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§1090.1400 General provisions.
(a) Program plan approval process. (1) A program plan that complies with the requirements in §1090.1415 or §1090.1450 must be submitted to EPA no later than October 15 of the year preceding the calendar year in which the program will be conducted.
(2) The program plan must be signed by an RCO of the independent surveyor conducting the program.
§1090.1405 National fuels survey program.
(a) Program participation. (1) A gasoline manufacturer that elects to account for oxygenate added downstream under §1090.710 must participate in the national fuels survey program (NFSP) specified in this paragraph (b) of this section.
(2) A party required to participate in an E15 survey under §1090.1420(a) must participate in the NFSP specified in paragraph (b) of this section or a survey program approved by EPA under §1090.1420(b) or (c).
(3) Other parties may elect to participate in the NFSP for purposes of establishing an affirmative defense against violations of requirements and provisions under this part as specified in §1090.1720.
(b) Program requirements. The NFSP must meet all the following requirements:
(1) The survey program must be planned and conducted by an independent surveyor that meets the independence requirements in §1090.55 and the requirements specified in §1090.1410.
(2) The survey program must be conducted by collecting samples representative of gasoline and diesel retail outlets in the United States as specified in §1090.1415.
[85 FR 78469, Dec. 4, 2020]
§1090.1410 Independent surveyor requirements.
The independent surveyor conducting the NFSP must meet all the following requirements:
(a) Submit a proposed survey program plan under §1090.1415 to EPA for approval for each calendar year.
(b)(1) Obtain samples representative of the gasoline and diesel fuel (including diesel fuel made available at retail to nonroad vehicles, engines, and equipment) offered for sale separately from all gasoline and diesel retail outlets in accordance with the survey program plan approved by EPA, or immediately notify EPA of any refusal of a retailer to allow samples to be taken.
(2) Obtain the number of samples representative of the number of gasoline retail outlets offering E15.
(3) Collect samples of gasoline produced at blender pump using “method 1” specified in NIST Handbook 158 (incorporated by reference, see §1090.95). All other samples of gasoline and diesel fuel must be collected using the methods specified in subpart N of this part.
(4) Samples must be shipped via ground service to an EPA-approved laboratory within 2 business days of being collected.
(c) Test, or arrange to be tested, the collected samples, as follows:
(1) Gasoline samples must be analyzed for oxygenate content, sulfur content, and benzene content. Gasoline samples collected from June 1 through September 15 must also be analyzed for RVP.
(2) A subset of gasoline samples, as determined under §1090.1415(e)(3), must also be analyzed for aromatics content, olefins content, and distillation parameters.
(3) Diesel samples must be analyzed for sulfur content.
(4) All samples must be tested by an EPA-approved laboratory using the test methods specified in subpart N of this part.
(5) All testing must be completed by the EPA-approved laboratory within 10 business days after receipt of the sample.
(d) Verify E15 labeling requirements at gasoline retail outlets that offer E15 for sale.
(e) Using procedures specified in an EPA-approved plan under §1090.1415, notify EPA, the retailer, and the branded fuel manufacturer (if applicable) within 24 hours after the EPA-approved laboratory has completed analysis when any of the following occur:
(1) A test result for a gasoline sample yields a sulfur content result that exceeds the downstream sulfur per-gallon standard in §1090.205(c).
(2) A test result for a gasoline sample yields an RVP result that exceeds the applicable RVP standard in §1090.215.
(3) A test result for a diesel sample yields a sulfur content result that exceeds the sulfur standard in §1090.305(b).
(4) A test result for a gasoline sample identified as “E15” yields an ethanol content result that exceeds 15 volume percent.
(5) A test result for a gasoline sample not identified as “E15” yields an ethanol content of more than 10 volume percent ethanol.
(f) Provide quarterly and annual summary reports that include the information specified in §1090.925(b) and (c), respectively.
(g) Keep records related to the NFSP as specified in §1090.1245(b)(1).
(h) Submit contracts to EPA as specified in §1090.1400(b).
