435 for a period of at least five years. Such records must include information related to any corporate affiliates, contractual affiliates, and their RIN holdings and calculations.
(2) Parties must retain records related to their reports to EPA regarding threshold compliance under §§ 80.1435 and 80.1451 for a period of at least five years.
(q) Requirements for recordkeeping of contractual and corporate affiliates. (1) Parties must retain records including, but not limited to, the name, address, business location, contact information, and description of relationship, for each RIN-holding corporate affiliate for a period of at least five years. For the corporate affiliate group, a relational diagram.
(2) Parties must retain records including, but not limited to, the name, address, business location, contact information, and contract or other agreement for each contractual affiliate for a period of at least five years.
(3) If a party claims an exemption from aggregation under § 80.1435(e), the party must retain all records in support of the exemption for a period of at least five years and must provide these records to the attest auditor under § 80.1464, and to EPA upon request.
(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).
(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 EPA. 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 EPA under this section must be submitted in English or must include an English translation.
§ 80.1455   [Reserved]
§ 80.1456   What are the provisions for cellulosic biofuel waiver credits?
(a) If EPA reduces the applicable volume of cellulosic biofuel pursuant to section 211(o)(7)(D)(i) of the Clean Air Act (42 U.S.C. 7545(o)(7)(D)(i)) for any given compliance year, then EPA will provide cellulosic biofuel waiver credits for purchase for that compliance year.
(1) The price of these cellulosic biofuel waiver credits will be set by EPA on an annual basis in accordance with paragraph (d) of this section.
(2) The total cellulosic biofuel waiver credits available will be equal to the reduced cellulosic biofuel volume established by EPA for the compliance year.
(b) Use of cellulosic biofuel waiver credits. (1) Cellulosic biofuel waiver credits are only valid for use in the compliance year that they are made available.
(2) Cellulosic biofuel waiver credits are nonrefundable.
(3) Cellulosic biofuel waiver credits are nontransferable.
(4) Cellulosic biofuel waiver credits may only be used for an obligated party's current year cellulosic biofuel RVO and not towards any prior year deficit cellulosic biofuel volume obligations.
(c) Purchase of cellulosic biofuel waiver credits. (1) Only parties with an RVO for cellulosic biofuel may purchase cellulosic biofuel waiver credits.
(2) Cellulosic biofuel waiver credits shall be purchased from EPA at the time that a party submits its annual compliance report to EPA pursuant to § 80.1451(a)(1).
(3) Parties may not purchase more cellulosic biofuel waiver credits than their current year cellulosic biofuel RVO minus cellulosic biofuel RINs with a D code of 3 that they own.
(4) Cellulosic biofuel waiver credits may only be used to meet an obligated party's cellulosic biofuel RVO.
(d) Setting the price of cellulosic biofuel waiver credits. (1) The price for cellulosic biofuel waiver credits shall be set equal to the greater of:
(i) $0.25 per cellulosic biofuel waiver credit, adjusted for inflation in comparison to calendar year 2008; or
(ii) $3.00 less the wholesale price of gasoline per cellulosic biofuel waiver credit, adjusted for inflation in comparison to calendar year 2008.
(2) The wholesale price of gasoline will be calculated by averaging the most recent twelve monthly values for U.S. Total Gasoline Bulk Sales (Price) by Refiners as provided by the Energy Information Administration that are available as of September 30 of the year preceding the compliance period.
(3) The inflation adjustment will be calculated by comparing the Consumer Price Index for All Urban Consumers (CPI-U): U.S. City Average, Unadjusted Index for All Items expenditure category as provided by the Bureau of Labor Statistics for June of the year preceding the compliance period to the comparable value reported for January 2009.
(e) Cellulosic biofuel waiver credits under this section will only be able to be purchased on forms and following procedures prescribed by EPA.
§ 80.1457   Petition process for aggregate compliance approach for foreign countries.
(a) EPA may approve a petition for application of the aggregate compliance approach to planted crops and crop residue from existing agricultural land in a foreign country if EPA determines that an aggregate compliance approach will provide reasonable assurance that planted crops and crop residue from the country in question meet the definition of renewable biomass and will continue to meet the definition of renewable biomass, based on the submission of credible, reliable, and verifiable data.
(1) As part of its evaluation, EPA will consider all of the following:
(i) Whether there has been a reasonable identification of the “2007 baseline area of land,” defined as the total amount of cropland, pastureland, and land that is equivalent to U.S. Conservation Reserve Program land in the country in question that was actively managed or fallow and nonforested on December 19, 2007.
(ii) Whether information on the total amount of cropland, pastureland, and land that is equivalent to U.S. Conservation Reserve Program land in the country in question for years preceding and following calendar year 2007 shows that the 2007 baseline area of land identified in paragraph (a)(1)(i) of this section is not likely to be exceeded in the future.
(iii) Whether economic considerations, legal constraints, historical land use and agricultural practices and other factors show that it is likely that producers of planted crops and crop residue will continue to use agricultural land within the 2007 baseline area of land identified in paragraph (a)(1)(i) of this section into the future, as opposed to clearing and cultivating land not included in the 2007 baseline area of land.
(iv) Whether there is a reliable method to evaluate on an annual basis whether the 2007 baseline area of land identified in paragraph (a)(1)(i) of this section is being or has been exceeded.
(v) Whether a credible and reliable entity has been identified to conduct data gathering and analysis, including annual identification of the aggregate amount of cropland, pastureland, and land that is equivalent to U.S. Conservation Reserve Program land, needed for the annual EPA evaluation specified in § 80.1454(g)(1), and whether the data, analyses, and methodologies are publicly available.
(2) [Reserved]
(b) Any petition and all supporting materials submitted under paragraph (a) of this section must be submitted both in English and its original language (if other than English), and must include all of the following or an explanation of why it is not needed for EPA to consider the petition:
(1) Maps or electronic data identifying the boundaries of the land for which the petitioner seeks approval of an aggregate compliance approach.
(2) The total amount of land that is cropland, pastureland, or land equivalent to U.S. Conservation Reserve Program land within the geographic boundaries specified in paragraph (b)(1) of this section that was cleared or cultivated prior to December 19, 2007 and that was actively managed or fallow and nonforested on that date, and
(3) Land use data that demonstrates that the land identified in paragraph (b)(1) of this section is cropland, pastureland or land equivalent to U.S. Conservation Reserve Program land that was cleared or cultivated prior to December 19, 2007, and that was actively managed or fallow and nonforested on that date, which may include any of the following:
(i) Satellite imagery or data.
(ii) Aerial photography.
(iii) Census data.
(iv) Agricultural survey data.
(v) Agricultural economic modeling data.
(4) Historical land use data for the land within the geographic boundaries specified in paragraph (b)(1) of this section to the current year, which may include any of the following:
(i) Satellite imagery or data.
(ii) Aerial photography.
(iii) Census data.
(iv) Agricultural surveys.
(v) Agricultural economic modeling data.
(5) A description of any applicable laws, agricultural practices, economic considerations, or other relevant factors that had or may have an effect on the use of agricultural land within the geographic boundaries specified in paragraph (b)(1) of this section, including information regarding the efficacy and enforcement of relevant laws and regulations.
(6) A plan describing how the petitioner will identify a credible and reliable entity who will, on a continuing basis, conduct data gathering, analysis, and submittal to assist EPA in making an annual determination of whether the criteria specified in paragraph (a) of this section remains satisfied.
(7) A letter, signed by a national government representative at the ministerial level or equivalent, confirming that the petition and all supporting data have been reviewed and verified by the ministry (or ministries) or department(s) of the national government with primary expertise in agricultural land use patterns, practices, data, and statistics, that the data support a finding that planted crops and crop residue from the specified country meet the definition of renewable biomass and will continue to meet the definition of renewable biomass, and that the responsible national government ministry (or ministries) or department(s) will review and verify the data submitted on an annual basis to facilitate EPA's annual evaluation of the 2007 baseline area of land specified in § 80.1454(g)(1) for the country in question.
(8) Any additional information that EPA may require.
(c) EPA will issue a Federal Register notice informing the public of receipt of any petition submitted pursuant to this section and will provide a 60-day period for public comment. If EPA approves a petition it will issue a Federal Register notice announcing its decision and specifying an effective date for the application of the aggregate compliance approach to planted crops and crop residue from the country. Thereafter, the planted crops and crop residue from the country will be covered by the aggregate compliance approach set forth in § 80.1454(g), or as otherwise specified pursuant to paragraph (d) of this section.
(d) If EPA grants a petition to establish an aggregate compliance approach for planted crops and crop residue from a foreign country, it may include any conditions that EPA considers appropriate in light of the conditions and circumstances involved.
(e)(1) EPA may withdraw its approval of the aggregate compliance approach for the planted crops and crop residue from the country in question if:
(i) EPA determines that the data submitted pursuant to the plan described in paragraph (b)(6) of this section does not demonstrate that the amount of cropland, pastureland and land equivalent to U.S. Conservation Reserve Program land within the geographic boundaries covered by the approved petition does not exceed the 2007 baseline area of land;
(ii) EPA determines based on other information that the criteria specified in paragraph (a) of this section is no longer satisfied; or
(iii) EPA determines that the data needed for its annual evaluation has not been collected and submitted in a timely and appropriate manner.
(2) If EPA withdraws its approval for a given country, then producers using planted crops or crop residue from that country will be subject to the individual recordkeeping and reporting requirements of § 80.1454(b) through (d) in accordance with the schedule specified in § 80.1454(g).
§ 80.1458   Storage of renewable fuel, RNG, or biointermediate prior to registration.
(a) Applicability. (1) A renewable fuel producer may store renewable fuel for the generation of RINs prior to EPA acceptance of their registration under § 80.1450(b) if all the requirements of this section are met.
(2) An RNG producer may store RNG prior to EPA acceptance of their registration under § 80.135 if all the requirements of this section are met.
(3) A biointermediate producer may store biointermediate (including biogas used to produce a biogas-derived renewable fuel) prior to EPA acceptance of their registration under § 80.1450(b) if all the requirements of this section are met.
(b) Storage requirements. In order for a renewable fuel, RNG, or biointermediate producer to store renewable fuel, RNG, or biointermediate under this section, the producer must do the following:
(1) Produce the stored renewable fuel, RNG, or biointermediate after an independent third-party engineer has conducted an engineering review for the renewable fuel, RNG, or biointermediate production facility under § 80.1450(b)(2).
(2) Produce the stored renewable fuel, RNG, or biointermediate in accordance with all applicable requirements under this part.
(3) Make no change to the facility after the independent third-party engineer completed the engineering review.
(4) Store the renewable fuel, RNG, or biointermediate at the facility that produced the renewable fuel, RNG, or biointermediate.
