Title 40

SECTION 80.1466

80.1466 What are the additional requirements under this subpart for foreign renewable fuel producers and importers of renewable fuels

§ 80.1466 What are the additional requirements under this subpart for foreign renewable fuel producers and importers of renewable fuels?

(a) Applicability. This section only applies to foreign renewable fuel producers that are located outside the United States, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, and the Commonwealth of the Northern Mariana Islands (collectively referred to in this section as “the United States”).

(b) General requirements. A registered foreign renewable fuel producer under this section must meet all requirements that apply to renewable fuel producers under this subpart.

(c) Designation, RIN-generating foreign producer certification, and product transfer documents. (1) Any registered foreign renewable fuel producer must designate each batch of such renewable fuel as “RFS-FRRF” at the time the renewable fuel is produced.

(2) On each occasion when RFS-FRRF is transferred for transport to a vessel or loaded onto a vessel or other transportation mode for transport to the United States, the RIN-generating foreign producer shall prepare a certification for each batch of RFS-FRRF; the certification shall include the report of the independent third party under paragraph (d) of this section, and all the following additional information:

(i) The name and EPA registration number of the company that produced the RFS-FRRF.

(ii) The identification of the renewable fuel as RFS-FRRF.

(iii) The identification of the renewable fuel by type, D code, and number of RINs generated.

(iv) The volume of RFS-FRRF, standardized per § 80.1426(f)(8), being transported, in gallons.

(3) On each occasion when any person transfers custody or title to any RFS-FRRF prior to its being imported into the United States, it must include all the following information as part of the product transfer document information:

(i) Designation of the renewable fuel as RFS-FRRF.

(ii) The certification required under paragraph (c)(2) of this section.

(d) Load port independent testing and producer identification. (1) On each occasion that RFS-FRRF is loaded onto a vessel for transport to the United States the RIN-generating foreign producer shall have an independent third party do all the following:

(i) Inspect the vessel prior to loading and determine the volume of any tank bottoms.

(ii) Determine the volume of RFS-FRRF, standardized per § 80.1426(f)(8), loaded onto the vessel (exclusive of any tank bottoms before loading).

(iii) Obtain the EPA-assigned registration number of the foreign renewable fuel producer.

(iv) Determine the name and country of registration of the vessel used to transport the RFS-FRRF to the United States.

(v) Determine the date and time the vessel departs the port serving the RIN-generating foreign producer.

(vi) Review original documents that reflect movement and storage of the RFS-FRRF from the RIN-generating foreign producer to the load port, and from this review determine all the following:

(A) The facility at which the RFS-FRRF was produced.

(B) That the RFS-FRRF remained segregated from Non-RFS-FRRF and other RFS-FRRF produced by a different foreign producer.

(2) The independent third party shall submit a report to the following:

(i) The RIN-generating foreign producer, containing the information required under paragraph (d)(1) of this section, to accompany the product transfer documents for the vessel.

(ii) 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 renewable fuel was produced, assurance that the renewable fuel remained segregated as specified in paragraph (j)(1) of this section, and a description of the renewable fuel's movement and storage between production at the source facility and vessel loading.

(3) The independent third party must:

(i) Be approved in advance by EPA, based on a demonstration of ability to perform the procedures required in this paragraph (d);

(ii) Be independent under the criteria specified in 40 CFR 1090.1805; and

(iii) Sign a commitment that contains the provisions specified in paragraph (f) of this section with regard to activities, facilities and documents relevant to compliance with the requirements of this paragraph (d).

(e) Comparison of load port and port of entry testing. (1)(i) Any RIN-generating foreign producer and any United States importer of RFS-FRRF shall compare the results from the load port testing under paragraph (d) of this section, with the port of entry testing as reported under paragraph (k) of this section, for the volume of renewable fuel, standardized per § 80.1426(f)(8), except as specified in paragraph (e)(1)(ii) of this section.

