EO12866_Qual Assurance Prog 2060
- AR72 NPRM FRN_201 30123 .docx *** E.O. 12866 Review
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**ENVIRONMENTAL PROTECTION AGENCY**

**40 CFR Part 80 [EPA**  **- HQ**  **- OAR** **- 2012**  **- 0621; FRL**  **- XXXX**  **- X]** 

**RIN 2060 -**  **AR72 RFS Renewable Identification Number (RIN) Quality Assurance Program**  **AGENCY:** Environmental Protection Agency (EPA). **ACTION:** Proposed rule. **SUMMARY:** Under the Renewable Fuel Standard (RFS) program, producers and importers of renewable fuel generate Renewable Identification Numbers (RINs) that are used by petroleum refiners and importers to demonstrate compliance with their renewable fuel volume oblig ations. Several cases of fraudulently generated RINs, however, have led to inefficiencies and a significant reduction in the overall liquidity in the RI N market. The result has been greater difficulty for smaller renewable fuel producers to sell their RI Ns. Today 's action proposes additional regulatory

provisions that would promote greater liquidity in the RI N market in a way that assures reasonable oversight of RIN generation and assures use of the required renewable fuel volumes. The proposal includes a voluntary quality assurance program and related provisions intended to meet these goals. The proposed program also includes elements designed to make it possible to verify the validity

of RINs for all of 2013. Additionally , we are proposing a number of new regulatory provisions to ensure that RI Ns are retired for all renewable fuel that is exported and to address RI Ns that become invalid downstream of a renewable fuel producer. **DATES:** Comments must be received on or before [ **insert date 30**  **days after date of public**  **hearing** ]. Hearing: We will hold a hearing on XXXdateXXX at XXXlocationXXX, Washington, DC, beginning at 9: 00 am local time . **ADDRESSES:** Submit your comments, identified by Docket ID No. EPA - HQ - OAR - 2012 - 0621, by one of the following methods: • www.regulat ions.gov : Follow the on - line instructions for submitting comments. • Email: a - and - r - docket@epa.gov . • Mail: Air and Radiation Docket and Information Center, Environmental Protection Agency , Mailcode: 2822T, 1200 Pennsylvania Ave., NW., Washington, DC 20460. • Hand Delivery : EPA Docket Center, EPA West Building, Room 3334, 1301 Constitution Ave., NW., Washington, DC 20460. Such deliveries are onl y accepted during the Docket’s normal hours of operation, and special arrangements should be made for deliveries of boxed information. Instructions: Direct your comments to Docket ID No. EPA - HQ - OAR - 2012 - 0621. EPA's policy is that all comments received will be included in the public docket without change and may be*** E.O. 12866 Review
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Page 2 of 149 made ava ilable online at www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that yo u consider to be CBI or otherwise protected through www.regulations.gov or e - mail. The www.regulations.gov website is an “anon ym ous access” s ys tem, which means EPA will not know your identity

or contact information unless you provide it in the body of your comment. If yo u send an e - mail comment directly to EPA without going through www.regulations.gov your e - mail address will be automatically captured and included as part of the comment that is placed in the public docket and made avail able on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with an y disk or CD - ROM you submit. I f EPA cannot read your comment due to technical diffic ulties and cannot contact you for clarification, EPA may not be able to consider yo ur comment. Electronic files should avoid the use of special characters, any form of encry ption, and be free of any

defects or viruses. For additional information about EP A’s public docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm. For additional instructions on submitting comments, go to Section I .B of the **SUPPLEMENTARY INFORMATION**  section of this document. Docket: All documents in the docket are listed in the www.regulations.gov index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted b y statute. Certain other material, such as copyrighted material, will be publicly

available only

in hard copy . Publicly

available docket materials are available either electronicall y in www.regulations.gov or in hard cop y at the Air and Radiation Docket and In formation Center, EPA/DC, EPA West, Room 3334, 1301 Constitution Ave., NW, Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday , excluding legal holiday s. The telephone number for the Public Reading Room is (202) 566 - 1744, and the telephone number for the Air Docket is (202) 566 - 1742. **FOR FURTHER INFORMATION CONTACT:** Mary Manners, Office of Transportation and Air Quality , Compliance Division, Environmental Protection Agency , 2000 Traverwood Drive, Ann Arbor MI 48105; Telephone number: 734 - 214 - 4873; Fax number: 734 - 21 4 - 4051; E - mail address: manners.mary @epa.gov, or the information line for the Office of Transportation and Air Quality Compliance Division ; telephone number (734) 214 - 4343 ; E - mail address complianc @epa.gov. **SUPPLEMENTARY INFORMATION: I.**  **General Information** A. Does this Action Apply to Me? Entities potentially

affected by

this proposed rule are those involved with the production, distribution, and sale of transportation fuels, including gasoline and diesel fuel or renewable fuels such a s ethanol and biodiesel. Potentially regulated categories include:*** E.O. 12866 Review
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Page 3 of 149 Category NAI CS 1

Codes SI C 2

Codes Examples of Potentially Regulated Entities Industry Industry Industry Industry Industry Industry Industry 324110

325193 325199 424690 424710 424720 454319 2911

2869 2869 5169 5171 5172 5989 Petroleum Refineries Ethyl alcohol manufacturing Other basic organic chemical manufacturing Chemical and allied products merchant wholesalers Petroleum bulk stations and terminals Petroleum and petroleum products merchant wholesalers Other fuel dealers 1 North American Industry Classification S ys tem (NAI CS) 2 Standard Industrial Classification (SI C) s ys tem code. This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely

to be regulated b y this proposed action. This table lists the ty pes of entities that EPA is now aware could potentiall y be regulated b y this pro posed action. Other ty pes of entities not listed in the table could also be regulated. To determine whether your activities would be regulated b y this proposed action, you should carefully examine the applicability

criteria in 40 CFR part 80. If you hav e an y questions regarding the applicability of this proposed action to a particular entity , consult the person listed in the preceding section. B. What Should I Consider as I Prepare My Comments for EPA? 1. Submitting CBI Do not submit confidential business information (CBI) to EPA through www.regulations.gov or e - mail. Clearl y mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD ROM that you mail to EPA, mark the outside of the disk or CD ROM as CBI and then identify electronicall y within the disk or CD ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a cop y of the comment that does not contain the infor mation claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2. 2. Tips for Preparing Your Comments When submitting comments, remember to: • Id entify

the rulemaking by

docket number and other identifying information (subject heading, **Federal Register** date and page number). • Follow directions - The agency may ask you to respond to specific questions or organize comments by

refere ncing a Code of Federal Regulations (CFR) part or section number. • Explain why

you agree or disagree, suggest alternatives, and substitute language for your requested changes. • Describe an y assumptions and provide an y technical information and/or data th at you used.*** E.O. 12866 Review
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Page 4 of 149 • If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced. • Provide specific examples to illustrate your concerns, and suggest alternatives. • Explain your vie ws as clearl y as possible, avoiding the use of profanity or personal threats. • Make sure to submit your comments by the comment period deadline identified. **Outline of this preamble** I. EXECUTIVE SUMMARY ................................ ................................ ................................ .... 8 A. Purpose of this Action ................................ ................................ ................................ ............. 8 B. Summary

of Major Provisions ................................ ................................ ................................ 9 C. Impacts ................................ ................................ ................................ ................................ .. 10 II. BACKGROUND AND PURPO SE ................................ ................................ ...................... 12 A. Treatment of Invalid RINs Under the Current Regulations ................................ .................. 13 B. Recent Issues Regarding Liability for Invalidly

Generated RINs ................................ ........ 15 C. Industry Sy stems that Conduct Oversight of RIN Generation ................................ .............. 17 1. Existing Sy stems ................................ ................................ ................................ ............... 17 2. Sufficiency

of Existing Sy stems ................................ ................................ ....................... 18 D. EPA Goals in Proposing New Regulatory Provisions ................................ .......................... 18 III. OVERVIEW OF THE PROP OSED PROGRAM ................................ ............................ 20 A. Requirements for a Quality Assurance Plan and QAP Audits ................................ .............. 21 B. Requirements for an Affirmative Defense ................................ ................................ ............ 22 C. Replacement of Invalid RI Ns ................................ ................................ ................................ 23 D. Voluntary

Participation ................................ ................................ ................................ ......... 25 E. Treatment of RINs Prior to Final Rule Promulgation ................................ ........................... 26 F. Request for Comment on Prohibiting Producers from Separating RINs .............................. 28 G. Summary

of the Two QAP Options ................................ ................................ ...................... 29 IV . PROVI SI ONS FOR RIN V ERIFICAT ION UNDER OP TI ON A ................................ ... 31 A. Requirements for Option A Quality Assurance Plans ................................ .......................... 32 1. Elements of an Option A QAP ................................ ................................ .......................... 32 a. Feedstock - related components ................................ ................................ ...................... 33 b. Production process - related components ................................ ................................ ....... 34 c. RI N generation - related components ................................ ................................ ............. 36 d. RI N separation - related components ................................ ................................ .............. 37 2. Approval and Use of Option A QAPs ................................ ................................ ............... 38 a. Approval of Quality Assurance Plan ................................ ................................ ............ 38 b. Frequency

of Updates or Revisions to QAPs ................................ ............................... 38 B. RI N Replacement Mechanisms Under Option A ................................ ................................ .. 38 1. Required Replacement Capability for RIN Replacement Mechanisms ............................ 40 2. Financial Assurance Instruments ................................ ................................ ...................... 41 3. RI N Banks ................................ ................................ ................................ ......................... 43*** E.O. 12866 Review
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Page 5 of 149 4. A - RI

N Escrow Accounts ................................ ................................ ................................ .. 44 C. Affirmative Defenses ................................ ................................ ................................ ............ 45 D. Treatment of Invalid A - RI Ns ................................ ................................ ................................ 48 1. Responsibilities for Replacement of Invalid Verified A - RI Ns ................................ ......... 48 2. Invalid A - RI

N Replacement ................................ ................................ ............................. 49 3. Process for Replacing Invalid Verified RINs ................................ ................................ ... 51 a. Ty pes of RINs that Can Replace Invalid Verified RI Ns ................................ ............... 52 b. Impacts of RIN Replacement on Renewable Fuel Demand ................................ ......... 52 4. Cap on RI

N Replacement ................................ ................................ ................................ . 53 V. PROVI SI ONS FOR RIN V ERIFICAT ION UNDER OP TI ON B ................................ ....... 55 A. Requirements for Option B Qualit y Assurance Plans ................................ ........................... 55 1. Elements of an Option B QAP ................................ ................................ .......................... 55 a. Feedstock - related components ................................ ................................ ...................... 56 b. Production process - related components ................................ ................................ ....... 57 c. RI N generation - related components ................................ ................................ ............ 58 d. RI N separation - related components ................................ ................................ .............. 59 2. Approval and Use of QAPs ................................ ................................ ............................... 59 a. Approval of Quality Assurance Plan ................................ ................................ ............ 60 b. Frequency

of Updates/Revisions to QAPs ................................ ................................ .... 60 B. RI N Replacement Mechanisms ................................ ................................ ............................. 60 C. Affirmative Defenses ................................ ................................ ................................ ............ 60 D. Treatment of Invalid B - RINs ................................ ................................ ................................ 62 1. Responsibilities for Replacement of Invalid Verified B - RI Ns ................................ ......... 62 2. Invalid B - RI

N Replacement ................................ ................................ ............................. 63 3. Process for Replacing Invalid Verified RINs ................................ ................................ ... 64 4. Temporary

L imited Exemption for Invalid RI N Replacement ................................ ......... 65 a. Determination of the Appropriate Exemption L evel ................................ .................... 65 b. How Would the L imited Exemption be Applied? ................................ ........................ 67 VI . PROPOSED REQUIREMENT S FOR AUDITORS ................................ ........................ 70 A. Who Can Be An Auditor? ................................ ................................ ................................ ..... 70 1. Independence ................................ ................................ ................................ .................... 70 2. Professionally

Qualified to Implement a QAP ................................ ................................ . 71 3. Errors and Omissions Insurance ................................ ................................ ....................... 73 B. Registration Requirements ................................ ................................ ................................ .... 73 C. Other Responsibilities of Auditors ................................ ................................ ........................ 75 1. Notifying the Agency When There are Problems ................................ ............................. 75 2. Indentifying Verified RINs in EMTS ................................ ................................ ............... 76 3. Recordkeeping, Reporting, and Attest Engagements ................................ ....................... 77 a. Recordkeeping Requirements ................................ ................................ ....................... 77 b. Reporting Requirements ................................ ................................ ............................... 77 c. Attest Engagements ................................ ................................ ................................ ...... 78 d. Prohibited Activities for Third - part y Auditors ................................ ............................. 79 VII. PROPOSED REQUIREMENT S FOR AUDITS ................................ .............................. 80*** E.O. 12866 Review
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Page 6 of 149 A. Document Review and Monitoring ................................ ................................ ................... 80 B . Bu yer/Seller Contacts ................................ ................................ ................................ ....... 81 VIII. ADDITIONAL CHANGES RELATED TO THE DEFINI TI ON AND TREATMENT O F IN VALID RINS ................................ ................................ ................................ ............................ 84 A. Export and Exporter Provisions ................................ ................................ ............................ 84 1. Exporter RVO ................................ ................................ ................................ ................... 84 2. Require Identification of Renewable Fuel Content ................................ .......................... 84 3. RI N Retirement Requirements ................................ ................................ .......................... 85 B. “Downstream” Invalidation and Product Transfer Documents ................................ ............ 86 1. Designation of Intended Renewable Fuel Use ................................ ................................ .. 86 2. Required Actions Regarding Fuel for which RINs have been Generated that is Used for a Non - Qualifying Fuel Use. ................................ ................................ ................................ ......... 89 3. RI N Generation for Fuel Made with Renewable Fuel Feedstock ................................ ..... 89 4. Use of Renewable Fuel in Ocean - going Vessels ................................ .............................. 90 5. Treatment of Improperl y Separated RINs ................................ ................................ ......... 91 C. Treatment of Confidential Business Information ................................ ................................ . 92 1. Overview ................................ ................................ ................................ ........................... 92 2. Proposal to Disclose Aggregated RFS Registration Information ................................ ..... 93 a. Approach ................................ ................................ ................................ ....................... 93 b. Rationale for Proposal ................................ ................................ ................................ ... 94 3. Proposal to Disclose Aggregated RFS Report Information ................................ .............. 95 a. Approach ................................ ................................ ................................ ....................... 95 b. Rationale for Proposal ................................ ................................ ................................ ... 96 4. QAP Plans and Independent Engineering Reviews ................................ .......................... 98 5. Request for Comments ................................ ................................ ................................ ...... 98 D. Proposed Changes to Section 80.1452

– EPA Moderated Transaction Sy stem (EMTS) Requirements

– Alternative Reporting Method for Sell and Buy Transactions for Assigned RINs 98 IX . IMPACTS ................................ ................................ ................................ ....................... 101 A. Direct Costs for Implementing QAPs ................................ ................................ ................. 101 1. Time and Cost Assumptions ................................ ................................ ........................... 103 2. Labor Cost Assumptions ................................ ................................ ................................ . 103 3. Cost Estimate Results ................................ ................................ ................................ ..... 104 B. Costs for RI

N Replacement Mechanisms ................................ ................................ ........... 104 X. PUBLIC PARTI CIPATION ................................ ................................ ............................... 106 A. How do I submit comments? ................................ ................................ .............................. 106 B. Will there be a public hearing? ................................ ................................ ........................... 107 XI . STATUTORY AND EXECUT IVE ORDER REVIEW ................................ ................. 108 A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review ................................ ................................ .......... 108 B. Paperwork Reduction Act ................................ ................................ ................................ ... 108 C. Regulatory Flexibility Act ................................ ................................ ................................ .. 109*** E.O. 12866 Review
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Page 7 of 149 D. Unfunded Mandates Reform Act ................................ ................................ ........................ 110 E. Executive Order 13132 (Federalism) ................................ ................................ .................. 111 F. Executive Order 13175 (Consultation and Coordination with Indian Tribal Governments) 111 G. Executive Order 13045: Protection of Children from Environmental Health Risks and Safety Risks ................................ ................................ ................................ ................................ 111 H. Executive Order 13211 (Energy Effects) ................................ ................................ ............ 112 I. National Technology Transfer Advancement Act ................................ .............................. 112 J. Executive Order 12898: Federal Actions to Address Environmental Justice in Minority Populations and L ow - Income Populations ................................ ................................ ................. 112 XII. STATUTORY AUTHORI TY ................................ ................................ ........................ 113*** E.O. 12866 Review
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Page 8 of 149 **I. Executive Summary**  The Renewable Fuel Standard (RFS) program began in 2006 pursuant to the requirements in Clean Air Act (CAA) section 211(o) which were added through the Energy Policy Act of 2005 (EPAct). The statutory

requirements for the RFS progr am were subsequently modified through the Energy

Independence and Securit y Act of 2007 (EI SA), resulting in the publication of major revisions to the regulatory requirements on March 26, 2010 1

. The RFS program requires that specified volumes of renewab le fuel be used as transportation fuel, home heating oil, and/or jet fuel each ye ar. To accomplish this, EPA publishes applicable percentage standards annually that appl y to the sum of all gasoline and diesel produced or imported. The percentage standard s are set so that if every obligated party (refiners and importers of gasoline or diesel transportation fuel) meets the percentages, then the amount of renewable fuel, cellulosic biofuel, biomass - based diesel, and advanced biofuel used are projected to mee t the volumes required on a nationwide basis. Obligated parties demonstrate compliance with the renewable fuel volume standards in one of two way s. Obligated parties can demonstrate compliance either by acquiring the required volumes of renewable fuel s together with the associated Renewable Identification Numbers (RINs), which are assigned by the renewable fuel producer or importer to every batch of renewable fuel produced or imported, or b y acquiring just the RINs without the associated fuel. Validly generated RINs show that a certain volume of qualifying renewable fuel was produced or imported. The RFS program also includes provisions stipulating the conditions under which RI Ns are invalid, the liability carried by

a part y that transfers or uses an i nvalid RI N, and how invalid RI Ns must be treated. The fundamental basis of the Agency 's treatment of invalid RI Ns is the concept of bu ye r beware, in which all regulated parties must take steps to verify that the RI Ns they acquire are valid, and all partie s are liable for transferring or using invalid RINs. A. Purpose of this Action Several cases of fraudulently generated RINs have led some obligated parties to limit their RI N - related business relationships to those parties that they are confident are generating valid RI Ns. In order to ensure that RINs are validly generated, individual obligated parties are now conducting their own audits of renewable fuel production facilities. Given the time and effort to conduct such activities, as well as the larg e overall number of renewable fuel producers and importers, the result has been greater difficulty for some of the smallest renewable fuel producers to sell their RINs. Recentl y, the overall liquidity of the RIN market has been significantl y reduced. The se circumstances have also created inefficiencies in the RI N market, as some RINs have been treated as having more value and less risk than others. The purpose of today 's action is to address these issues by proposing changes to the regulations that would promote greater liquidity in the RI N market in a way

that assures reasonable oversight of the validity of RIN generation and assures use of the required renewable fuel volumes.

1 75 FR 14670*** E.O. 12866 Review
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Page 9 of 149 In today's action we are proposing a voluntary quality assurance program intended to provide regulated parties a structured way to assure that RINs entering commerce are valid. The proposed program would also provide an affirmative defense against liabili ty for civil violations under certain conditions for the transfer or use of invalidly generated RINs, and would specify both the conditions under which invalid RI Ns must be replaced with valid RI Ns, and by

whom. The voluntary

program would enable smaller renewable fuel producers to demonstrate that their RI Ns are valid, reducing the risk that obligated parties believe is associated with such RI Ns. The proposed program includes elements to allow verification of RINs to occur at the beginning of 2013. In today's action we are also addressing export issues and circumstances in which RINs may become invalid subsequent to the renewable fuel producer’s introduction of the RINs into commerce. For instance, exporters of renewable fuel may not be reti ring an appropriate number and ty pe of RINs as required under the current regulations. In some cases parties may have exported diesel fuel containing amounts of biodiesel below levels that are currentl y required to be reported in other contexts, and are m erel y labeled as diesel fuel. Such exports would not be reported as containing renewable fuel, and thus no RI Ns would be retired. In other cases, exporters may

report that renewable fuel has been exported, but might sell any RINs received and then go out of business before RINs are retired. The result of these circumstances could be a disparity between the RINs generated and the renewable fuel volume consumed in the U.S. We are proposing modifications to the regulations pertaining to exporters of renewa ble fuel to address these issues. We are also proposing a number of other modifications intended to address cases in which parties transfer or use RINs that have become invalid after the producer has introduced them into commerce.
B. Summary of Major Provisions Today's action proposes two voluntary third part y quality

assurance program options for RI Ns that regulated parties may exercise as an alternative to the “buyer beware” liability as prescribed under existing regulations. The proposed program w ould provide a means for assuring that RINs are properly generated through audits of renewable fuel production conducted by independent third parties using qualit y assurance plans (QAPs), would provide an affirmative defense for the transfer or use of inva lid RINs that had been verified under an approved QAP, and would provide for the replacement of such RINs. To this end, we are proposing the following:

• Minimum requirements for QAPs, including such things as verification of type of feedstocks, verification that volumes produced are consistent with amount of feedstocks processed, and verification that RINs generated are appropriately categorized and match the volumes produced

• Qualifications for independent third - part y auditors*** E.O. 12866 Review
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Page 10 of 149 • Replacement instruments or other mechanisms that would provide assurance that invalid RI Ns are replaced with valid RI Ns

• Requirements for audits of renewable fuel production facilities, including minimum frequency , site visits, review of records, and reporting

• Co nditions under which a regulated party could assert an affirmative defense to civil liability for transferring or using an invalid RI N

• Id entification of the party or parties who are responsible for replacing invalid RI Ns with valid RI

Ns and the timing o f such replacement

• Changes to the EPA - Moderated Transaction Sy stem (EMTS) that would accommodate the quality assurance program The two options we are proposing to verify RINs through a QAP would provide flexibility in how parties choose to manage the risk of transferring or using invalid RINs and costs. We are proposing that the quality assurance program would be applicable at the beginning of 2013. We are also proposing modifications to the exporter provisions of the RFS program. These modification s would ensure that an appropriate number and t yp e of RINs are retired whenever renewable fuel is exported. Finally , we are proposing a number of changes to other aspects of the RFS regulations governing the transfer and use of RINs that become invalid do wnstream of the producer. We are interested in comments on all aspects of today's proposal. C. Impacts The quality

assurance program would help to reduce the number of invalidly generated RI Ns in distribution, and thus ensure that valid RINs are traded and used for compliance. As a result, it would help to ensure that the renewable fuel volumes mandated by Congress are actuall y used. In this respect, then, there would be no change to the expected impacts of the RFS program as projected in the RFS2 final rulemaking 2 in terms of volumes of renewable fuel consumed or the associated GHG or energy security benefits. The primary impacts of the quality assurance program would be improved liquidity and efficiency

in today 's RIN market and improved opportunities for smaller renewable fuel producers to sell their RINs. Likewise, the proposed changes to the regulations governing export of renewable fuel would ensure that the appropriate number and typ e of RINs are retired for every gallon of renewable fuel exported, consistent with the intent of the program. The quality

assurance program that we are proposing in today 's action would be voluntary . As a result, there would be no required costs. There would likely be costs associated with an individual party 's participation in the quality assurance program, and in Section IX we 2 75 FR 14670, March 26, 2010*** E.O. 12866 Review
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Page 11 of 149 have provided estimates of some el ements of the costs of participation. We have also provided cost estimates as provided by several potential third - part y auditors. However, the fact that the quality assurance program would be voluntary means that a decision to participate will be made in dependentl y b y each regulated part y, and thus we cannot accuratel y project the costs that might be incurred for the nation as a whole. Furthermore, any costs incurred would only be borne if the industry believed that those costs were less than current cos ts in the marketplace resulting from efforts to verify , acquire, and trade, and use RINs and the risks associated with such activities.*** E.O. 12866 Review
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Page 12 of 149 **II. Background and Purpose**  The structure of the RFS program, and in particular the regulatory provisions governing the generation and use of RI Ns, originated during the development of the initial RFS program required b y the Energy

Policy Act o f 2005. Under the statute, refiners, blenders, and importers of non - renewable fuels were responsible for ensuring that specified volumes of renewable fuel were used in the transportation sector. During the process of developing the regulatory program, st akeholders made it clear that requiring each separate obligated party to physicall y blend renewable fuels into its own gasoline and diesel fuel would require significant and costly changes to the distribution sy stem, fuels markets, and the activities of al l involved in the fuel supply chain. At the request of stakeholders, EPA developed the RIN s ys tem as an alternative to a direct blending requirement. Finalized on May 1, 2007, the RI

N s ys tem provides obligated parties with flexibility

in satisfying thei r responsibility to ensure that a specified volume of renewable fuels is used as transportation fuel in the U.S. each ye ar. It also permits renewable fuel producers to sell their fuels in a manner that best meets market demands without forcing sales of vo lumes directl y to obligated parties. Under the RFS program, each RIN is generated b y the producer or importer of renewable fuel, and represents a volume of renewable fuel measured in terms of ethanol - equivalent gallons. RI Ns are used by

obligated par

ties to demonstrate compliance with their Renewable Volume Obligations (RVO). This reflects EPA’s judgment that production and sale of renewable fuel generall y leads to its consumption as transportation fuel. 3 When a specified number of RINs are acquired and retired b y an obligated part y, EPA is confident that a certain volume of renewable fuel has been produced and blended for use as transportation fuel. This RIN - based approach to the development and implementation of the RFS program was developed in co operation with stakeholders in the fuel production and distribution industries as part of a notice - and - comment rulemaking process. The intended result of the RIN s ys tem is that every RI N used for compliance by an obligated part y represents phy sical renewable fuel that meets the regulatory criteria and which is used in the United States for transportation fuel, heating oil or jet fuel. To ensure that this result is achieved, EPA specified the conditions under which RI Ns are invalid, how i nvalid RI Ns must be treated, and which parties are liable for transferring or using invalid RINs. These provisions were included in the RFS1 program and were carried into the revised RFS program required by the Energy

Independence and Securit y Act of 2007 . The provisions concerning invalid RINs and the associated liability have recently

come under scrutin y due to several cases of fraudulentl y generated RINs. The RFS regulations prohibit any

person from transferring invalid RI Ns or using invalid RINs to demo nstrate compliance with his/her RVOs. Thus, parties holding invalid RINs are prohibited from transferring or using these RINs to demonstrate compliance with their RVOs. Moreover, all parties holding invalid RINs are required to retire them. These cir cumstances prompted the market response described above that has led to the current reductions in the liquidity of the market for RINs, and the increased difficult y of small producers of renewable fuel, particularl y smaller producers, to sell the RI Ns they generate. Concerns regarding the impact of fraudulently 3 See 72 FR 23929*** E.O. 12866 Review
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Page 13 of 149 generated RINs also prompted requests from a broad spectrum of stakeholders for an additional, alternative regulatory

mechanism that could more efficientl y verify the validity

of RINs. Some obligat ed parties also requested that the EPA place the burden for replacing invalid RINs solel y on the parties that generate invalid RI Ns, and allow RI

Ns that have been evaluated by independent third parties to be used for compliance, even if they are invalid. We address these requests more fully

in Section III. A. Treatment of Invalid RINs Under the Current Regulations The RFS regulations identify the conditions under which RINs are invalid at §80.1431(a). These include:

• A duplicate of a valid RIN.

• A RI

N that was based on incorrect volumes or volumes that have not been standardized to 60°F.

• A RI

N that has expired (has not been used for compliance in the year it was generated or the following ye ar).

• A RI

N that was based on an incorrect equivalence value.

• A RI

N that is deemed invalid under the regulations applicable to foreign renewable fuel producers.

• A RI

N that does not meet the definition of renewable fuel.

• A RI

N that was assigned an incorrect “D” code value.

• A RI

N that was improperly

separated.

• A RI

N that was otherwise improperl y generated. While the underlying actions that cause RINs to be invalid vary , in all cases of invalid RI Ns the outcome is the same: invalid RI Ns cannot be transferred to an y person, and cannot be used to achieve compliance with the RVO of an obligated party or exporter. These restrictions on invalid RI Ns appl y regardless of the part y's good faith belief that the RINs were valid at the time they were acquired, transferred, or used for compliance. Parties that take ownership of RINs are respo nsible for the validity of the RINs they

transfer and use, and are expected to take whatever measures they

deem appropriate to reduce the risk that they have acquired invalid RI Ns. The statute requires that EPA promulgate regulations so that the national volume mandates required b y the statute are met through consumption of renewable fuel as transportation fuel, heating oil, or jet fuel, and specifies several provisions aimed at achieving*** E.O. 12866 Review
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Page 14 of 149 this result. Based on this, the current regulations prohibit inval id RINs from being used for compliance with the applicable standards. This prohibition forces obligated parties to replace invalid RI Ns that they

had intended to use for compliance with valid RINs. The "bu ye r beware" approach to RINs in the RFS program is consistent with the approach EPA has taken in all previous mobile source fuel programs. Indeed, the regulatory language used to implement the buyer beware approach in the RFS program is essentially identical to that used in these other programs:

• Benzene credits generated under the reformulated gasoline (RFG) program

- §80.67(h)(3)

• Gasoline sulfur allotment trading program - §80.275(d)(5)(i)

• Gasoline sulfur credits - §80.315

• Sulfur credits generated under the MVNRLM diesel fue l program - §80.531 - §80.536 In these other fuels programs, the buyer beware approach to credits has proven to be an effective mechanism for ensuring that program goals are met. It encourages the industry to selfpolice the validity

of the credi ts they

use for compliance and allows the credit market to properl y allocate an y risk associated with the generation and transfer of invalid credits. Most importantly , the buyer beware approach maintains the environmental benefits of a program if the part y that generates the invalid credits is not financially viable and able to replace the invalid credits, since other regulated parties would then be responsible for replacing invalid credits. In the recent cases of fraudulentl y generated RINs, it was this very process that ensured that society was getting the benefits promised by the RFS program, albeit at a cost to the regulated parties. 4 We continue to believe that the buyer beware approach gives industry the greatest flexibility in determining how best to manage credit trading practices while providing society the assurance that the benefits of a program will materialize. However, we also recognize that there are some aspects of the RFS program that make it more difficult to implement a buyer beware ap proach. For instance, once RINs are generated and leave the producer, they can be fungibly assigned to an y volume of renewable fuel, making it difficult to know what volume the RI N was intended to represent. As a result, it can be difficult to verify that the RIN was validly generated once it has left the producer. The use of RINs in the RFS program is also unique in way s that may make the buyer beware approach more challenging for regulated parties to implement in an efficient manner, while retaining market liquidity . Unlike other credit programs, RINs are not generated b y the same group of parties that use them for compliance purposes. Instead, renewable fuel producers generate the RINs, and obligated parties acquire them. These circumstances make it more difficult for obligated parties to monitor RI N generation. The RFS program also allows an unlimited number of parties to own and trade RINs, whereas in other programs credit ownership and trading is limited to the parties that must demonstrate compl iance 4 California takes a similar approach for addressing invalid carbon offset credits under the stat e’s Global Warming Solutions Act.*** E.O. 12866 Review
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Page 15 of 149 with applicable standards. In recent months, obligated parties have taken actions to avoid the purchase of invalid RINs, including limiting their business relationships to those parties that they are able to confidentl y and efficientl y project are g enerating valid RINs. This behavior has resulted in certain, often smaller, producers being excluded from opportunities to transact with obligated parties, creating inefficiencies in the RIN market, in particular the inclination o f obligated parties to treat some RI Ns as having higher value and lower risk than others. Our proposal for an additional, alternative mechanism for ensuring that RINs are appropriatel y generated is an attempt to address the inefficiencies that have arise n in the RIN market. We continue to believe that the integrity of the program depends on the scrutiny applied to it by regulated parties. However, in the specific case of the RFS program we also believe that it would be appropriate to provide additional options for organizing and managing the private oversight of RIN generation in addition to the buyer beware approach.
B. Recent Issues Regarding Liability for Invalidly Generated RINs While the RFS regulations governing liability for the transfer or use of invalid RI Ns were put in place on May

1, 2007, they

have come under new scrutiny in 2011 and 2012 as the result of several cases of fraudulently generated RINs. To date, the EPA has alleged that three biodiesel production companies (Clean Green, Absolute Fuels, and Green Diesel) have generated a total of over 140 million biomass - based diesel RINs that did not represent qualifying renewable fuel. On November 7, 2011, the EPA issued Notices of Violations (NOVs) alleging that Clean Green Fuels, LLC (Clean Green) generated invalid biomass - based diesel RINs. Clean Green’s owner was found guilty

of wire fraud, money

laundering, and violating the Clean Air Act on June 25, 2012 in the United States District Court for the District of Maryland. The jury found that he ran a scheme in which he and his compan y generated and sold over 32 million RI Ns, but neither produced nor imported an y renewable fuel. The EPA is sued Absolute Fuels, LLC an NOV on February 2, 2012. The NOV alleges the compan y generated over 48 million invalid biomass - based diesel RINs without producing any qualifying renewable fuel and transferred the majority of these invalid RI

Ns to others. On December 14 , 2012, the owner of Absolute Fuels, LLC, and other corporate entities associated with Absolute Fuels pleaded guilt y to an Indictment charging the owner of wire fraud, money laundering, and Clean Air Act false statements. The indictment alleges that this individual and his companies were involved in defrauding non - renewable fuels companies, brokers, and the EPA by falsel y representing to EPA, through the RFS program electronic data base, that he was producing biodiesel when in fact he was not producing an y fuel. The allegations in the indictment are mere accusations and all persons are presumed innocent until and unless proven guilty beyond a reasonable doubt in a court of law.*** E.O. 12866 Review
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Page 16 of 149 The EPA issued Green Diesel, LLC an NOV on April 30, 2012. The NOV alleges the compan y generated more than 60 million invalid biomass - based diesel RINs without producing any qualifying renewable fuel and transferred the majority of these invalid RI

Ns to others. The 140 million invalid RI Ns from these three companies represented about 13% of the nationwide biodiesel volume in 2010 and 4% in 2011 5 . The EPA’s Criminal Investigation Division and Office of Civil Enforcement have additional ongoing investigations concerning the potential generation of fraudulently or invalidly

generated RINs. Under the bu ye r beware approach, all regulated parties are responsible for determining the validity

of RINs before they

transfer those RINs to another party or use them for compliance. With respec t to the RI

Ns generated by

the three companies listed above, many parties did in fact transfer and/or use these RI Ns. In subsequent discussions with these parties, most of them indicated that notwithstanding the buye r beware aspect of the regulations, the y took little or no action to evaluate the validity of these RINs before they purchased or used them for compliance. In light of the widespread failure of obligated parties to conduct adequate oversight, the EPA implemented a streamlined approach for part ies who used invalid RI Ns to correct civil violations and resolve their liabilit y for those civil violations. The Interim Enforcement Response Policy 6 (IERP) for 2010 and 2011 biomass - based diesel RINs provided obligated parties who unknowingl y used invalid RI Ns with the opportunity

to resolve their civil violations by replacing invalid RI Ns with valid RI

Ns and paying modest civil penalties. Almost all obligated parties that used RINs generated b y Clean Green and Absolute Fuels have entered into settle ment agreements consistent with the IERP to resolve their civil violations. Obligated parties are required to replace invalid RINs that were used for compliance with valid RI Ns to ensure that they

have sufficient valid RI

Ns to compl y with their Renewab le Volume Obligations (RVOs). Man y obligated parties who used invalid RINs for compliance purposes purchased replacement RINs for a substantial additional cost. Under the current buye r beware approach, man y obligated parties have included indemnification clauses in their contracts with RI N suppliers to address situations in which invalid RI Ns must be replaced. In light of the recent experience with invalid RI Ns, obligated parties have been taking steps to minimize their exposure to risk. In general, they have been treating RINs generated by smaller biodiesel producers as higher risk, and have been opting instead to purchase RINs primarily from the largest biodiesel producers who are better known, have been under production for a longer period of time, and/or have the resources to replace invalid RINs should their RI Ns be determined to be invalid. While the concerns directed at an y particular biodiesel producer may or may not be legitimate, the net result of these actions is a general reduction in the liquidity of the biodiesel RIN market. While some biodiesel producers have been able to establish business relationships with obligated parties, many smaller biodiesel producers have not. These smaller producers have been forced to offer their RI Ns at a significant discount relative to RINs

5 The statutory volume requirements for biomass - based diesel were 650 mill gal in 2010 and 800 mill gal in 2011. 6 The Environmental Protection Agency’s Interim Enforcement Response Policy to Resolve Violations Arising from the Use of Invalid 2010 and 2011 Biomass - Based Diesel Renewable Identification Numbers, March 2012, http://www.epa.gov/compliance/resources/policies/civil/erp/erp - invalidrins.pdf .*** E.O. 12866 Review
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Page 17 of 149 from larger producers, assuming they can find obligated parties or distributors willing to purchase them at all. The buyer beware approach has succeeded in compelling regulated parties to conduct some oversight of RI

N generation to ensure that the RINs they transfer and/or use are valid. However, in reaction to the fraudulent RIN cases, many regulated parties have reported that obligated parties have shifted their purchasing away from smaller producers. We believe i t is appropriate to consider new regulatory provisions that could provide additional confidence in the validity of RINs without restricting access to the market by small producers. C. Industry Systems that Conduct Oversight of RIN Generation 1. Existing Sy stems While regulated parties are individually making efforts to ensure that the RINs they transfer and/or use are valid, a number of parties have developed more comprehensive s ys tems that are intended to more efficientl y meet the need for suc h oversight. An y party can opt to use one of these s ys tems for a fee charged b y the provider of the service. To varying degrees, these sy stems offer examples of the ty pes of activities that EPA has evaluated in developing the proposed provisions for a quality assurance program. The sy stems of which we are currentl y aware include the following:

