(a) Criteria. Any person who engages in actions that would be a violation of the provisions of either §80.1460(b)(2) or (c)(1), other than the generator of an invalid RIN, will not be deemed in violation if the person demonstrates that the criteria under paragraphs (c), (d), or (e) of this section are met.

(b) Applicability of affirmative defenses. The following provisions apply to affirmative defenses asserted under paragraph (a) of this section:

(1) Affirmative defenses only apply to RINs that were invalidly generated and verified through a quality assurance audit using an EPA-approved QAP.

(2) Affirmative defenses only apply in situations where an invalidly generated verified RIN is either transferred to another person (violation of §80.1460(b)(2)) or used for compliance for an obligated party's RVO (use violation of §80.1460(c)(1)).

(3) Affirmative defenses do not apply to the generator of an invalid RIN.

(c) Asserting an affirmative defense for invalid A-RINs verified during the interim period. To establish an affirmative defense to a violation of §80.1460(b)(2) or (c)(1) involving invalid A-RINs, the person must meet the notification requirements of paragraph (f) of this section and prove by a preponderance of evidence all of the following:

(1) The RIN in question was verified through a quality assurance audit pursuant to §80.1472 using an approved Option A QAP as defined in §80.1469(a).

(2) The person did not know or have reason to know that the RINs were invalidly generated prior to being verified by the independent third-party auditor.

(3) If the person self-identified the RIN as having been invalidly generated, the person notified the EPA within five business days of discovering the invalidity.

(4) The person did not cause the invalidity.

(5) The person did not have a financial interest in the company that generated the invalid RIN.

(d) Asserting an affirmative defense for invalid B-RINs verified during the interim period. To establish an affirmative defense to a violation of §80.1460(b)(2) or (c)(1) involving invalid B-RINs, the person must meet the notification requirements of paragraph (f) of this section and prove by a preponderance of evidence all of the following:

(1) The RIN in question was verified through a quality assurance audit pursuant to §80.1472 using an approved Option B QAP as defined in §80.1469(b).

(2) The person did not know or have reason to know that the RINs were invalidly generated at the time of transfer or use for compliance, unless the RIN generator replaced the RIN pursuant to §80.1474.

(3) If the person self-identified the RIN as having been invalidly generated, the person notified the EPA within five business days of discovering the invalidity.

(4) The person did not cause the invalidity.

(5) The person did not have a financial interest in the company that generated the invalid RIN.

(6) If the person used the invalid B-RIN for compliance, the person adjusted its records, reports, and compliance calculations in which the invalid B-RIN was used as required by §80.1431, unless the RIN generator replaced the RIN pursuant to §80.1474.

(e) Asserting an affirmative defense for invalid Q-RINs. To establish an affirmative defense to a violation of §80.1460(b)(2) or (c)(1) involving invalid Q-RINs, the person must meet the notification requirements of paragraph (f) of this section and prove by a preponderance of evidence all of the following:

(1) The RIN in question was verified through a quality assurance audit pursuant to §80.1472 using an approved QAP as defined in §80.1469(c).

(2) The person did not know or have reason to know that the RINs were invalidly generated at the time of transfer or use for compliance, unless the RIN generator replaced the RIN pursuant to §80.1474.

(3) If the person self-identified the RIN as having been invalidly generated, the person notified the EPA within five business days of discovering the invalidity.

(4) The person did not cause the invalidity.

(5) The person did not have a financial interest in the company that generated the invalid RIN.

(6) If the person used the invalid Q-RIN for compliance, the person adjusted its records, reports, and compliance calculations in which the invalid Q-RIN was used as required by §80.1431, unless the RIN generator replaced the RIN pursuant to §80.1474.

(f) Notification requirements. A person asserting an affirmative defense to a violation of §80.1460(b)(2) or (c)(1), arising from the transfer or use of an invalid A-RIN, B-RIN, or Q-RIN must submit a written report to the EPA via the EMTS support line ([email protected]), including all pertinent supporting documentation, demonstrating that the requirements of paragraphs (c), (d), or (e) of this section were met. The written report must be submitted within 30 days of the person discovering the invalidity.

[79 FR 42123, July 18, 2014]