Title 40

SECTION 80.65

80.65 General requirements for refiners and importers.

§ 80.65 General requirements for refiners and importers.

(a) Date requirements begin. The requirements of this subpart D apply to all gasoline produced, imported, transported, stored, sold, or dispensed:

(1) At any location other than retail outlets and wholesale purchaser-consumer facilities on or after December 1, 1994; and

(2) At any location on or after January 1, 1995.

(b) Certification of gasoline and RBOB. Gasoline or RBOB sold or dispensed in a covered area must be certified under § 80.40.

(c) Standards must be met on either a per-gallon or on an average basis. (1) Any refiner or importer, for each batch of reformulated gasoline or RBOB it produces or imports, shall meet:

(i) Those standards and requirements it designated under paragraph (d) of this section for per-gallon compliance on a per-gallon basis; and

(ii) Those standards and requirements it designated under paragraph (d) of this section for average compliance on an average basis over the applicable averaging period.

(2) [Reserved]

(3)(i) For each averaging period, and separately for each parameter that may be met either per-gallon or on average, any refiner shall designate for each refinery, or any importer shall designate its gasoline or RBOB as being subject to the standard applicable to that parameter on either a per-gallon or average basis. For any specific averaging period and parameter all batches of gasoline or RBOB shall be designated as being subject to the per-gallon standard, or all batches of gasoline and RBOB shall be designated as being subject to the average standard. For any specific averaging period and parameter a refiner for a refinery, or any importer may not designate certain batches as being subject to the per-gallon standard and others as being subject to the average standard.

(ii) In the event any refiner for a refinery, or any importer fails to meet the requirements of paragraph (c)(3)(i) of this section and for a specific averaging period and parameter designates certain batches as being subject to the per-gallon standard and others as being subject to the average, all batches produced or imported during the averaging period that were designated as being subject to the average standard shall, ab initio, be redesignated as being subject to the per-gallon standard. This redesignation shall apply regardless of whether the batches in question met or failed to meet the per-gallon standard for the parameter in question.

(d) Designation of gasoline. Any refiner or importer of gasoline shall designate the gasoline it produces or imports as follows:

(1) All gasoline produced or imported shall be properly designated as reformulated gasoline, conventional gasoline, RBOB, or CBOB.

(2) All gasoline designated as reformulated or as RBOB shall be further properly designated as:

(i) Either VOC-controlled or not VOC-controlled;

(ii) In the case of gasoline or RBOB designated as VOC-controlled:

(A) Either intended for use in VOC-Control Region 1 or VOC-Control Region 2 (as defined in § 80.71); or

(B) Designated as “adjusted VOC gasoline” (as defined in § 80.40(c)(1));

(iii)-(iv) [Reserved]

(v) For each of the following parameters, either gasoline or RBOB which meets the standard applicable to that parameter on a per-gallon basis or on average -

(A) Toxics emissions performance;

(B) NOX emissions performance in the case of gasoline certified using the complex model.

(C) Benzene content; and

(D) In the case of VOC-controlled gasoline or RBOB certified using the complex model, VOC emissions performance; and

(vi) In the case of RBOB, the gasoline must be designated as RBOB and the designation must include the type(s) and amount(s) of oxygenate required to be blended with the RBOB.

(3) Every batch of reformulated gasoline, conventional gasoline, RBOB, or CBOB produced or imported at each refinery or import facility shall be assigned a number (the “batch number”), consisting of the EPA-assigned refiner or importer registration number, the EPA facility registration number, the last two digits of the year in which the batch was produced, and a unique number for the batch, beginning with the number one for the first batch produced or imported each calendar year and each subsequent batch during the calendar year being assigned the next sequential number (e.g., 4321-54321-95-000001, 4321-54321-95-000002, etc.).