(ii) Where a vessel transporting RFS-FRRF offloads the renewable fuel at more than one United States port of entry, the requirements of paragraph (e)(1)(i) of this section do not apply at subsequent ports of entry if the United States importer obtains a certification from the vessel owner that the requirements of paragraph (e)(1)(i) of this section were met and that the vessel has not loaded any renewable fuel between the first United States port of entry and the subsequent ports of entry.

(2)(i) If the temperature-corrected volumes, after accounting for tank bottoms, determined at the port of entry and at the load port differ by more than one percent, the number of RINs associated with the renewable fuel shall be calculated based on the lesser of the two volumes in paragraph (e)(1)(i) of this section.

(ii) Where the port of entry volume is the lesser of the two volumes in paragraph (e)(1)(i) of this section, the importer shall calculate the difference between the number of RINs originally assigned by the RIN-generating foreign producer and the number of RINs calculated under § 80.1426 for the volume of renewable fuel as measured at the port of entry, and acquire and retire that amount of RINs in accordance with paragraph (k)(3) of this section.

(f) Foreign producer commitments. Any foreign renewable fuel producer shall commit to and comply with the following provisions as a condition to being registered as a foreign renewable fuel producer under this subpart:

(1) Any EPA inspector or auditor must be given full, complete, and immediate access to conduct inspections and audits of the foreign renewable fuel producer facility.

(i) Inspections and audits may be either announced in advance by EPA, or unannounced.

(ii) Access will be provided to any location where:

(A) Renewable fuel is produced;

(B) Documents related to renewable fuel producer operations are kept; and

(C) Renewable fuel is stored or transported between the foreign renewable fuel producer and the United States, including storage tanks, vessels and pipelines.

(iii) EPA inspectors and auditors may be EPA employees or contractors to EPA.

(iv) Any documents requested that are related to matters covered by inspections and audits must be provided to an EPA inspector or auditor on request.

(v) Inspections and audits may include review and copying of any documents related to the following:

(A) The volume of renewable fuel.

(B) The proper classification of renewable fuel as being RFS-FRRF.

(D) Work performed and reports prepared by independent third parties and by independent auditors under the requirements of this section, including work papers.

(vi) Inspections and audits by EPA may include interviewing employees.

(vii) Any employee of the foreign renewable fuel producer must be made available for interview by the EPA inspector or auditor, on request, within a reasonable time period.

(viii) English language translations of any documents must be provided to an EPA inspector or auditor, on request, within 10 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 renewable fuel producer or any employee of the foreign renewable fuel producer for any action by EPA or otherwise by the United States related to the requirements of this subpart.

(3) The forum for any civil or criminal enforcement action related to the provisions of this section for violations of the Clean Air Act or regulations promulgated thereunder shall be governed by the Clean Air Act, including the EPA administrative forum where allowed under the Clean Air Act.

(4) United States substantive and procedural laws shall apply to any civil or criminal enforcement action against the foreign renewable fuel producer or any employee of the foreign renewable fuel producer related to the provisions of this section.

(5) Applying to be an approved foreign renewable fuel producer under this section, or producing or exporting renewable fuel under such approval, and all other actions to comply with the requirements of this subpart relating to such approval constitute actions or activities covered by and within the meaning of the provisions of 28 U.S.C. 1605(a)(2), but solely with respect to actions instituted against the foreign renewable fuel producer, its agents and employees in any court or other tribunal in the United States for conduct that violates the requirements applicable to the foreign renewable fuel producer under this subpart, including conduct that violates the False Statements Accountability Act of 1996 (18 U.S.C. 1001) and section 113(c)(2) of the Clean Air Act (42 U.S.C. 7413).

(6) The foreign renewable fuel producer, or its agents or employees, will not seek to detain or to impose civil or criminal remedies against EPA inspectors or auditors for actions performed within the scope of EPA employment or contract related to the provisions of this section.

(7) The commitment required by this paragraph shall be signed by the owner or president of the foreign renewable fuel producer company.

