Is a laboratory considered to be "independent" under the independent sampling and testing requirements and the gasoline quality survey provisions, if the company that operates the laboratory also is a refiner who produces conventional gasoline only?
The independent sampling and testing requirements of § 80.65(f)(2)(iii) and the gasoline quality survey provisions of § 80.68(c)(13)(i) each require that the sampling and testing must be carried out by a laboratory that is independent of any refiner or importer. Section 80.65(f)(2)(iii)(A) specifies that in order to be independent the laboratory "shall not be operated by any refiner...," and § 80.68(c)(13)(i)(A) specifies that in order to be independent "[t]he surveyor shall not be an employee of any refiner or importer."
Both of these regulatory provisions relate to RFG only, however, and have no application to refiners or importers who produce or import conventional gasoline only, or to areas that are outside any RFG covered area where conventional gasoline may be sold. As a result, EPA interprets the cited regulatory provisions as referring only to refiners or importers who produce or import RFG. As a result, a refiner or importer who produces or imports conventional gasoline only, and who produces or imports no RFG or RBOB, could be considered independent for purposes of the independent sampling and testing, and gasoline quality survey, requirements.
This interpretation of "independence" would not apply in the case of a corporation if any RFG is produced or imported anywhere within a common corporate structure. Thus, if a parent corporation has a subsidiary corporation that is refiner or importer that produces or imports RFG, no other subsidiary corporation of that parent could be considered "independent." (8/29/94)
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)