(2) Disqualification under this paragraph (e) shall not apply in the case of a merger between two approved small refiners.

(3) Any refiner that acquires a refinery from another refiner with approved small refiner or small volume refinery status under this subpart shall notify EPA in writing no later than 20 days following the acquisition.

(f) If EPA finds that a refiner provided false or inaccurate information in its small refiner status or small volume refinery status application under this subpart, the refiner's small refiner or small volume refinery status will be void as of the effective date of this subpart.

(g) Small refiner and small volume refinery status applications, and any other correspondence required by this section, §80.1620, and/or §80.1621 shall be sent to one of the following addresses:

(1) For U.S. Mail: U.S. EPA -- Attn: Tier 3 Program (Small Refiner/Small Volume Refinery), 6406J, 1200 Pennsylvania Avenue, NW., Washington, DC 20460.

(2) For overnight or courier services: U.S. EPA, Attn: Tier 3 Program (Small Refiner/Small Volume Refinery), 6406J, 1310 L Street, NW, 6th floor, Washington, DC 20005.

§§80.1623 -- 80.1624	[Reserved]

§80.1625 Hardship provisions.

EPA may, at its discretion, grant a refiner of gasoline that processes crude oil through refinery processing units, for one or more of its refineries, temporary relief from some or all of the provisions of this subpart.

(a) Extreme hardship circumstances.

(1) EPA may, at its discretion, grant a refiner of gasoline that processes crude oil through refinery processing units, for one or more of its refineries, temporary relief from some or all of the provisions of this subpart.  EPA may grant such relief provided that the refiner demonstrates all of the following:

(i) Unusual circumstances exist that impose extreme hardship and significantly affect the refiner's ability to comply by the applicable date.

(ii) It has made best efforts to comply with the requirements of this subpart.

(2) The application must specify the factors that demonstrate a significant economic hardship and must provide a detailed discussion regarding the inability of the refinery to produce gasoline meeting the requirements of §80.1603. Such an application must include, at a minimum, all of the following information:

(i) Documentation of efforts made to obtain necessary financing, including all the following:

(A) Copies of loan applications for the necessary financing of the construction of appropriate sulfur reduction technology and other equipment procurements or improvements.

(B) If financing has been disapproved or is otherwise unsuccessful, documents supporting the basis for that disapproval and evidence of efforts to pursue other means of financing.

(ii) A detailed analysis of the reasons the refinery is unable to produce gasoline meeting the standards of this subpart O in 2017, including costs, specification of equipment still needed, potential equipment suppliers, and efforts already completed to obtain the necessary equipment.

(iii) If unavailability of equipment is part of the reason for the inability to comply, a discussion of other options considered, and the reasons these other options are not feasible.

(iv) If relevant, a demonstration that a needed or lower cost technology is immediately unavailable, but will be available in the near future, and full information regarding when and from what sources it will be available.

(v) Schematic drawings of the refinery configuration as of January 1, 2011, and as of the date of the hardship extension application, and any planned future additions or changes.

(vi) If relevant, a demonstration that a temporary unavailability exists of engineering or construction resources necessary for design or installation of the needed equipment.

(vii)  A detailed analysis of the reasons the refinery is unable to use credits to meet the gasoline standards of this subpart O, including all avenues pursued to generate and/or procure credits, their cost, and ability to finance them.

(viii) A discussion of any sulfur reductions that can be achieved from current levels.

(ix) The date the refiner anticipates compliance with the standards in §80.1603 can be achieved at its refinery

(x) An analysis of the economic impact of compliance on the refiner's business (including financial statements from the last 5 years, or for any time period up to 10 years, at EPA's request).

(xi) Any other information regarding other strategies considered, including strategies or components of strategies that do not involve installation of equipment, and why meeting the standards in §80.1603 beginning in 2017 (or 2020 for approved small refiners and small volume refineries) is infeasible.

(3) Hardship applications under this paragraph (a) must be submitted to EPA by March 31, 2014 to one of the addresses listed in paragraph (d) of this section.

(b) Extreme unforeseen circumstances hardship.

(1) In appropriate extreme, unusual, and unforeseen circumstances (for example, natural disaster or refinery fire) which are clearly outside the control of the refiner or importer and which could not have been avoided by the exercise of prudence, diligence, and due care, EPA may permit a refiner or importer, for a brief period, to distribute gasoline which does not meet the requirements of this subpart for all of the following reasons:

(i) It is in the public interest to do so (e.g., distribution of the nonconforming gasoline is necessary to meet projected shortfalls which cannot otherwise be compensated for).

(ii) The refiner or importer exercised prudent planning and was not able to avoid the violation and has taken all reasonable steps to minimize the extent of the nonconformity.

(iii) The refiner or importer can show how the requirements for making compliant gasoline, and/or purchasing credits to partially or completely offset the nonconformity, will be expeditiously achieved.

(iv) The refiner or importer agrees to make up any air quality detriment associated with the nonconforming gasoline, where practicable.

(v) The refiner or importer pays to the U.S. Treasury an amount equal to the economic benefit of the nonconformity minus the amount expended pursuant to paragraph (b)(1)(iv) of this section, in making up the air quality detriment.

 (2) The hardship application must meet all other applicable requirements of this section, except paragraph (a) of this section.

(c) The hardship extension application must contain a letter signed by the president or the chief operating or chief executive officer of the company, or his/her designee, stating that the information contained in the application is true to the best of his/her knowledge.

(d) Hardship applications under this section must be submitted in writing to one of the following addresses:

(1) For U.S. Mail: U.S. EPA -- Attn: Tier 3 Program (Hardship Application), 6406J, 1200 Pennsylvania Avenue, NW., Washington, DC 20460.

(2) For overnight or courier services: U.S. EPA, Attn: Tier 3 Program (Hardship Application), 6406J, 1310 L Street, NW, 6th floor, Washington, DC 20005.

§80.1630 Sampling and testing requirements for refiners and importers.

(a) Sample and test each batch of gasoline.

(1) Refiners and importers shall collect a representative sample from each batch of gasoline produced or imported and test each sample to determine its sulfur content for compliance with requirements under this subpart prior to the gasoline leaving the refinery or import facility, using the sampling and testing methods provided in this section or §§80.8 (sampling) and 80.47 (testing).

(2) Except as provided in paragraph (a)(3) of this section, the requirements of this section apply beginning January 1, 2017.

(3)(i) Beginning January 1, 2017, any refiner who produces gasoline using computer-controlled in-line blending equipment is exempt from the requirement of paragraph (a)(1) of this section to obtain the test results required under paragraph (a)(1) of this section prior to the gasoline leaving the refinery, provided that the refiner obtains an exemption from this requirement from EPA.  To obtain such exemption, the refiner must:

(A) Have been granted an in-line blending exemption under §80.65(f)(4); or

(B) If the refiner has not been granted an exemption under §80.65(f)(4), submit to EPA all of the information required under §80.65(f)(4)(i)(A).  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 submission is true to the best of his/her belief must accompany any submission under this paragraph (a)(3)(i)(B).

(ii) Refiners who seek an exemption under paragraph (a)(3)(i) of this section must comply with any request by EPA for additional information or any other requirements that EPA includes as part of the exemption.

(iii) Within 60 days of EPA's receipt of a submission under paragraph (a)(3)(i)(B) of this section, EPA will notify the refiner if the exemption is not approved or of any deficiencies in the refiner's submission, or if any additional information is required or other requirements are included in the exemption pursuant to paragraph (a)(4)(ii) of this section. In the absence of such notification from EPA, the effective date of an exemption under paragraph (a)(4)(i) of this section for refiners who do not hold an exemption under §80.65(f)(4) is 60 days from EPA's receipt of the refiner's submission under paragraph (a)(4)(i)(B) of this section.

(iv) EPA reserves the right to modify the requirements of an exemption under paragraph (a)(3)(i) of this section, in whole or in part, at any time, if EPA determines that the refiner's operation does not effectively or adequately control, monitor or document the sulfur content of the refinery's gasoline production, or if EPA determines that any other circumstances exist which merit modification of the requirements of an exemption, such as advancements in the state of the art for in-line blending measurement which allow for additional control or more accurate monitoring or documentation of sulfur content.  If EPA finds that a refiner provided false or inaccurate information in any submission required for an exemption under this section, upon notification from EPA, the refiner's exemption will be void ab initio.

(b) Sampling methods.  For purposes of paragraph (a) of this section, refiners and importers shall sample each batch of gasoline by using one of the methods specified in 40 CFR 80.8.

(c) Test method for measuring sulfur content of gasoline.

(1) For purposes of paragraph (a) of this section, refiners and importers shall use the method provided in §80.47, as applicable, to measure the sulfur content of gasoline they produce or import.

(2) Sulfur content shall be reported to the nearest ppm.

§80.1631 Sample retention requirements.

(a) Sample retention requirements.  Beginning January 1, 2017, or January 1 of the first year credits are generated under §80.1615, whichever is earlier, any refiner or importer shall do all of the following:

(1) Collect a representative portion of each sample analyzed under §80.1630, of at least 330 milliliters in volume.

(2) Retain sample portions for the most recent 20 samples collected, or for each sample collected during the most recent 21 day period, whichever is greater, not to exceed 90 days for any given sample.

(3) Comply with the gasoline sample handling and storage procedures under §80.1630 for each sample portion retained.

(4) Comply with any request by EPA to:

(i) Provide a retained sample portion to the Administrator's authorized representative; and

(ii) Ship a retained sample portion to EPA, within 2 working days of the date of the request, by an overnight shipping service or comparable means, to the address and following procedures specified by EPA, and accompanied with the sulfur test result for the sample determined under §80.1630.

(b) Sample retention requirement for samples subject to independent analysis requirements.

(1) Any refiner or importer who meets the independent analysis requirements under §80.65(f) for any batch of reformulated gasoline or RBOB will have met the requirements of paragraph (a) of this section, provided the independent laboratory meets the requirements of paragraph (a) of this section for the gasoline batch; except that the retained RBOB sample for purposes of this subpart O must be a sample of the RBOB prior to hand blending with oxygenate.

(2) For samples retained by an independent laboratory under this paragraph (b), the test results required to be submitted under paragraph (a) of this section shall be the test results determined under §80.65(e).

(c) Sampling compliance certification.  Any refiner or importer shall include with each annual report filed under §80.1652, the following statement, which must accurately reflect the facts and must be signed and dated by the same person who signs the annual report:
	I certify that I have made inquiries that are sufficient to give me knowledge of the procedures to collect and store gasoline samples, and I further certify that the procedures meet the requirements of the ASTM procedures required under 40 CFR 80.1630.

(d) Prior to January 1, 2017, for purposes of complying with the requirements of this section, refiners who analyze composited samples under §80.1630 must retain portions of the composited samples. Portions of samples of each batch comprising the composited samples are not required to be retained.

(e) For purposes of complying with the requirements of this section for RBOB, a sample of each RBOB batch produced must be retained.

§80.1640 Standards and requirements that apply to refiners producing gasoline by blending blendstocks into PCG.

(a) Any refiner who produces gasoline by blending blendstock into PCG, as defined at §80.2(d), must meet the requirements of §80.1630 to sample and test every batch of gasoline as follows:

(1) Exclude the PCG for purposes of demonstrating compliance with the sulfur standards of this subpart O.

(2) To accomplish the exclusion required in paragraph (a)(5) of this section, the refiner must determine the volume and sulfur content of the PCG used at the refinery and the volume of and sulfur content of the gasoline produced at the refinery, and use the compliance calculation procedures in paragraphs (a)(1)(iii) and (a)(1)(iv) of this section.

(3) For each batch of PCG that is used to produce gasoline the refiner must include the volume and sulfur content of the PCG as a negative volume and a positive sulfur content in the refiner's compliance calculations in accord with the requirements at §80.1603.

(4) For each batch of gasoline produced at the refinery using PCG and blendstock, the refiner must determine the volume and sulfur content of the combined product and include each batch of combined product for purposes of sulfur compliance in the refinery's compliance calculations at §80.1603 without regard to the presence of previously certified gasoline in the batch.

(5) The refiner must use any  PCG that it includes as a negative batch in its compliance calculations pursuant to §80.1603 as a component in gasoline production during the annual averaging period in which the PCG was included as a negative batch in the refiner's compliance calculations.

