Title 40
SECTION 80.28
80.28 Liability for violations of gasoline volatility controls and prohibitions.
§ 80.28 Liability for violations of gasoline volatility controls and prohibitions. Link to an amendment published at 85 FR 78467, Dec. 4, 2020.(a) Violations at refineries or importer facilities. Where a violation of the applicable standard set forth in § 80.27 is detected at a refinery that is not an ethanol blending plant or at an importer's facility, the refiner or importer shall be deemed in violation.
(b) Violations at carrier facilities. Where a violation of the applicable standard set forth in § 80.27 is detected at a carrier's facility, whether in a transport vehicle, in a storage facility, or elsewhere at the facility, the following parties shall be deemed in violation:
(1) The carrier, except as provided in paragraph (g)(1) of this section;
(2) The refiner (if he is not an ethanol blender) at whose refinery the gasoline was produced or the importer at whose import facility the gasoline was imported, except as provided in paragraph (g)(2) of this section;
(3) The ethanol blender (if any) at whose ethanol blending plant the gasoline was produced, except as provided in paragraph (g)(6) of this section; and
(4) The distributor and/or reseller, except as provided in paragraph (g)(3) of this section.
(c) Violations at branded distributor facilities, reseller facilities, or ethanol blending plants. Where a violation of the applicable standard set forth in § 80.27 is detected at a distributor facility, a reseller facility, or an ethanol blending plant which is operating under the corporate, trade, or brand name of a gasoline refiner or any of its marketing subsidiaries, the following parties shall be deemed in violation:
(1) The distributor or reseller, except as provided in paragraph (g)(3) or (g)(8) of this section;
(2) The carrier (if any), if the carrier caused the gasoline to violate the applicable standard;
(3) The refiner under whose corporate, trade, or brand name (or that of any of its marketing subsidiaries) the distributor, reseller, or ethanol blender is operating, except as provided in paragraph (g)(4) of this section; and
(4) The ethanol blender (if any) at whose ethanol blending plant the gasoline was produced, except as provided in paragraph (g)(6) or (g)(8) of this section.
(d) Violations at unbranded distributor facilities or ethanol blending plants. Where a violation of the applicable standard set forth in § 80.27 is detected at a distributor facility or an ethanol blending plant not operating under a refiner's corporate, trade, or brand name, or that of any of its marketing subsidiaries, the following parties shall be deemcd in violation:
(1) The distributor, except as provided in paragraph (g)(3) or (g)(8) of this section;
(2) The carrier (if any), if the carrier caused the gasoline to violate the applicable standard;
(3) The refiner (if he is not an ethanol blender) at whose refinery the gasoline was produced or the importer at whose import facility the gasoline was imported, except as provided in paragraph (g)(2) of this section; and
(4) The ethanol blender (if any) at whose ethanol blending plant the gasoline was produced, except as provided in paragraph (g)(6) or (g)(8) of this section.
(e) Violations at branded retail outlets or wholesale purchaser-consumer facilities. Where a violation of the applicable standard set forth in § 80.27 is detected at a retail outlet or at a wholesale purchaser-consumer facility displaying the corporate, trade, or brand name of a gasoline refiner or any of its marketing subsidiaries, the following parties shall be deemed in violation:
(1) The retailer or wholesale purchaser-consumer, except as provided in paragraph (g)(5) or (g)(8) of this section;
(2) The distributor and/or reseller (if any), except as provided in paragraph (g)(3) or (g)(8) of this section;
(3) The carrier (if any), if the carrier caused the gasoline to violate the applicable standard;
(4) The refiner whose corporate, trade, or brand name (or that of any of its marketing subsidiaries) is displayed at the retail outlet or wholesale purchaser-consumer facility, except as provided in paragraph (g)(4) of this section; and
(5) The ethanol blender (if any) at whose ethanol blending plant the gasoline was produced, except as provided in paragraph (g)(6) or (g)(8) of this section.