(i) Permit any representative of EPA to monitor at any time the conducting of the survey, including sample collection, transportation, storage, and analysis.
[85 FR 78469, Dec. 4, 2020]
§1090.1415 Survey program plan design requirements.
The survey program plan must include all the following:
(a) Number of surveys. The survey program plan must include 4 surveys each calendar year that occur during the following time periods:
(1) One survey during the period of January 1 through March 31.
(2) One survey during the period of April 1 through June 30.
(3) One survey during the period of July 1 through September 30.
(4) One survey during the period of October 1 through December 31.
(b) Sampling areas. The survey program plan must include sampling in all sampling strata during each survey. These sampling strata must be further divided into discrete sampling areas or clusters. Each survey must include sampling in at least 40 sampling areas in each stratum that are randomly selected.
(c) No advance notice of surveys. The survey program plan must include procedures to keep the identification of the sampling areas that are included in the plan confidential from any participating party prior to the beginning of a survey in an area. However, this information must not be kept confidential from EPA.
(d) Gasoline and diesel retail outlet selection. (1) Gasoline and diesel retail outlets to be sampled in a sampling area must be selected from among all gasoline retail outlets in the United States that sell gasoline with the probability of selection proportionate to the volume of gasoline sold at the retail outlet. The sample of retail outlets must also include gasoline retail outlets with different brand names as well as those gasoline retail outlets that are unbranded.
(2) For any gasoline or diesel retail outlet from which a sample of gasoline or diesel was collected during a survey and was reported to EPA under §1090.1410(e), that gasoline or diesel retail outlet must be included in the subsequent survey.
(3) At least one sample of a product dispensed as E15 must be collected at each gasoline retail outlet when E15 is present, and separate samples must be taken that represent the gasoline contained in each storage tank at the gasoline retail outlet unless collection of separate samples is not practicable.
(4) At least one sample of a product dispensed as diesel fuel must be collected at each diesel fuel retail outlet when diesel fuel is present. Samples of diesel fuel may be collected at retail outlets that sell gasoline.
(e) Number of samples. (1) The number of retail outlets to be sampled must be independently calculated for the total number of gasoline retail outlets and the total number of diesel fuel retail outlets. The same retail outlet may represent both a gasoline retail outlet and a diesel fuel retail outlet for purposes of determining the number of samples.
(2) The minimum number of samples to be included in the survey program plan for each calendar year is calculated as follows:
Where:
n = Minimum number of samples in a year-long survey series. However, n must be greater than or equal to 2,000 for the number of diesel samples or 5,000 for the number of gasoline samples.
Zα = Upper percentile point from the normal distribution to achieve a one-tailed 95% confidence level (5% α-level). For purposes of this survey program, Zα equals 1.645.
Zβ = Upper percentile point to achieve 95% power. For purposes of this survey program, Zβ equals 1.645.
ϕ1 = The maximum proportion of non-compliant outlets for a region to be deemed compliant. This parameter needs to be 5% or greater (i.e., 5% or more of the outlets, within a stratum such that the region is considered non-compliant).
ϕ0 = The underlying proportion of non-compliant outlets in a sample. For the first survey program plan, ϕ0 will be 2.3%. For subsequent survey program plans, ϕ0 will be the average of the proportion of outlets found to be non-compliant over the previous 4 surveys.
Fa = Adjustment factor for the number of extra samples required to compensate for samples that could not be included in the survey (e.g., due to technical or logistical considerations), based on the number of additional samples required during the previous 4 surveys. Fa must be greater than or equal to 1.1.
Fb = Adjustment factor for the number of samples required to resample each retail outlet with test results reported to EPA under §1090.1410(e), based on the rate of resampling required during the previous 4 surveys. Fb must be greater than or equal to 1.1.
Sun = Number of surveys per year. For purposes of this survey program, Sun equals 4.
Stn = Number of sampling strata. For purposes of this survey program, Stn equals 3.
