Regulation of Fuels and Fuel Additives: Renewable Fuel Standard Program
[Federal Register: May 1, 2007 (Volume 72, Number 83)]
[Rules and Regulations]
[Page 23999-24014]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01my07-10]
[[pp. 23999-24014]]
Regulation of Fuels and Fuel Additives:
Renewable Fuel Standard Program
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(1) If the equivalence value for the spilled volume may be
determined pursuant to Sec. 80.1115 based on its composition, then the
appropriate equivalence value shall be used.
(2) If the equivalence value for a spilled volume of renewable fuel
cannot be determined, the equivalence value shall be 1.0.
(c) If the owner of a volume of renewable fuel that is spilled and
reported establishes that no RINs were generated to represent the
volume, then no gallon-RINs shall be retired.
(d) A RIN that is retired under paragraph (b) of this section:
(1) Must be reported as a retired RIN in the applicable reports
under Sec. 80.1152.
(2) May not be transferred to another party or used by any
obligated party to demonstrate compliance with the party's Renewable
Volume Obligation.
Sec. Sec. 80.1133 through 80.1140 [Reserved]
? 10. Sections 80.1133 through 80.1140 are reserved.
? 11. Sections 80.1141 through 80.1143 are added to read as follows:
Sec. 80.1141 Small refinery exemption.
(a)(1) Gasoline produced at a refinery by a refiner, or foreign
refiner (as defined at Sec. 80.1165(a)), is exempt from the renewable
fuel standards of Sec. 80.1105 if that refinery meets the definition
of a small refinery under Sec. 80.1101(g) for calendar year 20460.
(2) This exemption shall apply through December 31, 2010, unless a
refiner chooses to waive this exemption (as described in paragraph (f)
of this section), or the exemption is extended (as described in
paragraph (e) of this section).
(3) For the purposes of this section, the term ``refiner'' shall
include foreign refiners.
(b)(1) The small refinery exemption is effective immediately,
except as specified in paragraph (b)(4) of this section.
(2) A refiner owning a small refinery must submit a verification
letter to EPA containing all of the following information:
(i) The annual average aggregate daily crude oil throughput for the
period January 1, 2004, through December 31, 2004 (as determined by
dividing the aggregate throughput for the calendar year by the number 365).
(ii) A letter signed by the president, chief operating or chief
executive officer of the company, or his/her designee, stating that the
information contained in the letter is true to the best of his/her
knowledge, and that the company owned the refinery as of January 1, 2004.
(iii) Name, address, phone number, facsimile number, and e-mail
address of a corporate contact person.
(3) Verification letters must be submitted by August 31, 2007, to
one of the addresses listed in paragraph (h) of this section.
(4) For foreign refiners the small refinery exemption shall be
effective upon approval, by EPA, of a small refinery application. The
application must contain all of the elements required for small
refinery verification letters (as specified in paragraph (b)(2) of this
section), must satisfy the provisions of Sec. 80.1165(f) through (h)
and (o), and must be submitted by August 31, 2007 to one of the
addresses listed in paragraph (h) of this section.
(c) If EPA finds that a refiner provided false or inaccurate
information regarding a refinery's crude throughput (pursuant to
paragraph (b)(2)(i) of this section) in its small refinery verification
letter, the exemption will be void as of the effective date of these
regulations.
(d) If a refiner is complying on an aggregate basis for multiple
refineries, any such refiner may exclude from the calculation of its
Renewable Volume Obligation (under Sec. 80.1107(a)) gasoline from any
refinery receiving the small refinery exemption under paragraph (a) of
this section.
(e)(1) The exemption period in paragraph (a) of this section shall
be extended by the Administrator for a period of not less than two
additional years if a study by the Secretary of Energy determines that
compliance with the requirements of this subpart would impose a
disproportionate economic hardship on the small refinery.
(i) A refiner may at any time petition the Administrator for an
extension of its small refinery exemption under paragraph (a) of this
section for the reason of disproportionate economic hardship.
(ii) A petition for an extension of the small refinery exemption
must specify the factors that demonstrate a disproportionate economic
hardship and must provide a detailed discussion regarding the inability
of the refinery to produce gasoline meeting the requirements of Sec.
80.1105 and the date the refiner anticipates that compliance with the
requirements can be achieved at the small refinery.
(2) The Administrator shall act on such a petition not later than
90 days after the date of receipt of the petition.
(f) At any time, a refiner with an approved small refinery
exemption under paragraph (a) of this section may waive that exemption
upon notification to EPA.
(1) A refiner's notice to EPA that it intends to waive its small
refinery exemption must be received by November 1 to be effective in
the next compliance year.
(2) The waiver will be effective beginning on January 1 of the
following calendar year, at which point the gasoline produced at that
refinery will be subject to the renewable fuels standard of Sec. 80.1105.
(3) The waiver must be sent to EPA at one of the addresses listed
in paragraph (h) of this section.
(g) A refiner that acquires a refinery from either an approved
small refiner (as defined under Sec. 80.1142(a)) or another refiner
with an approved small refinery exemption under paragraph (a) of this
section shall notify EPA in writing no later than 20 days following the
acquisition.
(h) Verification letters under paragraph (b) of this section,
petitions for small refinery hardship extensions under paragraph (e) of
this section, and small refinery exemption waivers under paragraph (f)
of this section shall be sent to one of the following addresses:
(1) For U.S. mail: U.S. EPA--Attn: RFS Program, 6406J, 1200
Pennsylvania Avenue, NW., Washington, DC 20460.
(2) For overnight or courier services: U.S. EPA, Attn: RFS Program,
6406J, 1310 L Street, NW., 6th floor, Washington, DC 20005.
Sec. 80.1142 What are the provisions for small refiners under the RFS
program?
(a) (1) Gasoline produced by a refiner, or foreign refiner (as
defined at Sec. 80.1165(a)), is exempt from the renewable fuel
standards of Sec. 80.1105 if the refiner or foreign refiner does not
meet the definition of a small refinery under Sec. 80.1101(g) but
meets all of the following criteria:
(i) The refiner produced gasoline at its refineries by processing
crude oil through refinery processing units from January 1, 2004
through December 31, 2004.
(ii) The refiner employed an average of no more than 1,500 people,
based on the average number of employees for all pay periods for
calendar year 2004 for all subsidiary companies, all parent companies,
all subsidiaries of the parent companies, and all joint venture partners.
(iii) The refiner had a corporate-average crude oil capacity less
than or equal to 155,000 barrels per calendar day (bpcd) for 2004.
(2) The small refiner exemption shall apply through December 31,
2010, unless a refiner chooses to waive the
[[Page 24000]]
exemption (pursuant to paragraph (h) of this section) prior to that date.
(3) For the purposes of this section, the term ``refiner'' shall
include foreign refiners.
(b) The small refiner exemption is effective immediately, except as
provided in paragraph (d) of this section. Refiners who qualify for the
small refiner exemption under paragraph (a) of this section must submit
a verification letter (and any other relevant information) to EPA
containing all of the following information for the refiner and for all
subsidiary companies, all parent companies, all subsidiaries of the
parent companies, and all joint venture partners:
(1)(i) A listing of the name and address of each company location
where any employee worked for the period January 1, 2004 through
December 31, 2004.
(ii) The average number of employees at each location based on the
number of employees for each pay period for the period January 1, 2004
through December 31, 2004.
(iii) The type of business activities carried out at each location.
(iv) For joint ventures, the total number of employees includes the
combined employee count of all corporate entities in the venture.
(v) For government-owned refiners, the total employee count
includes all government employees.
(2) The total corporate crude oil capacity of each refinery as
reported to the Energy Information Administration (EIA) of the U.S.
Department of Energy (DOE), for the period January 1, 2004 through
December 31, 2004. The information submitted to EIA is presumed to be
correct. In cases where a company disagrees with this information, the
company may petition EPA with appropriate data to correct the record
when the company submits its verification letter.
(3) The verification letter must be signed by the president, chief
operating or chief executive officer of the company, or his/her
designee, stating that the information is true to the best of his/her
knowledge, and that the company owned the refinery as of December 31, 2004.
(4) Name, address, phone number, facsimile number, and e-mail
address of a corporate contact person.
(c) Verification letters under paragraph (b) of this section must
be submitted by September 1, 2007.
(d) For foreign refiners the small refiner exemption shall be
effective upon approval, by EPA, of a small refiner application. The
application must contain all of the elements required for small refiner
verification letters (as specified in paragraphs (b)(1), (b)(3), and
(b)(4) of this section), must demonstrate compliance with the crude oil
capacity criterion of paragraph (a)(1)(iii) of this section, must
satisfy the provisions of Sec. 80.1165(f) through (h) and (o), and
must be submitted by September 1, 2007 to one of the addresses listed
in paragraph (j) of this section.
(e) A refiner who qualifies as a small refiner under this section
and subsequently fails to meet all of the qualifying criteria as set
out in paragraph (a) of this section will have its small refiner
exemption terminated effective January 1 of the next calendar year;
however, disqualification shall not apply in the case of a merger
between two approved small refiners.
(f) If EPA finds that a refiner provided false or inaccurate
information in its small refiner status verification letter under this
subpart, the small refiner's exemption will be void as of the effective
date of these regulations.
(g) If a small refiner is complying on an aggregate basis for
multiple refineries, the refiner may exempt the refineries from the
calculation of its Renewable Volume Obligation under Sec. 80.1107.
(h) (1) A refiner may, at any time, waive the small refiner
exemption under paragraph (a) of this section upon notification to EPA.
(2) A refiner's notice to EPA that it intends to waive the small
refiner exemption must be received by November 1 in order for the
waiver to be effective for the following calendar year. The waiver will
be effective beginning on January 1 of the following calendar year, at
which point the refiner will be subject to the renewable fuel standard
of Sec. 80.1105.
(3) The waiver must be sent to EPA at one of the addresses listed
in paragraph (j) of this section.
(i) Any refiner that acquires a refinery from another refiner with
approved small refiner status under paragraph (a) of this section shall
notify EPA in writing no later than 20 days following the acquisition.
(j) Verification letters under paragraph (b) of this section and
small refiner exemption waivers under paragraph (h) of this section
shall be sent to one of the following addresses:
(1) For U.S. Mail: U.S. EPA--Attn: RFS Program, 6406J, 1200
Pennsylvania Avenue, NW., Washington, DC 20460.
(2) For overnight or courier services: U.S. EPA, Attn: RFS Program,
6406J, 1310 L Street, NW., 6th floor, Washington, DC 20005.
Sec. 80.1143 What are the opt-in provisions for noncontiguous states
and territories?
(a) A noncontiguous state or United States territory may petition
the Administrator to opt-in to the program requirements of this subpart.
(b) The Administrator will approve the petition if it meets the
provisions of paragraphs (c) and (d) of this section.
(c) The petition must be signed by the Governor of the state or his
authorized representative (or the equivalent official of the territory).
(d)(1) A petition submitted under this section must be received by
the Agency by November 1 for the state or territory to be included in
the RFS program in the next calendar year.
(2) A petition submitted under this section should be sent to
either of the following addresses:
(i) For U.S. Mail: U.S. EPA--Attn: RFS Program, 6406J, 1200
Pennsylvania Avenue, NW., Washington, DC 20460.
(ii) For overnight or courier services: U.S. EPA, Attn: RFS
Program, 6406J, 1310 L Street, NW., 6th floor, Washington, DC 20005.
(e) Upon approval of the petition by the Administrator:
(1) EPA shall calculate the standard for the following year,
including the total gasoline volume for the State or territory in question.