(5) Maintain custody and title to the stored renewable fuel, RNG, or biointermediate until EPA accepts the producer's registration under § 80.1450(b).
(c) RIN generation. (1) A RIN generator may only generate RINs for stored renewable fuel, stored RNG, or renewable fuel produced from stored biointermediate if the RIN generator generates the RINs under §§ 80.125, 80.1426, and 80.1452, as applicable, after EPA accepts their registration under § 80.1450(b) and meets all other applicable requirements under this part for RIN generation.
(2) The RIN year of any RINs generated for stored renewable fuel, stored RNG, or renewable fuel produced from stored biointermediate is the year that the renewable fuel or RNG was produced.
(d) Limitations. RNG injected into a natural gas commercial pipeline system prior to EPA acceptance of a renewable fuel producer's registration under § 80.135 does not meet the requirements of this section and may not be stored.
§ 80.1459   [Reserved]
§ 80.1460   What acts are prohibited under the RFS program?
(a) Renewable fuels producer or importer violation. No person shall produce or import a renewable fuel without complying with the requirements of § 80.1426 regarding the generation and assignment of RINs.
(b) RIN generation and transfer violations. No person shall do any of the following:
(1) Generate a RIN for a fuel that is not a renewable fuel, or for which the applicable renewable fuel volume was not produced.
(2) Create or transfer to any person a RIN that is invalid under § 80.1431.
(3) Transfer to any person a RIN that is not properly identified as required under § 80.1425.
(4) Transfer to any person a RIN with a K code of 1 without transferring an appropriate volume of renewable fuel to the same person on the same day.
(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).
(7) Generate a RIN for fuel that fails to meet all the conditions set forth in an approval document for a pathway petition submitted under § 80.1416.
(8) 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.
(c) RIN use violations. No person shall do any of the following:
(1) Fail to acquire sufficient RINs, or use invalid RINs, to meet the person's RVOs under § 80.1427.
(2) Use a validly generated RIN to meet the person's RVOs under § 80.1427, or separate and transfer a validly generated RIN, where the person using the RIN ultimately uses the renewable fuel volume associated with the RIN in an application other than for use as transportation fuel, jet fuel, or heating oil.
(3) Use a validly generated RIN to meet the person's RVOs under § 80.1427, or separate and transfer a validly generated RIN, where the person ultimately uses the renewable fuel volume associated with the RIN in an application other than for use as transportation fuel, jet fuel, or heating oil.
(d) RIN retention violation. No person shall retain RINs in violation of the requirements in § 80.1428(a)(4).
(e) Causing a violation. No person shall cause another person to commit an act in violation of any prohibited act under this section.
(f) Failure to meet a requirement. No person shall fail to meet any requirement that applies to that person under this subpart.
(g) Failing to use a renewable fuel oil for its intended use. No person shall use fuel oil that meets paragraph (2) of the definition of “heating oil” in § 80.2 and for which RINs have been generated in an application other than to heat or cool interior spaces of homes or buildings to control ambient climate for human comfort.
(h) RIN separation violations. No person shall do any of the following:
(1) Identify separated RINs in EMTS with the wrong separation reason code.
(2) Identify separated RINs in EMTS without having a qualifying separation event pursuant to § 80.1429.
(3) Separate more than 2.5 RINs per gallon of renewable fuel that has a valid qualifying separation event pursuant to § 80.1429.
(4) Separate RINs outside of the requirements in § 80.1452(c).
(5) Improperly separate RINs in any other way not listed in paragraphs (h)(1)-(4) of this section.
(i) Independent third-party auditor violations. No person shall do any of the following:
(1) Fail to fully implement a QAP approved under § 80.1469.
(2) Fail to fully, accurately, and timely notify all appropriate parties of potentially invalid RINs under § 80.1474(b).
(3) Verify a RIN under § 80.1471(e) without verifying every applicable requirement in § 80.1469 and verifying each element in an approved QAP.
(j) Redesignation violations. No person may exceed the balance requirements at § 80.1408(a)(2)(i) without incurring an RVO.
(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 non-characteristic 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).
(l) Independent third-party engineer violations. No person shall do any of the following:
(1) Fail to identify any incorrect information submitted by any party as specified in § 80.1450(b)(2).
(2) Fail to meet any requirement related to engineering reviews as specified in § 80.1450(b)(2).
(3) Fail to disclose to EPA any financial, professional, business, or other interests with parties for whom the independent third-party engineer provides services under § 80.1450.
(4) Fail to meet any requirement related to the independent third-party engineering review requirements in § 80.1450(b)(2) or (d)(1).
§ 80.1461   Who is liable for violations under the RFS program?
(a) Liability for violations of prohibited acts. (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).
(b) Liability for failure to meet other provisions of this subpart. (1) Any person who fails to meet a requirement of any provision of this subpart is liable for a violation of that provision.
(2) Any person who causes another person to fail to meet a requirement of any provision of this subpart is liable for causing a violation of that provision.
(c) Parent corporation liability. Any parent corporation is liable for any violation of this subpart that is committed by any of its subsidiaries.
(d) Joint venture liability. Each partner to a joint venture is jointly and severally liable for any violation of this subpart that is committed by the joint venture operation.
(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.
(f) Third-party liability. Any party allowed under this subpart to conduct sampling and testing on behalf of a regulated party and does so to demonstrate compliance with the requirements of this subpart must meet those requirements in the same way that the regulated party must meet those requirements. The regulated party and the third party are both liable for any violations arising from the third party's failure to meet the requirements of this subpart.
§ 80.1462   [Reserved]
§ 80.1463   What penalties apply under the RFS program?
(a) Any person who is liable for a violation under § 80.1461 is subject to a civil penalty as specified in sections 205 and 211(d) of the Clean Air Act, for every day of each such violation and the amount of economic benefit or savings resulting from each violation.
(b) Any person liable under § 80.1461(a) for a violation of § 80.1460(c) for failure to meet its RVOs, or § 80.1460(e) for causing another person to fail to meet their RVOs during any compliance period, is subject to a separate day of violation for each day in the compliance period.
(c) Any person liable under § 80.1461(b) for failure to meet, or causing a failure to meet, a requirement of any provision of this subpart is liable for a separate day of violation for each day such a requirement remains unfulfilled.
(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.
§ 80.1464   What are the attest engagement requirements under the RFS program?
The requirements regarding annual attest engagements in 40 CFR 1090.1800, also apply to any attest engagement procedures required under this subpart M. In addition to any other applicable attest engagement procedures, such as the requirements in § 80.1466, the following annual attest engagement procedures are required under this subpart.
(a) Obligated parties and exporters of renewable fuel. The following attest procedures shall be completed for any obligated party or exporter of renewable fuel:
(1) Annual compliance demonstration report. (i) Obtain and read a copy of the annual compliance demonstration report required under § 80.1451(a)(1) which contains information regarding all the following:
(A) The obligated party's volume of all products listed in § 80.1407(c) and (e), or the exporter of renewable fuel's volume of each category of exported renewable fuel identified in § 80.1430(b)(1) through (b)(4).
(B) RVOs.
(C) RINs used for compliance.
(ii) Obtain documentation of any volumes of renewable fuel used in products listed in § 80.1407(c) and (e) at the refinery or import facility or exported during the reporting year; compute and report as a finding the total volumes of renewable fuel represented in these documents.
(iii) For obligated parties, compare the volumes of products listed in § 80.1407(c), (e), and (f) reported to EPA in the report required under § 80.1451(a)(1) with the volumes, excluding any renewable fuel volumes, contained in the inventory reconciliation analysis under 40 CFR 1090.1810 and the volume of non-renewable diesel produced or imported. Verify that the volumes reported to EPA agree with the volumes in the inventory reconciliation analysis and the volumes of non-renewable diesel produced or imported, and report as a finding any exception.
(iv) For exporters of renewable fuel, perform all of the following:
(A) Obtain the database, spreadsheet, or other documentation that the exporter of renewable fuel maintains for all exported renewable fuel.
(B) Compare the volume of products identified in these documents with the volumes reported to EPA.
(C) Verify that the volumes reported to EPA agree with the volumes identified in the database, spreadsheet, or other documentation, and report as a finding any exception.
(D) Select sample batches in accordance with the guidelines in 40 CFR 1090.1805 from each separate category of renewable fuel exported and identified in § 80.1451(a); obtain invoices, bills of lading and other documentation for the representative samples; state whether any of these documents refer to the exported fuel as advanced biofuel or cellulosic biofuel; and report as a finding whether or not the exporter of renewable fuel calculated an advanced biofuel or cellulosic biofuel RVO for these fuels pursuant to § 80.1430(b)(1) or (3).
(v) Compute and report as a finding the RVOs for the obligated party or exporter of renewable fuel, and any deficit RVOs carried over from the previous year or carried into the subsequent year, and verify that the values agree with the values reported to EPA.
(vi) Obtain the database, spreadsheet, or other documentation for all RINs by type of renewable fuel used for compliance during the year being reviewed; calculate the total number of RINs associated with each type of renewable fuel used for compliance by year of generation represented in these documents; state whether this information agrees with the report to EPA and report as a finding any exceptions.
(vii) For obligated parties that redesignate certified NTDF as MVNRLM diesel fuel under § 80.1408, perform the additional attest engagement procedures described at § 80.1475 and report any findings in the report described in paragraph (d) of this section. Parties that do not incur an RVO under § 80.1408(a)(2)(i) and do not otherwise need to complete an attest engagement under this paragraph (a) do not need to arrange for the additional attest engagement procedures under § 80.1475 to be performed.
(2) RIN transaction reports and product transfer documents. (i) Obtain and read copies of a representative sample, selected in accordance with the guidelines in 40 CFR 1090.1805, of each RIN transaction type (RINs purchased, RINs sold, RINs retired, RINs separated, RINs reinstated) included in the RIN transaction reports required under § 80.1451(a)(2) for the compliance year.
(ii) Obtain contracts, invoices, or other documentation for the representative samples of RIN transactions; compute the transaction types, transaction dates, and RINs traded; state whether the information agrees with the party's reports to EPA and report as a finding any exceptions.
(iii) Verify that the product transfer documents for the representative samples under paragraph (a)(2)(i) of this section of RINs sold and the RINs purchased contain the applicable information required under § 80.1453 and report as a finding any product transfer document that does not contain the required information.
(iv) Verify the accuracy of the information contained in the product transfer documents reviewed pursuant to paragraph (a)(2)(iii) of this section and report as a finding any exceptions.
(3) RIN activity reports. (i) Obtain and read copies of all quarterly RIN activity reports required under § 80.1451(a)(3) for the compliance year.
(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 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.