(f) Violations at unbranded retail outlets or wholesale purchaser-consumer facilities. Where a violation of the applicable standard set forth in § 80.27 is detected at a retail outlet or at a wholesale purchaser-consumer facility not displaying the corporate, trade, or brand name of a refiner or any of its marketing subsidiaries, the following parties shall be deemed in violation:
(1) The retailer or wholesale purchaser-consumer, except as provided in paragraph (g)(5) or (g)(8) of this section;
(2) The distributor (if any), except as provided in paragraph (g)(3) or (g)(8) of this section;
(3) The carrier (if any), if the carrier caused the gasoline to violate the applicable standard;
(4) The ethanol blender (if any) at whose ethanol blending plant the gasoline was produced, except as provided in paragraph (g)(6) of this section; and
(5) The refiner (if he is not an ethanol blender) at whose refinery the gasoline was produced and/or the importer at whose import facility the gasoline was imported, except as provided in paragraph (g)(2) of this section.
(g) Defenses. (1) In any case in which a carrier would be in violation under paragraph (b)(1) of this section, the carrier shall not be deemed in violation if he can demonstrate:
(i) That the violation was not caused by him or his employee or agent; and
(ii) Evidence of an oversight program conducted by the carrier, such as periodic sampling and testing of incoming gasoline, for monitoring the volatility of gasoline stored or transported by that carrier.
(iii) An oversight program under paragraph (g)(1)(ii) of this section need not include periodic sampling and testing of gasoline in a tank truck operated by a common carrier, but in lieu of such tank truck sampling and testing, the common carrier shall demonstrate evidence of an oversight program for monitoring compliance with the volatility requirements of § 80.27 relating to the transport or storage of gasoline by tank truck, such as appropriate guidance to drivers on compliance with applicable requirements and the periodic review of records normally received in the ordinary course of business concerning gasoline quality and delivery.
(2) In any case in which a refiner or importer would be in violation under paragraphs (b)(2), (d)(3), or (f)(5) of this section, the refiner or importer shall not be deemed in violation if he can demonstrate:
(i) That the violation was not caused by him or his employee or agent; and
(ii) Test results using the sampling methodology set forth in § 80.8 and the testing methodology set forth in § 80.46(c), or any other test method where adequate correlation to § 80.46(c) is demonstrated, which show evidence that the gasoline determined to be in violation was in compliance with the applicable standard when it was delivered to the next party in the distribution system.
(3) In any case in which a distributor or reseller would be in violation under paragraph (b)(4), (c)(1), (d)(1), (e)(2), or (f)(2) of this section, the distributor or reseller shall not be deemed in violation if he can demonstrate:
(i) That the violation was not caused by him or his employee or agent; and
(ii) Evidence of an oversight program conducted by the distributor or reseller, such as periodic sampling and testing of gasoline, for monitoring the volatility of gasoline that the distributor or reseller sells, supplies, offers for sale or supply, or transports.
(4) In any case in which a refiner would be in violation under paragraphs (c)(3) or (e)(4) of this section, the refiner shall not be deemed in violation if he can demonstrate all of the following:
(i) Test results using the sampling methodology set forth in § 80.8 and the testing methodology set forth in § 80.46(c), or any other test method where adequate correlation to § 80.46(c) is demonstrated, which show evidence that the gasoline determined to be in violation was in compliance with the applicable standard when transported from the refinery.
(ii) That the violation was not caused by him or his employee or agent; and
(iii) That the violation:
(A) Was caused by an act in violation of law (other than the Act or this part), or an act of sabotage or vandalism, whether or not such acts are violations of law in the jurisdiction where the violation of the requirements of this part occurred, or
(B) Was caused by the action of a reseller, an ethanol blender, or a retailer supplied by such reseller or ethanol blender, in violation of a contractual undertaking imposed by the refiner on such reseller or ethanol blender designed to prevent such action, and despite reasonable efforts by the refiner (such as periodic sampling and testing) to insure compliance with such contractual obligation, or
(C) Was caused by the action of a retailer who is supplied directly by the refiner (and not by a reseller), in violation of a contractual undertaking imposed by the refiner on such retailer designed to prevent such action, and despite reasonable efforts by the refiner (such as periodic sampling and testing) to insure compliance with such contractual obligation, or
(D) Was caused by the action of a distributor or an ethanol blender subject to a contract with the refiner for transportation of gasoline from a terminal to a distributor, ethanol blender, retailer or wholesale purchaser-consumer, in violation of a contractual undertaking imposed by the refiner on such distributor or ethanol blender designed to prevent such action, and despite reasonable efforts by the refiner (such as periodic sampling and testing) to insure compliance with such contractual obligation, or
(E) Was caused by a carrier or other distributor not subject to a contract with the refiner but engaged by him for transportation of gasoline from a terminal to a distributor, ethanol blender, retailer or wholesale purchaser-consumer, despite reasonable efforts by the refiner (such as specification or inspection of equipment) to prevent such action, or
(F) Occurred at a wholesale purchaser-consumer facility: Provided, however, That if such wholesale purchaser-consumer was supplied by a reseller or ethanol blender, the refiner must demonstrate that the violation could not have been prevented by such reseller's or ethanol blender's compliance with a contractual undertaking imposed by the refiner on such reseller or ethanol blender as provided in paragraph (g)(4)(iii)(B) of this section.
