
[Federal Register Volume 76, Number 142 (Monday, July 25, 2011)]
[Rules and Regulations]
[Pages 44406-44450]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-16459]





[[Page 44405]]



Vol. 76



Monday,



No. 142



July 25, 2011



Part II











Environmental Protection Agency











-----------------------------------------------------------------------











40 CFR Part 80











Regulation To Mitigate the Misfueling of Vehicles and Engines With 

Gasoline Containing Greater Than Ten Volume Percent Ethanol and 

Modifications to the Reformulated and Conventional Gasoline Programs; 

Final Rule



  Federal Register / Vol. 76 , No. 142 / Monday, July 25, 2011 / Rules 

and Regulations  



[[Page 44406]]





-----------------------------------------------------------------------



ENVIRONMENTAL PROTECTION AGENCY



40 CFR Part 80



[EPA-HQ-OAR-2010-0448; FRL-9428-2]

RIN 2060-AQ17




Regulation To Mitigate the Misfueling of Vehicles and Engines 

With Gasoline Containing Greater Than Ten Volume Percent Ethanol and 

Modifications to the Reformulated and Conventional Gasoline Programs



AGENCY: Environmental Protection Agency (EPA).



ACTION: Final rule.



-----------------------------------------------------------------------



SUMMARY: In two recent actions under the Clean Air Act (CAA), EPA 

granted partial waivers that allow gasoline containing greater than 10 

volume percent (vol%) ethanol up to 15 vol% ethanol (E15) to be 

introduced into commerce for use in model year (MY) 2001 and newer 

light-duty motor vehicles, subject to certain conditions. In today's 

action, EPA is establishing several measures to mitigate misfueling of 

other vehicles, engines and equipment with E15 and the potential 

emissions consequences of misfueling. Specifically, the rule prohibits 

the use of gasoline containing more than 10 vol% ethanol in vehicles, 

engines and equipment not covered by the partial waiver decisions. The 

final rule also requires all E15 gasoline fuel dispensers to have a 

specific label when a retail station or wholesale-purchaser consumer 

chooses to sell E15. In addition, the rule requires that product 

transfer documents (PTDs) specifying ethanol content and Reid Vapor 

Pressure (RVP) accompany the transfer of gasoline blended with ethanol 

through the fuel distribution system, and a survey of retail stations 

to ensure compliance with E15 labeling, ethanol content and other 

requirements. The rule also modifies the Reformulated Gasoline (RFG) 

program to allow fuel manufacturers to certify batches of E15. Finally, 

today's action denies a petition for rulemaking to require retail 

stations to offer for sale gasoline containing 10 vol% ethanol or less.



DATES: This final rule is effective on August 24, 2011.



ADDRESSES: EPA has established a docket for this action under Docket ID 

No. EPA-HQ-OAR-2010-0448. All documents in the docket are listed on the 

http://www.regulations.gov Web site. Although listed in the index, some 

information is not publicly available, e.g., CBI or other information 

whose disclosure is restricted by statute. Certain other material, such 

as copyrighted material, is not placed on the Internet and will be 

publicly available only in hard copy form. Publicly available docket 

materials are available either electronically through http://www.regulations.gov or in hard copy at the Air and Radiation Docket and 

Information Center, EPA/DC, EPA West, Room 3334, 1301 Constitution 

Ave., NW., Washington, DC. The Public Reading Room is open from 8:30 

a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The 

telephone number for the Public Reading Room is (202) 566-1744, and the 

telephone number for the Air Docket is (202) 566-1742.



FOR FURTHER INFORMATION CONTACT: Robert K. Anderson, Office of 

Transportation and Air Quality, Compliance and Innovative Strategies 

Division, Environmental Protection Agency, 1310 L St., NW., Washington, 

DC; telephone number: 202-343-9718; fax number: 202-343-2800; e-mail 

address: anderson.robert@epa.gov.



SUPPLEMENTARY INFORMATION:



Does this action apply to me?



    Entities potentially affected by this action include those involved 

with the production, importation, distribution, marketing, or retailing 

of diesel fuel and production of gasoline. Categories and entities 

affected by this action include:



----------------------------------------------------------------------------------------------------------------

                                                                              Examples of potentially regulated

                  Category                    NAICS 1 Codes    SIC 2 Codes                 entities

----------------------------------------------------------------------------------------------------------------

Industry...................................          324110            2911  Petroleum Refineries.