• Eco E ngineers • GoldRI N , LLC • MVP: Murex Validity

Program for RINs • RI N Integrit y Network by

Genscape • RI NPlus by EM Biof uels , LLC • RI N - tegrit y Survey b y Weaver • RI NTrust , LL C This is not meant to be a complete list, as the market response is still developing, nor is it intended to be an EPA endorsement of an y particular auditing s ys tem or t ool. The sy stems currently

being offered vary

in the means, frequency , and degree of oversight of renewable fuel production and RIN generation. Most conduct some form of on - site audit including a review of production inputs such as feedstocks and proc ess energy , and outputs including b yproducts and renewable fuel production volumes. Some also provide services such as regulatory

guidance, assessment of product quality , monitoring of sales transactions, and RIN tracking. In addition to validation of pr oduction processes and RIN generation, some also offer financial backing to the producer in the event that RI Ns are subsequently

discovered to be invalid.*** E.O. 12866 Review
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Page 18 of 149 2. Sufficiency

of Existing Sy stems While each of these s ys tems has elements designed to help en sure RIN validity , we believe it is important that all sy stems used to verify RI Ns contain a certain minimum number of elements. For instance, ideally each s ys tem would include an array of component s to verify feedstocks, production processes and volumes, qualifying uses of renewable fuel, and generation of the appropriate number and ty pe of RINs. However, not all s ys tems address all these aspects of production and RIN generation, or address them in the same way . Because these s ys tems are generall y designed to benefit only the obligated party

that contracts with it, the existence of multiple industry- run verification sy stems has also resulted in duplicative efforts wherein multiple auditors visit the same production facility and take the same actions to verify the same volume. Finally , the existence of these private sy stems has not completely resolved the reduction in liquidity

in the market for RINs since they provide no assurances of an affirmative defense against a civil violation. Thus there is still a significant reluctance to purchase RINs from some smaller pro ducers. While these verification sy stems constitute a reasonable and encouraging response to the need to have effective and efficient oversight of RIN generation, we recognize that these initiatives on their own have not cultivated a market that facilitates reason able oversight of RIN generation, adequate assurance that invalid RI Ns will be replaced, and a market for RINs where the opportunity

to produce and sell RINs is spread broadly across producers, including small producers. Therefore, in today 's Notice of Pr oposed Rulemaking (NPRM ) we are proposing a set of voluntary

regulatory

provisions that leverage these private market products to achieve these goals. The new provisions would provide regulatory options for establishing quality assurance programs, provide an affirmative defense against civil violations for transferring or using invalidly

generated RI

Ns for compliance where the RINs were verified under an approved QAP, and would specify

the conditions under which specific parties would be required to replac e invalidly generated RINs with valid RI Ns. Moreover, we are proposing several options that would be available to regulated parties that would provide a range of approaches to replacement of invalidly

generated RINs, and allow the market to select the lev el of oversight to match the perceived risk. We believe that the efficiency and certaint y created b y these proposed regulatory options would complement the private verification sy stems already offered in a way

that would facilitate the broadening of the m arket for producers and increasing market liquidity that EPA and stakeholders are seeking.
D. EPA Goals in Proposing New Regulatory Provisions As stated in Section II.B above, we continue to believe that the buyer beware approach is both appropriate and effective in ensuring the validity of RINs and the use of valid RINs representing real renewable fuel to meet compliance obligations. We are not proposing to change the bu ye r beware approach under the existing regulations. Nevertheless, the issues we highlighted in the previous section have led us to believe that it would be helpful to create an additional, voluntary

set of regulatory

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Page 19 of 149 verify the validit y of RINs . These provisions would reduce the incidence of invalidly generated RI Ns entering the market, provide reasonable assurance of replacement of invalidly generated RI Ns, and increase liquidity in the RIN market. The proposed QAP provisions would serve as the major component for an af firmative defense against liability in the event that a part y transferred or used invalidly generated RINs. With greater confidence in both the validity of RI Ns and the protection against civil liability that an affirmative defense affords, there may be l ess of a disparit y in value between RINs generated by large and small renewable fuel producers. As a result, there may

be renewed market liquidity and certainty . To accomplish this, we believe that the new regulatory provisions should establish the mini mum requirements for Quality Assurance Plans (QAPs) that would address all elements of the production of renewable fuel and the generation of RINs . These QAPs would in turn form the basis for audits of renewable fuel production at particular facilities to verify that RINs were being validly

generated. Our intent in establishing a voluntary QAP audit process would be twofold: 1) Any

part y taking ownership of RI Ns that had been verified as validly generated by an EPA - registered auditor us ing an EPA - approved QAP would have an affirmative defense against liability

for a civil violation arising from the transfer or use of an invalid RI N as long as certain other criteria are also met. 2) The burden for the replacement of invalidly generated RI

Ns that had been verified by a registered auditor using an EPA - approved QAP and which were not replaced by the original RIN generator could be replaced by the auditor or obligated party depending on the t ype of R INverification sy stem and associated RIN replacement mechanism . In short, the voluntary

QAP audit process would help to ensure that the volume consumption goals of the statute are met while addressing the unique features of the RFS program that have resulted in inefficiencies and poor liquidity in the current RI

N market.*** E.O. 12866 Review
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Page 20 of 149 **III. Overview of the Proposed Program**  EPA is proposing to add two compliance options to the RFS program to achieve the goals described above. Each option contains provisions for quality assurance plans (“QAP”) that would be created b y independent third - parties and used to verify the validity

of RIN generation; provisions for an affirmative defense to civil liability for transfer or use of a verified RIN that is invalidly generated; and provisions addressing replacement of verified RINs that were invalidl y generated. One of these options would also ensure that RIN owners could avoid liability for a civil violation for transferring or using invalidly generated RINs . These new options would be in addition to the current regulatory provisions, and EPA is proposing to adopt both options and to allow regulated parties to choos e either one of the new options or instead to use the buyer beware approach in the existing regulations. The combination of the two new options, the elements in each option, and the ability to choose between options, is intended to achieve the program goa ls described above. The civil liability

protections afforded by

these provisions would only apply to RINs that are invalidl y generated. RI Ns that become invalid after generation, for example by use for a nonconforming purpose or improper separation, w ould not be covered b y the affirmative defense mechanism we are proposing today . However, we realize that RI Ns that become invalid “downstream” of the RIN generator may be problematic for obligated parties and the RI N s ys tem as a whole. Therefore, we have proposed regulatory changes to account for the problem of RINs that become invalid after generation. These changes are discussed in Section VIII of this preamble. This proposal sets minimum requirements for QAP s that could be used to verify the validity of RINs. Verification by an independent third - part y auditor using an EPA - approved QAP would provide the basis for a RIN - holder’s affirmative defense if those RINs were found to have been invalidly

generated. Th e affirmative defense is a defense only to the civil liability

for the prohibited acts of transferring or using an invalidly generated RIN for compliance purposes. At the same time, the Agency is responsible for ensuring that the statutory annual minimum volume requirements are met, so invalid RI Ns that are retired to fulfill a RVO must be replaced b y valid RINs in order to make the system whole, even when a party has an affirmative defense to liability

for a prohibited ac t. With the exception of some limited provisions that would reduce R IN replacement responsibilities under certain circumstances, the proposed rules provide a mechanism for the replacement of invalidly generated RINs to help ensure that the annual RFS volume mandates are met. However, the party responsible for replacement of invalid RI Ns varies between the two new options (“Option A” and “Option B”) that market participants may

choose for an y given RIN transaction. The primary

difference between these two options is that under Option A, when verified RI Ns are found to be invalidly generated, the third - part y auditor that verified the RINs would be responsible for retiring valid RI Ns to replace the invalid RI Ns if the RIN generator does not do so. Under Option B, an obligated part y would remain liable for replacing any invalidly generated RINs that it owns if the RIN generator fails to do so, even if the obligated party successfull y asserted an affirmative defense. The current s ys tem would also remain in place*** E.O. 12866 Review
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Page 21 of 149 after the proposed quality assurance program goes into effect, providing a third option for RI N buyers to purchase unverified RI Ns. In other words, the proposed regulations do not require that RI Ns used for fulfillment of an RVO must be verified. Insummary , we are proposing new regulatory

provisions that would create a total of three t ypes of R INs in the RFS program: (1) RI Ns verified b y a third - party auditor, who would be responsible for replacing the RI Ns in the event that they

were invalidity

generated (“Option A”), (2) RI Ns verified b y a third - party auditor, where the obligated part y would remain liable for RIN repl acement (“Option B”), and (3) Unverified RINs, where the obligated party remains liable for replacement (i.e. the current regulatory

approach). For both of the two new options we are proposing today (Option A and Option B), there are three main re gulatory elements: (A) Minimum requirements for a QAP to evaluate renewable fuel production and verify RINs, (B) The required elements for an affirmative defense, and (C) Id entification of the party responsible for replacing invalid RINs and limit ations on RI N replacement. In this section we also discuss how and wh y the program amendments are proposed as voluntary, how the provisions would apply to an y R IN s transferred and sold prior to the effective date of the final rule, and an alternative structure for protecting against invalidity by prohibiting RIN generators from separating RINs from renewable fuel that they produce. A. Requirements for a Quality Assurance Plan and QAP Audits The regulations would set minimum requirements for the audit process used to validate th e production of renewable fuel and verify the RINs generated at the production facility , even, for imported fuel, if the production facility is not in the United States. The proposed requirements would potentially appl y to producers of renewable fuel and parties downstream of the producer that handle renewable fuel or RINs. Other parties that work with and support renewable fuel producers, such as feedstock suppliers, would not be subject to new requirements through the proposed quality assurance program. The proposed requirements for Option A and Option B QAPs are fully

discussed in Sections IV.A and V.A, respectivel y. The proposed requirements for QAP auditors and audit procedures are fully discussed in Sections VIand VII of this preamble.*** E.O. 12866 Review
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Page 22 of 149 We would expect that different third - part y auditors would develop different audit procedures and business models based on market demand, the type of fuel being audited, and many other factors. Therefore, the new provisions would require the third - party auditor to submit its QAP to the Agency for review and approval before using that QAP to audit renewable fuel production facilities. The regulations would also set both minimum requirements for third party auditors at the time of registration and ongoing requirements that must be met as the third party auditor continues to operate. The requirements for Option A QAPs would be more detailed and involved than those required for Option B QAPs. The differing sets of requirements would correspond with the differing R IN replacement responsibility under the two QAPs. The quality

assurance program that we are proposing would also appl y to RI Ns generated for foreign - produced renewable fuel. Foreign producers of renewable fuel must be approved by EPA and must meet all requirements applicable to non - foreign producers, i.e., the provisions of Subpart M. Such producers could engage a registered third - part y auditor to audit their facility in accordance with the proposed quality assurance program. However, RINs generated f rom imported fuel would only be considered verified under the proposed quality assurance program if the associated foreign renewable fuel production facility is audited under an EPA - approved QAP. We request comment on the likelihood of such producers participating in the qualit y assurance program, an y difficulties to participating they might encounter, and any issues that could affect the integrity of the proposed program. B. Requirements for an Affirmative Defense The affirmative defense mechanism w ould allow any part y, other than the generator of an invalid RI N, who holds invalidly

generated RINs verified through a QAP to avoid civil liability for a prohibited act involving the transfer or use of invalid RI Ns for purposes of fulfilling an RVO. This mechanism applies only to civil liability , and has no effect on any party ’s potential criminal liability . It is similar but not identical to the defense mechanisms used in other fuels regulation programs, such as the Diesel Fuel Sulfur Control regulations, 40 CFR §80.613(a) and the Reformulated Gasoline regulations, 40 CFR §80.79(b)(1). Itis full y discussed in Sections IV .C and V.C for Options A and B, respectively . Under Option A, in order to establish this affirmative defense , a party would be required to prove five elements by a preponderance of evidence. Under Option B, in order to establish an affirmative defense, a party would be required to prove one additional element. First, a party

would be required to show that th e invalidly generated RINs in question were verified b y an independent third - part y auditor with an EPA - approved QAP that meets the applicable regulatory

requirements. Second, a part y taking ownership of an invalidly generated RIN would be required to demonstrate it did not know or have reason to know of the invalidity . For Option A RI Ns, the RI N owner must not have had knowledge of the invalidity prior to the RIN being verified. For Option B RINs, the RIN owner must not have had knowledge of the invalidity at an y time up to*** E.O. 12866 Review
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Page 23 of 149 and including the time the RIN was transferred or used for compliance with its RVO, unless the RI N generator had implemented a remedial action per the regulations. See 40 CFR §80.1474. The difference between the two options reflects the difference in the part y responsible for replacing invalidl y generated RINs in the two new options. When the obligated part y has the replacement obligation under Option B, it would not be appropriate for it to knowingl y commit a prohibited act and be required to replace the invalid RI Ns, but still have an affirmative defense to civil liability . On the other hand, when the auditor has the RIN replacement responsibility under Option A, the obligated party ’s RVO would be backstopp ed by the auditor’s replacement of the invalid RI Ns and therefore the obligated part y should be able to submit the invalid verified RINs with the understanding that the RINs will be replaced and the RVO made whole by the auditor. Providing an affirmative defense to obligated parties under Option A even if the obligated party in question knows of the invalidity could help to address some of the market liquidity concerns described above, b y limiting the risk to refiners who purchase these RINs. At the same t ime, if the obligated part y knew of the invalidity prior to the RINs in question being audited and verified, it would have no defense to civil liability because it would have knowingl y allowed invalid RI Ns to enter the marketplace, potentially placing othe r obligated parties at risk and diminishing the value of other RIN generators’ valid RI Ns. Third, we are proposing that a part y attempting to establish an affirmative defense would be required to inform the Agency within the next business day of identifying RINs that were invalidly generated. This requirement would assure that invalidity is promptly

reported when discovered and would eliminate any incentives or financial advantages that might be gained from intentionally

hiding invalidity

or waiting to report. The Agency ’s primary goal to maintain and meet the annual RFS volume mandates would be frustrated b y delayed reporting of invalidl y generated RINs. The reporting requirement would therefore be both an element of good faith and a pract ical safeguard to meet the annual RFS volume mandates. Fourth, a part y attempting to establish an affirmative defense would be required to demonstrate that it did not cause the invalidity of the RIN in question. Fifth, a party

attempting to establish an affirmative defense would be required to demonstrate that it did not have an y financial interest in the compan y that generated the invalid RI N. Requiring that the RI

N owner did not have any financial interest in the RIN generator’s compan y ensures that the RI N owner did not receive and had no intention of receiving a financial benefit from the generation of invalid RI Ns. For Option B, a sixth element for establishing an affirmative defense would be to dem onstrate that if the invalid B - RI N was used for compliance purposes, the part y adjusted its records, reports, and compliance calculations as required per the regulations, unless a remedial action by the RIN generator was implemented. C. Replacement of Invalid RINs*** E.O. 12866 Review
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Page 24 of 149 In order to ensure that the annual national RFS volume mandates are met, the current RFS program requires that only valid RINs may

be used by

obligated parties to demonstrate fulfillment of their RVO. To use an invalid RIN toward fulfillin g the RVO is a prohibited act. An obligated part y that knowingl y or unknowingly uses an invalid RIN to comply with its RVO is required to revise its compliance report to subtract out the invalid RINs and instead use onl y valid RI Ns. The obligated party

mu st then either carry

forward a deficit or replace the invalid RI N with valid RINs to meet its RVO. Under the two new proposed options, the party responsible for replacing the invalid RI N would depend on the t yp e of QAP that verified the RIN, Option A or Option B. As noted above, both Option A and Option B would be available for market participants under the proposed rule. RI N replacement is fully

discussed in Sections IV.D and V.D of this preamble for Options A and B, respectivel y. We propose in this rule to create a self - implementing administrative mechanism to replace invalid RINs. In all cases, and regardless of whether the RINs in question are unverified or verified through Option A or Option B, the proposed administrative process for replacement of invalid RI

Ns places initial responsibility to replace invalidl y generated RINs on the RIN generator responsible for causing the invalidity . See §80.1474 of the proposed regulations for details of the administrative process for replaceme nt of invalid RI Ns. In the event the generator of the invalid RI

Ns does not replace the invalidly generated RINs within the time frame set forth in the administrative process, either the third - party a uditor or the obligated party that owns the invalid RI Ns would also be required to replace the invalid RI Ns, depending on whether the RINs were verified through an Option A or Option B audit, or whether the RINs were unverified. The RI N generator would al way s remain liable for replacing all invalid RINs that they generated. The third - part y auditor or the obligated part y would be required to replace the RINs in a specified time period after notification from EPA that the RIN generator failed to replace the invalid RINs. For invalidly

generated RI

Ns verified b y an Option A QAP, the auditor would have the responsibility

to replace the RINs, and the obligated party would have no responsibility for RIN replacement if it successfully established an affirmative defense. For invalidly generated RINs verified b y an Option B QAP and for unverified RI Ns, the obligated part y who owns the RINs would bear the replacement responsibility . In the event that regulated parties fail to implement the administrative process f or replacement of an y RI

Ns, the EPA could bring an enforcement action against an y or all of the parties that were required to replace the invalid RI Ns. Additionally , the auditor’s RI N replacement responsibility under Option A would be capped at a level equal to 2% of up to the last five years’ of A - RI Ns verified by

the auditor. This cap on RIN replacement is proposed for RINs generated in 2013 - 2015, and the cap may change from 2016 onward. Under Option B we are proposing that the obligated party would be given a temporary

limited exemption for their replacement obligation, under which they would not be required to replace up to 2% of their RVOs for 2013 and 2014. These measures are intended to limit the auditors’ and obligated parties’ financial exposure, as further discussed in Section IV of this preamble. We request comment on both the RI N replacement cap of 2% and the limited exemption of 2%. The generators of invalid RINs, on the other hand, would have neither a cap nor a limited exemption f or their RIN replacement responsibility under the proposed program.*** E.O. 12866 Review
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Page 25 of 149 Furthermore, because third - part y auditors are unlikely to have the same resources as renewable fuel producers, importers, or obligated parties to enable them to replace invalid RINs, w e are proposing a requirement that auditors using Option A to verify RINs must maintain a RI N replacement mechanism capable of replacing a minimum percentage of the A - RI Ns they verify . There are a variety

of replacement mech anisms possible as discussed in more detail in Section IV .B. D. Voluntary Participation We are proposing that the two new compliance options under the proposed quality assurance program would be voluntary . If an auditor chooses to participate in the proposed program, it would be required to register with EPA and appl y to EPA for approval of its QAP, which would provide the framework for the auditor’s verification process. Since the auditor would be responsible to implement the QAP as approved , verifying RINs without meeting the requirements of the EPA - approved QAP would be a prohibited act. At the same time, an auditor’s failure to properly implement the QAP would not, by itself, render the RINs invalid or constitute a civil violation by the owner of the RIN. While auditors could voluntarily decide to obtain EPA approval to verify RINs, once they

do so they

would be responsible to implement the plan as approved, and under Option A to replace RI Ns as required. Likewise, RIN generators would be under no obligation to have their RINs verified under an EPA approved QAP . RI N generators that do choose to have their RINs verified through the proposed quality

assurance program would need to ensure that other parties with which they work closel y, such as feedstock suppliers and fuel distributors, are providing the information needed b y the auditor. Likewise, obligated parties would be under no obligation to purchase verified RINs. However, if verified RINs are p urchased, the regulations would provide what requirements must be met to demonstrate an affirmative defense, and would specify who would be responsible for replacement of invalid RINs. It has been suggested that if these provisions were mandatory for al l obligated parties and only verified RINs could be used for compliance purposes, the overall stability of the RIN market might be improved because all RINs available in the market would be pre - approved b y a QAP. This approach would benefit obligated par ties by reducing their risk of purchasing an invalid RI N and decrease the likelihood of violations and need for enforcement actions. However, we believe that it is up to the obligated parties to determine how they wish to verify the RI Ns they purchase, balancing their risk tolerance against their ability and desire to pay

for verified RINs. Also, we expect that most RI Ns purchased and used for compliance purposes will be QAP - verified even though the program is voluntary because mo st obligated parties in most situations will prefer not to take on the risk of using an unverified RIN. Therefore, making the program mandatory

would provide only

marginal gains in market stability when compared to a voluntary program. A mandatory

program would also potentially drive up the overall cost of RI Ns b y forcing all RIN generators to go through the QAP process, even in situations where there is little risk in the product being invalidly produced. Overall, we believe the proposed program would be adequate to achieve the goals described above, and additional requirements*** E.O. 12866 Review
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Page 26 of 149 would bring increased costs that are not appropriate or necessary. However, we seek comment on whether the proposed compliance options should be voluntary or mandat ory

for RIN generators and obligated parties. These proposed QAP options offer alternative way s for regulated entities to operate within and comply

with the existing obligations of the RFS program. If regulated parties wish to conduct “business as usua l” and not utilize the additional mechanisms proposed in these regulations, they

would be free to do so and would be subject to the same obligations and penalty structure as currently

exists. Whether or not to purchase and retire RINs verified by an EPA a pproved QAP is a choice each obligated part y would make on its own, depending on the level of risk it perceives in the market and in a given producer, and its own risk tolerance.
E. Treatment of RINs Prior to Final Rule Promulgation The regulatory provisions proposed today would become effective only after we review comments submitted in response to this , determine what if an y changes may be appropriate, and publish a final rule. Following the effective date of the final rule, auditors could apply to EPA for registration and for approval of their QAPs under one or both of the two Options (A and B). Once EPA registered the auditor and approved the QAP plan, then the auditor would implement the plan. RI

N verification would start once the elements of the plan were in place, including the execution of an initial site inspection and record review, and under Option A, the initiation of ongoing monitoring. At that point, RI Ns could be verified b y the auditor. RI N auditors could, of course, operate without EPA approval, though the RI Ns they verified would not be eligible for the special treatment afforded to RINs verified b y an EPA - approved QAP under the proposed rules. Ho wever, in order to encourage the development and use of RIN verification processes, and to promote greater liquidity in the RIN market as soon as possible, the proposed provisions relating to the affirmative defense appl y not onl y to RI Ns g enerated after promulgation of the final rule, but also to RINs generated from January 1, 2013 onward . This raises two separate issues on how the final regulatory provisions would apply

to RINs generated prior to the effective date of the final rule. First, what would be the effect of an audit being performed in the interim period? Second, what QAP requirements would need to be met for a RI N audited prior to the f inal rule’s effective date to be considered verified after the final rule’s effective date ? Regarding the first question , for RINs generated prior to the final rule’s effective date, EPA’s approval process regarding verifications would be different than the process effective after the final rule , first be cause EPA cannot formally register an auditor or approve a QAP until the rule is in effect and second because there may be insufficient lead - time to implement the QAP requirements set out in the proposed rule and begin verifying RINs immediately upon pub lication of this NPRM. We recognize that RIN generators and buye rs likely will want to know whether 2013 RI

Ns generated and audited prior to the effective date of the final rule would receive the proposed benefits and treatment given to RI Ns verified after the rule is in effect.*** E.O. 12866 Review
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Page 27 of 149 EPA is ready to facilitate the verification of RINs prior to the final rule’s effective date through a “pre - registration” process. EPA will informally review auditor s’ registration information and proposed QAPs , and provide guidance on whether the plans appear to satisfy the proposed requirements. The names of those auditors and QAPs whose submissions are consistent with the applicable requirements in the proposed regulations will be published on EPA’s website. This will not signify a final agency decision or approval of any auditor or QAP and EPA will not be legally bound by this initial evaluation. Itwould instead be informal guidance to an auditor as to whether EPA has any concerns about its registration and QAP plan and whether they

appear to be consistent with the requirements in the proposed regulations. Publication of the auditors’ names and available QAPs would provide useful information for outside parties who are evaluating the risk associated with RI Ns audited prior to the effective date of the final rule. Auditors would not be required to submit their QAPs to EPA for such guidance, and EPA’s guidance or feedback to the auditors would confer no legal rights or privileges to the auditors, or to the production facilities and RI Ns they review. RI Ns audited through a QAP on which EPA had offered guidance prior to the effective date of the final rule would not necessaril y be deemed “verified” under the terms of the final rule. RINs could onl y be deemed “verified” after the final rule goes into effect, and after E PA approved the QAP that was used in the audit process. It is important to note that the final rule’s provisions for interim RINs may not be the same as those in the proposed regulations. Therefore, an y EPA decisions made after the rule is in effect regarding the sufficiency of QAPs and auditors operating prior to that time will be based on the content of the final rule, not the proposed rule. EPA’s intention, however, is that the provisions and requirements proposed in this NPRM would apply to RI Ns verified prior to the final rule, and any changes to the proposed provisions would apply

only to RINs verified after the final rule is effective. EPA invites comment on this approach, and will resolve this issue in the final rule after reviewing the comments. Similarly , it is important to note that the current regulatory provisions, including those regarding RIN replacement and civil liability, will remain in full effect until the final rule goes into effect. Regarding the s econd question of what QAP requirements would need to be met for a RI N audited prior to the final rule’s effective date to be considered verified after the final rule’s effective date, the substantive requirements fo r the QAPs used prior to the final rule may be slightly different from QAPs used after the final rule . As discussed above, after the final rule is effective, a RIN could be verified onl y after the auditor conducted a site inspection and document review of RINs already generated , and (for QAP A) initiated ongoing monitoring of feedstock qualifications and production processes. All RI N verification after the effective date of the final rule would thus be "prospective ," covering RINs that ar e not yetgenerated at the time the audit is conducted. For RI N verification prior to the final rule’s effective date , however, the requisite audit activities, including the site visit and setup of ongoing monitoring, might not occur until some point well after January 1, 2013. Given the short time period of RI N generation at issue before the normal oversight actions could be implemented, in many cases a matter of a few months, and the desire to have QAP plans start up as quickly as possible, EPA is proposing that prior to the final rule’s effective date, auditors could verify RINs generated before the date the audit is completed. This "retrospective" RIN verification would onl y be available pri or to the effective date of the final rule. Auditors would only be able to perform a retrospective audit if all*** E.O. 12866 Review
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Page 28 of 149 the elements of the QAP were already in place and could only perform one retrospective audit of a given producer. This would ensure that audito rs are not inappropriatel y taking advantage of this flexibility

by doing retrospective audits only (which require less monitoring and work , especiall y for Option A QAPs) until the final rule is effective. Instead, they would be encouraged to get QAP - based audits up and running in their intended prospective form as soon as possible, while allowing reasonable flexibility to account for a start - up lag. We recognize that the retrospective audit process for RINs generated prior to the actual audit being conducted may offer less certaint y than the process that applies to RI Ns generated after the audit is conducted. This is because the verification is based on document review and a post - hoc site visit, leaving open the possibility that RI Ns generated prior to the site visit may not be representative of actual fuel production and the documents on which the audit is based were fraudulent. However, as there is a relativel y low number of RINs at issue, we believe the risk of invalidity in this short term transition p eriod is reasonable in light of the benefits of giving a reasonable expectation of validity to RINs generated as of January 1, 2013. While these measures may give regulated parties and RI N purchasers flexibility

and securit y in develo ping and using QAPs prior to issuance of the final rule, the EMTS sy stem will not be available to display information such as whether a given RIN has been reviewed by an auditor and who conducted the audit, until after the effective date of the final rule. It will therefore be the responsibility of the market participants to keep records of verification of RINs until EMTS begins tracking and displaying RIN verification status. However, as noted above, EPA intends to post the names of those auditors whose QAPs and registration materials appear consistent with the proposed regulations on EPA’s website. This public posting will confer no legal rights, privileges, or license, but will indicate that, at the time of EPA’s review, the QAP of the auditor in question appears to meet the proposed req uirements for a QAP. Once the final rule is in effect, EPA will proceed to register auditors and approve QAPs that meet the requirements of the final rule. Upon receiving such registration and approval, auditors will be able to issue verificat ions for RINs generated prior to issuance of the final rule that were reviewed according to the QAP approved under the terms of the final rule. Once these RI Ns generated prior to the effective date of the final rule have been verified, they will be treate d like all other verified RINs for purposes of the affirmative defenses and replacement obligation provisions for verified RINs that are determined to be invalidly generated.
F. Request for Comment on Prohibiting Producers from Separating RINs We request comment on a regulatory change in which renewable fuel producers would be prohibited from separating RINs. Under the current regulations, RI Ns generally

cannot be separated from the wet gallons they represent until the point of blending or purchase b y an obligated part y. However, a r enewable fuel producer can separate RINs from their associated volumes of renewable fuel under the conditions specified in §80.1429(b)(4), including the situation where the fuel in question has been designated for a conforming use (i.e., for transportation fuel, heating oil or jet fuel) and is in fact used for such a conforming use, without*** E.O. 12866 Review
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Page 29 of 149 further blending. In this circumstance, an y owner of the RIN and associated gallon (including the producer) may

separate the RIN from the fuel, including the producer o f the fuel. The intent of this provision was to avoid situations in which RI Ns were never separated from renewable fuel due to its use in neat form or some atypical blend. In the fraud cases that disturbed the RIN market in 2011 - 2012, some registere d biodiesel producers exploited this provision and generated and sold invalid RI Ns without volume. Some have argued that removing this option and prohibiting producers in all cases from separating RI Ns from the volumes they produce would greatly

reduce the ability

of producers to generate fraudulent RINs without the knowledge of other parties in the RIN market. While this mechanism might reduce the problem of producer fraud (of the ty pe already seen), it would not eliminate the number of other way s invalid RINs could be generated at the point of production. Moreover, it could potentially create new concerns, as legitimate cases of producers separating RINs from volume would be prohibited. This would only be a partial solution to the problem of fraud and invalid RIN production. However, we solicit comment on the benefits of producers’ ability to separate RINs from wet gallons in the limited circumstances that are currentl y permitted, and whether these benefits outweigh the potential added risk of f raudulent RINs in the market. G. Summary of the Two QAP Options A summary

table of the two QAP options is provided below as a broad background for the outcomes associated with each option. The QAP options and associated consequences are discussed in each of the subsequent sections of this preamble. Table III.G - 1 Summary of Proposed QAP Options **Key Element QAP Option A**  **QAP Option B** Parties responsible for replacement of invalidly generated RINs 7

. Third - part y auditor Obligated part y Requirement for a RIN replacement mechanism as condition of registration Yes No Affirmative Defense to civil liability for transfer or use of invalidly generated RINs Yes Yes Treatment of a knowing transfer or use of invalidly generated RINs Affirmative defense requires the part y did not know or have reason to know the RI N had been invalidl y generated Affirmative defense requires the party did not know or have reason to know the RIN had been invalidly

generated at the

7 The generator of the invalid RIN is always responsible for replacement.*** E.O. 12866 Review
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Page 30 of 149 before the RIN was verified time it was transferred or used for compliance Limited exemption for invalidly generated RIN replacement None For 2013 - 14, up to 2% of the obligated part y’s RVOs. Cap on RIN replacement For 2013 - 15, 2% of the most recent five ye ar's worth of verified RINs None Requirements for QAPs Detailed requirements including ongoing monitoring Less detailed requirements*** E.O. 12866 Review
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Page 31 of 149 **IV. Provisions for RIN Verification Under Option A**  The quality

assurance program that we are proposing today would include two different options that would be available to regulated parties. Both options are intended to provide an efficient mechanism for ensuring that RINs are validly generated, and both options would provide the basis for an affirmative defense to liability for transferring or using invalid RINs. However, the two options would differ in whether invalidly generated RINs coul d be used for compliance, and in which party would be responsible for replacing invalidly generated RINs. In this section we describe our proposed requirements for Option A. Under this option, obligated parties would not be responsible for replacing RIN s that were invalidly generated if they successfull y established an affirmative defense , and could use invalidly generated RINs for compliance under certain conditions. The third - party auditors responsible for verifying RINs under this Option would also b e responsible for replacing those RINs if they are invalidl y generated. In order to implement this approach, we are proposing detailed requirements for QAPs used to verify

RINs that would include ongoing monitoring of operations at a renewable fuel production facility . We are also proposing that third - part y auditors who verify RINs under Option A would be required to demonstrate the existence of a mechanism capable of replacing RI Ns that are invalidl y generated and verified b y th e auditor. For clarit y, we refer to RINs that have been verified through Option A as A - RI Ns. In this section we first cover the proposed elements of QAPs for Option A and the proposed requirements for the replacement mechanism. We then describe how regulated parties could assert an affirmative defense for transferring invalidly generated A - RINs or using them for compliance. Finally , we discuss the treatment of invalidly generated A - RINs, from the responsibilities of owners of such RINs to the parties that would be required to replace them. Since we are proposing two options for verifying RI Ns under a quality

assurance program, both of which would be available to renewable fuel producers, we are also proposing two different sets of QAP requirements. Under Option A, the QAP requirements would be more comprehensive since obligated parties would be expected to exercise little or no oversight over the auditor process under this Option. Thus, for instance, we are proposing that any QAP used under Option A would have requirements for ongoing monitoring, i.e., for those production aspects that have sufficient variability such that less frequent monitoring could more easil y result in the generation of invalid RI Ns. We would consider these aspects to require “batch” level monitoring, or as frequent as information becomes available or can be collected. We propose that all other components of QAPs under Option A would be evaluated on a more limited basis but on a specified schedule. We consider these aspects to require “facility” level monitoring, and are proposing that components subject to this periodic or limited schedule be monitored on a quarterl y basis. Note that the components proposed for monitoring, whether on an ongoing or periodic basis, are components that are already regulated under the RFS program. We request comment on the components we propose for ongoing or periodic monitoring , as well as an y components not mentioned here. We also request co mment on whether we have or whether we could better strike the necessary balance between the costs of implementing the quality assurance program versus the benefits for the RFS program. We also request comment*** E.O. 12866 Review
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Page 32 of 149 on whether quarterl y monitoring is appropriat e for those components proposed to be subject to the less frequent schedule, or whether different components could or should be subject to different schedules (e.g., annual, once), and what those schedules should be, and why.

A. Requirements for Option A Quality Assurance Plans As described in Section III above, QAPs would be used to verify that renewable fuel produced at a given facility qualifies under the RFS program and that corresponding RINs are validly generated. A QAP would form the basis for a facility audit, and would be created by an independent third - party

based on criteria specified by EPA. This proposed rule would not impose any

requirement on producers to engage a third - part y auditor for the purpose of RIN verification, but instead would provide a voluntary means b y which a production facility that engages an approved auditor, and upon a satisfactory facilit y audit using an EPA - approved QAP, would be verified b y the auditor as validly generating RINs. RINs that had been verified through this process would provide the basis for an affirmative defense against civil violations for transferri ng or using invalid RI Ns for compliance, as discussed more full y i n Section IV.C. As a result, verified RINs would be more valuable than RI Ns from a facility

that had not been verified through a third - part y auditor. We also expect that RI N replacement co sts should significantl y decrease as a result of this program. This section discusses the minimum requirements of Option A QAPs under the RFS program, the elements of review that an Option A QAP must contain, and timing considerations affecting the use of a QAP. 1. Elements of an Option A QAP QAPs would be used b y registered third - part y auditors to audit renewable fuel production at and RIN generation b y a particular facility . The QAP must include a list of elements that the auditor will check in order to verify that the RINs generated by a renewable fuel producer or importer are appropriate given the feedstock, production process, and fuel for which RIN s were generated. Therefore, each QAP must identify the specific RIN - generating pathway from Table 1 to §80.1426 or a petition granted pursuant to §80.1416 that it is designed to audit. Effectivel y, the auditor will be presenting a plan to EPA that the a uditor believes is sufficient in scope and depth to ensure that RINs generated under such a plan are valid. The proposed required elements of an Option A QAP are discussed below. In the QAP, the auditor would specify how the inclusion of the required el ements would be accomplished. We request comment on these proposed elements, including detailed descriptions of an y elements not mentioned below.*** E.O. 12866 Review
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Page 33 of 149 a. Feedstock - related components We propose 12 required elements in Option A QAPs designed to ensure that the feedstocks used in the production of renewable fuel qualify to generate RINs. 8 As shown in Table IV.A.1.a**-** 1, some elements would be required to be monitored on an ongoing basis, and some on a quarterly

basis. To begin with, for each batch of renewable fuel, we propose that the QAP should verify

that feedstocks meet the definition of "renewable biomass ," and identify which renewable b iomass from the listing in §80.1401. As with all components proposed for monitoring and verification under a QAP, except for provisions related to the quality assurance program, there are no additional requirements added to the RFS program, e.g., that fe edstocks are required to meet the definition of renewable biomass in §80.1401 is a current RFS requirement. We are also proposing specific elements depending on the type of feedstock. For instance, if the feedstock is separated yard waste, separated fo od waste, or separated Municipal Solid Waste (MSW), the QAP would be required to verify that a separation plan has been submitted and accepted or approved, as applicable, as part of the registration requirements under §80.1450, and meets the requirements of §80.1426(f)(5) and that all feedstocks being processed meet the requirements of the separation plan. If the feedstocks are planted crops or crop residue, the QAP would be required to include review of records maintained pursuant to §80.1454 to verif y that the land use restrictions of §80.1401 are met and properl y reported pursuant to §80.1451(d). If the renewable fuel producer claims that the feedstocks qualify under the aggregate compliance approach, the QAP would be required to verify that the fee dstocks are planted crops or crop residue that meet the requirements of §80.1454(g). The auditor would also be required to ensure that other feedstocks with additional recordkeeping requirements in §80.1454 are adequatel y covered (i.e. planted trees and tree residue and slash from non federal forest land). The QAP would be required to verify that contracts exist for ongoing delivery of the t ype and amount of feedstocks used to produce renewable fuel, and that information in the contracts is consistent wi th production numbers. The QAP would also be required to verify that feedstock processing and storage equipment is appropriate, sufficient, and in working order to handle and process the feedstocks being used. The QAP would be required to verify the acc uracy of all feedstock - related factors used in calculation of the feedstock energy (FE) used under §80.1426(f)(3)(vi) or (f)(4), as applicable, including the average moisture content of the feedstock, in mass percent, and the energy content of the compo nents of the feedstock that are converted to renewable fuel, in Btu/lb. Note that requirements for these factors and calculations are specified in the RFS regulations. Under the QAP, the auditor reviews and verifies that the requirements of the regulatio ns were followed. The QAP would be required to verify that feedstocks that can be processed at a facility match information in the RFS registration and engineering review. (Note that we are proposing that a separate engineering review would no longer be required if a facil ity is covered b y an Option A QAP). In addition, the feedstocks used to produce renewable fuel must be valid for the D code being claimed under §80.1426 (or have an approved petition under §80.1416) and must

8 The treatment of biomass that is or is derived from invasive species will be addressed in a separate rule - making.*** E.O. 12866 Review
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Page 34 of 149 be consistent with the information reported in EMTS. Finally , the QAP would be required to verify that the feedstock used to produce renewable fuel is not a renewable fuel from which RINs were already generated in accordance with the requirements at §80.1426(c)(6). The feedstock - related elements that we are proposing to require for QAPs under Option A are shown in the table below, along with whether each item would be required to be monitored on an ongoing basis. Table IV.A.1.a**-** 1

Option A: QAP Monitoring Frequency

– Feedstock**-** Related Component Ongoing Monitoring Quarterl y

Monitoring 1 - 1 Feedstocks are renewable biomass X 1 - 2 Separation plan for food or yard waste submitted and accepted X 1 - 3 Separation plan for municipal solid waste submitted and approved X 1 - 4 Feedstocks meet separation plan X 1 - 5 Crop, crop residue feedstocks meet land use restrictions X 1 - 6 Feedstocks with additional recordkeeping X 1 - 7 Contracts for feedstocks compare to production X 1 - 8 Feedstock processing, storage equipment match engineering review X 1 - 9 Accuracy

of feedstock energy calculation X 1 - 10 Feedstock valid for D code, consistent with EMTS X 1 - 11 Feedstock consistent with production process X 1 - 12 Feedstock is not renewable fuel where RINs generated X

b. Production process - related components We propose t 10 required elements in Option A QAPs designed to ensure that the renewable fuel production process is appropriate for the RINs being generated. Auditors submitting QAPs for EPA approval would be required to provide a list of specific steps they will take t o audit each of the elements. For each batch of renewable fuel, the QAP would require mass and energy balances of the production process, and verify that the results match expectations for the ty pe of facility being audited (e.g., biodiesel from soy bean oil may

have different expectations than biodiesel from non - food grade corn oil) based on ty pical values from prior input/output values, or similar facilities if prior values are not available. Energy inputs from on - site energy creation (e.g., pro pane, natural gas, coal, heating oil, diesel, gasoline, etc) and/or energy bills, and mass inputs/outputs such as feedstocks, additional chemicals, water, etc. would be required as part of*** E.O. 12866 Review
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Page 35 of 149 the mass and energy

balances. In addition, the QAP woul d be required to verify that yields, production of co - products, and production of wastes match expectations for the ty pe of facility being audited In addition to mass and energy balances, QAPs under Option A would be required to verify that the productio n process is capable of producing, and is producing, renewable fuel of the ty pe being claimed. The QAP would be required to verify the accuracy of all process - related factors used in calculation of the feedstock energy under §80.1426(f)(3)(vi) or (f) (4), as applicable. The QAP would be required to verify workforce size and conduct random employee interviews to confirm the production process. We believe this element is useful as verification that the plant is running as stated . Staffing levels , or a reasonable metric such as whether the workforce is appropriate per shift for throughput, would confirm that the plant is operating as expected. We understand that automation, plant complexity and staff skill levels and experience, among other factors, can result in some variation here, but believe this is easily accessible and useful data. The QAP would be required to also verify that production process technology and capacity used matches information reported in EMTS and in the facility 's RFS registration. The QAP also would be required to verify that the production process is consistent with D code being used as permitted under Table 1 to §80.1426 or a petition approved through §80.1416. The QAP would be required to verify a number of things related to the fuel ty pe. For instance, the QAP would include verification of the existence of certif icates of anal ys is demonstrating that the renewable fuel being produced meets the applicable specifications and/or definitions in §80.1401, and would be required to verify contracts with lab(s) for certificates of anal ys is, unless a facility has an on - site laboratory. If on - site, the QAP would be required to verify lab procedures and test methods. The QAP would be required to verify that renewable fuel being produced at the facility and that can be produced, matches information in RFS registration in term s of chemical composition. The QAP would also be required to verify the existence of quality

process controls regarding test equipment (e.g., accuracy of flow meters, temperature gauges), and would be required to monitor equipment integrity to ensure prop er procedures for equipment replacement, maintenance, and cleaning are in place. Finally , the QAP would be required to verify that production volume being claimed is consistent with storage and/or distribution capacity and other applicable reports. T he production process - related elements that we are proposing to require for QAPs under Option A are shown in the table below, along with whether each item would be required to be monitored on an ongoing basis.*** E.O. 12866 Review
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Page 36 of 149 Table IV.A.1.b **-** 1 Option A: QAP Monitoring F requency – Production Process - Related

Component Ongoing Monitoring Quarterl y

Monitoring 2 - 1 Mass and energy

balances X 2 - 2 Workforce size X 2 - 3 Process - related factors used in feedstock energy calculation X 2 - 4 Production process consistent with EMTS X 2 - 5 Production process consistent with D code X 2 - 6 Certificates of anal ys is verify fuel X 2 - 7 Verify

existence of quality

process controls X 2 - 8 Volume production consistent with other reports X 2 - 9 Volume production consistent with storage and distribution capacity X 2 - 10 Volume production capacity matches RFS registration X

c. RI N generation - related components We propose nine required elements in Option A QAPs designed to ensure that the renewable fuel being produced qualifies to generate RI Ns, and that the number of RINs generated is accurate. For each batch of renewable fuel, the QAP would be required to verify that volumes of renewable fuel for which RI Ns are being generated meet, are designated for, and are sold for as transportation fuel, heating oil, and/or jet fuel as defined in §80.1401.