(4) RIN holdings. (i) Obtain and read copies of the RIN holdings calculations performed under § 80.1435 for the party and any corporate affiliates and the applicable database, spreadsheet, or other documentation the party maintains.
(ii) Select sample calculations in accordance with the guidelines in 40 CFR 1090.1805; compute and report as a finding the results of these calculations and verify that the results agree with the values reported to EPA.
(iii) Identify any date(s) where the aggregated calculation exceeded the RIN holding threshold(s) specified in § 80.1435. Compute and state as a finding whether this information agrees with the party's reports (notification of threshold exceedance) to EPA.
(5) Affiliates. Review reports and records related to corporate and contractual affiliates and state whether this information agrees with the party's reports to EPA, and report as a finding any exceptions.
(6) Exemption. Review and confirm the existence of records supporting an exemption from aggregation claimed by the party under § 80.1435(e), and report as a finding any exceptions.
(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) Renewable fuel producers and RIN-generating importers. The following attest procedures shall be completed for any RIN-generating renewable fuel producer or importer:
(1) RIN generation reports. (i) Obtain and read copies of the reports required under § 80.1451(b)(1), (e), and (d) for the compliance year.
(ii) Obtain production data for each renewable fuel batch by type of renewable fuel that was produced or imported during the year being reviewed; compute the RIN numbers, production dates, types, volumes of ethanol denaturant and applicable equivalence values, and production volumes for each batch; report the total RINs generated during the year being reviewed; and state whether this information agrees with the party's reports to EPA. Report as a finding any exceptions.
(iii) Verify that the proper number of RINs were generated and assigned pursuant to the requirements of § 80.1426 for each batch of renewable fuel produced or imported. For RINs generated for ethanol produced from corn starch at a facility using an approved pathway that requires the use of one or more of the advanced technologies listed in Table 2 to § 80.1426, verify that the required advanced technology or technologies were employed in accordance with the specifications in Tables 1 and 2 to § 80.1426, including any requirement for application to 90% of the production on a calendar year basis.
(iv) Obtain product transfer documents for a representative sample, selected in accordance with the guidelines in 40 CFR 1090.1805, of renewable fuel batches produced or imported during the year being reviewed; verify that the product transfer documents contain the applicable information required under § 80.1453; verify the accuracy of the information contained in the product transfer documents; report as a finding any product transfer document that does not contain the applicable information required under § 80.1453.
(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.
(B) Verify that feedstocks were properly identified in the reports and met the definition of renewable biomass.
(C) Verify that biointermediates were properly identified in the reports, as applicable.
(2) RIN transaction reports and product transfer documents. (i) Obtain and read copies of a representative sample, selected in accordance with the guidelines in 40 CFR 1090.1805, of each transaction type (RINs purchased, RINs sold, RINs retired, RINs separated, RINs reinstated) included in the RIN transaction reports required under § 80.1451(b)(2) for the compliance year.
(ii) Obtain contracts, invoices, or other documentation for the representative samples of RIN transactions; compute the transaction types, transaction dates, and the RINs traded; state whether this information agrees with the party's reports to EPA and report as a finding any exceptions.
(iii) Verify that the product transfer documents for the representative samples under paragraph (b)(2)(i) of this section of RINs sold and the RINs purchased contain the applicable information required under § 80.1453 and report as a finding any product transfer document that does not contain the required information.
(iv) Verify the accuracy of the information contained in the product transfer documents reviewed pursuant to paragraph (b)(2)(iii) of this section and report as a finding any exceptions.
(3) RIN activity reports. (i) Obtain and read copies of the quarterly RIN activity reports required under § 80.1451(b)(3) for the compliance year.
(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) Independent Third Party Engineering Review. (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.
(ii) Review and verify the written verification and records generated as part of the independent third party engineering review.
(iii) Verify that independent third-party 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).
(5) RIN holdings. (i) Obtain and read copies of the RIN holdings calculations performed under § 80.1435 for the party and any corporate affiliates and the applicable database, spreadsheet, or other documentation the party maintains.
(ii) Select sample calculations in accordance with the guidelines in 40 CFR 1090.1805; compute and report as a finding the results of these calculations and verify that the results agree with the values reported to EPA.
(iii) Identify any date(s) where the aggregated calculation exceeded the RIN holding threshold(s) specified in § 80.1435. Compute and state as a finding whether this information agrees with the party's reports (notification of threshold exceedance) to EPA.
(6) Affiliates. Review reports and records related to corporate and contractual affiliates and state whether this information agrees with the party's reports to EPA, and report as a finding any exceptions.
(7) Exemption. Review and confirm the existence of records supporting an exemption from aggregation claimed by the party under § 80.1435(e), and report as a finding any exceptions.
(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:
(1) RIN transaction reports and product transfer documents.
(i) Obtain and read copies of a representative sample, selected in accordance with the guidelines in 40 CFR 1090.1805, of each RIN transaction type (RINs purchased, RINs sold, RINs retired, RINs separated, RINs reinstated) included in the RIN transaction reports required under § 80.1451(c)(1) for the compliance year.
(ii) Obtain contracts, invoices, or other documentation for the representative samples of RIN transactions; compute the transaction types, transaction dates, and the RINs traded; state whether this information agrees with the party's reports to EPA and report as a finding any exceptions.
(iii) Verify that the product transfer documents for the representative samples under paragraph (c)(1)(i) of this section of RINs sold and RINs purchased contain the applicable information required under § 80.1453 and report as a finding any product transfer document that does not contain the required information.
(iv) Verify the accuracy of the information contained in the product transfer documents reviewed pursuant to paragraph (c)(1)(iii) of this section and report as a finding any exceptions.
(2) RIN activity reports.
(i) Obtain and read copies of the quarterly RIN activity reports required under § 80.1451(c)(2) for the compliance year.
(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.
(3) RIN holdings. (i) Obtain and read copies of the RIN holdings calculations performed under § 80.1435 for the party and any corporate affiliates and the applicable database, spreadsheet, or other documentation the party maintains.
(ii) Select sample calculations in accordance with the guidelines in 40 CFR 1090.1805; compute and report as a finding the results of these calculations and verify that the results agree with the values reported to EPA.
(iii) Identify any date(s) where the aggregated calculation exceeded the RIN holding threshold(s) specified in § 80.1435. Compute and state as a finding whether this information agrees with the party's reports (notification of threshold exceedance) to EPA.
(4) Affiliates. Review reports and records related to corporate and contractual affiliates and state whether this information agrees with the party's reports to EPA, and report as a finding any exceptions.
(5) Exemption. Review and confirm the existence of records supporting an exemption from aggregation claimed by the party under § 80.1435(e), and report as a finding any exceptions.
(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.
(d) Report submission deadlines —
(1) Obligated parties. Obligated parties must submit annual attest engagement reports to EPA by the next June 1 annual attest engagement reporting deadline after the annual compliance reporting deadline under § 80.1451(f)(1)(i).
(2) All other parties. All parties other than obligated parties must submit annual attest engagement reports to EPA by June 1 of the subsequent calendar year.
(3) Deadline publication. The annual attest engagement reporting deadline will be calculated in accordance with paragraph (d)(1) of this section and published on EPA's website.
(e) The party conducting the procedures under this section shall obtain a written representation from a company representative that the copies of the reports required under this section are complete and accurate copies of the reports filed with EPA.
(f) The party conducting the procedures under this section shall identify and report as a finding the commercial computer program used by the party to track the data required by the regulations in this subpart, if any.
(g) [Reserved]
(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 third-party 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 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) Independent third-party auditors. The following attest procedures shall be completed for any independent third-party auditor that implements a quality assurance plan in a calendar year:
(1) Comparing 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.
(ii) Obtain and read copies of any quality assurance plans approved under § 80.1469.
(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 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.
(iii)(A) Obtain the database, spreadsheet, or other documentation used to generate the information in the RIN verification reports;
(B) Obtain all underlying documents that the QAP provider relied upon to verify the RINs;
(C) Review the documents that the QAP auditor relied on to prepare the reports obtained in paragraph (d)(2)(i) of this section, verify that the underlying documents appropriately reflect the information reported to the EPA, and identify as a finding any discrepancies between the underlying documents and the information in the RIN verification reports;
(D) Compute the total number of current-year RINs and current-year potentially invalid RINs verified at the start and end of each quarter, as represented in these documents; and state whether this information agrees with the party's reports to the EPA; and
(E) Verify that all parties were appropriately notified under § 80.1474(b)(3) and report any missing notifications as a finding.
§ 80.1465   [Reserved]
§ 80.1466   What are the additional requirements under this subpart for foreign renewable fuel producers and importers of renewable fuels?
(a) Applicability. This section only applies to foreign renewable fuel producers that are 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”).
(b) General requirements. A registered foreign renewable fuel producer under this section must meet all requirements that apply to renewable fuel producers under this subpart.
(c) Designation, RIN-generating foreign producer certification, and product transfer documents. (1) Any registered foreign renewable fuel producer must designate each batch of such renewable fuel as “RFS-FRRF” at the time the renewable fuel is produced.
(2) On each occasion when RFS-FRRF is transferred for transport to a vessel or loaded onto a vessel or other transportation mode for transport to the United States, the RIN-generating foreign producer shall prepare a certification for each batch of RFS-FRRF; the certification shall include the report of the independent third party under paragraph (d) of this section, and all the following additional information:
(i) The name and EPA registration number of the company that produced the RFS-FRRF.
(ii) The identification of the renewable fuel as RFS-FRRF.
(iii) The identification of the renewable fuel by type, D code, and number of RINs generated.
(iv) The volume of RFS-FRRF, standardized per § 80.1426(f)(8), being transported, in gallons.
(3) On each occasion when any person transfers custody or title to any RFS-FRRF prior to its being imported into the United States, it must include all the following information as part of the product transfer document information:
(i) Designation of the renewable fuel as RFS-FRRF.
(ii) The certification required under paragraph (c)(2) of this section.
(d) Load port independent testing and producer identification. (1) On each occasion that RFS-FRRF is loaded onto a vessel for transport to the United States the RIN-generating foreign producer shall have an independent third party do all the following:
(i) Inspect the vessel prior to loading and determine the volume of any tank bottoms.
(ii) Determine the volume of RFS-FRRF, standardized per § 80.1426(f)(8), loaded onto the vessel (exclusive of any tank bottoms before loading).
(iii) Obtain the EPA-assigned registration number of the foreign renewable fuel producer.
(iv) Determine the name and country of registration of the vessel used to transport the RFS-FRRF to the United States.
(v) Determine the date and time the vessel departs the port serving the RIN-generating foreign producer.
(vi) Review original documents that reflect movement and storage of the RFS-FRRF from the RIN-generating foreign producer to the load port, and from this review determine all the following:
(A) The facility at which the RFS-FRRF was produced.