(2) Beginning on January 1 of the next calendar year, all gasoline
refiners and importers in the state or territory for which a petition
has been approved shall be obligated parties as defined in Sec. 80.1106.
(3) Beginning on January 1 of the next calendar year, all renewable
fuel producers in the State or territory for which a petition has been
approved shall, pursuant to Sec. 80.1126(a)(2), be required to
generate RINs and assign them to batches of renewable fuel.
Sec. Sec. 80.1144 through 80.1149 [Reserved]
? 12. Sections 80.1144 through 80.1149 are reserved.
? 13. Sections 80.1150 through 80.1155 are added to read as follows:
Subpart K--Renewable Fuel Standard
* * * * *
Sec.
80.1150 What are the registration requirements under the RFS program?
80.1151 What are the recordkeeping requirements under the RFS program?
80.1152 What are the reporting requirements under the RFS program?
80.1153 What are the product transfer document (PTD) requirements
for the RFS program?
80.1154 What are the provisions for renewable fuel producers and
importers who produce or import less than 10,000 gallons of
renewable fuel per year?
[[Page 24001]]
80.1155 What are the additional requirements for a producer of
cellulosic biomass ethanol or waste derived ethanol?
* * * * *
Sec. 80.1150 What are the registration requirements under the RFS program?
(a) Any obligated party described in Sec. 80.1106 and any exporter
of renewable fuel described in Sec. 80.1130 must provide EPA with the
information specified for registration under Sec. 80.76, if such
information has not already been provided under the provisions of this
part. An obligated party or an exporter of renewable fuel must receive
EPA-issued identification numbers prior to engaging in any transaction
involving RINs. Registration information may be submitted to EPA at any
time after promulgation of this rule in the Federal Register.
(b) Any importer or producer of a renewable fuel must provide EPA
the information specified under Sec. 80.76, if such information has
not already been provided under the provisions of this part, and must
receive EPA-issued company and facility identification numbers prior to
generating or assigning any RINs. Registration information may be
submitted to EPA at any time after promulgation of this rule in the
Federal Register.
(c) Any party who owns or intends to own RINs, but who is not
covered by paragraphs (a) and (b) of this section, must provide EPA the
information specified under Sec. 80.76, if such information has not
already been provided under the provisions of this part and must
receive an EPA-issued company identification number prior to owning any
RINs. Registration information may be submitted to EPA at any time
after promulgation of this rule in the Federal Register.
(d) Registration shall be on forms, and following policies,
established by the Administrator.
Sec. 80.1151 What are the recordkeeping requirements under the RFS
program?
(a) Beginning September 1, 2007, any obligated party (as described
at Sec. 80.1106) or exporter of renewable fuel (as described at Sec.
80.1130) must keep all of the following records:
(1) Product transfer documents consistent with Sec. 80.1153 and
associated with the obligated party's activity, if any, as transferor
or transferee of renewable fuel.
(2) Copies of all reports submitted to EPA under Sec. 80.1152(a).
(3) Records related to each RIN transaction, which includes all the
following:
(i) A list of the RINs owned, purchased, sold, retired or expired.
(ii) The parties involved in each RIN transaction including the
transferor, transferee, and any broker or agent.
(iii) The date of the transfer of the RIN(s).
(iv) Additional information related to details of the transaction
and its terms.
(4) Records related to the use of RINs (by facility, if applicable)
for compliance, which includes all the following:
(i) Methods and variables used to calculate the Renewable Volume
Obligation pursuant to Sec. 80.1107 or Sec. 80.1130.
(ii) List of RINs used to demonstrate compliance.
(iii) Additional information related to details of RIN use for
compliance.
(b) Beginning September 1, 2007, any producer or importer of a
renewable fuel as defined at Sec. 80.1101(d) must keep all of the
following records:
(1) Product transfer documents consistent with Sec. 80.1153 and
associated with the renewable fuel producer's or importer's activity,
if any, as transferor or transferee of renewable fuel.
(2) Copies of all reports submitted to EPA under Sec. 80.1152(b).
(3) Records related to the generation and assignment of RINs for
each facility, including all of the following:
(i) Batch volume in gallons.
(ii) Batch number.
(iii) RIN number as assigned under Sec. 80.1126.
(iv) Identification of batches meeting the definition of cellulosic
biomass ethanol.
(v) Date of production or import.
(vi) Results of any laboratory analysis of batch chemical
composition or physical properties.
(vii) Additional information related to details of RIN generation.
(4) Records related to each RIN transaction, including all of the
following:
(i) A list of the RINs owned, purchased, sold, retired or expired.
(ii) The parties involved in each transaction including the
transferor, transferee, and any broker or agent.
(iii) The date of the transfer of the RIN(s).
(iv) Additional information related to details of the transaction
and its terms.
(5) Records related to the production or importation of any volume
of renewable fuel that the renewable fuel producer or importer
designates as motor vehicle fuel and the use of the fuel as motor
vehicle fuel.
(c) Beginning September 1, 2007, any producer of a renewable fuel
defined at Sec. 80.1101(d) must keep verifiable records of the following:
(1) The amount and type of fossil fuel and waste material-derived
fuel used in producing on-site thermal energy dedicated to the
production of ethanol at plants producing cellulosic biomass ethanol
through the displacement of 90 percent or more of the fossil fuel
normally used in the production of ethanol, as described at Sec.
80.1101(a)(2).
(2) The amount and type of feedstocks used in producing cellulosic
biomass ethanol as defined in Sec. 80.1101(a)(1).
(3) The equivalent amount of fossil fuel (based on reasonable
estimates) associated with the use of off-site generated waste heat
that is used in the production of ethanol at plants producing
cellulosic biomass ethanol through the displacement of 90 percent or
more of the fossil fuel normally used in the production of ethanol, as
described at Sec. 80.1101(a)(2).
(4) The plot plan and process flow diagram for plants producing
cellulosic biomass and waste derived ethanol as defined in Sec.
80.1101(a) and (b), respectively.
(5) The independent third party verification required under Sec.
80.1155 for producers of cellulosic biomass ethanol and waste derived
ethanol.
(d) Beginning September 1, 2007, any party, other than those
parties covered in paragraphs (a) and (b) of this section, that owns
RINs must keep all of the following records:
(1) Product transfer documents consistent with Sec. 80.1153 and
associated with the party's activity, if any, as transferor or
transferee of renewable fuel.
(2) Copies of all reports submitted to EPA under Sec. 80.1152(c).
(3) Records related to each RIN transaction, including all of the
following:
(i) A list of the RINs owned, purchased, sold, retired or expired.
(ii) The parties involved in each RIN transaction including the
transferor, transferee, and any broker or agent.
(iii) The date of the transfer of the RIN(s).
(iv) Additional information related to details of the transaction
and its terms.
(e) The records required under this section and under Sec. 80.1153
shall be kept for five years from the date they were created, except
that records related to transactions involving RINs shall be kept for
five years from the date of transfer.
(f) On request by EPA, the records required under this section and
under Sec. 80.1153 must be made available to the Administrator or the
Administrator's authorized representative. For records that are
electronically generated or maintained, the equipment or software
[[Page 24002]]
necessary to read the records shall be made available; or, if requested
by EPA, electronic records shall be converted to paper documents.
Sec. 80.1152 What are the reporting requirements under the RFS program?
(a) Any obligated party described in Sec. 80.1106 or exporter of
renewable fuel described in Sec. 80.1130 must submit to EPA reports
according to the schedule, and containing the information, that is set
forth in this paragraph (a).
(1) An annual compliance demonstration report for the previous
compliance period shall be submitted every February 28, except as noted
in paragraph (a)(1)(x) of this section, and shall include all of the
following information:
(i) The obligated party's name.
(ii) The EPA company registration number.
(iii) Whether the party is complying on a corporate (aggregate) or
facility-by-facility basis.
(iv) The EPA facility registration number, if complying on a
facility-by-facility basis.
(v) The production volume of all of the products listed in Sec.
80.1107(c) for the reporting year.
(vi) The renewable volume obligation (RVO), as defined in Sec.
80.1127(a) for obligated parties and Sec. 80.1130(b) for exporters of
renewable fuel, for the reporting year.
(vii) Any deficit RVO carried over from the previous year.
(viii) The total current-year gallon-RINs used for compliance.
(ix) The total prior-years gallon-RINs used for compliance.
(x) A list of all RINs used for compliance in the reporting year.
For compliance demonstrations covering calendar year 2007 only, this
list shall be reported by May 31, 2008. In all subsequent years, this
list shall be submitted by February 28.
(xi) Any deficit RVO carried into the subsequent year.
(xii) Any additional information that the Administrator may require.
(2) The quarterly RIN transaction reports required under paragraph
(c)(1) of this section.
(3) The quarterly gallon-RIN activity reports required under
paragraph (c)(2) of this section.
(4) Reports required under this paragraph (a) must be signed and
certified as meeting all the applicable requirements of this subpart by
the owner or a responsible corporate officer of the obligated party.
(b) Any producer or importer of a renewable fuel must, beginning
November 30, 2007, submit to EPA reports according to the schedule, and
containing the information, that is set forth in this paragraph (b).
(1) A quarterly RIN-generation report for each facility owned by
the renewable fuel producer, and each importer, shall be submitted
according to the schedule specified in paragraph (d) of this section,
and shall include for the reporting period all of the following
information for each batch of renewable fuel produced or imported,
where ``batch'' means a discreet quantity of renewable fuel produced or
imported and assigned a unique RIN:
(i) The renewable fuel producer's or importer's name.
(ii) The EPA company registration number.
(iii) The EPA facility registration number.
(iv) The applicable quarterly reporting period.
(v) The RINs generated for each batch according to Sec. 80.1126.
(vi) The production date of each batch.
(vii) The type of renewable fuel of each batch, as defined in Sec.
80.1101(d).
(viii) Information related to the volume of denaturant and
applicable equivalence value of each batch.
(ix) The volume of each batch produced or imported.
(x) Any additional information the Administrator may require.
(2) The RIN transaction reports required under paragraph (c)(1) of
this section.
(3) The quarterly gallon-RIN activity report required under
paragraph (c)(2) of this section.
(4) Reports required under this paragraph (b) must be signed and
certified as meeting all the applicable requirements of this subpart by
the owner or a responsible corporate officer of the renewable fuel producer.
(c) Any party, including any party specified in paragraphs (a) and
(b) of this section, that owns RINs during a reporting period must,
beginning November 30, 2007, submit reports to EPA according to the
schedule, and containing the information, that is set forth in this
paragraph (c).
(1) A RIN transaction report for each RIN transaction shall be
submitted by the end of the quarter in which the transaction occurred,
according to the schedule specified in paragraph (d) of this section.
Each report shall include all of the following:
(i) The submitting party's name.
(ii) The party's EPA company registration number.
(iii) The party's facility registration number, if the report
required under paragraph (c)(2) of this section is submitted on a
facility-by-facility basis.
(iv) The applicable quarterly reporting period.
(v) Transaction type (RIN purchase, RIN sale, expired RIN, retired RIN).
(vi) Transaction date.
(vii) For a RIN purchase or sale, the trading partner's name.
(viii) For a RIN purchase or sale, the trading partner's EPA
company registration number. For all other transactions, the submitting
party's EPA company registration number.
(ix) RIN subject to the transaction.
(x) For a retired RIN, the reason for retiring the RIN (e.g.,
reportable spill under Sec. 80.1132, import volume correction under
Sec. 80.1166(k), renewable fuel used in boiler or heater under Sec.