(6) The refiner must also comply with §80.65(i) when producing RBOB or RFG and §80.101(g)(9) when producing conventional gasoline or CBOB.

(7) Any negative annual average sulfur value shall be reported as zero and not as a negative result.

(b) In the alternative, a refiner may sample and test each batch of blendstock when received at the refinery to determine the volume and sulfur content, and treat each blendstock receipt as a separate batch for purposes of compliance calculations for the annual average sulfur standard and for reporting.  This alternative applies only if every batch of blendstock used at a refinery during an averaging period has a sulfur content that is equal to, or less than, the applicable per-gallon cap standard under §80.1603.

(c) Refiners who blend only butane into PCG may meet the sampling and testing requirements of this subpart O for sulfur by using sulfur test results of the butane supplier, provided that the requirements of §80.82 are met.

§80.1641 Alternative sulfur standards and requirements that apply to importers who transport gasoline by truck.

Importers who import gasoline into the United States by truck may comply with the following requirements instead of the requirements to sample and test every batch of gasoline under §80.1630, and the annual sulfur average and per-gallon cap standards otherwise applicable to importers under §80.1603:

(a) Alternative standards.  The imported gasoline must comply with the standard in paragraph (a)(1) or (a)(2) of this section as follows:

(1) The annual average standard of 10 ppm and the per-gallon standard of 80 ppm as provided by §80.1603; or

(2) A per-gallon standard of 10 ppm.

(b) Terminal testing.  The importer may use test results for sulfur content testing conducted by the terminal operator, for gasoline contained in the storage tank from which trucks used to transport gasoline into the United States are loaded, for purposes of demonstrating compliance with the standards in paragraph (a) of this section, provided all the following conditions are met:

(1) The sampling and testing shall be performed after each receipt of gasoline into the storage tank, or immediately before each transfer of gasoline to the importer's truck.

(2) The sampling and testing shall be performed using the methods specified in §§80.8 and 80.47, respectively.

(3) At the time of each transfer of gasoline to the importer's truck for import to the U.S., the importer must obtain a copy of the terminal test result that indicates the sulfur content of the truck load (or each compartment if fuel was loaded from different storage tanks).

(c) Quality assurance program. The importer must conduct a quality assurance program, as specified in this paragraph, for each truck loading terminal.

(1) Quality assurance samples must be obtained from the truck-loading terminal and tested by the importer, or by an independent laboratory, and the terminal operator must not know in advance when samples are to be collected.

(2) The sampling and testing must be performed using the methods specified in §§80.8 and 80.47, respectively.

(3) The quality assurance test results for sulfur must differ from the terminal test result by no more than the ASTM International (ASTM) reproducibility of the terminal's test results, as determined by the following equation:

		R = 105 x ((S +2)/10[4])[0.4]
Where:
	R = ASTM reproducibility.
	S = Sulfur content based on the terminal's test result.

(4) The frequency of the quality assurance sampling and testing must be at least one sample for each fifty of an importer's trucks that are loaded at a terminal, or one sample per month, whichever is more frequent.

(d) Party required to conduct quality assurance testing.  The quality assurance program under paragraph (c) of this section shall be conducted by the importer. In the alternative, this testing may be conducted by an independent laboratory that meets the criteria under §80.65(f)(2)(iii), provided the importer receives, no later than 21 days after the sample was taken, copies of all results of tests conducted.

(e) Assignment of batch numbers. The importer must treat each truck load of imported gasoline as a separate batch for purposes of assigning batch numbers and maintaining records under §80.1653, and reporting under §80.1652.

(f) EPA inspections of terminals. EPA inspectors or auditors, and auditors conducting attest engagements under §80.1667, must be given full and immediate access to the truck-loading terminal and any laboratory at which samples of gasoline collected at the terminal are analyzed, and must be allowed to conduct inspections, review records, collect gasoline samples, and perform audits. These inspections or audits may be either announced or unannounced.

(g) Certified Sulfur-FRGAS.  This section does not apply to Certified Sulfur-FRGAS.

(h) Reporting requirements.  Any importer who elects to comply with the alternative standards in paragraph (a) of this section shall comply with the following requirements:

(1) All importer recordkeeping and reporting requirements under §§80.1653 and 80.1652, except as provided in paragraph (h)(2) of this section.

(2) An importer who elects to comply with the alternative standards in paragraph (a)(2) of this section must certify in the annual report whether it is in compliance with the applicable per-gallon batch standard set forth in paragraph (a)(2) of this section, in lieu of providing the information required by §80.1652 regarding annual average sulfur content and compliance with the average standard under §80.1603.

(i) Effect of noncompliance.  If any of the requirements of this section are not met, all gasoline imported by the truck importer during the time any requirements are not met is deemed in violation of the gasoline sulfur average and per-gallon cap standards in §80.1603.  Additionally, if any requirement is not met, EPA may notify the importer of the violation and, if the requirement is not fulfilled within 10 days of notification, the truck importer may not in the future use the sampling and testing provisions in this section in lieu of the provisions in §80.1630.

§§80.1642-§80.1649 [Reserved]

§80.1650 Registration.

The following registration requirements apply under this subpart:

(a) Registration with the Administrator of EPA is required for any:

(1) Gasoline refiner or importer having any refinery or import facility subject to the gasoline sulfur standards under this subpart O.

(2) Oxygenate producer or importer having any oxygenate production facility or import facility subject to the oxygenate sulfur standards under §80.1610 unless already registered under §80.1450.

(3) Oxygenate blender who has any oxygenate blending facility that blends oxygenate into RBOB where the resulting gasoline is subject to the gasoline sulfur standards under this subpart O.

(b) Registration dates.

(1) Any gasoline refiner or importer  required to register shall do so by March 31, 2013, or at least thirty days in advance of the first date that such person will produce or import reformulated gasoline, conventional gasoline, RBOB, or CBOB,  whichever is later.

(2) Any oxygenate producer or importer required to register shall do so by December 1, 2017, or at least thirty days in advance of the first date that such person will produce or import oxygenate, whichever is later.

(3) Any oxygenate blender required to register shall do so by March 31, 2013, or at least thirty days in advance of the first date that such person will blend oxygenate into RBOB, whichever is later.

(c) Refiner registration.

(1) Registration shall be on forms prescribed by the Administrator, and shall include all the following information:

(i) The name, business address, contact name, e-mail address, and telephone number of the refiner.

(ii) For each separate refinery, the facility name, physical location, contact name, e-mail address, telephone number, and type of facility.

(iii) For each separate refinery:

(A) Whether records are kept on-site or off-site of the refinery.

(B) If records are kept off-site, the primary off-site storage facility name, physical location, contact name, e-mail address, and telephone number.

(iv) For each separate refinery that produces reformulated gasoline and/or RBOB, the name, address, contact name, e-mail address, and telephone number of the independent laboratory used to meet the independent analysis requirements of §80.65(f).

(2) EPA will supply a company registration number to each refiner, and a facility registration number for each refinery that is identified. These registration numbers shall be used in all reports to the Administrator.

(3) Updates to registration.

(i) Any refiner shall submit updated registration information to the Administrator within thirty days of any occasion when the registration information previously supplied becomes incomplete or inaccurate; except that

(ii) EPA must be notified in writing of any change in designated independent laboratory under paragraph (a)(1)(iv) of this section at least thirty days in advance of such change.

(d) Gasoline importer registration.

(1) Registration shall be on forms prescribed by the Administrator, and shall include all the following information:

(i) The name, business address, contact name, e-mail address, and telephone number of the importer.

(ii) For each importer's operations in a single PADD:

(A) Whether records are kept on-site at the registered address or off-site.

(B) If records are kept off-site, the primary off-site storage facility name, physical location, contact name, e-mail address, and telephone number.

(C) For importers that import reformulated gasoline and/or RBOB, the name, address, contact name and telephone number of the independent laboratory used to meet the independent analysis requirements of §80.65(f).

(2) EPA will supply a company registration number to each importer.  This registration number shall be used in all reports to the Administrator.

(3) Updates to registration.

(i) Any importer shall submit updated registration information to the Administrator within thirty days of any occasion when the registration information previously supplied becomes incomplete or inaccurate; except that

(ii) EPA must be notified in writing of any change in designated independent laboratory under paragraph (d)(1)(ii)(C) of this section at least thirty days in advance of such change.

(e) Oxygenate producer registration.

(1) Registration shall be on forms prescribed by the Administrator, and shall include all the following information:

(i) The name, business address, contact name, e-mail address, and telephone number of the oxygenate producer.

(ii) For each separate oxygenate production facility, the facility name, physical location, contact name, telephone number, and type of facility.

(iii) For each separate oxygenate production facility:

(A) Whether records are kept on-site or off-site of the refinery.

(B) If records are kept off-site, the primary off-site storage facility name, physical location, contact name, and telephone number.

(2) EPA will supply a company registration number to each oxygenate producer, and a facility registration number for each oxygenate production facility that is identified.  These registration numbers or those provided under §80.1450 shall be used in all reports to the Administrator.

(3) Updates to registration.  Any oxygenate producer shall submit updated registration information to the Administrator within thirty days of any occasion when the registration information previously supplied becomes incomplete or inaccurate.

(f) Oxygenate importer registration.

(1) Registration shall be on forms prescribed by the Administrator, and shall include all the following information:

(i) The name, business address, contact name, and e-mail address, telephone number of the importer.

(ii) For each importer's operations in a single PADD:

(A) Whether records are kept on-site at the registered address or off-site.

(B) If records are kept off-site, the primary off-site storage facility name, physical location, contact name, e-mail address, and telephone number.

(2) EPA will supply a company registration number to each importer.  This registration number shall be used in all reports to the Administrator.

(g) Oxygenate blender registration.

(1) Registration shall be on forms prescribed by the Administrator, and shall include all the following information:

(i) The name, business address, contact name, and e-mail address, telephone number of the oxygenate blender.

(ii) For each separate oxygenate blending facility, the facility name, physical location, contact name, telephone number, and type of facility.

(iii) For each separate oxygenate blending facility:

(A) Whether records are kept on-site or off-site of the refinery.

(B) If records are kept off-site, the primary off-site storage facility name, physical location, contact name, e-mail address, and telephone number.

(2) EPA will supply a company registration number to each oxygenate blender, and a facility registration number for each oxygenate blending facility that is identified.  These registration numbers or those provided under §80.1450 shall be used in all reports to the Administrator.

(3) Updates to registration.  Any oxygenate producer shall submit updated registration information to the Administrator within thirty days of any occasion when the registration information previously supplied becomes incomplete or inaccurate.

§80.1651 Product transfer document requirements.

(a) On each occasion that any person transfers custody or title to any gasoline, RBOB, CBOB, or oxygenate other than when gasoline is sold or dispensed for use in motor vehicles at a retail outlet or wholesale purchaser-consumer facility, the transferor shall provide to the transferee documents which include all the following information:

(1) The name and address of the transferor.

(2) The name and address of the transferee.

(3) The volume of gasoline, RBOB, CBOB, or oxygenate which is being transferred.

(4) The location of the gasoline, RBOB, CBOB, or oxygenate at the time of the transfer.

(5) The date of the transfer.

(b) On each occasion when any person transfers custody or title to any gasoline for export or with an exemption under §§80.1654, 80.1655, 80.1656, and/or 80.1658, any of the following statements must be included on the product transfer document:

(1) For gasoline with a national security exemption under §80.1655, "This gasoline is for use in vehicles, engines, or equipment under an EPA-approved national security exemption only.".

(2) For gasoline with a research, development, or testing exemption under §80.1656, "This gasoline is for research, development, or testing purposes only.".

(3) For gasoline for use in American Samoa, Guam, and the Commonwealth of the Northern Mariana Islands under §80.1658, "This is gasoline for use only in Guam, American Samoa, or the Northern Mariana Islands.".

(4) For gasoline for export purposes, "This gasoline is for export only.".

(5) For gasoline for racing purposes, "This gasoline is for racing purposes only.".

(6) For California gasoline, pursuant to §80.1654, "California gasoline.".