(8) In any case where renewable fuel produced at a foreign renewable fuel production facility is stored or transported by another company between the production facility and the vessel that transports the renewable fuel to the United States, the foreign renewable fuel producer shall obtain from each such other company a commitment that meets the requirements specified in paragraphs (f)(1) through (7) of this section, and these commitments shall be included in the foreign renewable fuel producer's application to be an approved foreign renewable fuel producer under this subpart.

(g) Sovereign immunity. By submitting an application to be an approved foreign renewable fuel producer under this subpart, or by producing and exporting renewable fuel to the United States under such approval, the foreign renewable fuel producer, and its agents and employees, without exception, become subject to the full operation of the administrative and judicial enforcement powers and provisions of the United States without limitation based on sovereign immunity, with respect to actions instituted against the foreign renewable fuel producer, its agents and employees in any court or other tribunal in the United States for conduct that violates the requirements applicable to the foreign renewable fuel producer under this subpart, including conduct that violates the False Statements Accountability Act of 1996 (18 U.S.C. 1001) and section 113(c)(2) of the Clean Air Act (42 U.S.C. 7413).

(h) Bond posting. Any RIN-generating foreign producer shall meet the following requirements as a condition to approval as a RIN-generating foreign producer under this subpart:

(1) The RIN-generating foreign producer 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 greater of: the largest volume of renewable fuel produced by the RIN-generating foreign producer and exported to the United States, in gallons, during a single calendar year among the five preceding calendar years, or the largest volume of renewable fuel that the Rin-generating foreign producers expects to export to the United States during any calendar year identified in the Production Outlook Report required by § 80.1449. If the volume of renewable fuel exported to the United States increases above the largest volume identified in the Production Outlook Report during any calendar year, the RIN-generating foreign producer shall increase the bond to cover the shortfall within 90 days.

(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.

(3) Bonds posted under this paragraph (h) shall:

(i) Be used to satisfy any judicial judgment that results from an administrative or judicial enforcement action for conduct in violation of this subpart, including where such conduct violates the False Statements Accountability Act of 1996 (18 U.S.C. 1001) and section 113(c)(2) of the Clean Air Act (42 U.S.C. 7413);

(ii) Be provided by a corporate surety that is listed in the United States Department of Treasury Circular 570 “Companies Holding Certificates of Authority as Acceptable Sureties on Federal Bonds”; and

(iii) Include a commitment that the bond will remain in effect for at least five years following the end of latest annual reporting period that the RIN-generating foreign producer produces renewable fuel pursuant to the requirements of this subpart.

(4) On any occasion a RIN-generating foreign producer bond is used to satisfy any judgment, the RIN-generating foreign producer shall increase the bond to cover the amount used within 90 days of the date the bond is used.

(i) English language reports. Any document submitted to EPA by a foreign renewable fuel producer shall be in English, or shall include an English language translation.

(j) Prohibitions. (1) No person may combine RFS-FRRF with any Non-RFS-FRRF, and no person may combine RFS-FRRF with any RFS-FRRF produced at a different production facility, until the importer has met all the requirements of paragraph (k) of this section.

(2) No foreign renewable fuel producer or other person may cause another person to commit an action prohibited in paragraph (j)(1) of this section, or that otherwise violates the requirements of this section.

(3) No foreign renewable fuel producer or importer may generate RINs for the same volume of renewable fuel.

(4) A foreign renewable fuel producer is prohibited from generating RINs in excess of the number for which the bond requirements of this section have been satisfied.

(k) Requirements for United States importers of RFS-FRRF. Any United States importers of RFS-FRRF shall meet all the following requirements:

(1) Renewable fuel shall be classified as RFS-FRRF according to the designation by the RIN-generating foreign producer if this designation is supported by product transfer documents prepared by the foreign producer as required in paragraph (c) of this section.

(2) For each renewable fuel batch classified as RFS-FRRF, any United States importer shall have an independent third party do all the following:

(i) Determine the volume of renewable fuel, standardized per § 80.1426(f)(8), in the vessel.

(ii) Use the RIN-generating foreign producer's RFS-FRRF certification to determine the name and EPA-assigned registration number of the RIN-generating foreign producer that produced the RFS-FRRF.