80.1129(e), enforcement obligation).
(xi) Any additional information that the Administrator may require.
(2) A quarterly gallon-RIN activity report shall be submitted to
EPA according to the schedule specified in paragraph (d) of this
section. Each report shall summarize gallon-RIN activities for the
reporting period, separately for RINs separated from a renewable fuel
volume and RINs assigned to a renewable fuel volume. A RIN owner with
more than one facility may submit the report required under this
paragraph for each of its facilities individually, or for all of its
facilities in the aggregate. The quarterly gallon-RIN activity report
shall include all of the following information:
(i) The submitting party's name.
(ii) The party's EPA company registration number.
(iii) Whether the party is submitting the report required under
this paragraph on a corporate (aggregate) or facility-by-facility basis.
(iv) The party's EPA facility registration number, if the report
required under this paragraph is submitted on a facility-by-facility basis.
(v) Number of current-year gallon-RINs owned at the start of the
quarter.
(vi) Number of prior-years gallon-RINs owned at the start of the
quarter.
(vii) The total current-year gallon-RINs purchased.
(viii) The total prior-years gallon-RINs purchased.
(ix) The total current-year gallon-RINs sold.
(x) The total prior-years gallon-RINs sold.
(xi) The total current-year gallon-RINs retired.
(xii) The total prior-years gallon-RINs retired.
(xiii) The total current-year gallon-RINs expired (fourth quarter only).
(xiv) The total prior-years gallon-RINs expired (fourth quarter only).
[[Page 24003]]
(xv) Number of current-year gallon-RINs owned at the end of the quarter.
(xvi) Number of prior-years gallon-RINs owned at the end of the quarter.
(xvii) For parties reporting gallon-RIN activity under this
paragraph for RINs assigned to a volume of renewable fuel, the volume
of renewable fuel (in gallons) owned at the end of the quarter.
(xviii) Any additional information that the Administrator may require.
(3) All reports required under this paragraph (c) must be signed
and certified as meeting all the applicable requirements of this
subpart by the RIN owner or a responsible corporate officer of the RIN
owner.
(d) Quarterly reports shall be submitted to EPA by: May 31st for
the first calendar quarter of January through March; August 31st for
the second calendar quarter of April through June; November 30th for
the third calendar quarter of July through September; and February 28th
for the fourth calendar quarter of October through December. For 2007,
quarterly reports shall commence on November 30, 2007.
(e) Reports required under this section shall be submitted on forms
and following procedures as prescribed by EPA.
Sec. 80.1153 What are the product transfer document (PTD)
requirements for the RFS program?
(a) Any time that a person transfers ownership of renewable fuels
subject to this subpart, the transferor must provide to the transferee
documents identifying the renewable fuel and any assigned RINs which
include all of the following information as applicable:
(1) The name and address of the transferor and transferee.
(2) The transferor's and transferee's EPA company registration number.
(3) The volume of renewable fuel that is being transferred.
(4) The date of the transfer.
(5) Whether any RINs are assigned to the volume, as follows:
(i) If the assigned RINs are being transferred on the same PTD used
to transfer ownership of the renewable fuel, then the assigned RINs
shall be listed on the PTD.
(ii) If the assigned RINs are being transferred on a separate PTD
from that which is used to transfer ownership of the renewable fuel,
then the PTD which is used to transfer ownership of the renewable fuel
shall state the number of gallon-RINs being transferred as well as a
unique reference to the PTD which is transferring the assigned RINs.
(iii) If no assigned RINs are being transferred with the renewable
fuel, the PTD which is used to transfer ownership of the renewable fuel
shall state ``No RINs transferred''.
(b) Except for transfers to truck carriers, retailers, or wholesale
purchaser-consumers, product codes may be used to convey the
information required under paragraphs (a)(1) through (a)(4) of this
section if such codes are clearly understood by each transferee. The
RIN number required under paragraph (a)(5) of this section must always
appear in its entirety.
Sec. 80.1154 What are the provisions for renewable fuel producers and
importers who produce or import less than 10,000 gallons of renewable
fuel per year?
(a) Renewable fuel producers located within the United States that
produce less than 10,000 gallons of renewable fuel each year, and
importers who import less than 10,000 gallons of renewable fuel each
year, are not required to generate RINs or to assign RINs to batches of
renewable fuel. Such producers and importers that do not generate and/
or assign RINs to batches of renewable fuel are also exempt from all
the following requirements of this subpart K, except as stated in
paragraph (b) of this section:
(1) The registration requirements of Sec. 80.1150.
(2) The recordkeeping requirements of Sec. 80.1151.
(3) The reporting requirements of Sec. 80.1152.
(b) Renewable fuel producers and importers who produce or import
less than 10,000 gallons of renewable fuel each year and that generate
and/or assign RINs to batches of renewable fuel are subject to the
provisions of Sec. Sec. 80.1150 through 80.1152.
Sec. 80.1155 What are the additional requirements for a producer of
cellulosic biomass ethanol or waste derived ethanol?
(a) A producer of cellulosic biomass ethanol or waste derived
ethanol (hereinafter referred to as ``ethanol producer'' under this
section) is required to arrange for an independent third party to
review the records required in Sec. 80.1151(c) and provide the ethanol
producer with a written verification that the records support a claim that:
(1) The ethanol producer's facility is a facility that has the
capability of producing cellulosic biomass ethanol as defined in Sec.
80.1101(a) or waste derived ethanol as defined in Sec. 80.1101(b); and
(2) The ethanol producer produces cellulosic biomass ethanol as
defined in Sec. 80.1101(a) or waste derived ethanol as defined in
Sec. 80.1101(b).
(b) The verifications required under paragraph (a) of this section
must be conducted by a Professional Chemical Engineer who is based in
the United States and is licensed by the appropriate state agency,
unless the ethanol producer is a foreign producer subject to Sec. 80.1166.
(c) To be considered an independent third party under paragraph (a)
of this section:
(1) The third party shall not be operated by the ethanol producer
or any subsidiary of employee of the ethanol producer.
(2) The third party shall be free from any interest in the ethanol
producer's business.
(3) The ethanol producer shall be free from any interest in the
third party's business.
(4) Use of a third party that is 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, shall be deemed noncompliance with the
requirements of this section.
(d) The ethanol producer must obtain the written verification
required under paragraph (a)(1) of this section by February 28 of the
year following the first year in which the ethanol producer claims to
be producing cellulosic biomass ethanol or waste derived ethanol.
(e) The verification in paragraph (a)(2) of this section is
required for each calendar year that the ethanol producer claims to be
producing cellulosic biomass ethanol or waste derived ethanol. The
ethanol producer must obtain the written verification required under
paragraph (a)(2) of this section by February 28 for the previous
calendar year.
(f) The ethanol producer must retain records of the verifications
required under paragraph (a) of this section, as required in Sec.
80.1151(c)(5).
(g) The independent third party shall retain all records pertaining
to the verification required under this section for a period of five
years from the date of creation and shall deliver such records to the
Administrator upon request.
Sec. Sec. 80.1156 through 80.1159 [Reserved]
? 14. Sections 80.1156 through 80.1159 are reserved.
? 15. Sections 80.1160 and 80.1161 are added to read as follows:
Sec. 80.1160 What acts are prohibited under the RFS program?
(a) Renewable fuels producer or importer violation. Except as
provided in Sec. 80.1154, no person shall produce or
[[Page 24004]]
import a renewable fuel without assigning the proper RIN value or
identifying it by a RIN number as required under Sec. 80.1126.
(b) RIN generation and transfer violations. No person shall do any
of the following:
(1) Improperly generate a RIN (i.e., generate a RIN for which the
applicable renewable fuel volume was not produced).
(2) Create or transfer to any person a RIN that is invalid under
Sec. 80.1131.
(3) Transfer to any person a RIN that is not properly identified as
required under Sec. 80.1125.
(4) Transfer to any person a RIN with a K code of 1 without
transferring an appropriate volume of renewable fuel to the same person
on the same day.
(c) RIN use violations. No person shall do any of the following:
(1) Fail to acquire sufficient RINs, or use invalid RINs, to meet
the party's renewable fuel volume obligation under Sec. 80.1127.
(2) Fail to acquire sufficient RINs to meet the party's renewable
fuel volume obligation under Sec. 80.1130.
(3) Use a validly generated RIN to meet the party's renewable fuel
volume obligation under Sec. 80.1127, or separate and transfer a
validly generated RIN, where the party ultimately uses the renewable
fuel volume associated with the RIN in a heater or boiler.
(d) RIN retention violation. No person shall retain RINs in
violation of the requirements in Sec. 80.1128(a)(5).
(e) Causing a violation. No person shall cause another person to
commit an act in violation of any prohibited act under this section.
Sec. 80.1161 Who is liable for violations under the RFS program?
(a) Persons liable for violations of prohibited acts. (1) Any
person who violates a prohibition under Sec. 80.1160(a) through (d) is
liable for the violation of that prohibition.
(2) Any person who causes another person to violate a prohibition
under Sec. 80.1160(a) through (d) is liable for a violation of Sec.
80.1160(e).
(b) Persons liable for failure to meet other provisions of this
subpart. (1) Any person who fails to meet a requirement of any
provision of this subpart is liable for a violation of that provision.
(2) Any person who causes another person to fail to meet a
requirement of any provision of this subpart is liable for causing a
violation of that provision.
(c) Parent corporation liability. Any parent corporation is liable
for any violation of this subpart that is committed by any of its
subsidiaries.
(d) Joint venture liability. Each partner to a joint venture is
jointly and severally liable for any violation of this subpart that is
committed by the joint venture operation.
Sec. 80.1162 [Reserved]
? 16. Section 80.1162 is reserved.
? 17. Sections 80.1163 through 80.1167 are added to read as follows:
Subpart K--Renewable Fuel Standard
* * * * *
Sec.
80.1163 What penalties apply under the RFS program?
80.1164 What are the attest engagement requirements under the RFS program?
80.1165 What are the additional requirements under this Subpart for
a foreign small refiner?
80.1166 What are the additional requirements under this subpart for
a foreign producer of cellulosic biomass ethanol or waste derived ethanol?
80.1167 What are the additional requirements under this subpart for
a foreign RIN owner?
* * * * *
Sec. 80.1163 What penalties apply under the RFS program?
(a) Any person who is liable for a violation under Sec. 80.1161 is
subject to a civil penalty of up to $32,500, as specified in sections
205 and 211(d) of the Clean Air Act, for every day of each such
violation and the amount of economic benefit or savings resulting from
each violation.
(b) Any person liable under Sec. 80.1161(a) for a violation of
Sec. 80.1160(c) for failure to meet a renewable volume obligation, or
Sec. 80.1160(e) for causing another party to fail to meet a renewable
volume obligation, during any averaging period, is subject to a
separate day of violation for each day in the averaging period.
(c) Any person liable under Sec. 80.1161(b) for failure to meet,
or causing a failure to meet, a requirement of any provision of this
subpart is liable for a separate day of violation for each day such a
requirement remains unfulfilled.
Sec. 80.1164 What are the attest engagement requirements under the
RFS program?
The requirements regarding annual attest engagements in Sec. Sec.
80.125 through 80.127, and 80.130, also apply to any attest engagement
procedures required under this subpart. In addition to any other
applicable attest engagement procedures, the following annual attest
engagement procedures are required under this subpart.