(B) That the RFS-FRRF remained segregated from Non-RFS-FRRF and other RFS-FRRF produced by a different foreign producer.
(2) The independent third party shall submit a report to the following:
(i) The RIN-generating foreign producer, containing the information required under paragraph (d)(1) of this section, to accompany the product transfer documents for the vessel.
(ii) EPA, containing the information required under paragraph (d)(1) of this section, within thirty days following the date of the independent third party's inspection. This report shall include a description of the method used to determine the identity of the foreign producer facility at which the renewable fuel was produced, assurance that the renewable fuel remained segregated as specified in paragraph (j)(1) of this section, and a description of the renewable fuel's movement and storage between production at the source facility and vessel loading.
(3) The independent third party must:
(i) Be approved in advance by EPA, based on a demonstration of ability to perform the procedures required in this paragraph (d);
(ii) Be independent under the criteria specified in 40 CFR 1090.1805; and
(iii) Sign a commitment that contains the provisions specified in paragraph (f) of this section with regard to activities, facilities and documents relevant to compliance with the requirements of this paragraph (d).
(e) Comparison of load port and port of entry testing. (1)(i) Any RIN-generating foreign producer and any United States importer of RFS-FRRF shall compare the results from the load port testing under paragraph (d) of this section, with the port of entry testing as reported under paragraph (k) of this section, for the volume of renewable fuel, standardized per § 80.1426(f)(8), except as specified in paragraph (e)(1)(ii) of this section.
(ii) Where a vessel transporting RFS-FRRF offloads the renewable fuel at more than one United States port of entry, the requirements of paragraph (e)(1)(i) of this section do not apply at subsequent ports of entry if the United States importer obtains a certification from the vessel owner that the requirements of paragraph (e)(1)(i) of this section were met and that the vessel has not loaded any renewable fuel between the first United States port of entry and the subsequent ports of entry.
(2)(i) If the temperature-corrected volumes, after accounting for tank bottoms, determined at the port of entry and at the load port differ by more than one percent, the number of RINs associated with the renewable fuel shall be calculated based on the lesser of the two volumes in paragraph (e)(1)(i) of this section.
(ii) Where the port of entry volume is the lesser of the two volumes in paragraph (e)(1)(i) of this section, the importer shall calculate the difference between the number of RINs originally assigned by the RIN-generating foreign producer and the number of RINs calculated under § 80.1426 for the volume of renewable fuel as measured at the port of entry, and acquire and retire that amount of RINs in accordance with paragraph (k)(3) of this section.
(f) Foreign producer commitments. Any foreign renewable fuel producer shall commit to and comply with the following provisions as a condition to being registered as a foreign renewable fuel 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 renewable fuel 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) Renewable fuel is produced;
(B) Documents related to renewable fuel producer operations are kept; and
(C) Renewable fuel is stored or transported between the foreign renewable fuel producer and the United States, 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 renewable fuel.
(B) The proper classification of renewable fuel as being RFS-FRRF.
(C) Transfers of title or custody to renewable fuel.
(D) 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 renewable fuel 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 shall be named, and service on this agent constitutes service on the foreign renewable fuel producer or any employee of the foreign renewable fuel 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 promulgated thereunder shall 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 shall apply to any civil or criminal enforcement action against the foreign renewable fuel producer or any employee of the foreign renewable fuel producer related to the provisions of this section.
(5) Applying to be an approved foreign renewable fuel producer under this section, or producing or exporting renewable fuel 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 renewable fuel 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 renewable fuel 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 renewable fuel 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 shall be signed by the owner or president of the foreign renewable fuel producer company.
(8) In any case where renewable fuel produced at a foreign renewable fuel production facility is stored or transported by another company between the production facility and the vessel that transports the renewable fuel to the United States, the foreign renewable fuel producer shall obtain from each such other company a commitment that meets the requirements specified in paragraphs (f)(1) through (7) of this section, and these commitments shall be included in the foreign renewable fuel producer's application to be an approved foreign renewable fuel producer under this subpart.
(g) Sovereign immunity. By submitting an application to be an approved foreign renewable fuel producer under this subpart, or by producing and exporting renewable fuel to the United States under such approval, the foreign renewable fuel 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 renewable fuel 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 renewable fuel 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).
(h) Bond posting. Any RIN-generating foreign producer shall meet the following requirements as a condition to approval as a RIN-generating foreign producer under this subpart:
(1) The RIN-generating foreign producer must post a bond of the amount calculated using the following equation.
(2) Bonds must be obtained in the proper amount from a third-party surety agent that is payable to satisfy United States administrative or judicial judgments against the foreign producer, provided EPA agrees in advance as to the third party and the nature of the surety agreement.
(3) Bonds posted under this paragraph (h) shall:
(i) Be used to satisfy any judicial judgment that results from an administrative or judicial enforcement action for conduct in violation of this subpart, including where such conduct 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);
(ii) Be provided by a corporate surety that is listed in the United States Department of Treasury Circular 570 “Companies Holding Certificates of Authority as Acceptable Sureties on Federal Bonds”; and
(iii) Include a commitment that the bond will remain in effect for at least five years following the end of latest annual reporting period that the RIN-generating foreign producer produces renewable fuel pursuant to the requirements of this subpart.
(4) On any occasion a RIN-generating foreign producer bond is used to satisfy any judgment, the RIN-generating foreign producer shall increase the bond to cover the amount used within 90 days of the date the bond is used.
(i) English language reports. Any document submitted to EPA by a foreign renewable fuel producer shall be in English, or shall include an English language translation.
(j) Prohibitions. (1) No person may combine RFS-FRRF with any Non-RFS-FRRF, and no person may combine RFS-FRRF with any RFS-FRRF produced at a different production facility, until the importer has met all the requirements of paragraph (k) of this section.
(2) No foreign renewable fuel producer or other person may cause another person to commit an action prohibited in paragraph (j)(1) of this section, or that otherwise violates the requirements of this section.
(3) No foreign renewable fuel producer or importer may generate RINs for the same volume of renewable fuel.
(4) A foreign renewable fuel producer is prohibited from generating RINs in excess of the number for which the bond requirements of this section have been satisfied.
(k) Requirements for United States importers of RFS-FRRF. Any United States importers of RFS-FRRF shall meet all the following requirements:
(1) Renewable fuel shall be classified as RFS-FRRF according to the designation by the RIN-generating foreign producer if this designation is supported by product transfer documents prepared by the foreign producer as required in paragraph (c) of this section.
(2) For each renewable fuel batch classified as RFS-FRRF, any United States importer shall have an independent third party do all the following:
(i) Determine the volume of renewable fuel, standardized per § 80.1426(f)(8), in the vessel.
(ii) Use the RIN-generating foreign producer's RFS-FRRF certification to determine the name and EPA-assigned registration number of the RIN-generating foreign producer that produced the RFS-FRRF.
(iii) Determine the name and country of registration of the vessel used to transport the RFS-FRRF to the United States.
(iv) Determine the date and time the vessel arrives at the United States port of entry.
(3) Where the importer is required to retire RINs under paragraph (e)(2) of this section, the importer must report the retired RINs in the applicable reports under § 80.1451.
(4) Any importer shall submit reports within 30 days following the date any vessel transporting RFS-FRRF arrives at the United States port of entry to all the following:
(i) EPA, containing the information determined under paragraph (k)(2) of this section.
(ii) The RIN-generating foreign producer, containing the information determined under paragraph (k)(2)(i) of this section, and including identification of the port at which the product was offloaded, and any RINs retired under paragraph (e)(2) of this section.
(5) Any United States importer shall meet all other requirements of this subpart for any imported renewable fuel that is not classified as RFS-FRRF under paragraph (k)(1) of this section.
(l) Truck imports of RFS-FRRF produced by a RIN-generating foreign producer. (1) Any RIN-generating foreign producer whose RFS-FRRF is transported into the United States by truck may petition EPA to use alternative procedures to meet all the following requirements:
(i) Certification under paragraph (c)(2) of this section.
(ii) Load port and port of entry testing under paragraphs (d) and (e) of this section.
(iii) Importer testing under paragraph (k)(2) of this section.
(2) These alternative procedures must ensure RFS-FRRF remains segregated from Non-RFS-FRRF until it is imported into the United States. The petition will be evaluated based on whether it adequately addresses all of the following:
(i) Contracts with any facilities that receive and/or transport RFS-FRRF that prohibit the commingling of RFS-FRRF with Non-RFS-FRRF or RFS-FRRF from other foreign renewable fuel producers.
(ii) Attest procedures to be conducted annually by an independent third party that review loading records and import documents based on volume reconciliation to confirm that all RFS-FRRF remains segregated.
(3) The petition described in this section must be submitted to EPA along with the application for approval as a RIN-generating foreign producer under this subpart.
(m) Additional attest requirements for producers of RFS-FRRF. The following additional procedures shall be carried out by any producer of RFS-FRRF as part of the attest engagement required for renewable fuel producers under this subpart M.
(1) Obtain listings of all tenders of RFS-FRRF. Agree the total volume of tenders from the listings to the volumes determined by the third party under paragraph (d) of this section.
(2) For each tender under paragraph (m)(1) of this section, where the renewable fuel is loaded onto a marine vessel, report as a finding the name and country of registration of each vessel, and the volumes of RFS-FRRF loaded onto each vessel.
(3) Select a sample from the list of vessels identified in paragraph (m)(2) of this section used to transport RFS-FRRF, in accordance with the guidelines in 40 CFR 1090.1805, and for each vessel selected perform all the following:
(i) Obtain the report of the independent third party, under paragraph (d) of this section, and of the United States importer under paragraph (k) of this section.
(A) Agree the information in these reports with regard to vessel identification and renewable fuel volume.
(B) Identify, and report as a finding, each occasion the load port and port of entry volume results differ by more than the amount allowed in paragraph (e) of this section, and determine whether the importer retired the appropriate amount of RINs as required under paragraph (e)(2) of this section, and submitted the applicable reports under § 80.1451 in accordance with paragraph (k)(4) of this section.
(ii) Obtain the documents used by the independent third party to determine transportation and storage of the RFS-FRRF from the RIN-generating foreign producer's facility to the load port, under paragraph (d) of this section. Obtain tank activity records for any storage tank where the RFS-FRRF is stored, and activity records for any mode of transportation used to transport the RFS-FRRF prior to being loaded onto the vessel. Use these records to determine whether the RFS-FRRF was produced at the RIN-generating foreign producer's facility that is the subject of the attest engagement, and whether the RFS-FRRF was mixed with any Non-RFS-FRRF or any RFS-FRRF produced at a different facility.