(iii) Determine the name and country of registration of the vessel used to transport the RFS-FRRF to the United States.

(iv) Determine the date and time the vessel arrives at the United States port of entry.

(3) Where the importer is required to retire RINs under paragraph (e)(2) of this section, the importer must report the retired RINs in the applicable reports under § 80.1451.

(4) Any importer shall submit reports within 30 days following the date any vessel transporting RFS-FRRF arrives at the United States port of entry to all the following:

(i) The Administrator, containing the information determined under paragraph (k)(2) of this section.

(ii) The RIN-generating foreign producer, containing the information determined under paragraph (k)(2)(i) of this section, and including identification of the port at which the product was offloaded, and any RINs retired under paragraph (e)(2) of this section.

(5) Any United States importer shall meet all other requirements of this subpart for any imported renewable fuel that is not classified as RFS-FRRF under paragraph (k)(1) of this section.

(l) Truck imports of RFS-FRRF produced by a RIN-generating foreign producer. (1) Any RIN-generating foreign producer whose RFS-FRRF is transported into the United States by truck may petition EPA to use alternative procedures to meet all the following requirements:

(i) Certification under paragraph (c)(2) of this section.

(ii) Load port and port of entry testing under paragraphs (d) and (e) of this section.

(iii) Importer testing under paragraph (k)(2) of this section.

(2) These alternative procedures must ensure RFS-FRRF remains segregated from Non-RFS-FRRF until it is imported into the United States. The petition will be evaluated based on whether it adequately addresses all of the following:

(i) Contracts with any facilities that receive and/or transport RFS-FRRF that prohibit the commingling of RFS-FRRF with Non-RFS-FRRF or RFS-FRRF from other foreign renewable fuel producers.

(ii) Attest procedures to be conducted annually by an independent third party that review loading records and import documents based on volume reconciliation to confirm that all RFS-FRRF remains segregated.

(3) The petition described in this section must be submitted to EPA along with the application for approval as a RIN-generating foreign producer under this subpart.

(m) Additional attest requirements for producers of RFS-FRRF. The following additional procedures shall be carried out by any producer of RFS-FRRF as part of the attest engagement required for renewable fuel producers under this subpart M.

(1) Obtain listings of all tenders of RFS-FRRF. Agree the total volume of tenders from the listings to the volumes determined by the third party under paragraph (d) of this section.

(2) For each tender under paragraph (m)(1) of this section, where the renewable fuel is loaded onto a marine vessel, report as a finding the name and country of registration of each vessel, and the volumes of RFS-FRRF loaded onto each vessel.

(3) Select a sample from the list of vessels identified in paragraph (m)(2) of this section used to transport RFS-FRRF, in accordance with the guidelines in 40 CFR 1090.1805, and for each vessel selected perform all the following:

(i) Obtain the report of the independent third party, under paragraph (d) of this section, and of the United States importer under paragraph (k) of this section.

(A) Agree the information in these reports with regard to vessel identification and renewable fuel volume.

(B) Identify, and report as a finding, each occasion the load port and port of entry volume results differ by more than the amount allowed in paragraph (e) of this section, and determine whether the importer retired the appropriate amount of RINs as required under paragraph (e)(2) of this section, and submitted the applicable reports under § 80.1451 in accordance with paragraph (k)(4) of this section.

(ii) Obtain the documents used by the independent third party to determine transportation and storage of the RFS-FRRF from the RIN-generating foreign producer's facility to the load port, under paragraph (d) of this section. Obtain tank activity records for any storage tank where the RFS-FRRF is stored, and activity records for any mode of transportation used to transport the RFS-FRRF prior to being loaded onto the vessel. Use these records to determine whether the RFS-FRRF was produced at the RIN-generating foreign producer's facility that is the subject of the attest engagement, and whether the RFS-FRRF was mixed with any Non-RFS-FRRF or any RFS-FRRF produced at a different facility.