(e) Determination of volume and properties. (1) Except as provided in paragraphs (e)(3) and (4) of this section, each refiner or importer shall, for each batch of reformulated gasoline or RBOB produced or imported, determine the volume and the value of each of the properties specified in paragraph (e)(2)(i) of this section, except that the value for RVP must be determined only in the case of reformulated gasoline or RBOB that is VOC-controlled. These determinations shall -

(i) Be based on a representative sample of the reformulated gasoline or RBOB that is analyzed using the methodologies specified in § 80.46 through December 31, 2015, or, beginning January 1, 2016, in either § 80.46 or § 80.47;

(ii) In the case of RBOB, follow the oxygenate blending instructions specified in § 80.69(a);

(iii) Be carried out either by the refiner or importer, or by an independent laboratory; and

(iv) Be completed prior to the gasoline or RBOB leaving the refinery or import facility for each parameter that the gasoline or RBOB is subject to, or that is used to calculate an emissions performance that the gasoline or RBOB is subject to, under § 80.41(a) through (f).

(2) In the event that the value of any of these properties is determined by the refiner or importer and by an independent laboratory in conformance with the requirements of paragraph (f) of this section -

(i) The results of the analyses conducted by the refiner or importer for such properties shall be used as the basis for compliance determinations unless the absolute value of the differences of the test results from the two laboratories is larger than the following values:

(ii) In the event the values from the two laboratories for any property fall outside these ranges, the refiner or importer shall use as the basis for compliance determinations:

(A) The larger of the two values for the property, except the smaller of the two results shall be used for oxygenates; or

(B) The refiner or importer shall have the gasoline analyzed for the property at one additional independent laboratory. If this second independent laboratory obtains a result for the property that is within the range, as listed in paragraph (e)(2)(i) of this section, of the refiner's or importer's result for this property, then the refiner's or importer's result shall be used as the basis for compliance determinations.

(3) Beginning January 1, 2013, API Gravity is not required to be measured or reported for the purpose of batch certification.

(4) For the purposes of meeting the requirements of this paragraph (e) for any winter fuel parameter except benzene, oxygenate, RVP and sulfur, any refiner or importer may, prior to analysis, combine samples of gasoline collected from more than one batch of gasoline or blendstock (“composite sample”), and treat such composite sample as one batch of gasoline or blendstock provided that the refiner or importer meets all the following requirements:

(i) Samples must be from a single reporting year, must be limited to non-VOC gasoline, and must be of a single grade of gasoline or of a single type of batch-produced blendstock.

(ii) Combines samples of gasoline that are produced or imported over a period no longer than one month. Blendstock samples of a single blendstock type obtained from continuous processes over a calendar month may be mixed together to form one blendstock sample and the sample subsequently analyzed for the required fuel parameters.

(iii)(A) Samples shall have been collected and stored using good laboratory practices in order to prevent change in product composition with regard to baseline properties and to minimize loss of volatile fractions of the sample.

(B) Properties of the retained samples shall be adjusted for loss of butane or pentane by comparing the RVP measured immediately after blending with the RVP determined at the time that the supplemental properties are measured.

(C) The volume of each batch or shipment sampled, to the nearest gallon, shall have been noted and the sum of the volumes, in gallons, calculated.

(iv) For each batch or shipment sampled, the ratio of its volume to the total volume determined in paragraph (e)(4)(iii)(C) of this section shall be determined to three decimal places. This shall be the volumetric fraction of the shipment in the mixture.

(v) The total minimum volume required to perform duplicate analyses to obtain values of all of the required fuel parameters shall be determined.

(vi) The volumetric fraction determined in paragraph (e)(4)(iv) of this section for each batch or shipment shall be multiplied by the value determined in paragraph (e)(4)(v) of this section.

(vii) The resulting value determined in paragraph (e)(4)(vi) of this section for each batch or shipment shall be the volume of each batch or shipment's sample to be added to the mixture. This volume shall be determined to the nearest milliliter.

(viii) The appropriate volumes of each shipment's sample shall be thoroughly mixed and the solution analyzed per the methods required under § 80.46 or § 80.47, as applicable.

(ix) Uses the total of the volumes of the batches of gasoline that comprise the composite sample, and the results of the analyses of the composite sample, for purposes of compliance calculations under this paragraph (e).