The QAP would be required to verify that renewable fuel being produced matches the D code being claimed under §80.1426, or approved petition under §80.1416. The QAP would be required to verify a number of things related to the volume of renewable fuel produced, including a check to ensure that volume temperature correction procedures are followed correctly . The QAP would be required to verify that volume of renewable fuel produced is consistent with expectations for the amount of feedstock being processed . The QAP also would be required to verify the accuracy

of all fuel - related factors used in calculation of the feedstock energy , as applicable, including equivalence value f or the batch of renewable fuel and the renewable fraction of the fuel as measured by a carbon - 14 dating test method (see §80.1426(f)(9)). The QAP would be required to verify that fuel shipments are consistent with production, and would be required to review, if applicable, purchases and storage of petroleum - based fuel, and contracts with an y company that removes wastes, co - products, off - spec products or any other material other than renewable fuel from the facility . The QAP would be required to review*** E.O. 12866 Review
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Page 37 of 149 bills of lading (BOL), invoices, product transfer documents (PTDs), EMTS inputs, EPA quarterl y reports and Energy Information Administration data. Finally , the QAP must verify that appropriate RIN generation calculations are being followed under §80.1426(f)(3), (4), or (5) as applicable, and that RIN generation was consistent with wet gallons produced. The RI N generation - related elements that we are proposing to requi re for QAPs under Option A are shown in the table below, along with whether each item would be required to be monitored on an ongoing basis. Table IV.A.1.c **-** 1

Option A: QAP Monitoring Frequency

– RI N Generation - Related Component Ongoing Monitoring Periodic

Monitoring 3 - 1 Renewable fuel sold for qualifying uses X 3 - 2 Standardization of volumes X 3 - 3 Renewable fuel matches D code or petition X 3 - 4 RI N generation consistent with wet gallons X 3 - 5 Fuel shipments consistent with production X 3 - 6 Renewable content R is accurate X 3 - 7 Registration, reporting, recordkeeping X 3 - 8 Equivalence value EV is accurate, appropriate X 3 - 9 RI N generation calculations X

d. RI N separation - related components We propose three required elements in Option A QAPs designed to verify RI N separation. First, under the limited circumstances where a renewable fuel producer or importer separates RINs, the QAP would be required to verify that an y R INseparation being done by the producer is done according to the requirements of §80.1429, was reported to EMTS accuratel y and in a timely

manner, and is supported by records. The QAP would be required to ensure that fuel that i s exported was not used to generate RINs, or alternativel y that RINs were generated but retired. Finally , the QAP must verify the accuracy of the annual attestation. The RI N separation - related elements that we are proposing to require for QAPs under Option A are shown in the table below, along with whether each item would be required to be monitored on an ongoing basis.*** E.O. 12866 Review
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Page 38 of 149 Table IV.A.1. d **-** 1 Option A: QAP Monitoring Frequency

– RI N Separation - Related Component Ongoing Monitoring Quarterl y

Monitoring 4 - 1 Verify RI

N separation X 4 - 2 Exported fuel not used to generate RINs X 4 - 3 Verify accuracy

of annual attestation X
2. Approval and Use of Option A QAPs

a. Approval of Quality Assurance Plan We are proposing that a third - part y auditor choosing to verify RINs under the quality assurance program must submit a QAP to EPA for approval. A separate QAP is required for each different feedstock/production process/fuel type combination (i.e., pathway). A QAP for a given pathway

may be used for multiple facilities for which that pathway applies. We are also proposing that a QAP mu st be submitted for approval every year. A QAP would be deemed valid on the date EPA notifies the part y that submitted the QAP that it has been approved. Onl y an EPA - approved QAP could be used by a third - party

auditor to provide audit services to renew able fuel producers. b. Frequency

of Updates or Revisions to QAPs We are proposing that a QAP approval b y EPA only applies to the plan that was submitted to EPA, and there are specific cases in which we believe a QAP should be modifi ed and resubmitted for approval. We are proposing that a QAP would need to be revised if the renewable fuel producer makes a change in feedstock, production process, or fuel that is not covered b y the QAP. Under even one of these conditions, the plan sub mitted to EPA would no longer be applicable, and thus a new QAP would be required to be submitted and approved. We request comment on what changes would require a new QAP to be submitted for approval. Specificall y, we request comment on whether a new QAP should be required to be submitted to EPA if the audited facility changes operations, feedstock, fuel ty pe, etc. B. RIN Replacement Mechanisms Under Option A Auditors operating under Option A would be responsible for replacing invalid verified RI Ns if the RIN generator does not first replace them. Upon registration with EPA, auditors would be required to demonstrate that they have access to a RIN replacement mechanism that can replace a minimum percentage of an y invalidly generated RI

Ns they verify as A - RI Ns. See*** E.O. 12866 Review
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Page 39 of 149 Section VI.B of this preamble for full registration requirements. If the party who generated the invalid A - RI

Ns did not replace them , the RIN replacement mechanism would ensure the auditor’s ability to fulfill its replacement requirement. We are proposing that there would be no requirement for a RIN replacement mechanism under Option B, where only producers and obligated parties, not auditors, would be responsible for replacing invalid verified RIN s. The reason we are proposing to require a RIN replacement mechanism under Option A (for auditors), but not under Option B (for obligated parties), is that the business models, size, and assets of the parties expressing interest in operating as audito rs suggests that they would not be capable of self

- financing a RIN replacement obligation. The obligated parties, on the other hand, are generall y owners of major capital assets and are capable of self - financing a potential RI N replacement responsibility . While this may change in the future, it is appropriate at this point to ensure that there would be a reliable mechanism available to fulfill the auditor’s replacement obligation. We intend that the requirement of a RIN replacement mechanism would provi de stability

in the marketplace and ensure that the RI N replacement obligation would in fact be fulfilled. Whatever mechanism is used must be capable of fulfilling the auditor’s potential replacement requirement for invalid RINs audited under an Option A QAP in a given calendar ye ar and the previous four y ears. The calculation of this potential replacement requirement is further discussed in Section IV. B.1 , below, in the context of the proposed cap on RIN replacement under Option A. There are a number of RIN replacement mechanisms that may exist or become available to auditors. We are proposing to leave the choice of the ty pe of mechanism to the auditors, who are in the best p osition to know what arrangement will work best for their businesses. The proposed rules do not therefore limit or specify the ty pes of mechanisms we would accept. Rather, we propose onl y general minimum requirements for an acceptable replacement mechanis m, and we solicit comments on these and potential additional requirements for these mechanisms. We have considered three possible types of mechanisms that could provide this function: traditional financial assuran ce instruments , RI N banks, and RIN escrow accounts . However, these mechanisms, outlined below, are not intended to be inclusive of all possible way s a RIN replacement mechanism could work, and are merel y suggestions of potential pathway s Option A auditors might follow. We request comment on the various factors that will impact the effectiveness and cost of establishing and maintaining the minimum required balance in a RIN replacement mechanism, such as how man y ye ar’s worth of RINs the mechanism should be required to be capable of replacing, whether a minimum percentage of the potential replacement obligation should be used as a baseline for the mechanism, and alternative methods to determining the appropriate minimum funding of the mechanism. We also see k comment on the perceived feasibility and necessit y of the replacement mechanism requirement for auditors under Option A. Finally , we seek comment on whether an y of the replacement mechanisms described below or any other form of replacement mechanism might provide the required ty pe and amount of coverage, whether an y should be prohibited, and an y other relevant comments on this issue.*** E.O. 12866 Review
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Page 40 of 149 1. Required Replacement Capability for RIN Replacement Mechanisms We do not believe it would be reasonable to requi re replacement mechanisms under Option A to provide coverage for all of the RINs an auditor verifies because we believe that properl y functioning QAP audits will significantly reduce the chance of invalid A - RI Ns entering the market. We also recognize that the market will need time to evaluate the risk associated with bonds or other traditional financial assurance mechanisms and properl y price these financial assurance instruments. Accordingl y, we are proposing to phase in the RIN replacement mechanism ove r time to balance the benefits of encouraging earl y implementation of the more robust QAP A program with the cost of earl y implementation. Under this approach, the minimum “replacement cap” will be set relatively low through 2015, and may change on January 1, 2016. We propose that an auditor using an Option A QAP must be capable of replacing 2% of the total A - RI

Ns that it verifies during the first phase of the program, i.e. through 2015, and we will finalize a replacement cap for subsequent years in the final rulemaking. We believe incidences of invalid RINs will be significantl y below historic levels. Invalid RI Ns in 2010 and 2011 were generated when there was essentiall y no due diligence being performed b y downstream parties to ensure that RINs were v alid, and we believe that incidences of invalidity would be significantly

fewer in number once the QAP verification processes are in use. The auditor’s replacement responsibility is therefore equal to the “replacement cap” for this first phase of the program. For further information on the replacement cap, see Section IV.D.4, below. Nevertheless, historically, invalid RI Ns have not been generated with equal probability by all biodiesel producers. Instead, it has been a few producers that were responsibl e, with essentially

all RI Ns generated by

those producers being invalid. If such circumstances were repeated in the future, the potential impacts on auditors would be twofold . First, some auditors would not have to replace an y of the RINs they verify , si nce many

producers would have generated no invalid RINs. Second, in the event that an auditor was required to replace invalidly generated RINs, those invalid RI Ns would likel y represent more than 2% of the RINs that the auditor verified. As a result, it is possible that the number of invalid RINs could be higher than 2% of a single auditor's throughput even if the total number of invalid RINs represented onl y 2% of all RINs generated for the nation as a whole. We therefore seek comment on the level of co verage required for RIN replacement mechanisms. We believe that the appropriate level of coverage for RIN replacement mechanisms should strike a balance between the benefits of ensuring that invalid RI

Ns are replaced and reducing the risk of invalid RINs entering the market, and the costs associated with implementing RIN replacement mechanisms. We also seek comment on whether it would be appropriate to require a minimum dollar value as a floor for coverage. The minimum dollar value might help ensure that the auditors who participate in this program have the capital to function appropriatel y, but might also cause some qualified auditors to refrain from participating in the program because of the additional costs. We seek comment on whether to require an a dditional floor for the RIN replacement mechanism and the correct amount of the floor.*** E.O. 12866 Review
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Page 41 of 149 Beginning January

1, 2016, the Option A RI N replacement mechanism cap may change from the initial 2%. As noted above, we will finalize the replacement cap for 2016 a nd later ye ars in the final rulemaking, and we request comment on a level or levels of coverage for 2016 and beyond. As described in greater detail in Section IV.D.4, below, we also propose that the auditor’s replacement responsibility extend back to cove r no more than five years. 9 Therefore, the auditor must maintain the ability to replace the cap percentage of A - RINs verified in the current ye ar to date plus the cap percentage of A - RI Ns verified in the previous four calendar ye ars. If the replacement c ap changes in 2016, we expect that the auditor’s replacement responsibility

for the years in the initial phase would not change. Maintenance of a RIN replacement mechanism is a condition of an auditor’s registration, which would be renewed annually . A f ailure to maintain the ability to replace up to the given cap percentage would therefore be a sufficient condition for denying a registration renewal or revoking an Option A auditor’s registration. However, we recognize that if an auditor’s replacement ca

pacit y has been significantl y depleted by a replacement action, it might be difficult or even impossible for it to re - fund the replacement mechanism and maintain its registration in the short term. We therefore propose that the replacement mechanism be re funded on an ongoing basis, i.e. by the given cap percentage of A - RI Ns verified, until the maximum required amount is again achieved. The formula for this calculation is in § 80.1470(c) of the proposed regulations, and this re - funding mechanism is mirror ed in the calculation of the replacement cap, see Section IV.D.4 below. We request comment on all aspects of the calculation of the replacement mechanism and re - funding of a depleted replacement mechanism. 2. Financial Assurance Instruments As noted above, we would not prescribe that auditors under Option A must use an y particular RIN replacement mechanism, but would only require that the mechanism used be capable of covering an auditor’s potential replacement responsibility described above. Since obligated parties would not be responsible for replacing invalid RINs under Option A, any replacement mechanism held by the auditor would need to make disbursements directly to the auditor or to a third - party contractuall y obligated to perform the a uditor’s replacement responsibility

and retire the correct number and t ype of A - RI Ns, up to the replacement cap discussed above. We have considered a number of traditional financial instruments that we believe are not suitable to provide the coverage re quired under Option A. For instance, a liability policy obtained by

an auditor would ty

picall y onl y cover losses incurred b y another part y contracting with the auditor, in this case, most likely the RIN purchaser. This would not be an acceptable replacem ent mechanism under Option A because the RIN purchaser is not responsible for replacement of A - RI

Ns and therefore would have no compensable harm. If an insurance policy could be written to cover the replacement obligation of the auditor instead of a third - party , regardless of the fault of the auditor or the source of the invalidity (i.e., covering potentially fraudulent acts by

the producer), then such an instrument may be acceptable as a replacement 9 While there is no statute of limitations on EPA taking enforcement actions with respect to invalid RINs, there is a five year limit on records retention.*** E.O. 12866 Review
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Page 42 of 149 mechanism under Option A. Similarly , a replacement mech anism that would pay out directly

to EPA instead of the auditor would not be acceptable because EPA cannot purchase or retire RINs. Surety bonds and letters of credit payable to EPA would therefore not be suitable replacement mechanisms for Option A. On the other hand, a surety bond or other financial instrument, such as a letter of credit, could be used as a RIN replacement mechanism if capable of providing direct replacement of invalid RI Ns, either by

itself or b y contracting with a third part y. A p erformance bond, for example, might directl y guarantee the performance of the auditor’s RIN replacement responsibility . The bond agreement could allow the suret y the option of purchasing and retiring replacement RINs itself, hiring a third - part y agent to complete the purchase and retirement, or paying into a standby

trust that could, in turn, fulfill the replacement responsibility on its own or by hiring a third - part y agent to do so. A pay ment bond, similarly , could be established to pay out to a standby trust authorized to purchase and retire RINs on demand by the EPA administrator, or to contract with a third - party to perform the replacement. In an effort to provide regulated parties with an option where the auditor could use a traditional liability

pol icy as a RIN replacement mechanism while relieving the obligated party of RIN replacement responsibility , we considered a modified Option A approach. In this modified approach, the obligated party would be responsible for replacing invalid A - RI Ns that it had retired for compliance purposes, but the auditor would carry a third - party

liability policy to cover the cost of that RIN replacement. In the event that the insurance policy failed for whatever reason to pay

out the replacement costs, or paid out only part of the replacement costs, the obligated part y would not be liable for fulfilling the remaining portion of its RI N replacement responsibility . Essentially , the obligated part y would be responsible for RIN replacement, but would be assured that their replacement costs would be covered entirel y b y a third part y. However, we found significant problems with this approach. The primary problem is that if an obligated part y incurred a replacement obligation and sought compensation through the insurance poli cy , it would have little reason to press its claim with any vigor, knowing that an y lack of pay

ment from the insurer would effectively be forgiven by

EPA. The obligated part y, in short, would be rendered whole regardless of how little the policy paid, or even if the policy paid at all. As a result, we consider it very likely that under this modified Option A sy stem, the invalid RI Ns would not be replaced. This approach would also affect the behavior of the insurer, who would define the limits of its liab ility on the basis of the potential harm that the obligated party might suffer. Since the obligated part y would not be responsible for replacing an y R INs not covered b y the insurance policy , its “harm” would be limited to whatever amount the insurer chose or intended to pay

out. The insurer would not be penalized or pursued for failing to pay out to the limits of the policy because such a decision would cause no harm or loss to the obligated party or the policy

holder. It is arguable that this situation wo uld effectively create a fictitious insurance contract, because the insurer would control most if not all of the total amount of the loss it was insuring against. We seek comment, however, on whether this or some other modification to Option A would be co nsidered acceptable and feasible. The inapplicability

of a third - part y liability policy as a replacement mechanism under Option A would not, of course, diminish its availability and use under Option B. While liability insurance is not a required feature of the Option B program, auditors and obligated parties could*** E.O. 12866 Review
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Page 43 of 149 nonetheless choose to contract for it voluntaril y. Third - part y liability insurance, therefore, would still provide a way

for obligated parties to cover their potential replacement responsibili ty under Option B. Obligated parties and auditors would remain free to set up whatever kinds of contracts and/or third - part y agreements to cover potential losses due to invalid RI Ns. We also considered a “h ybrid” approach, combining certain features of Option A with certain features of Option B. Under this approach, the obligated party would retain the replacement responsibility, but the auditor would be required to carry a third - part y liability policy to cover the obligated part y’s potential losses due to the use of invalid A - RI Ns. In this scenario, the obligated party would remain liable for replacement of invalidly generated RINs even if the insurance instrument provided onl y partial coverage, or if it failed to provide coverage at all. This opt ion would give obligated parties the extra assurances of an Option A QAP and a dedicated liability insurance policy

held by the third - part y auditor to cover their potential losses. However, as noted above, this approach is essentiall y already available un der Option B. An independent third - party auditor could offer a QAP that met the requirements of Option A and could also provide the assurance of a third - part y liability policy to cover the RIN purchaser’s potential replacement responsibility . Moreover, b y l eaving this as an independent and voluntarily

chosen option, auditors and obligated parties have more flexibility to decide what level of coverage and risk they are willing to bear, instead of being required to maintain a set minimum amount of coverage. We therefore decided not to propose this as an independent option, but we request comment on whether this hybrid approach or some variation of it would be a valuable addition to the proposed program. 3. RI N Banks Another potential replacement mec hanism is a RIN bank. A RIN bank would be a repository

for valid RI

Ns to which multiple Option A auditors (the “members” of the bank) contribute, and which could be used as a source of replacement RINs in the event that any one of the members was required to replace invalid RI Ns. As with any

other replacement mechanism, the bank would have to be capable of fulfilling any member’s replacement requirement, meaning that it would have to contain RI Ns sufficient to meet th e replacement responsibility of the member with the largest potential replacement requirement at any given point in time. The primary

advantage of a RIN bank is that it would give each member access to a large quantity of A - RI Ns in exchange for contributing a relativel y small quantity of A - RI Ns. However, if RINs from the RIN bank were used to replace RINs for which one of the bank’s members was responsible, the withdrawn RINs would have to be replaced in the bank. While the bank managers might require the responsible part y to reimburse the bank for an y R INs withdrawn as a result of its actions, if the responsible part y declared bankruptcy or was otherwise unable to reimburse the bank, the remaining members would be responsible fo r re - populating the bank to the required level. A RI N bank could be established, funded and managed by members of the bank. Members would each purchase and contribute verified A - RI Ns to the bank. While such contributions could be proportional to each p art y's RI N replacement liability , it would be up to*** E.O. 12866 Review
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Page 44 of 149 the bank managers to stipulate how the bank would be populated, how withdrawals from the bank are administered and managed, how to re - populate the bank in the event that RI Ns are withdrawn to replace inva lid RI Ns, and how to grant or revoke membership in the bank. A RI N bank would establish an EMTS account to identify the RINs contributed by

the bank’s members. RINs would be held b y the bank and be available to replace invalid RINs that were verified under Option A by a member of the bank. Each member of the bank would be required to have access to all of the RINs in the bank to replace A - RI Ns they had audited that were found to be invalid. If at an y point the number of RINs held by the bank no longe r met the EPA’s requirements, either due to the addition of a new member(s) to the bank, an increase in the liability

of one of the members of the bank, or a withdrawal to replace invalid RI Ns, the members of the bank would again be required to contribute RI Ns to the bank until the minimum required level of RINs was reached.

RI Ns deposited in RI

N banks would expire just like other RINs . We contemplated creating a special category of RINs that do not expire if deposited in a RIN bank which would allow the bank to provide perpetual backing for its members’ replacement responsibilities, as long as the RINs were not withdrawn to replace invalid RI Ns. However, RINs that do not expire could acquire a higher market value compared to RI Ns from the same facility without this new status. I f EPA adopted this sy stem, we would also have to stipulate that RINs placed in a RIN bank could not be withdrawn fo r any reason other than to replace invalid RINs to prevent auditors from depositing RI Ns into the bank, achieving this new status, and then withdrawing them to be sold with a new higher market value. This stipulation would place restrictions on the use of RI Ns owned b y the auditors participating in this sy stem and could be problematic in cases where an auditor wanted to disassociate from a bank. The alternative to this system, and the one we are proposing today , would not change the status of RI

Ns deposi ted in a RI

N bank and would allow them to expire just like any other RINs. Auditors would be free to regularl y withdraw older RINs from the bank and replace them with newer RINs (in addition to their new contributions) to prevent RINs in the bank from exp iring and losing their value. While we recognize that this would add some administrative burden to auditors and potentially

impact the value of RINs that are deposited in the bank (since RINs from a previous ye ar are limited to being used to cover 20% of an obligated party ’s RVO) we nevertheless believe this is a better option than creating a new class of RINs. This approach would allow auditors to have the most control over their own RINs, depositing and withdrawing them at an y time, provided they mainta in their required minimum balance in the bank. Further, since the rollover cap limitation on the previous year's RINs that may be used to meet the current ye ar’s RVO (see §80.1427(a)(5) ) is significantl y higher than the percentage of RINs that would be required to be held b y a bank, we believe the depreciation in the value of RI Ns deposited in a bank is likely

to be minimal. 4 . A - RI

N Escrow Accounts*** E.O. 12866 Review
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Page 45 of 149 An A - RI N escrow account would work very much like a RIN bank, but would be funded by a single auditor instead of a group of auditors, and would be supervised and managed by a third - part y escrow agent. The advantage of this option is that an auditor would have total control over the funding of the escrow account and, in contrast to the RI N bank, an auditor using an escrow account would never be adversel y affected by the actions of another contributor to the account, such as failure to contribute its required share or a large withdrawal from the RIN bank that might leave the bank underfunded. On the other hand, an auditor using an escrow account would be solely

responsible for the f

unding of the account, and so would be required to maintain a balance equal to a much larger percentage of its potential replacement responsibility than it might be if using a RIN bank. To qualify

as an acceptably

funded account, we propose that the escrow account would be required to maintain a balance of A - RI Ns equal to the auditor’s replacement responsibility at any given point in time. As with the RI N bank, the RINs held in escrow would expire just like any other RI N and would have to be retired and replaced on a rolling basis to maintain the auditor’s ability

to replace invalid RI

Ns at any given point in time. Thus, the RIN auditor would eventuall y be able to use the proceeds from the sale of RINs in the escrow account to fund the purchase of new RINs, reducing the total long - term costs of this RI N replacement instrument. Likewise, if the account’s balance fell below the minimum required amount for any reason, the auditor would be precluded from verifying RINs unless and until the account’s balance was brought back to the minimum level until the cumulative five year cap is reached (as further described in Section IV.D.4) The escrow account would contain verified A - RINs and would be used as a source of RI Ns to retire upon a finding that RINs verified by the auditor were in fact invalid. An originall y signed cop y of the escrow account agreement would be submitted by the auditor to EPA as part of its registration. The agreement would stipulate, for example, that the escrow agent would release RINs from the account upon demand b y or with the concurrence of the EPA Administrator. RI

Ns would be released directly to the auditor (for roll - over purposes or for meeting a replacement requirement) or to a designated thi rd part y such as a standby trust (solel y for meeting the auditor’s replacement requirement ). Maintenance of the account’s minimum balance requirements would be part of the auditor’s regular compliance reporting. The auditor would set up a separate acco unt in EMTS to identify RINs placed in the escrow account.

C. Affirmative Defenses*** E.O. 12866 Review
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Page 46 of 149 After meeting with industry stakeholders over the course of several months, we recognize that providing an affirmative defense to civil liability ari sing from the transfer or use of invalid RI Ns would promote greater liquidity in the RIN market, especially the market for RINs generated b y smaller producers. EPA believes that in the circumstances present in the RFS program, an affirmative defense combi ned with a reasonable QAP and adequate mechanisms to replace RINs that are invalidly generated, is an appropriate way to promote greater liquidity in the RI N market. It is our intent to design a s ys tem that would provide RIN owners with such an affirmativ e defense to civil liability provided appropriate measures are in place with respect to a QAP and a mechanism for replacement of invalidly generated RINs. To this end, under the proposed regulations renewable fuel producers and obligated parties would have the option of participating in a quality assurance program that would provide significant assurance (Option A) or reasonable assurance (Option B) that RINs are validly generated at production facilities. EPA would approve Quality Assurance Plans (QAPs) that meet the basic criteria prescribed in the regulations, and these QAPs would be the template for production oversight by

an independent third - party auditor. Performance of an EPA - approved QAP audit would be the foundation of an affirmative defense fo r parties that transfer or use QAP - verified RINs for compliance purposes. The affirmative defense would only be available to RI N owners for RINs that were verified b y an independent third - part y auditor using an EPA approved QAP, whether Option A or Option B. Additionally , it is our intent that affirmative defenses would not be available to the generator of an invalid RIN. Since the quality assurance program would be voluntary , parties could still purchase RINs not verified by an EPA - approved QAP and tran sfer or use these unverified RINs, but they could not assert an affirmative defense if the RINs were found to be invalid, regardless of their level of good faith or any independent due diligence they

perform prior to purchase. Once a RIN has been verified by the auditor, any

person, other than the generator of the RI N, who transfers or uses that verified RIN would be eligible for an affirmative defense if the RI N was in fact invalidly generated and the person then transferred it to another part y or used it for compliance purposes. Once a RIN was verified through an audit based on an Option A QAP, it would remain verified for the purpose of asserting an affirmative defense . 10 The QAPs wo uld be designed to verify

valid generation of RINs, and the assertion of an affirmative defense would be limited to the prohibited acts of transferring and using invalidly generated RINs. The proposed affirmative defense addresses violations of 40 CFR § 80.1460(b)(2) and 40 CFR § 80.1460(c)(1). 40 CFR § 80.1460(b)(2) prohibits any person from transferring to any other person a RIN that is invalid. 40CFR § 80.1460(c)(1) provides that no person shall use invalid RI Ns to meet the person’s RVO, or fail to acquire sufficient RINs to meet the person’s RVO. The proposed affirmative defense would appl y to violations arising from a person’s use of invalid RI Ns whether or not his/her use of the invalid RI Ns caused them to fail to acquire sufficient RINs to meet their RVOs. We are proposing new regulations in Section VIII to address RINs that become invalid downstream of the RIN generator, but an affirmative defense would not apply in this situation. It
10 If a RIN was imp roperly verified, the QAP auditor could be liable for committing the prohibited act of verifying a RIN without following the requirements of the EPA - approved QAP plan. How ever, the RIN would remain verified for purposes of asserting an affirmative defense by parties who transferred or used that RIN after it was verified.*** E.O. 12866 Review
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Page 47 of 149 should again be noted that an affirmative defense is not available for a RIN that was not verified under an EPA - approved QAP. In other words, the sy stem as it exists under the current regulations would continue to be an option for obligated parties who do not wish to purchase RI Ns verified b y a QAP. As noted above in Section III of this preamble , there are two t ypes of verified RINs: those verified b y a third - party auditor who is required to have a replacement mechanism to guarantee replacement of invalidly generated RINs (“Option A” or “A - RI Ns”) and tho se verified by a third - part y auditor who is not required to replace invalidl y generated RI Ns (“Option B” or “B - RI Ns”). The requirements for establishing an affirmative defense under Option A are described below, while Option B is described in Section V.C. In order to establish an affirmative defense under Option A or Option B, we are proposing that the elements would be required to be proven b y a preponderance of the evidence. This means that each element was more likel y than not to have been met. Add itionally , we are proposing that when a person seeks to establish an affirmative defense, he/she would submit a written report to EPA, along with any necessary supporting documentation, that would demonstrate how the elements were met. The written rep ort would need to be submitted within 30 days of the person discovering the invalidity of the RI N. We welcome comment on the elements of the affirmative defense and the effects of establishing an affirmative defense. In the event that invalidly generated A - RI

Ns are transferred or used, the person could establish an affirmative defense to liability arising from transferring or using the invalid A - RI Ns for compliance with an RVO if the following elements were proven b y a preponderance of evidence: 1) The RINs in question were verified in accordance with an EPA - approved Option A QAP as defined in EPA regulations; 2) The RIN owner did not know or have reason to know that the RINs were invalidly generated prior to being verified b y the third - party auditor; 3) The QAP auditor or RIN owner informs the Agency within the next business day of discovering that the RINs in question were invalidly generated; 4) The RIN owner did not cause the invalidity ; and 5) The RIN owner did not have a financial interest in the company that generated the invalid RI N. Allowing invalid RINs to circulate in the market without EPA’s knowledge would subvert the intent of the quality assurance program and the RFS program. In that context, the knowledge and notification requirements, (2) and (3) of the above list, ensure that the RIN owner did not knowingly allow invalid RI Ns to enter the market, and did not benefit from the use or retirement of the invalid RI Ns without informing EPA that the RI N was invalid. An affirmative defense is a defense that precludes liabi lity even if all of the elements of a claim are proven , and generall y is asserted in an administrative or judicial enforcement proceeding . In this proposed rule, we are including an explicit notification requirement to allow EPA to evaluate affirmative de fense claims before deciding whether or not to commence an enforcement action.*** E.O. 12866 Review
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Page 48 of 149 We request comment on all the elements we are proposing as prerequisites to asserting an affirmative defense, and in particular the requirement to report invalid RINs to the EPA within the next business day

of discovery . D. Treatment of Invalid A
-RINs Under both the current and proposed regulations, RI N purchasers must assess the level of risk associated with purchasing a particular RIN to comply with their RVOs. For instance, a purchaser unfamiliar with the renewable fuel producer generating the RIN risks the possibility that the RI

N is invalid, while a well - known producer might seem less risky. The use of the QAPs as described in th is NPRM would reduce the risk of purchasing invalid RI Ns, especiall y in situations where the producer of the RIN is unknown or new to the market. Where a producer is considered less risky

in a given situation by

a given purchaser, the RIN bu yer may not ne ed as extensive a QAP to reduce its risk to an acceptable level, and would be willing to risk the obligation to replace the RI N if it were found invalid. On the other hand, a RI N deemed more risky might require a more stringent QAP and additional assuranc es against the responsibility to replace it if the RIN turns out to be invalid. The obligation to replace invalid RI Ns that have been retired for compliance purposes will differ depending on whether the RI N was unverified, or verified through an Option A or Option B QAP. Additionally , as discussed in Section III.C, we are proposing an administrative process for replacement of invalid RI Ns that places initial responsibility to replace invalidly

generated RI Ns on the RIN generator responsible for causin g the invalidit y. In the event the RIN generator does not replace the invalidly generated RINs according to the administrative process, the third party auditor under Option A would also be required to replace the invalid RI Ns. Thus, for invalidly generated RINs verified b y an Option A QAP, the auditor would have the responsibility to replace the invalidly

generated RINs, and the obligated party would have no responsibility for RI N replacement , if they

met the requirements of the affirmative defense . However, in the event that regulated parties fail to implement the administrative process for replacement of any invalid RI Ns, the EPA could bring an enforcement action against any or all of the parties that were requ ired to replace the invalid RI Ns , which under QAP Option A includes the RIN generator or auditor, but not the obligated party. See §80.1474 of the proposed regulations for details of the administrative process for replacement of invalid RI Ns. Th is section describes the responsibilities of regulated parties that generate RI Ns or take ownership of RINs verified under Option A but which are ultimatel y found to have been invalidly generated. We also describe the conditions under which invalid RINs must be replaced, b y whom, and the mechanisms for doing so. 1. Responsibilities for Replacement of Invalid Verified A - RI Ns*** E.O. 12866 Review
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Page 49 of 149 For Option A we are proposing a s ys tem wherein RI Ns would be verified by

a third - part y auditor using an EPA - approved QAP, and the third - part y auditor would be liable for replacing invalidly generated RINs. Obligated parties would not be liable for replaci ng invalid RINs under Option A, and could use invalid A - RI Ns for compliance. Obligated parties that purchase A - RI Ns would not be subject to civil liability if an A - RI

N transferred or used for compliance purposes was later found to have been invalidly ge nerated, if all the elements of an affirmative defense were successfully asserted, as described in Section IV .C. Moreover, obligated parties would be under no obligation to replace A - RI Ns used for compliance that were subsequently found to be invalid and could transfer and use invalidly generated A - RI

Ns (if they

did not know or have reason to know the A - RINs were invalidly generated prior to being verified) without violating the Prohibited Acts section, §80.1460. Under Option A, the third - part y auditor w ould be required to have a replacement mechanism capable of replacing invalidly generated A - RI

Ns that were verified by

that auditor. 11 We chose to have the third - part y auditor replace invalidly generated A - RI

Ns to provide obligated parties the greates t amount of incentive to buy RINs from smaller producers, who might be perceived to be higher risk producers, which would increase the liquidity of the market. The third - part y auditors would have the greatest oversight of A - RI N generation because of the r obustness of the verification product they are providing to the market under Option A. Thus, charging them with the corresponding replacement obligation is a reasonable approach to achieving the goals of the proposal. Additionally , as discussed above, af ter meeting with several third - part y auditors, we discovered that they, in most cases, do not have the same level of financial resources that many obligated parties possess. Therefore, requiring a replacement mechanism provides a level of security for the Agency in making sure the statutory volume mandate is met. As described more full y in Section IV.B, the form of this replacement mechanism would determine how this replacement occurs. QAP Option A would provide the greatest risk mitigation for obligate d parties in the event that their RINs were invalidly generated and later used for compliance purposes. Not onl y could they

assert a defense to civil liability for using an invalid A - RI N for compliance purposes, but they would not be responsible for later replacing that RIN. QAP Option A would provide a means for all producers to participate in the market because obligated parties would bear no risk of a replacement obligation for an y A - RI Ns, regardless of who produced them. Smaller producers would thus have access to a larger number of obligated parties as potential customers than they might have under the existing regulations, where obligated parties are alway s subject to a replacement obligation if the RINs they have retired are deemed invalid. We see k comment on this approach. In particular, we seek comment on what ty pes of entities would seek to serve as auditors, what the potential risk burden might be, and how this burden could be quantified. We further seek comment on the impact of the RIN replacement cap on the cost of the program. 2. Invalid A - RI

N Replacement

11 It should be noted that the replacement mechanism could not be funded by RINs that were both generated and verified by the same auditor. Auditor requirements are discussed in further de tail in Section VI.*** E.O. 12866 Review
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Page 50 of 149 The current regulations do not specify that an obligated part y must replace invalid RI Ns . Rather, obligated parties choose to replace invalid RI Ns in order to meet their RVOs . If the party holding an invalid RI

N is an obligated part y, and he does not have a sufficient number of valid RI Ns to meet his RVO, he must acquire additional valid RI Ns. Under the qualit y assurance program the requirement to replace an invalid RI N may be placed on a part y other than the owner of the inv alid RI N. As a result, the regulations governing the replacement of invalid verified RINs must specify which party

is responsible. Under Option A only the renewable fuel producer or importer who generated the invalid RI Ns and the auditor who verified tho se RINs would be responsible for replacing them. In general, as discussed above, the administrative process for replacement of invalid RI Ns places initial responsibility of replacement of invalid RI Ns on the RIN generator, regardless of who actually owns the invalid RI Ns at the time that the invalidity i s discovered. Even though we are proposing that invalid verified A - RI Ns could continue to be transferred and used for compliance, the generator of an invalid A - RI N would never be permitted to transfer verified A - RI

Ns that are invalid. If the RIN generator failed to replace invalidly generated A - RI

Ns in the time frame established in the administrative process specified in the proposed regulations, the third - part y auditor would be required to replace the invalid A - RI Ns. A QAP A auditor would be responsible for replacing invalidly

generated A - RI

Ns up to the levels discussed in Sections IV.B and IV.D.5. All regulated parties that are potentiall y liable for replacing invalid RINs w ould be free to obtain more coverage for RIN replacement than the regulations require. In the event that regulated parties fail to implement the administrative process for replacement of an y RI Ns, the EPA could bring an enforcement action against any or a ll of the parties that were required to replace the invalid RI Ns , i.e., the RIN generator or auditor, but not the obligated party. The methods for replacing invalidl y generated RINs under QAP Option A are outlined below. See §80.1474 of the propos ed regulations for details of the administrative process for replacement of invalid RINs. In general, RINs verified under Option A could alway s be transferred or used even if they are discovered to have been invalidly generated, since RIN replacement woul d be carried out by the RIN generator or the auditor. In the event that EPA or the independent third - party auditor alleged that an A - RI N was invalidly generated, that RI

N would be a “potentially invalid RIN” or “PIR”. The RIN generator would be requir ed to take one of three possible corrective actions within 30 day s of being notified of the PIR:

• Retire a valid A - RI

N of the same D - ty

pe as the PIR, either by

purchasing it or generating a new valid RIN and separating it from the phy sical volume that it represents; • Retire the invalidly

generated RIN (if still in the RIN generator’s possession); o r*** E.O. 12866 Review
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Page 51 of 149 • If the RIN generator believed the PIR was in fact valid, it would submit a written demonstration providing a basis for its claim of validity to either the third - party auditor or EPA, whoever identified the PIR. If the third - party auditor or EPA determined that the demonstration was sufficient, the RIN would not need to be replaced. However, if the third - part y auditor determined it was not sufficient and if the EPA confirmed that determination, or if EPA det ermined it was not sufficient, it would notify

the RIN generator of that finding and again require the RIN generator to replace the PIR within 30 day s. In order to allow a producer to replace a PIR with a new valid RIN from renewable fuel that it has gen erated, we are proposing a new provision in §80.1429 that would permit producers to separate RINs from volume they produced for the specific purpose of retiring RINs to replace a PIR. If the RIN generator retired a valid RIN to replace the PIR, the invali d RI N that it replaced could continue to be transferred or used for compliance b y an y party. If the RIN generator did not replace an invalidly generated A - RI