(3) The number of gasoline samples that also need to be tested for aromatics, olefins, and distillation parameters under §1090.1410(c)(2) must be calculated using the methodology specified in paragraph (e)(2) of this section without the Fa, Fb, and Sun parameters.
(4) The number of samples determined under paragraphs (e)(2) and (3) of this section must be distributed approximately equally among the 4 surveys conducted during the calendar year.
(f) Laboratory designation. Any laboratory that the independent surveyor intends to use to test samples collected as part of the NFSP must be approved annually as part of the survey program plan approval process in §1090.1400(a). In the survey program plan submitted to EPA, the independent surveyor must include the following information regarding any laboratory they intend to use to test samples:
(1) The name of the laboratory.
(2) The address of the laboratory.
(3) The test methods for each fuel parameter measured at the laboratory.
(4) Reports demonstrating the laboratory's performance in a laboratory crosscheck program for the most recent 12 months prior to submission of the survey program plan.
(g) Submission. Survey program plans submitted under this section must be approved annually under §1090.1400(a).
[85 FR 78469, Dec. 4, 2020]
§1090.1420 Additional requirements for E15 misfueling mitigation surveying.
(a) E15 misfueling mitigation survey requirement. (1) Any gasoline manufacturer, oxygenate blender, or oxygenate producer that produces, introduces into commerce, sells, or offers for sale E15, gasoline, BOB, DFE, or gasoline-ethanol blended fuel that is intended for use in or as E15 must comply with either survey program Option 1 (as specified in paragraph (b) of this section) or Option 2 (as specified in paragraph (c) of this section).
(2) For an oxygenate producer that produces or imports DFE, the DFE is deemed as intended for use in E15 unless the oxygenate producer demonstrates that it was not intended for such use. The oxygenate producer may demonstrate, at a minimum, that DFE is not intended for use in E15 by including language on PTDs stating that the DFE is not intended for use in E15, entering into contracts with oxygenate blenders to limit the use of their DFE to gasoline-ethanol blended fuels of no more than 10 volume percent, and limiting the concentration of their DFE to no more than 10 volume percent in their fuel additive registration under 40 CFR part 79.
(b) Survey Option 1. The gasoline manufacturer, oxygenate blender, or oxygenate producer must properly conduct a survey program in accordance with a survey program plan that has been approved by EPA in all areas that may be reasonably expected to be supplied with their gasoline, BOB, DFE, or gasoline-ethanol blended fuel. Such approval must be based on a survey program plan that meets all the following requirements:
(1) The survey program must consist of at least quarterly surveys that occur during the following time periods in every year during which the gasoline manufacturer, oxygenate blender, or oxygenate producer introduces E15 into commerce:
(i) One survey during the period of January 1 through March 31.
(ii) One survey during the period of April 1 through June 30.
(iii) One survey during the period of July 1 through September 30.
(iv) One survey during the period of October 1 through December 31.
(2) The survey program plan must meet all the requirements of this subpart, except for §§1090.1405(a) and (b)(2), 1090.1410(c)(2) and (3), and 1090.1415(b), (d)(1), (2), and (4), and (e). In lieu of meeting these sections, the survey program plan must specify the sampling strata, clusters, and area(s) to be surveyed, and the number of samples to be included in the survey.
(c) Survey Option 2. The gasoline manufacturer, oxygenate blender, or oxygenate producer must participate in the NFSP under §1090.1405.
[85 FR 78469, Dec. 4, 2020]
§1090.1450 National sampling and testing oversight program.
(a) Program participation. (1) Except for a gasoline manufacturer that has an approved in-line blending waiver under §1090.1315 that covers all gasoline produced at their facility, a gasoline manufacturer that elects to account for oxygenate added downstream under §1090.710 must participate in the national sampling and testing oversight program (NSTOP) in this section.
(2) Other gasoline manufacturers may elect to participate in the NSTOP for purposes of establishing an affirmative defense to a violation under §1090.1720. A gasoline manufacturer that has an approved in-line blending waiver under §1090.1315 does not need to participate in the NSTOP in order to establish an affirmative defense to a violation under §1090.1720.