(a) The following attest procedures shall be completed for any
obligated party as stated in Sec. 80.1106(a) or exporter of renewable
fuel that is subject to the renewable fuel standard under Sec. 80.1105:
(1) Annual compliance demonstration report. (i) Obtain and read a
copy of the annual compliance demonstration report required under Sec.
80.1152(a)(1) which contains information regarding all the following:
(A) The obligated party's volume of finished gasoline, reformulated
gasoline blendstock for oxygenate blending (RBOB), and conventional
gasoline blendstock that becomes finished conventional gasoline upon
the addition of oxygenate (CBOB) produced or imported during the
reporting year.
(B) Renewable volume obligation (RVO).
(C) RINs used for compliance.
(ii) Obtain documentation of any volumes of renewable fuel used in
gasoline during the reporting year; compute and report as a finding the
volumes of renewable fuel represented in these documents.
(iii) Compare the volumes of gasoline reported to EPA in the report
required under Sec. 80.1152(a)(1) with the volumes, excluding any
renewable fuel volumes, contained in the inventory reconciliation
analysis under Sec. 80.133.
(iii) Verify that the production volume information in the
obligated party's annual summary report required under Sec.
80.1152(a)(1) agrees with the volume information, excluding any
renewable fuel volumes, contained in the inventory reconciliation
analysis under Sec. 80.133.
(iv) Compute and report as a finding the obligated party's RVO, and
any deficit RVO carried over from the previous year or carried into the
subsequent year, and verify that the values agree with the values
reported to EPA.
(v) Obtain documentation for all RINs used for compliance during
the year being reviewed; compute and report as a finding the RIN
numbers and year of generation of RINs represented in these documents;
and state whether this information agrees with the report to EPA.
(2) RIN transaction reports. (i) Obtain and read copies of a
representative sample of all RIN transaction reports required under
Sec. 80.1152(a)(2) for the compliance year.
(ii) Obtain contracts or other documents for the representative
sample of RIN transactions; compute and report as a finding the
transaction types, transaction dates, and RINs traded; and state
whether the information agrees with the party's reports to EPA.
(3) Gallon-RIN activity reports. (i) Obtain and read copies of all
quarterly gallon-RIN activity reports required
[[Page 24005]]
under Sec. 80.1152(a)(3) for the compliance year.
(ii) Obtain documentation of total RINs (including current-year
RINs and previous-year RINs) owned at the start of the quarter,
purchased, used for compliance, sold, expired and retired during the
quarter being reviewed, and owned at the end of the quarter; compute
and report as a finding the total RINs owned at the start and end of
the quarter, purchased, used for compliance, sold, expired and retired
as represented in these documents; and state whether this information
agrees with the party's reports to EPA.
(b) The following attest procedures shall be completed for any
renewable fuel producer or importer:
(1) RIN-generation reports. (i) Obtain and read copies of the
quarterly RIN generation reports required under Sec. 80.1152(b)(1) for
the compliance year.
(ii) Obtain production data for each renewable fuel batch produced
during the year being reviewed; compute and report as a finding the RIN
numbers, production dates, types, volumes of denaturant and applicable
equivalence values, and production volumes for each batch; and state
whether this information agrees with the party's reports to EPA.
(iii) Verify that the proper number of RINs were generated and
assigned for each batch of renewable fuel produced, as required under
Sec. 80.1126.
(iv) Obtain product transfer documents for each renewable fuel
batch produced during the year being reviewed; report as a finding any
product transfer document that did not include the RIN for the batch.
(2) RIN transaction reports. (i) Obtain and read copies of a
representative sample of the RIN transaction reports required under
Sec. 80.1152(b)(2) for the compliance year.
(ii) Obtain contracts or other documents for the representative
sample of RIN transactions; compute and report as a finding the
transaction types, transaction dates, and the RINs traded; and state
whether this information agrees with the party's reports to EPA.
(3) Gallon-RIN activity reports. (i) Obtain and read copies of the
quarterly gallon-RIN activity reports required under Sec.
80.1152(b)(3) for the compliance year.
(ii) Obtain documentation of total RINs (including current-year
RINs and previous-year RINs) owned at the start of the quarter,
purchased, sold, expired and retired during the quarter being reviewed,
and owned at the end of the quarter; compute and report as a finding
the total RINs owned at the start and end of the quarter, purchased,
used for compliance, sold, expired and retired as represented in these
documents; and state whether this information agrees with the party's
reports to EPA.
(c) The following attest procedures shall be completed for any
party other than an obligated party or renewable fuel producer or
importer that owns any RINs during a calendar year.
(1) RIN transaction reports. (i) Obtain and read copies of a
representative sample of the RIN transaction reports required under
Sec. 80.1152(c)(1) for the compliance year.
(ii) Obtain contracts or other documents for the representative
sample of RIN transactions; compute and report as a finding the
transaction types, transaction dates, and the RINs traded; and state
whether this information agrees with the party's reports to EPA.
(2) Gallon-RIN activity reports. (i) Obtain and read copies of the
gallon-RIN activity reports required under Sec. 80.1152(c)(2) for the
compliance year.
(ii) Obtain documentation of total RINs (including current-year
RINs and previous-year RINs) owned at the start of the quarter,
purchased, sold, expired and retired during the quarter being reviewed,
and owned at the end of the quarter; compute and report as a finding
the total RINs owned at the start and end of the quarter, purchased,
used for compliance, sold, expired and retired as represented in these
documents; and state whether this information agrees with the party's
reports to EPA.
(d) The following submission dates apply to the attest engagements
required under this section.
(1) For each compliance year, each party subject to the attest
engagement requirements under this section shall cause the reports
required under this section to be submitted to EPA by May 31 of the
year following the compliance year.
(2) For the 2007 compliance year only, the attest engagement
required under paragraph (a) of this section may be submitted to EPA
with the attest engagement for the 2008 compliance year.
Sec. 80.1165 What are the additional requirements under this subpart
for a foreign small refiner?
(a) Definitions. The following definitions apply for this subpart:
(1) Foreign refinery is a refinery that is located outside the
United States, the Commonwealth of Puerto Rico, the U.S. Virgin
Islands, Guam, American Samoa, and the Commonwealth of the Northern
Mariana Islands (collectively referred to in this section as ``the
United States'').
(2) Foreign refiner is a person that meets the definition of
refiner under Sec. 80.2(i) for a foreign refinery.
(3) RFS-FRGAS is gasoline produced at a foreign refinery that has
received a small refinery exemption under Sec. 80.1141 or a small refiner
exemption under Sec. 80.1142 that is imported into the United States.
(4) Non-RFS-FRGAS is one of the following:
(i) Gasoline produced at a foreign refinery that has received a
small refinery exemption under Sec. 80.1141 or a small refiner
exemption under Sec. 80.1142 that is not imported into the United States.
(ii) Gasoline produced at a foreign refinery that has not received
a small refinery exemption under Sec. 80.1141 or small refiner
exemption under Sec. 80.1142.
(5) A foreign small refiner is a foreign refiner that has received
a small refinery exemption under Sec. 80.1141 for one or more of its
refineries or a small refiner exemption under Sec. 80.1142.
(b) General requirements for RFS-FRGAS foreign small refineries and
small refiners.
(1) A foreign small refiner must designate, at the time of
production, each batch of gasoline produced at the foreign refinery
that is exported for use in the United States as RFS-FRGAS; and
(2) Meet all requirements that apply to refiners who have received
a small refinery or small refiner exemption under this subpart.
(c) Designation, foreign refiner certification, and product
transfer documents. (1) Any foreign small refiner must designate each
batch of RFS-FRGAS as such at the time the gasoline is produced.
(2) On each occasion when RFS-FRGAS is loaded onto a vessel or
other transportation mode for transport to the United States, the
foreign refiner shall prepare a certification for each batch of RFS-
FRGAS that meets all the following requirements:
(i) The certification shall include the report of the independent
third party under paragraph (d) of this section, and all the following
additional information:
(A) The name and EPA registration number of the refinery that
produced the RFS-FRGAS.
(B) [Reserved]
(ii) The identification of the gasoline as RFS-FRGAS.
(iii) The volume of RFS-FRGAS being transported, in gallons.
(3) On each occasion when any person transfers custody or title to
any RFS-FRGAS prior to its being imported into the United States, it
must include all the following information as part of the product
transfer document information:
[[Page 24006]]
(i) Designation of the gasoline as RFS-FRGAS.
(ii) The certification required under paragraph (c)(2) of this section.
(d) Load port independent testing and refinery identification. (1)
On each occasion that RFS-FRGAS is loaded onto a vessel for transport
to the United States the foreign small refiner shall have an
independent third party do all the following:
(i) Inspect the vessel prior to loading and determine the volume of
any tank bottoms.
(ii) Determine the volume of RFS-FRGAS loaded onto the vessel
(exclusive of any tank bottoms before loading).
(iii) Obtain the EPA-assigned registration number of the foreign
refinery.
(iv) Determine the name and country of registration of the vessel
used to transport the RFS-FRGAS to the United States.
(v) Determine the date and time the vessel departs the port serving
the foreign refinery.
(vi) Review original documents that reflect movement and storage of
the RFS-FRGAS from the foreign refinery to the load port, and from this
review determine:
(A) The refinery at which the RFS-FRGAS was produced; and
(B) That the RFS-FRGAS remained segregated from Non-RFS-FRGAS and
other RFS-FRGAS produced at a different refinery.
(2) The independent third party shall submit a report to:
(i) The foreign small refiner containing the information required
under paragraph (d)(1) of this section, to accompany the product
transfer documents for the vessel; and
(ii) The Administrator containing the information required under
paragraph (d)(1) of this section, within thirty days following the date
of the independent third party's inspection. This report shall include
a description of the method used to determine the identity of the
refinery at which the gasoline was produced, assurance that the
gasoline remained segregated as specified in paragraph (j)(1) of this
section, and a description of the gasoline's movement and storage
between production at the source refinery and vessel loading.
(3) The independent third party must:
(i) Be approved in advance by EPA, based on a demonstration of
ability to perform the procedures required in this paragraph (d);
(ii) Be independent under the criteria specified in Sec.
80.65(f)(2)(iii); and
(iii) Sign a commitment that contains the provisions specified in
paragraph (f) of this section with regard to activities, facilities,
and documents relevant to compliance with the requirements of this
paragraph (d).
(e) Comparison of load port and port of entry testing. (1)(i) Any
small foreign small refiner and any United States importer of RFS-FRGAS
shall compare the results from the load port testing under paragraph
(d) of this section, with the port of entry testing as reported under
paragraph (k) of this section, for the volume of gasoline, except as
specified in paragraph (e)(1)(ii) of this section.
(ii) Where a vessel transporting RFS-FRGAS off loads this gasoline
at more than one United States port of entry, the requirements of
paragraph (e)(1)(i) of this section do not apply at subsequent ports of
entry if the United States importer obtains a certification from the
vessel owner that the requirements of paragraph (e)(1)(i) of this
section were met and that the vessel has not loaded any gasoline or
blendstock between the first United States port of entry and the
subsequent port of entry.
(2) If the temperature-corrected volumes determined at the port of
entry and at the load port differ by more than one percent, the United
States importer and the foreign small refiner shall not treat the
gasoline as RFS-FRGAS and the importer shall include the volume of
gasoline in the importer's RFS compliance calculations.
(f) Foreign refiner commitments. Any small foreign small refiner
shall commit to and comply with the provisions contained in this
paragraph (f) as a condition to being approved for a small refinery or
small refiner exemption under this subpart.