N for an y reason, the regulations would require the third - part y auditor to replace the invalid A - RI N. The auditor would have 60 day s from the day it received notification of the PIR to retire a valid RIN to replace the PIR. Regardless of whether the RIN generator or auditor replaced the invalid A - RI N or not, an y other party that owned the potentiall y invalid A - RI N could transfer or use that A - RI N for compliance purposes. Additionally , if an obligated part y or other third - party owner of an A RI N successfull y established an affirmative defense, they would not be responsible for replacing the A - RI N if it was deemed invalidly generated. 3. Process for Replacing Invalid Verified RINs When an auditor or EPA determines that a RI N is a PIR , the RIN generator would be notified directl y. At this point, the process of retiring an appropriate valid RI N would begin. There would be two forms of invalid RI N replacement under the proposed quality assurance program: 1. If a party that is required to replace an invalid verified RIN owns the RIN in question, it may

be retired through EMTS in the same way that invalid RINs under the current regulations are retired. 2. If a party

that is required to replace an invalid verified RIN d oes not own the RIN in question, or the RI

N has already

been used for compliance, the party would be required to acquire a valid RI N and retire it in place of the invalid RIN. Inthis case, since it would be a valid RI N that is being retired, a new retire ment code reason would be created in EMTS for this purpose.*** E.O. 12866 Review
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Page 52 of 149 a. Ty

pes of RINs that Can Replace Invalid Verified RI Ns Parties that retire valid RINs to replace invalid RINs would be required to match the renewable fuel category

and the QAP category

of both the valid and invalid RI Ns. For instance, an invalid verified RIN with a D code of 4, representing biomass - based die sel, could only be replaced with a valid verified RIN with a D code of 4. Moreover, we propose that invalid RI Ns verified through Option A could only be replaced with valid RI Ns verified through Option A, not Option B (and vice - versa). Since the balance of cost and risk could be different under Options A and B of the quality

assurance program, RINs verified under the two options could have different prices even though they

have the same D code. Thus there could be a financial incentive for valid RI Ns verified under one option to be used to replace invalid RINs verified under the other option, and this could lead to unforeseen market imbalances. Nevertheless, we request comment on whether valid RINs verified under one option should be permitted to replace invalid RINs verified under the other option. We do not believe that valid RI Ns generated under the existing regulations (i.e. not under the proposed qualit y assurance program) should be permitted to replace an invalid verified RIN. The replacement o f invalid RI Ns with valid RINs is an approach that we have designed in the context of the quality

assurance program to allow verified RINs that are found to be invalid to continue to be transferred and used for compliance. We do not believe it would be appropriate to replace a RIN that had been verified through the quality assurance program with one that has not been verified. We request comment on this approach. b. Impacts of RIN Replacement on Renewable Fuel Demand The purpose of requiring invali d RI Ns to be replaced is to ensure that the annual renewable fuel volume mandates provided in CAA 211(o)(2) are fulfilled. However, the process of identifying invalid RINs and replacing them could potentially unfold over months or even ye ars. This proces s could result in some portion of a given year's applicable volume requirement being fulfilled in a subsequent year, as replacement RI Ns may not be generated in the same ye ar that the invalid RI

Ns were generated. Thus there is a possibility that RIN repla cement could cause greater demand for renewable fuel in a given year than the applicable standards are intended to require for that year. While we expect the number of invalidl y generated RINs to be considerabl y less under our proposed qualit y assurance p rogram than they were in 2010 and 2011, nevertheless we believe that this issue should be addressed. While the RFS program is designed to result in the use of specified volumes of renewable fuel within each calendar year, the current regulations include provisions that allow the volumes used in a given year to be more or less than the specified volume. For instance, the RIN rollover cap at §80.1427(a)(5) allows up to 20% of a given year's volume requirement to be met with previous - year RINs. Effectivel y , this means that the demand for renewable fuel in a given ye ar can be up to 20% below the volumes required. In addition, the deficit carryover provision at §80.1427(b) allows an obligated part y to delay compliance with an y portion of his RVOs by one ye ar . Although an obligated part y cannot carry over a deficit for two ye ars in a row, the fact that*** E.O. 12866 Review
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Page 53 of 149 there is no limit to the size of deficit carryovers means that in theory there could be substantial differences between the volumes required in a given year an d the actual demand for renewable fuel in that year. In addition, the applicable percentage standard set by EPA is based on projections of gasoline and diesel production, and to the extent the actual production varies from these projections, the actual vo lume of renewable fuel may be more or less than the national volume called for in section 211 (o)(2). Finall y, under the current regulations, the future replacement of RINs may occur in the context of an enforcement action related to the transfer or use o f invalid RINs. This replacement obligation under the proposed regulations has a similar effect as far as timing of RI N replacement, recognizing that under the proposal there should be many fewer invalid RINs generated, and therefore much less need for future RI N replacement. Consistent with the effect of these various provisions, we believe it would also be appropriate to permit an invalid verified RIN to be replaced outside of the year in which it was generated. In the case of RI N replacement using va lid RI Ns from a RIN escrow account or RIN bank, valid RINs are set aside before invalid RINs are generated and discovered. The small increase in demand for renewable fuel caused b y s etting aside these valid RINs would occur before RIN replacement, not aft er, and they would accrue at the same rate that RI Ns are being generated and verified. We believe that these features of RIN escrow accounts and RI N banks would mitigate the impacts of RI N replacement on the renewable fuel market, and thus the use of future ye ar RINs to replace invalid RINs generated in the past would be very unlikel y to create a difficulty in meeting the volume mandates in a given year. 4. Cap on RI

N Replacement Another mechanism we are proposing to reduce the costs associated with the Option A quality assurance program is a cap on RIN replacement. Such a cap would help to ensure that QAP Option A could be implemented at a reasonable cost , and thus help to achieve the overall goals of this proposal. We ar e proposing that the cap would not appl y to invalid RI N replacement for the nation as a whole, but rather to individual auditors that would be required to replace invalid RINs. However, since its primary benefit would be to reduce the costs of a RIN repla cement mechanism that an auditor would be required to hold, we are proposing that the cap would apply

onl y to auditors under QAP Option A, since auditors under QAP Option B would not be required to hold a RI N replacement mechanism. The cap would apply to all RINs that the auditor validates through an Option A QAP within a calendar ye ar, and would apply separately to RI Ns of each D code. The level of the cap reflects a balance between the need to ensure that the volume mandates of the RFS program are met and providing auditors with reasonable assurance that the costs of replacing invalid RI Ns will not be excessive. We believe that the incidences of invalidly generated RINs would be significantl y lower for RINs verified under an Option A Q AP than they were over the previous few y ears. Since we are proposing that the required RIN replacement mechanism should provide coverage for 2% of each D code of A - RI Ns verified b y an auditor in the current year and (up to) the previous four years ( see Section IV.B above), we likewise believe it would be appropriate to cap the number of A - RI Ns that each auditor must replace at 2% of the A - RI Ns it has verified in the same period. In other words, the RIN*** E.O. 12866 Review
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Page 54 of 149 replacement cap should be equal to the minimum replacement coverage required for Option A auditors. We believe that this cap would ensure that most if not all of invalidly generated A RI Ns would be replaced and would provide assurance that the costs of a RIN replacement mechanism would not be excessive. We are proposing that the cap apply to all A - RI

Ns that have been verif

ied by an auditor to date, up to a maximum of the most recent five year's worth of verified RINs. The table below provides an example for how the cap would be applied . (This table assumes the 2% cap continues into the second phase of the program, i.e. in 2016 and beyond, though as discussed above, we are proposing that the cap may change in 2016.) Table IV.D.5 - 1 Example of Application of RIN Replacement Cap under Option A A - RI Ns Verified b y the auditor 2% cap Maximum number of A - RI Ns that the auditor would be responsible for replacing 2013 50,000,000 1,000,000 1,000,000 2014 30,000,000 600,000 1,600,000 2015 35,000,000 700,000 2,300,000 2016 40,000,000 800,000 3,100,000 2017 60,000,000 1,200,000 4,300,000 In 2018, the auditor’s responsibility for replacing any

2013 RINs would expire and be replaced b y its responsibility for 2018 RINs. Therefore, assuming a relatively static number of A - RI Ns verified each ye ar and a static replacement cap, the auditor’s replac ement responsibility would plateau in year six of its auditing activities. Finally , we are proposing that the 2% cap on A - RIN replacement would not apply to invalid RI Ns that were erroneously verified based on negligence, error, or omission of the auditor, including an y failure by the auditor to properly

implement its QAP . This issue is discussed further in Section VI.A.3.*** E.O. 12866 Review
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Page 55 of 149 **V. Provisions for RIN Verification Under Option B**  As described in Section IV, the voluntary quality assurance program we are proposing today would include two compliance options that would be available to regulated parties. Both options would be intended to provide a more efficient mechanism fo r ensuring that RINs are validly generated, and both options would provide an affirmative defense against civil violations for certain actions involving invalid RINs. However, the two options would differ in whether invalidly generated RINs could be used for compliance, and in which party would be responsible for replacing invalidly

generated RINs. In this section we describe our proposed requirements for Option B. Under this option, obligated parties would be responsible for replacing RINs that were invalidly generated, as under the current regulations. Also, obligated parties would not be permitted to use an invalidly generated RIN for compliance unless the generator of the invalid RIN replaced it. However, since obligated parties are more likel y to conduct their own oversight to verify that the RINs they acquire are valid, we are proposing that the requirements for QAPs used to verify RINs would be less rigorous than those under Option A. Moreover, we would not require third - part y auditors who verify

RINs as having been validl y generated to replace RINs that are invalidly generated. For clarity , we refer to RINs that have been verified through Option B as B - RI Ns. In this section we first cover the proposed elements of QAPs for Option B. We then describe how regulated parties could assert an affirmative defense for transferring invalidl y generated RINs or using them for compliance. Finally , we discuss the treatment of invalidly generated RINs, from the responsibilities o f owners of such RINs to the parties that would be required to replace them. A. Requirements for Option B Quality Assurance Plans As described more full y in Section IV.A, QAPs would be used to verify that the production of renewable fuel at a given fa cility meets all EPA requirements and that corresponding RINs are validly generated. In general, QAPs under Option B would operate in the same way

that QAPs under Option A would operate. The primary difference would be the frequency of monitoring of the required QAP elements. Specificall y, we propose that there would be no requirement for ongoing monitoring under Option B, rather, all elements of an Option B QAP would be evaluated on a quarterl y basis. In addition, there are fewer required elements und er an Option B QAP compared to an Option A QAP. 1. Elements of an Option B QAP Option B QAPs would be used by EPA - approved independent third - party auditors to audit renewable fuel production. The QAP would have to include a list of elements that the auditor would check to verify that the RINs generated by a renewable fuel producer or importer are appropriate given the feedstock, production process and fuel for which RI Ns were generated. Therefore, each QAP must id entify the specific RIN - generating pathway from Table 1 to*** E.O. 12866 Review
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Page 56 of 149 §80.1426 or a petition granted pursuant to §80.1416 that it is designed to audit. The proposed required elements of an Option B QAP are discussed below. We request comment on these proposed eleme nts, including detailed descriptions of any elements not mentioned below. We also request comment on whether quarterl y m onitoring is appropriate under Option B, or whether different components could or should be subject to different schedules (e.g., monthly , biannuall y, etc), and what those schedules should be, and wh y.

a. Feedstock - related components We propose eight required elements in Option B QAPs designed to ensure that the feedstocks used in the production of re newable fuel qualify to generate RINs. First, for each batch of renewable fuel, we propose that the QAP should verify that feedstocks meet the definition of "renewable biomass," and identify which renewable biomass per §80.1401. We are also proposing specific elements depending on the type of feedstock. For instance, if the feedstock is separated yard waste, separated food waste, or separated MSW, the QAP would be required to verify that a separation plan has been submitted and accepted or approved, a s applicable, as part of the registration requirements under §80.1450, and meets the requirements of §80.1426(f)(5), and that all feedstocks being processed meet the requirements of the separation plan. If the renewable fuel producer claims that the feeds tocks qualify under the aggregate compliance approach, the QAP would be required to verify that the feedstocks are planted crops or crop residue that meet the requirements of §80.1454(g). The QAP would be required to verify that the feedstocks used to produce renewable fuel are valid for the D code being claimed under §80.1426 (or have an approved petition under §80.1416) and must be consistent with the information reported in EMTS. The QAP would be required to verify

that the feedstock used to produce renewable fuel is not a renewable fuel from which RINs were already generated. Finally , the QAP would be required to verify the accuracy

of all feedstock - related factors used in calculation of the feedstock energy used under §80.1426(f)(3)(vi) or ( f)(4), as applicable, including the average moisture content of the feedstock, in mass percent, and the energy content of the components of the feedstock that are converted to renewable fuel, in Btu/lb. The feedstock - related elements that we are proposing to require for QAPs under Option B are shown in the table below. All items would be required to be monitored on a quarterly basis.*** E.O. 12866 Review
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Page 57 of 149 Table V.A.1.a **-** 1 Option B: QAP Monitoring Frequency

– Feedstock**-** Related Component 1 - 1 Feedstocks are renewable biomass 1 - 2 Separation plan for food or yard waste submitted and accepted 1 - 3 Separation plan for municipal solid waste submitted and approved 1 - 4 Feedstocks meet separation plan 1 - 5 Crop, crop residue feedstocks meet land use restrictions 1 - 6 Feedstock valid for D code, consistent with EMTS 1 - 7 Feedstock is not renewable fuel where RINs generated 1 - 8 Accuracy

of feedstock energy

calculation

b. Production process - related components We are proposing four req uired elements in Option B QAPs designed to ensure that the renewable fuel production process is appropriate for the RINs being generated. Auditors submitting QAPs for EPA approval would be required to provide a list of specific steps they will take to au dit all four elements. First, the QAP would be required to verify that production process technology and capacity used matches information reported in EMTS and in the facility 's RFS2 registration. The QAP also would be required to verify that the product ion process is capable of producing, and is producing, renewable fuel of the t ype being claimed , i.e., is consistent with the D code being used as permitted under Table 1 to §80.1426 or a petition approved through §80.1416 . For each batch of renewable fuel, the QAP would require mass and energy balances of the production process, and verify that the results match expectations for the ty pe of facility being audited (e.g., biodiesel from so ybean oil may have different expectati ons than biodiesel from non - food grade corn oil) based on ty pical values from prior input/output values, or similar facilities if prior values are not available. Energy inputs from on - site energy creation (e.g., propane, natural gas, coal, biodiesel, heat ing oil, diesel, gasoline, etc) and/or energy bills, and mass inputs/outputs such as feedstocks, additional chemicals, water, etc., would be required as part of the mass and energy balances. Finally , the QAP would be required to verify the accuracy

of all process - related factors used in calculation of the feedstock energy (FE) under §80.1426(f)(3)(vi) or (f)(4), as applicable. The production process - related elements that we are proposing to require for QAPs under Option B are shown in the table below . All items would be required to be monitored on a quarterl y basis.*** E.O. 12866 Review
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Page 58 of 149 Table V.A.1.b **-** 1 Option B: QAP Monitoring Frequency

– Production Process - Related Component 2 - 1 Production process consistent with EMTS 2 - 2 Production process consistent with D code 2 - 3 Mass and energy

balances appropriate 2 - 4 Accuracy

of process - related factors used in feedstock energy

(FE) calculation

c. RI N generation - related components We propose seven required elements in Option B QAPs designed to ensure that the renewable fuel being produced qualifies to generate RI Ns, and that the number of RINs generated is accurate. For each batch of renewable fuel, the QAP would be required to verify that volumes of renewable fuel for which RI Ns are being generated meet, are designated for, and are sold as transportation fuel, heating oil, and/or jet fuel as defined in §80.1401. The QAP would be requ ired to verify a number of things related to the fuel ty pe. For instance, the QAP would include verification of the existence of certificates of anal ys is demonstrating that the renewable fuel being produced meets the applicable specifications and/or defin itions in §80.1401, and would be required to verify contracts with lab(s) for certificates of anal ys is, unless a facility has an on - site laboratory. If on - site, the QAP would be required to verify lab procedures and test methods. The QAP would be require d to verify that renewable fuel being produced at the facility and that can be produced, matches information in RFS2 registration in terms of chemical composition, and would be required to sample and test the final fuel and compare to specifications. The QAP would be required to verify that renewable fuel being produced matches the D code being claimed under §80.1426, or approved petition under §80.1416. The QAP would be required to verify a number of things related to the volume of renewable fuel produc ed, including a check to ensure that volume temperature correction procedures are followed correctly . The QAP would be required to verify that volume of renewable fuel produced matches expectations for the amount of feedstock being processed . The QAP also would be required to verify the accuracy of all fuel - related factors used in calculation of the feedstock energy , as applicable, including equivalence value for the batch of renewable fuel and the renewable fraction of the fuel as measured b y a carbon - 14 dating test method. The QAP would be required to verify that production volume being claimed matches storage and/or distribution capacity and that actual volume production capacity matches the value specified in the facility ’s RFS2 registration. Finally , the QAP must verify that appropriate RI N generation calculations are being followed under §80.1426(f)(3), (4), or (5) as applicable ,*** E.O. 12866 Review
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Page 59 of 149 and that RIN generation was consistent with wet gallons produced. The RIN generation - related elements that we ar e proposing to require for QAPs under Option B are shown in the table below. All items would be required to be monitored on a quarterl y basis. Table V.A.1.c **-** 1 Option B: QAP Monitoring Frequency

– RI N Generation - Related Component 3 - 1 Renewable fuel sold for qualifying uses 3 - 2 Certificates of anal ys is 3 - 3 Renewable fuel matches D code or petition 3 - 4 Renewable content R is accurate 3 - 5 Equivalence value EV is accurate, appropriate 3 - 6 Volume production capacity matches registration 3 - 7 RI N generation calculations

d. RI N separation - related components We propose three required elements in Option B QAPs to verify RIN separation. First, under the limited circumstances where a renewable fuel producer or importer separates RINs, the QAP would be required to verify that an y R IN separation being done b y the producer is done according to the requirements of §80.1429, was reported to EMTS accurately and in a timely manner, and is supported by records. The QAP would be required to ensure that fuel that is exported was not used to generate RINs, or alternativel y that RI Ns were generated but retired. Finally , the QAP must verify the accuracy

of the annual attestation. The RIN separation - related elements that we are proposing to require for QAPs under Option B are shown in the table below. All items would be re quired to be monitored on a quarterl y basis. Table V.A.1.d**-** 1

Option B: QAP Monitoring Frequency

– RI N Separation - Related Component 4 - 1 Verify

RIN separation 4 - 2 Exported fuel not used to generate RINs 4 - 3 Verify

accuracy of annual attestation

2. Approval and Use of QAPs*** E.O. 12866 Review
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Page 60 of 149 a. Approval of Quality Assurance Plan We propose that approval of QAPs under Option B would operate in essentially the same way as under Option A , i.e., a third - party auditor choosing to verify RINs under the qualit y assurance program must submit a QAP to EPA for approval. A separate QAP is required for each different feedstock/production process/fuel type combination (i.e., pathway). A QAP for a given pathway

may be used for multiple fa cilities for which that pathway applies. We are also proposing that a QAP must be submitted for approval every year. A QAP would be deemed valid on the date EPA notifies the part y that submitted the QAP that it has been approved. Onl y an EPA - approved Q AP could be used by a third - party

auditor to provide audit services to renewable fuel producers. b. Frequency

of Updates/Revisions to QAPs We are proposing that a QAP approval b y EPA only applies to the plan that was submitted to EP A, and there are specific cases in which we believe a QAP should be modified and resubmitted for approval. We are proposing that a QAP would need to be revised if the renewable fuel producer makes a change in feedstock, production process, or fuel that is not covered b y the QAP. Under even one of these conditions, the original plan submitted to EPA would no longer be applicable, and thus a new QAP would be required to be submitted and approved. We request comment on what changes would require a new QA P to be submitted for approval. Specificall y, we request comment on whether a new QAP should be required to be submitted to EPA if the audited facility changes operations, feedstock, fuel ty pe, etc.

B. RIN Replacement Mechanisms As outlined i n Section IV, auditors operating under Option A must have a replacement mechanism sufficient to cover a minimum percentage of invalid RINs they verify . We are proposing that there would be no requirement for a replacement mechanism under Option B, though this does not preclude an y regulated part y from setting up such a mechanism voluntaril y or contracting amongst themselves to ensure that the obligated party’s potential replacement responsibility

is accounted for. C. Affirmative Defenses As discussed in Section IV.C, we believe that making an affirmative defense available against otherwise applicable civil liability arising from the transfer or use of invalid RI Ns would promote greater liquidity in the RI N market, especially

the market for RI

Ns generated by

smaller producers.*** E.O. 12866 Review
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Page 61 of 149 Under the proposed quality assurance program, there would be two ty pes of verified RI Ns: those verified through an Option A QAP by a third - part y auditor who is required to replace invalidly

generated RINs, and th ose verified through an Option B QAP by a third - part y auditor who is not required to replace such RINs. The requirements for establishing an affirmative defense under Option B are described below. As discussed under Option A, we are proposing that when a person seeks to establish an affirmative defense, they would submit a written report to EPA, along with an y necessary supporting documentation, that would demonstrate how the elements were met. The written report would need to be submitted within 30 day s of the person discovering the invalidity of the RI N. We welcome comment on the elements of the affirmative defense and the effects of establishing an affirmative defense. In the event that invalidly generated B - RI

Ns are transferred or used, the person could establish an affirmative defense to the prohibited act of transferring or using the invalid B - RI Ns for compliance with an RVO if the following elements were proven b y a preponderance of evidence: 1) The RINs in question were verified in accordance with an EPA - approved Option B QAP as defined in EPA regulations; 2) The RIN owner did not know or have reason to know that the RINs were invalidly generated at the time of transfer or use for compliance, unless a remedial action had been implemented b y the RI N generator; 3) The QAP provider or RIN owner informs the Agency within the next business day of discovering that the RINs in question were invalidly generated; 4) The RIN owner did not cause the invalidity ; 5) The RIN owner did not have a financial interest in the company that generated the invalid RI N; and 6) If the RIN owner used the invalid RI Ns for compliance, the RIN owner adjusted its records, reports, and compliance calculations in which the invalid RI N was used as required b y regulations, unless a remedial action by the RIN generator had been implemented. The affirmative defense requirements pertaining to B - RI Ns are the same as those for A RI Ns, except for the element of knowledge, item (2), and for the element dealing with adj usting RVO calculations, item (6). Owners of verified B - RI Ns must not have known or had reason to know of the invalidity

of the RI N at the time they

either transferred a RIN or used a RIN for compliance purposes. This restrains the use of B - RI Ns more than A - RI

Ns. This is because under Option B, obligated parties are responsible for replacing any invalid RI Ns used for compliance purposes, notwithstanding an affirmative defense to liability for the civil violation arising from the transfer or use of invali d RINs. We do not believe it would be appropriate to allow an obligated part y t o use an invalid RIN for compliance with its RVO if it already knew of the invalidity

and therefore knew that, even if it successfull y avoided liability for a civil violation, it would still be liable for retiring valid RI Ns in the future to replace the invalid RI Ns. Similarly , we do not believe it would be appropriate to allow a RIN owner to transfer an invalid RI N to a third part y if it knew that the third part y could not ret ire the RIN for compliance with an RVO (or even that it would be possible to sell an invalid B - RI N, given that it had lost its value for compliance purposes). For these reasons, we propose that the owner of an invalid but*** E.O. 12866 Review
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Page 62 of 149 verified B - RI

N cannot assert an a ffirmative defense if it knows or has reason to know of its invalidity at the time it transfers or uses the RIN for compliance purposes. Such knowledge would subvert the purpose of the quality assurance program. In regard to item (6), we have chosen to h ave the affirmative defense for B - RI Ns contingent upon obligated parties taking the invalid B - RI

Ns out of the sy stem or demonstrating that the producer implemented a remedial action by retiring a replacement B - RI N. This would help the Agency efficiently

e nsure that the environmental goals of the RFS program are achieved b y incentivizing obligated parties to make the sy stem whole.
D. Treatment of Invalid B
-RINs The treatment of invalid RI Ns would differ depending on the t ype of verified RIN that is chosen b y the RIN owner. The treatment of invalid RI Ns verified under Option A is discussed in Section IV.D. This section describes the responsibilities of regulated parties that generate RINs or take ownership of RINs verified under Option B, but which are ultimately found to have been invalidly generated. We also describe the conditions under which invalid B - RI Ns must be replaced, b y whom, and the mechanisms for doing so. Additionally , we reiterate that we are proposing an administrative process for replacement of invalid B - RI Ns that places initial responsibility to replace invalidly

generated RI Ns on the RIN generator responsible for causing the invalidit y. In the event the RIN generator does not replace the invalidly generated B - RI

Ns according to the administrative process, the obligated part y would be required to replace the invalid RI Ns if the RINs were verified under Option B or were unverified. Thus, for invalidl y generated RINs verified by an Option B QAP and for unverified RINs, the obligated part y who owns the RINs would bear the replacement responsibility . However, in the event that regulated parties fail to implement the administrative process for replacement of any RINs, the EPA could bring an enforcement action against an y or all of the parties that were required to replace the invalid RI Ns. See §80.1474 of the proposed regulations for details of the administrative process for replacement of invalid RI Ns. 1. Responsibilities for Replacement of Invalid Verified B - RI Ns Under Option B, RINs would be verified b y a third - part y auditor using an EPA - approved QAP just as under Option A. However, under Option B the obligated parties would be responsible for replacing invalidly generated RINs if the RIN generator failed to do s o under the administrative process for replacement of invalid RI Ns. Obligated parties that purchase B - RI Ns would not be subject to a civil violation if a B RI N transferred or used for compliance purposes was later found to have been invalidly generate d, if the elements of an affirmative defense were successfull y asserted. See Section V.C. However, obligated parties would be responsible for replacing any invalidly generated B - RI

Ns used for compliance purposes. Obligated parties would be free to contract with producers, independent third - party

auditors, or other parties, such as brokers, to limit their exposure for*** E.O. 12866 Review
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Page 63 of 149 replacement of invalidly

generated B - RI

Ns. Obligated parties would not be permitted to transfer or use B - RI

Ns they know or have reason to know have been invalidly generated. Any

such transfer or use would be deemed a prohibited act, pursuant to §80.1460. Option B would provide flexibility for obligated parties, producers, and third - part y auditors to minimize the cost of verification servi ces for RINs they deem to be less risky . Obligated parties that want the protection of an affirmative defense but would rather contract on their own terms regarding replacement of invalidly generated RINs could find this option appealing, as it woul d be easier for them to find coverage for less risky R IN s and/or to demand replacement assurance as a term of their purchase contract or audit service contract. Additionally , smaller producers could be drawn to this option because the cost to participate in the quality

assurance program could be less under Option B due to the absence of a requirement for a RIN replacement mechanism and the less stringent audit requirements for an Option B QAP. However, as with Option A, Option B might not work for all p arties in all situations. Obligated parties could still view the potential risk of replacing invalidly generated B - RI

Ns, even though they

could be protected by

contracts, as too high to purchase from smaller producers. Producers deemed more risky could th erefore choose to use Option A QAP auditors. We seek and welcome comments on potential risk containment measures to alleviate obligated parties’ potential concerns of purchasing from smaller producers 2. Invalid B - RI

N Replacement As mentioned above an d in Section IV.D, the proposed administrative process for replacement of invalid RINs places initial responsibility of replacement of invalid RI Ns on the RI N generator, regardless of who actuall y owns the invalid RI Ns at the time that the invalidity is di scovered. If the RIN generator fails to replace invalidly generated B - RI

Ns in the time frame established in the administrative process specified in the proposed regulation, the obligated part y would be responsible for replacing the invalid B - RI Ns. In the event that regulated parties fail to implement the administrative process for replacement of any R INs, the EPA could bring an enforcement action against any or all of the parties that were required to replace the invalid RI Ns. The methods (full y detailed in the proposed regulations in §80.1474) for replacing invalidly generated RINs under QAP Option B are outlined below. In general, and in contrast to Option A, potentially

invalid RI

Ns verified unde r Option B could not be transferred or used for compliance purposes. In the event that EPA or the independent third - party auditor alleges that a B - RI N was invalidly generated, the RI

N would be a potentially

invalid RIN or “PIR”. The RIN generator*** E.O. 12866 Review
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Page 64 of 149 would be required to take one of three possible corrective actions within 30 day s of being notified of the PIR: • Retire a valid B - RI

N of the same D - ty

pe as the PIR, either by

purchasing it or by generating a new valid RIN and separating it from the phy sical v olume it represents; • Retire the invalidly

generated RIN (if still in the RIN generator’s possession); or • If the RIN generator believed the PIR was in fact valid, it would submit a written demonstration providing a basis for its c laim of validity to either the third - party auditor or EPA, whoever identified the PIR. If the third - part y auditor or EPA determined that the demonstration was sufficient, the RIN would not need to be replaced. However, if the thi rd - part y auditor determined it was not sufficient and if the EPA confirmed that determination, or if EPA determined it was not sufficient, it would notify

the RIN generator of that finding and again require the RIN generator to replace the PIR within 30 days . As discussed in section IV.D.2, producers would be permitted to separate RI Ns from volume they

produced for the specific purpose of retiring a RIN to replace a PIR. Similarly , if the RI N generator retired a valid RIN to replace the PIR, the invalid RIN th at it replaced could continue to be transferred or used for compliance by an y part y. However, if the RIN generator for an y reason failed to replace the PIR, the obligated part y would be notified of the failure and would be required to retire the invalid R IN within 60 days. If the PIR had already been used for compliance with its RVO, the obligated party would be required instead to correct its RVO by subtracting the number of PIRs from it. Unless and until the PIR was replaced, either by the RIN generato r or the obligated party , it would remain a PIR and could not be transferred or used for compliance purposes. 3. Process for Replacing Invalid Verified RINs The process for replacing invalid RI Ns under Option B would in general be the same as under Option A. This includes the use of particular codes in EMTS for retiring replacement RI Ns, and a requirement that replacement RINs match the invalid RINs in terms of their D codes and ty pe of verification under the qualit y assurance program (i.e. Option A or Option B). See the broader discussion under Section IV.D.3 regarding the general process for replacing invalid verified RINs. In Section IV.D.3.b we discussed the possibility under Option A that replacement RINs may not be generated in the same ye ar that the invalid RI Ns were generated, and that such circumstances could result in a portion of a given year's applicable volume requirement being fulfilled in a subsequent year. Thus there is a possibility that RIN replacement could cause greate r demand for renewable fuel in a given year than the applicable standards are intended to require for that ye ar. This same situation could occur under Option B. However, we do not believe that this circumstance would create a problem for the renewable fu els market under our proposed program for the reasons discussed in Section IV. In addition, we are proposing a*** E.O. 12866 Review
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Page 65 of 149 limited exemption to B - RI N replacement that would absolve obligated parties from replacing a small percentage of invalidly generated B - RI

Ns. Se e Section V.D.4 below. The level of this limited exemption may be above the number of invalid B - RI Ns generated, given that our proposed quality

assurance program is expected to reduce incidences of invalidly generated RI Ns . As such, the occasions in which invalid B - RI Ns must be replaced would be correspondingl y smaller, or even non - existent. 4. Temporary

L imited Exemption for Invalid RI N Replacement During the development of the proposed QAP process for today's NPRM, some regulated parties raised the possibility of a regulatory

provision that would permit a small fraction of invalid RI Ns to not be replaced by

parties downstream from the generator/prod ucer. Given the perceived concerns about RI Ns generated by

the smallest producers, such a limited exemption for invalid RIN replacement could help provide a means for those small producers to sell their RI Ns, particularl y during the first two years while auditors are learning to implement QAPs. We believe that a provision for a temporary limited exemption for invalid RI N replacement may

be appropriate, and we request comment on it. It is important to note that this would only appl y to replacement b y part ies other than the producer. The issue is not whether some percentage of RI Ns should never have to be replaced, but instead what is the appropriate approach for replacement b y parties other than the producer.

a. Determination of the Appropriate Exempti on L evel The number of invalid RINs that could be exempt from replacement should be a small fraction of the overall volume obligation. We believe that this fraction should be consistent with some measure of real - world uncertaint y in whether the renewabl e fuel volume requirements will be precisely

met. Since there are several potential sources of uncertainty , there are several different way s that an appropriate exemption level for invalid RI N replacement could be calculated. One source of uncertainty i s the roundoff in the applicable percentage standards for cellulosic biofuel, biomass - based diesel, advanced biofuel, and total renewable fuel. In the RFS1 program that was finalized on May 1, 2007, we determined that the applicable percentage standards w ould be specified to two decimal places. 12 As a result, the total number of RINs that are actuall y used to comply with the applicable standards may differ b y up to 0.005% from the precise number of RINs that would be needed to exactly match the volume mand ates. For example, the applicable 2012 standard for biomass - based diesel was set at 0.91% on January 9, 2012, corresponding to a volume requirement of 1.0 bill gal. Since this percentage standard was the result of rounding to two decimal places, the actu al calculated value could have been as high as 0.91499% and still round to 0.91%. Obligated party compliance with a standard of 0.91% instead of 0.91499% would mean that the actual volume of biodiesel consumed could be 0.9945 12 Since the required volumes of cellulosic biofuel have been significantly less than the volumes specified in the statute, we have used three decimal places for the percentage standard for cellulosic biofuel.*** E.O. 12866 Review
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Page 66 of 149 bill gal instead of 1.0 bill gal, a difference of 0.0055%. This same result can be obtained b y dividing the maximum potential rounding error of 0.005% by the applicable percentage standard of 0.91%. If we were to base the exemption for invalid RI N replacement on the roundoff error in the applicable percentage standards, the calculation would be carried out as follows:

= ( 0 . 005% ) Table V.D.4.a - 1 provides the results if this formula were applied to the applicable 2012 standards. Table V.D.4.a - 1 Exemption for Invalid RIN Replacement Based on Roundoff Error in Applicable Standards Applicable Standard Exemption for

RI N Replacement Cellulosic biofuel 0.006% 8.3% a Biomass - based diesel 0.91% 0.55% Advanced biofuel 1.21% 0.41% Total renewable fuel 9.23% 0.05% a Based on a maximum potential roundoff error of 0.0005% instead of 0.005% Another source of uncertainty in whether the required volumes of renewable fuel will actuall y be consumed is the difference between the projected volumes of gasoline and diesel that are used to calculate the applicable percentage standards, and the volumes of gasoline and diesel that are actuall y consumed. Using EIA's Short - Term Energy Outlook (STEO), we determined that projections of the sum of gasoline and diesel have typicall y exceeded the actual volumes b y an average of 1.7%. Table V.D.4.a - 2

Compariso n of Projected Versus Actual Obligated Volumes Projected (bill gal) Actual (bill gal) Difference 2011 2010 2009 2008 2007 2006 2005 a 196.9

196.6 200.1 210.0 208.4 206.5 204.0 193.1

196.2 193.7 198.4 206.8 205.9 203.7 - 1.9%

- 0.2%

- 3.2%

- 5.5%

- 0.7%

- 0.3%

- 0.2% Average - 1.7% Source: EIA's Short Term Energy Outlook, Table 4a. Values represent the sum of mo tor gasoline and distillate fuel oil consumption. All projected volumes for a given year are from the October release in the previous year. a STEO for years prior to 2005 do not include projections.*** E.O. 12866 Review
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Page 67 of 149 Based on the formula used to calculate the applicable percentage standards, a shortfall of 1.7% in actual gasoline + diesel consumption volumes will produce a 1.7% shortfall in the volume of renewa ble fuel consumed. Since Congress established the mechanism for calculating the applicable standards, including the use of projected volumes, this shortfall represents an acceptable source of uncertainty in the RFS program. As such, it may also represent an acceptable level of uncertainty in the context of establishing a limited exemption for invalid RI N replacement b y parties other than the renewable fuel producer. Based on our review of potential sources of uncertainty , it appears that differences b etween projected and actual gasoline and diesel volumes is the largest source of uncertainty. Using the historical differences shown in Table V.D.4.a - 2, we propose that the limited exemption for invalid RIN replacement be set at 2%, approximating the 1.7% value to account for the variability

shown in Table V.D.4.a - 2. However, we request comment on a different value based on one of the alternative methods described above. b. How Would the L imited Exemption be Applied? A primary

purpose of the overall proposal would be to address the market liquidity concerns discussed above, largel y focused on the ability of small producers to sell RI Ns. As described in Section IV, QAP Option A addresses this by providing a significant degree of oversight on RIN gener ation, and placing the replacement obligation on the QAP auditor, not the obligated part y. As a result, we do not believe that it would be necessary for the limited exemption to apply

under Option A, and we propose that the limited exemption would only ap ply under Option B. In addition, we propose that the limited exemption would be available only to obligated parties that are required to replace invalid RI Ns, not renewable fuel producers that are required to replace invalid RINs. Nevertheless, under Op tion A an auditor would be responsible for replacing invalidly generated RINs. If the limited exemption for RI N replacement was also available to the auditor, it might help reduce the costs associated with an y RI N replacement mechanisms that auditors carry. We request comment on whether the limited exemption should also apply under Option A. While a limited exemption for RIN replacement could also apply under the e xisting regulations, where RINs are not verified b y an EPA - approved independent auditor, we do not believe that this would be appropriate. The voluntary QAP process that we are proposing in today 's NPRM is an alternative to the existing regulatory provisi ons governing liability for the transfer or use of invalid RI Ns and their replacement. We are considering a limited exemption for RIN replacement only in this context, as a component of the voluntary QAP process and other measures aimed at achieving a regulatory structure that facilitates reasonable oversight of RI N generation, adequate assurance that invalid RI Ns will be replaced, and a market for RINs where the opportunity

to produce and sell RINs is spread broadl y across producers, including small produ cers.*** E.O. 12866 Review
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Page 68 of 149 We propose that the limited exemption would apply separately to each of the four standards under the RFS program: cellulosic biofuel, biomass - based diesel, advanced biofuel, and total renewable fuel. We do not believe it would be appropriate to apply the limited exemption only

to the total renewable fuel standard, since doing so would permit much more than 2% of invalid advanced biofuel RINs to not be replaced. For instance, in 2012 the required volume of advanced biofuel is 2.0 bill gal, while the total renewable fuel requirement is 15.2 bill gal. If the 2% limited exemption was applied only to the total renewable fuel requirement, allowing up to 258 mill invalid RI Ns to not be replaced, this would represent 13% of the advanced biofuel requirem ent if all the invalid RINs were advanced biofuel RI Ns. It would represent an even larger fraction of biomass - based diesel. We also propose that the limited exemption would apply separatel y to each obligated party that is responsible for replacing inval id RI Ns rather than to the industry as a whole. For instance, an obligated party would appl y the 2% limited exemption to each of its four Renewable Volume Obligations (RVOs) to determine the number of RINs of each of the four t ypes that would not need to be replaced should they be found to be invalidly

generated. This approach would ensure that each obligated part y can estimate at the beginning of each year how man y RI Ns would not need to be replaced should they be determined to be invalid, and moreover w ould allow him to adjust his RI N acquisition activities in real - time to address risk based on the number of invalid RINs he had already acquired. If instead we applied the limited exemption to the nationwide volumes, we do not believe it would have the intended effect of reducing perceived risk for obligated parties considering acquiring RINs from smaller renewable fuel producers. So long as the total nationwide number of invalid RINs fell below 2%, no obligated party would be required to replace invalid RI Ns. However, each individual obligated party would never know if an y RI Ns he acquires would be protected from replacement should they be determined to be invalid. Moreover, this approach would create an inherent imbalance among obligated parties holdin g invalid RI Ns since it could potentially allow one party

to avoid replacing a large number of invalid RI Ns while effectivel y forcing another party to replace all of its invalid RI