(c) On each occasion when any person transfers custody or title to any gasoline additive intended to be used at less than 1 volume percent, other than when gasoline is sold or dispensed for use in motor vehicles at a retail outlet or wholesale purchaser-consumer facility, the transferor shall provide to the transferee documents which include information on the maximum recommended treatment level.

§80.1652 Reporting requirements.

Beginning with the 2017 averaging period or the first year credits are generated under §80.1615 (whichever is earlier), and continuing for each averaging period thereafter, any refiner or importer, and any oxygenate producer or importer, shall submit to EPA annual reports that contain the information required in this section, and any other information as EPA may require.

(a) Refiner and importer annual reports.  Any refiner, for each of its refineries, and any importer for the gasoline it imports, shall submit a report for each calendar year averaging period that includes all the following information:

(1) The EPA importer, or refiner and refinery facility registration numbers.

(2) The average standard under §80.1603, reported to two (2) decimal places.

(3) The total volume of gasoline produced or imported, reported to the nearest whole number.

(4) The annual average sulfur level of the gasoline produced or imported, reported to two (2) decimal places.

(5) The annual average sulfur level after inclusion of any credits, reported to two (2) decimal places.

(6) Separately provided information for credits, and separately by year of creation, as follows:

(i) The number of credits at the beginning of the averaging period, reported to the nearest whole number.

(ii) The number of credits generated, reported to the nearest whole number.

(iii) The number of credits used, reported to the nearest whole number.

(iv) If any credits were obtained from or transferred to other parties; and for each other party, its name and EPA refiner or importer registration number, and the number of credits obtained from or transferred to the other party.

(v) The number of credits that expired at the end of the averaging period, reported to the nearest whole number.

(vi) The number of credits that will carry over into the subsequent averaging period, reported to the nearest whole number.

(7) For each batch of gasoline produced or imported during the averaging period, all of the following:

(i) The batch number assigned under §80.65(d)(3); except that if composite samples of conventional gasoline representing multiple batches produced subsequent to December 31, 2003, are tested under §80.101(i)(2) for anti-dumping compliance purposes, for purposes of this subpart a separate batch number must be assigned to each batch using the batch numbering procedures under §80.65(d)(3).

(ii) The date the batch was produced.

(iii) The volume of the batch, reported to the nearest whole number.

(iv) The sulfur content of the batch, reported to two (2) decimal places, along with identification of the test method used to determine the sulfur content of the batch, as determined under §80.1630.

(8) All values measured or calculated pursuant to the requirements of this paragraph (a) shall be in accordance with the rounding procedure specified in §80.9.

(9) When submitting reports under this paragraph (a) from January 1, 2017 through December 31, 2019, any importer shall exclude Certified Sulfur-FRGAS.

(b) Additional reporting requirements for importers.  From January 1, 2017 through December 31, 2019, importers shall report all of the following information for Sulfur-FRGAS imported during an annual averaging period:

(1) The EPA refiner and refinery registration numbers of each foreign refiner and refinery where the Certified Sulfur-FRGAS was produced.

(2) The total gallons of Certified Sulfur-FRGAS and Non-Certified Sulfur-FRGAS imported from each foreign refiner and refinery, reported to one (1) decimal place.

(c) Oxygenate producer reports.  On an annual basis, the producer of DFE or other oxygenate must submit a summary report to EPA which includes all of the following:

(1) The facility identification information provided pursuant to §80.1650.

(2) The total volume of all batches of DFE and other oxygenate produced.

(3) An attestation that all of the batches of DFE and other oxygenate produced during the compliance period were in compliance with the requirements of this subpart.

(d) Report submission.  Any annual report required under this section shall be:

(1) Signed and certified as meeting all of the applicable requirements of this subpart by the owner or a responsible corporate officer of the refiner or importer; and

(2) Submitted to EPA no later than the March 31 each year for the prior calendar year averaging period.

(e) Attest reports.  Attest reports for refiner and importer attest engagements required under §80.1667 shall be submitted to the Administrator by May 31 of each year for the prior calendar year averaging period.

§80.1653 Recordkeeping.

(a) Records that must be kept.  Beginning January 1, 2017 or January 1 of the first year that credits are generated, any person who produces, imports, sells, offers for sale, dispenses, distributes, supplies, offers for supply, stores, or transports gasoline, shall keep records that contain all of the following information:

(1) The product transfer document information required under §80.1651.

(2) All of the following information for any sampling and testing for sulfur content required under this subpart O:

(i) The location, date, time, and storage tank or truck identification for each sample collected.

(ii) The name and title of the person who collected the sample and the person who performed the test.

(iii) The results of the test as originally printed by the testing apparatus, or where no printed result is produced, the results as originally recorded by the person who performed the test.

(iv) Any record that contains a test result for the sample that is not identical to the result recorded under paragraph (a)(2)(iii) of this section.

(v) The test methodology used.

(b) Additional records that refiners and importers must keep.  Beginning January 1, 2014, or January 1 of the first year credits are generated under §80.1615, whichever is earlier, any refiner for each of its refineries and any importer for the gasoline it imports, shall keep records that include all of the following information:

(1) For each batch of gasoline produced or imported:

(i) The batch volume.

(ii) The batch number assigned under §80.65(d)(3) and the appropriate designation under paragraph (b)(1)(iv) of this section; except that for composite samples of conventional gasoline representing multiple batches , that are tested under §80.101(i)(2) for purposes of this subpart, a separate batch number must be assigned to each batch using the batch numbering procedures under §80.65(d)(3).

(iii) The date of production or importation.

(iv) If appropriate, the designation of the batch as California gasoline under §80.1654, exempt gasoline for national security purposes under §80.1655, exempt gasoline for research and development under §80.1656, or for export outside the United States.

(v) The test methodology used.

(2) Information regarding credits, separately kept according to the year of creation; and for credit generation or use starting in 2014.  Information shall be kept separately for different types of credits generated under §80.1615:

(i) The number of credits in the refiner's or importer's possession at the beginning of the averaging period.

(ii) The number of credits generated.

(iii) The number of credits used.

(iv) If any credits were obtained from or transferred to other parties, all the following for each other party:

(A) The party's name.

(B) The party's EPA refiner or importer registration number.

(C) The number of credits obtained from, or transferred to, the party.

(v) The number of credits that expired at the end of the averaging period.

(vi) The number of credits in the refiner's or importer's possession that will carry over into the subsequent averaging period.

(vii) Contracts or other commercial documents that establish each transfer of credits from the transferor to the transferee.
(3) The calculations used to determine compliance with the applicable sulfur average standards of §80.1603, or §80.1604.

(4) The calculations used to determine the number of credits generated under §80.1615.

(5) A copy of all reports submitted to EPA under §80.1652.

(6) In the case of parties who process transmix, records of any sampling and testing required under §80.1607.

(c) Additional records importers must keep.  Any importer shall keep records that identify and verify the source of each batch of certified Sulfur-FRGAS and non-certified Sulfur-FRGAS imported and demonstrate compliance with the requirements for importers under §80.1666.

(d) Records that producers of denatured fuel ethanol and other oxygenates must keep.

(1) The date each batch was produced.

	(2) The batch volume and an identification of the test methodology used.

	(3) The test results on the sulfur content of each batch and the test methodology used.

(4) The volume percent denaturant used in each batch if the oxygenate is denatured fuel ethanol.

	(5) The type and source of the denaturant used in each batch if the oxygenate if
denatured fuel ethanol.

(e) Records that parties that take custody of oxygenates must keep.  All parties that take custody of oxygenate from the oxygenate producer through to the oxygenate blender must keep a copy of the product transfer document for each batch of oxygenate.

(f) Length of time records must be kept.  The records required under this subpart O shall be kept for five years from the date they were created; except in the following cases:

(1) Transfers of credits.  Except as provided in paragraph (f)(2) of this section, records relating to credit transfers shall be kept by the transferor for 5 years from the date the credits are transferred; and shall be kept by the transferee for 5 years from the date the credits were transferred, used, or terminated, whichever is later.

(2) Early credits.

(i) Where the party generating the credits does not transfer the credits, records must be kept for 5 years from the date of creation, use, or termination, whichever is later.

(ii) Where early credits are transferred, records relating to such credits shall be kept by the transferor for 5 years from the date the credits are transferred; and shall be kept by the transferee for 5 years from the date the credits were transferred, used, or terminated, whichever is later.

(g) Make records available to EPA.  On request by EPA the records required in this section shall be provided to the Administrator's authorized representative.  For records that are electronically generated or maintained, the equipment and software necessary to read the records shall be made available; or, if requested by EPA, electronic records shall be converted to paper documents which shall be provided to the Administrator's authorized representative.

§80.1654 California gasoline requirements.

(a) California gasoline exemption.  California gasoline that complies with all the requirements of this section is exempt from all other provisions of this subpart O.

(b) Requirements for California gasoline.

(1) Each batch of California gasoline must be designated as such by its refiner or importer.

(2) Designated California gasoline must be kept segregated from gasoline that is not California gasoline, at all points in the distribution system.

(3) Designated California gasoline must ultimately be used in the State of California and not used elsewhere.

(4) For California gasoline produced outside the State of California, the transferors and transferees must meet the product transfer document requirements of paragraph (b)(5) of this section.

(5)(i) Any refiner that operates a refinery located outside the State of California at which California gasoline (as defined in §80.1600) is produced must provide to any person to whom custody or title of such gasoline has transferred, and each transferee must provide to any subsequent transferee, documents which include all the following information:

(A) The name and address of the transferor.

(B) The name and address of the transferee.

(C) The volume of gasoline which is being transferred.

(D) The location of the gasoline at the time of the transfer.

(E) The date and time of the transfer.

(F) The identification of the gasoline as California gasoline.

(ii) Each refiner and transferee of California gasoline must maintain copies of the product transfer documents required to be provided by paragraph (b)(5)(i) of this section for a period of five years from the date of creation and shall deliver such documents to the Administrator or to the Administrator's authorized representative upon request.

(6) Gasoline that is ultimately used in any part of the United States outside of the State of California must comply with the standards and requirements of this subpart, regardless of any designation as California gasoline.

(d) Use of California test methods and offsite sampling procedures.  In the case of any gasoline that is not California gasoline and that is either produced at a refinery located in the State of California or is imported from outside the United States into the State of California, the refiner or importer may, with regard to such gasoline:

(1) Use the sampling and testing methods approved in Title 13 of the California Code of Regulations instead of the sampling and testing methods required under §80.1630; and

(2) Determine the sulfur content of gasoline at offsite tankage (which would otherwise be prohibited under §80.65(e)(1)).

(i) Note that the requirements of §80.65(e)(1), regarding when the properties of a batch of reformulated gasoline must be determined, specify that the properties of a batch of gasoline be determined prior to the gasoline leaving the refinery or import facility; however, under this section, a refiner of California gasoline may determine the properties of gasoline as specified under §80.65(e)(1) at offsite tankage provided that:

(A) The samples are properly collected under the terms of a current and valid protocol agreement between the refiner and the California Air Resources Board with regard to sampling at the offsite tankage and consistent with the requirements prescribed in Title 13, California Code of Regulations, section 2250 et seq. (May 1, 2003); and

(B) The refiner provides a copy of the protocol agreement to EPA upon request.

§80.1655 National security exemptions.

(a) The standards of §80.1603 do not apply to gasoline that is produced, imported, sold, offered for sale, supplied, offered for supply, stored, dispensed, or transported for use in any of the following:

(1) Tactical military vehicles, engines, or equipment having an EPA national security exemption from the gasoline emission standards under 40 CFR part 86.

(2) Tactical military vehicles, engines, or equipment that are not subject to a national security exemption from vehicle or engine emissions standards as described in paragraph (a)(1) of this section but, for national security purposes (for purposes of readiness for deployment oversees), need to be fueled on the same gasoline as the vehicles, engines, or equipment for which EPA has granted such a national security exemption.

(b) The exempt fuel must meet all the following conditions:

(1) It must be accompanied by product transfer documents as required under §80.1651.

(2) It must be segregated from non-exempt gasoline at all points in the distribution system.

(3) It must be dispensed from a fuel pump stand, fueling truck, or tank that is labeled with the appropriate designation of the fuel.

(4) It may not be used in any vehicles, engines, or equipment other than those referred to in paragraph (a) of this section.

§80.1656 Exemptions for gasoline used for research, development, or testing purposes.