(1) Any United States Environmental Protection Agency inspector or
auditor must be given full, complete and immediate access to conduct
inspections and audits of the foreign refinery.
(i) Inspections and audits may be either announced in advance by
EPA, or unannounced.
(ii) Access will be provided to any location where:
(A) Gasoline is produced;
(B) Documents related to refinery operations are kept; and
(C) RFS-FRGAS is stored or transported between the foreign refinery
and the United States, including storage tanks, vessels and pipelines.
(iii) Inspections and audits may be by EPA employees or contractors
to EPA.
(iv) Any documents requested that are related to matters covered by
inspections and audits must be provided to an EPA inspector or auditor
on request.
(v) Inspections and audits by EPA may include review and copying of
any documents related to all the following:
(A) The volume of RFS-FRGAS.
(B) The proper classification of gasoline as being RFS-FRGAS or as
not being RFS-FRGAS.
(C) Transfers of title or custody to RFS-FRGAS.
(D) Testing of RFS-FRGAS.
(E) Work performed and reports prepared by independent third
parties and by independent auditors under the requirements of this
section, including work papers.
(vi) Inspections and audits by EPA may include taking interviewing
employees.
(vii) Any employee of the foreign refiner must be made available
for interview by the EPA inspector or auditor, on request, within a
reasonable time period.
(viii) English language translations of any documents must be
provided to an EPA inspector or auditor, on request, within 10 working days.
(ix) English language interpreters must be provided to accompany
EPA inspectors and auditors, on request.
(2) An agent for service of process located in the District of
Columbia shall be named, and service on this agent constitutes service
on the foreign refiner or any employee of the foreign refiner for any
action by EPA or otherwise by the United States related to the
requirements of this subpart.
(3) The forum for any civil or criminal enforcement action related
to the provisions of this section for violations of the Clean Air Act
or regulations promulgated thereunder shall be governed by the Clean
Air Act, including the EPA administrative forum where allowed under the
Clean Air Act.
(4) United States substantive and procedural laws shall apply to
any civil or criminal enforcement action against the foreign refiner or
any employee of the foreign refiner related to the provisions of this
section.
(5) Submitting an application for a small refinery or small refiner
exemption, or producing and exporting gasoline under such exemption,
and all other actions to comply with the requirements of this subpart
relating to such exemption constitute actions or activities covered by
and within the meaning of the provisions of 28 U.S.C. 1605(a)(2), but
solely with respect to actions instituted against the foreign refiner,
its agents and employees in any court or other tribunal in the United
States for conduct that violates the requirements applicable to the
foreign refiner under this subpart, including conduct that violates the
False
[[Page 24007]]
Statements Accountability Act of 1996 (18 U.S.C. 1001) and section
113(c)(2) of the Clean Air Act (42 U.S.C. 7413).
(6) The foreign refiner, or its agents or employees, will not seek
to detain or to impose civil or criminal remedies against EPA
inspectors or auditors, whether EPA employees or EPA contractors, for
actions performed within the scope of EPA employment related to the
provisions of this section.
(7) The commitment required by this paragraph (f) shall be signed
by the owner or president of the foreign refiner business.
(8) In any case where RFS-FRGAS produced at a foreign refinery is
stored or transported by another company between the refinery and the
vessel that transports the RFS-FRGAS to the United States, the foreign
refiner shall obtain from each such other company a commitment that
meets the requirements specified in paragraphs (f)(1) through (f)(7) of
this section, and these commitments shall be included in the foreign
refiner's application for a small refinery or small refiner exemption
under this subpart.
(g) Sovereign immunity. By submitting an application for a small
refinery or small refiner exemption under this subpart, or by producing
and exporting gasoline to the United States under such exemption, the
foreign refiner, and its agents and employees, without exception,
become subject to the full operation of the administrative and judicial
enforcement powers and provisions of the United States without
limitation based on sovereign immunity, with respect to actions
instituted against the foreign refiner, its agents and employees in any
court or other tribunal in the United States for conduct that violates
the requirements applicable to the foreign refiner under this subpart,
including conduct that violates the False Statements Accountability Act
of 1996 (18 U.S.C. 1001) and section 113(c)(2) of the Clean Air Act (42
U.S.C. 7413).
(h) Bond posting. Any foreign refiner shall meet the requirements
of this paragraph (h) as a condition to approval of a small foreign
refinery or small foreign refiner exemption under this subpart.
(1) The foreign refiner shall post a bond of the amount calculated
using the following equation:
Bond = G * $0.01
Where:
Bond = amount of the bond in United States dollars.
G = the largest volume of gasoline produced at the foreign refinery
and exported to the United States, in gallons, during a single
calendar year among the most recent of the following calendar years,
up to a maximum of five calendar years: The calendar year
immediately preceding the date the refinery's application is
submitted, the calendar year the application is submitted, and each
succeeding calendar year.
(2) Bonds shall be posted by:
(i) Paying the amount of the bond to the Treasurer of the United States;
(ii) Obtaining a bond in the proper amount from a third party
surety agent that is payable to satisfy United States administrative or
judicial judgments against the foreign refiner, provided EPA agrees in
advance as to the third party and the nature of the surety agreement;
or
(iii) An alternative commitment that results in assets of an
appropriate liquidity and value being readily available to the United
States, provided EPA agrees in advance as to the alternative commitment.
(3) Bonds posted under this paragraph (h) shall:
(i) Be used to satisfy any judicial judgment that results from an
administrative or judicial enforcement action for conduct in violation
of this subpart, including where such conduct violates the False
Statements Accountability Act of 1996 (18 U.S.C. 1001) and section
113(c)(2) of the Clean Air Act (42 U.S.C. 7413);
(ii) Be provided by a corporate surety that is listed in the United
States Department of Treasury Circular 570 ``Companies Holding
Certificates of Authority as Acceptable Sureties on Federal Bonds'';
and
(iii) Include a commitment that the bond will remain in effect for
at least five years following the end of latest annual reporting period
that the foreign refiner produces gasoline pursuant to the requirements
of this subpart.
(4) On any occasion a foreign refiner bond is used to satisfy any
judgment, the foreign refiner shall increase the bond to cover the
amount used within 90 days of the date the bond is used.
(5) If the bond amount for a foreign refiner increases, the foreign
refiner shall increase the bond to cover the shortfall within 90 days
of the date the bond amount changes. If the bond amount decreases, the
foreign refiner may reduce the amount of the bond beginning 90 days
after the date the bond amount changes.
(i) English language reports. Any document submitted to EPA by a
foreign refiner shall be in English language, or shall include an
English language translation.
(j) Prohibitions. (1) No person may combine RFS-FRGAS with any Non-
RFS-FRGAS, and no person may combine RFS-FRGAS with any RFS-FRGAS
produced at a different refinery, until the importer has met all the
requirements of paragraph (k) of this section.
(2) No foreign refiner or other person may cause another person to
commit an action prohibited in paragraph (j)(1) of this section, or
that otherwise violates the requirements of this section.
(k) United States importer requirements. Any United States importer
of RFS-FRGAS shall meet the following requirements:
(1) Each batch of imported RFS-FRGAS shall be classified by the
importer as being RFS-FRGAS.
(2) Gasoline shall be classified as RFS-FRGAS according to the
designation by the foreign refiner if this designation is supported by
product transfer documents prepared by the foreign refiner as required
in paragraph (c) of this section. Additionally, the importer shall
comply with all requirements of this subpart applicable to importers.
(3) For each gasoline batch classified as RFS-FRGAS, any United
States importer shall have an independent third party do all the following:
(i) Determine the volume of gasoline in the vessel.
(ii) Use the foreign refiner's RFS-FRGAS certification to determine
the name and EPA-assigned registration number of the foreign refinery
that produced the RFS-FRGAS.
(iii) Determine the name and country of registration of the vessel
used to transport the RFS-FRGAS to the United States.
(iv) Determine the date and time the vessel arrives at the United
States port of entry.
(4) Any importer shall submit reports within 30 days following the
date any vessel transporting RFS-FRGAS arrives at the United States
port of entry to:
(i) The Administrator containing the information determined under
paragraph (k)(3) of this section; and
(ii) The foreign refiner containing the information determined
under paragraph (k)(3)(i) of this section, and including identification
of the port at which the product was off loaded.
(5) Any United States importer shall meet all other requirements of
this subpart for any imported gasoline that is not classified as RFS-
FRGAS under paragraph (k)(2) of this section.
(l) Truck imports of RFS-FRGAS produced at a foreign refinery. (1)
Any refiner whose RFS-FRGAS is transported into the United States by
truck may petition EPA to use alternative procedures to meet all the
following requirements:
[[Page 24008]]
(i) Certification under paragraph (c)(2) of this section.
(ii) Load port and port of entry testing requirements under
paragraphs (d) and (e) of this section.
(iii) Importer testing requirements under paragraph (k)(3) of this
section.
(2) These alternative procedures must ensure RFS-FRGAS remains
segregated from Non-RFS-FRGAS until it is imported into the United
States. The petition will be evaluated based on whether it adequately
addresses the following:
(i) Provisions for monitoring pipeline shipments, if applicable,
from the refinery, that ensure segregation of RFS-FRGAS from that
refinery from all other gasoline.
(ii) Contracts with any terminals and/or pipelines that receive
and/or transport RFS-FRGAS that prohibit the commingling of RFS-FRGAS
with Non-RFS-FRGAS or RFS-FRGAS from other foreign refineries.
(iii) Attest procedures to be conducted annually by an independent
third party that review loading records and import documents based on
volume reconciliation, or other criteria, to confirm that all RFS-FRGAS
remains segregated throughout the distribution system.
(3) The petition described in this section must be submitted to EPA
along with the application for a small refinery or small refiner
exemption under this subpart.
(m) Additional attest requirements for importers of RFS-FRGAS. The
following additional procedures shall be carried out by any importer of
RFS-FRGAS as part of the attest engagement required for importers under
this subpart K.
(1) Obtain listings of all tenders of RFS-FRGAS. Agree the total
volume of tenders from the listings to the gasoline inventory
reconciliation analysis required in Sec. 80.133(b), and to the volumes
determined by the third party under paragraph (d) of this section.
(2) For each tender under paragraph (m)(1) of this section, where
the gasoline is loaded onto a marine vessel, report as a finding the
name and country of registration of each vessel, and the volumes of
RFS-FRGAS loaded onto each vessel.
(3) Select a sample from the list of vessels identified in
paragraph (m)(2) of this section used to transport RFS-FRGAS, in
accordance with the guidelines in Sec. 80.127, and for each vessel
selected perform the following:
(i) Obtain the report of the independent third party, under
paragraph (d) of this section.
(A) Agree the information in these reports with regard to vessel
identification and gasoline volume.
(B) Identify, and report as a finding, each occasion the load port
and port of entry volume results differ by more than the amount allowed
in paragraph (e)(2) of this section, and determine whether all of the
requirements of paragraph (e)(2) of this section have been met.
(ii) Obtain the documents used by the independent third party to
determine transportation and storage of the RFS-FRGAS from the refinery
to the load port, under paragraph (d) of this section. Obtain tank
activity records for any storage tank where the RFS-FRGAS is stored,
and pipeline activity records for any pipeline used to transport the
RFS-FRGAS prior to being loaded onto the vessel. Use these records to
determine whether the RFS-FRGAS was produced at the refinery that is
the subject of the attest engagement, and whether the RFS-FRGAS was
mixed with any Non-RFS-FRGAS or any RFS-FRGAS produced at a different
refinery.
