Section 80.160 - RNG importers, foreign biogas producers, and foreign RNG producers(a)Applicability. The provisions of this section apply to any RNG importer or any foreign party subject to requirements of this subpart outside the United States.(b)General requirements. Any foreign party must meet all the following requirements: (1)Letter from RCO. The foreign party must provide a letter signed by the RCO that commits the foreign party to the applicable provisions specified in paragraphs (b)(4) and (c) of this section as part of their registration under § 80.135 .(2)Bond posting. A foreign party that generates RINs must meet the bond requirements of § 80.1466(h) .(3)Foreign RIN owners. A foreign party that owns RINs must meet the requirements of § 80.1467 , including any foreign party that separates or retires RINs under § 80.125 .(4)Foreign party commitments. Any foreign party must commit to the following provisions as a condition of being registered as a foreign party under this subpart: (i) Any EPA inspector or auditor must be given full, complete, and immediate access to conduct inspections and audits of all facilities subject to this subpart. (A) Inspections and audits may be either announced in advance by EPA, or unannounced.(B) Access will be provided to any location where:(1) Biogas, RNG, biointermediate, or biogas-derived renewable fuel is produced.(2) Documents related to the foreign party operations are kept.(3) Any product subject to this subpart (e.g., biogas, RNG, biointermediates, or biogas-derived renewable fuel) that is stored or transported outside the United States between the foreign party's facility and the point of importation into the United States, including storage tanks, vessels, and pipelines.(C) EPA inspectors and auditors may be EPA employees or contractors to EPA.(D) Any documents requested that are related to matters covered by inspections and audits must be provided to an EPA inspector or auditor on request.(E) Inspections and audits may include review and copying of any documents related to the following:(1) The volume or properties of any product subject to this subpart produced or delivered to a renewable fuel production facility.(2) Transfers of title or custody to the any product subject to this subpart.(3) Work performed and reports prepared by independent third parties and by independent auditors under the requirements of this subpart, including work papers.(4) Records required under § 80.145 .(5) Any records related to claims made during registration.(F) Inspections and audits by EPA may include interviewing employees.(G) Any employee of the foreign party must be made available for interview by the EPA inspector or auditor, on request, within a reasonable time period.(H) English language translations of any documents must be provided to an EPA inspector or auditor, on request, within 10 business days.(I) English language interpreters must be provided to accompany EPA inspectors and auditors, on request.(ii) An agent for service of process located in the District of Columbia will be named, and service on this agent constitutes service on the foreign party or any employee of the party for any action by EPA or otherwise by the United States related to the requirements of this subpart.(iii) The forum for any civil or criminal enforcement action related to the provisions of this subpart for violations of the Clean Air Act or regulations promulgated thereunder are governed by the Clean Air Act, including the EPA administrative forum where allowed under the Clean Air Act.(iv) United States substantive and procedural laws apply to any civil or criminal enforcement action against the foreign party or any employee of the foreign party related to the provisions of this subpart.(v) Applying to be an approved foreign party under this subpart, or producing or exporting any product subject to this subpart 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 party, its agents and employees in any court or other tribunal in the United States for conduct that violates the requirements applicable to the foreign party 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 ).(vi) The foreign party, 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 subpart.(vii) In any case where a product produced at a foreign facility is stored or transported by another company between the foreign facility and the point of importation to the United States, the foreign party must obtain from each such other company a commitment that meets the requirements specified in paragraphs (b)(4)(i) through (vi) of this section before the product is transported to the United States, and these commitments must be included in the foreign party's application to be a registered foreign party under this subpart.(c)Sovereign immunity. By submitting an application to be a registered foreign party under this subpart, or by producing or exporting any product subject to this subpart to the United States under such registration, the foreign party, 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 party, its agents and employees in any court or other tribunal in the United States for conduct that violates the requirements applicable to the foreign party 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 ).(d)English language reports. Any document submitted to EPA by a foreign party must be in English, or must include an English language translation.(e)Foreign RNG producer contractual relationship. A non-RIN generating foreign RNG producer must establish a contractual relationship with an RNG importer, prior to the sale of RIN-less RNG.(f)Withdrawal or suspension of registration. EPA may withdraw or suspend a foreign party's registration where any of the following occur: (1) The foreign party fails to meet any requirement of this subpart.(2) The foreign government fails to allow EPA inspections or audits as provided in paragraph (b)(4)(i) of this section.(3) The foreign party asserts a claim of, or a right to claim, sovereign immunity in an action to enforce the requirements in this subpart.(4) The foreign party fails to pay a civil or criminal penalty that is not satisfied using the bond required under paragraph (b)(2) of this section.(g)Additional requirements for applications, reports, and certificates. Any application for registration as a foreign party, or any report, certification, or other submission required under this subpart by the foreign party, must be: (1) Submitted using formats and procedures specified by EPA.(2) Signed by the RCO of the foreign party's company.(3) 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 PARTY] 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, subparts E and M, and that the information is material for determining compliance under these regulations.
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, subparts E and M, including 40 CFR 80.160 , 80.1466 , and 80.1467 apply to [NAME OF FOREIGN PARTY]. Pursuant to Clean Air Act section 113(c) and 18 U.S.C. 1001 , the penalty for furnishing false, incomplete, or misleading information in this certification or submission is a fine of up to $10,000 U.S., and/or imprisonment for up to five years."
(h)Requirements for RNG importers. An RNG importer must meet all the following requirements: (1) For each imported batch of RNG, the RNG importer must have an independent third party that meets the requirements of § 80.1450(b)(2)(i) and (ii) do all the following: (i) Determine the volume of RNG, in Btu LHV, injected into the natural gas commercial pipeline system as specified in § 80.155 .(ii) Determine the name and EPA-assigned company and facility identification numbers of the foreign non-RIN generating RNG producer that produced the RNG.(2) The independent third party must submit reports to the foreign non-RIN generating RNG producer and the RNG importer within 30 days following the date the RNG was injected into a natural gas commercial pipeline system for import into the United States containing all the following:(i) The statements specified in paragraph (g) of this section.(ii) The name of the foreign non-RIN generating RNG producer, containing the information specified in paragraph (g) of this section, and including the identification of the natural gas commercial pipeline system terminal at which the product was offloaded.(iii) PTDs showing the volume of RNG, in Btu LHV, transferred from the foreign non-RIN generating RNG producer to the RNG importer.(3) The RNG 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.