Ns. We propose that the limited exemption would represent the threshold be low which invalid RI Ns would not be required to be replaced rather than a trigger that determines when all invalid RI Ns must be replaced. Under our proposed threshold approach, an obligated part y would know at the beginning of each ye ar that 2% of th e RINs needed to meet each of his RVOs would not need to be replaced if those RINs were B - RI Ns and were determined to be invalidly generated. The limited exemptions would be calculated as follows: LE CB,i = 0.02 × RVO CB,i LE BBD,i = 0.02 × RVO BBD,i LE AB,i = 0.02 × RVO AB,i LE RF ,i = 0.02 × RVO RF,i where: LE CB,i = Limited exemption for cellulosic biofuel for year i LE BBD,i = Limited exemption for biomass - based diesel for year i*** E.O. 12866 Review
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Page 69 of 149 LE AB,i = Limited exemption for advanced biofuel for ye ar i LE RF ,i = Limited exemption for renewable for ye ar i RVO CB,i = The Renewable Volume Obligation for cellulosic biofuel for the obligated party

for calendar ye ar i, in gallons, pursuant to §80.1407. RVO BBD,i = The Renewable Volume Obligation for biomass - based diesel f or the obligated party for calendar year i after 2010, in gallons, pursuant to §80.1407. RVO AB,i = The Renewable Volume Obligation for advanced biofuel for the obligated party

for calendar ye ar i, in gallons, pursuant to §80.1407. RVO RF,i = The Renewable Volume Obligation for renewable fuel for the obligated party for calendar year i, in gallons, pursuant to §80.1407. Under this threshold approach, the number of B - RINs than an obligated party would be required to replace would be those in excess of the ap plicable limited exemption LE as calculated above. Under an alternative trigger approach, an obligated party would not be required to replace an y invalid RI Ns so long as the number of invalid RINs it owns falls below 2% of his RVOs. However, if at an y time within a calendar year the number of invalid RINs it owns exceeded 2% of his RVOs, it would be required to replace all of them. We do not believe that this alternative would have the intended effect of reducing perceived risk for obligated partie s considering acquiring RINs from smaller renewable fuel producers. Finally , we propose that the limited exemption would be applicable onl y during the first two years of the quality

assurance program, for RINs verified under Option B in calendar ye ars 2013 and 2014. During this timeframe, we expect regulated parties to be working to optimize implementation of the quality assurance program, and it may not be possible for all of the smallest renewable fuel producers to participate under QAP Option A. Th e limited exemption can help to ensure that the RIN market is more liquid as the program starts up, as obligated parties would be less concerned about potential invalidity for B - RI Ns. But as the program matures, we believe that there will be much less need for a limited exemption since small renewable fuel producers will have greater opportunities to have their RINs verified under Option A. Moreover, obligated parties will gain experience in the first two y ears of the program with Option B, and we would expect their confidence in the validity of B - RINs to grow over this timeframe as well. We request comment on this approach and whether it should apply for a period longer than two years.*** E.O. 12866 Review
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Page 70 of 149 **VI. Proposed Requirements for Auditors**  Today , we are proposing a number of requirements for the independent third - part y auditors that would use approved quality assurance plans (QAPs) to audit renewable fuel production to verify

that RI Ns were validly

generated by

the producer. Qualified, independent third - part y auditors would be integral to the successful implementation of the combination of provisions EPA is proposing. Under both options, third - part y auditors would need to meet minimum qualifications (e.g. independence and professional compe tency requirements). All third - part y auditors would be required to register with EPA, similar to how other parties (e.g. gasoline refiners, renewable fuel producers, etc.) register for other EPA fuels programs. We are also proposing to require that third - part y auditors under both options have professional liability errors and omissions insurance (E&O Insurance). However, under Option A, third - part y auditors would also be required to have an approved RIN replacement mechanism since, as discus sed in Section IV.B, they

would be responsible to replace RI Ns that become invalid for any reason after being verified b y the auditor. During registration, third - part y auditors would submit QAPs to EPA for approval, demonstrate that they meet minimum qual ifications, and provide the Agency with other information as discussed below. After EPA has approved a QAP and registered the third - part y auditor, we propose that the auditor could flag RINs in EMTS as verified. This would provide parties throughout the renewable fuel distribution chain the confidence that a RIN has been validl y generated and that an affirmative defense may be established. Finall y, in order to ensure that QAPs are appropriatel y implemented, we are also proposing recordkeeping, reporting, and attest engagement requirements on third - part y auditors consistent with similar requirements on other parties in RFS. A. Who Can Be An Auditor? One key element of the QAP process is the minimum qualifications that the auditors conducting facilit y visits must have. Today we are proposing minimum qualifications for an auditor in order to implement a QAP and verify RINs. First, as is required of independent third parties that conduct engineering reviews for renewable fuel producers under RFS, audi tors would be required to be independent of the renewable fuel producers that they are auditing. Second, auditors would be required to have the professional expertise to effectively implement QAPs. Third, under Option A, third - part y auditors would be required to also have an approved R IN replacement mechanism, as discussed in Section IV above to assure replacement of invalid RINs generated from facilities that an auditor has audited, as well as E&O insurance. EPA believes that these key

qualifications wo uld provide assurances that auditors could successfull y implement QAPs and would help avoid the generation of invalid RI Ns at the fuel producer level. We seek comment on whether an y additional minimum qualifications would be necessary for auditors to succ essfull y i mplement QAPs or aid in the generation of invalid RI Ns at facilities. 1. Independence The first, and perhaps the most important, requirement for auditors is that they remain independent of renewable fuel producers. Independence of the auditor from upstream parties is*** E.O. 12866 Review
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Page 71 of 149 necessary to ensure that RI

Ns are not inappropriately validated due to a conflict of interest between the third - part y auditor and the renewable fuel producer. For example, if auditors were employed b y the renewable fuel producers to validate RINs produced from a facilit y owned b y the producer, the auditor would have an incentive to ensure that RINs produced from that facility appeared valid, while the RI Ns may in fact be invalid. In the RFS2 final rule, we defined an indep endent third - party

as a part y that was not operated b y the renewable fuel producer (or an y subsidiary

or employee of the producer) and free from any interest in the renewable fuel producer’s business. Similar provisions have also appeared in RFS1 and othe r fuels programs when a third - part y is required to independentl y test fuel samples, audit reporting and recordkeeping requirements, and/or conduct in - use compliance survey s. Thus, we are proposing the same independent third - part y definition for third - part y auditors that we used in RFS2 for an independent third - party

to conduct engineering reviews. Additionally , we are proposing that independent third - party

auditors submit an affidavit attesting to their independence as part of registration (discussed belo w). Although the proposed requirement for independence is limited to renewable fuel producers, it could be extended to include independence from other parties as well. However, we believe this is unnecessary . This proposed rulemaking is not intended to discourage an y current efforts that an obligated part y or other intermediary may take to ensure compliance with RFS requirements, and requiring that third - part y auditors be independent of all parties may hamper existing efforts by industry to mitigate inv alid RI

N generation. However, some parties may have a conflict of interest with third - part y auditors that might promote the improper validation of RI

Ns. For example, a third - part y auditor could also be acting on behalf of a RIN owner, which may

be an inc entive to validate RINs fraudulentl y to sell to other parties. Therefore, we specifically seek comment over whether we should expand the proposed definition of independence to include other parties. We also recognize that a conflict of interest may exis t if the independent third - part y implementing a QAP for a renewable fuel production facility was the same party

that conducted the facility ’s engineering review required under §80.1450(b)(2), since the auditor would essentially

be verifying its own assessm ent of a facility . Similar reasoning could apply to the independent third - parties that do attest engagements. However, we recognize that, especiall y in the beginning, there may

be a limited number of qualified independent - third party auditors capable of implementing QAPs for a facility if we do not allow independent third - parties that conducted engineering reviews or attest engagements to also implement QAPs for a given facility . Therefore, we specificall y seek comment on whether we should exclude a third - part y that has conducted an engineering review or attest engagement for a facility from implementing a QAP for that same facility. We also seek comment on whether any other situations present a conflict of interest for independent third - part y auditors that may disqualify

a third - part y from being able to implement a QAP for a facility . 2. Professionally

Qualified to Implement a QAP Another key

element to ensure the effective implementation of QAPs at renewable fuel production facilities would be that auditors have the necessary professional expertise and*** E.O. 12866 Review
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Page 72 of 149 credentials. In RFS2, we require that each renewable fuel production facility undergo an engineering review b y a licensed professional engineer as part of registration. In this NPRM, we are proposi ng a similar requirement for auditors since the verification of production capabilities of a quality

assurance program should be similar to the ty pe of review conducted in the engineering review process for RFS registration. Independent third - part y audito rs would demonstrate that they

possess the required professional expertise during registration. We are not proposing that companies that register as a third - party auditor be solel y constituted of professional engineers to implement an EPA - approved QAP and conduct facility audits; however, a licensed professional engineer would need to supervise and or work in a team with other employees of the third - part y auditing company. However, since the complexity of QAP implementation may vary substantially

based o n size and scope of the QAP and whether RINs are verified under Option A or Option B, independent third - parties that conduct audits may need to demonstrate additional professional qualifications to EPA before they can be registered to implement QAPs. For example, periodic (e.g. quarterl y) audits may include careful review of several months’ worth of invoices and other bookkeeping records for a facilit y, and this type of audit may be more suitable to a certified public accountant (CPA) than a professional e ngineer. Additionall y, we require that all responsible parties in RFS undergo annual attest engagements conducted by a licensed certified public accountant (CPA) or certified internal auditor (CIA) to verify similar information. Although we are not propos ing that independent third - parties that implement QAPs demonstrate that CPAs conduct audits, we are seeking comments over whether third - parties must have an y additional qualifications (e.g. minimum years of experience, professional licensing in states wher e audited facilities are located, etc.) before we register them as auditors under the proposed quality assurance program. Another potential qualification, suggested b y a party that may conduct third - part y facility audits, could be that an independent thi rd - part y auditor has sufficient knowledge of the RFS program in order to conduct audits and potentially validate RINs. Although we believe that third - part y auditors should have thorough knowledge of RFS requirements to implement QAPs, it would be difficul t to construct a standard to measure a third - part y auditors “competency.” It was suggested b y a part y that may conduct third - party facility audits that we require elements of various I SO validation standards such as, for example, I SO standards used for va lidation of international greenhouse gas programs. We believe that these standards could serve as a useful template in the development of similar voluntary consensus standard board (e.g. ISO and ASTM International) specifications for third - part y auditors. However, we also believe that standards such as these are best developed through the existing collaborative processes that draw upon the expertise of affected stakeholders. It is also important to note that several independent third parties have develop ed sufficient expertise with RFS to provide useful validation services to obligated parties, and we believe that there exist adequate incentives for parties to ensure that third - part y auditors understand the RFS program sufficientl y to prepare and implement QAPs. Therefore, we are not proposing to create such a requirement for auditors, but we do seek comment on whether the Agency should be responsible for the development of a similarly detailed professional competency standard to validate RINs.*** E.O. 12866 Review
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Page 73 of 149 3. Erro rs and Omissions Insurance An additional element to ensure the effective implementation of QAPs at renewable fuel production facilities would be to require independent third - part y auditors to maintain professional liability

insurance, commonly

known as Errors and Omissions or E&O insurance. We are proposing this as a registration requirement for both QAP Option A and Option B. The amount of insurance should be , at a minimum, equal to 2% of the RINs the auditor verifies in a ye ar to cover the replacement of any RINs verified by

an auditor that turn out to be invalid as a result of auditor error, omission, or negligence. Additionally , we are proposing that independent third - part y auditors would be required to use insurance providers that posse ss a financial strength rating in the top four categories from either 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). We feel that requiring E&O insurance would help to achieve the level of professionalism necessary for the quality

assurance program to work as intended. Possession of E&O insurance would lend business and financial credibility

to a potential QAP auditor in the eyes of their customers, as well as provide a level of comfort for the Agency

that the statutory

volume mandate would be met in the event of error, omission, or negligence on the part of a QAP auditor. Since E&O ins urance policies are intended to provide coverage for any failings on the part of the auditor, we do not believe that the 2% cap on RIN replacement proposed for Option A should apply

to RIN replacement that is covered by an E&O insurance policy . Thus we ar e proposing that the 2% cap on RI N replacement would only appl y to invalidly generated RINs that the auditor is responsible for replacing, but which are not the result of errors, omissions, or negligence on the part of the auditor as defined in the E&O policy . We seek comment on (1) whether the requirement of E&O insurance would fulfill the goals discussed above, (2) whether the requirement would prevent some third - part y auditors from being able to participate in the quality assurance program, and (3) what, if any , minimum amount of coverage should be required and what that minimum amount should be based on. B. Registration Requirements In order to implement and enforce the new quality assurance program that we are proposing today , we believe that third - party auditors must become regulated parties under the RFS program. We believe that it would be necessary to impose registration, recordkeeping, and reporting requirements on third - part y auditors to ensure that appropriate QAPs are executed accordin g to the requirements specified in the proposed regulations. This would allow EPA and affected parties to monitor and have confidence that third - part y auditors are implementing QAPs appropriatel y. One necessary

requirement for third - part y auditors wou ld be that they have to register with EPA as a regulated party through the Agency’s Central Data Exchange (CDX). We already require that obligated parties, renewable fuel producers, and RIN owners register with EPA, and that those parties provide us with production information, basic company information, and in the case of renewable fuel producers, third - party engineering reviews. Requiring third -*** E.O. 12866 Review
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Page 74 of 149 party auditors to register would allow EPA to determine that the basic minimum requirements discussed in Sect ion VI.A. are met. Registering auditors would also facilitate the process of allowing third - part y auditors to indentify RI Ns as having been verified in EMTS so other parties may recognize RINs as having been verified under an EPA - approved QAP. During registration, we propose that third - part y auditors would need to provide basic contact information as well as their basic corporate structure. This information is useful both as contact information and to help the Agency determine whether a third - party auditor is a legitimate legal entity . Third - part y auditors would be required to indicate which facilities they intend to audit. EPA recognizes that a third - part y auditor may contract with additional renewable fuel producers and facilities to implement QAPs after initial registration, and therefore, we are also requiring that a third - part y auditor be required to update their registration each time they

wish to verify

RINs for additional renewable fuel producers or new facilities. This inform ation would help the Agency ensure that QAPs submitted to the EPA as part of the registration process are consistent with the ty pe of renewable fuel facilities being audited. Since we are proposing a requirement that third - party auditors implementing Q APs under both Options A and B have E&O insurance (see Section VI.A.3), third - party auditors would be required to provide copies of an y applicable E&O insurance policies during the registration process. If a third - part y auditor is implementing a QAP under Option A, they would need to also provide EPA with copies of pertinent documents and other evidence that demonstrate they have an adequate replacement mechanism in place. This information is necessary to ensure that third party auditors have the ability to cover their RIN replacement responsibilities. Third - part y auditors would also be expected to provide EPA with copies of professional certifications (see Section VI.A.2) and a signed affidavit that states that the third - part y auditor is independent of and free from an y conflicts of interest with an y renewable fuel producer that for which they intend on verifying RINs. Third - part y auditors would also be required to provide QAPs for Agency approval during registration, and EPA would be required to approve a QAP before a third - party auditor could be registered and use a QAP for a facility audit. EPA believes that it would be inappropriate to register a third - part y auditor without an appropriate QAP. QAP details are discussed in more detail in Sections IV .A and V.A for Options A and B, respectivel y. Recognizing that foreign third - part y auditors may have unique challenges compared with domestic third - part y auditors, EPA is proposing additional registration requirements for foreign third - part y auditors. In the final RFS2 rulemaking, we outlined a number of requirements that applied to foreign RIN owners (see 40 CFR 80.1467). These additional requirements are designed to ensure enforcement of RFS regulations at the foreign RIN owner’s place of business and are similar to requirements for foreign parties under other fuels regulations. For example, under RFS, foreign RIN owners must submit reports in English and provide translated documents in English upon demand from EPA inspectors or auditors, must submi t themselves to administrative and judicial enforcement powers and provisions of the United States without limitation based on sovereign immunity , and post a bond covering a portion of the gallon - RI Ns that a foreign RIN owner owns. EPA is proposing the same requirements be extended to foreign*** E.O. 12866 Review
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Page 75 of 149 third - part y auditors and seeks comment over whether fewer or additional requirements would be necessary . The effectiveness of this proposed rule is contingent on the integrity of the third - part y auditors and their ability

to competently

implement approved QAPs. The registration process is designed to help ensure that QAPs are implemented by competent, qualified and independent third - part y auditors. A third - part y auditor may only verify RINs under a voluntary quali ty assurance program if the auditor is registered with EPA. In order to ensure that auditors fulfill their regulatory

obligations, we propose that each auditor would renew its registration on an annual basis. The renewed registration submissions would in clude updates to information required for initial registration and an affidavit by the auditor that it is in full compliance with applicable QAP regulations. The affidavit would include a specific certified statement that the third - part y auditor 1) has on ly verified RINs that it reviewed under an EPA - approved QAP, 2) has informed EPA and RIN generators about all potentially invalid RINs that it discovered, and 3) has fulfilled its RI

N replacement obligation if applicable. Third - part y auditors that fail to accuratel y and completely renew their registrations will no longer be registered and therefore can no longer implement QAPs and verify RINs. We also propose that we may revoke a third - part y auditor’s registration at any time if it determines that the thi rd - part y auditor has failed to meet its regulatory

requirements. Furthermore, we are proposing that we can den y a registration application from an y third - part y auditor that employs an y person that was involved in the verification of RINs for a third - part y auditor whose registration was revoked. We seek comment on whether this approach is appropriate. We also seek comment on whether we should require that third - part y auditors’ registration information, including QAPs, be made publicly available. We beli eve that there is a positive correlation between the effectiveness of a quality assurance program and the amount of transparency

in the third - party

auditor’s registration and QAP implementation processes. By making registration information publicly availa ble, it would allow other parties to evaluate whether they

have confidence in a QAP conducted by a third - part y auditor. This would also allow affected stakeholders to notify EPA of concerns or deficiencies in a third - part y auditor’s registration or QAP. Some third - part y auditors may argue that such information is confidential business information. To address this concern, EPA could allow third - part y auditors to submit both confidential and public versions of registration documents to ensure that sensitiv e information is protected. C. Other Responsibilities of Auditors 1. Notifying the Agency When There are Problems We believe that an important element of today ’s proposed quality assurance program is the timely

notification and correction of problems that are identified during the facility audit process, and a requirement to communicate potential problems that are unc overed through this process. Historically , in other EPA fuels programs, such as the RFG, UL SD, and E15 Survey Programs, we require that the independent party that implements the program report potential violations of standards within 24 hours of identifyi ng the potentiall y non - compliant fuel sample.*** E.O. 12866 Review
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Page 76 of 149 This has allowed the Agency to work with responsible parties to correct potential issues in a timely manner, thereb y reducing the potential environmental impact of the non - compliant fuel. We believe that the utility of this third - party

notification would enhance the effectiveness of today ’s proposed qualit y assurance program. Therefore, we are proposing requirements that third - part y auditors would be required to notify EPA and the renewable fuel producer of p otential problems, including but not necessaril y limited to fraud, errors, and/or omissions, within 24 hours after a problem has been identified. We seek comment on whether EPA should allow third - part y auditors more or less time to report potential issues that arise during audits of renewable fuel production facilities. 2. Indentifying Verified RINs in EMTS The primary

goal of today ’s proposed qualit y assurance program is to allow downstream parties to feel confident that RI Ns are being appropriatel y generated at renewable fuel production facilities. Third - party

auditors have an integral role in providing this assurance by verifying that facilities are in fact producing the typ e and quantity of renewable fuels from the appropriate feedstocks using s pecified pathway s, and that the associated RINs have been validly generated. The next step would be for third - part y auditors to identify RINs as having been verified so that downstream parties would know which RINs had been subjected to review by an audit or and thus can be the basis for an affirmative defense. To attain this goal, we are proposing requirements that third - party auditors would be responsible for tagging RINs as having been "verified" in a way

that would be clearly

visible in EMTS after they have been generated. We propose that verifying a RIN in EMTS be prospective, meaning that a RI N could only be verified after an auditor has audited a facility in accordance with an approved QAP and met other conditions discussed below. Apart from the v erification of RINs during the interim period between release of the NPRM and the final rule, we do not believe that there are any benefits from allowing verification of RINs retroactivel y i n EMTS that warrant the complication, confusion, and risks associated with it. We also believe that before a QAP can be implemented b y a third - part y auditor, a relationship must be established in CDX between the third - part y auditor and the renewable fuel producer or importer. This process would occur during the initial registration of a third - party auditor and after an y updates to a third - party auditor’s registration. This procedure would be necessary to ensure that both the third - part y auditor and the renewable fuel producer or importer have agreed to establish a qua lity assurance program under a proposed affirmative defense option. Also as discussed in Section IV.B, EPA may not recognize this relationship unless the third - part y auditor satisfies applicable replacement mechanism requirements. Hence, we pro pose that renewable fuel producers would have to acknowledge through an update of their registration that a third - part y auditor will implement a QAP and verify RINs at the renewable fuel producer’s facility . Third - part y auditors should also have the abil ity to stop verification of newly generated RI Ns should a problem arise during the QAP implementation process. Since third - part y auditors would be in the best position to identify potentially

invalid RINs before EPA and other parties,*** E.O. 12866 Review
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Page 77 of 149 allowing third - part y auditors this flexibility is necessary

to ensure that problems with invalid RI Ns are quickl y identified and corrected. Additionally, since under Option A and potentially as a contractual matter Option B, a third - part y auditor may have some liability to replace RINs, it should have the ability

t o limit their liability

should it notice through the implementation of a QAP that RI

Ns may be invalid. However, if a third - part y auditor removes the “flag” for a facility that is generating RI

Ns, this will not affect a previousl y verified RIN’s ability to be used for compliance if it has been generated prior to the third - part y auditor choosing to no longer validate a facility ’s RINs. Since one of the goals of today ’s proposed quality assurance program would be to mitigate the transaction and use of invalid RI Ns for compliance purposes, we are proposing that third - party auditors under both options be required to remove the validation flag for RINs generated at a facility until problems are rectified and confi dence is restored to both the third - part y and EPA that newly generated RINs are valid. As mentioned above, one key requirement for the effective implementation of a QAP by a third - part y part y auditor would be that the third - party auditor must be free fro m conflicts of interest with renewable fuel producers that are being audited. However, some existing third party auditors currentl y act as agents for renewable fuel producers b y not only verifying that RI Ns are appropriately

generated at renewable fuel pr oducer’s facilities, but by also handling a renewable fuel producer’s reporting activities in EMTS (e.g. they submit reports to generate RI Ns in EMTS for renewable fuel volumes produced at a facility owned/operated by

the renewable fuel producer). This may present a conflict of interest since those third - part y auditors have a contractual relationship to act on behalf of the renewable fuel producer. On the other hand, since third - part y auditors are going to be responsible for verifying all RI Ns generated at a facility in EMTS, they

may be able to serve as an agent for a renewable fuel producer in this capacity without an apparent conflict of interest. We seek comment on whether we should allow third - part y auditors to act as agents in the generation of RINs for renewable fuel producers. We also seek comment on any element of today ’s proposal to require third - party auditors to validate RI Ns in EMTS. Finally , as pointed out elsewhere, Option A RINs may have more value in the marketplace than Option B RINs. We seek comment on mechanisms that the market will employ to differentiate such RINs across the supply chain and how EPA may facilitate such transfers in the context of EMTS. 3. Recordkeeping, Reporting, and Attest Engagements a. Recordkeeping Requirements Under both options, we propose third - party auditors would be required to implement EPA - approved QAPs and maintain records of all verification and validation activities related to the implementation of a quality assurance program. These reco rds would serve to demonstrate that a QAP was appropriately implemented if invalid RI Ns are reported at a later date. b. Reporting Requirements*** E.O. 12866 Review
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Page 78 of 149 Under the existing RFS program, obligated parties, exporters of renewable fuel, producers and importers of renewable fuels, and any party who owns RINs must report appropriate information to EPA on a regular (e.g. quarterl y and/or annual) basis. Similarly , we are proposing that the third - part y auditors would be required to submit quarterly reports, in line wi th existing RFS quarterly reporting deadlines, identifying how man y R INs the auditor has verified the previous quarter. We are also proposing that independent third - part y auditors would have to include the facilities audited and the dates of those audits. This information would allow EPA to compare a third - party auditor's reported activity to information gleaned from EMTS to ensure that third - part y auditors are appropriatel y i mplementing QAPs. If a third - part y auditor were to implement a QAP under Opti on A, then he would be required to also report the size of the replacement mechanism he has obtained to cover their potential RI

N replacement liability . We believe that these reports would help the Agency ensure that third - part y auditors are maintaining an appropriate replacement mechanism to replace invalid RI Ns relative to the number of RINs verified by the third - part y auditor. For example, renewable production facilities sometimes increase production levels, which may increase the size of the RI

N repla cement mechanism a third - party auditor would need to have. We recognize that some may see this as providing the same information twice since we are proposing to require that independent third - party auditors identify

facilities they

intend to audit and provide proof of an appropriate replacement mechanism during re gistration. However, we believe that quarterl y reports indicating where and when audits occurred and the size of the appropriate RIN replacement mechanism relative to the number of RINs validated b y third - part y auditors would provide a useful compliance t ool to better ensure that third - party auditors are effectivel y implementing QAPs since failure to fulfill reporting requirements may constitute a violation to the Clean Air Act and may subject the responsible part y to the penalties discussed below. We seek comment on whether we should require quarterl y reports from third - part y auditors, or more/less frequent reporting, and whether we should require third - part y auditors to report additional information on a regular basis.

c. Attest Engagements We seek comment on whether to require that third - part y auditors have an annual attest engagement similar to those required of other parties currentl y required under §80.1464. Attest engagements are used in many of the Agency ’s fuels programs and are similar to financial audits. Attest engagements consist of an independent, professional review of compliance records and reports. During discussions with stakeholders, some suggested that we establish an “audit the auditor” program. We believe that attest engag ements may be an appropriate means of verifying the accuracy

of the information reported to us by the third - part y auditors. Similar to current RFS requirements, the attest engagement could consist of an outside certified CPA or certified independent audit or following agreed upon procedures to determine whether underl yi ng records, reported items, and transactions agree, and issuing a report as to their findings and that attest engagements occur annually . These requirements would be similar to those we requ ire of other parties in RFS.*** E.O. 12866 Review
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Page 79 of 149 d. Prohibited Activities for Third - part y Auditors We are proposing new prohibition and liability provisions applicable to third - part y auditors. Since we are creating a new regulated party that will be integral to the succe ssful implementation of voluntary quality assurance programs, we believe it is appropriate to hold these parties liable if they fail to comply with the proposed requirements. The prohibition and liability provisions would be similar to those of other fuel s programs. We propose to identify certain prohibited acts, such as failing to properly implement an EPA - approved QAP; failing to timely notify RIN generators and EPA of potentially invalid RINs; failing to replace invalid RI Ns, if applicable; and verifyi ng RINs that are invalid. In addition, a third party auditor who is subject to an affirmative requirement under this proposal will be liable for a failure to comply with the requirement. For example, third - part y auditors will be liable for separate violations for failing to comply with the registration, reporting and recordkeeping requirements. L ike other fuels programs, we propose that if the third part y auditor causes another person to violate a prohibition or fail to comply with a requirement, the thi rd party

auditor may

be found liable for the violation. The penalt y and injunction provisions in section 211(d) of the Clean Air Act appl y to violations of the renewable fuels regulations implemented pursuant to section 211(o). Accordingl y, under the proposed rule, an y person who violates an y proposed prohibit ion or requirement may

be subject to civil penalties of $37,500 for every day of each such violation and for the amount of economic benefit or savings resulting from the violation. We request comment on the need for an y additional prohibition and li ability provisions specific for third - part y auditors.*** E.O. 12866 Review
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Page 80 of 149 **VII. Proposed Requirements for Audits**  Under the proposed quality assurance program , an auditor would use an approved QAP as the basis for the verification of renewable fuel produced and R INs generated at a facility . In order to verify

production, the auditor must review documents, monitor facility activity , contact entities that do business with the facility , and conduct onsite visits. All of these components constitute an audit of the facility . The elements of a QAP are discussed in some detail in sections IV and V. The following provides some additional detail on the proposed elements of an audit . As with other provisions of the RFS program, the proposed use of a QAP and the associated audit would also be available to foreign producers of renewable fuel. We request comment on specific aspects of the proposed program with respect to foreign producers, and specificall y request comment on possible additional program elements that may onl y be appl icable to foreign producers. A. Document Review and Monitoring The auditor should ensure that the producer has and is fulfilling the EPA record - keeping requirements at §80.1454(c)(1)(i)(A) - (B) and (ii). We expect the auditor to evaluate reports submitt ed to EPA, and propose that these be reports year - to - date, as applicable, and from the previous year, for comparison. These include Activity Reports, RIN transaction reports, RIN generation reports, and Renewable Fuel producer Co - product reports. The thi rd - part y engineering review and annual attestation report should also be reviewed. Reports submitted to EPA should be cross - checked with other records. For instance, the auditor should have access to certificates of anal ysis. The auditor must check r ecent feedstock receipts (if the producer uses a variet y of feedstocks, then the auditor should be provided with receipts for each feedstock). Integrated facilities may not have internal sales receipts for feedstock usage, so an alternative paper trail wi ll likely be required. Similar to the feedstock document review and crosscheck, renewable fuel and co - product delivery documentation should be part of an y audit. For all documentation reviews, we would expect the auditor to anal yz e reports to determin e whether a producer is reporting volumes consistently , and to require (from the producer) explanation for missing or inaccurate reports. The auditor should investigate discrepancies between volumes reported and processed. Other reports the auditor shoul d consider as part of its review include the EIA M22 Survey , any state reports, federal and state tax returns, and association dues reports. The auditor should also determine if there is any import or foreign biofuel producer documentation. Of prime con cern to the proposed quality assurance program is the verification of RI Ns, and there are man y aspects to this part of the audit. The auditor should evaluate monthly RIN generation reports submitted through the EMTS, verify that RINs generated match wet g allons sold, determine if the facility purchases or separates RINs, and review product transfer documents for all RIN activity . We propose that this review encompass random samples of documentation; however, based on the documentation provided by the producer, the auditor*** E.O. 12866 Review
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Page 81 of 149 could decide to review all documentation. Furthermore, and in order to ensure that renewable fuel producers will maintain their records in a manner that will allow third party auditors and the EPA to efficientl y evaluate whether RINs wer e properly generated, we are also proposing to change § 80.1426 to state that RI Ns may onl y be generated for fuel that is demonstrated pursuant to the reporting requirements of § 80.1451, the recordkeeping requirements of § 80.1454, or in other records mai ntained by the producer, to be produced in accordance with the applicable pathway listed in Table 1 to § 80.1426(f) or a petition approved by EPA pursuant to § 80.1416. Finally , for those components of the audit that we propose to require ongoing, or batch level monitoring, the QAP would be required to provide details of the means for collection and evaluation of the data collected on an ongoing basis. We request comment on whether and how the document review and monitoring discussed here should be m ore detailed (and/or include different details) for facilities subject to an Option A QAP than for those subject to an Option B QAP. B. Bu yer/Seller Contacts At the end of an audit, the auditor should know all customers of and suppliers to the facility , and all parties that distribute feedstock to and fuel from the facility. We expect the auditor to contact the customers and suppliers in order to verify sales and purchases, in accordance with the requirements under the applicable QAP (i.e., Option A or Option B). We envision this proposed requirement as a “spot check”; the auditor should be able to provide a reason for such calls regarding the entity called, questions asked, etc. We request comment on whether and how the audit requirements for Bu ye r and Seller contacts should differ between facilities subject to an Option A QAP than for those subject to an Option B QAP.
C. Onsite Visits The goal of the onsite visit is to verify that plant has the technology to produce, store, and blend biofuels at registered levels, is operating in accordance with the facility ’s registration, and that the RI

Ns generated since the last visit are valid. The auditor will likely use plant maps and photos as part of this analy sis, and should compare and contrast the pl ant’s infrastructure with the third - part y engineering review reports on file with EPA. The auditor should note the size and number of storage and blending tanks, and observe the measurement of volume in the tanks. The auditor should determine whether the process rate is consistent with annual and quarterly production of the facility , and whether the facility has quality

process controls in place (e.g., are ASTM International specifications being followed where appropriate). We believe that mass and ener gy balances on the facility

are critical components of any audit. Because integrated facilities will likely have energy

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Page 82 of 149 biofuel production, the auditor should have alternate means of assessing and correlating energy usage to production. The proposed requirements for onsite visits are the same for Option A QAP and Option B QAPs. We are proposing that an auditor conduct at least four (4) onsite visits per y ear, or every three (3) months. We request comment on this proposed onsite visit frequency . In addition, we request comment on whether , over time, less frequent audits would be reasonable under an Option B QAP . We are proposing that new production facilities should be audited before verification of RINs . We expect that each visit could take from one to several day s, depending on the size and complexity

of the facility, the availability of records, changes since the last audit, etc. The proposed required visits are th e minimum. There may be value in visiting more often. It is possible that there may

be some value to requiring unannounced visits as well, and we request comment on the value and impact that such unannounced site visits would have on the effective ness of the program and its associated costs. D. RIN Verificatio n We are proposing that RINs would be verified only for a specified period following an audit. Although an audit of any entity usually certifies what was done, the audits we are proposing are prospective in that the audits are verifying that past practices and procedures have been followed, and are currentl y in place for future RINs that will be generated. RI Ns generated after the completion of the audit could then be verified until the next audit is completed, but for no longer than 100 day s after completion of the audit. We believe this prospective approach is appropriate for the proposed quality assurance program because the audit would be verifying the starting point from which future RINs would be generated. In that sense, the upcoming period of RI N generation is starting with a verified set of conditions. Inaddition, it could place a serious impediment in the market for RINs if their verification followed RI N generation by an y significant period of time. To allow for some flexibility around the proposed standard audit schedule (i.e., quarterl y, or roughly

every 90 day s), we are proposing that RI Ns generated for up to 100 day s after the last audit could be verified, unless the real time monitoring data or other information obtained by the QAP auditor prior to the onsite audit indicates that RI Ns are invalid. If another audit was not conducted within 100 day s, RINs could no longer be verified for that facility until a new audit was conducted. We request comment on this coverage period. If a veri fied RIN was invalidly generated, it would indicate that the QAP that had been used to verify

that RIN was deficient in some aspect. We request comment on whether, in the event of discovery

of invalid RI

Ns, a more frequent onsite visit schedule should be required. We are not inclined to require such an outcome at this point because one of the purposes of the quality assurance programs is to proactively identify invalidl y - generated RINs. In addition, it is hi ghl y anticipated that there will also be situations where no invalid RI Ns have been generated for an extended period of time for a given facility . Under this scenario, less frequent onsite visits*** E.O. 12866 Review
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Page 83 of 149 may be warranted. We request comment on whether lower audi t frequency levels should be allowed after a significant period of time with no invalidly generated RINS, and suggestions as to appropriate reduced onsite visit frequencies.*** E.O. 12866 Review
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Page 84 of 149 **VIII. Additional Changes Related to the Definition and Treatment of Invalid**  **RINs** A. Export and Exporter Provisions In this action, we propose to address the following issues regarding the export of renewable fuels: exporter RVO requirements, identification of renewable fuel content for all fuel transfers, and retirement of RINs at the time of export. The Agency is proposing to address these issues primarily

because the export of renewable fuel, particularl y ethanol and biodiesel, has become more prevalent in the transportation fuel market. These proposed changes address how RI Ns should be handled when renewable fuel is exported. In addition, it will provide E PA with the data needed to track renewable fuel exports. The intent is to ensure that exported renewable fuel is not included in meeting the mandated domestic annual renewable fuel volume requirement. 1. Exporter RVO Any volume of renewable fuel which is exported, either neat or blended, requires calculation of an export RVO. In this rule, we are making minor changes to the regulations to address concerns that some regulated parties may be misinterpreting the regulations and onl y establishing an RVO for exported renewable fuel that is “ in i ts neat form or blended with gasoline or diesel .” The opening clause of 40 CFR 80.1430(a) clearl y provides that an RVO must be satisfied by

any party that “owns any

amount of renewable fuel” that is exported , and 40 CFR 80. 1430 (f) also states that “each exporter of renewable fuel” must satisfy an RVO. The portion of 80.1430(a) that provides that the regulation applies “whether [the exported renewable fuel] is in its neat form or blended with gasoline or diesel” was intended to make the point, through specific examples, that the regulation applies to both neat renewable fuels and renewable fuel blends that are exported. Thus, the reference to “gasoline or diesel” blends is illustrative, and does not exclude other e xported renewable fuel blends, such as biodiesel blended into fuel oils, from the scope of the regulation . We are proposing changes to 40 CFR 80.1430(a) to remove the references to examples of fuel blended with “gasoline and diesel,” and state in this section of the regulations that the requireme nt to establish an RVO applies whether the exported renewable fuel is in its neat form or blended . We seek comment on what additional amendments, if any , should be made to the export provisions at 80.1430, the recordkeeping requirements at 80.1454, and the reporting requirements at 80.1451, to ensure that exporter RVOs adequatel y make the RIN market whole for an y exported biofuel for which RINs may have been generated. Inparticular EPA seeks comment on whether EPA should limit exporter RVO require ments in situations where exporters can document that either no RINs were ever generated for the exported fuel, or that any such RINs were previously retired. 2. Require Identification of Renewable Fuel Content*** E.O. 12866 Review
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Page 85 of 149 As background, the Federal Trade Commission, as directed b y EISA established labeling requirements for biofuel blends 13 . EI SA specifically addressed three categories of biodiesel fuel blends, requiring labels with precise wording for two. First, fuel blends containing no more than five percent biodiesel and no more than five percent biomass - based diesel, and that meet ASTM D975 (“Standard Specificati on for Diesel Fuel Oils”), need not be labeled. Second, fuel blends containing more than five but no more than twenty percent biomass - based diesel or biodiesel “shall be labeled ‘contains biomass - based diesel or biodiesel in quantities between five perce nt and 20 percent.’” EI SA Sec. 205(b ) ( 2) (emphasis added). Finally , blends containing more than 20 percent biodiesel or biomass - based diesel “shall be labeled ‘contains more than 20 percent biomass - based diesel or biodiesel.’” EISA Sec. 205(b) (3) (emphasis added). As fuel blends containing no more than five percent biomass - based diesel are not required to be labeled, it is possible that some exporters may believe that the fuel they are exporting has a lower biofuel content than it actuall y does or they may be claiming that it’s straight diesel fuel. To be tter document and communicate the biodiesel content of any biofuel blend throughout the fuel supply chain (not just biofuel blends containing more than five percent biomass - based diesel), we propose to extend the existing product transfer document requirements at 40 CFR 80.1453 to fuel blends such that an y person that sells or otherwise transfers title to any biomass - based diesel blend or biodiesel blend to any other person for resale of the product shall prepare a product transfer document evidencing such transfer. Such product transfer documents may be in the form of an invoice, bill of lading, bill of sale or other written instrument meeting the requirements of th is subsection. All such transfer documents shall include the name of the transferor, the name of the transferee, the date of transfer, the volume in gallons of the product transferred, and either the volume in gallons or percentage of biomass - based diesel or biodiesel that is contained in the blended product. Each person making such transfer shall maintain each transfer document required by this subsection for a period of four ye ars from the transfer date. 3. RI N Retirement Requirements The current RFS regulations require exporters to demonstrate compliance with their exporter RVOs on an annual basis, by February 28 of the year following the compliance year in question. 40 CFR 80.1451(a). EPA is seeking comment on the period of time that should be allowed for retirement of RI Ns as a result of renewable fuel export, and whether the current deficit carry - over provision in 80.145 1(a)(1)(xii) should be eliminated for exporters. Given the volatility in the renewable fuel export market, a shorter time period may ease concerns for related uncertaint y in the RI N market. This problem was anticipated, as stated in the final RFS2 Rule: “However, we are aware of some exporters who sell RI Ns that they

separate as a source of revenue, with the intention to purchase replacement RI Ns on the open RIN market later in the ye ar to compl y with their RVOs .” This provision was included to allow flexibility for exporters. However, EPA is considering whether a change is required at this time to prevent instability and abuse. One approach under consideration would require exporters to clearl y demonstrate on a quarterl y basis that they have acquired RI Ns sufficient to cover volumes exported in the quarte r .
13 Automotive Fuel Ratings, Certification and Posting Final Rule, 73 FR 40154, July 11, 2008.*** E.O. 12866 Review
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Page 86 of 149 This shorter time frame would significantl y reduce the window of opportunity for large exports of renewable fuel without exporters having obtained the RI Ns that must ultimately be retired. Alternativel y, EPA could require the immediate reti rement of RINs, at the time of export or within a limited window such as 30 day s after export. This would prevent rolling deficits carried by exporters, and guard against unanticipated market changes, or even “shell companies” closing up shop in order to avoid the cost of meeting their export RVO. Eliminating the deficit carry forward provision as it applies to exporters would also further the same objectives. EPA solicits comment on these options. B. “Downstream” Invalidation and Product Transf er Documents T he definition of “renewable fuel” requires that the fuel be used to replace or reduce the quantity of fossil fuel present in transportation fuel, heating oil, or jet fuel . Several stakeholders have requested that the EPA amend the regulations to address concerns that properl y generated RI Ns may become invalid as a result of the fuel not being used in or as transportation fuel, heating oil, or jet fuel “downstream” of the renewable fuel producer or importer, that is after it has left the custody of the producer or importer. In response to these concerns, EPA is proposing amendments to clarify

and expand on existing requirements regarding the designation of qualifying renewable fuel, and is also proposing new limitations on RIN generation for those ty pes of renewable fuel that can be expected to be used in or as non - qualifying fuel. 1. Designation of Intended Renewable Fuel Use The existing regulations at § 80.1426(a) and (c) require renewable fuel producers and impo rters to generate RINs for fuel that: (1) qualifies for a D code pursuant to § 80.1426(f) or has been approved b y a petition pursuant to § 80.1416, and (2) is demonstrated to be produced from renewable biomass pursuant to the recordkeeping and reporting requirements in the regulations. However, § 80.1426(c) also specifies that RI Ns may not be generated for fuel that is not des ignated or intended for use as transportation fuel, heating oil or jet fuel , i.e., for a “non qualifying fuel use”. We are proposing amendments to § 80.1426(a) and (c), and conforming amendments to the product transfer document (PTD) regulations in § 80.1453, to require all renewable fuel producers and importers to designate all RIN - generating renewable fuel as transportation fuel, heating oil or jet fuel on the PTDs that a renewable fuel producer or import er prepares to accompan y a fuel shipment. These changes would standardize the existing “designation” requirement for RIN generators b y specifying the location and content of the designations. The requirement to designate intended fuel uses in PTDs would operate as a constant reminder to renewable fuel producers and importers that RINs may onl y be generated for fuel intended for use as transportation fuel, heating oil or jet fuel, i.e., qualifying fuel uses, and would facilitate EPA enforcem ent of the designation requirement. The regulations would require that designations be made in good faith . Parties designating fuel for a qualifying fuel use who in fact knew that the fuel would likely be used in a fuel other than transportation or jet fuel or heating oil (a “non - qualifying fuel use”) would be in violation of this proposed regu lation , and subject to civil penalties .*** E.O. 12866 Review
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Page 87 of 149 We are also proposing to include special conditions, in addition to the PTD requirements , related to the distribution and sale of an y renewable fuel that is not ty pically sold for use in or as transportation fuel, jet fuel, or heating oil. We propose that these conditions would apply to all RI N - generating renewable fuels other than ethanol, biodiesel, and “drop i n” renewable diesel. Biogas and renewable electricit y would also be excluded from these conditions since sections 80.1426(f)(10) and (11) include specific conditions designed to ensure that these fuels are used in transportation fuel. These special condi tions must be satisfied in order for RI Ns to be generated for those fuels. We are prop osing to include these new requirements together with other conditions for RIN generation in §§ 80.1426(a) and (c), and conforming amendments to the registration, reporting and recordkeeping sections. EPA believ es that denatured ethanol, biodiesel that meets the ASTM 6751 specifications and renewable diesel that meets the ASTM D 975 Grade No. 1 - D or No. 2 - D specifications and that is composed of homogenous h ydrocarbons are highl y likel y to be used as transportat ion fuel, heating oil or jet fuel. Accordingl y , we are proposing that validly generated RI