Industry...................................          325193            2869  Ethyl alcohol manufacturing.

Industry...................................          424710            5171  Petroleum bulk stations and

                                                                              terminals.

Industry...................................          424720            5172  Petroleum and petroleum products

                                                                              merchant wholesalers.

                                             ..............  ..............  Other fuel dealers.

Industry...................................          454319            5989  Gasoline service stations.

Industry...................................          447190            5541  Marine service stations.

                                             ..............  ..............  Truck stops.

----------------------------------------------------------------------------------------------------------------



    This table is not intended to be exhaustive, but rather provides a 

guide for readers regarding entities likely to be affected by this 

action; however, other types of entities not listed in the table could 

also be affected. To determine whether your entity is affected by this 

action, you should examine the applicability criteria of parts 79 and 

80 of title 40 of the Code of Federal Regulations. If you have any 

question regarding applicability of this action to a particular entity, 

consult the person in the preceding FOR FURTHER INFORMATION CONTACT 

section.



Outline of This Preamble



I. Executive Summary

    A. Proposed Rule

    B. Final Mitigation Measures

    C. Other Mitigation Measures

    D. Emissions Impacts of the Rule

    E. Related Regulatory Changes

    F. Liability Issues

    G. Petition for Rulemaking To Require the Continued Availability 

of E10 and/or E0

II. Background

    A. Statutory Authority

    B. E15 Partial Waivers

    C. The Proposed Misfueling Mitigation Measures Rule

    D. Reasons for the Actions in This Rulemaking

III. Misfueling Mitigation Program

    A. Misfueling Prohibition

    B. Fuel Pump Labeling Requirements

    1. Proposed Approach

    2. Consideration of Comments

    a. Choice of Word for Warning Component

    b. Description of Motor Vehicles That Can Use E15

    c. Statements About Prohibition and Damage

    d. Addressing Non-English Speakers

    e. Portable Fuel Containers

    f. Color, Size, Shape, Font, and Placement of the Label

    g. Separate Labels for Different Levels of Ethanol

    3. Final Fuel Pump Labeling Requirements

    C. PTD Requirements

    1. PTD Requirements Downstream of the Point of Ethanol Addition

    2. PTD Requirements Up to and Including the Point of Ethanol 

Addition

    3. General PTD Requirements

    D. Ongoing Implementation Survey

    1. Proposed Approaches and Consideration of Comments

    a. General Survey Comments

    b. Survey Option 1

    c. Survey Option 2

    2. Final Survey Requirements



[[Page 44407]]



    E. Program Outreach

    F. Other Misfueling Mitigation Measures

    1. Need for More Mitigation Measures

    2. Specific Suggestions for Additional Mitigation Measures

    a. Distinctive Hand Warmers for E15 Dispensers

    b. Keypad/Touch Screen Information/Confirmation

    c. Radio Frequency Identification (RFID)

