(a) Foreign biointermediate producer. For purposes of this subpart, a foreign biointermediate producer is a person located outside the United States, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, and the Commonwealth of the Northern Mariana Islands (collectively referred to in this section as “the United States”) that has been approved by EPA to produce biointermediate for use in the production of renewable fuel by a RIN-generating renewable fuel producer.
(b) Foreign biointermediate producer requirements. Any foreign biointermediate producer must meet all requirements that apply to biointermediate producers under this subpart as a condition of being approved as a foreign biointermediate producer under this subpart.
(c) Foreign biointermediate producer commitments. Any foreign biointermediate producer must commit to the following provisions as a condition of being registered as a foreign biointermediate producer under this subpart:
(1) Any EPA inspector or auditor must be given full, complete, and immediate access to conduct inspections and audits of the foreign biointermediate producer facility.
(i) Inspections and audits may be either announced in advance by EPA, or unannounced.
(ii) Access will be provided to any location where:
(A) Biointermediate is produced.
(B) Documents related to foreign biointermediate producer operations are kept.
(C) Biointermediate is stored or transported between the foreign biointermediate producer and the renewable fuel producer, including storage tanks, vessels, and pipelines.
(iii) EPA inspectors and auditors may be EPA employees or contractors to EPA.
(iv) Any documents requested that are related to matters covered by inspections and audits must be provided to an EPA inspector or auditor on request.
(v) Inspections and audits may include review and copying of any documents related to the following:
(A) The volume of biointermediate produced or delivered to renewable fuel production facilities.
(B) Transfers of title or custody to the biointermediate.
(C) Work performed and reports prepared by independent third parties and by independent auditors under the requirements of this section, including work papers.
(vi) Inspections and audits by EPA may include interviewing employees.
(vii) Any employee of the foreign biointermediate producer must be made available for interview by the EPA inspector or auditor, on request, within a reasonable time period.
(viii) English language translations of any documents must be provided to an EPA inspector or auditor, on request, within 10 business days.
(ix) English language interpreters must be provided to accompany EPA inspectors and auditors, on request.
(2) An agent for service of process located in the District of Columbia must be named, and service on this agent constitutes service on the foreign biointermediate producer or any employee of the foreign biointermediate producer for any action by EPA or otherwise by the United States related to the requirements of this subpart.
(3) The forum for any civil or criminal enforcement action related to the provisions of this section for violations of the Clean Air Act or regulations in this title promulgated thereunder must be governed by the Clean Air Act, including the EPA administrative forum where allowed under the Clean Air Act.
(4) United States substantive and procedural laws apply to any civil or criminal enforcement action against the foreign biointermediate producer or any employee of the foreign biointermediate producer related to the provisions of this section.
(5) Applying to be an approved foreign biointermediate producer under this section, or producing or exporting biointermediate under such approval, and all other actions to comply with the requirements of this subpart relating to such approval constitute actions or activities covered by and within the meaning of the provisions of 28 U.S.C. 1605(a)(2), but solely with respect to actions instituted against the foreign biointermediate producer, its agents and employees in any court or other tribunal in the United States for conduct that violates the requirements applicable to the foreign biointermediate producer under this subpart, including conduct that violates the False Statements Accountability Act of 1996 (18 U.S.C. 1001) and section 113(c)(2) of the Clean Air Act (42 U.S.C. 7413).
(6) The foreign biointermediate producer, or its agents or employees, will not seek to detain or to impose civil or criminal remedies against EPA inspectors or auditors for actions performed within the scope of EPA employment or contract related to the provisions of this section.
(7) The commitment required by this paragraph (c) must be signed by the owner or president of the foreign biointermediate producer company.
(8) In any case where the biointermediate produced at a foreign biointermediate production facility is stored or transported by another company between the production facility and the vessel that transports the biointermediate to the United States, the foreign biointermediate producer must obtain from each such other company a commitment that meets the requirements specified in paragraphs (c)(1) through (7) of this section, and these commitments must be included in the foreign biointermediate producer's application to be an approved foreign biointermediate producer under this subpart.