(4) Select a sample from the list of vessels identified in paragraph (m)(2) of this section used to transport RFS-FRRF, in accordance with the guidelines in 40 CFR 1090.1805, and for each vessel selected perform the following:
(i) Obtain a commercial document of general circulation that lists vessel arrivals and departures, and that includes the port and date of departure of the vessel, and the port of entry and date of arrival of the vessel.
(ii) Agree the vessel's departure and arrival locations and dates from the independent third party and United States importer reports to the information contained in the commercial document.
(5) Obtain a separate listing of the tenders under this paragraph (m)(5) where the RFS-FRRF is loaded onto a marine vessel. Select a sample from this listing in accordance with the guidelines in 40 CFR 1090.1805, and obtain a commercial document of general circulation that lists vessel arrivals and departures, and that includes the port and date of departure and the ports and dates where the renewable fuel was offloaded for the selected vessels. Determine and report as a finding the country where the renewable fuel was offloaded for each vessel selected.
(6) In order to complete the requirements of this paragraph (m) an auditor shall:
(i) Be independent of the RIN-generating foreign producer;
(ii) Be licensed as a Certified Public Accountant in the United States and a citizen of the United States, or be approved in advance by EPA based on a demonstration of ability to perform the procedures required in 40 CFR 1090.1800, § 80.1464, and this paragraph (m); and
(iii) Sign a commitment that contains the provisions specified in paragraph (f) of this section with regard to activities and documents relevant to compliance with the requirements of 40 CFR 1090.1800, § 80.1464, and this paragraph (m).
(n) Withdrawal or suspension of foreign renewable fuel producer approval. EPA may withdraw or suspend a foreign renewable fuel producer's approval where any of the following occur:
(1) A foreign renewable fuel producer fails to meet any requirement of this section.
(2) A foreign government fails to allow EPA inspections or audits as provided in paragraph (f)(1) of this section.
(3) A foreign renewable fuel producer asserts a claim of, or a right to claim, sovereign immunity in an action to enforce the requirements in this subpart.
(4) A foreign renewable fuel producer fails to pay a civil or criminal penalty that is not satisfied using the foreign renewable fuel producer bond specified in paragraph (h) of this section.
(o) Additional requirements for applications, reports, and certificates. Any application for approval as a foreign renewable fuel producer, alternative procedures under paragraph (l) of this section, any report, certification, or other submission required under this section shall be:
(1) Submitted in accordance with procedures specified by EPA, including use of any forms that may be specified by EPA.
(2) Signed by the president or owner of the foreign renewable fuel producer company, or by that person's immediate designee, and shall contain the following declarations:
(i) “I hereby certify:
(A) That I have actual authority to sign on behalf of and to bind [NAME OF FOREIGN RENEWABLE FUEL PRODUCER] with regard to all statements contained herein;
(B) That I am aware that the information contained herein is being Certified, or 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
(C) 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) “I affirm that I have read and understand the provisions of 40 CFR part 80, subpart M, including 40 CFR 80.1466 apply to [NAME OF FOREIGN RENEWABLE FUEL 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.”.
(p) Requirements for non-RIN-generating foreign producer. Any non-RIN-generating foreign producer must comply with the requirements of this section beginning on the effective date of the final rule or prior to EPA acceptance, whichever is later.
§ 80.1467   What are the additional requirements under this subpart for a foreign RIN owner?
(a) Foreign RIN owner. For purposes of this subpart, a foreign RIN owner 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 own RINs.
(b) General requirement. An approved foreign RIN owner must meet all requirements that apply to parties who own RINs under this subpart.
(c) Foreign RIN owner commitments. Any person shall commit to and comply with the provisions contained in this paragraph (c) as a condition to being approved as a foreign RIN owner under this subpart.
(1) Any United States Environmental Protection Agency inspector or auditor must be given full, complete, and immediate access to conduct inspections and audits of the foreign RIN owner's place of business.
(i) Inspections and audits may be either announced in advance by EPA, or unannounced.
(ii) Access will be provided to any location where documents related to RINs the foreign RIN owner has obtained, sold, transferred or held are kept.
(iii) Inspections and audits may be by 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 by EPA may include review and copying of any documents related to the following:
(A) Transfers of title to RINs.
(B) Work performed and reports prepared 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 RIN owner 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 shall be named, and service on this agent constitutes service on the foreign RIN owner or any employee of the foreign RIN owner 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 promulgated thereunder shall 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 shall apply to any civil or criminal enforcement action against the foreign RIN owner or any employee of the foreign RIN owner related to the provisions of this section.
(5) Submitting an application to be a foreign RIN owner, and all other actions to comply with the requirements of this subpart 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 RIN owner, its agents and employees in any court or other tribunal in the United States for conduct that violates the requirements applicable to the foreign RIN owner 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 RIN owner, or its agents or employees, will not seek to detain or to impose civil or criminal remedies against EPA inspectors or auditors, whether EPA employees or EPA contractors, for actions performed within the scope of EPA employment related to the provisions of this section.
(7) The commitment required by this paragraph (c) shall be signed by the owner or president of the foreign RIN owner business.
(d) Sovereign immunity. By submitting an application to be a foreign RIN owner under this subpart, the foreign entity, 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 RIN owner, its agents and employees in any court or other tribunal in the United States for conduct that violates the requirements applicable to the foreign RIN owner 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) Bond posting. Any foreign entity shall meet the requirements of this paragraph (e) as a condition to approval as a foreign RIN owner under this subpart.
(1) The foreign entity must post a bond of the amount calculated using the following equation:
(2) Bonds must be obtained in the proper amount from a third-party surety agent that is payable to satisfy United States administrative or judicial judgments against the foreign RIN owner, provided EPA agrees in advance as to the third party and the nature of the surety agreement.
(3) All the following shall apply to bonds posted under this paragraph (e); bonds shall:
(i) Be used to satisfy any judicial judgment that results from an administrative or judicial enforcement action for conduct in violation of this subpart, including where such conduct 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).
(ii) Be provided by a corporate surety that is listed in the United States Department of Treasury Circular 570 “Companies Holding Certificates of Authority as Acceptable Sureties on Federal Bonds”.
(iii) Include a commitment that the bond will remain in effect for at least five years following the end of latest reporting period in which the foreign RIN owner obtains, sells, transfers, or holds RINs.
(4) On any occasion a foreign RIN owner bond is used to satisfy any judgment, the foreign RIN owner shall increase the bond to cover the amount used within 90 days of the date the bond is used.
(f) English language reports. Any document submitted to EPA by a foreign RIN owner shall be in English, or shall include an English language translation.
(g) Prohibitions. (1) A foreign RIN owner is prohibited from obtaining, selling, transferring, or holding any RIN that is in excess of the number for which the bond requirements of this section have been satisfied.
(2) Any RIN that is obtained, sold, transferred, or held that is in excess of the number for which the bond requirements of this section have been satisfied is an invalid RIN under § 80.1431.
(3) Any RIN that is obtained from a person located outside the United States that is not an approved foreign RIN owner under this section is an invalid RIN under § 80.1431.
(4) No foreign RIN owner or other person may cause another person to commit an action prohibited in this paragraph (g), or that otherwise violates the requirements of this section.
(h) Additional attest requirements for foreign RIN owners. The following additional requirements apply to any foreign RIN owner as part of the attest engagement required for RIN owners under this subpart M.
(1) The attest auditor must be independent of the foreign RIN owner.
(2) The attest auditor must be licensed as a Certified Public Accountant in the United States and a citizen of the United States, or be approved in advance by EPA based on a demonstration of ability to perform the procedures required in 40 CFR 1090.1800 and § 80.1464.
(3) The attest auditor must sign a commitment that contains the provisions specified in paragraph (c) of this section with regard to activities and documents relevant to compliance with the requirements of 40 CFR 1090.1800 and § 80.1464.
(i) Withdrawal or suspension of foreign RIN owner status. EPA may withdraw or suspend its approval of a foreign RIN owner where any of the following occur:
(1) A foreign RIN owner fails to meet any requirement of this section, including, but not limited to, the bond requirements.
(2) A foreign government fails to allow EPA inspections as provided in paragraph (c)(1) of this section.
(3) A foreign RIN owner asserts a claim of, or a right to claim, sovereign immunity in an action to enforce the requirements in this subpart.
(4) A foreign RIN owner fails to pay a civil or criminal penalty that is not satisfied using the foreign RIN owner bond specified in paragraph (e) of this section.
(j) Additional requirements for applications, reports and certificates. Any application for approval as a foreign RIN owner, any report, certification, or other submission required under this section shall be:
(1) Submitted in accordance with procedures specified by EPA, including use of any forms that may be specified by EPA.
(2) Signed by the president or owner of the foreign RIN owner company, or by that person's immediate designee, and shall contain the following declaration:
I hereby certify: (1) That I have actual authority to sign on behalf of and to bind [INSERT NAME OF FOREIGN RIN OWNER] with regard to all statements contained herein; (2) that I am aware that the information contained herein is being Certified, or 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 (3) 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. I affirm that I have read and understand the provisions of 40 CFR part 80, subpart M, including 40 CFR 80.1467 apply to [INSERT NAME OF FOREIGN RIN OWNER]. 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.
§ 80.1468   [Reserved]
§ 80.1469   Requirements for Quality Assurance Plans.
This section specifies the requirements for Quality Assurance Plans (QAPs) for renewable fuels and biointermediates.
(a) Option A QAP Requirements, for Option A QAPs that were performed during the interim period.
(1) Feedstock-related components. (i) Components requiring ongoing monitoring:
(A) Feedstocks are renewable biomass.
(B) Feedstocks are being separated according to a separation plan, if applicable under § 80.1426(f)(5)(ii).
(C) Crop and crop residue feedstocks meet land use restrictions, or alternatively the aggregate compliance provisions of § 80.1454(g).
(D) If applicable, verify that feedstocks with additional recordkeeping requirements meet requirements of § 80.1454(d).
(E) Feedstocks are valid for the D code being used, and are consistent with information recorded in EMTS.
(F) Feedstock is consistent with production process and D code being used from the approved pathway.
(G) Feedstock is not renewable fuel for which RINs were previously generated.
(ii) Components requiring quarterly monitoring:
(A) Separated food waste or separated yard waste plan is accepted and up to date, if applicable under § 80.1426(f)(5)(ii).
(B) Separated municipal solid waste plan is approved and up to date, if applicable under § 80.1426(f)(5)(ii).
(C) Contracts or agreements for feedstock acquisition are sufficient for facility production.
(D) Feedstock processing and storage equipment are sufficient and are consistent with the most recent engineering review under § 80.1450(b)(2).
(E) If applicable, accuracy of feedstock energy FE calculation factors related to feedstocks, including average moisture content m and feedstock energy content E.
(2) Production process-related components. (i) Components requiring ongoing monitoring:
(A) Production process is consistent with that reported in EMTS.