(f) Independent analysis requirement. (1) Any refiner or importer of reformulated gasoline or RBOB shall carry out a program of independent sample collection and analyses for the reformulated gasoline it produces or imports, which meets the requirements of one of the following two options:

(i) Option 1. The refiner or importer shall, for each batch of reformulated gasoline or RBOB that is produced or imported, have the value for each property specified in paragraph (e)(2)(i) of this section determined by an independent laboratory that collects and analyzes a representative sample from the batch using the methodologies specified in § 80.46 through December 31, 2015, and the methodologies specified in § 80.47 beginning January 1, 2016.

(ii) Option 2. The refiner or importer shall have a periodic independent testing program carried out for all reformulated gasoline produced or imported, which shall consist of the following:

(A) An independent laboratory shall collect a representative sample from each batch of reformulated gasoline that the refiner or importer produces or imports;

(B) EPA will identify up to ten percent of the total number of samples collected under paragraph (f)(1)(ii)(A) of this section; and

(C) The designated independent laboratory shall, for each sample identified by EPA under paragraph (f)(1)(ii)(B) of this section, determine the value for each property using the methodologies specified in § 80.46.

(2)(i) Any refiner or importer shall designate one independent laboratory for each refinery or import facility at which reformulated gasoline or RBOB is produced or imported. This independent laboratory will collect samples and perform analyses in compliance with the requirements of this paragraph (f) of this section.

(ii) Any refiner or importer shall identify this designated independent laboratory to EPA under the registration requirements of § 80.76.

(iii) In order to be considered independent:

(A) The laboratory shall not be operated by any refiner or importer, and shall not be operated by any subsidiary or employee of any refiner or importer;

(B) The laboratory shall be free from any interest in any refiner or importer; and

(C) The refiner or importer shall be free from any interest in the laboratory; however

(D) Notwithstanding the restrictions in paragraphs (f)(2)(iii) (A) through (C) of this section, a laboratory shall be considered independent if it is owned or operated by a gasoline pipeline company, regardless of ownership or operation of the gasoline pipeline company by refiners or importers, provided that such pipeline company is owned and operated by four or more refiners or importers.

(iv) Use of a laboratory that is debarred, suspended, or proposed for debarment pursuant to the Governmentwide Debarment and Suspension regulations, 2 CFR part 1532, or the Debarment, Suspension and Ineligibility provisions of the Federal Acquisition Regulations, 48 CFR part 9, subpart 9.4, shall be deemed noncompliance with the requirements of this paragraph (f).

(v) Any laboratory that fails to comply with the requirements of this paragraph (f) shall be subject to debarment or suspension under Governmentwide Debarment and Suspension regulations, 2 CFR part 1532, or the Debarment, Suspension and Ineligibility regulations, Federal Acquisition Regulations, 48 CFR part 9, subpart 9.4.

(3) Any refiner or importer shall, for all samples collected or analyzed pursuant to the requirements of this paragraph (f), cause its designated independent laboratory:

(i) At the time the designated independent laboratory collects a representative sample from a batch of reformulated gasoline, to:

(A) Obtain the refiner's or importer's assigned batch number for the batch being sampled;

(B) Determine the volume of the batch;

(C) Determine the identification number of the gasoline storage tank or tanks in which the batch was stored at the time the sample was collected;

(D) Determine the date and time the batch became finished reformulated gasoline, and the date and time the sample was collected;

(E) Determine the grade of the batch (e.g., premium, mid-grade, or regular); and

(F) In the case of reformulated gasoline produced through computer-controlled in-line blending, determine the date and time the blending process began and the date and time the blending process ended, unless exempt under paragraph (f)(4) of this section;

(ii) To retain each sample collected pursuant to the requirements of this paragraph (f) for a period of 30 days, except that this period shall be extended to a period of up to 180 days upon request by EPA;

(iii) To submit to EPA periodic reports, as follows:

(A) For each compliance year beginning with the 2014 compliance year, a single annual report for calendar year January through December may be submitted by the following March 31.

(B) Each report shall include, for each sample of reformulated gasoline that was analyzed pursuant to the requirements of this paragraph (f):

(1) The results of the independent laboratory's analyses for each property; and

(2) The information specified in paragraph (f)(3)(i) of this section for such sample; and

(iv) To supply to EPA, upon EPA's request, any sample collected or a portion of any such sample.