Ns for these fuels will remain valid regardless of the downstream use of the fuel. We seek comment on whether these fuels are highl y likely to be used only as transportation fuel, heating oil or jet fuel, and on whether other biofuel t yp es should be similarly recognized. We also seek comment on whether biodiesel and renewable fuel diesel producers who generate RI Ns should be required to sample and test their fuels to ensure that the fuel is appropriate for use as transportation fuel, and what specific sampling and testing requirements would be appropriate. For all other fuels, we think that it is appropriate to limit the opportunity for RIN generation to circumstances where the producer or importer has taken actions to ensure that the fuel is used for transportation fuel, heating oil or jet fuel. Where such actions are taken, we are propos ing that RI Ns generated for qualifying renewable fuel will remain valid regardless of the final downstream use. While we are proposing that the special conditions related to renewable fuel that is not ty picall y sold for use in or as transportation fuel, jet fuel, or heating oil would not apply to "drop in" renewable diesel, we also recognize that there is at least one circumstance in which renewable diesel may

benefit from being subject to the same special conditions. Renewable diesel is a product that w as originally introduced by

companies attempting to create a “drop - in” transportation fuel made from renewable sources that met the same specifications as petroleum based transportation diesel. Some renewable fuel producers are currently generating RINs f or fuel that they

claim meets the exiting definition of renewable diesel, but which is not chemically equivalent to a petroleum diesel fuel under the renewable diesel definition. This product is primarily composed of trigl ycerides that have not been chemi cally converted to a hydrocarbon, and can be produced through simple filtration of vegetable oils with little processing equipment or effort. Further, this product cannot be used as a “drop - in” transportation fuel but instead can only be used at blend lev els with diesel fuel that are approved under 40 CFR Part 79, and moreover it is commonly used for non - qualifying fuel uses. To address these issues, we are proposing to clarify

in the definition of "non - ester renewable diesel" that qualifying products mus t be approved under 40 CFR Part 79 at specific blend levels with diesel fuel. However, it may also be necessary

to differentiate between the two ty pes of renewable diesel ("drop in" and trigl ycerides) so industry may easily determine which product and whi ch RI Ns they are purchasing, and to allow EPA enforcement to differentiate between the two products upon*** E.O. 12866 Review
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Page 88 of 149 inspection of a renewable fuel facility . We request comment on limiting the definition of non ester renewable diesel, or renewable diesel, to fuel that meets the ASTM D 975 Grade No. 1 - D or No. 2 - D, and that are homogenous hydrocarbons. We could then refer to all other fuels that meet the current definition of renewable diesel as viscous non - ester renewable diesel, and they would be subject to the spec ial conditions related to the distribution and sale of renewable fuel that is not ty

pically sold for use in or as transportation fuel, heating oil or jet fuel. This approach would not remove an yone from the program and could give greater certainty to the industry . The new regulatory

requirements are designed to ensure that these fuels are in fact used in or as transportation fuel, heating oil or jet fuel, and therefore that RINs are appropriatel y generated for these fuels. These requirements are necessary because these other renewable fuels are commonl y used in non - qualifying fuels. For instance , butanol is a common chemical feedstock but can also be used in transportation fuel. The EPA believes that the only current allowable use for these other fuels (insofar as RINs are associated with them) would be as a blending component or additive for gas oline or diesel fuels. We are proposing two options for generating valid RINs for these fuels. First, the renewable fuel producer or importer of these fuels may generate RINs if they

maintain contemporaneous records demonstrating that they used the fuel a s a blendstock or additive and that the final product is a transportation fuel, heating oil or jet fuel that met all applicable standards. Second, if the renewable fuel producer or importer does not use the fuel itself as a blendstock or additive for gaso line or diesel fuel, they may still generate RINs if they

enter into a contract that requires the part y who purchases the fuel to use it as a blendstock or additive for gasoline or diesel fuel, and that meets certain requirements designed to assure that the buyer does, in fact, use the fuel as a blendstock or additive in a transportation fuel, heating oil or jet fuel that meets all applicable standards. In order to verify

that these fuels are produced for use as a transportation fuel, heating or jet fue l, EPA is proposing conforming registration, recordkeeping and reporting requirements. We are proposing that parties who generate RINs for the production of these renewable fuels will have to include information in their registration stating if they will be using the fuel as a blendstock or additive at their facility or if they will be sell ing the fuel to another party who will be using the fuel as a blendstock or additive. If the renewable fuel producer or importer will be using the fuel as a blendstock or additive, they will be required to describe their blending activities in their regis tration application. If the renewable fuel producer or importer will be selling the fuel to another party who will be using the fuel as a blendstock or the fuel was blended into a qualifying fuel downstream of the renewable fuel producer or importer, thes e parties will need to provide additional information to verify that the fuel was, in fact, blended for a qualifying fuel use . We solicit comment on how th is new registration requirements should apply to c urrentl y - registered entities. Options include requiring an immediate (within 30 - 60 day s) registration update, or allowing the new submissions to occur at the facilities’ next 3 - ye ar registration update. We propose that renewable fuel producers or importe rs who contract with a downstream party

to blend their product to make a qualifying renewable fuel be required to include affidavits in their reports from the downstream parties to verify that the fuel was used in or as a qualifying fuel. This concept is modeled after the existing regulations relating to RIN generation for biogas and renewable electricity, which require the use of downstream affidavits to verify proper use of the fuel. We also propose that any part y who produces or blends these fuels will need to keep records relating to the blending activities to allow the QAP providers and*** E.O. 12866 Review
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Page 89 of 149 the EPA to verify

that RINs were properl y generated. We seek comment on whether these requirements are appropriate for renewable fuels that are not highl y likely to b e used for qualifying RFS fuels or whether there are other mechanisms that could provide adequate assurance that these fuels are used for transportation fuel, heating oil or jet fuel. 2. Required Actions Regarding Fuel for which RINs have been Generated that is Used for a Non - Qualifying Fuel Use. Section 80.1429(f) of the existing regulations provides that any person who uses or designates a renewable fuel for an application other than transportation fuel, heating oil or jet fuel (i.e., a non - qualifying fuel use) must retire any RI Ns received with that renewable fuel. Section 80.1429(f) was intended to require the person using or designating RI N - generating fuel in or for a non - qualifying fuel use to retire the RINs received with the fuel so that they cannot be used for RFS compliance. This approac h, however, places the burden of using fuel for a qualifying fuel use on the end user when the fuel has already been designated upstream as either a qualifying or non - qualifying fuel. In other words, once the fuel reaches the end user, it has already been designated as transportation fuel, heating oil or jet fuel, or has been redesignated for a non - qualifying fuel use. The end user has no part in the designation or redesignation of the fuel. In order to ensure that RINs generated with renewable fuels are retired if the fuel is redesignated for a non - qualifying fuel use, we propose to tighten the requirements for RIN retirement for an y party that redesignates a renewable RIN - generating fuel for a non - qualifying fuel use, and to relieve end users of such an obligation. To accomplish this, we propose to remove and reserve paragraph 80.1429(f) of the regulations and to add a new section 80.1433 to require parties that designate fuel for which RINs were generated for a non - qualifying fuel use, i.e. for someth ing other than transportation fuel, heating oil, or jet fuel, to retire an appropriate number and t ype of RINs. We believe that an y person designating fuel for which RINs have been generated for a non - qualifying use should make the RIN s ys tem whole by ret iring an equivalent number and t ype of RINs. This approach places the burden of ensuring an appropriate number of RINs are retired on a party i n the fuel distribution business, rather than an end user. Such parties tend to have greater expertise in compl yi ng with regulatory requirements, and the potential number of parties potentiall y subject to these requirements is far reduced b y placing the burden for RIN retirement upstream of end users. We further propose new subsection 80.1460(g) which would prohibit a person from designating a qualifying renewable fuel for which RINs were generated for a non - qualifying fuel use, unless the requirements of section 80.1433 have been met. The proposed amendments would require re tirement of applicable RINs within a 10 day period. 3 . RI N Generation for Fuel Made with Renewable Fuel Feedstock The existing regulations do not provide a pathway for any party to generate RI Ns for a fuel produced using another renewable fuel as a feedstock. Parties seeking to do so, however, may submit a petition requesting approval pursuant to §80.1416. 40 C.F.R. § 80.1426(c)(6)(ii)*** E.O. 12866 Review
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Page 90 of 149 sets forth certain prohibitions that would apply if, in the future, EPA approved a pathway that allowed a party

t o generate RI

Ns for a fuel that was produced using another renewable fuel as a feedstock. These prohibitions are designed to prevent parties from generating more than one RI N for the same volume of renewable fuel. For example, the production of ETBE uses ethanol as a feedstock, and RINs may have been previously

generated if the ethanol used to make the ETBE was denatured. The ETBE producer in this example should not be allowed to generate RI Ns representing the full energy equivalence of the finished ETB E, if RINs were previousl y generated for the ethanol feedstock. In order to address this ty pe of scenario, we are proposing to modify § 80.1426(c)(6) to prohibit a part y from generating new RINs for a fuel that is made from a feedstock that is a renewabl e fuel, where the feedstock that is a renewable fuel was produced b y another party, unless EPA approves a petition under §80.1416 to allow for the generation of RINs for a fuel that was produced using another renewable fuel as a feedstock and the petition and approval include an enforceable mechanism to prevent double counting of RINs. We also propose to amend § 80.1426(f)(4) to address the potential for “double discounting” for non - renewable feedstocks when renewable fuel is produced by co - processing renewable biomass and non - renewable feedstocks to produce a fuel that is partially renewable. Specificall y, w e have discovered that the existing regulations may inadvertently cause the number of RINs gener ated to be discounted twice for the presence of non - renewable feedstocks. The first would be in the calculation of the equivalence value under §80.1415(c)(1), and the second would be in the calculation of the number of RINs generated under § 80. 1426(f)(4 )(i). To correct this problem, we are proposing to add a new paragraph (f)(4)(iii) so that for purposes of §80.1426(f)(4) only , the equivalence value does not include a discount for non - renewable feedstocks. 4. Use of Renewable Fuel in Ocean - going Vessels Another issue the Agency is aware of concerns the use of renewable fuel - containing MVNRLM in ocean - going vessels. The definition of “transportation fuel” specificall y excludes “fuel for use in ocean - going vessels.” 40 CFR 80.1401. In the preamble to the March 26, 2010 RFS rule, the Agency

stated that “‘fuels for use in ocean - going vessels’ means residual or distillate fuels other than Motor Vehicle Nonroad Locomotive and Marine (MVNRLM) intended to be used to power large ocean - going vessels.” 75 FR 14670, 14721 (March 26, 2010). The rule also defines “fuel for use in ocean going vessels” as including ECA marine fuel. 40 CFR §80.1401. Some parties have questioned whether MVNRLM that is blended into ECA marine fuel is “fuel for ocean going vessels” such that RINs generated for the renewable fuel component of MVNRLM become invalid upon that use. It is the Agency’s interpretation that the definition of “fuel for use in an ocean - going vessel” in §80.1401 does not include MVNRLM that is blended into ECA marine fuel. This is based on the definitions of fuel for use in an ocean going vess el and of ECA marine fuel, as explained in the March 2010 rulemaking. 14 Therefore, RI Ns that have been or are properly generated for any

renewable fuel component of MVNRLM that is blended to produce ECA fuel remain valid. EPA notes that the vast majority of MVNRLM is used for qualifying RFS purposes, and that only a trivial quantity

of such fuels is 14 This does not change the fact that the blend of fuel that results from blending MVNRLM or NRLM with ECA marine fuel would still be ECA marine fuel and subject to the sulfur limits that a pply to such fuel.*** E.O. 12866 Review
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Page 91 of 149 used to produce ECA fuel for ocean - going vessels. Given the complexity and regulatory

burden that would be involved in tracking trivial quantities of MVNRLM that may be used in ECA fuel, the RFS regulations appropriately treat all properly

generated RINS for renewable fuel blended into MVNRLM as valid, regardless of the possible downstream blending of MVNRLM with ECA fuel. In addition, under today ’s proposal , additional regulatory requirements designed to ensure that renewable fuel is put to a qualifying use would be imposed on certain t ypes of renewable fuel, as discussed above. These new requirements would further limit the quantity of renewable fuel that could ultimately be blended with ECA fuel used in ocean going vessels. We seek comment on whether our interpretation of “fuel for use in an ocean - going vessel” creates an y potential problems. 5 . Treatment of Improperl y Separated RINs Section 80.1431(a)(1)(viii) currentl y provides that a RIN that was improperly separated pursuant to 80.1429 is invalid. Under section 80.1460(c)(1), obligated parties may not use invalid RI Ns for compliance purposes. EPA proposes to remove 80.1431(a)(1)(viii) o f the regulations, and to add section 80.1460(h), identifyingthe improper separation of RI Ns as a prohibited act. The net effect of these changes would be to allow obligated parties to use RINs that were improperl y separated for compliance purpose s, since the RINs would no longer be considered invalid. However, improper RIN separation would continue to be a prohibited act under the regulations. EPA seeks comment on whether the RFS regulations should instead maintain section 80.1431(a)(1 )(viii), but also require a more comprehensive and robust mechanism to allow parties that acquire separated RINs and EPA to evaluate whether the RINs were properl y separated and used in or for a qualifying fuel . The goal would be to make it easier for EPA and obligated parties to determine whether RINs are valid. These mechanisms could require a designate and track approach, with corresponding recordkeeping and reporting requirements, similar to the program set forth in the diesel sulfur regulatio ns at 40 C.F.R. Part 80, Subpart I. In general, under Subpart I, each time custody of fuel is transferred from one facility to another , the transferor must designate the fuel and record its volume. The party who receives custody of the fuel must record the same information, to ensure that each party relies on the same designation and volume for its own compliance purposes. Maintaining proper PTDs, with proper designations, is also part of the diesel sulfur program’s recordkeeping requirements. EPA seeks comment on whether the RFS regulations should establish similar designation and track requirements addressed at tracking and recording RI N separation events and end use of renewable fuels. Additionally , EPA requests comment on whether we should require RIN separators to include with their quarterly reports additional records related to qualifying separation events that are already required as part of the recordkeeping regulations. See § 80.1454 for a description of the records that must be reta ined b y parties. EPA believes requiring this information to be reported quarterl y will allow EPA to review the information in a more timely way than in the existing structure, where EPA must request it from RI N separators on an ad hoc basis.*** E.O. 12866 Review
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Page 92 of 149 Additionally , all parties who separate RINs must sign and certify that the information reported to EPA under the RFS program is true and accurate. In accurate, misleading, and/or false reports submitted to EPA may be used in a criminal prosecution against the submi tter and other culpable persons. Enhanced reporting requirements for RIN separators would facilitate EPA’s ability to investigate and prosecute persons who engage in RIN separation violations. EPA seeks comment on the ty pe and scope of reporting that wo uld most likely

assist EPA in identifying RIN separation violators. C. Treatment of Confidential Business Information 1. Overvi ew In the March 26, 2010 RFS2 final rule, the EPA addressed a number of confidentiality concerns raised b y comments to the rule proposed on May 26, 2009 (74 FR 24904). At the time, the Agency

explained that renewable fuel producers would need to submit information to support their registration and report information to the Agency for implementation of the RFS program. The EPA also confirmed that we would treat an y information submitted with a claim that it was confidential business information (“CBI”) as CBI in accordance with existing Agency regulations at 40 CFR part 2, subpart B. Information submitted to the Agency in compliance with the RFS2 final rule has been handled in that fashion. The EPA typically makes confidentiality

determinations on a case - by - case basis. However, subsequent to the implementation of the RFS program, we have received hundreds of requests for information; the need for case - by - case determinations has prevented timely release of non - CBI information. Due to the high level of i nterest in RFS compliance information, the EPA is considering approaches to increasing public access to information collected by the RFS program. At the same time, we want to ensure that we continue to properl y process CBI claims and protect compan y’s con fidential information. The EPA is now proposing to make certain RFS registration and reporting information publicly available because we believe that greater transparency

will work hand - in - hand with our QAP process to improve the integrit y of information submitted for RFS compliance and deters fraudulent behavior. As discussed in more detail below, today ’s action provides affected businesses subject to Part 80, other stakeholders, and the general public an opportunity to comment on the proposal to publish RFS registration and reporting information that would be aggregated into monthly , quarterly , and annual reports. This action is part of a broader effort to increase transparency and provide information to the public that would promote greater liquidity i n the RI N market in a way

that assures reasonable oversight of RIN generation. Notably also, many

interested parties

– including renewable fuel producers

– have asked the EPA to publish this information. Since implementation of the RFS program, the Agenc y has received numerous requests for this information. Not only are members of the public and interested stakeholders interested in reviewing this information, many parties to the RFS program are requesting that the Agency release this information in orde r to make the RFS program more transparent. The EPA is soliciting comments on whether, for an y information in*** E.O. 12866 Review
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Page 93 of 149 the format proposed for release, there are unique circumstances where disclosing this information would cause substantial harm to a company ’s competitive position. 2. Proposal to Disclose Aggregated RFS Registration Information a. Approach The EPA is proposing to summarize and publish aggregated registration and QAP information required under 40 CFR §§ 80.1450 (b ), (c ), and (g ) from independent third - part y auditors and renewable fuel producers and importers that are registered with the RFS program . We propose to publish this information by facility and on a monthly

basis. Each monthly

report of registration information will disclose certain registration information for each producer, importer , and QAP. The monthly reports would be cumulative reports of all registrations accepted b y the EPA; they would include existing registrations, new reg istrations, and registration updates. For each facility , we would publish the company name, facility

name, facility t ype/fuel product, total permitted capacity, production volume, production process type, feedstocks, D - Code, and any co - products. This inf

ormation would be not reveal proprietary production processes. For example, the production process would be identified by the production process description used in Table 1 to 40 CFR§ 1426, or for a production process approved through the Agency ’s pathway petition process, it would be identified by the name associated with that process in OTAQReg. An example of what information we intend to publish appears below: Table VIII.C.2.a - 1 Example Registration Report **Company Name**  **Facility**

**Name Facility** 

**Type Total** 

**Perm itted**  **Capacity Production** 

**Volume Feedstock**  **Process Type D**  **Code Co**  ****

**products** Example Ethanol Company Example

Ethanol Facility Ethanol 125000 20 Corn Starch Wet mill

process using biomass or biogas for process energy 6 Distillers grains, corn oil Example Biodiesel Company Example

Biodiesel Facility Biodiesel 125000 500 Canola Oil Trans esterification using natural gas or biomass for process energy 4 None

At this time, the EPA is not proposing to publish registration information at the company or batch - level. We also are not proposing, at this time, to publish registration submissions or information from supplemental registration documents (e.g., heat plan s, separated food waste plans). After publishing these monthly registration reports, we intend to summarize and update the information so that we can publish quarterl y and annual registration reports of the same t ype of information. The EPA is interested in stakeholder views on this approach.*** E.O. 12866 Review
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Page 94 of 149 b. Rationale for Proposal The EPA believes that the information elements as described above are not entitled to confidential treatment for a number of reasons. First, this ty pe of registration information is already available through other public outlets. For example, for publicly - traded companies, this information is filed with the U.S. Security Exchange Commission in their annual 10 - K and quarterl y 10 - Q reports in the compan y’s overview. In those reports, companies identify their fuel products, production facilities, co - products, production processes, production capacities, actual production volumes, and feedstocks. Additionally , man y producers currentl y post this ty pe of information on their public websit es and issue press releases broadcasting this information. Regardless of whether a compan y is publicly traded or posts this information on its website, all renewable fuel producers report this information to the U.S. Department of Energy ’s National Renewa

ble Energy

L aboratory , which publishes the information on their website. Since this information is already publicl y available, it would not be eligible for confidential treatment under the Agency ’s existing CBI regulations under 40 CFR part 2, subpart B, and therefore, it could be released. Second, the EPA believes that release of this information would not cause substantial harm to the competitive position of a Part 80 business submitter. The information elements in required under Part 80 consist of information on renewable fuel producer’s facility fuel product, total permitted capacity , production volume, production process t ype, feedstocks, D - Code, and co - products. These information elements do not reveal an y proprietary information, or any

other i nformation that would likely provide insight for competitors to gain an advantage. For example, consider the Example Ethanol Facility :

 Example Ethanol Facility is a renewable fuel producer that produces ethanol from corn starch using a wet mill process and generates D - Code 6 RINs for its ethanol. The production of ethanol from cornstarch using a wet mill process is ty pical of an ethanol production facility , widely - known, and demonstrates that the facility meets RFS regulatory

requirements for RIN generat ion. The feedstock, process, and fuel product must comply with an approved RFS pathway , which are specific to these three information elements and identified in Table 1 to section 1426 or a publicly - available EPA petition approval. These information elem ents are necessary for a producer to determine if it meets RFS requirements. These information elements describe commonl y used renewable fuel production information and do not describe an y particular specifications about an individual facility ’s unique pr ocessing. Because these information elements are widely known and do not reveal details about the precise production processes used, they are not the t ype of information that a competitor could use to develop marketing strategies to undermine the producer ’s competitive position. Thus, disclosing information elements containing feedstock, process ty pe, D - Code, and fuel ty

pe would not reveal

– and could not be used to determine

– an individual facility ’s production efficiency , production costs, or pricing s tructure.

 That the Example Ethanol Facility is permitted to produce 125,000 gallons of ethanol but only

produces 20 gallons of ethanol does not disclose proprietary*** E.O. 12866 Review
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Page 95 of 149 information. Releasing total permitted capacity and production volumes do not disclose actual production rates; nor could it be used to determine facility - level production rates or the quantity of feedstock used to produce that volume. This information would not provide a competitor with business insights and/or any competitive advantage ov er the Example Ethanol Facility. Accordingly, the EPA believes that disclosing permitted capacity and production volumes would not cause substantial harm to a business submitter’s competitive position.

 That the Example Ethanol Facility produced distiller s grains and corn oil as co products from wet mill process does not disclose proprietary information. Wet mill processing is widel y known to result in the co - production of distillers grains and corn oil, and these co - products must be disclosed to the EPA w ith the producer’s registration for compliance with 40 CFR § 80.1426. This is not the ty pe of information that could be used by a competitor to gain business insights or advantage over the Example Ethanol Producer. Co - product information is widely known among the renewable fuel industry and would not contain details regarding co - product characteristics, production volume, quality , quantit y, production efficiency , costs, or pricing structure. Therefore, the EPA believes that disclosing a facilit y’s co - pro duct would not cause substantial harm to business submitter’s competitive position. 3. Proposal to Disclose Aggregated RFS Report Information a. Approach In addition to publishing monthly , quarterly , and annual registration reports, we are also propo sing to publish monthly , quarterl y and/or annual report of information that is required to be reported to the EPA under 40 CFR § 80.1452(b) for renewable fuel producers and importers. We are proposing to publish this information in the same manner as regi stration information

– on a corporate and/or facility - by - facilit y basis, as described in the chart below. The EPA intends to publish:

 The name of the renewable fuel producer or importer and associated registration information (i.e., name, address, feedst ock, process, fuel ty pe, D - Code). The EPA also intends to depict this information in a variety of formats, including geographically (i.e., maps) or tables to identify where renewable fuel production facilities are located (40 CFR §§ 80.1450(b) and 80.1452 (b)(1)).

 The EPA compan y and facility registration numbers and the associated registration information of the renewable fuel producers, foreign ethanol producers and importers that generated RINs in EMTS during the applicable time period(s) (40 CFR §§ 80.1450(b), 80.1452(b)(2), 80.1452(b)(3), 80.1452(b)(4), and 80.1452(b)(5)). This information will be provided for each facility where renewable fuel was produced.*** E.O. 12866 Review
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Page 96 of 149  The D - code of RIN s generated by the facility

during the time period (40 CFR § 80.1452(b)(6)). For each D - code generated at a facility , the EPA will publish the number of RINs generated (40 CFR § 80.1452(b)(12)), volume of fuel produced (40 CFR § 80.1452(b)(10)), fuel t yp e (40 CFR § 80.1452(b)(9)), production process (40 CFR § 80.1452(b)(7)), feedstocks (40 CFR § 80.1452(b)(13)), and co - products (40 CFR § 80.1452(b)(15)).

 The EPA also intends to release the volume of denaturant (for ethanol), applicable equivalence value , and whether all the feedstocks used during the time period were claimed to have met the definition of renewable biomass (40 CFR §§ 80.1452(b)(11), and 80.1452(b)(14)). An example of the “reporting” information the EPA proposes to publish appears in th e chart below: Table VIII.C.3.a - 1 Example “Reporting” Report RI N Generati ng Compan y Compan

y Name Renewa

ble Fuel Original Produce r Facility

Name and Addres s Locatio

n in Latitude / Longitu de Renewab

le Fuel Productio n Year/ Month D Code/

Fuel Type Feedstock

s Used Production

Process Co produc ts Volu

me of Denat urant Amount of Fuel Produced (in gallons?) RI

Ns Generated

Example Ethanol Compan y Example

Ethanol Compan y Exampl

e Ethanol Compan y 111

Ethanol Street, City, State, ZIP Lat/L on

g 2010/July 5

– Renewabl e Fuel/10

– Non cellulosic ethanol (EV 1.0) 888

–

Feedstock not listed (used at a grandfathe red facility 100%) 888

–

Grandfather ed (Other) Distille

rs grains, corn oil 549.5

2 27,476 27,476

Example Biodiesel Compan y Example

Biodiese l Compan y Exampl

e Biodies el Compan y 222

Biodies el Way, City, State, ZIP Lat/L on

g 2010/July 4

– Biomass Based Diesel/ 20

– Biodiesel (EV 1.5) 160

–

Biogenic Waste Oils/Fats/ Gr eases 100% 180

–

Transesterifi cation, Dedicated Renewable Biomass Facility 21,934 32,902

As with registration information, the EPA proposes to publish “reporting” information in only an aggregated form (at the facility level, not the batch level), and onl y on a monthly , quarterl y, and/or annual basis. The EPA will continue to consider the con fidential nature of the batch - level information and may take further action to provide additional programmatic transparency . The EPA is interested in stakeholders’ views on this approach, including whether facility - level information is the appropriate lev el of aggregation or whether it might be more appropriate to publish batch - level information. b. Rationale for Proposal*** E.O. 12866 Review
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Page 97 of 149 The EPA finds that the disclosure of certain aggregated RFS report information is not entitled to confidential treatment for a number of reasons. First, the information elements in this category consist of publicly

available and widel y known information on renewable fuel producer’s compan y name, facilit y name, RIN - generating name, location, production year, fuel product ty

pe, RIN D - Code, production volume, production process t ype, feedstocks, equivalence value, and number of RINs generated. Furthermore, disclosing this information is not likely to cause substantial harm to the competitive position of the business required to report these information elements under Part 80 because these elements of information do not reveal any proprietary

information, or an y other information that would likely provide insight for competitors to gain an advantage. Furthermore, because these information elements would be aggregated to the facility

level and further aggregated for the time period of the EPA - published report, the information would not be presented in a form that an y compan y’s competitors could use to gain a competitive advantage. Aggregating this information at the facility level and for the monthly , quarterl y, and/or annual time period would prevent competit ors from reverse engineering the information to determine information that could be considered confidential (e.g., exact amounts of feedstocks used, which could potentially be used to reveal production efficie ncies). Accordingly , disclosing aggregate information would not cause substantial harm to the submitter’s competitive position. For example:

 The name of the renewable fuel producer or importer and associated registration information, including facility name, registration identification numbers, RIN - generating name, location, production year, fuel ty pe, RIN D - Code, production process ty pe, and feedstock is non - specific information that is submitted for RFS program registration. These information elements are necessary for a producer to determine if it meets RFS requirements. These information elements describe commonly used renewable fuel production information and do not describe an y particular specifications about an individual facility ’s unique proces sing. Because this information does not reveal details about the precise production processes used, they are not the t ype of information that a competitor could use to develop marketing strategies to undermine the producer’s competitive position. These i nformation elements do not reveal

– and could not be used to determine

– an individual facility ’s production efficiency , production costs, or pricing structure). Accordingl y, the EPA believes that disclosing the name of the renewable fuel producer or impo rter, the facility name, registration identification numbers, RI N generating name, location, production year, fuel ty pe, RIN D - Code, production process ty pe, and feedstock would not cause substantial harm to business submitter’s competitive position.

 The volume of denaturant, applicable equivalence value, and whether all the feedstocks used during the time period were claimed to have met the definition of renewable biomass (40 CFR §§ 80.1452(b)(11), and 80.1452(b)(14)) is widely - known information that is submitted to demonstrate RFS program compliance. The volume of denaturant used must be less than 2% to meet RFS requirements for RIN generation. The equivalence value is a number that is used to determine how many gallon - RINs can be generated for a ga llon of renewable fuel according to 40 CFR § 80.1426. An affirmation that that the feedstocks a producer used meets the definition of renewable biomass is required to demonstrate that the feedstocks a facility registered to use, pursuant to 40*** E.O. 12866 Review
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Page 98 of 149 CFR § 80.14 50, were actually used. Revealing the volume of denaturant, equivalence value, and confirming that a producer affirmed use of renewable biomass would not reveal an ything proprietary or otherwise about the precise production process a given producer is usi ng, and would not provide any insight that competitors might use to gain competitive advantage. Rather, this information is commonly - known information about the renewable fuel produced that demonstrates RFS regulatory compliance for RIN generation. 4. QAP Plans and Independent Engineering Reviews At this time, the EPA is not proposing to publish QAP plans or independent engineering reviews that are submitted for RFS registration. For QAP plans and independent engineering reviews that are claimed as CBI, the EPA proposes to require submission of two versions of those documents : one clearly marked “ CBI version,” with appropriate areas de noted as CBI, and a second “public version ,” with CBI information redacted. We would require the submission of both versions of QAP plans and engineering reviews begin with the effective date of this rule. For engineering reviews filed pursuant to 40 CFR § 80.1450(b)(2), we would require submission for new registrations, and as necessary for updates pursuant to 40 CFR § 80.1450(d)(3). Based on the Agency ’s experience with the RFS program, the EPA notes that certain information should not fall under a cla im of CBI because this information is generally available to the public or widely - known within the industry , and disclosure of this information would not likely cause harm to the competitive position of any submitting renewable producer, importer, or any o ther party to a RIN transaction. If the EPA receives a Freedom of Information Act (FOIA) request for the CBI version of an engineering review or QAP plan, the EPA would process the FOIA request pursuant to its CBI regulations under 40 CFR part 2, subpart B. Submission of the two versions of QAP plans and engineering reviews (CBI and public versions) would allow the Agency to clearl y understand what information is claimed as CBI, and would also allow the Agency to make non CBI publicly

available without unnecessary delay . The EPA is inter ested in stakeholder views on this approach. 5. Request for Comments The added transparency

of making certain registration and reporting information available to the public in the form of EPA - published reports , along with the implementation of the QAP process, will strengthen the RFS program and act as a deterrent to fraudulentl y generated RINs. The EPA solicits comment on all aspects of these proposals . D. Proposed Changes to Section 80.1452

– EPA Moderated Transaction System (E MTS) Requirements

– Alternative Reporting Method for Sell and Buy Transactions for Assigned RINs*** E.O. 12866 Review
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Page 99 of 149 Reporting and product transfer document (PTD) requirements, found i n sections 80.1452 and 80.1453, respectively , currentl y state that the reportable event for a RIN purchase or sale occurs on the date of transfer. Sellers must report the sale of RINs within five (5) business day s of the reportable event via the EPA Moder ated Transaction Sy stem (EMTS). Buyers must report the purchase of RINs within ten (10) business days of the reportable event via EMTS. The date of transfer is the date on which title of RI Ns is transferred from the seller to the buyer. Some buyers and sellers of assigned RINs have expressed concerns with these requirements stating they have difficulty

determining the date of transfer since title of the renewable fuel is not transferred until the fuel phy sicall y reaches the buyer. Some transactions, for example those by rail or barge, may

take several weeks, and their current accounting sy stems do not include a means for capturing the buyer’s receipt date. EPA understands this concern, but also recognizes that some regulated parties have modified the ir accounting s ys tems to address the current reporting and PTD requirements in RFS2. We also believe that for parties separating, retiring, and selling or buying separated RINs, the current reporting and PTD requirements are effective and should remain un changed. Therefore, at this time EPA is not proposing to replace existing requirements, but is instead proposing an additional, alternative method for reporting sell and buy transactions involving assigned RINs only . The proposed alternative method fo r sell and bu y transactions of assigned RINs would redefine the reportable event for both the seller and the buyer, introduce a unique identifier that the seller must provide to the buyer, and require the buyer to report the date of transfer. Bu ye rs and s ellers would need to agree on which method they would be using to report transfers of assigned RINs; either the current method or the alternative method. EPA believes that this alternative would provide the regulated community with the flexibility to addr ess their reporting concerns and also provide EPA with the data necessary to effectivel y administer and enforce transactions of assigned RI Ns. EPA welcomes comment on this proposed alternative method for reporting assigned RIN buy and sell transactions. We propose that sellers of assigned RINs under the alternative method be required to do the following:

 Within five (5) business day s of shipping renewable fuel with assigned RINs, report a sell transaction, using the alternative method, via EMTS;  In clude in the EMTS sell transaction report other required information per section 80.1452; and  Provide a PTD to the assigned RIN bu yer with a unique identifier, also reported via EMTS, in addition to the information in section 80.1453. The date of transfer is n ot required for the alternative method. We propose that buyers of assigned RINs under the alternative method be required to do the following:

 Within five (5) business day s of receiving a shipment of renewable fuel with assigned RI Ns, report a bu y transac tion, indicating use of the alternative method, via EMTS;*** E.O. 12866 Review
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Page 100 of 149  In clude in the EMTS bu y transaction report other required information per section 80.1452;  In clude in the EMTS bu y transaction report the unique identifier provided by the seller; and  In clude in the EMTS buy transaction report the date the renewable fuel was received, i.e. the date of transfer. If this proposed alternative method is finalized, the EMTS would be modified to accept such transactions. EPA would provide additional instruction and guidance at the time of the new EMTS version release. EPA invites comment on all aspects of this proposal.*** E.O. 12866 Review
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Page 101 of 149 **IX. Impacts**  The quality

assurance program that we are proposing in today 's NPRM would provide a voluntary mechanism for regulated parties to verify that RINs are validly

generated, provide an affirmative defense against violations if a regulated party transfers an invalidly

generated RIN or uses it for compliance, and provide clarity regarding the responsibility of regulated parties to replace invalidly

generated RINs. The proposed program would not change the volume requirements of the RFS program, but instead wou ld help to ensure that those volume requirements are met. Likewise, the proposed changes to the regulations governing export of renewable fuel, separation of RINs from wet gallons, and qualifying uses of renewable fuel would also be intended to ens ure that the RFS volume requirements are met with qualifying renewable fuel. As a result, there would be no change to the expected impacts of the RFS program in terms of volumes of renewable fuel consumed or the associated GHG or energy securit y benefits. In stead, the primary impacts of the quality

assurance program would be improved liquidity

in the RI N market and improved opportunities for smaller renewable fuel producers to sell their RINs. The quality

assurance program that we are proposing in today 's action would be voluntary . As a result, there would be no obligatory costs. There would likely be costs associated with an individual part y's participation in the quality assurance program. However, the fact that the quality

assurance program would b e voluntary means that a decision to participate will be made independentl y b y each regulated part y, and thus we cannot estimate the costs that might be incurred for the nation as a whole. Furthermore, any costs incurred would only be borne if the industry believed that those costs were less than current costs in the marketplace resulting from efforts to verify , acquire, and trade RINs. In the discussion below, Section IX.A addresses direct costs associated with implementing Quality

Assurance Plans (QA Ps), such as the time required to develop a QAP and the associated recordkeeping and reporting, site visits to renewable fuel production facilities, costs for accounting services, etc. Section IX.B addresses potential costs associated with RIN replacement mechanisms that would be required under Option A. A. Direct Costs for Implementing QAPs Currently , there are approximately 485 biofuel producers operating more than 600 biofuel production facilities. These numbers are expected to increase as the bio fuel market expands. While it is unlikely

that all biofuel producers would opt to participate in the quality assurance program, that was the assumption for these cost estimates in order to reflect the maximum potential cost of the program. EPA staff met with seven parties who are already developing RIN validation programs for the biofuels industry . We also met with several industry groups and obligated parties which have been affected b y R IN fraud. These parties all provided informal estim ates of the costs*** E.O. 12866 Review
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Page 102 of 149 associated with this ty

pe of quality

assurance program which was used to inform our cost calculations. For those biofuel producers who opt into the quality assurance program, each biofuel production facilit y must be visited and assessed as part of an y audit conducted under the proposed quality

assurance program. An auditor would use an approved QAP as the basis for the verification of biofuel produced and RINs generated at a facility . In order to verify production, the auditor must con duct site visits, review documents, and contact entities that do business with the facility . The proposed components of audits are described in Section VII. We are proposing that production facilities should be visited on a quarterly basis. New produc tion facilities would be visited prior to verification of any RINs and, subsequently , according to the standard quarterl y schedule. We expect that each visit could take from one to several day s, depending on the size and complexity of the facility , the av ailability of records, changes since the last audit, etc. For some components of the audit, we propose to require ongoing, or batch - level, monitoring. The QAP would be required to provide details of the means for collection and evaluation of the data col lected on an ongoing basis. Tables IX.A - 1, IX.A - 2, and IX.A - 3 below itemize the activities anticipated for each biofuel production facility audit. The estimates include costs incurred by the biofuel producer (Table IX.A - 1), the auditor (Table IX.A - 2), and the EPA (Table IX.A - 3). This table does not include costs associated with the RI N replacement mechanism that some QAP providers may acquire to cover loss in the event of RIN fraud. These costs are discussed separately below. Table IX.A - 1 Costs to the Biofuel Producer for Implementing a QAP Category Manager

Time Prof./Tech.