(4) Select a sample from the list of vessels identified in
paragraph (m)(2) of this section used to transport RFS-FRGAS, in
accordance with the guidelines in Sec. 80.127, and for each vessel
selected perform the following:
(i) Obtain a commercial document of general circulation that lists
vessel arrivals and departures, and that includes the port and date of
departure of the vessel, and the port of entry and date of arrival of
the vessel.
(ii) Agree the vessel's departure and arrival locations and dates
from the independent third party and United States importer reports to
the information contained in the commercial document.
(5) Obtain separate listings of all tenders of RFS-FRGAS, and
perform the following:
(i) Agree the volume of tenders from the listings to the gasoline
inventory reconciliation analysis in Sec. 80.133(b).
(ii) Obtain a separate listing of the tenders under this paragraph
(m)(5) where the gasoline is loaded onto a marine vessel. Select a
sample from this listing in accordance with the guidelines in Sec.
80.127, and obtain a commercial document of general circulation that
lists vessel arrivals and departures, and that includes the port and
date of departure and the ports and dates where the gasoline was off
loaded for the selected vessels. Determine and report as a finding the
country where the gasoline was off loaded for each vessel selected.
(6) In order to complete the requirements of this paragraph (m), an
auditor shall:
(i) Be independent of the foreign refiner or importer;
(ii) Be licensed as a Certified Public Accountant in the United
States and a citizen of the United States, or be approved in advance by
EPA based on a demonstration of ability to perform the procedures
required in Sec. Sec. 80.125 through 80.127, 80.130, 80.1164, and this
paragraph (m); and
(iii) Sign a commitment that contains the provisions specified in
paragraph (f) of this section with regard to activities and documents
relevant to compliance with the requirements of Sec. Sec. 80.125
through 80.127, 80.130, 80.1164, and this paragraph (m).
(n) Withdrawal or suspension of foreign refiner status. EPA may
withdraw or suspend a foreign refiner's small refinery or small refiner
exemption where:
(1) A foreign refiner fails to meet any requirement of this section;
(2) A foreign government fails to allow EPA inspections as provided
in paragraph (f)(1) of this section;
(3) A foreign refiner asserts a claim of, or a right to claim,
sovereign immunity in an action to enforce the requirements in this
subpart; or
(4) A foreign refiner fails to pay a civil or criminal penalty that
is not satisfied using the foreign refiner bond specified in paragraph
(h) of this section.
(o) Additional requirements for applications, reports and
certificates. Any application for a small refinery or small refiner
exemption, alternative procedures under paragraph (l) of this section,
any report, certification, or other submission required under this
section shall be:
(1) Submitted in accordance with procedures specified by the
Administrator, including use of any forms that may be specified by the
Administrator.
(2) Be signed by the president or owner of the foreign refiner
company, or by that person's immediate designee, and shall contain the
following declaration:
I hereby certify: (1) That I have actual authority to sign on
behalf of and to bind [NAME OF FOREIGN REFINER] with regard to all
statements contained herein; (2) that I am aware that the
information contained herein is being Certified, or submitted to the
United States Environmental Protection Agency, under the
requirements of 40 CFR part 80, subpart K, and that the information
is material for determining compliance under these regulations; and
(3) that I have read and understand the information being Certified
or submitted, and this information is true, complete and correct to
the best of my knowledge and belief after I have taken reasonable
and appropriate steps to verify the accuracy thereof. I affirm that
I have read and
[[Page 24009]]
understand the provisions of 40 CFR part 80, subpart K, including 40
CFR 80.1165 apply to [NAME OF FOREIGN REFINER]. Pursuant to Clean
Air Act section 113(c) and 18 U.S.C. 1001, the penalty for
furnishing false, incomplete or misleading information in this
certification or submission is a fine of up to $10,000 U.S., and/or
imprisonment for up to five years.''
Sec. 80.1166 What are the additional requirements under this subpart
for a foreign producer of cellulosic biomass ethanol or waste derived
ethanol?
(a) Foreign producer of cellulosic biomass ethanol or waste derived
ethanol. For purposes of this subpart, a foreign producer of cellulosic
biomass ethanol or waste derived ethanol is a person located outside
the United States, the Commonwealth of Puerto Rico, the Virgin Islands,
Guam, American Samoa, and the Commonwealth of the Northern Mariana
Islands (collectively referred to in this section as ''the United
States'') that has been approved by EPA to assign RINs to cellulosic
biomass ethanol or waste derived ethanol that the foreign producer
produces and exports to the United States, hereinafter referred to as a
``foreign producer'' under this section.
(b) General requirements. (1) An approved foreign producer under
this section must meet all requirements that apply to cellulosic
biomass ethanol or waste derived ethanol producers under this subpart,
except to the extent otherwise specified in paragraph (b)(2) of this
section.
(2)(i) The independent third party that conducts the facility
verification required under Sec. 80.1155(a) must inspect the foreign
producer's facility and submit a report to EPA which describes in
detail the physical plant and its operation.
(ii) The independent third party that conducts the facility
verification required under Sec. 80.1155(a) must be a licensed
Professional Engineer in the chemical engineering field, but need not
be based in the United States. The independent third party must include
documentation of its qualifications as a licensed Professional Engineer
in the report required in paragraph (b)(2)(i) of this section.
(iii) The requirements of paragraphs (b)(2)(i) and (ii) of this
section must be met before a foreign entity may be approved as a
foreign producer under this subpart.
(c) Designation, foreign producer certification, and product
transfer documents.
(1) Any approved foreign producer under this section must designate
each batch of cellulosic biomass ethanol or waste derived ethanol as
``RFS-FRETH'' at the time the ethanol is produced.
(2) On each occasion when RFS-FRETH is loaded onto a vessel or
other transportation mode for transport to the United States, the
foreign producer shall prepare a certification for each batch of RFS-
FRETH; the certification shall include the report of the independent
third party under paragraph (d) of this section, and all the following
additional information:
(i) The name and EPA registration number of the company that
produced the RFS-FRETH.
(ii) The identification of the ethanol as RFS-FRETH.
(iii) The volume of RFS-FRETH being transported, in gallons.
(3) On each occasion when any person transfers custody or title to
any RFS-FRETH prior to its being imported into the United States, it
must include all the following information as part of the product
transfer document information:
(i) Designation of the ethanol as RFS-FRETH.
(ii) The certification required under paragraph (c)(2) of this section.
(d) Load port independent testing and refinery identification. (1)
On each occasion that RFS-FRETH is loaded onto a vessel for transport
to the United States the foreign producer shall have an independent
third party do all the following:
(i) Inspect the vessel prior to loading and determine the volume of
any tank bottoms.
(ii) Determine the volume of RFS-FRETH loaded onto the vessel
(exclusive of any tank bottoms before loading).
(iii) Obtain the EPA-assigned registration number of the foreign
producer.
(iv) Determine the name and country of registration of the vessel
used to transport the RFS-FRETH to the United States.
(v) Determine the date and time the vessel departs the port serving
the foreign producer.
(vi) Review original documents that reflect movement and storage of
the RFS-FRETH from the foreign producer to the load port, and from this
review determine the following:
(A) The facility at which the RFS-FRETH was produced.
(B) That the RFS-FRETH remained segregated from Non-RFS-FRETH and
other RFS-FRETH produced by a different foreign producer.
(2) The independent third party shall submit a report to the following:
(i) The foreign producer containing the information required under
paragraph (d)(1) of this section, to accompany the product transfer
documents for the vessel.
(ii) The Administrator containing the information required under
paragraph (d)(1) of this section, within thirty days following the date
of the independent third party's inspection. This report shall include
a description of the method used to determine the identity of the
foreign producer facility at which the ethanol was produced, assurance
that the ethanol remained segregated as specified in paragraph (j)(1)
of this section, and a description of the ethanol's movement and
storage between production at the source facility and vessel loading.
(3) The independent third party must:
(i) Be approved in advance by EPA, based on a demonstration of
ability to perform the procedures required in this paragraph (d);
(ii) Be independent under the criteria specified in Sec.
80.65(e)(2)(iii); and
(iii) Sign a commitment that contains the provisions specified in
paragraph (f) of this section with regard to activities, facilities and
documents relevant to compliance with the requirements of this
paragraph (d).
(e) Comparison of load port and port of entry testing. (1)(i) Any
foreign producer and any United States importer of RFS-FRETH shall
compare the results from the load port testing under paragraph (d) of
this section, with the port of entry testing as reported under
paragraph (k) of this section, for the volume of ethanol, except as
specified in paragraph (e)(1)(ii) of this section.
(ii) Where a vessel transporting RFS-FRETH off loads the ethanol at
more than one United States port of entry, the requirements of
paragraph (e)(1)(i) of this section do not apply at subsequent ports of
entry if the United States importer obtains a certification from the
vessel owner that the requirements of paragraph (e)(1)(i) of this
section were met and that the vessel has not loaded any ethanol between
the first United States port of entry and the subsequent port of entry.
(2)(i) If the temperature-corrected volumes determined at the port
of entry and at the load port differ by more than one percent, the
number of RINs associated with the ethanol shall be calculated based on
the lesser of the two volumes in paragraph (e)(1)(i) of this section.
(ii) Where the port of entry volume is the lesser of the two
volumes in paragraph (e)(1)(i) of this section, the importer shall
calculate the difference between the number of RINs originally assigned
by the foreign producer and
[[Page 24010]]
the number of RINs calculated under Sec. 80.1126 for the volume of
ethanol as measured at the port of entry, and retire that amount of
RINs in accordance with paragraph (k)(4) of this section.
(f) Foreign producer commitments. Any foreign producer shall commit
to and comply with the provisions contained in this paragraph (f) as a
condition to being approved as a foreign producer under this subpart.
(1) Any United States Environmental Protection Agency inspector or
auditor must be given full, complete and immediate access to conduct
inspections and audits of the foreign producer facility.
(i) Inspections and audits may be either announced in advance by
EPA, or unannounced.
(ii) Access will be provided to any location where:
(A) Ethanol is produced;
(B) Documents related to ethanol producer operations are kept; and
(C) RFS-FRETH is stored or transported between the foreign producer
and the United States, including storage tanks, vessels and pipelines.
(iii) Inspections and audits may be by EPA employees or contractors
to EPA.
(iv) Any documents requested that are related to matters covered by
inspections and audits must be provided to an EPA inspector or auditor
on request.
(v) Inspections and audits by EPA may include review and copying of
any documents related to the following:
(A) The volume of RFS-FRETH.
(B) The proper classification of gasoline as being RFS-FRETH;
(C) Transfers of title or custody to RFS-FRETH.
(D) Work performed and reports prepared by independent third
parties and by independent auditors under the requirements of this
section, including work papers.
(vi) Inspections and audits by EPA may include interviewing employees.
(vii) Any employee of the foreign producer must be made available
for interview by the EPA inspector or auditor, on request, within a
reasonable time period.
(viii) English language translations of any documents must be
provided to an EPA inspector or auditor, on request, within 10 working days.
(ix) English language interpreters must be provided to accompany
EPA inspectors and auditors, on request.
(2) An agent for service of process located in the District of
Columbia shall be named, and service on this agent constitutes service
on the foreign producer or any employee of the foreign producer for any
action by EPA or otherwise by the United States related to the
requirements of this subpart.
(3) The forum for any civil or criminal enforcement action related
to the provisions of this section for violations of the Clean Air Act
or regulations promulgated thereunder shall be governed by the Clean
Air Act, including the EPA administrative forum where allowed under the
Clean Air Act.