(a) Written request for a research and development exemption.  Any person may receive an exemption from the provisions of this subpart for gasoline used for research, development, or testing ("R&D") purposes by submitting the information listed in paragraph (c) of this section to EPA.  Applications for R&D exemptions must be submitted to one of the addresses in paragraph (h) of this section.

(b) Criteria for a research and development exemption.  For a research and development exemption to be granted, the person requesting an exemption must do all of the following:

(1) Demonstrate a purpose that constitutes an appropriate basis for exemption.

(2) Demonstrate that an exemption is necessary.

(3) Design a research and development program that is reasonable in scope.

(4) Have a degree of control consistent with the purpose of the program and EPA's monitoring requirements.

(c) Information required to be submitted.  To demonstrate each of the elements in paragraph (b) of this section, the person requesting an exemption must include all of the following information:

(1) A concise statement of the purpose of the program demonstrating that the program has an appropriate research and development purpose.

(2) An explanation of why the stated purpose of the program cannot be achieved in a practicable manner without performing one or more of the prohibited acts under this subpart O.

(3) All of the following, to demonstrate the reasonableness of the scope of the program:

(i) An estimate of the program's beginning and ending dates.

(ii) An estimate of the maximum number of vehicles or engines involved in the program and the number of miles and engine hours that will be accumulated on each.

(iii) The sulfur content of the gasoline expected to be used in the program.

(iv) The quantity of gasoline which does not comply with the requirements of §80.1603.

(v) The manner in which the information on vehicles and engines used in the program will be recorded and made available to the Administrator upon request.

(4) With regard to control, a demonstration that the program affords EPA a monitoring capability, including all the following:

(i) A description of the technical and operational aspects of the program.

(ii) The site(s) of the program (including facility name, street address, city, county, State, and zip code).

(iii) The manner in which information on the fuel used in the program (including quantity, fuel properties, name, address, telephone number and contact person of the supplier, and the date received from the supplier), will be recorded and made available to the Administrator upon request.

(iv) The manner in which the party will ensure that the research and development fuel will be segregated from gasoline meeting the standards of this subpart and how fuel pumps will be labeled to ensure proper use of the research and development fuel.

(v) The name, address, telephone number, and title of the person(s) in the organization requesting an exemption from whom further information on the application may be obtained.

(vi) The name, address, telephone number, and title of the person(s) in the organization requesting an exemption who is responsible for recording and making available the information specified in this paragraph (c), and the location where such information will be maintained.

(d) Additional requirements.

(1) The product transfer documents associated with research and development gasoline must comply with requirements of §80.1651(c).

(2) The research and development gasoline must be designated by the refiner or supplier, as applicable, as exempt research and development gasoline.

(3) The research and development gasoline must be kept segregated from non-exempt gasoline at all points in the distribution system.

(4) The research and development gasoline must not be sold, distributed, offered for sale or distribution, dispensed, supplied, offered for supply, transported to or from, or stored by a fuel retail outlet, or by a wholesale purchaser-consumer facility, unless the wholesale purchaser-consumer facility is associated with the research and development program that uses the gasoline.

(5) At the completion of the program, any emission control systems or elements of design which are damaged or rendered inoperative shall be replaced on vehicles remaining in service, or the responsible person will be liable for a violation of the Clean Air Act section 203(a)(3) (42 U.S.C. 7522 (a)(3)) unless sufficient evidence is supplied that the emission controls or elements of design were not damaged.

(e) Memorandum of exemption.  The Administrator will grant an R&D exemption upon a demonstration that the requirements of this section have been met.  The R&D exemption will be granted in the form of a memorandum of exemption signed by the applicant and the Administrator (or delegate), which may include such terms and conditions as the Administrator determines necessary to monitor the exemption and to carry out the purposes of this section, including restoration of emission control systems.

(1) The volume of fuel subject to the approval shall not exceed the estimated amount under paragraph (c)(3) of this section, unless EPA grants a greater amount in writing.

(2) Any exemption granted under this section will expire at the completion of the test program or three years from the date of approval, whichever occurs first, and may only be extended upon re-application consistent will all requirements of this section.

(3) EPA may elect at any time to review the information contained in the request, and where appropriate may notify the responsible person of disapproval of the exemption.

(4) In granting an exemption the Administrator may include terms and conditions, including replacement of emission control devices or elements of design, that the Administrator determines are necessary for monitoring the exemption and for assuring that the purposes of this subpart are met.

(5) Any violation of a term or condition of the exemption, or of any requirement of this section, will cause the exemption to be void ab initio.

(6) If any information required under paragraph (c) of this section should change after approval of the exemption, the responsible person must notify EPA in writing immediately.  Failure to do so may result in disapproval of the exemption or may make it void ab initio, and may make the party liable for a violation of this subpart O.

(f) Effects of exemption.  Gasoline that is subject to a research and development exemption under this section is exempt from other provisions of this subpart O provided that the fuel is used in a manner that complies with the purpose of the program under paragraph (c) of this section and all other requirements of this section.

(g) Notification of completion.  The party shall notify EPA in writing within 30 days after completion of the research and development program.

(h) Requests for research and development exemptions shall be sent to one of the following addresses:

(1) For U.S. Mail: U.S. EPA -- Attn: Tier 3 Program (R&D Exemption Request), 6406J, 1200 Pennsylvania Avenue, NW., Washington, DC 20460.

(2) For overnight or courier services: U.S. EPA, Attn: Tier 3 Program (R&D Exemption Request), 6406J, 1310 L Street, NW., 6th floor, Washington, DC 20005.

§80.1657 [Reserved]

§80.1658 Requirements for gasoline for use in American Samoa, Guam, and the Commonwealth of the Northern Mariana Islands.

The gasoline sulfur standards of this subpart O do not apply to gasoline that is produced, imported, sold, offered for sale, supplied, offered for supply, stored, dispensed, or transported for use in the Territories of Guam, American Samoa or the Commonwealth of the Northern Mariana Islands, provided that such gasoline meets all of the following requirements:

(a) The gasoline is designated by the refiner or importer as high sulfur gasoline only for use in Guam, American Samoa, or the Commonwealth of the Northern Mariana Islands.

(b) The gasoline is used only in Guam, American Samoa, or the Commonwealth of the Northern Mariana Islands.

(c) The gasoline is accompanied by documentation that complies with the product transfer document requirements of §80.1651(c)(3).

(d) The gasoline is segregated from non-exempt high sulfur gasoline at all points in the distribution system from the point the fuel is designated as gasoline only for use in Guam, American Samoa, or the Commonwealth of the Northern Mariana Islands, while the fuel is in the United States but outside these Territories.

§80.1659 [Reserved]

§80.1660 Prohibited acts.

No person shall:

(a) Averaging violation.  Produce or import gasoline that does not comply with the applicable sulfur average standard under §80.1603.

(b) Cap standard violation.  Produce, import, sell, offer for sale, dispense, supply, offer for supply, store or transport gasoline or oxygenate (including any denaturant) that does not comply with the applicable sulfur cap standards under §80.1603, §80.1604, or §80.1610.

(c) Causing an averaging or cap standard violation.  Cause another person to commit an act in violation of paragraph (a), (b), (d), (e), (f), (g), or (h) of this section.

(d) Causing violating gasoline to be in the distribution system.  Cause gasoline to be in the distribution system which does not comply with an applicable sulfur cap standard under §80.1603, §80.1604, or §80.1610.

(e) Oxygenate violation.  Starting March 1, 2017, blend into gasoline, RBOB, or CBOB any oxygenate, including but not limited to denatured ethanol, that has a sulfur content higher than 10 ppm.

(f) Additive blender violation.  Unless acting in the capacity of a gasoline refiner or importer under §80.1613, introduce an additive other than an oxygenate compound into gasoline, CBOB, or RBOB which contributes more than 3 ppm to the sulfur content of the finished gasoline, CBOB, or RBOB.

(g) Additive manufacturer violation.  Cause or contribute to the introduction into commerce of a gasoline additive intended to be used at less than 1 volume percent which does not comply with the requirements of §80.1613.

(h) Credit violation.  Generate, transfer, or use invalid credits or improperly transfer or use credits.

(i) Failure to meet a requirement.  No person shall fail to meet a requirement that applies to that person under this subpart.

§80.1661 What evidence may be used to determine compliance with the prohibitions and requirements of this subpart and liability for violations of this subpart?

(a) Compliance with the sulfur standards of this subpart O shall be determined based on the sulfur level, measured using the methodologies specified in §§80.1630 and 80.47.  Any evidence or information, including the exclusive use of such evidence or information, may be used to establish the sulfur level of gasoline if the evidence or information is relevant to whether the sulfur level would have been in compliance with the standards if the appropriate sampling and testing methodology had been correctly performed.  Such evidence may be obtained from any source or location and may include, but is not limited to, test results using methods other than those specified in §§80.1630 and 80.47, business records, and commercial documents.

(b) Determinations of compliance with the requirements of this subpart other than the sulfur standards, and determinations of liability for any violation of this subpart, may be based on information obtained from any source or location.  Such information may include, but is not limited to, business records and commercial documents.

§80.1662 Liability for violations under subpart O.

The following persons are liable for violations under this subpart:

(a) Persons liable for violations of prohibited acts.

(1) Averaging violation.  Any refiner or importer who violates §80.1660(a) is liable for the violation.

(2) Causing an averaging violation.  Any refiner, importer, distributor, reseller, carrier, retailer, wholesale purchaser-consumer, or oxygenate blender who causes another party to violate §80.1660(a), is liable for a violation of §80.1660(c).

(3) Cap standard violation.  Any refiner, importer, distributor, reseller, carrier, retailer, wholesale purchaser-consumer, oxygenate producer, oxygenate blender, additive manufacturer, or additive blender who owned, leased, operated, controlled or supervised a facility where a violation of §80.1660(b) occurred, is deemed in violation of §80.1660(b).

(4) Causing a cap standard violation.  Any refiner, importer, distributor, reseller, carrier, retailer, wholesale purchaser-consumer, oxygenate producer, oxygenate blender, additive manufacturer, or additive blender who produced, imported, sold, offered for sale, dispensed, supplied, offered for supply, stored, transported, or caused the transportation or storage of gasoline that violates §80.1660(b), is deemed in violation of §80.1660(c).

(5) Branded refiner/importer liability.  Any refiner or importer whose corporate, trade, or brand name, or whose marketing subsidiary's corporate, trade, or brand name appeared at a facility where a violation of §80.1660(b) occurred, is deemed in violation of §80.1660(b).

(6) Causing violating gasoline to be in the distribution system.  Any refiner, importer, distributor, reseller, carrier, oxygenate producer, oxygenate blender, additive manufacturer, or additive blender who owned, leased, operated, controlled or supervised a facility from which gasoline was released into the distribution system which does not comply with an applicable sulfur cap standard or  a sulfur averaging standard is deemed in violation of §80.1660(d).

(7) Carrier causation.  In order for a carrier to be liable under paragraph (a)(2), (a)(3), (a)(4), or (a)(6) of this section, EPA must demonstrate, by reasonably specific showing by direct or circumstantial evidence, that the carrier caused the violation.

(8) Oxygenate blender violation.  Any oxygenate blender who violates §80.1660(e) is liable for the violation.

(9) Additive manufacturer violation.   Any additive manufacturer who violates §80.1660(g) is deemed liable for the violation.

(10) Additive blender violation.  Any additive blender who violates §80.1660(f) is deemed liable for the violation.

(11) Credit violation.  Any refiner or importer who violates §80.1660(h) is liable for the violation.

(12) Parent corporation liability.  Any parent corporation is liable for any violations of this subpart that are committed by any of its wholly-owned subsidiaries.

(13) Joint venture and joint owner liability.  Each partner to a joint venture, or each owner of a facility owned by two or more owners, is jointly and severally liable for any violation of this subpart that occurs at the joint venture facility or facility owned by the joint owners, or is committed by the joint venture operation or any of the joint owners of the facility.

(b) Persons liable for failure to meet other provisions of this subpart.  Any person who:

(1) Fails to comply with a provision of this subpart not addressed in paragraph (a) of this section is liable for a violation of that provision.