    d. Requiring the Continued Availability of E10 and/or E0

    G. Modification of the Complex Model Regulations and VOC 

Adjustment Rule

    1. Proposed Approach and Consideration of Comments

    a. VOC Emissions from Permeation

    b. Representation of NOX and Toxic Emissions in the 

Complex Model

    c. Adequacy of the Guerreri/Caffrey Study to Justify 

Modification of the Complex Model Regulations

    d. Representation of Other Renewable Fuels and Fuel Additives in 

the Complex Model

    e. Modification of the VOC Adjustment for RFG in Chicago and 

Milwaukee

    2. Final Approach Concerning the Complex Model and the VOC 

Adjustment Rule

    H. Federalism Issues

IV. Other Issues Addressed by Commenters

    A. Cost of Compliance

    B. The Applicability of the Statutory 1.0 psi RVP Waiver to E15

    C. RVP and E15 Underground Storage Tank Transition

    D. Credit for RFG Downstream Oxygenate Blending

    E. Compliance, Enforcement and Warranty

    1. Proposed Approach

    2. Consideration of Comments

    a. Prohibited Acts and Liability Provisions

    b. Emissions Warranty Issues for Vehicles, Engines, and 

Equipment

    c. Other Issues Outside of CAA Jurisdiction

    3. Final Requirements

    F. Technical Basis for the Rule

    G. The Effect of the Rule on the Misfueling Mitigation 

Conditions of the Partial Waivers

    H. E15 Emissions and Anti-Backsliding

V. Statutory and Executive Order Reviews

    A. Executive Order 12866: Regulatory Planning and Review and 

Executive Order 13563: Improving Regulation and Regulatory Review

    B. Paperwork Reduction Act

    C. Regulatory Flexibility Act

    D. Unfunded Mandates Reform Act

    E. Executive Order 13132 (Federalism)

    F. Executive Order 13175

    G. Executive Order 13045: Protection of Children from 

Environmental Health Risks and Safety Risks

    H. Executive Order 13211: Actions Concerning Regulations That 

Significantly Affect Energy Supply, Distribution, or Use

    I. National Technology Transfer and Advancement Act

    J. Executive Order 12898: Federal Actions To Address 

Environmental Justice in Minority Populations and Low-Income 

Populations

    K. Congressional Review Act

VI. Legal Authority and Judicial Review

    A. Legal Authority

    B. Judicial Review



I. Executive Summary



    In today's final rule, EPA is establishing several measures to 

mitigate the potential for E15 \1\ to be used to fuel vehicles, engines 

and equipment for which E15 has not been approved for introduction into 

commerce. These regulations are being issued in conjunction with EPA's 

two recent decisions to grant partial waivers for E15 under section 

211(f)(4) of the Clean Air Act (CAA or the Act). The partial waivers 

allow the introduction into commerce of E15 for use in model year (MY) 

2001 and newer light-duty motor vehicles (cars, light-duty trucks and 

medium-duty passenger vehicles). The E15 partial waivers impose a 

number of conditions designed to help ensure that E15 is introduced 

into commerce for use only in MY2001 and newer light-duty motor 

vehicles and in flexible-fueled vehicles, and not for use in any other 

vehicles, engines or equipment. Some of the regulatory provisions in 

this action parallel those waiver conditions and are expected to be a 

more efficient way to minimize in-use emission increases that might 

result from misfueling with E15. The misfueling mitigation measures 

adopted today ensure that fuel providers have a strong incentive to 

properly blend and label E15 and consumers have a strong incentive to 

avoid misfueling. By effectively addressing the potential for 

misfueling, the measures should also have the benefit of facilitating 

the successful introduction of E15 into commerce.

---------------------------------------------------------------------------



    \1\ For purposes of this preamble, E15 refers to gasoline-

ethanol blended fuels that contain greater than 10 vol% and no more 

than 15 vol% ethanol content.

---------------------------------------------------------------------------



A. Proposed Rule



    EPA proposed four regulatory provisions to address concerns about 

potential misfueling: (1) A prohibition against the use of gasoline 

containing more than 10 vol% ethanol in vehicles, engines and equipment 

not covered by the partial waiver decisions, specifically MY2000 and 

older motor vehicles, heavy-duty gasoline engines and vehicles, on and 

off-highway motorcycles,\2\ and nonroad engines, vehicles, and 

equipment; \3\ (2) labeling requirements for fuel pumps that dispense 

E15 to alert consumers to the appropriate and lawful use of the fuel; 

(3) the addition to PTDs of information regarding the ethanol content 

of, or the level of ethanol that may be added to, gasoline being sold 

to retail stations or wholesale purchaser-consumers so that E15 may be 

properly blended and labeled; and (4) an ongoing implementation survey 

requirement to ensure that E15 is in fact being properly blended and 

labeled (75 FR 68044, Nov. 4, 2010). EPA explained that it has used 

such strategies to implement several fuels programs over the past 30 

years, and that the proposed measures should effectively mitigate 

misfueling and the associated emissions impacts while enabling the use 

of E15 in appropriate motor vehicles. The E15 misfueling mitigation 

waiver conditions and a substantial consumer education and outreach 

effort are also directed at achieving this result. The Agency asked for 

comment on its proposed requirements and on several other options, 

including whether additional misfueling mitigation measures might be 

appropriate.

---------------------------------------------------------------------------



    \2\ Off-highway motorcycles are considered nonroad vehicles but 

for purposes of this preamble on and off-highway motorcycles are 

referred to collectively as ``motorcycles.''

    \3\ For purposes of this preamble, nonroad engines, vehicles, 

and equipment are referred to as ``nonroad products.''