(4) United States substantive and procedural laws shall apply to
any civil or criminal enforcement action against the foreign producer
or any employee of the foreign producer related to the provisions of
this section.
(5) Applying to be an approved foreign producer under this section,
or producing or exporting ethanol under such approval, and all other
actions to comply with the requirements of this subpart relating to
such approval constitute actions or activities covered by and within
the meaning of the provisions of 28 U.S.C. 1605(a)(2), but solely with
respect to actions instituted against the foreign producer, its agents
and employees in any court or other tribunal in the United States for
conduct that violates the requirements applicable to the foreign
producer under this subpart, including conduct that violates the False
Statements Accountability Act of 1996 (18 U.S.C. 1001) and section
113(c)(2) of the Clean Air Act (42 U.S.C. 7413).
(6) The foreign producer, or its agents or employees, will not seek
to detain or to impose civil or criminal remedies against EPA
inspectors or auditors, whether EPA employees or EPA contractors, for
actions performed within the scope of EPA employment related to the
provisions of this section.
(7) The commitment required by this paragraph (f) shall be signed
by the owner or president of the foreign producer company.
(8) In any case where RFS-FRETH produced at a foreign producer
facility is stored or transported by another company between the
refinery and the vessel that transports the RFS-FRETH to the United
States, the foreign producer shall obtain from each such other company
a commitment that meets the requirements specified in paragraphs (f)(1)
through (7) of this section, and these commitments shall be included in
the foreign producer's application to be an approved foreign producer
under this subpart.
(g) Sovereign immunity. By submitting an application to be an
approved foreign producer under this subpart, or by producing and
exporting ethanol to the United States under such approval, the foreign
producer, and its agents and employees, without exception, become
subject to the full operation of the administrative and judicial
enforcement powers and provisions of the United States without
limitation based on sovereign immunity, with respect to actions
instituted against the foreign producer, its agents and employees in
any court or other tribunal in the United States for conduct that
violates the requirements applicable to the foreign producer under this
subpart, including conduct that violates the False Statements
Accountability Act of 1996 (18 U.S.C. 1001) and section 113(c)(2) of
the Clean Air Act (42 U.S.C. 7413).
(h) Bond posting. Any foreign producer shall meet the requirements
of this paragraph (h) as a condition to approval as a foreign producer
under this subpart.
(1) The foreign producer shall post a bond of the amount calculated
using the following equation:
Bond = G * $ 0.01
Where:
Bond = amount of the bond in U.S. dollars.
G = The largest volume of ethanol produced at the foreign producer's
facility and exported to the United States, in gallons, during a
single calendar year among the most recent of the following calendar
years, up to a maximum of five calendar years: The calendar year
immediately preceding the date the refinery's application is
submitted, the calendar year the application is submitted, and each
succeeding calendar year.
(2) Bonds shall be posted by any of the following methods:
(i) Paying the amount of the bond to the Treasurer of the United States.
(ii) Obtaining a bond in the proper amount from a third party
surety agent that is payable to satisfy United States administrative or
judicial judgments against the foreign producer, provided EPA agrees in
advance as to the third party and the nature of the surety agreement.
(iii) An alternative commitment that results in assets of an
appropriate liquidity and value being readily available to the United
States provided EPA agrees in advance as to the alternative commitment.
(3) Bonds posted under this paragraph (h) shall:
(i) Be used to satisfy any judicial judgment that results from an
administrative or judicial enforcement action for conduct in violation
of this subpart, including where such conduct violates the False
Statements Accountability Act of 1996 (18 U.S.C. 1001) and section
113(c)(2) of the Clean Air Act (42 U.S.C. 7413);
(ii) Be provided by a corporate surety that is listed in the United
States
[[Page 24011]]
Department of Treasury Circular 570 ''Companies Holding Certificates of
Authority as Acceptable Sureties on Federal Bonds''; and
(iii) Include a commitment that the bond will remain in effect for
at least five years following the end of the latest annual reporting
period that the foreign producer produces ethanol pursuant to the
requirements of this subpart.
(4) On any occasion a foreign producer bond is used to satisfy any
judgment, the foreign producer shall increase the bond to cover the
amount used within 90 days of the date the bond is used.
(5) If the bond amount for a foreign producer increases, the
foreign producer shall increase the bond to cover the shortfall within
90 days of the date the bond amount changes. If the bond amount
decreases, the foreign refiner may reduce the amount of the bond
beginning 90 days after the date the bond amount changes.
(i) English language reports. Any document submitted to EPA by a
foreign producer shall be in English language, or shall include an
English language translation.
(j) Prohibitions. (1) No person may combine RFS-FRETH with any Non-
RFS-FRETH, and no person may combine RFS-FRETH with any RFS-FRETH
produced at a different refinery, until the importer has met all the
requirements of paragraph (k) of this section.
(2) No foreign producer or other person may cause another person to
commit an action prohibited in paragraph (j)(1) of this section, or
that otherwise violates the requirements of this section.
(k) Requirements for United States importers of RFS-FRETH. Any
United States importer shall meet the following requirements:
(1) Each batch of imported RFS-FRETH shall be classified by the
importer as being RFS-FRETH.
(2) Ethanol shall be classified as RFS-FRETH according to the
designation by the foreign producer if this designation is supported by
product transfer documents prepared by the foreign producer as required
in paragraph (c) of this section.
(3) For each ethanol batch classified as RFS-FRETH, any United
States importer shall have an independent third party do all the following:
(i) Determine the volume of gasoline in the vessel.
(ii) Use the foreign producer's RFS-FRETH certification to
determine the name and EPA-assigned registration number of the foreign
producer that produced the RFS-FRETH.
(iii) Determine the name and country of registration of the vessel
used to transport the RFS-FRETH to the United States.
(iv) Determine the date and time the vessel arrives at the United
States port of entry.
(4) Where the importer is required to retire RINs under paragraph
(e)(2) of this section, the importer must report the retired RINs in
the applicable reports under Sec. 80.1152.
(5) Any importer shall submit reports within 30 days following the
date any vessel transporting RFS-FRETH arrives at the United States
port of entry to the following:
(i) The Administrator containing the information determined under
paragraph (k)(3) of this section.
(ii) The foreign producer containing the information determined
under paragraph (k)(3)(i) of this section, and including identification
of the port at which the product was off loaded, and any RINs retired
under paragraph (e)(2) of this section.
(6) Any United States importer shall meet all other requirements of
this subpart for any imported ethanol or other renewable fuel that is
not classified as RFS-FRETH under paragraph (k)(2) of this section.
(l) Truck imports of RFS-FRETH produced by a foreign producer. (1)
Any foreign producer whose RFS-FRETH is transported into the United
States by truck may petition EPA to use alternative procedures to meet
all the following requirements:
(i) Certification under paragraph (c)(2) of this section.
(ii) Load port and port of entry testing under paragraphs (d) and
(e) of this section.
(iii) Importer testing under paragraph (k)(3) of this section.
(2) These alternative procedures must ensure RFS-FRETH remains
segregated from Non-RFS-FRETH until it is imported into the United
States. The petition will be evaluated based on whether it adequately
addresses the following:
(i) Contracts with any facilities that receive and/or transport
RFS-FRETH that prohibit the commingling of RFS-FRETH with Non-RFS-FRETH
or RFS-FRETH from other foreign producers.
(ii) Attest procedures to be conducted annually by an independent
third party that review loading records and import documents based on
volume reconciliation to confirm that all RFS-FRETH remains segregated.
(3) The petition described in this section must be submitted to EPA
along with the application for approval as a foreign producer under
this subpart.
(m) Additional attest requirements for producers of RFS-FRETH. The
following additional procedures shall be carried out by any producer of
RFS-FRETH as part of the attest engagement required for renewable fuel
producers under this subpart K.
(1) Obtain listings of all tenders of RFS-FRETH. Agree the total
volume of tenders from the listings to the volumes determined by the
third party under paragraph (d) of this section.
(2) For each tender under paragraph (m)(1) of this section, where
the ethanol is loaded onto a marine vessel, report as a finding the
name and country of registration of each vessel, and the volumes of
RFS-FRETH loaded onto each vessel.
(3) Select a sample from the list of vessels identified in
paragraph (m)(2) of this section used to transport RFS-FRETH, in
accordance with the guidelines in Sec. 80.127, and for each vessel
selected perform the following:
(i) Obtain the report of the independent third party, under
paragraph (d) of this section, and of the United States importer under
paragraph (k) of this section.
(A) Agree the information in these reports with regard to vessel
identification and ethanol volume.
(B) Identify, and report as a finding, each occasion the load port
and port of entry volume results differ by more than the amount allowed
in paragraph (e) of this section, and determine whether the importer
retired the appropriate amount of RINs as required under paragraph
(e)(2) of this section, and submitted the applicable reports under
Sec. 80.1152 in accordance with paragraph (k)(4) of this section.
(ii) Obtain the documents used by the independent third party to
determine transportation and storage of the RFS-FRETH from the foreign
producer's facility to the load port, under paragraph (d) of this
section. Obtain tank activity records for any storage tank where the
RFS-FRETH is stored, and activity records for any mode of
transportation used to transport the RFS-FRGAS prior to being loaded
onto the vessel. Use these records to determine whether the RFS-FRETH
was produced at the foreign producer's facility that is the subject of
the attest engagement, and whether the RFS-FRETH was mixed with any
Non-RFS-FRETH or any RFS-FRETH produced at a different facility.
(4) Select a sample from the list of vessels identified in
paragraph (m)(2) of this section used to transport RFS-FRETH, in
accordance with the guidelines in Sec. 80.127, and for each vessel
selected perform the following:
[[Page 24012]]
(i) Obtain a commercial document of general circulation that lists
vessel arrivals and departures, and that includes the port and date of
departure of the vessel, and the port of entry and date of arrival of
the vessel.
(ii) Agree the vessel's departure and arrival locations and dates
from the independent third party and United States importer reports to
the information contained in the commercial document.
(5) Obtain a separate listing of the tenders under this paragraph
(m)(5) where the gasoline is loaded onto a marine vessel. Select a
sample from this listing in accordance with the guidelines in Sec.
80.127, and obtain a commercial document of general circulation that
lists vessel arrivals and departures, and that includes the port and
date of departure and the ports and dates where the ethanol was off
loaded for the selected vessels. Determine and report as a finding the
country where the ethanol was off loaded for each vessel selected.
(6) In order to complete the requirements of this paragraph (m) an
auditor shall:
(i) Be independent of the foreign producer;
(ii) Be licensed as a Certified Public Accountant in the United
States and a citizen of the United States, or be approved in advance by
EPA based on a demonstration of ability to perform the procedures
required in Sec. Sec. 80.125 through 80.127, 80.130, 80.1164, and this
paragraph (m); and
(iii) Sign a commitment that contains the provisions specified in
paragraph (f) of this section with regard to activities and documents
relevant to compliance with the requirements of Sec. Sec. 80.125
through 80.127, 80.130, 80.1164, and this paragraph (m).
(n) Withdrawal or suspension of foreign producer approval. EPA may
withdraw or suspend a foreign producer's approval where any of the
following occur:
(1) A foreign producer fails to meet any requirement of this section.
(2) A foreign government fails to allow EPA inspections as provided
in paragraph (f)(1) of this section.
(3) A foreign producer asserts a claim of, or a right to claim,
sovereign immunity in an action to enforce the requirements in this subpart.
(4) A foreign producer fails to pay a civil or criminal penalty
that is not satisfied using the foreign producer bond specified in
paragraph (g) of this section.