(B) Production process is consistent with D code being used from the approved pathway.
(C) Certificates of analysis verifying fuel type and quality, as applicable.
(ii) Components requiring quarterly monitoring:
(A) Mass and energy balances are appropriate for type and size of facility.
(B) Workforce size is appropriate for type and size of facility, and sufficient workers are on site for facility operations.
(C) If applicable, process-related factors used in feedstock energy FE calculation are accurate, in particular the converted fraction CF.
(D) Verify existence of quality process controls designed to ensure that fuel continues to meet applicable property and quality specifications.
(E) Volume production is consistent with that reported to the EPA and EIA, as well as other federal or state reporting.
(F) Volume production is consistent with storage and distribution capacity.
(G) Volume production capacity is consistent with RFS registration.
(3) RIN generation-related components. (i) Components requiring ongoing monitoring:
(A) Standardization of volumes pursuant to § 80.1426(f)(8) are accurate.
(B) Renewable fuel type matches the D code being used.
(C) RIN generation is consistent with wet gallons produced or imported.
(D) Fuel shipments are consistent with production volumes.
(E) If applicable, renewable content R is accurate pursuant to § 80.1426(f)(9).
(F) Equivalence value EqV is accurate and appropriate.
(G) Renewable fuel was intended and sold for qualifying uses as transportation fuel, heating oil, or jet fuel.
(H) Verify that appropriate RIN generation calculations are being followed under § 80.1426(f)(3), (f)(4), or (f)(5), as applicable.
(ii) Components requiring quarterly monitoring:
(A) Registration, reporting and recordkeeping components.
(B) [Reserved]
(4) RIN separation-related components. (i) Components requiring ongoing monitoring:
(A) If applicable, verify that RIN separation is appropriate under § 80.1429(b)(4).
(B) If applicable, verify that RINs were retired for any fuel that the producer produced and exported.
(ii) Components requiring quarterly monitoring:
(A) Verify that annual attestation report is accurate.
(B) [Reserved]
(b) Option B QAP Requirements, for Option B QAPs that were performed during the interim period. All components specified in this paragraph (b) require quarterly monitoring, except for paragraph (b)(4)(iii) of this section, which must be done annually.
(1) Feedstock-related components. (i) Feedstocks are renewable biomass.
(ii) If applicable, separated food waste or separated yard waste plan under § 80.1426(f)(5)(ii) is accepted and up to date.
(iii) If applicable, separated municipal solid waste plan under § 80.1426(f)(5)(ii) is approved and current.
(iv) Feedstocks are being separated according to a separation plan, if applicable under § 80.1426(f)(5)(ii).
(v) Crop and crop residue feedstocks meet land use restrictions, or alternatively the aggregate compliance provisions of § 80.1454(g).
(vi) Feedstock is consistent with production process and D code being used from the approved pathway, and is consistent with information recorded in EMTS.
(vii) Feedstock is not renewable fuel for which RINs were previously generated.
(viii) If applicable, accuracy of feedstock energy FE calculation factors related to feedstocks, including average moisture content m and feedstock energy content E.
(2) Production process-related components. (i) Production process is consistent with that reported in EMTS.
(ii) Production process is consistent with D code being used from the approved pathway.
(iii) Mass and energy balances are appropriate for type and size of facility.
(iv) If applicable, process-related factors used in feedstock energy FE calculation are accurate, in particular the converted fraction CF.
(3) RIN generation-related components. (i) Renewable fuel was intended and sold for qualifying uses as transportation fuel, heating oil, or jet fuel.
(ii) Certificates of analysis verifying fuel type and quality, as applicable.
(iii) Renewable fuel type matches the D code being used.
(iv) If applicable, renewable content R is accurate pursuant to § 80.1426(f)(9).
(v) Equivalence value EqV is accurate and appropriate.
(vi) Volume production capacity is consistent with RFS registration.
(vii) Verify that appropriate RIN generation calculations are being followed under § 80.1426(f)(3), (f)(4), or (f)(5), as applicable.
(4) RIN separation-related components. (i) If applicable, verify that RIN separation is appropriate under § 80.1429(b)(4).
(ii) Verify that fuel that is exported was not used to generate RINs, or alternatively that were generated but retired.
(iii) Verify that annual attestation report is accurate.
(c) QAP Requirements. All components specified in this paragraph (c) require quarterly monitoring, except for paragraph (c)(4)(iii) of this section which must be done annually.
(1) Feedstock-related components. (i) Feedstocks are renewable biomass.
(ii) If applicable, plans under § 80.1426(f)(5)(ii) are accepted and up to date.
(iii) If applicable, separated municipal solid waste plan under § 80.1426(f)(5) is approved and current.
(iv) Feedstocks are being separated according to a separation plan, if applicable under § 80.1426(f)(5).
(v) Crop and crop residue feedstocks meet land use restrictions, or alternatively the aggregate compliance provisions of § 80.1454(g).
(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).
(viii) If applicable, accuracy of feedstock energy FE calculation factors related to feedstocks, including average moisture content m and feedstock energy content E.
(2) Production process-related components. (i) Production process is consistent with the renewable fuel producer or biointermediate producer's registration under § 80.1450(b).
(ii) Mass and energy balances are appropriate for type and size of facility.
(iii) If applicable, process-related factors used in feedstock energy FE calculation are accurate, in particular the converted fraction CF, pursuant to § 80.1426(f)(3).
(3) RIN generation-related components. (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.
(ii) Certificates of analysis verifying fuel type and quality, as applicable.
(iii) Renewable fuel type matches the D code being used.
(iv) If applicable, renewable content R is accurate pursuant to § 80.1426(f)(9).
(v) Equivalence value EqV is accurate and appropriate.
(vi) Volume production capacity is consistent with RFS registration.
(vii) Verify that appropriate RIN generation calculations are being followed under § 80.1426(f)(3), (f)(4), or (f)(5), as applicable.
(viii) RIN generation is consistent with wet gallons produced or imported.
(4) Other RIN-related components. (i) If applicable, verify that RIN separation is appropriate under § 80.1429(b).
(ii) Verify that fuel that is exported was not used to generate RINs, or alternatively that were generated but retired pursuant to § 80.1430.
(iii) Verify that annual attestation report is accurate.
(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 third-party auditor must select separate representative samples for the renewable fuel and biointermediate.
(6) Documentation. Independent third-party auditors must review all relevant registration information under § 80.1450, reporting information under § 80.1451, and recordkeeping information under § 80.1454, as well as any other relevant information and documentation required under this part, to verify elements in a QAP approved by EPA under this section.
(d) In addition to a general QAP encompassing elements common to all pathways, for each QAP there must be at least one pathway-specific plan for an approved pathway, which must contain elements specific to particular feedstocks, production processes, and fuel types, as applicable.
(e) Submission and approval of a QAP. (1) Each independent third-party auditor shall annually submit a general and at least one pathway-specific QAP to the EPA which demonstrates adherence to the requirements of paragraphs (a) and (d), (b) and (d), or (c) and (d) of this section, as applicable, and request approval on forms and using procedures specified by EPA.
(2) No third-party independent auditor may present a QAP as approved by the EPA without having received written approval from the EPA.
(3) A QAP is approved on the date that the EPA notifies the third-party independent auditor of such approval.
(4) The EPA may revoke its approval of a QAP for cause, including, but not limited to, an EPA determination that the approved QAP has proven to be inadequate in practice.
(5) The EPA may void ab initio its approval of a QAP upon the EPA's determination that the approval was based on false information, misleading information, or incomplete information, or if there was a failure to fulfill, or cause to be fulfilled, any of the requirements of the QAP.
(f) Conditions for revisions of a QAP. (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 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.
§ 80.1470   RIN replacement mechanisms for Option A independent third party auditors.
(a) Applicability. This section applies to independent third-party auditors using a QAP approved under Option A pursuant to § 80.1469(a) and (d) during the interim period.
(b) Requirements. An independent third party auditor must establish or participate in the establishment of a RIN replacement mechanism. The RIN replacement mechanism must fulfill, at a minimum, all the following conditions:
(1) The RIN replacement mechanism must be capable of fulfilling the independent third party auditor's RIN replacement responsibility, as described in § 80.1474(b)(5)(i).
(2) The independent third party auditor is responsible for calculating and maintaining the minimum coverage afforded by the RIN replacement mechanism at all times.
(3) RINs held by the RIN replacement mechanism (if any) must be identified in a unique EMTS account designated for the exclusive use of the replacement mechanism.
(4) Distribution and removal of RINs from the replacement mechanism may not be under the sole operational control of the third-party auditor.
(5) An originally signed duplicate of the agreement or contract establishing the RIN replacement mechanism must be submitted to the EPA by the independent third party auditor in accordance with § 80.1450(g)(7).
(6) Any substantive change to the agreement establishing the RIN replacement mechanism must be submitted to the EPA within 30 days of the change.
(c) Cap on RIN replacement for independent third party auditors of A-RINs. (1) If required to replace invalid A-RINs pursuant to paragraph (b) of this section, the independent third party auditor shall be required to replace no more than the percentage specified in paragraph (c)(2) of this section of each D code of A-RINs verified by the auditor in the current calendar year and four previous calendar years.
(2) The cap on RIN replacement for auditors of A-RINs shall be two percent for A-RINs generated in the interim period.
(3) The auditor's potential replacement responsibility for a given RIN will expire at the end of the fourth calendar year after the calendar year in which the RIN was verified.
(d) Applicability of the RIN replacement cap. The cap on RIN replacement does not apply when invalid verified RINs are a result of auditor error, omission, negligence, fraud, collusion with the renewable fuel producer, or a failure to implement the QAP properly or fully.
§ 80.1471   Requirements for QAP auditors.
(a) QAP audits conducted pursuant to § 80.1472 must be conducted by an independent third-party auditor.
(b) To be considered an independent third-party auditor under paragraph (a) of this section, all the following conditions must be met:
(1) The independent third-party auditor and its contractors and subcontractors must not be owned or operated by the audited party or any subsidiary or employee of the audited party.
(2) The independent third-party auditor and its contractors and subcontractors shall not be owned or operated by an obligated party or any subsidiary or employee of an obligated party.
(3) The independent third-party auditor shall not own, buy, sell, or otherwise trade RINs unless required to maintain a financial assurance mechanism for a QAP implemented under QAP Option A pursuant to § 80.1469(a) during the interim period or to replace an invalid RIN pursuant to § 80.1474.
(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 audited party's business.
(5) The audited party must be free from any interest or the appearance of any interest in the third-party auditor's business and the businesses of third-party 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(b) for the audited party for the same compliance period as a QAP audit conducted pursuant to § 80.1472.