(2) Caused another person to fail to meet a requirement of this subpart not addressed in paragraph (a) of this section, is liable for causing a violation of that provision.

§80.1663 Defenses for a violation of a prohibited act under subpart O.

(a) Any person deemed liable for a violation of a prohibition under §80.1662(a)(3) through (a)(10), will not be deemed in violation if the person demonstrates all the following:

(1) The violation was not caused by the person or the person's employee or agent.

(2) In cases where product transfer document requirements under this subpart apply, the product transfer documents account for the fuel found to be in violation and indicate that the violating product was in compliance with the applicable requirements while in that person's control; and

(3) The person conducted a quality assurance sampling and testing program, as described in paragraph (d) of this section.  A carrier may rely on the quality assurance program carried out by another party, including the party who owns the gasoline in question, provided that the quality assurance program is carried out properly.  Retailers and wholesale purchaser-consumers are not required to conduct sampling and testing of gasoline as part of their quality assurance programs.

(b) In the case of a violation found at a facility operating under the corporate, trade or brand name of a refiner or importer, or a refiner's or importer's marketing subsidiary, the refiner or importer must show, in addition to the defense elements required under paragraphs (a)(1)through (a)(3) of this section, that the violation was caused by any of the following:

(1) An act in violation of law (other than the Clean Air Act or this part 80), or an act of sabotage or vandalism.

(2) The action of any refiner, importer, retailer, distributor, reseller, oxygenate blender, carrier, retailer or wholesale purchaser-consumer in violation of a contractual agreement between the branded refiner or importer and the person designed to prevent such action, and despite periodic sampling and testing by the branded refiner or importer to ensure compliance with such contractual obligation.

(3) The action of any carrier or other distributor not subject to a contract with the refiner or importer, but engaged for transportation of gasoline, despite specifications or inspections of procedures and equipment which are reasonably calculated to prevent such action.

(c) Under paragraph (a) of this section, for any person to show that a violation was not caused by that person, or under paragraph (b) of this section to show that a violation was caused by any of the specified actions, the person must demonstrate by reasonably specific showings, by direct or circumstantial evidence, that the violation was caused or must have been caused by another person and that the person asserting the defense did not contribute to that other person's causation.

(d) Quality assurance and testing program.  To demonstrate an acceptable quality assurance and testing program under paragraph (a)(2) of this section, a person must present evidence of all of the following:

(1) A periodic sampling and testing program to ensure the gasoline the person sold, dispensed, supplied, stored, or transported, meets the applicable sulfur standard.

(2) On each occasion when gasoline is found not in compliance with the applicable sulfur standard:

(i) The person immediately ceases selling, offering for sale, dispensing, supplying, offering for supply, storing or transporting the non-complying product; and

(ii) The person promptly remedies the violation and the factors that caused the violation (for example, by removing the non-complying product from the distribution system until the applicable standard is achieved and taking steps to prevent future violations of a similar nature from occurring).

(3) For any carrier who transports gasoline in a tank truck, the quality assurance program required under this paragraph (d) need not include periodic sampling and testing of gasoline in the tank truck, but in lieu of such tank truck sampling and testing, the carrier shall demonstrate evidence of an oversight program for monitoring compliance with the requirements of this subpart relating to the transport or storage of gasoline by tank truck, such as appropriate guidance to drivers regarding compliance with the applicable sulfur standard and product transfer document requirements, and the periodic review of records received in the ordinary course of business concerning gasoline quality and delivery.

§80.1664 [Reserved]

§80.1665 Penalties.

(a) Any person liable for a violation under §80.1662 is subject to civil penalties as specified in section 205 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 §80.1662(a)(1) or (2) for a violation of the applicable sulfur averaging standard or causing another party to violate that standard during any averaging period, is subject to a separate day of violation for each and every day in the averaging period.  Any person liable under §80.1662(a)(11) or §80.1662(b) for a failure to fulfill any requirement for credit generation, transfer, use, banking, or deficit correction, is subject to a separate day of violation for each and every day in the averaging period in which invalid credits are generated or used.

(c)(1) Any person liable under §80.1662(a)(3) through (a)(10) for a violation of an applicable sulfur per gallon cap standard under this subpart O or of causing another party to violate a cap standard, is subject to a separate day of violation for each and every day the non-complying gasoline remains any place in the gasoline distribution system.

(2) Any person liable under §80.1662(a)(6) for causing gasoline to be in the distribution system which does not comply with an applicable sulfur cap standard, or a sulfur averaging standard, is subject to a separate day of violation for each and every day that the non-complying gasoline remains any place in the gasoline distribution system.

(3) For purposes of paragraph (c) of this section, the length of time the gasoline in question remained in the gasoline distribution system is deemed to be twenty-five days, unless a person subject to liability or EPA demonstrates by reasonably specific showings, by direct or circumstantial evidence, that the non-complying gasoline remained in the gasoline distribution system for fewer than or more than twenty-five days.

(d) Any person liable under §80.1662(b) for failure to meet, or causing a failure to meet, a provision of this subpart is liable for a separate day of violation for each and every day such provision remains unfulfilled.

§80.1666 Additional requirements for foreign small refiners and foreign small volume refineries.

The provisions of this section apply to certain foreign refiners and importers during the period January 1, 2017 through December 31, 2019.  After December 31, 2019, foreign refiners are not subject to compliance requirements under subparts O or H of this part 80; instead, the importer of any foreign-produced gasoline shall be responsible for compliance with the standards and requirements of subpart O that relate to importers.

(a) Definitions.

(1) Foreign small refiner is a foreign refiner that meets the definition of a small refiner under §80.1620.

(2) Foreign small volume refinery is a foreign refinery that meets the definition of a small volume refinery under §80.1621.

(3) Sulfur-FRGAS, for this subpart, means gasoline produced from January 1, 2017 through December 31, 2019 at a foreign refinery of a refiner that has been approved as a small refiner or a small volume refinery under §80.1622, and that is imported into the United States.

(4) Non-Sulfur-FRGAS means gasoline that is produced at a foreign refinery that has not been approved as a small refiner refinery or small volume refinery under §80.1622, gasoline produced at a foreign refinery of an approved small refiner or at an approved small volume refinery under §80.1622 that is not imported into the United States, and gasoline produced at a foreign refinery that is approved during a year when the foreign refiner has opted to not participate in the Sulfur-FRGAS program under paragraph (c)(3) of this section.

(5) Certified Sulfur-FRGAS means Sulfur-FRGAS the foreign refiner intends to include in the foreign refinery's sulfur compliance calculations under §§80.195 and 80.205 and does include in these compliance calculations when reported to EPA.

(6) Non-Certified Sulfur-FRGAS means Sulfur-FRGAS that is not Certified Sulfur-FRGAS.

(b) Petition for approval of small refiner or small volume refinery status.  To be approved for small refiner status or small volume refinery status a foreign refiner must submit a petition for approval as provided under §80.1622 and this section.  If small refiner status or small volume refinery status is approved, the foreign refiner may produce gasoline for export to the United States, during the period starting January 1, 2017 and ending December 31, 2019, that is subject to the sulfur content standards of subpart H of this part at §80.195 that were applicable to refiners from 2006 through 2016.  A foreign refiner is not eligible to generate sulfur credits under subpart H or subpart O of this part, as this occurs through the importer.

(c) General requirements for foreign refiners approved as small refiners or small volume refinery status.  A foreign refiner of a refinery that has been approved as a small refiner refinery or a small volume refinery must designate all gasoline produced at the foreign refinery that is exported to the United States as either Certified Sulfur-FRGAS or as Non-Certified Sulfur-FRGAS, except as provided in paragraph (c)(3) of this section.

(1) In the case of Certified Sulfur-FRGAS, the foreign refiner must meet the sulfur standards of subpart H as described in paragraph (b) of this section  and the requirements of this section.

(2) In the case of Non-Certified Sulfur-FRGAS, the foreign refiner shall meet all the following provisions, except the foreign refiner shall substitute the name Non-Certified Sulfur-FRGAS for the names "reformulated gasoline" or "RBOB" wherever they appear in the following provisions:

(i) The designation requirements in this section.

(ii) The recordkeeping requirements under §80.1653.

(iii) The reporting requirements in §80.1652 and this section §80.1666.

(iv) The product transfer document requirements in this section and §80.1651.

(v)  The prohibitions in this section and §80.1660.

(vi) The independent audit requirements under §80.415, paragraph (h) of this section, and the attest engagement provisions of §§80.125 through 80.127, §80.128(a), (b), (c), (g) through (i), and §80.130.

(3)(i) Any foreign refiner that has been approved as a small refiner or whose refinery has been approved as a small volume refinery under this subpart O may elect to classify no gasoline imported into the United States as Sulfur-FRGAS, provided the foreign refiner notifies EPA of the election no later than November 1 of the prior calendar year.

(ii) An election under paragraph (c)(3)(i) of this section shall meet all of the following requirements:

(A) Apply to an entire calendar year averaging period, and apply to all gasoline produced during the calendar year at the foreign refinery that is used in the United States.

(B) Remain in effect for each succeeding calendar year averaging period, unless and until the foreign refiner notifies EPA of a termination of the election. The change in election shall take effect at the beginning of the next calendar year.

(d) Designation, product transfer documents, and foreign refiner certification.

(1) Any approved foreign small refiner or any foreign refiner having an approved small volume refinery under this subpart O must designate each batch of Sulfur-FRGAS as such at the time the gasoline is produced, unless the refinery has elected to classify no gasoline exported to the United States as Sulfur-FRGAS under paragraph (c)(3)(i) of this section.

(2) On each occasion when any person transfers custody or title to any Sulfur-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 in this section:

(i) Identification of the gasoline as Certified Sulfur-FRGAS or as Non-Certified Sulfur-FRGAS.

(ii) The name and EPA refinery registration number of the refinery where the Sulfur-FRGAS was produced.

(3) On each occasion when Sulfur-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 the Sulfur-FRGAS that meets all of the following requirements:

(i) The certification shall include the report of the independent third party under paragraph (f) of this section, and all of the following additional information:

(A) The name and EPA registration number of the refinery that produced the Sulfur-FRGAS.

(B) The identification of the gasoline as Certified Sulfur-FRGAS or Non-Certified Sulfur-FRGAS.

(C) The volume of Sulfur-FRGAS being transported, in gallons.

(D) In the case of Certified Sulfur-FRGAS:

(1) The sulfur content as determined under paragraph (f) of this section; and

(2) A declaration that the Sulfur-FRGAS is being included in the compliance calculations under §80.205 for the refinery that produced the Sulfur-FRGAS.

(ii) The certification shall be made part of the product transfer documents for the Sulfur-FRGAS.

(e) Transfers of Sulfur-FRGAS to non-United States markets.  The foreign refiner is responsible to ensure that all gasoline classified as Sulfur-FRGAS is imported into the United States.  A foreign refiner may remove the Sulfur-FRGAS classification, and the gasoline need not be imported into the United States, but only if:

(1)(i) The foreign refiner excludes the volume and sulfur content of the gasoline from the compliance calculations under §80.205.

(ii) The exclusions under paragraph (e)(1)(i) of this section shall be on the basis of the sulfur content and volumes determined under paragraph (f) of this section; and

(2) The foreign refiner obtains sufficient evidence in the form of documentation that the gasoline was not imported into the United States.

(f) Load port independent sampling, testing and refinery identification.

(1) On each occasion Sulfur-FRGAS is loaded onto a vessel for transport to the United States a foreign refiner shall have an independent third party do all of the following:

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

(ii) Determine the volume of Sulfur-FRGAS loaded onto the vessel (exclusive of any tank bottoms present before vessel 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 Sulfur-FRGAS to the United States.

(v) Determine the date and time the vessel departs the port serving the foreign refinery.

(2) On each occasion Certified Sulfur-FRGAS is loaded onto a vessel for transport to the United States a foreign refiner shall have an independent third party:

(i) Collect a representative sample of the Certified Sulfur-FRGAS from each vessel compartment subsequent to loading on the vessel and prior to departure of the vessel from the port serving the foreign refinery.

(ii) Prepare a volume-weighted vessel composite sample from the compartment samples, and determine the value for sulfur in accordance with the methodology and requirements specified in §80.1630, by either of the following:

(A) The third party analyzing the sample.