(d) Sovereign immunity. By submitting an application to be an approved foreign biointermediate producer under this subpart, or by producing and exporting biointermediate fuel to the United States under such approval, the foreign biointermediate producer, and its agents and employees, without exception, become subject to the full operation of the administrative and judicial enforcement powers and provisions of the United States without limitation based on sovereign immunity, with respect to actions instituted against the foreign biointermediate producer, its agents and employees in any court or other tribunal in the United States for conduct that violates the requirements applicable to the foreign biointermediate producer under this subpart, including conduct that violates the False Statements Accountability Act of 1996 (18 U.S.C. 1001) and section 113(c)(2) of the Clean Air Act (42 U.S.C. 7413).
(e) English language reports. Any document submitted to EPA by a foreign biointermediate producer must be in English or must include an English language translation.
(f) Withdrawal or suspension of foreign biointermediate producer approval. EPA may withdraw or suspend a foreign biointermediate producer's approval where any of the following occur:
(1) A foreign biointermediate producer fails to meet any requirement of this section.
(2) A foreign government fails to allow EPA inspections or audits as provided in paragraph (c)(1) of this section.
(3) A foreign biointermediate producer asserts a claim of, or a right to claim, sovereign immunity in an action to enforce the requirements in this subpart.
(g) Additional requirements for applications, reports, and certificates. Any application for approval as a foreign biointermediate producer, any report, certification, or other submission required under this section shall be:
(1) Submitted in accordance with procedures specified by EPA, including use of any forms that may be specified by EPA.
(2) Signed by the president or owner of the foreign biointermediate producer company, or by that person's immediate designee, and must contain the following declarations:
(i) Certification.
“I hereby certify:
That I have actual authority to sign on behalf of and to bind [NAME OF FOREIGN BIOINTERMEDIATE PRODUCER] with regard to all statements contained herein;
That I am aware that the information contained herein is being Certified, or submitted to the United States Environmental Protection Agency, under the requirements of 40 CFR part 80, subpart M, and that the information is material for determining compliance under these regulations; and
That I have read and understand the information being Certified or submitted, and this information is true, complete and correct to the best of my knowledge and belief after I have taken reasonable and appropriate steps to verify the accuracy thereof.”
(ii) Affirmation.
“I affirm that I have read and understand the provisions of 40 CFR part 80, subpart M, including 40 CFR 80.1478 apply to [NAME OF FOREIGN BIOINTERMEDIATE PRODUCER]. Pursuant to Clean Air Act section 113(c) and 18 U.S.C. 1001,the,incomplete,000.S., and/or imprisonment for up to five years.”
(h) Requirements for biointermediate importers. Any biointermediate importer must meet all the following requirements:
(1) For each biointermediate batch, any biointermediate importer must have an independent third party do all the following:
(i) Determine the volume of biointermediate in the truck, railcar, vessel, or other shipping container.
(ii) Determine the name and EPA-assigned registration number of the foreign biointermediate producer that produced the biointermediate.
(iii) Determine the name and country of registration of the truck, railcar, vessel, or other shipping container used to transport the biointermediate to the United States.
(iv) Determine the date and time the truck, railcar, vessel, or other shipping container arrives at the United States port of entry.
(2) Any biointermediate importer must submit documentation of the information determined under paragraph (h)(1) of this section within 30 days following the date any truck, railcar, vessel, or other shipping container transporting biointermediate arrives at the United States port of entry to all the following:
(i) The foreign biointermediate producer.
(ii) The renewable fuel producer.
(3) The biointermediate importer and the independent third party must keep records of the audits and reports required under paragraphs (h)(1) and (2) of this section for five years from the date of creation.
[87 FR 39675, July 1, 2022, as amended at 88 FR 44592, July 12, 2023]