(3) A gasoline manufacturer that elects to participate in the NSTOP must test, or arrange to be tested, samples collected from their gasoline manufacturing facilities as specified in paragraph (c)(2) of this section and report results to the independent surveyor within 10 business days of the date that the sample was collected.
(b) Program requirements. The NSTOP must meet all the following requirements:
(1) The NSTOP must be planned and conducted by an independent surveyor that meets the independence requirements in §1090.55 and the requirements of paragraph (c) of this section.
(2) The NSTOP must be conducted at each gasoline manufacturing facility from all participating gasoline manufacturers.
(c) Independent surveyor requirements. The independent surveyor conducting the NSTOP must meet all the following requirements:
(1) Submit a proposed NSTOP plan that meets the requirements of paragraph (d) of this section to EPA for approval each calendar year.
(2)(i) Obtain at least one sample representing summer gasoline and one sample representing winter gasoline for each participating gasoline manufacturing facility. If the fuel manufacturer only produces fuel during either the summer or winter season, obtain at least one sample during the season that the fuel manufacturer produces fuel.
(ii)(A) Observe the gasoline manufacturer collect at least one sample representing each gasoline required under paragraph (c)(2)(i) of this section for each participating gasoline manufacturing facility and evaluate whether the gasoline manufacturer collected representative sample(s) in accordance with applicable sampling procedures specified in §1090.1335. Immediately notify EPA and the gasoline manufacturer if the applicable sampling procedures are not followed.
(B) The independent surveyor must also obtain a portion of the sample collected by the gasoline manufacturer and ship the sample as specified in paragraph (c)(2)(v) of this section.
(C) The observed sample does not need to represent a batch of certified gasoline (i.e., the independent surveyor may observe the collection of a simulated sample if the gasoline manufacturer does not have a batch of certified gasoline available).
(iii) The independent surveyor must immediately notify EPA of any refusal of a gasoline manufacturer to allow samples to be taken. A gasoline manufacturer that refuses to allow the independent surveyor to take portions of collected samples is no longer considered by EPA to be participating in the NSTOP and must not account for oxygenate added downstream under §1090.710.
(iv) Samples must be retained by the independent surveyor as specified in §1090.1345(a)(1).
(v) Samples collected must be shipped via ground service within 2 business days from when the samples are collected to an EPA-approved laboratory as established in an approved plan under this section. A random subset of collected samples must also be shipped to the EPA National Vehicle and Fuel Emissions Laboratory as established in an approved plan under this section.
(3) Test, or arrange to be tested, samples collected under paragraph (c)(2) of this section as follows:
(i) Winter gasoline samples must be analyzed for oxygenate content, sulfur content, benzene content, distillation parameters, aromatics, and olefins.
(ii) Summer gasoline samples must be analyzed for oxygenate content, sulfur content, benzene content, distillation parameters, aromatics, olefins, and RVP.
(iii) All samples must be tested by an EPA-approved laboratory using test methods specified in subpart N of this part.
(iv) All analyses must be completed by the EPA-approved laboratory within 10 business days after receipt of the sample.
(v) A gasoline manufacturer must analyze gasoline samples for sulfur content, benzene content, and for summer gasoline, RVP.
(4) Using procedures specified in the EPA-approved plan under this section, notify EPA and the gasoline manufacturer within 24 hours after the EPA-approved laboratory has completed analysis when any of the following occur:
(i) A test result for a gasoline sample yields a sulfur content that exceeds the fuel manufacturing facility gate sulfur per-gallon standard in §1090.205(b).
(ii) A test result for a gasoline sample yields an RVP that exceeds the applicable RVP standard in §1090.215.
(5) Make the test results available to EPA and the gasoline manufacturer for all analyses specified in paragraph (c)(3) of this section within 5 business days of completion of the analysis.
(6) Compare test results of all samples collected under paragraph (c)(2) of this section and all test results obtained from the gasoline manufacturer from the same samples as specified in paragraph (a)(3) of this section and notify EPA and the gasoline manufacturer if the test result for any parameter tested under paragraph (c)(3) of this section is greater than the reproducibility of the applicable method specified in subpart N of this part.