(4) Any refiner that produces reformulated gasoline using computer-controlled in-line blending equipment is exempt from the independent sampling and testing requirements specified in paragraphs (f)(1) through (3) of this section and from the requirement of paragraph (e)(1) of this section to obtain test results for each batch prior to the gasoline leaving the refinery, provided that such refiner:

(i) Obtains from EPA an exemption from these requirements. In order to seek such an exemption, the refiner shall submit a petition to EPA, such petition to include:

(A) A description of the refiner's computer-controlled in-line blending operation, including a description of:

(1) The location of the operation;

(2) The length of time the refiner has used the operation;

(3) The volumes of gasoline produced using the operation since the refiner began the operation or during the previous three years, whichever is shorter, by grade;

(4) The movement of the gasoline produced using the operation to the point of fungible mixing, including any points where all or portions of the gasoline produced is accumulated in gasoline storage tanks;

(5) The physical lay-out of the operation;

(6) The automated control system, including the method of monitoring and controlling blend properties and proportions;

(7) Any sampling and analysis of gasoline that is conducted as a part of the operation, including on-line, off-line, and composite, and a description of the methods of sampling, the methods of analysis, the parameters analyzed and the frequency of such analyses, and any written, printed, or computer-stored results of such analyses, including information on the retention of such results;

(8) Any sampling and analysis of gasoline produced by the operation that occurs downstream from the blending operation prior to fungible mixing of the gasoline, including any such sampling and analysis by the refiner and by any purchaser, pipeline or other carrier, or by independent laboratories;

(9) Any quality assurance procedures that are carried out over the operation; and

(10) Any occasion(s) during the previous three years when the refiner adjusted any physical or chemical property of any gasoline produced using the operation downstream from the operation, including the nature of the adjustment and the reason the gasoline had properties that required adjustment; and

(B) A description of the independent audit program of the refiner's computer-controlled in-line blending operation that the refiner proposes will satisfy the requirements of this paragraph (f)(4); and

(ii) Carries out an independent audit program of the refiner's computer-controlled in-line blending operation, such program to include:

(A) For each batch of reformulated gasoline produced using the operation, a review of the documents generated that is sufficient to determine the properties and volume of the gasoline produced;

(B) Audits that occur no less frequently than annually;

(C) Reports of the results of such audits submitted to the refiner, and to EPA by the auditor no later than February 28 of each year;

(D) Audits that are conducted by an auditor that meets the non-debarred criteria specified in § 80.125 (a) and/or (d); and

(iii) Complies with any other requirements that EPA includes as part of the exemption.

(5) A refiner or importer may designate one alternate independent laboratory to perform testing required for compliance if all the following conditions are met:

(i) The alternate independent laboratory meets all provisions of this section for designated independent laboratories.

(ii) The alternate laboratory is used only when the designated independent laboratory per paragraph (f)(2) of this section is unavailable and cannot perform testing required for compliance, for example, when the primary designated laboratory is closed, the apparatus for certain test methods are down, or independent laboratory personnel are not available.

(iii) The alternate independent laboratory is not used to select a preferred test result.

(g) [Reserved]

(h) Compliance audits. Any refiner and importer of any reformulated gasoline or RBOB shall have the reformulated gasoline and RBOB it produced or imported during each calendar year audited for compliance with the requirements of this subpart D, in accordance with the requirements of subpart F, at the conclusion of each calendar year.

(i) Exclusion of previously certified gasoline. Any refiner who uses previously certified reformulated gasoline, conventional gasoline, RBOB, or CBOB to produce reformulated gasoline or RBOB must exclude the previously certified gasoline for purposes of demonstrating compliance with the standards under § 80.41. This exclusion must be accomplished by the refiner as follows:

(1)(i) Determine the volume and properties of each batch of previously certified gasoline used to produce reformulated gasoline or RBOB using the procedures in paragraph (e)(1) of this section and § 80.66, and the independent analysis requirements in paragraph (f) of this section in the case of previously certified reformulated gasoline.

(ii) In the case of previously certified reformulated gasoline or RBOB determine the emissions performances for toxics and NOX, except as provided in § 80.41(e) and (f), and VOC for VOC-controlled gasoline, and the designations for VOC control.