(iv) In paragraphs (g)(4)(iii)(A) through (E) of this section, the term “was caused” means that the refiner must demonstrate by reasonably specific showings, by direct or circumstantial evidence, that the violation was caused or must have been caused by another.
(5) In any case in which a retailer or wholesale purchaser-consumer would be in violation under paragraphs (e)(1) or (f)(1) of this section, the retailer or wholesale purchaser-consumer shall not be deemed in violation if he can demonstrate that the violation was not caused by him or his employee or agent.
(6) In any case in which an ethanol blender would be in violation under paragraphs (b)(3), (c)(4), (d)(4), (e)(5) or (f)(4) of this section, the ethanol blender shall not be deemed in violation if he can demonstrate:
(i) That the violation was not caused by him or his employee or agent; and
(ii) Evidence of an oversight program conducted by the ethanol blender, such as periodic sampling and testing of gasoline, for monitoring the volatility of gasoline that the ethanol blender sells, supplies, offers for sale or supply or transports; and
(iii) That the gasoline determined to be in violation contained no more than 15% ethanol (by volume) when it was delivered to the next party in the distribution system.
(7) In paragraphs (g)(1)(i), (g)(2)(i), (g)(3)(i), (g)(4)(ii), (g)(5), and (g)(6)(i) of this section, the respective party must demonstrate by reasonably specific showings, by direct or circumstantial evidence, that it or its employee or agent did not cause the violation.
(8) In addition to the defenses provided in paragraphs (g)(1) through (6) of this section, in any case in which an ethanol blender, distributor, reseller, carrier, retailer, or wholesale purchaser-consumer would be in violation under paragraph (b), (c), (d), (e), or (f) of this section, as a result of gasoline which contains between 9 and 15 percent ethanol (by volume) but exceeds the applicable standard by more than one pound per square inch (1.0 psi), the ethanol blender, distributor, reseller, carrier, retailer or wholesale purchaser-consumer shall not be deemed in violation if such person can demonstrate, by showing receipt of a certification from the facility from which the gasoline was received or other evidence acceptable to the Administrator, that:
(i) The gasoline portion of the blend complies with the Reid vapor pressure limitations of § 80.27(a); and
(ii) The ethanol portion of the blend does not exceed 15 percent (by volume); and
(iii) No additional alcohol or other additive has been added to increase the Reid vapor pressure of the ethanol portion of the blend.
In the case of a violation alleged against an ethanol blender, distributor, reseller, or carrier, if the demonstration required by paragraphs (g)(8)(i), (ii), and (iii) of this section is made by a certification, it must be supported by evidence that the criteria in paragraphs (g)(8)(i), (ii), and (iii) of this section have been met, such as an oversight program conducted by or on behalf of the ethanol blender, distributor, reseller or carrier alleged to be in violation, which includes periodic sampling and testing of the gasoline or monitoring the volatility and ethanol content of the gasoline. Such certification shall be deemed sufficient evidence of compliance provided it is not contradicted by specific evidence, such as testing results, and provided that the party has no other reasonable basis to believe that the facts stated in the certification are inaccurate. In the case of a violation alleged against a retail outlet or wholesale purchaser-consumer facility, such certification shall be deemed an adequate defense for the retailer or wholesale purchaser-consumer, provided that the retailer or wholesale purchaser-consumer is able to show certificates for all of the gasoline contained in the storage tank found in violation, and, provided that the retailer or wholesale purchaser-consumer has no reasonable basis to believe that the facts stated in the certifications are inaccurate. [54 FR 11885, Mar. 22, 1989; 54 FR 27017, June 27, 1989, as amended at 56 FR 64711, Dec. 12, 1991; 58 FR 14484, Mar. 17, 1993; 62 FR 68205, Dec. 31, 1997; 67 FR 8736, Feb. 26, 2002; 84 FR 27021, June 10, 2019]