---------------------------------------------------------------------------



    EPA received over 80 comments from fuel providers, manufacturers of 

vehicles, engines and gasoline-powered equipment, boat owners, States, 

and environmental groups. While a number of comments raised continuing 

concerns with EPA's decision to grant the partial waivers, all 

acknowledged the importance of an effective misfueling mitigation 

program and provided thoughtful suggestions about how the Agency's 

proposed regulations might be improved or supplemented.



B. Final Mitigation Measures



    After carefully considering the public comments, we are finalizing 

the four proposed misfueling mitigation measures with a number of 

changes designed to enhance their effectiveness and more carefully 

tailor them to their purpose. Specifically, we are adopting the 

prohibition on misfueling. The comments we received were generally 

supportive of the prohibition in view of EPA's decision to deny the E15 

waiver request for MY2000 and older light-duty motor vehicles, heavy-

duty gasoline engines and vehicles, motorcycles and nonroad products 

because of the emissions increases that could result if E15 (or higher 

gasoline-ethanol blends) were used, particularly over time, in those 

vehicles, engines and products. With adoption of the misfueling 

prohibition, gasoline and ethanol producers, distributors, retailers 

and consumers have a legal obligation not to make, distribute, sell or 

use gasoline containing more than 10 vol% ethanol for or in vehicles, 

engines and



[[Page 44408]]



equipment not covered by the partial waiver decisions.

    To provide consumers with information at the pump to avoid 

misfueling, we are adopting an E15 pump label that reflects many 

commenters' suggestions and our consultation with consumer labeling 

experts at the Federal Trade Commission (FTC).\4\ Before EPA issued its 

partial waiver decisions, FTC had proposed labels for gasoline-ethanol 

blends containing more than 10 vol% ethanol to address issues within 

its jurisdiction. Commenters on our proposed E15 label urged us to work 

with FTC to develop a coordinated labeling program to avoid multiple, 

potentially conflicting labels. Commenters also recommended that we 

seek advice from labeling experts. In developing today's final labeling 

requirements, we consulted with FTC consumer labeling experts and other 

staff about effective label design and potential coordination with FTC 

labels.

---------------------------------------------------------------------------



    \4\ The FTC has experience designing labels to help consumers 

make informed decisions at the point-of-sale. See, e.g., 16 CFR part 

305 (EnergyGuide and Light Bulb labels); 16 CFR parts 306 and 309 

(Automotive Fuel labels); and 16 CFR part 423 (Clothing Care 

labels).

---------------------------------------------------------------------------



    EPA's final E15 label incorporates public and FTC staff suggestions 

for more simply and effectively communicating the information consumers 

need to avoid misfueling with E15. The label also adopts FTC's color 

scheme for alternative fuel labels and other aspects of the design of 

FTC's proposed gasoline-ethanol blend labels, such as size, shape, and 

font, so that the two agencies' labels could work together as a 

coordinated labeling scheme for gasoline-ethanol blends containing more 

than 10 vol% ethanol. We believe that the final E15 label provides 

consumers with the key information they need about the appropriate use 

of E15.

    Today's rule also includes PTD and implementation survey 

requirements that have been revised and refined in response to public 

comments to better accomplish their purpose. We are requiring that PTDs 

provide more pertinent information, and we are providing more 

flexibility in how that information is conveyed to help ensure that 

fuel producers, distributors and retailers have the information they 

need to properly blend, track and label E15. For surveys of whether E15 

is being properly blended and labeled, we are providing options that 

allow the businesses involved to match the geographic scope of an 

ongoing survey to their business plans and to share the cost of surveys 

among themselves as they see fit. We are also requiring that surveys 

collect RVP information for fuel samples labeled as E15 to help ensure 

implementation of the waiver condition that E15 be limited to 9.0 psi 

RVP in the summertime. In the aggregate, these measures will provide 

strong incentives for fuel providers to properly blend and label E15 

and for consumers to avoid misfueling.

    Relatedly, we are adopting our proposed interpretation that CAA 

section 211(h)(4) provides a 1.0 psi RVP waiver and related compliance 

provision only to gasoline-ethanol blended fuels containing between 

nine and 10 vol% ethanol, in light of the terms and legislative history 

of the relevant statutory provisions.