(B) The third party observing the foreign refiner analyzing the sample.

(iii) Review original documents that reflect movement and storage of the certified Sulfur-FRGAS from the refinery to the load port, and from this review determine all of the following:

(A) The refinery at which the Sulfur-FRGAS was produced.

(B) That the Sulfur-FRGAS remained segregated from all of the following:

(1) Non-Sulfur-FRGAS and Non-Certified Sulfur-FRGAS.

(2) Other Certified Sulfur-FRGAS produced at a different refinery.

(3) The independent third party shall submit a report:

(i) To the foreign refiner containing the information required under paragraphs (f)(1) and (2) of this section, to accompany the product transfer documents for the vessel; and

(ii) To the Administrator containing the information required under paragraphs (f)(1) and (2) 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 (m)(1) of this section, and a description of the gasoline's movement and storage between production at the source refinery and vessel loading.

(4) The independent third party must do all of the following:

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

(ii) Be independent under the criteria specified in §80.65(f)(2)(iii).

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

(g) Comparison of load port and port of entry testing.

(1)(i) Except as described in paragraph (g)(1)(ii) of this section, any foreign refiner and any United States importer of Certified Sulfur-FRGAS shall compare the results from the load port testing under paragraph (f) of this section, with the port of entry testing as reported under paragraph (o) of this section, for the volume of gasoline and the sulfur value.

(ii) Where a vessel transporting Certified Sulfur-FRGAS off loads this gasoline at more than one United States port of entry, and the conditions of paragraph (g)(2)(i) of this section are met at the first United States port of entry, the requirements of paragraph (g)(2) of this section do not apply at subsequent ports of entry if the United States importer obtains a certification from the vessel owner, that meets the requirements of paragraph (r) of this section, 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)(i) The requirements of this paragraph (g)(2) apply if:

(A) The temperature-corrected volumes determined at the port of entry and at the load port differ by more than one percent; or

(B) The sulfur value determined at the port of entry is higher than the sulfur value determined at the load port, and the amount of this difference is greater than the reproducibility amount specified for the port of entry test result by ASTM International (ASTM).

(ii) The United States importer and the foreign refiner shall treat the gasoline as Non-Certified Sulfur-FRGAS, and the foreign refiner shall exclude the gasoline volume and properties from its gasoline sulfur compliance calculations under §80.205.

(h) Attest requirements.  All of the following additional procedures shall be carried out by any foreign refiner of Sulfur-FRGAS as part of the applicable attest engagement for each foreign refinery under §80.415:

(1) The inventory reconciliation analysis under the attest engagement provisions of §80.128(b) and the tender analysis under §80.128(c) shall include Non-Sulfur-FRGAS in addition to the gasoline types listed in §80.128(b) and (c).

(2) Obtain separate listings of all tenders of Certified Sulfur-FRGAS, and of Non-Certified Sulfur-FRGAS.  Agree the total volume of tenders from the listings to the gasoline inventory reconciliation analysis in the attest engagement provisions of §80.128(b), and to the volumes determined by the third party under paragraph (f)(1) of this section.

(3) For each tender under paragraph (h)(2) 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 Sulfur-FRGAS loaded onto each vessel.

(4) Select a sample from the list of vessels identified in paragraph (h)(3) of this section used to transport Certified Sulfur-FRGAS, in accordance with the attest engagement guidelines in §80.127, and for each vessel selected perform all of the following:

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

(A) Agree the information in these reports with regard to vessel identification, gasoline volumes and test results.

(B) Identify, and report as a finding, each occasion the load port and port of entry parameter and volume results differ by more than the amounts allowed in paragraph (g) of this section, and determine whether the foreign refiner adjusted its refinery calculations as required in paragraph (g) of this section.

(ii) Obtain the documents used by the independent third party to determine transportation and storage of the Certified Sulfur-FRGAS from the refinery to the load port, under paragraph (f) of this section.  Obtain tank activity records for any storage tank where the Certified Sulfur-FRGAS is stored, and pipeline activity records for any pipeline used to transport the Certified Sulfur-FRGAS, prior to being loaded onto the vessel.  Use these records to determine whether the Certified Sulfur-FRGAS was produced at the refinery that is the subject of the attest engagement, and whether the Certified Sulfur-FRGAS was mixed with any Non-Certified Sulfur-FRGAS, Non-Sulfur-FRGAS, or any Certified Sulfur-FRGAS produced at a different refinery.

(5) Select a sample from the list of vessels identified in paragraph (h)(3) of this section used to transport certified and Non-Certified Sulfur-FRGAS, in accordance with the attest engagement guidelines of §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.

(6) Obtain separate listings of all tenders of Non-Sulfur-FRGAS, and perform all of the following:

(i) Agree the total volume of tenders from the listings to the gasoline inventory reconciliation analysis in §80.128(b).

(ii) Obtain a separate listing of the tenders under paragraph (h)(6) of this section where the gasoline is loaded onto a marine vessel.  Select a sample from this listing in accordance with the guidelines in §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.

(7) In order to complete the requirements of this paragraph (h) an auditor must:

(i) Be independent of the foreign refiner.

(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 the attest engagement provisions of §§80.125 through 80.130, 80.415 and this paragraph (h).

(iii) Sign a commitment that contains the provisions specified in paragraph (h) of this section with regard to activities and documents relevant to compliance with the requirements of the attest engagement provisions of §§80.125 through 80.130, 80.415 and this paragraph (h).

(i) Foreign refiner commitments.  Any foreign refiner shall commit to and comply with the provisions contained in this paragraph (i) as a condition to being approved for small refiner status or small volume refinery status.

(1) Any United States Environmental Protection Agency inspector or auditor will 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;

(C) Gasoline or blendstock samples are tested or stored; and

(D) Sulfur-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 will 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 of the following:

(A) Approval of the refiner as a small refiner or approval of the refinery as a small volume refinery.

(B) The volume and sulfur content of Sulfur-FRGAS.

(C) The proper classification of gasoline as being Sulfur-FRGAS or as not being Sulfur-FRGAS, or as Certified Sulfur-FRGAS or as Non-Certified Sulfur-FRGAS.

(D) Transfers of title or custody to Sulfur-FRGAS.

(E) Sampling and testing of Sulfur-FRGAS.

(F) Work performed and reports prepared by independent third parties and by independent auditors under the requirements of this section and §80.415, including work papers.

(G) Reports prepared for submission to EPA, and any work papers related to such reports.

(vi) Inspections and audits by EPA may include taking samples of gasoline or blendstock, and 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 will 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 O.

(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 a petition for approval as a small refiner or for small volume refinery status, producing and exporting gasoline under such approval, and all other actions to comply with the requirements of this subpart O constitute actions or activities that satisfy the provisions of 28 U.S.C. section 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 O, including conduct that violates Title 18 U.S.C. section 1001 or Clean Air Act section 113(c)(2).

(6) The foreign refiner, or its agents or employees, must 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 (i) must be signed by the owner or president of the foreign refiner business.

(8) In any case where FRGAS produced at a foreign refinery is stored or transported by another company between the refinery and the vessel that transports the Sulfur-FRGAS to the United States, the foreign refiner shall obtain from each such other company a commitment that meets the requirements specified in paragraphs (i)(1) through (7) of this section.

(j) Sovereign immunity.  By submitting a petition for approval as a small refiner or approval of a small volume refinery under this subpart O and this section, or by producing and exporting gasoline to the United States under such an approval under this section, the foreign refiner, 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 O, including conduct that violates Title 18 U.S.C. section 1001 or Clean Air Act section 113(c)(2).

(k) Bond posting.  Any foreign refiner must meet the requirements of this paragraph (k) as a condition to being approved for small refiner or small volume refinery status.

(l) The foreign refiner shall post a bond of the amount calculated using the following equation:
				Bond=Gx$ 0.01
Where:
Bond	= Amount of the bond in U. S. 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 three calendar years: the calendar year immediately preceding the date the approval petition is submitted, the calendar year the approval petition is submitted, and each succeeding calendar year.

(2) Bonds shall be posted by performing 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 refiner, 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) If the bond amount for a foreign refinery 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.

(4) Bonds posted under this paragraph (k) 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 O, including where such conduct violates Title 18 U.S.C. section 1001 and Clean Air Act section 113(c)(2);

(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 Acceptable Reinsuring Companies" (Available from the U.S. Department of the Treasury, Financial Management Service, Surety Bond Branch, 3700 East-West Highway, Room 6A04, Hyattsville, MD, 20782. Also available on the internet at http://www.fms.treas.gov/c570/c570.html ); and

(iii) Include a commitment that the bond will remain in effect for at least five (5) years following the end of latest averaging period that the foreign refiner produces gasoline pursuant to the requirements of this Subpart O.

(5) 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.

(l) English language reports.  Any report or other document submitted to EPA by any foreign refiner must be in English, or must include an English language translation.

(m) Prohibitions.

(1) No person may combine Certified Sulfur-FRGAS with any Non-Certified Sulfur-FRGAS or Non-Sulfur-FRGAS, and no person may combine Certified Sulfur-FRGAS with any Certified Sulfur-FRGAS produced at a different refinery, until the importer has met all the requirements of paragraph (n) of this section, except as provided in paragraph (e) of this section.

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

(n) United States importer requirements.  Any United States importer shall meet the following requirements:

(1) Each batch of imported gasoline shall be classified by the importer as being Sulfur-FRGAS or as Non-Sulfur-FRGAS, and each batch classified as Sulfur-FRGAS shall be further classified as Certified Sulfur-FRGAS or as Non-certified Sulfur-FRGAS.

(2) Gasoline shall be classified as Certified Sulfur-FRGAS or as Non-Certified Sulfur-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 (d) of this section, unless the gasoline is classified as Non-Certified Sulfur-FRGAS under paragraph (g) of this section.

(3) For each gasoline batch classified as Sulfur-FRGAS, any United States importer shall perform the following procedures:

(i) In the case of both Certified and Non-Certified Sulfur-FRGAS, have an independent third party:

(A) Determine the volume of gasoline in the vessel.

(B) Use the foreign refiner's Sulfur-FRGAS certification to determine the name and EPA-assigned registration number of the foreign refinery that produced the Sulfur-FRGAS.

(C) Determine the name and country of registration of the vessel used to transport the Sulfur-FRGAS to the United States.

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

(ii) In the case of Certified Sulfur-FRGAS, have an independent third party:

(A) Collect a representative sample from each vessel compartment subsequent to the vessel's arrival at the United States port of entry and prior to off loading any gasoline from the vessel.

(B) Prepare a volume-weighted vessel composite sample from the compartment samples.

(C) Determine the sulfur value using the methodologies specified in §80.1630, by:

(1) The third party analyzing the sample; or

(2) The third party observing the importer analyzing the sample.

(4) Any importer shall submit reports within thirty days following the date any vessel transporting Sulfur-FRGAS arrives at the United States port of entry:

(i) To the Administrator containing the information determined under paragraph (n)(3) of this section; and

(ii) To the foreign refiner containing the information determined under paragraph (n)(3) of this section.

(5) Any United States importer shall meet the applicable requirements of subpart O, including sulfur content standards specified in §80.1603, for any imported gasoline that is not classified as Certified Sulfur-FRGAS under paragraph (n)(2) of this section.

(o) Truck imports of Certified Sulfur-FRGAS produced by a foreign small refiner or foreign small volume refinery.

(1) Any refiner whose Certified Sulfur-FRGAS is transported into the United States by truck may petition EPA to use alternative procedures to meet all of the following requirements:

(i) Certification under paragraph (d)(5) of this section.

(ii) Load port and port of entry sampling and testing under paragraphs (f) and (g) of this section.

(iii) Attest under paragraph (h) of this section.

(iv) Importer testing under paragraph (n)(3) of this section.

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

(i) Provisions for monitoring pipeline shipments, if applicable, from the refinery, that ensure segregation of Certified Sulfur-FRGAS from that refinery from all other gasoline.

(ii) Contracts with any terminals and/or pipelines that receive and/or transport Certified Sulfur-FRGAS, that prohibit the commingling of such Certified Sulfur-FRGAS with any of the following:

(A) Other Certified Sulfur-FRGAS from other refineries.

(B) All Non-Certified Sulfur-FRGAS.