(iii) In the case of previously certified conventional gasoline or CBOB, determine the exhaust toxics and NOX emissions performances, except as provided in § 80.101(c)(3) and (4).

(2) Determine the volume and properties, and the emissions performance for toxics and NOX, and VOC for VOC-controlled gasoline, of any batch of reformulated gasoline or RBOB produced at the refinery using previously certified gasoline and include each batch in the refinery's compliance calculations without regard to the presence of previously certified gasoline in the batch.

(3) In the case of any parameter or emissions performance standard that the refiner has designated for the refinery to meet on a per-gallon basis under paragraph (d)(2)(v) of this section, the per-gallon standard that applies to any batch of reformulated gasoline or RBOB produced by the refinery is as follows:

(i) When using any previously certified reformulated gasoline or RBOB, the more stringent of:

(A) The per-gallon standard that applies to the refinery under § 80.41; or

(B) The most stringent value for that parameter or emissions performance for any previously certified reformulated gasoline or RBOB used to produce the batch.

(ii) When using any previously certified conventional gasoline, the per-gallon standard that applies to the refinery under § 80.41.

(4) In the case of any parameter or emissions performance standard that the refiner has designated for the refinery to meet on average under paragraph (d)(2)(v) of this section, any previously certified gasoline must be excluded from the refinery's compliance calculations as follows:

(i) Where a refiner uses previously certified reformulated gasoline or RBOB to produce reformulated gasoline or RBOB:

(A) The refiner must include the volume and properties of any batch of previously certified reformulated gasoline or RBOB in the refinery's compliance calculations for the standard under § 80.67(g) as a negative batch, by multiplying the term Vi in § 80.67(g)(1)(ii) (i.e., the batch volume) times negative 1; and

(B) The negative batch under paragraph (i)(4)(i)(A) of this section must be included in the averaging categories that correspond to the designation regarding VOC control of the previously certified gasoline batch when received; and

(C) The net volume of gasoline in the refinery's reformulated gasoline compliance calculations must be positive in each of the following categories where the standard is being met on average:

(ii) Where a refiner uses previously certified conventional gasoline or CBOB to produce reformulated gasoline or RBOB -

(A) The refiner must include the volume and properties of any batch of previously certified conventional gasoline or CBOB as a negative batch in the refiner's anti-dumping compliance calculations under § 80.101(g) for the refinery, or where applicable, the refiner's aggregation under § 80.101(h); and

(B) The net volume of gasoline in the refiner's anti-dumping compliance calculations for the refinery, or, where applicable, the refiner's aggregation under § 80.101(h), must be positive.

(5) The refiner must use any previously certified gasoline that the refiner includes as a negative batch under paragraph (i)(4) of this section in its compliance calculations for the refinery, or where appropriate, the refiner's aggregation, as a component in gasoline production during the annual averaging period in which the previously certified gasoline was included as a negative batch in the refiner's compliance calculations.

(6)

(6)(i) Any refiner may use the procedures specified in this paragraph (i) to combine previously certified conventional gasoline or CBOB with reformulated gasoline or RBOB, to reclassify conventional gasoline or CBOB into reformulated gasoline or RBOB, or to change the designations of reformulated gasoline or RBOB with regard to VOC control.

(ii) The procedures under this section are refinery procedures. Any person who uses the procedures under this section is a refiner who must meet all requirements applicable to refiners under this subpart.

(7) Nothing in this paragraph (i) prevents any party from combining previously certified reformulated gasolines from different sources in a manner that does not violate the prohibitions in § 80.78(a).

[59 FR 7813, Feb. 16, 1994, as amended at 59 FR 36962, July 20, 1994; 59 FR 39289, Aug. 2, 1994; 59 FR 60715, Nov. 28, 1994; 62 FR 60135, Nov. 6, 1997; 66 FR 37165, July 17, 2001; 66 FR 67105, Dec. 28, 2001; 67 FR 8737, Feb. 26, 2002; 71 FR 74567, Dec. 15, 2005; 71 FR 26698, May 8, 2006; 72 FR 2427, Jan. 19, 2007; 79 FR 23640, Apr. 28, 2014]

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