(7) Provide quarterly reports to EPA that include the information specified in §1090.925(d).
(8) Keep records related to the NSTOP as specified in §1090.1245(b)(3).
(9) Submit contracts to EPA as specified in §1090.1400(b).
(10) Review the test performance index and precision ratio for each method and instrument the laboratory used to test the gasoline samples collected under this section as follows:
(i) For each test method and instrument, the surveyor must obtain the relevant records from the gasoline manufacturer to determine the site precision, either from an inter-laboratory crosscheck program or from ASTM D6299 (incorporated by reference in §1090.95).
(ii) Using relevant information obtained from the gasoline manufacturers, the surveyor must determine the appropriate Test Performance Index (TPI) and Precision Ratio (PR) from Table 2 Guidelines for Action Based on TPI in ASTM D6792 (incorporated by reference in §1090.95).
(iii) A gasoline manufacturer must supply copies of the necessary information to the independent surveyor to review the TPI and PR for each method and instrument used to test the gasoline samples collected under this section.
(11) Permit any representative of EPA to monitor at any time the conducting of the NSTOP, including sample collection, transportation, storage, and analysis.
(d) NSTOP plan requirements. The NSTOP plan specified in paragraph (c)(1) of this section must include, at a minimum, all the following:
(1) Advance notice of sampling. The NSTOP plan must include procedures on how to keep the identification of the gasoline manufacturing facilities included in the NSTOP plan confidential with minimal advanced notification from any participating gasoline manufacturer prior to collecting a sample. However, this information must not be kept confidential from EPA.
(2) Gasoline manufacturing facility selection. (i) Each participating gasoline manufacturing facility must be sampled at least once during each season they produce fuel. The plan must demonstrate how these facilities will be randomly selected within the summer and winter seasons.
(ii) In addition to the summer and winter season samples collected at each participating gasoline manufacturing facility, additional oversight samples are required under paragraph (d)(3)(ii) of this section. The independent surveyor must identify how these samples will be randomly distributed among participating gasoline manufacturing facilities.
(3) Number of samples. (i) The number of gasoline manufacturing facilities to be sampled must be calculated for the total number of samples to be collected for the next calendar year as part of the NSTOP plan.
(ii) The minimum number of samples to be included in the NSTOP plan for each calendar year is calculated as follows:
n = R * Fa * Fb * Sun
Where:
n = Minimum number of samples in a year.
R = The number of participating gasoline manufacturing facilities.
Fa = Adjustment factor for the number of extra samples required to compensate for samples that could not be included in the NSTOP (e.g., due to technical or logistical considerations), based on the number of additional samples required during the previous 2 calendar years. Fa must be greater than or equal to 1.1.
Fb = Adjustment factor for the number of samples required to ensure oversight. For purposes of this program, Fb equals 1.25.
Sun = Number of samples required per participating facility per year. For purposes of this program, Sun equals 2.
(4) Laboratory designation. Any laboratory that the independent surveyor intends to use to test samples collected as part of the NSTOP must be approved annually as part of the program plan approval process in §1090.1400(a). The independent surveyor must include the following information regarding each laboratory it intends to use to test samples:
(i) The name of the laboratory.
(ii) The address of the laboratory.
(iii) The test methods for each fuel parameter measured at the laboratory.
(iv) Records demonstrating the laboratory's performance in a laboratory crosscheck program for the most recent 12 months prior to submission of the plan.
(5) Sampling procedure. The plan must include a detailed description of the sampling procedures used to collect samples at participating gasoline manufacturing facilities.
(6) Notification of test results. The NSTOP plan must include a description of how the independent surveyor will notify EPA and gasoline manufacturers of test results under paragraph (c)(4) of this section.
(7) Submission. NSTOP plans submitted under this section must be approved annually under §1090.1400(a).
[85 FR 78469, Dec. 4, 2020]
[85 FR 78469, Dec. 4, 2020]