(C) All Non-Sulfur-FRGAS

(iii) Procedures for obtaining and reviewing truck loading records and United States import documents for Certified Sulfur-FRGAS to ensure that such gasoline is only loaded into trucks making deliveries to the United States.

(iv) 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 Certified Sulfur-FRGAS remains segregated throughout the distribution system and is only loaded into trucks for import into the United States.

(3) The petition required by this section must be submitted to EPA along with the application for small refiner status or small volume refinery status under §80.1622 and this section.

(p) Withdrawal or suspension of a foreign refinery's small refiner or small volume refinery status approval.  EPA may withdraw or suspend approval where any of the following occur:

(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 (i)(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 O.

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

(q) [Reserved]

(r) Additional requirements for petitions, reports and certificates.  Any petition for approval, any alternative procedures under paragraph (o) of this section, and any certification under paragraph (d)(3) of 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; and

(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 [insert 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 applicable requirements of 40 CFR Part 80, subparts H and O, 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 O, including 40 CFR 80.1666 [insert name of foreign refiner]. Pursuant to Clean Air Act section 113(c) and Title 18, United States Code, section 1001, the penalty for furnishing false, incomplete or misleading information in this certification or submission is a fine of up to $10,000, and/or imprisonment for up to five years.

§80.1667 Attest engagement requirements.

In addition to the requirements for attest engagements that apply to refiners and importers under §§80.125 through 80.130, and 80.1666, the attest engagements for importers and refiners must include the following procedures and requirements each year.

(a) Refiners subject to national standards and Small refiner and Small Volume Refinery Status.

(1) If the refiner asserts small refinery status or small volume refinery status for the refinery, obtain the EPA approval letter for the refinery to determine the refinery's applicable annual average standard and credit generation status.

(2) Determine whether the refinery applied the correct annual average sulfur standard and whether it was eligible to generate credits and report the finding.
(3) If the annual average sulfur standard is incorrect or credit generation was inappropriate, recalculate compliance using the appropriate sulfur standard and using appropriate credits and report as a finding.

(b) EPA reports.

(1) Obtain and read a copy of the refinery's or importer's annual sulfur reports filed with EPA for the year.

(2) Agree the yearly volume of gasoline reported to EPA in the sulfur reports with the inventory reconciliation analysis under the attest engagement provisions of §80.128.

(3) Calculate the annual average sulfur level for all gasoline and agree that value with the value reported to EPA.

(4) Obtain and read a copy of the refinery's or importer's sulfur credit report.

(5) Agree the information in the refinery's or importer's batch reports filed with EPA under §§80.75 and 80.105, and any laboratory test results, with the information contained in the annual sulfur report required under §80.1652.

(c) Credit generation before 2017.  In the case of a refinery that generates credits during 2014 through 2016:

(1) Obtain a written representation from the company representative stating the refinery produces gasoline from crude oil.

 (2) Obtain the annual average sulfur level from paragraph (b)(3) of this section.

 (3) Compute and report as a finding the total number of sulfur credits generated, and agree this value with the value reported to EPA.

(d) Credit generation in 2017 and thereafter.  The following procedures shall be completed for a refinery or importer that generates credits in 2017 and thereafter:

(1) Obtain the annual average sulfur level for gasoline from paragraph (b)(3) of this section.

(2) If the sulfur value under paragraph (d)(1) of this section is less than 10 ppm, compute and report as a finding the difference between the sulfur level under paragraph (d)(1) of this section and 10 ppm.

(3) Compute and report as a finding the total number of sulfur credits generated, and agree this number with the number reported to EPA.

(e) Credit purchases and sales.  The following attest procedures shall be completed for a refinery or importer that is a transferor or transferee of credits during an averaging period:

(1) Obtain contracts or other documents for all credits transferred to another refinery or importer during the year being reviewed; compute and report as a finding the number and year of creation of credits represented in these documents as being transferred away; and agree with the report to EPA.

(2) Obtain contracts or other documents for all credits received during the year being reviewed; compute and report as a finding the number and year of creation of credits represented in these documents as being received; and agree with the report to EPA.

(f) Credit expiration.  A refinery or importer that possesses credits during an averaging period must obtain a list of all credits in the refiner's or importer's possession at any time during the year being reviewed, identified by the year of creation of the credits.

(g) Credit reconciliation.  The following attest procedures shall be completed each year credits were in the refiner's or importer's possession at any time during the year:

(1) Obtain the credits remaining or the credit deficit from the previous year from the refiner's or importer's report to EPA for the previous year.

(2) Compute and report as a finding the net credits remaining at the conclusion of the year being reviewed by totaling:

(i) Credits remaining from the previous year; plus

(ii) Credits generated under in an averaging period; plus

(iii) Credits purchased; minus

(iv) Credits sold; minus

(v) Credits used; minus

(vi) Credits expiring; minus

(vii) Credit deficit from the previous year.

(3) Agree the credits remaining or the credit deficit at the conclusion of the year being reviewed with the report to EPA.

(4) If the refinery or importer had a credit deficit for both the previous year and the year being reviewed, report this fact as a finding.

§§80.1668-80.1674 [Reserved]
§80.1675 Incorporation by reference.

(a) Certain material is incorporated by reference into this part with the approval of the Director of the Federal Register under 5 U.S.C. 552(a) and 1 CFR part 51.  To enforce any edition other than that specified in this section, the Environmental Protection Agency (EPA) must publish notice of change in the Federal Register  and the material must be available to the public. All approved material is available for inspection at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202 - 741 - 6030 or go to: http://www/archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.  This material is also available for inspection at the EPA Docket Center, Docket No. EPA - HQ - OAR - 2005 - 0161, EPA/DC, EPA West, Room 3334, 1301 Constitution Ave., NW., Washington DC.  The telephone number for the Air Docket is (202) 566 - 1742. Also, this material is available from the source listed in paragraph (b) of this section.

(b) ASTM International, 100 Barr Harbor Drive, P.O. Box C - 700, West Conshohocken, Pennsylvania 19428 (1 - 800 - 262 - 1373, www.astm.org ).

(1) ASTM D 4814 - 11 ("ASTM D 4814"), Standard Specification for Automotive Spark-Ignition Engine Fuel, Approved 2011; IBR approved for §80.177.

(2) ASTM D 4057 - 95 ("ASTM D 4507"), Approved 1995; IBR approved for §80.1630.

(3) ASTM D 4177 - 95 ("ASTM D 4177"), Approved 1995; IBR approved for §80.1630.

(4) ASTM D 5842 - 95 ("ASTM D 5842"), Approved 1995; IBR approved for §80.1630.

PART 85 --  CONTROL OF AIR POLLUTION FROM MOBILE SOURCES
38.   The authority citation for part 85 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.

Subpart F -- [Amended]
39.   Section 85.510 is amended by revising paragraph (b)(9) to read as follows:
§ 85.510   Exemption provisions for new and relatively new vehicles/engines.
*	*	*	*	*
(b) 	*	*	*
(9) OBD requirements.  (i) The OBD system must properly detect and identify malfunctions in all monitored emission-related powertrain systems or components including any new monitoring capability necessary to identify potential emission problems associated with the new fuel.
(ii) Conduct all OBD testing necessary to demonstrate compliance with 40 CFR 86.010-18 or 86.1806-05.
(iii) Submit the applicable OBD reporting requirements set forth in 40 CFR part 86, subparts A and S, and submit the following statement of compliance if the OEM vehicles/engines were required to be OBD-equipped:
   The test group/engine family converted to an alternative fuel has fully functional OBD systems and therefore meets the OBD requirements specified in 40 CFR 86 when operating on the alternative fuel.
*	*	*	*	*

40.   Section 85.515 is amended by revising paragraph (b)(9)(iii) to read as follows:
§ 85.515   Exemption provisions for intermediate age vehicles/engines.
*	*	*	*	*
(b) 	*	*	*
(9)	*	*	*
(iii) In addition to conducting OBD testing described in this paragraph (b)(9), you must submit to EPA the following statement of compliance if the OEM vehicles/engines were required to be OBD-equipped:
    The test group/engine family converted to an alternative fuel has fully functional OBD systems and therefore meets the OBD requirements specified in 40 CFR 86 when operating on the alternative fuel.
*	*	*	*	*

41.   Section 85.520 is amended by revising paragraph (b)(4)(iii) to read as follows:
§ 85.520   Exemption provisions for outside useful life vehicles/engines.
*	*	*	*	*
(b) 	*	*	*
(4)	*	*	*
(iii) In addition to conducting OBD testing described in this paragraph (b)(4), you must submit to EPA the following statement of compliance if the OEM vehicles/engines were required to be OBD-equipped:
   The test group/engine family converted to an alternative fuel has fully functional OBD systems and therefore meets the OBD requirements specified in 40 CFR 86 when operating on the alternative fuel.
*	*	*	*	*

