How will the term "tolerances" be interpreted as a practical matter by EPA as it relates to specifications? As a clarification, please respond to the following: An importer who elects to comply on a "per-gallon" (vs. averaging) basis must meet an RVP maximum specification of 8.1 during the summer months. The EPA has established a 0.30 psi tolerance for this test. Consider the hypothetical, but likely situation whereby such an importer brings a cargo of RFG into New York Harbor which was determined by an independent inspector abroad to contain 8.1 psi at load. Upon discharge at New York Harbor by another independent inspector, the cargo was found to contain 8.3 psi. This second inspector's results are later confirmed by the EPA. Is this importer in compliance, due to the fact that the product conforms, within the established tolerances to the specifications established by EPA? Does the loadport analysis have any
bearing on this matter? In the event the importer is found to be out of compliance, would he be subject to penalties under the Act? If so, would the loadport inspection certificate be construed as a satisfactory defense against an enforcement proceeding?
As stated in the Preamble to the Final Rule, 59 Fed. Reg. 7764, "refiners and importers may not use the tolerance to expand the applicable standard. Further, product must meet all applicable specifications when it leaves the refinery or import facility. If the refiner or importer results show the product to be above the standard, then the product is in violation regardless of whether or not it is within the tolerance." Further, under § 80.65(e) an importer is required to sample and test each batch of imported gasoline prior to the gasoline leaving the import facility.
It is the importer's test result from the gasoline sample collected at the port-of-entry that is the basis for establishing the properties of the imported gasoline. Accordingly, under then hypothetical posed above, the test result of 8.3 psi RVP from the port-of-entry inspection would result in an EPA finding that the product is in violation of the regulations, and the importer would be liable for appropriate penalties. (7/1/94)
This question and answer was posted at List of Reformulated Gasoline and Anti-Dumping Questions and Answers: July 1, 1994 through November 10, 1997 (pdf)