(7) The independent third-party auditor and its contractors and subcontractors must not be debarred, suspended, or proposed for debarment pursuant to the Government-wide Debarment and Suspension regulations, 40 CFR part 32, or the Debarment, Suspension and Ineligibility provisions of the Federal Acquisition Regulations, 48 CFR part 9, subpart 9.4.
(8) The independent third-party auditor and its contractors and subcontractors must act impartially when performing all activities under this section.
(9) The independent third-party auditor and its contractors and subcontractors must be free from any interest in the audited party's business and receive no financial benefit from the outcome of auditing service, apart from payment for the auditing services.
(10) The independent third-party auditor and its contractors and subcontractors must not have been involved in the design or construction of the audited facility.
(11) The independent third-party auditor and its contractors and subcontractors must ensure that all personnel involved in the third-party audit (including the verification activities) under this section are not negotiating for future employment with the owner or operator of the audited party. At a minimum, prior to conducting the audit, the independent third-party auditor must obtain an attestation (or similar document) from each person involved in the audit stating that they are not negotiating for future employment with the owner or operator of the audited party.
(12) The independent third-party auditor and its contractors and subcontractors must have written policies and procedures to ensure that the independent third-party auditor and all personnel under the independent third-party auditor's direction or supervision comply with the competency, independence, and impartiality requirements of this section.
(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.
(d)(1) In the event that an independent third-party auditor identifies a RIN that may have been invalidly generated, the independent third-party auditor shall, within five business days, send notification of the potentially invalidly generated RIN to the EPA and the renewable fuel producer that generated the RIN.
(2) The independent third-party auditor shall provide the notification required under paragraph (d)(1) of this section in writing (which includes email or facsimile) and, if requested by the party being notified of a potentially invalidly generated RIN, by telephone.
(e) The independent third-party auditor shall identify RINs generated from a renewable fuel producer or foreign renewable fuel producer as having been verified under a QAP.
(1) For RINs verified under QAP Option A pursuant to § 80.1469(a) during the interim period, RINs shall be designated as A-RINs.
(2) For RINs verified under QAP Option B pursuant to § 80.1469(b), during the interim period, RINs shall be designated as B-RINs.
(3) For RINs verified under a QAP pursuant to § 80.1469(c), RINs shall be designated as Q-RINs and shall be identified as having been verified under a QAP in EMTS.
(4) The independent third-party auditor shall not identify RINs generated from a renewable fuel producer or foreign renewable fuel producer as having been verified under a QAP if a revised QAP must be submitted to and approved by the EPA under § 80.1469(f).
(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.
(i) For A-RINs, ongoing monitoring must have been initiated.
(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.
(2) Auditors may verify RINs that were generated before the audit required under § 80.1472 has been completed, under the following conditions:
(i) The RINs in question were generated during the interim period.
(ii) The audit is completed during the interim period.
(iii) The audit is performed in accordance with the elements specified in a QAP that has been approved by the EPA per § 80.1469(e).
(iv) The audit requirements of § 80.1472 are met for every batch of renewable fuel for which RINs were generated and are being verified.
(v) The auditor may not perform more than one audit under this subparagraph for any single RIN generator.
(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.
(h) Any person who fails to meet a requirement under of this section shall be subject to a separate violation pursuant to § 80.1460(f).
§ 80.1472   Requirements for quality assurance audits.
(a) General requirements. (1) An audit shall be performed by an auditor who meets the requirements of § 80.1471.
(2) An audit shall be based on either an Option A QAP per § 80.1469(a) during the interim period, an Option B QAP per § 80.1469(b) during the interim period, or a QAP per § 80.1469(c).
(3) Each audit shall verify every element contained in an applicable and approved QAP.
(4) Each audit shall include a review of documents generated by the renewable fuel producer or biointermediate producer.
(b) On-site visits —(1) Option A QAP during the interim period. (i) The auditor shall conduct an on-site visit at the renewable fuel production facility at least 4 times per calendar year.
(ii) The on-site visits specified in paragraph (b)(1)(i) of this section shall occur at least 60 days apart. The 60-day period shall start the day after the previous on-site ends.
(iii) The 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, except for any physical attribute that is verified through remote monitoring equipment per the applicable QAP.
(2) Option B QAP during the interim period. (i) The auditor shall conduct an on-site visit at the renewable fuel production facility at least 4 times per calendar year.
(ii) The on-site visits specified in paragraph (b)(2)(i) of this section shall occur at least 60 days apart. The 60-day period shall start the day after the previous on-site ends.
(iii) The 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.
(3) QAP. (i) As applicable, the independent third-party auditor shall conduct an on-site visit at the renewable fuel production facility, foreign ethanol production facility, or biointermediate production facility:
(A) At least two times per calendar year; or
(B) In the event an auditor uses a remote monitoring system approved by the EPA, at least one time per calendar year.
(ii) An on-site visit specified in paragraph (b)(3)(i) of this section shall occur no more than:
(A) 200 days after the previous on-site visit. The 200-day period shall start the day after the previous on-site visit ends; or
(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.
(iv) The on-site visit shall be overseen by a professional engineer, as specified in § 80.1450(b)(2)(i)(A) and (b)(2)(i)(B).
§ 80.1473   Affirmative defenses.
(a) Criteria. Any person who engages in actions that would be a violation of the provisions of either § 80.1460(b)(2) or (c)(1), other than the generator of an invalid RIN, will not be deemed in violation if the person demonstrates that the criteria under paragraphs (c), (d), or (e) of this section are met.
(b) Applicability of affirmative defenses. The following provisions apply to affirmative defenses asserted under paragraph (a) of this section:
(1) Affirmative defenses only apply to RINs that were invalidly generated and verified through a quality assurance audit using an EPA-approved QAP.
(2) Affirmative defenses only apply in situations where an invalidly generated verified RIN is either transferred to another person (violation of § 80.1460(b)(2)) or used for compliance for an obligated party's RVO (use violation of § 80.1460(c)(1)).
(3) Affirmative defenses do not apply to the generator of an invalid RIN.
(c) Asserting an affirmative defense for invalid A-RINs verified during the interim period. To establish an affirmative defense to a violation of § 80.1460(b)(2) or (c)(1) involving invalid A-RINs, the person must meet the notification requirements of paragraph (f) of this section and prove by a preponderance of evidence all of the following:
(1) The RIN in question was verified through a quality assurance audit pursuant to § 80.1472 using an approved Option A QAP as specified in § 80.1469(a).
(2) The person did not know or have reason to know that the RINs were invalidly generated prior to being verified by the independent third-party auditor.
(3) If the person self-identified the RIN as having been invalidly generated, the person notified the EPA within five business days of discovering the invalidity.
(4) The person did not cause the invalidity.
(5) The person did not have a financial interest in the company that generated the invalid RIN.
(d) Asserting an affirmative defense for invalid B-RINs verified during the interim period. To establish an affirmative defense to a violation of § 80.1460(b)(2) or (c)(1) involving invalid B-RINs, the person must meet the notification requirements of paragraph (f) of this section and prove by a preponderance of evidence all of the following:
(1) The RIN in question was verified through a quality assurance audit pursuant to § 80.1472 using an approved Option B QAP as specified in § 80.1469(b).
(2) The person did not know or have reason to know that the RINs were invalidly generated at the time of transfer or use for compliance, unless the RIN generator replaced the RIN pursuant to § 80.1474.
(3) If the person self-identified the RIN as having been invalidly generated, the person notified the EPA within five business days of discovering the invalidity.
(4) The person did not cause the invalidity.
(5) The person did not have a financial interest in the company that generated the invalid RIN.
(6) If the person used the invalid B-RIN for compliance, the person adjusted its records, reports, and compliance calculations in which the invalid B-RIN was used as required by § 80.1431, unless the RIN generator replaced the RIN pursuant to § 80.1474.
(e) Asserting an affirmative defense for invalid Q-RINs. To establish an affirmative defense to a violation of § 80.1460(b)(2) or (c)(1) involving invalid Q-RINs, the person must meet the notification requirements of paragraph (f) of this section and prove by a preponderance of evidence all of the following:
(1) The RIN in question was verified through a quality assurance audit pursuant to § 80.1472 using an approved QAP as specified in § 80.1469(c).
(2) The person did not know or have reason to know that the RINs were invalidly generated at the time of transfer or use for compliance, unless the RIN generator replaced the RIN pursuant to § 80.1474.
(3) If the person self-identified the RIN as having been invalidly generated, the person notified the EPA within five business days of discovering the invalidity.
(4) The person did not cause the invalidity.
(5) The person did not have a financial interest in the company that generated the invalid RIN.
(6) If the person used the invalid Q-RIN for compliance, the person adjusted its records, reports, and compliance calculations in which the invalid Q-RIN was used as required by § 80.1431, unless the RIN generator replaced the RIN pursuant to § 80.1474.
(f) Notification requirements. A person asserting an affirmative defense to a violation of § 80.1460(b)(2) or (c)(1), arising from the transfer or use of an invalid A-RIN, B-RIN, or Q-RIN must submit a written report to the EPA via the EMTS support line ( fuelsprogramsupport@epa.gov ), including all pertinent supporting documentation, demonstrating that the requirements of paragraphs (c), (d), or (e) of this section were met. The written report must be submitted within 30 days of the person discovering the invalidity.
§ 80.1474   Replacement requirements for invalidly generated RINs.
(a) Responsibility for replacement of invalid verified RINs. (1) The generator of the A-RIN and the independent third-party auditor that verified the A-RIN are required to replace invalidly generated A-RINs with valid RINs pursuant to the procedures specified in paragraph (b) of this section.
(2) The generator of the B-RIN and the obligated party that owns the B-RIN are required to replace invalidly generated B-RINs with valid RINs pursuant to the procedures specified in paragraph (b) of this section.
(3) The generator of the Q-RIN and the obligated party that owns the Q-RIN are required to replace invalidly generated Q-RINs with valid RINs pursuant to the procedures specified in paragraph (b) of this section.
(4) The generator of an unverified RIN and the obligated party that owns an unverified RIN are required to replace invalidly generated and unverified RINs pursuant to the procedures specified in paragraph (b) of this section.
(b) Identification and treatment of potentially invalid RINs (PIRs). (1) Any RIN can be identified as a PIR by the RIN generator, an independent third-party auditor that verified the RIN, or the EPA.
(2) For PIRs identified by the RIN generator, the generator is required to notify the EPA via the EMTS support line ( fuelsprogramsupport@epa.gov ) within five business days of the identification, including an initial explanation of why the RIN is believed to be invalid, and is required to take any of the following corrective actions within 30 days:
(i) Retire the PIR.
(ii) Retire a valid RIN meeting the requirements of paragraph (d) of this section.