C. Other Mitigation Measures



    EPA received a number of comments expressing concern that the 

proposed misfueling mitigation measures would not adequately mitigate 

misfueling. Several of the comments suggested that the Agency issue one 

or more additional measures in this final rule, although only a few 

commenters provided specific recommendations. A later section of this 

notice reviews those comments and EPA's analysis of several other 

measures. Overall, we concluded that the misfueling mitigation measures 

required by today's rule should be effective, and that requiring 

additional measures is not necessary or appropriate at this time.

    As explained in the proposed rule, EPA drew on its experience with 

the recent transition to ultra-low sulfur diesel (ULSD) fuel in 

developing the E15 misfueling mitigation proposal. Several commenters 

contended that the transition to unleaded gasoline that occurred 

several decades ago provided more applicable lessons, including the 

need for additional mitigation measures. After considering those 

comments, and as fully discussed later in this notice, EPA continues to 

believe that the misfueling mitigation measures adopted today are 

reasonable, appropriate and sufficient to address E15 misfueling 

concerns. We expect that the E15 label will provide consumers with the 

key information they need to make appropriate fuel choices, and that 

the prohibition against misfueling will provide additional incentives 

for all parties to minimize misfueling. The PTD and survey requirements 

will provide fuel blenders, distributors and retailers with the 

information they need to properly blend, track and label E15 and 

confirmation that E15 has been properly made and sold. In addition to 

these required measures, retailers and other fuel providers may employ 

any other strategies they believe would further reduce the risk of 

misfueling under their particular circumstances. For example, retailers 

that serve a significant population of boat or small equipment owners 

can evaluate whether it is appropriate under their circumstances to 

post signs that specifically address misfueling of those products. We 

encourage consideration of additional measures as may be helpful in a 

fuel provider's specific circumstances. By taking additional, tailored 

steps, retailers and other fuel providers can provide examples of other 

misfueling mitigation measures that may also be effective in reducing 

the risk of misfueling.

    In deciding what mitigation measures to require at this time, we 

also considered what we do, and do not, know about the introduction of 

E15 into the marketplace. The partial waivers that EPA has granted to 

E15 do not require that E15 be made or sold. The waivers merely allow 

fuel or fuel additive manufacturers to introduce E15 into commerce if 

they meet the waivers' conditions. Other Federal, state and local 

requirements must also be addressed before E15 may be sold. While EPA 

is working to address issues within its jurisdiction, it is ultimately 

up to businesses to decide whether, when and how to market E15. In 

light of the various decisions that need to be made by various parties, 

we expect that the transition to E15, like the transition to E10, will 

occur over several years and begin in some parts of the country before 

becoming broadly available. In the process, business decisions will be 

made about how to market E15 (e.g., the price of E15 and its use for a 

particular grade of gasoline).

    As the transition to E15 occurs, we plan to work with industry, 

state, environmental and consumer stakeholders to track developments 

and evaluate the effectiveness of the mitigation measures required by 

today's rule. We are already in the process of working with the ethanol 

industry and other stakeholders to help establish a public education 

and outreach campaign to assist fuel producers, distributors, retailers 

and consumers in understanding how E15 may be made, distributed, sold 

and used. Our recent experience with the transition to ULSD fuel shows 

that a stakeholder-led campaign can work synergistically with labeling 

requirements and provide another means of providing important 

information to everyone involved in fuel production, distribution and 

use. Establishing a similar campaign for E15 can also provide a forum 

for identifying and resolving any issues that may



[[Page 44409]]



develop as E15 moves into the marketplace.



D. Emissions Impacts of the Rule



    These misfueling mitigation regulations are issued under CAA 

section 211(c) to mitigate and minimize the emission increases that 

would occur if E15 (or a higher gasoline-ethanol blend) is used in 

vehicles, engines, and products for which the E15 waiver was denied, 

specifically, MY2000 and older motor vehicles and all heavy-duty 

gasoline engines and vehicles, motorcycles and nonroad products. As 

described below in Section IV.F and in the E15 partial waiver 

decisions, our assessment of the potential emission consequences of E15 

use indicates that the emission-related components of MY2001 and newer 

light-duty motor vehicles are durable for use on gasoline-ethanol 

blends up to E15. This conclusion is based on the results of the 

Department of Energy (DOE) Catalyst Study and other relevant test 

programs, as well as the Agency's engineering assessment of advances in 

motor vehicle technology and materials that have taken place in 

response to a series of important exhaust and evaporative emissions 

requirements since 2000 and in-use experience with E10.