(4) Select a sample from the list of vessels identified in paragraph (m)(2) of this section used to transport RFS-FRRF, in accordance with the guidelines in 40 CFR 1090.1805, and for each vessel selected perform the following:

(i) Obtain a commercial document of general circulation that lists vessel arrivals and departures, and that includes the port and date of departure of the vessel, and the port of entry and date of arrival of the vessel.

(ii) Agree the vessel's departure and arrival locations and dates from the independent third party and United States importer reports to the information contained in the commercial document.

(5) Obtain a separate listing of the tenders under this paragraph (m)(5) where the RFS-FRRF is loaded onto a marine vessel. Select a sample from this listing in accordance with the guidelines in 40 CFR 1090.1805, and obtain a commercial document of general circulation that lists vessel arrivals and departures, and that includes the port and date of departure and the ports and dates where the renewable fuel was offloaded for the selected vessels. Determine and report as a finding the country where the renewable fuel was offloaded for each vessel selected.

(6) In order to complete the requirements of this paragraph (m) an auditor shall:

(i) Be independent of the RIN-generating foreign producer;

(ii) Be licensed as a Certified Public Accountant in the United States and a citizen of the United States, or be approved in advance by EPA based on a demonstration of ability to perform the procedures required in 40 CFR 1090.1800, § 80.1464, and this paragraph (m); and

(iii) Sign a commitment that contains the provisions specified in paragraph (f) of this section with regard to activities and documents relevant to compliance with the requirements of 40 CFR 1090.1800, § 80.1464, and this paragraph (m).

(n) Withdrawal or suspension of foreign renewable fuel producer approval. EPA may withdraw or suspend a foreign renewable fuel producer's approval where any of the following occur:

(1) A foreign renewable fuel producer fails to meet any requirement of this section.

(2) A foreign government fails to allow EPA inspections or audits as provided in paragraph (f)(1) of this section.

(3) A foreign renewable fuel producer asserts a claim of, or a right to claim, sovereign immunity in an action to enforce the requirements in this subpart.

(4) A foreign renewable fuel producer fails to pay a civil or criminal penalty that is not satisfied using the foreign renewable fuel producer bond specified in paragraph (h) of this section.

(o) Additional requirements for applications, reports, and certificates. Any application for approval as a foreign renewable fuel producer, alternative procedures under paragraph (l) of this section, any report, certification, or other submission required under this section shall be:

(1) Submitted in accordance with procedures specified by the Administrator, including use of any forms that may be specified by the Administrator.

(2) Signed by the president or owner of the foreign renewable fuel producer company, or by that person's immediate designee, and shall contain the following declarations:

(i) “I hereby certify:

(A) That I have actual authority to sign on behalf of and to bind [NAME OF FOREIGN RENEWABLE FUEL PRODUCER] with regard to all statements contained herein;

(B) That I am aware that the information contained herein is being Certified, or submitted to the United States Environmental Protection Agency, under the requirements of 40 CFR part 80, subpart M, and that the information is material for determining compliance under these regulations; and

(C) That I have read and understand the information being Certified or submitted, and this information is true, complete and correct to the best of my knowledge and belief after I have taken reasonable and appropriate steps to verify the accuracy thereof.”

(ii) “I affirm that I have read and understand the provisions of 40 CFR part 80, subpart M, including 40 CFR 80.1465 apply to [NAME OF FOREIGN RENEWABLE FUEL PRODUCER]. Pursuant to Clean Air Act section 113(c) and 18 U.S.C. 1001, the penalty for furnishing false, incomplete or misleading information in this certification or submission is a fine of up to $10,000 U.S., and/or imprisonment for up to five years.”.

(p) Requirements for non-RIN-generating foreign producer. Any non-RIN-generating foreign producer must comply with the requirements of this section beginning on the effective date of the final rule or prior to EPA acceptance, whichever is later.

[75 FR 14863, Mar. 26, 2010, as amended at 77 FR 1357, Jan. 9, 2012; 85 FR 7081, Feb. 6, 2020; 85 FR 78467, Dec. 4, 2020]