(3) For PIRs identified by the independent third-party auditor that verified the RIN, the independent third-party auditor is required to notify the EPA via the EMTS support line ( fuelsprogramsupport@epa.gov ) and the RIN generator in writing within five business days of the identification, including an initial explanation of why the RIN is believed to be invalid.
(4) Within 30 days of being notified by the EPA or the independent third-party auditor that verified the RIN that a RIN is a PIR, the RIN generator is required to take one of the following actions:
(i) In the event that the EPA identifies a RIN as a PIR, do one of the following:
(A) Retire the PIR.
(B) Retire a valid RIN following the requirements of paragraph (d) of this section.
(C) Submit a demonstration in writing to the EPA via the EMTS support line ( fuelsprogramsupport@epa.gov ) that the PIR is valid.
( 1 ) If the EPA determines that the demonstration is satisfactory, the RIN will no longer be considered a PIR.
( 2 ) If the EPA determines that the demonstration is not satisfactory, the PIR will be deemed invalid and the PIR generator must retire the PIR or a valid RIN following the requirements of paragraph (d) of this section within 30 days of notification by the EPA.
(ii) In the event that the independent third-party auditor identifies a RIN as a PIR, do one of the following:
(A) Retire the PIR.
(B) Retire a valid RIN following the requirements of paragraph (d) of this section.
(C) Submit a demonstration in writing to the independent third-party auditor and the EPA via the EMTS support line ( fuelsprogramsupport@epa.gov ) that the PIR is valid.
( 1 ) If the independent third-party auditor determines that the demonstration is satisfactory, the PIR will be deemed to be a valid RIN; however, the EPA reserves the right to make a determination regarding the validity of the RIN.
( 2 ) If the independent third-party auditor determines that the demonstration is not satisfactory, the EPA will then make a determination whether the demonstration is not satisfactory, and if so, the PIR will be deemed invalid and the PIR generator must retire the PIR or a valid RIN following the requirements of paragraph (d) of this section within 30 days of notification by the EPA.
(5) Within 60 days of receiving a notification from the EPA that a PIR generator has failed to perform a corrective action required pursuant to this section:
(i) For A-RINs, the independent third-party auditor that verified the PIR is required to retire valid RINs meeting the requirements of paragraph (d) of this section.
(ii) For Q-RINs, B-RINs, and unverified RINs, the party that owns the invalid RIN is required to do one of the following:
(A) Retire the invalid RIN.
(B) If the invalid RIN has already been used for compliance with an obligated party's RVO, correct the RVO to subtract the invalid RIN.
(c) Failure to take corrective action. Any person who fails to meet a requirement under paragraph (b)(4) or (b)(5) of this section shall be liable for full performance of such requirement, and each day of non-compliance shall be deemed a separate violation pursuant to § 80.1460(f). The administrative process for replacement of invalid RINs does not, in any way, limit the ability of the United States to exercise any other authority to bring an enforcement action under section 211 of the Clean Air Act, the fuels regulations at 40 CFR part 80, or any other applicable law.
(d) The following specifications apply when retiring valid RINs to replace PIRs or invalid RINs:
(1) When a RIN is retired to replace a PIR or invalid RIN, the D code of the retired RIN must be eligible to be used towards meeting all the renewable volume obligations as the PIR or invalid RIN it is replacing, as specified in § 80.1427(a)(2).
(2) The number of RINs retired must be equal to the number of PIRs or invalid RINs being replaced, subject to paragraph (e) or (f) of this section if applicable, and § 80.1470(c).
(e) Limited exemption for invalid B-RINs verified during the interim period. (1) In the event that an obligated party is required to retire or replace an invalid RIN that is a B-RIN pursuant to paragraph (b) of this section, the obligated party will be afforded a “limited exemption” (LE) equal to two percent of its annual Renewable Volume Obligation (RVO) for calendar years 2013 and 2014 during the interim period.
(2) Limited exemptions are calculated as follows:
(3) If the number of invalidly generated B-RINs required to be retired or replaced in a calendar year is less than or equal to LE as calculated in paragraph (d)(2) of this section, the entire RIN retirement obligation is excused.
(4) If the number of invalidly generated B-RINs required to be retired or replaced in a calendar year is greater than LE as calculated in paragraph (d)(2) of this section, the retirement of a number of B-RINs equal to two percent of the obligated party's RVO is excused.
(5) The limited exemption for B-RINs applies only in calendar years 2013 and 2014 during the interim period.
(f) Limited exemption for invalid Q-RINs. (1) In the event that an obligated party is required to retire or replace an invalid RIN that is a Q-RIN pursuant to paragraph (b) of this section, the obligated party will be afforded a “limited exemption” (LE) equal to two percent of its annual Renewable Volume Obligation (RVO) for calendar years 2014, 2015, and 2016.
(2) Limited exemptions are calculated as follows:
(3) If the number of invalidly generated Q-RINs required to be retired or replaced in a calendar year is less than or equal to LE as calculated in paragraph (d)(2) of this section, the entire RIN retirement obligation is excused.
(4) If the number of invalidly generated Q-RINs required to be retired or replaced in a calendar year is greater than LE as calculated in paragraph (d)(2) of this section, the retirement of a number of Q-RINs equal to two percent of the obligated party's RVO is excused.
(5) The limited exemption for Q-RINs applies only in calendar years 2014, 2015, and 2016.
(g) All parties who retire RINs under this section shall use the forms and follow the procedures prescribed by EPA.
§ 80.1475   What are the additional attest engagement requirements for parties that redesignate certified NTDF as MVNRLM diesel fuel?
(a) General requirements. (1) In addition to the attest engagement requirements under § 80.1464, all obligated parties required to arrange for additional attest engagement procedures under § 80.1464(a)(1)(vii) must have an annual attest engagement conducted by an auditor using the minimum attest procedures specified in this section.
(2) All applicable requirements and procedures outlined in 40 CFR 1090.1800 through 1090.1850 apply to the auditors and attest engagement procedures specified in this section.
(3) Obligated parties must include any additional information required under this section in the attest engagement report under § 80.1464(d).
(4) Report as a finding if the party failed to either incur or satisfy an RVO if required.
(b) EPA reports. Auditors must perform the following:
(1) Obtain and read a copy of the obligated party's reports filed with EPA as required by § 80.1451(a)(1)(xix) for the reporting period.
(2) In the case of an obligated party's report to EPA that represents aggregate calculations for more than one facility, obtain the facility-specific volume and property information that was used by the refiner to prepare the aggregate report. Foot and crossfoot the facility-specific totals and agree to the values in the aggregate report. The procedures in paragraphs (b) and (c) of this section are then performed separately for each facility.
(3) Obtain a written representation from a company representative that the report copies are complete and accurate copies of the reports filed with EPA.
(4) Identify, and report as a finding, the name of the commercial computer program used by the refiner or importer to track the data required by the regulations in this part, if any.
(c) Inventory reconciliation analysis. Auditors must perform the following:
(1) Obtain an inventory reconciliation analysis for the facility for the reporting period for each of the following and perform the procedures at paragraphs (c)(2) through (4) of this section separately for each of the following products:
(i) The volume of certified NTDF that was redesignated as MVNRLM diesel fuel.
(ii) The volume of MVNRLM diesel fuel that was redesignated to a non-transportation use.
(iii) The volume of MVNRLM diesel fuel owned when the fuel was received at the facility and acquired at the facility during the compliance period.
(iv) The volume of MVNRLM diesel fuel owned and sold or transferred to other parties at the facility during the compliance period.
(v) The volume of certified NTDF received.
(vi) The volume of certified NTDF delivered.
(2) Foot and crossfoot the volume totals reflected in the analysis.
(3) Agree the beginning and ending inventory amounts in the analysis to the facility's inventory records.
(4) If the obligated party delivered more MVNRLM diesel fuel than received, agree the annual balance with the reports obtained at § 80.1475(b)(1) and verify whether the obligated party incurred and satisfied its RVO under § 80.1408(a)(2)(i).
(5) Report as a finding each of the volume totals along with any discrepancies.
(d) Listing of tenders. Auditors must perform the following:
(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. Each listing should provide for each tender the volume shipped and other information as needed to distinguish tenders.
(2) Foot to the volume totals per the listings.
(3) Agree the volume totals on the listing to the tender volume total in the inventory reconciliation analysis obtained in paragraph (c) of this section.
(4) For each of the listings select a representative sample of the tenders in accordance with the guidelines in 40 CFR 1090.1805, and for each tender selected perform the following:
(i) Obtain product transfer documents associated with the tender and agree the volume on the tender listing to the volume on the product transfer documents.
(ii) Note whether the product transfer documents include the information required by 40 CFR 1090.1115 and, for tenders involving the transfer of certified NTDF, the information required by § 80.1453(e).
(5) Report as a finding any discrepancies.
§ 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 off-site 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 EPA-assigned 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.
§ 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.
§ 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 RIN-generating 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 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 EPA, including use of any forms that may be specified by EPA.
(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 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 EPA-assigned 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.
§ 80.1479   Alternative recordkeeping requirements for separated yard waste, separated food waste, separated MSW, and biogenic waste oils/fats/greases.
(a) Alternative recordkeeping. In lieu of complying with the recordkeeping requirements in § 80.1454(j), a renewable fuel producer or biointermediate producer that produces renewable fuel or biointermediate from separated yard waste, separated food waste, separated MSW, or biogenic waste oils/fats/greases and uses a feedstock aggregator to supply these feedstocks may comply with the alternative recordkeeping requirements of this section.
(b) Registration of the feedstock aggregator. The feedstock aggregator must register under 40 CFR 1090.805.
(c) QAP participation. (1) The renewable fuel or biointermediate producer must have their RINs or biointermediate, as applicable, verified by an independent third-party auditor under an approved QAP that includes a description of how the independent third-party auditor will audit each feedstock aggregator.
(2) The independent third-party auditor must conduct a site visit of each feedstock aggregator's establishment as specified in § 80.1471(f). Instead of verifying RINs with a site visit of the feedstock aggregator's establishment every 200 days as specified in § 80.1471(f)(1)(ii), the independent third-party auditor may verify RINs with a site visit every 380 days.
(d) PTDs. PTDs must accompany transfers of separated yard waste, separated food waste, separated MSW, and biogenic waste oils/fats/greases from the point where the feedstock leaves the feedstock aggregator's establishment to the point the feedstock is delivered to the renewable fuel production facility, as specified in § 80.1453(f)(1)(i) through (v).
(e) Recordkeeping. The feedstock aggregator must keep all applicable records for the collection of separated yard waste, separated food waste, separated MSW, and biogenic waste oils/fats/greases as specified in § 80.1454(j).
(f) Liability. The feedstock aggregator and renewable fuel producer are liable for violations as specified in § 80.1461(e).