Subpart P -- [Amended]
42.   Section 85.1515 is revised to read as follows:
§ 85.1515   Emission standards and test procedures applicable to imported nonconforming motor vehicles and motor vehicle engines.
(a) Notwithstanding any other requirements of this subpart, any motor vehicle or motor vehicle engine conditionally imported pursuant to §85.1505 or §85.1509 and required to be emission tested shall be tested using the FCT at 40 CFR part 86 applicable to current model year motor vehicles and motor vehicle engines at the time of testing or reduced testing requirements as follows:
   (1)  ICIs are eligible for reduced testing under this paragraph (a) subject to the following conditions:
      (i) The OEM must have a valid certificate of conformity covering the vehicle.
      (ii) The vehicle must be in its original configuration as certified by the OEM.  This applies for all emission-related components, including the electronic control module, engine calibrations, and all evaporative/refueling control hardware.  It also applies for OBD software and hardware, including all sensors and actuators.
      (iii) The vehicle modified as described in paragraph (a)(1)(ii) of this section must fully comply with all applicable emission standards and requirements.
      (iv) Vehicles must have the proper OBD systems installed and operating.  When faults are present, the ICI must test and verify the system's ability to find the faults (such as disconnected components), set codes, and illuminate the light, and set readiness codes as appropriate  for each vehicle.  When no fault is present, the ICI must verify that after sufficient prep driving (typically one FTP test cycle), all OBD readiness codes are set and the OBD system does not indicate a malfunction (i.e., no codes set and no light illuminated).
      (v) The ICI may not modify more than 300 vehicles in any given model year using reduced testing provisions in this paragraph (a).
      (vi) The ICI must state in the application for certification that it will meet all the conditions in this paragraph (a)(1).
   (2) The following provisions allow for ICIs to certify vehicles with reduced testing:
      (i) In addition to the test waivers specified in 40 CFR 86.1829, you may provide a statement in the application for certification, supported by engineering analysis, that vehicles comply with any of the following standards that apply instead of submitting test data:
         (A) Cold temperature CO and NMHC emission standards specified in 40 CFR 86.1811.
         (B) SFTP emission standards specified in 40 CFR 86.1811 and 86.1816 for all pollutants.
         (C) For anything other than diesel-fueled vehicles, PM emission standards specified in 40 CFR 86.1811 and 86.1816.
         (D) Any running loss, refueling, spitback, bleed emissions, and leak standards specified in 40 CFR part 86, subparts A and S.
      (ii) You must perform testing and submit test data as follows to demonstrate compliance with emission standards:
         (A) Exhaust and fuel economy tests.  You must measure emissions over the FTP driving cycle and the highway fuel economy driving cycle as specified in 40 CFR 600.109 to meet the fuel economy requirements in 40 CFR part 600 and demonstrate compliance with the exhaust emission standards in 40 CFR part 86 (other than PM).  Measure exhaust emissions and fuel economy with the same test procedures used by the original manufacturer to test the vehicle for certification.  However, you must use an electric dynamometer meeting the requirements of §86.108 or 40 CFR part 1066, subpart B, unless we approve a different dynamometer based on excessive compliance costs.  If you certify based on testing with a different dynamometer, you must state in the application for certification that all vehicles in the emission family will comply with emission standards if tested on an electric dynamometer.
         (B) Evaporative emission test.  You may measure evaporative emissions as specified in this paragraph (a)(2)(ii)(B) to demonstrate compliance with the evaporative emission standards in 40 CFR part 86 instead of the otherwise specified procedures.  Use measurement equipment for evaporative measurements specified in 40 CFR part 86, subpart B, except that the evaporative emission enclosure does not need to accommodate varying ambient temperatures.  The evaporative measurement procedure is integral to the procedure for measuring exhaust emissions over the FTP driving cycle as described in paragraph (a)(ii)(2)(A) of this section.  Perform canister preconditioning using the same procedure used by the original manufacturer to certify the vehicle; perform this canister loading before the initial preconditioning drive.  Perform a diurnal emission test at the end of the stabilization period before the exhaust emission test by heating the fuel from 60 to 84°F, either by exposing the vehicle to increasing ambient temperatures or by applying heat directly to the fuel tank.  Measure hot soak emissions as described in 40 CFR 86.138-96(k).  We may approve alternative measurement procedures that are equivalent to or more stringent than the specified procedures if the specified procedures are impractical for particular vehicle models or measurement facilities.  The sum of the measured diurnal and hot soak values must meet the appropriate emission standard as specified in this section.
(b) The emission standards applicable to nonconforming light-duty vehicles and light-duty trucks imported pursuant to this subpart are outlined in tables 1 and 2 of this section, respectively. The useful life as specified in tables 1 and 2 of this section is applicable to imported light-duty vehicles and light-duty trucks, respectively.
   (c)(1) Nonconforming motor vehicles or motor vehicle engines of 1994 OP year and later conditionally imported pursuant to §85.1505 or §85.1509 shall meet all of the emission standards specified in 40 CFR part 86 for the OP year of the vehicle or motor vehicle engine. The useful life specified in 40 CFR part 86 for the OP year of the motor vehicle or motor vehicle engine is applicable where useful life is not designated in this subpart.
      (2)(i) Nonconforming light-duty vehicles and light light-duty trucks (LDV/LLDTs) originally manufactured in OP years 2004, 2005 or 2006 must meet the FTP exhaust emission standards of bin 9 in Tables S04 - 1 and S04 - 2 in 40 CFR 86.1811 - 04 and the evaporative emission standards for light-duty vehicles and light light-duty trucks specified in 40 CFR 86.1811 - 01(e)(5).
      (ii) Nonconforming LDT3s and LDT4s (HLDTs) and medium-duty passenger vehicles (MDPVs) originally manufactured in OP years 2004 through 2006 must meet the FTP exhaust emission standards of bin 10 in Tables S04 - 1 and S04 - 2 in 40 CFR 86.1811 - 04 and the applicable evaporative emission standards specified in 40 CFR 86.1811 - 04(e)(5). For 2004 OP year HLDTs and MDPVs where modifications commence on the first vehicle of a test group before December 21, 2003, this requirement does not apply to the 2004 OP year. ICIs opting to bring all of their 2004 OP year HLDTs and MDPVs into compliance with the exhaust emission standards of bin 10 in Tables S04 - 1 and S04 - 2 in 40 CFR 86.1811 - 04, may use the optional higher NMOG values for their 2004 - 2006 OP year LDT2s and 2004 - 2008 LDT4s.
      (iii) Nonconforming LDT3s and LDT4s (HLDTs) and medium-duty passenger vehicles (MDPVs) originally manufactured in OP years 2007 and 2008 must meet the FTP exhaust emission standards of bin 8 in Tables S04 - 1 and S04 - 2 in 40 CFR 86.1811 - 04 and the applicable evaporative standards specified in 40 CFR 86.1811 - 04(e)(5).
      (iv) Nonconforming LDV/LLDTs originally manufactured in OP years 2007 through 2021 and nonconforming HLDTs and MDPVs originally manufactured in OP year 2009 through 2021 must meet the FTP exhaust emission standards of bin 5 in Tables S04 - 1 and S04 - 2 in 40 CFR 86.1811 - 04, and the evaporative standards specified in 40 CFR 86.1811-04(e)(1) through (4).
      (v) ICIs are exempt from the Tier 2 and the interim non-Tier2 phase-in intermediate percentage requirements for exhaust, evaporative, and refueling emissions described in 40 CFR 86.1811 - 04.
      (vi) In cases where multiple standards exist in a given model year in 40 CFR part 86 due to phase-in requirements of new standards, the applicable standards for motor vehicle engines required to be certified to engine-based standards are the least stringent standards applicable to the engine type for the OP year.
      (vii) Nonconforming LDV/LLDTs originally manufactured in OP years 2009 through 2021 must meet the evaporative emission standards in Table S09 - 1 in 40 CFR 86.1811 - 09(e). However, LDV/LLDTs originally manufactured in OP years 2009 and 2010 and imported by ICIs who qualify as small volume manufacturers as defined in 40 CFR 86.1838 - 01 are exempt from the LDV/LLDT evaporative emission standards in Table S09 - 1 in 40 CFR 86.1811 - 09(e), but must comply with the Tier 2 evaporative emission standards in Table S04 - 3 in 40 CFR 86.1811 - 04(e).
      (viii) Nonconforming HLDTs and MDPVs originally manufactured in OP years 2010 through 2021 must meet the evaporative emission standards in Table S09 - 1 in 40 CFR 86.1811 - 09(e). However, HLDTs and MDPVs originally manufactured in OP years 2010 and 2011 and imported by ICIs, who qualify as small volume manufacturers as defined in 40 CFR 86.1838 - 01, are exempt from the HLDTs and MDPVs evaporative emission standards in Table S09 - 1 in 40 CFR 86.1811 - 09(e), but must comply with the Tier 2 evaporative emission standards in Table S04 - 3 in 40 CFR 86.1811 - 04(e).
      (ix) Nonconforming LDVs, LDTs, MDPVs, and complete heavy-duty vehicles at or below 14,000 pounds GVWR originally manufactured in OP years 2022 and later must meet the Tier 3 exhaust and evaporative emission standards in 40 CFR 86.1811 through 86.1816.
      (3)(i) As an option to the requirements of paragraph (c)(2) of this section, independent commercial importers may elect to meet lower bins in Tables S04 - 1 and S04 - 2 of 40 CFR 86.1811 - 04 than specified in paragraph (c)(2) of this section and bank or sell NOx credits as permitted in 40 CFR 86.1860 - 04 and 40 CFR 86.1861 - 04. An ICI may not meet higher bins in Tables S04 - 1 and S04 - 2 of 40 CFR 86.1811 - 04 than specified in paragraph (c)(2) of this section unless it demonstrates to the Administrator at the time of certification that it has obtained appropriate and sufficient NOx credits from another manufacturer, or has generated them in a previous model year or in the current model year and not transferred them to another manufacturer or used them to address other vehicles as permitted in 40 CFR 86.1860 - 04 and 40 CFR 86.1861 - 04.
      (ii) Where an ICI desires to obtain a certificate of conformity using a bin higher than specified in paragraph (c)(2) of this section, but does not have sufficient credits to cover vehicles produced under such certificate, the Administrator may issue such certificate if the ICI has also obtained a certificate of conformity for vehicles certified using a bin lower than that required under paragraph (c)(2) of this section. The ICI may then produce vehicles to the higher bin only to the extent that it has generated sufficient credits from vehicles certified to the lower bin during the same model year.
   (4) [Reserved]
   (5) Except for the situation where an ICI desires to bank, sell or use NOx credits as described in paragraph (c)(3) of this section, the requirements of 40 CFR 86.1811 - 04 related to fleet average NOx standards and requirements to comply with such standards do not apply to vehicles modified under this subpart.
   (6) ICIs using bins higher than those specified in paragraph (c)(2) of this section must monitor their production so that they do not produce more vehicles certified to the standards of such bins than their available credits can cover. ICIs must not have a credit deficit at the end of a model year and are not permitted to use the deficit carryforward provisions provided in 40 CFR 86.1860 - 04(e).
   (7) The Administrator may condition the certificates of conformity issued to ICIs as necessary to ensure that vehicles subject to paragraph (c) of this section comply with the appropriate average NOx standard for each model year.
      (8)(i) Nonconforming LDV/LLDTs originally manufactured in OP years 2010 and later must meet the cold temperature NHMC emission standards in Table S10 - 1 in 40 CFR 86.1811 - 10(g).
      (ii) Nonconforming HLDTs and MDPVs originally manufactured in OP years 2012 and later must meet the cold temperature NHMC emission standards in Table S10 - 1 in 40 CFR 86.1811 - 10(g).
      (iii) ICIs, which qualify as small volume manufacturers, are exempt from the cold temperature NMHC phase-in intermediate percentage requirements described in 40 CFR 86.1811 - 10(g)(3). See 40 CFR 86.1811 - 04(k)(5)(vi) and (vii).
      (iv) As an alternative to the requirements of paragraphs (c)(8)(i) and (ii) of this section, ICIs may elect to meet a cold temperature NMHC family emission level below the cold temperature NMHC fleet average standards specified in Table S10 - 1 of 40 CFR 86.1811 - 10 and bank or sell credits as permitted in 40 CFR 86.1864 - 10. An ICI may not meet a higher cold temperature NMHC family emission level than the fleet average standards in Table S10 - 1 of 40 CFR 86.1811 - 10 as specified in paragraphs (c)(8)(i) and (ii) of this section, unless it demonstrates to the Administrator at the time of certification that it has obtained appropriate and sufficient NMHC credits from another manufacturer, or has generated them in a previous model year or in the current model year and not traded them to another manufacturer or used them to address other vehicles as permitted in 40 CFR 86.1864 - 10.
      (v) Where an ICI desires to obtain a certificate of conformity using a higher cold temperature NMHC family emission level than specified in paragraphs (c)(8)(i) and (ii) of this section, but does not have sufficient credits to cover vehicles imported under such certificate, the Administrator may issue such certificate if the ICI has also obtained a certificate of conformity for vehicles certified using a cold temperature NMHC family emission level lower than that required under paragraphs (c)(8)(i) and (ii) of this section. The ICI may then import vehicles to the higher cold temperature NMHC family emission level only to the extent that it has generated sufficient credits from vehicles certified to a family emission level lower than the cold temperature NMHC fleet average standard during the same model year.
      (vi) ICIs using cold temperature NMHC family emission levels higher than the cold temperature NMHC fleet average standards specified in paragraphs (c)(8)(i) and (ii) of this section must monitor their imports so that they do not import more vehicles certified to such family emission levels than their available credits can cover. ICIs must not have a credit deficit at the end of a model year and are not permitted to use the deficit carryforward provisions provided in 40 CFR 86.1864 - 10.
      (vii) The Administrator may condition the certificates of conformity issued to ICIs as necessary to ensure that vehicles subject to this paragraph (c)(8) comply with the applicable cold temperature NMHC fleet average standard for each model year.
(d) Except as provided in paragraph (c) of this section, ICI's must not participate in emission-related programs for emissions averaging, banking and trading, or nonconformance penalties.

Table 1 to §85.1515 -- Emission Standards Applicable to Imported Light-Duty Motor Vehicles[1,2,3]
OP Year
Hydrocarbon
Carbon
monoxide
Oxides of nitrogen
Diesel Particulate
Evaporative hydrocarbon
Useful life (years/miles)
1968 - 76
1.5 gpm
15 gpm
3.1 gpm

6.0 g/test
5/50,000
1977 - 79
1.5 gpm
15 gpm
2.0 gpm

6.0 g/test
5/50,000
1980
0.41 gpm
7.0 gpm
2.0 gpm

6.0 g/test
5/50,000
1981
0.41 gpm
3.4 gpm
1.0 gpm

2.0 g/test
5/50,000
1982 - 86
0.41 gpm
3.4 gpm
1.0 gpm
0.60 gpm
2.0 g/test
5/50,000
1987 - 93
0.41 gpm
3.4 gpm
1.0 gpm
0.20 gpm
2.0 g/test
5/50,000
1994 and later
([4])
([4])
([4])
([4])
([4])
([4])
[1]Diesel particulate standards apply only to diesel fueled light-duty vehicles. Evaporative hydrocarbon standards apply only to non-diesel fueled light-duty vehicles. For alternative fueled light-duty vehicles, the evaporative hydrocarbon standard is interpreted as organic material hydrocarbon equivalent grams carbon per test, as applicable.
[2]No crankcase emissions shall be discharged into the ambient atmosphere from any non-diesel fueled light-duty vehicle.