(o) Additional requirements for applications, reports and
certificates. Any application for approval as a foreign producer,
alternative procedures under paragraph (l) of this section, any report,
certification, or other submission required under this section shall be:
(1) Submitted in accordance with procedures specified by the
Administrator, including use of any forms that may be specified by the
Administrator.
(2) Signed by the president or owner of the foreign producer
company, or by that person's immediate designee, and shall contain the
following declaration:
I hereby certify: (1) That I have actual authority to sign on
behalf of and to bind [insert name of foreign producer]
with regard
to all statements contained herein; (2) that I am aware that the
information contained herein is being Certified, or submitted to the
United States Environmental Protection Agency, under the
requirements of 40 CFR part 80, subpart K, and that the information
is material for determining compliance under these regulations; and
(3) that I have read and understand the information being Certified
or submitted, and this information is true, complete and correct to
the best of my knowledge and belief after I have taken reasonable
and appropriate steps to verify the accuracy thereof. I affirm that
I have read and understand the provisions of 40 CFR part 80, subpart
K, including 40 CFR 80.1165 apply to [insert name of foreign
producer]. Pursuant to Clean Air Act section 113(c) and 18 U.S.C.
1001, the penalty for furnishing false, incomplete or misleading
information in this certification or submission is a fine of up to
$10,000 U.S., and/or imprisonment for up to five years.
Sec. 80.1167 What are the additional requirements under this subpart
for a foreign RIN owner?
(a) Foreign RIN owner. For purposes of this subpart, a foreign RIN
owner is a person located outside the United States, the Commonwealth
of Puerto Rico, the Virgin Islands, Guam, American Samoa, and the
Commonwealth of the Northern Mariana Islands (collectively referred to
in this section as ``the United States'') that has been approved by EPA
to own RINs.
(b) General Requirement. An approved foreign RIN owner must meet
all requirements that apply to persons who own RINs under this subpart.
(c) Foreign RIN owner commitments. Any person shall commit to and
comply with the provisions contained in this paragraph (c) as a
condition to being approved as a foreign RIN owner under this subpart.
(1) Any United States Environmental Protection Agency inspector or
auditor must be given full, complete and immediate access to conduct
inspections and audits of the foreign RIN owner's place of business.
(i) Inspections and audits may be either announced in advance by
EPA, or unannounced; and
(ii) Access will be provided to any location where documents
related to RINs the foreign RIN owner has obtained, sold, transferred
or held are kept.
(iii) Inspections and audits may be by EPA employees or contractors
to EPA.
(iv) Any documents requested that are related to matters covered by
inspections and audits must be provided to an EPA inspector or auditor
on request.
(v) Inspections and audits by EPA may include review and copying of
any documents related to the following:
(A) Transfers of title to RINs.
(B) Work performed and reports prepared by independent auditors
under the requirements of this section, including work papers.
(vi) Inspections and audits by EPA may include interviewing employees.
(vii) Any employee of the foreign RIN owner must be made available
for interview by the EPA inspector or auditor, on request, within a
reasonable time period.
(viii) English language translations of any documents must be
provided to an EPA inspector or auditor, on request, within 10 working days.
(ix) English language interpreters must be provided to accompany
EPA inspectors and auditors, on request.
(2) An agent for service of process located in the District of
Columbia shall be named, and service on this agent constitutes service
on the foreign RIN owner or any employee of the foreign RIN owner for
any action by EPA or otherwise by the United States related to the
requirements of this subpart.
(3) The forum for any civil or criminal enforcement action related
to the provisions of this section for violations of the Clean Air Act
or regulations promulgated thereunder shall be governed by the Clean
Air Act, including the EPA administrative forum where allowed under the
Clean Air Act.
(4) United States substantive and procedural laws shall apply to
any civil or criminal enforcement action against the foreign RIN owner
or any employee of the foreign RIN owner related to the provisions of
this section.
(5) Submitting an application to be a foreign RIN owner, and all
other actions to comply with the requirements of this subpart
constitute actions or activities covered by and within the meaning of
the provisions of 28 U.S.C. 1605(a)(2), but solely with respect to
actions instituted against the foreign RIN owner, its agents and
employees in any court or other tribunal in the United States for
conduct that violates the requirements applicable to the foreign RIN
owner under this subpart, including conduct
[[Page 24013]]
that violates the False Statements Accountability Act of 1996 (18
U.S.C. 1001) and section 113(c)(2) of the Clean Air Act (42 U.S.C. 7413).
(6) The foreign RIN owner, or its agents or employees, will not
seek to detain or to impose civil or criminal remedies against EPA
inspectors or auditors, whether EPA employees or EPA contractors, for
actions performed within the scope of EPA employment related to the
provisions of this section.
(7) The commitment required by this paragraph (c) shall be signed
by the owner or president of the foreign RIN owner business.
(d) Sovereign immunity. By submitting an application to be a
foreign RIN owner under this subpart, the foreign entity, and its
agents and employees, without exception, become subject to the full
operation of the administrative and judicial enforcement powers and
provisions of the United States without limitation based on sovereign
immunity, with respect to actions instituted against the foreign RIN
owner, its agents and employees in any court or other tribunal in the
United States for conduct that violates the requirements applicable to
the foreign RIN owner under this subpart, including conduct that
violates the False Statements Accountability Act of 1996 (18 U.S.C.
1001) and section 113(c)(2) of the Clean Air Act (42 U.S.C. 7413).
(e) Bond posting. Any foreign entity shall meet the requirements of
this paragraph (d) as a condition to approval as a foreign RIN owner
under this subpart.
(1) The foreign entity shall post a bond of the amount calculated
using the following equation:
Bond = G * $0.01
Where:
Bond = amount of the bond in U.S. dollars.
G = The total of the number of gallon-RINs the foreign entity
expects to sell or transfer during the first calendar year that the
foreign entity is a RIN owner, plus the number of gallon-RINs the
foreign entity expects to sell or transfer during the next four
calendar years. After the first calendar year, the bond amount shall
be based on the actual number of gallon-RINs sold or transferred
during the current calendar year and the number held at the
conclusion of the current averaging year, plus the number of gallon-
RINs sold or transferred during the four most recent calendar years
preceding the current calendar year. For any year for which there
were fewer than four preceding years in which the foreign entity
sold or transferred RINs, the bond shall be based on the total of
the number of gallon-RINs sold or transferred during the current
calendar year and the number held at the end of the current calendar
year, plus the number of gallon-RINs sold or transferred during any
calendar year preceding the current calendar year, plus the number
of gallon-RINs expected to be sold or transferred during subsequent
calendar years, the total number of years not to exceed four
calendar years in addition to the current calendar year.
(2) Bonds shall be posted by doing any of the following:
(i) Paying the amount of the bond to the Treasurer of the United States.
(ii) Obtaining a bond in the proper amount from a third party
surety agent that is payable to satisfy United States administrative or
judicial judgments against the foreign RIN owner, provided EPA agrees
in advance as to the third party and the nature of the surety agreement.
(iii) An alternative commitment that results in assets of an
appropriate liquidity and value being readily available to the United
States, provided EPA agrees in advance as to the alternative commitment.
(3) Bonds posted under this paragraph (e) shall:
(i) Be used to satisfy any judicial judgment that results from an
administrative or judicial enforcement action for conduct in violation
of this subpart, including where such conduct violates the False
Statements Accountability Act of 1996 (18 U.S.C. 1001) and section
113(c)(2) of the Clean Air Act (42 U.S.C. 7413);
(ii) Be provided by a corporate surety that is listed in the United
States Department of Treasury Circular 570 ``Companies Holding
Certificates of Authority as Acceptable Sureties on Federal Bonds'';
and
(iii) Include a commitment that the bond will remain in effect for
at least five years following the end of latest reporting period in
which the foreign RIN owner obtains, sells, transfers or holds RINs.
(4) On any occasion a foreign RIN owner bond is used to satisfy any
judgment, the foreign RIN owner shall increase the bond to cover the
amount used within 90 days of the date the bond is used.
(f) English language reports. Any document submitted to EPA by a
foreign RIN owner shall be in English language, or shall include an
English language translation.
(g) Prohibitions. (1) A foreign RIN owner is prohibited from
obtaining, selling, transferring or holding any RIN that is in excess
of the number for which the bond requirements of this section have been
satisfied.
(2) Any RIN that is sold, transferred or held that is in excess of
the number for which the bond requirements of this section have been
satisfied is an invalid RIN under Sec. 80.1131.
(3) Any RIN that is obtained from a person located outside the
United States that is not an approved foreign RIN owner under this
section is an invalid RIN under Sec. 80.1131.
(4) No foreign RIN owner or other person may cause another person
to commit an action prohibited in this paragraph (g), or that otherwise
violates the requirements of this section.
(h) Additional attest requirements for foreign RIN owners. The
following additional requirements apply to any foreign RIN owner as
part of the attest engagement required for RIN owners under this subpart K.
(1) The attest auditor must be independent of the foreign RIN owner.
(2) The attest auditor must be licensed as a Certified Public
Accountant in the United States and a citizen of the United States, or
be approved in advance by EPA based on a demonstration of ability to
perform the procedures required in Sec. Sec. 80.125 through 80.127,
80.130, and 80.1164.
(3) The attest auditor must sign a commitment that contains the
provisions specified in paragraph (c) of this section with regard to
activities and documents relevant to compliance with the requirements
of Sec. Sec. 80.125 through 80.127, 80.130, and 80.1164.
(i) Withdrawal or suspension of foreign RIN owner status. EPA may
withdraw or suspend its approval of a foreign RIN owner where any of
the following occur:
(1) A foreign RIN owner fails to meet any requirement of this
section, including, but not limited to, the bond requirements.
(2) A foreign government fails to allow EPA inspections as provided
in paragraph (c)(1) of this section.
(3) A foreign RIN owner asserts a claim of, or a right to claim,
sovereign immunity in an action to enforce the requirements in this subpart.
(4) A foreign RIN owner fails to pay a civil or criminal penalty
that is not satisfied using the foreign RIN owner bond specified in
paragraph (e) of this section.
(j) Additional requirements for applications, reports and
certificates. Any application for approval as a foreign RIN owner, any
report, certification, or other submission required under this section
shall be:
(1) Submitted in accordance with procedures specified by the
Administrator, including use of any forms that may be specified by the
Administrator.
(2) Signed by the president or owner of the foreign RIN owner
company, or
[[Page 24014]]
that person's immediate designee, and shall contain the following
declaration:
I hereby certify: (1) That I have actual authority to sign on
behalf of and to bind [insert name of foreign RIN owner] with regard
to all statements contained herein; (2) that I am aware that the
information contained herein is being Certified, or submitted to the
United States Environmental Protection Agency, under the
requirements of 40 CFR part 80, subpart K, and that the information
is material for determining compliance under these regulations; and
(3) that I have read and understand the information being Certified
or submitted, and this information is true, complete and correct to
the best of my knowledge and belief after I have taken reasonable
and appropriate steps to verify the accuracy thereof. I affirm that
I have read and understand the provisions of 40 CFR part 80, subpart
K, including 40 CFR 80.1167 apply to [insert name of foreign RIN
owner]. Pursuant to Clean Air Act section 113(c) and 18 U.S.C. 1001,
the penalty for furnishing false, incomplete or misleading
information in this certification or submission is a fine of up to
$10,000 U.S., and/or imprisonment for up to five years.
[FR Doc. E7-7140 Filed 4-30-07; 8:45 am]
BILLING CODE 6560-50-P
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