Time Clerical

Time No.

Per y r. Capital $ Total Hours Total

$ Site Visit 1 16 4 2 42 3,588 Reporting 2 12 4 3 54 4,560 Recordkeeping 0 0 2 3 6 222 TOTAL 102 8,370 Table IX.A - 2 Costs to the QAP Auditor for Implementing a QAP Category Manager

Time Prof./Tech.

Time Clerical

Time No.

Per y r. Capital $ Total Hours Total

$ Auditor: Contract Init. 4 4 2 1 530 10 1,428 Site Visit 4 16 0 1 1,060 20 3,036 Follow - up 2 28 5 3 1,060 105 12,459 Monitoring 2 50 0 52 5,020 Consultants 4 1,000 4,000 Reporting 0 4 12 16 1,656 QAP Prep 2 16 4 22 3,808*** E.O. 12866 Review
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Page 103 of 149 EMTS 0 25 0 25 2,400 Recordkeeping 0 12 25 37 2,077 TOTAL 250 38,839 Table IX.A - 3 Costs to the EPA for Implementing a QAP Category Manager

Time Prof./Tech.

Time Clerical

Time Capital

$ Total

Hours Total

$ Implementation 3 3 267 EMTS Data Management 1 1 89 TOTAL 4 356 1. Time and Cost Assumptions The specific times estimated for each task are shown in Tables IX.A - 1, IX.A - 2, and IX .A - 3. These estimates are based on a number of basic assumptions. An initial site visit of the facility to be audited is assumed to require two day s, and include estimat ed travel and per diem costs. For simplicity , we have estimated an average $600 for airfare, $150 for lodging, and $80 for the per diem expenses. It is assumed that a plant manager would meet briefl y with the auditor, and that a plant chemist or other professional would escort the auditor throughout the visit. Some clerical support would be required to locate files for the related document reviews. It was assumed that an auditor would travel and spend half a day on contract initiation. Any follow up site visits were assumed to be shorter in duration, as the auditor would now be familiar with the facility

and its normal operation. A substantial amount of the auditor’s time would be spent in follow up documentation of the facility , such as checking fe edstock suppliers, process fuel suppliers, doing volume and mass balances, and monitoring the ongoing operation of the facility . It was assumed that an auditor would employ specialized consultants and/or local agents to perform some portion of the audit s upport. In addition to tracking facility operation, an auditor would also be responsible for preparing the QAP, maintaining recordkeeping, monitoring and/or brokering activities on EMTS, and assisting with RFS reporting requirements. 2. Labor Cost A ssumptions The labor costs used in this cost estimation are average mean wages for each labor category , as provided in the Bureau of Labor and Statistics Report dated May 2011. Based on this data, we used the following hourl y wages for each emplo ye e ty p e: Managerial $55.04 per hour Technical/Professional $47.81 per hour Clerical $18.35 per hour*** E.O. 12866 Review
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Page 104 of 149 Doubling to account for compan y overhead and benefits, and for convenience, rounding up to the dollar, gives the following hourl y rates:

Manageria l $110 per hour Technical/Professional $96 per hour Clerical $37 per hour For the Agency

costs, the work was assumed to be performed b y a GS - 13 technical employee, doubled and rounded up, for an hourl y rate of $89. 3. Cost Estimate Results We made our total cost estimate based on the number of registered biofuel producers in the CDX as of July

2011, assuming that all parties choose to participate in the voluntary quality assurance program. This assumes 485 RIN generators with 600 biofuel pr oduction facilities. This results in a total cost for the program of $27,576,450. If all parties are participating in the program and all RI

Ns are verified, this results in a per RIN cost of less that $0.01. However, these costs are assumed to be lin ear and we do not expect that there would be any economies of scale in terms of the number of RINs verified b y an auditor. However, we do expect that the per RI N cost would vary

depending on the number of RI Ns generated by

each fue l producer since the effort involved in validating man y aspects of renewable fuel production are the same regardless of the size of the facilit y. We do not expect that the costs of participation in the proposed quality assurance program would vary

by the D code of RINs. While RI Ns with different D codes may command different prices in the market, the verification process for each RIN will be the same regardless of D code.
B. Costs for RIN Replacement Mechanisms For reasons described previously , some QAP providers may choose a replacement mechanism to insure against invalid RINs. Such mechanisms would be required under Option A, but would not be required under Option B. There is large uncertainty in estimating the costs of these mechanisms because it is an entirel y new market. Informal discussions with potential QAP auditors, as well as other parties involved in similar markets or financial surety mechanisms in general, have suggested a broad range of potential costs. For these reasons the costs for such a mechanism were not included in the anal ys is above, and EPA welcomes comments on the cost impacts of an y potential financial surety mechan isms. In order to full y inform cost impacts of the various QAP options, we discuss the relevant cost factors of the three possible ty pes of mechanisms discussed in Section IV above. The discussion includes RI

N banks, RIN escrow accounts, and other trad itional financial instruments. As noted previousl y, these mechanisms are not intended to be inclusive of all possible ways a*** E.O. 12866 Review
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Page 105 of 149 RI N replacement mechanism could work, and are merel y suggestions of potential pathway s Option A auditors might follow. A RI N bank is a managed repository of valid audited RI

Ns which are available to all members of the bank for replacement purposes. The costs associated with a RIN bank are directly proportional to the value of the RINs banked, and the number of banked RINs required to meet the obligations of the bank members. There would also be bank management costs, which would be impacted by the number of bank members, and how the bank is managed in terms of RIN deposit, withdrawal, update, and replacement. In addition, bank man agers would need to come up with a system to maintain current year RINs in the bank, which may involve additional costs for the sale of expiring RINs and any differential in the value of the RIN at the time of deposit and the time of sale or release. Thes e costs would be born by the members of the bank, but would likely

be passed on to RIN purchasers to the maximum extent possible. These parameters will vary

so much from bank to bank that it is impossible to estimate an average per RI N cost across the ent ire program. However, it is reasonable to assume that the cost would be effectivel y the per - RI

N value of banked RINs plus some fractional percentage to cover management costs. A RI N escrow account would work very much like a RIN bank, but would be fund ed b y a single auditor instead of a group of auditors, and would be supervised and managed by a third party escrow agent. The advantage of this option is that an auditor would have total control over the funding of the escrow. However, an auditor using a n escrow account would be solely responsible for the funding of the account, and so would be required to maintain a balance equal to a much larger percentage of its potential replacement responsibility than it might be if using a RI N bank. The cost of a R INescrow account is entirely dependent upon the number and value of the RINs covered b y the escrow. Traditional financial instruments, such as surety bonds, letters of credit, or expanded insurance coverage, are also options under Option A. The cost for this t ype of coverage is dependent on the level of risk determined b y the surety provider, as well as the value of the RINs to be covered. This ty

pe of financial instrument would most likely provide a maximum dollar amount of coverage, which would translate into a per RIN cost depending on the number of RI Ns covered, relative to the number of RINs audited by the QAP provider purchasing the financial protection. EPA has learned that the cost of these policies vary greatl y among the partie s looking into these options. For this reason, this ty pe of financial protection was not included in the cost anal ysis outlined above.*** E.O. 12866 Review
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Page 106 of 149 **X. Public Participation**  We request comment b y [ **INSERT DATE 30 DAYS AFTER DATE OF PUBLIC HEARING**  ], which is 30 day s following the date of the public hearing, on all aspects of this proposal , including but not limited to the following:

• The RIN replacement cap of 2% and the limited exemption of 2%

• A potential regulatory change in which renewable fuel producers would be prohibited from separating RINs

• The proposed components of QAPs

• The proposed elements of RIN replacement mechanisms, including the inclusion of E&O insurance.

• The costs asso ciated with indemnifying auditor verification of RINs.

• Mechanisms to ensure that auditor are not complicit in fraud This section describes how you can participate in this process. A. How do I submit comments? We are opening a formal comment period b y publishing this document. We will accept comments through [ **INSERT DATE 30 DAYS AFTER DATE OF PUBLIC HEARING** ] . If yo u have an interest in the program described in this document, we encourage you to comment on any aspect of this rulemaking. We request comment on various topics throughout this proposal. Your comments will be most useful if you include appropriate and detailed supporting rationale, data, and analysis. I f you disagree with parts of the proposed program, we encourage yo u to suggest and anal yze alternate approaches to meeting the goals described in this proposal. You should send all comments, excep t those containing proprietary information, to our Air Docket (see ADDRESSES) before the end of the comment period. If you submit proprietary information for our consideration, you should clearly separate it from other comments by labeling it ‘‘Confidenti al Business Information (CBI).’’ You should send CBI directly to the contact person listed under FOR FURTHER INFORMATION CONTACT instead of the public docket. This will help ensure that no one inadvertently places proprietary

information in the docket. If you want us to use your confidential information as part of the basis for the final rule, yo u should send a non - confidential version of the document summarizing the key data or information. We will disclose information covered by a claim of confidentia lity only through the application of procedures described in 40 CFR Part 2. I f you do not identify information as confidential when we receive it, we may make it available to the public without notifying you.*** E.O. 12866 Review
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Page 107 of 149 B. Will there be a public hearing? We wil l hold a hearing on February 27, 3013 at XXXlocationXXX Washington, DC, at 9:00 am local time . If yo u would like to present testimony at the public hearing, we ask that you notify the contact person listed above under FOR FURTHER INFORMATION CONTACT at least ten day s before the hearing. You should estimate the time you will need for your presentation and identify

any needed audio/visual equipment. We suggest that you bring copies of your statement or other material for the EPA panel and the audience. It would also be helpful if you send us a copy

of your statement or other materials before the hearing. We will make a tentative schedule for the order of testimon y based on the notifications we receive. This schedule will be available on the morning of the hearing. In addition, we will reserve a block of time for an yone else in the audience who wants to give testimony. We will conduct the hearing informally , and technic al rules of evidence won’t apply . We will arrange for a written transcript of the hearing and keep the official record of the hearing open for 30 day s to allow you to submit supplementary

information. You may

make arrangements for copies of the transcrip t directly with the court reporter.*** E.O. 12866 Review
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Page 108 of 149 **XI. Statutory and Executive Order Review**  A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is a "significant regulatory

action” because it raises novel legal and policy issues. Accordingl y EPA submitted this action to the Office of Management and Budget (OMB) for review under Executive Orders 12866 and 13563 and an y changes made in response to OMB recommendations have been documented in the docket for this action. This action is being proposed today as a result of several cases of fraudulently generated RI Ns. As discussed above, several biodiesel production companies have been identified as having generated RINs that did not represent qualifying renewable fuel. While these invalid RI Ns represented a very

small amount (about 5%) of the nationw ide biodiesel volume in the 2009 - 2011 timeframe, the net result is that this fraud has impacted the liquidity of the biodiesel RI N market as some biodiesel RI Ns are perceived as having less value than others. In addition, as a result of fraudulent activ ities, obligated parties have been subject to monetary penalties and the additional cost of purchasing new RINs to cover the invalid RINs, even though they purchased the original RINs in good faith believing that they were valid. These issues have raised novel legal and policy issues for the RFS program and EPA believes it is necessary put in place an additional regulatory mechanism that could provide an alternative way to assure that RI Ns used for compliance are valid to restore confidence in the RIN mark et and level the playing field for large and small producers.
B. Paperwork Reduction Act The information collection requirements in this proposed rule have been submitted for approval to the Office of Management and Budget (OMB) under the Paperwork Red uction Act, 44 U.S.C. 3501 et seq. The Information Collection Request (ICR) document prepared b y EPA has been assigned EPA ICR number 2473.01. The RFS program requires that specified volumes of renewable fuel be used as transportation fuel, heating oil, and/or jet fuel each year. Obligated parties demonstrate compliance with the RFS standards through the acquisition of unique Renewable Identification Numbers (RINs) assigned by the producer or importer to every batch of renewable fuel produced or importe d. Validly

generated RINs show that a certain volume of qualifying renewable fuel was produced or imported. The RFS program also includes provisions stipulating the conditions under which RINs are invalid, the liability carried by

a part y that transfers or uses an invalid RI N, and how invalid RINs must be treated. In this action we are proposing a voluntary quality assurance program intended to provide a more structured way

to assure that the RINs entering commerce are valid. The voluntary*** E.O. 12866 Review
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Page 109 of 149 quality assurance program for RINs would provide a means for regulated parties to ensure that RI Ns are properl y generated, through audits of production facilities conducted by independent third parties using quality assurance plans (QAPs). The annual public report ing and recordkeeping burden for this collection is estimated to be 320 hours per response. A document entitled “Supporting Statement for Renewable Fuels Standard (RFS2) Voluntary RIN Qualit y Assurance Program (Proposed Rule)” has been placed in the publi c docket. The supporting statement provides a detailed explanation of the Agency ’s estimates by

collection activity . The estimates contained the supported statement are briefl y summarized here: TOTAL NO. OF RESPONDENTS: 485 TOTAL BURDEN HOURS: 192, 270 TOTAL COST TO RESPONDENTS: $ 4,062,000 Burden is defined at 5 CFR 1320.3(b). An agency

may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR Part 9. To comment on the Agency 's need for this information, the accuracy of the provided burden estimates, and any suggested methods for minimizing respondent burden, EPA h as established a public docket for this rule, which includes this I CR, under Docket ID number EPA HQ - OAR - 2012 - 0621. Submit any comments related to the I CR to EPA and OMB. See ADDRESSES section at the beginning of this notice for where to submit comments to EPA. Send comments to OMB at the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street, NW, Washington, DC 20503, Attention: Desk Office for EPA. Since OMB is required to make a decision concerning the IC R betw een 30 and 60 day s after [ **Insert date of publication in the Federal Register.** ], a comment to OMB is best assured of having its full effect if OMB receives it b y [ **Insert date 30 days after publication in the Federal Register.**  ]. The final rule will respond to any OMB or public comments on the information collection requirements contained in this proposal. C. Regulatory Flexibility Act The Regulatory

Flexibility

Act generally

requires an agency

to prepare a regulatory flexibility anal ys is of an y rule sub

ject to notice and comment rulemaking requirements under the Administrative Procedure Act or an y other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions. For purposes of assessing the impacts of this rule on small entities, small entity is defined as: (1) A small business as defined by the Small Business Administration’s (SBA) regulations at 13 CFR 121.201 (see table below); (2) a small governmental jurisdi ction that is a government of a*** E.O. 12866 Review
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Page 110 of 149 city , count y, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not - for - profit enterprise which is independently owned and operated and is not dominant in its field. The following table provides an overview of the primary SBA small business categories potentially affected by this regulation: Industry Defined as small entity by SBA if: NAI CS a codes Petroleum refineries ≤1,500 employees. 324110

a North American Industrial Classification Sy stem. The program proposed in today ’s action is a voluntary quality assurance program intended to provide a more structured way to assure that RINs entering commerce are valid. As a result of the recent fraud i ssue, obligated parties are reluctant to purchase RI Ns from smaller refiners because of the uncertainty of their validity. While this voluntary program could be beneficial for both larger and smaller refineries it could be particularl y beneficial for smal ler petroleum refineries if they choose to participate. In the current climate, these smaller producers have been forced to offer their RINs at a significant discount relative to RINs from larger producers, assuming they can find obligated parties or distributors willing to purchase them at all. While there will be some cost to opt into the program, we believe these costs will be offset by leveling the playing field between larger producers and small producers, allowing small producers to effectivel y comp ete in the market. After considering the economic impacts of this action on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. This action will not impose an y requirements on small entities. We continue to be interested in the potential impacts of the proposed rule on small entities and welcome comments on issues related to such impacts.
D. Unfunded Mandates Reform Act This rule does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and tribal governments, in the aggregate, or the private sector in any one year. The agency

has determined that this action does not cont ain a Federal mandate that may result in expenditures of $100 million or more for the private sector in any one year. Because the program outlined in this proposal is optional, entities subject to this rule will have the flexibility

to participate or not. Thus, this action is not subject to the requirements of sections 202 or 205 of the UMRA. This action is also not subject to the requirements of section 203 of the UMRA because it contains no regulatory requirements that might significantly or uniquel y a ffect small governments.*** E.O. 12866 Review
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Page 111 of 149 E. Executive Order 13132 (Federalism) Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timel y i nput by State and local offic ials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationsh ip between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” This action does not have federalism implications. It will not have substantial direct effects on the State s, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. These rules will apply to manufacturers of on - highwa y engines and not to state or local governments. Thus, Executive Order 13132 does not apply to this action. In the spirit of Executive Order 13132, and consistent with EPA policy to promote communications between EPA and State and local governments, EP A specifically solicits comments on this proposed rule from State and local officials.
F. Executive Order 13175 (Consultation and Coordination with Indian Tribal Governments) This action does not have tribal implications, as specified in Executive Orde r 13175 (65 FR 67249, November 9, 2000). This rule will be implemented at the Federal level and impose compliance costs onl y on engine manufacturers who elect to participate in the program. Thus, Executive Order 13175 does not apply to this rule. EPA sp ecificall y solicits additional comment on this proposed action from tribal officials. G. Executive Order 13045: Protection of Children from Environmental Health Risks and Safety Risks EPA interprets Executive Order 13045 as appl yi ng only to those regul atory

actions that are based on health or safety risks, such that the analy sis required under section 5 - 501 of the Order has the potential to influence the regulation. This rule is not subject to Executive Order 13045 because it does not establish an envi ronmental standard intended to mitigate health or safet y risks.*** E.O. 12866 Review
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Page 112 of 149 H. Executive Order 13211 (Energy Effects) This action is not a “significant energy action” as defined in Executive Order 13211 (66 FR 28355 (May

22, 2001)), because it is not likely to hav e a significant adverse effect on the supply , distribution, or use of energy . We have concluded that any energy impacts of this rule will be negligible because the voluntary QAP audit process would ensure that the volume consumption goals of the statute are met while addressing the unique features of the RFS program that have resulted in inefficiencies and poor liquidity in the RIN market.
I. National Technology Transfer Advancement Act Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law No. 104 - 113, 12(d) (15 U.S.C. 272 note) directs the agencies to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary c onsensus standards are technical standards (e.g., materials, specifications, test methods, sampling procedures, and business practices) that are developed or adopted b y voluntary consensus standards bodies. NTTAA directs EPA to provide Congress, through O MB, explanations when the EPA decides not to use available and applicable voluntary consensus standards. This proposed rulemaking does not involve technical standards. Therefore, EPA is not considering the use of any voluntary

consensus standards. J. Executive Order 12898: Federal Actions to Address Environmental Justice in Minority Populations and Low
-Income Populations Executive Order 12898 (59 FR 7629, February 16, 1994) establishes federal executive policy on environmental justice. Its main pro vision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental e ffects of their programs, policies, and activities on minority populations and low income populations in the United States. Today ’s action proposes a voluntary set of regulatory

provisions that could provide regulated parties with a specific mechanism for demonstrating that they have conducted due diligence to verify

the validity

of RINs. Therefore, EPA has determined that this action will not have disproportionatel y high and adverse human health or environmental effects on minority or low - income popul ations.*** E.O. 12866 Review
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Review *** **XII. Statutory Authority**  Statutory authorit y for the rule finalized today can be found in section 211 of the Clean Air Act, 42 U.S.C. 7545. Additional support for the procedural and compliance related aspects of today ’s rule, including the recordkeeping requirements, come from Sections 114, 208, and 301(a) of the Clean Air Act, 42 U.S.C. 7414, 7542, and 7601(a). **List of Subjects in 40 CFR Part 80** Administrative practice and procedure, Air pollution control, Diesel fuel, Environmental protection, Fuel additives, Gasoline, Imports, Oil imports, Petroleum. Dated: _______________________

______________________________ **Lisa P. Jackson,** Administrator.*** E.O. 12866 Review
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For the reasons set forth in the preamble, 40 CFR part 80 is amended as follows: **PART 80**
**— REGULATION OF FUELS AND FUEL ADDITIVES**  1. The authorit y citation for part 80 continues to read as follows: **Authority:** 42 U .S.C. 7414, 7542, 7545, and 7601(a). **Subpart M**
**— [Amended]**  2. Section 80.1401 is amended b y adding the definitions of "A - RI N", "B - RI

N", "Independent Third - Part y Auditor", "Quality assurance plan", "Quality assurance audit", and "Verified RIN" to read as follows: **§80.1401 Definitions.**  * * * * * A - RI N means a RIN verified by a registered independent third - part y auditor using a QAP that has been approved under §80.1469(a) following the audit process described in §80.1472. B - RI N means a RI

N verified by

a registered independent third - part y auditor using a QAP that has been approved under §80.1469(b) following the audit process described in §80.1472. Independent Third - Part y Auditor means a party meeting the requirements of §80.1471(b) that c onducts QAP audits and verifies RINs. Non - ester renewable diesel , also known as renewable diesel, means renewable fuel which is all of the following: (1) A fuel which can be used at a blend level approved under 40 CFR Part 79 in an engine designed to operate on conventional diesel fuel, or be heating oil or jet fuel. (2) Not a mono - alkyl ester. Non - qualifying fuel use means a use of renewable fuel in an application other than transportation fuel, heating oil, or jet fuel. Quality Assurance Plan , or QAP, means the list of elements that an independent third - part y auditor will check to verify that the RINs generated by a renewable fuel producer or importer are valid. Quality Assurance Audit means an audit of a renewable fuel production facility conducted by an independent third - party

auditor in accordance with a QAP that meets the requirements of §80.1469.*** E.O. 12866 Review
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Verified RIN means a RIN generated by a renewable fuel producer that was subject to a QAP audit executed by

an independent third - part y audito r, and determined b y the independent third party auditor to be valid. Verified RINs include both A - RI Ns and B - RI

Ns. * * * * * 3. Section 1402, currently reserved, is amended to read as follows . **§ 80.1402 Information Submitted under 40 CFR part 80 Subpart M**  Sections 2.201 through 2.215 of 40 CFR part 2, subpart B, do not appl y to the following information: (a) Registration information submitted pursuant to §§ 80.1450(b), (c), and (g) that is not entitled to confidential treatment includes company name, facility

name, facility t ype, fuel t ype, permitted capacity, production volume, feedstocks, production process, D - Code, and co - products. (b) Reporting information submitted pursuant to reporting requirements in 40 CF R § 1452(b) that is not entitled to confidential treatment includes company name, RI N - generating compan y name, renewable fuel producer, facility name and address, facility

location, renewable fuel production month and y ear, fuel ty pe, D Code, feedstocks, p roduction process, volume of fuel produced, and number of RI Ns generated.*** E.O. 12866 Review
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Page 116 of 149 4. Section 80.1426 is amended as follows: a. By revising paragraph (a)(1)(i) b. adding paragraphs (a)(1)(iii) and (a)(1)(iv). c. By revising paragraphs (c)(1) and (c)(6). d. By revising paragraphs (f)(4)(i)(A)(1) and (f)(4)(i)(B). e. By adding paragraph (f)(4)(iii). e. By revising paragraph (f)(12). f. By adding paragraph (f)(13). **§ 80.1426 How are RINs gener ated and assigned to batches of renewable fuel by**  **renewable fuel producers or importers?** (a) * * * (1) * * * (i) Qualifies for a D code pursuant to § 80.1426(f), or EPA has approved a petition for use of a D code pursuant to § 80.1416, and is demonstrated pursuant to the reporting requirements of § 80.1451 and the recordkeeping requirements of § 80.1454, or other records maintained b y the producer, to be produced in accordance with the applicable pathway in § 80.1426( f) or a petition approved by EPA pursuant to § 80.1416. * * * (ii) I s designated on a product transfer document (PTD) for use as transportation fuel, heating oil, or jet fuel in accordance with §80.1453(a)(12); and (iv) For renewable electricity , biogas, and an y renewable fuel other than ethanol, biodiesel, or renewable diesel , is distributed and sold in accordance with §80.1426(f)(10), §80.1426(f)(11), or §80.1426(f)(12), as appropriate. * * * * * (c) * * * (1) Fuel producers and importers may not generate RI

Ns for fuel that does not satisfy the requirements of subsection (a)(1) of this section. * * * * * (6) A party

is prohibited from generating RINs for a volume of fuel that it produces if the fuel has been produced by a process that uses a renewable fuel as a feedstock, and the renewable fuel that is used as a feedstock was produced b y another part y, except that RI Ns may be generated for such fuel if allowed by EPA in response to a petition*** E.O. 12866 Review
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Page 117 of 149 submitted pursuant to §80.1416 and the petition approval specifies a mechanism to prev ent double counting of RINs. * * * * * (f) * * * (4) * * * (i) * * * (A) * * * ( 1 ) V RI

N shall be calculated according to the following formula:

V RI N = EV * V s * FE R / (FE R + FENR) Where: V RI N = RI N volume, in gallons, for use in determining the number of gallon - RI Ns that shall be generated for the batch. EV = Equivalence value for the batch of renewable fuel per §80.1415, subject to qualification in paragraph (f)(4)(iii) of this section. V s = Standardized volume of the batch of renewable fuel at 60 o F, in gallons, calculated in accordance with paragraph (f)(8) of this section. FE R = Feedstock energy from renewable biomass used to make the transportation fuel, in Btu. FENR = Feedstock energy from non - renewable feedstocks used to make the transportation fuel, heating oil, or jet fuel, in Btu. * * * * *

(B) Method B . V RI N shall be calculated according to the following formula: V RI N = EV * V s * R Where: V RI N = RI N volume, in gallons, for use in determini ng the number of gallon - RI Ns that shall be generated for the batch. EV = Equivalence value for the batch of renewable fuel per §80.1415, subject to qualification in paragraph (f)(4)(iii) of this section. V s = Standardized volume of the batch of renewable f uel at 60 o F, in gallons, calculated in accordance with paragraph (f)(8) of this section.*** E.O. 12866 Review
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Page 11 8 of 149 R = The renewable fraction of the fuel as measured b y a carbon - 14 dating test method as provided in paragraph (f)(9) of this section.

* * * * (iii) In determining the RIN volume V RI N according to paragraph (f)(4)(i)(A) or (f)(4)(i)(B) of this section, the equivalence value used to determine VRI N which is calculated according to §80.1415 shall use a value of 1.0 to represent R, the renewable content of the renewable fuel. * * * * (12)(i) For purposes of this section, any renewable fuel other than ethanol, biodiesel, or renewable diesel is considered renewable fuel and the producer or importer may generate RINs onl y if all of the following appl y: (A) The fuel is produced from renewable b iomass and qualifies for a D code in Table 1 to this section or has received approval for use of a D code by the Administrator; (B) The fuel producer or importer demonstrates that the fuel was produced for use as a transportation fuel, heating o il or jet fuel by : ( 1 ) Blending the renewable fuel into gasoline or diesel fuel to produce a transportation fuel, heating oil or jet fuel that meets all applicable standards; ( 2 ) Entering into a written contract for the sale and use of a specific quantity of the renewable fuel with a party who blends the fuel into gasoline or diesel fuel to produce a transportation fuel, heating oil or jet fuel that meets all applicable standards; or ( 3 ) Demonstrating that the fuel is being used in its neat form as a transportation fuel, heating oil or jet fuel that meets all applicable standards. (C) The fuel was sold for use in a transportation fuel , and for no other purpose ; and (ii) Reserved. (iii) Reserved. (13) For purposes of Table 1 to this section, process heat produced from combustion of gas at a renewable fuel facility

is considered derived from biomass if the gas is biogas. (i) For biogas directl y transported to the facilit y without being placed in a commercial distribution sy stem, all of the following conditions must be met: (A) The producer has entered into a written contract for the procurement of a specific volume of biogas with a specific heat content.*** E.O. 12866 Review
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Page 119 of 149 (B) The volume of biogas was sold to the renewable fu el production facility , and to no other facility . (C) The volume and heat content of biogas injected into the pipeline and the volume of gas used as process heat are measured b y continuous metering. (ii) For biogas that has been gathered, processed and injected into a common carrier pipeline, all of the following conditions must be met: (A) The producer has entered into a written contract for the procurement of a specific volume of biogas with a specific heat content. (B) The volume of biogas was sold t o the renewable fuel production facility, and to no other facility . (C) The volume of biogas that is withdrawn from the pipeline is withdrawn in a manner and at a time consistent with the transport of fuel between the injection and withdrawal points. (D) T he volume and heat content of biogas injected into the pipeline and the volume of gas used as process heat are measured b y continuous metering. (E) The common carrier pipeline into which the biogas is placed ultimately serves the producer's renewable fuel facility . (iii) The process heat produced from combustion of gas at a renewable fuel facility described in paragraph (f)(12)(i) of this section shall not be considered derived from biomass if any

other party

relied upon the contracted volume of biogas for the creation of RINs.

5 . Section 80.1429 is amended b y adding paragraph (b)(10) and revising paragraph (f) to read as follows: **§ 80.1429 Requirements for separating RINs from volumes of renewable fuel.** * * * * * (b) * * * (10) An y party that produces a volume of renewable fuel may separate any RI

Ns that have been generated to represent that volume of renewable fuel or that blend if that party retires the separated RINs to replace invalid RI Ns accordin g to §80.1474. * * * * * (f) [Reserved]*** E.O. 12866 Review
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Page 120 of 149 * * * * * 6 . Section 80.1430 is amended b y .... to read as follows: **§ 80.1430 Requirements for exporters of renewable fuel.** (a) Any part y that owns an y amount of renewable fuel, whether in its neat form or blended, that is exported from any

of the regions described in §80.1426(b) shall acquire sufficient RINs to comply with all applicable Renewable Volume Obligations under paragraphs (b) through (e) of this section representing the exported renewable fuel. (b) Exporter Renewable Volume Obligations. An exporter of renewable fuel shall determine its Exporter Renewable Volume Obligations from the volumes of the renewable fuel exported. (1) Cellulosic biofuel. ERV O CB,k = VOLk * EVk Where: ERVO CB,k= The Exporter Renewable Volume Obligation for cellulosic biofuel for

discrete volume k in gallons. k = A discrete volume of renewable fuel that the exporter knows or has reason

to know is cellulosic biofuel that is exp orted in a single shipment. VOLk= The standardized volume of discrete volume k, in gallons, calculated in

accordance with §80.1426(f)(8). EVk= The equivalence value associated with discrete volume k. (2) Biomass - based diesel. ERVO BBD,k = VOLk * EV k Wh ere: ERVO BBDI ,k= The Exporter Renewable Volume Obligation for biomass - based diesel for

discrete volume k, in gallons. k = A discrete volume of renewable fuel that is biodiesel or renewable diesel

and is exported in a single shipment. VOLk= The standardized volume of discrete volume k calculated in accordance

with §80.1426(f)(8). EVk= The equivalence value associated with discrete volume k. (3) Advanced biofuel. ERVO AB,k= VOLk * EVk*** E.O. 12866 Review
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Page 121 of 149 Where: ERVO AB,k= The Exporter Renewable Volume Obligation for advanced biofuel for

discrete volume k, in gallons. k = A discrete volume of renewable fuel that is advanced biofuel (including

biomass - based diesel, renewable diesel, cellulosic biofuel and other advanced biofuel) and is exported in a single shipment. V OLk= The standardized volume of discrete volume k, in gallons, calculated in

accordance with §80.1426(f)(8). EVk= The equivalence value associated with discrete volume k. (4) Renewable fuel. ERVO RF,i = VOLk * EVk Where: ERVO RF,i = The Renewable Volume Obligation for renewable fuel for discrete volume

k, in gallons. k = A discrete volume of exported renewable fuel that is exported in a single

shipment. VOLk= The standardized volume of discrete volume k, in gallons, calculated in

accordance with §80.14 26(f)(8). EVk= The equivalence value associated with discrete volume k. * * * * * (e) For renewable fuels that are in the form of a blend at the time of export, the exporter shall determine the volume of exported renewable fuel based on one of the following: * * * * * 7 . Section 80.1431 is amended b y revising paragraph (a)(1)(viii) and paragraph (b) to read as follows: **§ 80.1431 Treatment of invalid RINs.** (a) * * * (1) * * * (viii) [Reserved] * * * **** E.O. 12866 Review
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(b) Except as provided in § 80.1473, the following provisions apply in the case of RINs that are invalid: (1) Upon determination by an y part y that RINs owned are invalid, the part y must keep copies and adjust its records, reports, and compliance calculations in which the invalid RI Ns were used. The party

must retire the invalid RI Ns in the applicable RIN transaction reports under § 80.1451(c)(2) for the quarter in which the RINs were determined to be invalid. (2) Invalid RINs cannot be used to achieve compliance with the Renewable Volume Obligations of an obligated part y or exporter, regardless of the party's good faith belief that the RI

Ns were valid at the time they were acquired. (3) An y valid RINs remaining af ter invalid RINs are retired must first be applied to correct the transfer of invalid RI Ns to another party

before appl yi ng the valid RI Ns to meet the part y's Renewable Volume Obligations at the end of the compliance ye ar. 8 . Section 80.1433 is added to read as follows: **§80.1433 Requirements for parties that designate**  **fuel for which RINs were generated for an application that is not transportation fuel, heating oil, or jet fuel.**  (a) Any part y that designates any amount of fuel originally produced as renewable fuel, whether in its neat form or blended, for an application that is not transportation fuel, heating oil, or jet fuel shall retire an appropriate number and ty pe of RINs acco rding to one of the following equations and as specified in paragraph (b). (1) Except as provided in (a)(5), Cellulosic biofuel. RI NRET CB,i = Σ(VOLk * EVk) i Where: RI NRET CB,i = The quantity of cellulosic biofuel RINs that must be retired for day i, in gallons. k = A discrete volume of fuel which the party designated for use in an

application other than as transportation fuel, heating oil or jet fuel and which the part y knows or has reason to know would have qualified as cellulosic biofuel if not put to a non - qualifying fuel use. VOLk= The standardized volume of discrete volume k, in gallons, calculated in

accordance with §80.1426(f)(8). EVk= The equivalence value associated with discrete volume k.*** E.O. 12866 Review
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(2) Except as provided in (a)(5), Biomass - based diesel. RI NRET BBD,i = Σ(VOLk * EVk) i Where: RI NRET BBD,i = The quantity of b iomass - based diesel RINs that must be retired for day i, in gallons. k = A discrete volume of fuel which the party designated for use in an

application other than as transportation fuel, heating oil or jet fuel and which the part y knows or has reason to know would have qualified as biomass - based diesel if not put to a non - qualifying fuel use. VOLk= The standardized volume of discrete volume k, in gallons, calculated in

accordance with §80.1426(f)(8). EVk= The equivalence value associated with discr ete volume k. (3) Advanced biofuel. RI NRET AB,i = Σ(VOL k * EVk) i Where: RI NRET AB,i = The quantity of advanced biofuel RINs that must be retired for day i, in gallons. k = A discrete volume of fuel which the party designated for use in an

application other than as transportation fuel, heating oil or jet fuel and which the part y knows or has reason to know would have qualified as advanced biofuel if not put to a non - qualifying fuel use . VOLk= The standardized volume of discrete volume k, in gallons, calculated in

accordance with §80.1426(f)(8). EVk= The equivalence value associated with discrete volume k. (4) Renewable fuel. RI NRET RF ,i = Σ(VOL k * EVk) i Where: RI NRET RF ,i = The quantity of renewable fuel RINs that must be retired for day i, in gallons. k = A discrete volume of fuel which the party designated for use in an

application other than as transportation fuel, heating oil or jet fuel and which the part y knows or has reason to know would have qualified as renewable fue l if not put to a non - qualifying fuel use. VOLk= The standardized volume of discrete volume k , in gallons, calculated in

accordance with §80.1426(f)(8).*** E.O. 12866 Review
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EVk= The equivalence value associated with discrete volume k. (5) If the part y has reason to know that the fuel would have qualified as cellulosic diesel if not put to a non - qualifying fuel use, it must choose either the formula specified in paragraph (a)(1) or that in paragraph (a)(2) to calculate the number and typ e of RINs that must be retired. (b) For the purposes of calculating the number of RINs that must be retired under paragraphs (a) of this section: (1) If the equivalence value for the discrete volume k can be determined pursuant to §80.1415 based on its composition, then the appropriate equivalence value shall be used in the calculation pursuant to paragraph (a). (2) If the discrete volume k is known to be biomass - based diesel but the composition is unknown, the EVk shall be 1.5. (3) If neither the category nor composition of discrete vol ume k can be determined, the EVk shall be 1.0. (c) VOLk shall be based on one of the following: (1) In formation from the supplier of the blend of the concentration of fuel originally produced as renewable fuel in the blend; (2) Determination of the ren ewable portion of the blend using Method B or Method C of ASTM D 6866 (incorporated b y reference, see §80.1468), or an alternative test method as approved b y the EPA; or (3) Assuming the maximum concentration of the renewable fuel in the blend as allowed by law and/or regulation. (d) [Reserved] (e) All RI Ns retired pursuant to this section shall be identified in EMTS according the following schedule: (1) Within ten (10) business day s of the designation of a fuel for which RINs were generated for a use other than as transportation fuel, heating oil, or jet fuel. (f) Any volume of fuel which is designated for a purpose other than as transportation fuel, heating oil or jet fuel cannot be redesignated as renewable fuel. 9 . Section 80.1450 is amended as follows: a. By adding paragraph (b)(1)(ix). b. By revising paragraph (g) and adding paragraph (j ). **§ 80.1450 What are the registration requirements under the RFS program?** *** E.O. 12866 Review
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* * * * * (b)* * * (1)* * * (ix) For a producer or importer or an y renewable fuel other than ethanol, biodiesel, renewable diesel, biogas or renewable electricity: (A) A description of the renewable fuel and how it will be blended to into gasoline or diesel fuel to produce a transportation fuel, heating oil or jet fuel that meets all applicable standards; (B) A statement regarding whether the renewable fuel producer or importer will blend the renewable fuel i nto gasoline or diesel fuel or enter into a written contract for the sale and use of a specific quantit y of the renewable fuel with a party who blends the fuel into gasoline or diesel fuel to produce a transportation fuel, heating oil or jet fuel that meet s all applicable standards; (C) If the renewable fuel producer or importer enters into a written contract for the sale and use of a specific quantity

of the renewable fuel with a party who blends the fuel into gasoline or diesel fuel to produce a transpor tation fuel, heating oil or jet fuel, provide ( 1 ) the name, location and contact information for the part y that will blend the renewable fuel, and ( 2 ) a cop y of the contract that requires the party to blend the renewable fuel into gasoline or diesel fu el to produce a transportation fuel, heating oil or jet fuel that meets all applicable standards; * * * * (g) An y independent third - part y auditor described in §80.1471 must register with EPA as an independent third - party

auditor and receive an EPA issued compan y identification number prior to conducting quality

assurance audits pursuant to §80.1472. Registration information must be submitted at least 30 days prior to conducting audits of renewable fuel production facilities. The indep endent third - party

auditor must provide to EPA the following: (1) T he information specified under § 80.76, if such information has not already been provided under the provisions of this part. (2) Documentation of professional qualifications as described in §80. 1450(b)(2)(i)(A) and §80.1450(b)(2)(i)(B). (3) Documentation of professional liability insurance as described in §80.1471(c).*** E.O. 12866 Review
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(4) An y qualit y assurance plans as described in §80.1469. (5) Name, address, and company and facility

identification number of all renewable fuel production facilities that the independent third - party auditor intends to audit under §80.1472. (6) An affidavit from each renewable fuel producer or foreign renewable fuel producer stating its intent to have the independent third - party auditor conduct a quality assurance audit of an y of the renewable fuel producer’s or foreign renewable fuel producer’s facilities. (7) An affidavit stating that an independent third - party auditor is independent, as described in paragraphs §80.1471(b), of an y renewable fuel producer or foreign renewable fuel producer. (8) Proof of a RIN replacement instrument, if applicable, as described under §80.1470. (9) The name and contact information for each person employed (or under contract) by the independent third - party

auditor to conduct audits or verify RINs , as well as the name and contact information for the Professional Engineer performing the review. (10) Registration updates.

— (i) An y independent third - part y auditor who makes changes to its quality assurance plan(s) that will allow it to audit new renewable fuel production facilities, as defined in § 80.1401 that is not reflected in the producer's registration information on file with EPA must update its registration information and submit a copy of an updated QAP on file with EPA at least 60 day s prior to producing the new t ype of renewable fuel. (ii) Any independent third - part y auditor who makes an y other changes to a QAP that will affect the third - party

auditor’s registration information but will not affect the renewable fuel category

for which the producer is registered per paragraph (b) of this section must update its registration information 7 day s prior to the change. (iii) Independent third - party auditors must update their QAP s at least 60 days prior to verifying RINs generated by a renewable fuel facility

uses a new pathway . (iv) Independent third - party auditors must update their QAPs at least 60 day s prior to verifying RINs generated by an y renewable fuel facility not identi fied in their existing registration. (11) Registration renewal. Registrations for independent third - part y auditors expire at the end of the calendar year, December 31, after EPA has approved a registration under this paragraph (g) unless:*** E.O. 12866 Review
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(i) The indepe ndent third - part y auditor resubmits all information, updated as necessary , described in §80.1450(g)(1) thru (g)(7) no later than October 31; and (ii) The independent third - part y auditor submits an affidavit affirming that he or she has only verified RINs u sing a QAP approved under §80.1469, notified all appropriate parties of all potentiall y invalid RI Ns as described in §80.1471(d), and fulfilled all of his or her RIN replacement obligations under §80.1474. (12) Revocation of Registration. (i) The Administrator may issue a notice of intent to revoke the registration of a third party auditor if the Administrator determines that the auditor has failed to fulfill any requirement of this subpart. The notice of intent shall include an explanation of the reasons for the proposed revocation. (ii) Within 60 day s of receipt of the notice of intent to revoke, the independent third - part y auditor may

submit written comments concerning the notice, including but not limited to a demonstration of compliance with th e requirements which provide the basis for the proposed revocation. Communications should be sent to the following address: XX The Administrator shall review and consider an y such submission before taking final action concerning the proposed revocation. (iii) If the auditor fails to respond in writing within 60 day s to the notice of intent to revoke, the revocation shall become final b y operation of law and the Administrator shall notify the independent third - part y auditor of such revocation. (iv) EPA may den y the registration of an independent third - part y auditor if the independent third - party

auditor employ s an y person that was previousl y employed b y an independent third - party

auditor whose registration was revoked. * * * (j) Registration shall be on forms, and following policies, established by the Administrator. 10 . Section 80.1451 is amended as follows: a. By revising paragraphs (a)(1)(ix), (a)(1)(x), (a)(1)(xi), (a)(1)(xii), and (a)(1)(xiii). b. By adding paragraphs (a)(1)(xiv) , (a)(1)(xv), and (a)(1)(xvi). c. By adding paragraph (b)(1)(ii)(T). d. By revising paragraphs (c)(2)(x), (c)(2)(xi), (c)(2)(xii), (c)(2)(xiii), (c)(2)(xiv), (c)(2)(xv), and (c)(2)(xvi). e . By adding paragraphs (c)(2)(xvii) and (c)(2)(xviii). f . By r evising paragraph (g). g . By adding paragraph (h). **§ 80.1451 What are the reporting requirements under the RFS program?***** E.O. 12866 Review
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(a) * * * (1) * * * (ix) The total current - ye ar RINs by category of renewable fuel, as those fuels are defined in §80.1401 (i.e., cellulosic biofuel, biomass - based diesel, advanced biofuel, renewable fuel, and cellulosic diesel), retired for compliance that are invalid as defined in §80.1431(a). (x) The total prior - year RINs b y renewable fuel category , as those fu els are defined in §80.1401, retired for compliance. (xi) The total prior - ye ar RI Ns b y renewable fuel category , as those fuels are defined in §80.1401, retired for compliance that are invalid as defined in §80.1431(a). (xii) The total cellulosic biofuel waiver credits used to meet the part y's cellulosic biofuel RVO. (xiii) A list of all RI

Ns generated prior to July 1, 2010 that were retired for compliance in the reporting period. (xiv) A list of all RI

Ns that were retired for compliance in the reporting period and are invalid as defined in §80.1431(a). (xv) Any deficit RVO(s) carried into the subsequent year. (xvi) Any additional information that the Administrator may require. * * * * * (b)* * * (1)(i)* * * (ii) * * * (T) Producers or importers of an y renewable fuel other than ethanol, biodiesel, renewable diesel, biogas or renewable electricity , shall report, on a quarterl y basis, all the following for each volume of fuel: ( 1 ) Total volume of fuel produced, total volume of renewable fuel blended into gasoline and diesel fuel, and the percentage of renewable fuel blended into each batch of finished fuel; ( 2 ) If the renewable fuel producer or importer enters into a written contract for the sale and u se of a specific quantity

of the renewable fuel with a party who blends the fuel into gasoline or diesel fuel to produce a transportation fuel, heating oil or jet fuel, the name, location and contact*** E.O. 12866 Review
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information for each party the blends the fuel, and affi davits from the part y that include 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 (iv) A description of the finished fuel, and a statement that the fuels met 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 f uel, if applicable, and (vi) Quantity

of assigned RINs that the end user separated from the renewable fuel, if applicable. (c) * * * (2) * * * (x) The total current - ye ar RI Ns retired that are invalid as defined in §80.1431(a). (xi) The tota l prior - ye ar RI Ns retired. (xii) The total prior - ye ar RI Ns retired that are invalid as defined in §80.1431(a). (xiii) The number of current - ye ar RINs owned at the end of the quarter. (xiv) The number of prior - year RINs owned at the end of the quarter. (xv) The number of RINs generated. (xvi) The volume of renewable fuel (in gallons) owned at the end of the quarter. (xvii) The total 2009 and 2010 retired RINs reinstated. (xviii) Any

additional information that the Administrator may require. * * * * * (g) All independent third - part y auditors. An y party that is an independent third - part y auditor as defined in §80.1471 that verifies RINs must submit to EPA reports according to the schedule, and containing all the information, that is se t forth in this paragraph (g). (1)(i) For RINs verified beginning on January 1, 2014, RI

N generation verification reports for each facility

audited by

the independent third - party auditor shall be submitted according to the schedule specified in paragraph (f)(2) of this section.*** E.O. 12866 Review
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(ii) The RIN generation verification reports shall include all the following information for each batch of renewable fuel produced or imported verified, where “batch” means a discrete quantity of renewable fuel produced or imported and assigned a unique batch - RI N per §80.1426(d): (A) The RIN generator's name. (B) The RIN generator's EPA company registration number. (C) The renewable fuel producer EPA facility registration number. (D) The importer EPA facility registration number and foreign renewable producer compan y registration number, if applicable. (E) The applicable reporting period. (F) The quantity

of RINs generated for each batch according to §80.1426. (G) The production date of each batch. (H) The fuel t ype of each b atch. (I) The volume of denaturant and applicable equivalence value of each batch. (J) The volume of each batch produced. (K) The volume and ty

pe of each feedstock used to produce the batch. (L) Which batches met the definition of Renewable Biomass. (M) The quantit y and t yp e of co - products produced. (N) An y additional information the Administrator may require. (2) RIN verification activity reports shall be submitted to EPA according to the schedule specified in paragraph (f)(2) of this section. Each report shall summarize RIN verification activities for the reporting period. The quarterl y R INverification activity reports shall include all of the following information: (i) The submitting part y's name. (ii) The submitting part y' s EPA company registr ation number. (iii) The number of current - ye ar RINs verified at the start of the quarter. (iv) The number of prior - ye ar RINs verified at the start of the quarter.*** E.O. 12866 Review
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(v) The total current - ye ar RI Ns verified. (vi) The total prior - ye ar RI Ns verified. (vii) The number of current - ye ar RINs verified at the end of the quarter. (viii) The number of prior - year RINs verified at the end of the quarter. (ix) A list of all RI

Ns subject to the audit that were not verified or that were identified as Potentially Invalid RINs (PIRs) pursuant to 80.1474, along with a narrative description of wh y the RI Ns were not verified or were identified as PIRs. (x) Any additional information that the Administrator may require. (3) All reports required under this paragraph (g) must be signed and certified as meeting all the applicable requirements of this subpart by the independent third - part y auditor or a responsible corporate officer of the independent third - part y auditor. (h) All reports required under this section shall be submitted on forms and following procedures prescribed b y the Administrator.
11 . Section 80.1452 is amended b y adding paragraph (g) as follows. **§ 80. 1452**  **What are the requirements related to the EPA -**  **Moderated Transaction System (EMTS**  **)?** * * * * * (g) Alternative method of reporting buy and sell transactions in EMTS . For buyers and sellers of assigned RINs that agree to utilize this alternative reporting method, the reporting requirements of paragraph(c) of this sec tion are modified as follows: (1) The seller of assigned RINs shall do the following: (i) Report the sell transaction in EMTS within five (5) business day s of shipping, and; (ii) Indicate that the alternative reporting method is being utilized; and (iii) Report the date the renewable volume is shipped in place of the date of transfer (c)(7) in the EMTS sell transaction report; and (iv) Report a unique identifier and provide a product transfer document (PTD) that meets all requirement of § 80.1453 an d that includes the unique identifier agreed upon by the buyer and seller. (2) The buyer of assigned RINS shall do the following:*** E.O. 12866 Review
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Page 132 of 149 (i) Report the buy

transaction in EMTS within five (5) business day s of receipt; (ii) Indicate that the alternative report ing method is being utilized; (iii) In clude the unique identifier provided b y the seller under paragraph (g)(1)(iii) in the EMTS buy

transaction report; and (iv) Report the date the renewable volume is received in place of the date of transfer (c)(7) in the EMTS buy

transaction report. 12 . Section 80.1453 is amended as follows: a. Revising paragraph (a) introductory text and paragraph (a)(5); and b. Adding paragraphs (a)(12), and (a)(13). **§80.1453 What are the product transfer document (PTD) requirements for the RFS**  **program?** (a) On each occasion when an y part y transfers ownership of neat and/or blended renewable fuels or separated RINs subject to this subpart, the transferor must provide t o the transferee documents identifying the renewable fuel, designated fuel uses, and any RINs generated for the fuel (whether assigned or separated) which include all of the following information, as applicable: * * * * (5) Name and blend level of all blending components in a product containing renewable fuel, if applicable. * * * * (12) For the transfer of renewable fuel with or without RI Ns, an accurate and clear statement on the product transfer document of the fuel ty p e from Table 1 to § 80.1426, and designation of the fuel use(s) intended b y the transferor, as follows: (i) Ethanol. “This volume of neat or blended ethanol is designated and intended for use as transportation fuel or jet fuel in the 48 U.S. contiguous states and Hawaii. Any other use in the 48 U.S. contiguous states and Hawaii is a violation of 40 C.F.R § 80.1460(g), unless the requirements in § 80.1433 are met.” (ii) Biodiesel. ” This volume of neat or blended b iodiesel is designated and intended for use as transportation fuel, heating oil or jet fuel in the 48 U.S. contiguous states and Hawaii. An y other use in the 48 U.S. contiguous states and Hawaii is a violation of 40 C.F.R § 80.1460(g), unless the requirements in § 80.1433 are met.” (iii) Renewable Heating oil. “This volume of heating oil is designated and intended for use as heating oil. An y other use in the 48 U.S. contiguous states and Hawaii is a violation of 40 C.F.R § 80.1460(g), unless the requirements in § 80.1433 are met.” (iv) Renewabl e Diesel. “This volume of neat or blended renewable diesel is designated and intended for use as transportation fuel, heating oil or jet fuel in the 48 U.S. contiguous states and Hawaii. Any other use in the 48 U.S. contiguous states and*** E.O. 12866 Review
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Page 133 of 149 Hawaii is a violation of 40 C.F.R § 80.1460(g), unless the requirements in § 80.1433 are met.” (v) Naphtha. ” This volume of neat or blended naphtha is designated and intended for use as transportation fuel or jet fue l in the 48 U.S. contiguous states and Hawaii. This naphtha may

onl y be used as a gasoline blendstock or jet fuel. An y other use in the 48 U.S. contiguous states and Hawaii is a violation of 40 C.F.R §80.1460(g), unl ess the requirements in § 80.1433 are met.” (vi) Butanol. “This volume of neat or blended butanol is designated and intended for use as transportation fuel or jet fuel in the 48 U.S. contiguous states and Hawaii. This butanol may

onl y be used as a gasoli ne blendstock or jet fuel. An y other use in the 48 U.S. contiguous states and Hawaii is a violation of 40 C.F.R § 80.1460(g), unless the requirements in § 80.1433 are met.” (vii) Renewable fuels other than ethanol, b iodiesel, heating oil, renewable diesel, naptha or butanol. “This volume of neat or blended renewable fuel is designated and intended to be used as transportation fuel, heating oil, or jet fuel in the 48 U.S. contiguous states and Hawaii. Any other use in the 48 U.S. contiguous states and Hawaii is a violation of 40 C.F.R §80.1460(g), unless the requirements in § 80.1433 are met.”
13 . Section 80.1454 is amended as follows: a. By adding paragraph (b)(7). b. By revising paragraphs ( l), ( m), (n), (o), and (p). c. By adding paragraphs (q) and (r). **§ 80.1454 What are the recordkeeping requirements under the RFS program?** * * * * * (b) * * * (7) Records related t o the implementation of a QAP under §80.1469. * * * * * (l) Requirements for producers or importers of any renewable fuel other than ethanol, biodiesel, renewable diesel, biogas or renewable electricity. A renewable fuel producer that generates RI Ns for an y renewable fuel other than ethanol, biodiesel, renewable diesel, biogas or renewable electricit y shall keep all of the following additional records: (1) Documents demonstrating the total volume of renewable fuel produced, total volum e of renewable fuel blended into gasoline and diesel fuel, and the percentage of renewable fuel blended into each batch of finished fuel;*** E.O. 12866 Review
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(2) Contracts and documents memorializing the sale of renewable fuel to parties who blend the fuel into gasoline or d iesel fuel to produce a transportation fuel, heating oil or jet fuel relied upon in § 80.1426(f)(X); (3) Such other records as may be requested by

the Administrator. (m) Requirements for independent third - part y auditors. Any independent third - part y auditor (as described at §80.1471) must keep all of the following records for a period of at least five (5) ye ars: (1) Copies of all reports submitted to EPA under §80.1451(g), as applicable. (2) Records related to the implementation of a QAP under §80.1 469 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 produc ers 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) L ist of RINs reported to 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 an y financial assurance instrum ent as required under §80.1470 under a quality assurance plan implemented under §80.1469(a). (9) Such other records as may be requested by

the Administrator. (n) The records required under paragraphs (a) through (d) and (f) through (l) of this section an d under §80.1453 shall be kept for five ye ars from the date they were created, except that records related to transactions involving RI Ns shall be kept for five ye ars from the date of the RI N transaction. (o) The records required under paragraph (e) of th is section shall be kept through calendar ye ar 2022. (p ) On request b y EPA, the records required under this section and under §80.1453 must be made available to the Administrator or the Administrator's authorized representative. For records that are elec tronically

generated or maintained, the equipment or software necessary to read the records shall be made available; or, if requested by EPA, electronic records shall be converted to paper documents.*** E.O. 12866 Review
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( q) 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 an y foreign producer not generating RINs for his renewable fuel. ( r) Copies of all reports required under §80.1464. 14 . Section 80. 1460 is amended b y adding paragraphs (g), (h), and (i ) as follows. **§ 80.1460 What acts are prohibited under the RFS program?** * * * * * (g) Failing to retire RINs when fuel for which RINs have been generated is designated for use in an application other than transportation fuel, heating oil or jet fuel. No person shall designate fuel for which RINs were generated for a non - qualifying fuel use, unless the requirements of 80.1433 have been met. (h) RIN Separation Violations . No person shall do any of the following: (1) Separate RINs in EMTS using the wrong separation reason code (2) Separate RINs in EMTS without having a qualifying separation event pursuant to 80.1429 (3) Separate more than 2.5 RI Ns 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) [Reserved] (6) Improperl y separate RI Ns in an y other way not listed in paragraphs (i)(1) - (5) of this section. (i) Independent third - party auditor violations. No person shall do any of the following: (1) Fail to fully

and competently

implement a QAP approved under §80.1469. (2) Fail to notify

appropriate parties of potentiall y invalid RI Ns under §80.1474(b). ( 3) Identify

a RIN as verified in accordance with §80.1471(e) that is invalid under §80.1431. 15 . Section 80.1461 is amended b y revising paragraphs (a)(1) and (a)(2) as follows. **§ 80.1461 Who is liable for violations under the RFS program?** * * * * * (a) * * **** E.O. 12866 Review
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Page 136 of 149 (1) An y person who violates a prohibition under §80.1460(a) through (d) or §80.1460(g) through (h) is liable for the violation of that prohibition. (2) An y person who causes another person to violate a prohibitio n under §80.1460(a) through (d) or §80.1460(g) through (h) is liable for a violation of §80.1460(e). 16 . Section 80.1469 is added as follows: **§80.1469 Requirements for Quality Assurance Plans**  This section specifies the requirements for two ty pes of Qualit y Assurance Plan (QAP). (a) Option A QAP Requirements. (1) Feedstock - related components . (i) Components requiring ongoing monitoring: (A) Feedstocks are renewable biomass as defined i n §80.1401. (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 as permitted under Table 1 to Section 80.1426 or a petition approved through section 80.1416. (G) Feedstock is not renewable fuel for which RINs were previousl y generated. (ii) Components requiring quarterl y 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 a pproved 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 engineeri ng 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.*** E.O. 12866 Review
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(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 as permitted under Table 1 to §80.1426 or a petition approved through §80.1416. (C) Certifi cates of anal ys is verifying fuel t ype and quality, as applicable. (ii) Components requiring quarterl y monitoring: (A) Mass and energy

balances are appropriate for ty pe and size of facilit y. (B) Workforce size is appropriate for ty pe 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 EPA and EIA, as well as other federal or state reporting. (F) Volume production is consistent with storage and distribution capacity . (G) Volume production capacit y matches RFS registration. (3) RI N generation - related components. (i) Components requiring ongoing monitoring: (A) Standardization of volumes pursuant to §80.1426(f)(8) are accurate. (B) Renewable fuel t ype 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 a ccurate pursuant to 80.1426(f)(9). (F) Equivalence value EV 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 RI

N generation calculations are being followed under §80.1426(f)(3), (4), or (5), as applicable. (ii) Components requiring quarterl y monitoring: (A) Registration, reporting and recordkeeping components . (4) RI N separation - related components. (i) Components requiring ongoing monitoring:*** E.O. 12866 Review
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that RI N separation is appropriate under §80.1429 (b)(4). (B) If applicable , verify

that RI NS were retired for any

fuel that the producer produced and exported . (ii) Components requiring quarterl y monitoring: (A) Verify

that annual attestation report is accurate. (b) Option B QAP Requirements. All components specified in this paragraph(b) require quarterly monitoring. (1) Feedstock - related components . (i) Feedstocks are renewable biomass as defined in §80.1401. (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 as perm itted under Table 1 to Section 80.1426 or a petition approved through section 80.1416 , and is consistent with information recorded in EMTS . ( vii ) Feedstock is not renewable fuel for which RINs were previousl y 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 E MTS. (ii) Production process is consistent with D code being used as permitted under Table 1 to §80.1426 or a petition approved through §80.1416. (iii) Mass and energy

balances are appropriate for ty pe and size of facilit y. (iv) If applicable, process - rel ated factors used in feedstock energy (FE) calculation are accurate, in particular the converted fraction CF. (3) RI N generation - related components . (i) Renewable fuel was intended and sold for qualifying uses as transportation fuel, heating oil, or jet fuel. (ii) Certificates of anal ys is verifying fuel t ype and quality, as applicable. (iii) Renewable fuel ty

pe matches the D code being used. ( iv ) If applicable, renewable content R is accurate pursuant to 80.1426(f)(9). ( v ) Equivalence value EV is accurate and appropriate.*** E.O. 12866 Review
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( vi ) Volume production capacity matches RFS registration. (vii) Verify

that appropriate RI

N generation calculations are being followed under §80.1426(f)(3), (4), or (5), as applicable. (4) RI N separation - related components . (i) If applicable, verify

that RI N 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) Each QAP shall represent a specific RI N - generating pathway

as provided in Table 1 to §80.1426 or as approved by the Administrator pursuant to §80.1416, and shall contain elements specific to particular feedstocks, production processes, and fuel types as applicable. (d) Submission and approv al of a QAP. (1) Each independent third - part y auditor shall annually submit a QAP to the EPA which demonstrates adherence to the requirements of paragraphs (a) and (c) or (b) and (c) of this section, as applicable, and request approval on forms and using procedures specified by the Administrator. (2) No third - part y independent auditor may present a QAP as approved b y the EPA without having received written approval from the EPA. (3) A QAP is approved on the date that EPA notifies the third - part y indep endent auditor of such approval. (4) 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) EPA may

void ab initio its approval of a QAP upon 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, an y of the requirements of the QAP. (e) Conditions for revisions of a QAP. (1) A new QAP shall be submitted to EPA according to paragraph (d) of this section whenever the following changes occur at a production facility audited b y a third - part y independent auditor using an approved QAP: (i) C hange in feedstock. (ii) Change in ty

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(iii) Change in facility

operations or equipment that may impact the capability

of the QAP to verify

that RINs are validl y generated. (2 ) An original QAP ceases to be valid as the basis for verifying RINs until a new QAP, submitted to EPA under this paragraph (e), is approved pursuant to paragraph (d). 17 . Section 80.1470 is added as follows: **§80.1470 RIN Replacement Mechanisms for Option A Independent Third Party**  **Auditors.** (a) Applicability . This section applies to independent third part y auditors using a QAP approved under Option A pursuant to §80.1469(a) and (c). (b) Requirements . An independent third party auditor must establish or participate in the establishment of a RI

N replacement mechanism. The RIN replacement mechanism must fulfill, at a minimum, the following conditions: (1) The RIN replacement mechanism must be capable of fulfilling the independent third party auditor’s RIN replacement responsibility , as describe d in section 1474(b)(5)(i ) of this subpart. (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 b y the RIN replacement mechanism (if an y) 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 - part y auditor. (5) An originall y signed duplicate of the agreement or contract establishing the RIN replacement mechanism must be submitted to EPA by the independent third party auditor in accordance with 40 CFR § 1450(g)(7). (6) An y substantive change to the agreement establishing the RIN replacement mechanism must be submitted to EPA within 30 day s of the change. (c) Cap on RIN Replacement for Independent Third Party Auditors of A
-RINs. (1) The cap on RIN replacement for auditors of A - RI Ns shall appl y to A - RINs generated in 2013, 2014, and 2015. (2) If required to replace invalid A - RI Ns pursuant to paragraph (b) of this section, the independent third part y auditor shall be required to r eplace no more than 2% of each D code*** E.O. 12866 Review
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of A - RI Ns verified b y the auditor in the current calendar ye ar and four previous calendar ye ars. (3) The auditor's potential replacement responsibility for a given RIN will expire at the end of the fourth calendar ye ar after the calendar year in which the RIN was verified. (4) The minimum RI

N replacement coverage (RRC) that must be held by the third - part y auditor's RIN replacement mechanism is the lesser of: (i)

= 0 . 02 × Where: RRC y = RI

N replacement coverage in ye ar y in units of A - RI Ns that the mechanism is capable of replacing y = The current year ARI NVERy - i = The sum of all A - RI Ns of a particular D code verified by the third party auditor in year y - i or (ii) RRC y = 0.02 × AR INVER y + RRC y - 1  ARINREP y - 1 , Where: RRC y = RI

N replacement coverage in ye ar y in units of A - RI Ns that the mechanism is capable of replacing y = The current year ARI NVERy = The sum of all A - RI Ns of a particular D code verified by the third party auditor in year y RRC y - 1 = RI

N replacement coverage in ye ar y - 1 in units of A - RI Ns that the mechanism is capable of replacing ARI NREP y - 1 = The sum of all A - RI Ns of a particular D code that were replaced by the third - part y auditor in year y - 1 (d) The cap on RIN replacement does not appl y 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 properl y or full y.*** E.O. 12866 Review
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18 . Section 80.1471 is added as follows: **§80.1471 Requirements for QAP Auditors**  (a) QAP audits conducted pursuant to §80.1472 must be conducted b y an independent third - party auditor that is a professional engineer, as specified in paragraphs §80.1450(b)(2)(i)(A) an d §80.1450(b)(2)(i)(B). (b) To be considered an independent third - part y auditor under paragraph §80.1471(a): (1) The independent third - part y auditor shall not be owned or operated b y the renewable fuel producer or foreign ethanol producer, or an y subsidiary or employee of the renewable fuel producer or foreign ethanol producer. (2) The independent third - part y auditor shall be free from an y interest in the renewable fuel producer or foreign ethanol producer's business. (3) The renewable fuel produ cer or foreign renewable fuel producer shall be free from an y interest in the third - part y auditor's business. (4) The independent third - part y auditor 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. (c) Independent third - party auditors shall maintain professional liability insurance, as defined in 31 CFR 50.5(q), of a minimum amount equal to 2% of the RI Ns the auditor verifies in a ye ar to cover replacement of an y invalid verified RINs due to auditor error, omission, or negligence. Independent third - part y auditors shall use insurance providers that possess a financial strength rating in the top four categories from either 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. Replacement of an y such invalid verified RINs is not subject to the cap on RIN replacement set forth in §80.1474(e). (d)(1) In the event that an independent third - party auditor identi fies a RIN that may have been invalidly generated, the independent third - part y auditor shall, within 24 hours, send notification of the potentially invalidl y generated RI

N to EPA and the renewable fuel producer that generated the RIN. (2) The independent third - part y auditor shall provide the notification required under paragraph (d)(1) of this section in writing (which includes e - mail or facsimile) and, if requested b y the part y being notified of a potentially invalidly generated RIN, by telephone.*** E.O. 12866 Review
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(e) T he independent third - part y 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), RINs shall be designated as A - RI

Ns. (2) For RINs verified under QAP Option B pursuant to §80.1469(b), RINs shall be designated as B - RI

Ns. (3) The independent third - part y auditor shall not indentify RINs generated from a renewable fuel producer or foreign renewable fue l producer as having been verified under a QAP if a revised QAP must be submitted to and approved by EPA under §80.1469(e). (f) (1) Except as specified in paragraph (f)(2) of this section, auditors may onl y verify

RINs that have been generated after the a udit required under §80.1472 has been completed. (i) For A - RI

Ns, ongoing monitoring must have been initiated. (ii) Verification of RINs may continue for no more than 100 day s following an audit. (2) Auditors may

verify RINs that were generated before th e audit required under §80.1472 has been completed, under the following conditions: (i) The RINs in question were generated between January 1, 2013 and December 31, 2013 inclusive. (ii) The audit is completed between January 1, 2013 and the effective date of the final rule . (iii) The audit is performed in accordance with the elements specified in a QAP that has been approved b y the EPA per §80.1469(c). (iv) The audit requirements of §80.1472(e)(1) are met for every batch of renewabl e fuel for which RINs were generated and are being verified. (v) The auditor may

not perform more than one (1) audit under this subparagraph for an y single RIN generator. (g) The independent third - part y auditor shall permit any representative of EPA to m onitor at any time the implementation of QAPs and renewable fuel production facility audits. (h) An y person who fails to meet a requirement under (f)(1) of this section shall be subject to a separate violation pursuant to section 1460(f) of this subpart. 19 . Section 80.1472 is added as follows:*** E.O. 12866 Review
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**§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) or an Option B QAP per §80.1469(b ). (3) Each audit shall verify every element contained in an applicable and approved QAP. (4) Each audit shall include direct contact with all feedstock suppliers to the facility to obtain documents related to the feedstocks used in the production of renewable fuel at the facility . (5) Each audit shall include a review of documents generated by the renewable fuel produce r. (6) Each audit shall include direct contact with all purchasers of renewable fuel produced at the facility

to obtain documents related to renewable fuel purchased from the facilit y. (b) On - site visits. (1) Option A QAP . (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 day s 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 ph ys ical attributes of the renewable fuel production facili ty , except for any

phy sical attribute that is verified through remote monitoring equipment per the applicable QAP. (2) Option B QAP. ( i) The auditor shall conduct an on - site visit at the renewable fuel production facility at least 4 time s per calendar year . (ii) The on - site visit specified in paragraph (b)(2)(i) of this section shall be occur at least 60 day s after the previous on - site visit. The 60 - day period shall start the day after the previous on - site visit ends.*** E.O. 12866 Review
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(iii ) An on - site visit shall include ve rification of all QAP elements that require inspection or evaluation of the ph ys ical attributes of the renewable fuel production facility .

20 . Section 80.1473 is added as follows: **§80.1473 Affirmative Defenses** (a) An y 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 §80.1473 (c) or (d) are met. (b) Appl icability of affirmative defenses. The following provisions appl y t o affirmative defenses asserted under subsection (a) of this section: (1) Affirmative defenses only appl y to RINs that were invalidl y generated and verified through a quality

assurance au dit using an EPA - approved Option A or Option B QAP. (2) Affirmative defenses only appl y 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 part y’s RVO (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. To establish an affirmative defense to a violation of §80.1460 (b)(2) or (c) (1) involving invalid A - RI Ns, the person must meet the notification requirements of §80.1473(e) and prove by a preponderance of evidence that: (1) The RIN in question was verified through a quality assurance audit pursuant to §80.1472 using an approved Op tion A QAP as defined 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 b y the independent third - party auditor. (3) If the person self

- identified the RI

N as having been inval idly generated, the person notified EPA within the next business day of discovering the invalidity .*** E.O. 12866 Review
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(4) The person did not cause the invalidity . (5) The person did not have a financial interest in the company that generated the invalid RI N. (d) Asserting an affirmative defense for invalid B
-RINs. To establish an affirmative defense to a violation of §80.1460 (b)(2) or (c)(1) involving invalid B - RI Ns, the person must meet the notification requirements of §80.1473(e) and prove by a preponderan ce of evidence that: (1) The RIN in question was verified through a quality assurance audit pursuant to §80.1472 using an approved Option B QAP as defined in §80.1469(b). (2) The person did not know or have reason to know that the RINs were invalidly gen erated at the time of transfer or use for compliance, unless a remedial action as defined in §80.1474 was implemented. (3) If the person self

- identified the RI

N as having been invalidly generated, the person notified EPA within the next business d ay 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 RI N. (6) If the person used the invalid B - RI N for compliance, the person adjusted i ts records, reports, and compliance calculations in which the invalid B - RI N was used as required b y §80.1431, unless a remedial action as defined in §80.1474 was implemented. (e) Notification Requirements. A person asserting an affirmative defense to a violation of §80.1460 (b)(2) or §80.1460(c)(1), arising from the transfer or use of an invalid A - RI N or B RI N, must submit a written report to the EPA, including all pertinent supporting documentation, demonstrating that the requirements of §80.1473(c) or (d) were met. The written report must be submitted within 30 day s of the person discovering the invalidit y.*** E.O. 12866 Review
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Page 147 of 149 21 . Section 80.1474 is added as follows: **§ 80.1474 Replacement Requirements for Invalidly Generated RINs.** (a) Responsibility for replacement of invalid verified RINs. (1) The generator of the A - RI N and the independent third - part y auditor that verified the A RI N are required to replace invalidly generated A - RI Ns with valid RINs pursuant to the procedures specified i n paragraph (b) of this section. (2) The generator of the B - RI N and the obligated party that owns the B - RIN are required to replace invalidly

generated B - RI

Ns with valid RINs pursuant to the procedures specified in paragraph (b) of this section. (3) The producer of an unverified RIN and the obligated part y 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) An y R IN can be identified as a PIR b y the RIN generator, an independent third - party auditor that verified the RI N, or EPA. (2) For PIRs identified by the RIN generator, the generator is required to notify EPA within 24 hours of the identification, including a detailed explanation of why the RIN is believed to be invalid, and is required to take one of the following corrective actions within 30 day s: (i) Retire the PIR, or (ii) Retire a valid RIN meeting the requirements of paragraph (c) of this section. (3) For PIRs identified by the independent third - party auditor that verified the RI N, the independent third - party

auditor is required to notify EPA and the RIN generator in writing within 24 hours of the identificatio n, including a detailed explanation of why the RI N is believed to be invalid. (4) Within 30 day s of being notified by EPA or the independent third - part y 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 EPA identifies a RIN as a PIR: (A) Retire the PIR, (B ) Retire a valid RIN following the requirements of paragraph (c) of this section, or (C ) Submit a demonstration in writing to EPA that the PIR is valid.*** E.O. 12866 Review
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Page 148 of 149 ( 1 ) If EPA determines that the demonstration is satisfactory , the PIR will be deemed to be a valid RIN. ( 2 ) If 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 (c) of this section within 30 day s of notification by

EPA. (ii) In the event that the independent third - part y auditor identifies a RIN as a PIR: (A) Retire the PIR, (B) Retire a valid RIN following the requirements of paragraph (c) of this section, or (C) Submit a demonstration in writing to the independent third - part y auditor that the PIR is valid. ( 1 ) If the independent third - part y auditor determines that the demonstration is satisfac tory , the PIR will be deemed to be a valid RI N. ( 2 ) If the independent third - part y auditor determines that the demonstration is not satisfactory , 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 RI N following the requirements of paragraph (c) of this section within 30 day s of notification by EPA. (5) Within 60 day s of receiving a notification from EPA that a PIR generator has fai led to perform a corrective action required pursuant to this section, (i) For A - RI

Ns, the independent third - part y auditor that verified the PIR is required to retire valid RINs meeting the requirements of paragraph (c) of this section. (ii) For B - RI

Ns an d unverified RINs, the obligated party that owns the PIR is required to either (A) Retire the PIR. (B) If the PIR has already been used for compliance with the obligated party’s RVO, correct the RVO to subtract the PIR. (c) 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 RI N, it must be of the same verification ty pe, either A - RI

N, B - RIN, or unverified . 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 RI N it is replacing , as specified in paragraph (a)(2) of §80. 1427 . (2) The number of RINs retired must be equal to the number of PIRs or invalid RI Ns being replaced, subject to paragraph (d) of this section and paragraph (c) of §80.1470 . (d) Limited Exemption for invalid B
-RINs.*** E.O. 12866 Review
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Page 149 of 149 (1) In the event that an obligated party is required to retire or replace a PIR that is a B - RI N pursuant to paragraph (b) of this section, the obligated part y will be afforded a “limited exemption” equal to 2% of its annual Renewable Volume Obligation (RVO ) for calendar ye ars 2013 and 2014. (2) Limited exemptions are calculated as follows: LE CB,i = 0.02 × RVO CB,i LE BBD,i = 0.02 × RVO BBD,i LE AB,i = 0.02 × RVO AB,i LE RF ,i = 0.02 × RVO RF,i Where: LE CB,i = Limited exemption for cellulosic biofuel for year i LE BBD,i = Limited exemption for biomass - based diesel for year i LE AB,i = Limited exemption for advanced biofuel for ye ar i LE RF ,i = Limited exemption for renewable for ye ar i RVO CB,i = The Renewable Volume Obligation for cellulosic bi ofuel for the obligated

party for calendar year i, in gallons, pursuant to §80.1407. RVO BBD,i = The Renewable Volume Obligation for biomass - based diesel for the obligated

party for calendar year i after 2010, in gallons, pursuant to §80.1407. RVO AB,i = The Renewable Volume Obligation for advanced biofuel for the obligated

party for calendar year i, in gallons, pursuant to §80.1407. RVO RF,i = The Renewable Volume Obligation for renewable fuel for the obligated party

for calendar ye ar i, in gallons, pursuant to §80.1407. (3) If the number of invalidly generated B - RI

Ns 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 - RI

Ns 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 - RI Ns equal to 2% of the obligated part y's RVO is excused. (5) The limited exemption applies only in calendar years 2013 and 2014. (e ) Failure to Take Corrective Action. Any person who fails to meet a requirement under paragraph (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 section 1460(f) of this subpart.