    Unlike for MY2001 and newer motor vehicles, there is very little, 

if any, test data with respect to the effect of E15 use in MY2000 and 

older light-duty motor vehicles and all heavy-duty gasoline engines and 

vehicles, motorcycles, and nonroad products. In addition, our 

engineering assessment for these vehicles, engines, and products 

identifies a number of emission-related concerns with the use of E15 

(or a higher gasoline-ethanol blend). For motor vehicles, these 

concerns include the potential for catalyst deterioration or catalyst 

failure as well as material compatibility issues that could lead to 

extremely elevated exhaust and evaporative emissions. For motorcycles 

and nonroad products, the misfueling concerns include the potential for 

elevated exhaust and evaporative emissions, as well as the potential 

for emissions impacts related to engine failure from overheating. It is 

not possible to precisely quantify the frequency at which these 

vehicles, engines, and products might experience problems with the use 

of E15. However, we believe that emission-related problems could 

potentially occur with enough frequency that the avoided emissions 

increases from reduced or prevented misfueling would more than outweigh 

the relatively low cost imposed by the required misfueling mitigation 

regulations. The potential emission increases from misfueling warrant 

today's action, even if a very low percentage of vehicles, engines, and 

products experience problems.



E. Related Regulatory Changes



    In addition to misfueling mitigation measures, today's action also 

finalizes slight modifications to the RFG and anti-dumping 

(conventional) gasoline fuels programs to open the way for refiners and 

importers to produce and certify gasoline containing up to 15 vol% 

ethanol. For gasoline to be sold in the U.S., it must comply with the 

RFG and anti-dumping standards. To comply with the RFG and anti-dumping 

standards, the emissions performance of gasoline is calculated using a 

model, called the Complex Model, which predicts the emissions of 

regulated pollutants based on the measured values of certain fuel 

properties. The equations in the model were limited to an oxygen 

content of no more than 4.0% by weight in gasoline, which is the 

maximum possible amount of oxygen in E10. EPA has modified the Complex 

Model to allow fuel manufacturers to certify batches of E15 and made a 

related change to certain volatile organic compound (VOC) standards, in 

response to comments.



F. Liability Issues



    In today's notice, EPA also addresses issues that many commenters 

raised concerning liability or responsibility for potential 

consequences of the use of, or transition to, E15. According to a 

number of commenters, fuel providers are unlikely to sell E15 until 

liability issues are resolved. EPA is not in a position to resolve all 

of the liability issues raised by commenters, but we do address those 

within our jurisdiction and clarify the responsibilities of various 

parties, including fuel producers, distributors, retailers, product 

manufacturers and consumers, for compliance with misfueling 

prohibitions and vehicle and engine warranty and other requirements 

under the Clean Air Act. In general, we believe the long-standing 

approach of EPA's fuels programs and warranty regulations to assigning 

respective responsibilities for compliance with our regulations is also 

appropriate for E15. We believe that the required label and other 

misfueling mitigation measures will minimize consumer use of E15 in 

vehicles, engines and products not covered by the partial waivers and 

any liability issues that might arise from or be attributed to 

misfueling with E15. A public outreach campaign is expected to 

reinforce the misfueling mitigation measures. Also, to the extent fuel 

providers determine that it is appropriate to further reduce the risk 

or potential of consumer misfueling, they may take additional 

misfueling mitigation measures that they believe could be useful in 

showing they did not encourage or otherwise cause the misfueling.

    With regard to other transition issues within EPA's jurisdiction, 

we are continuing to make progress in developing guidance for 

determining whether existing underground storage tank systems are 

compatible for storing E15. We also plan to work with stakeholders to 

monitor and facilitate efforts to address other transition issues 

involving state, local and other requirements.



G. Petition for Rulemaking To Require the Continued Availability of E10 

and/or E0



    On March 23, 2011, EPA received a petition for rulemaking that EPA 

promulgate a rule under its Clean Air Act section 211(c) authority to 

ensure the continued availability of gasoline containing 10 vol% or 

less ethanol (``<=E10'') at retail stations for use in vehicles, 

engines, and equipment not covered by the E15 partial waivers. EPA also 

received a number of comments on the proposed rule similarly requesting 

that EPA ensure that <=E10 be made available. For the reasons discussed 

in section III.F, the Agency is not requiring the availability of E10 

(or E0) in this rulemaking and is also denying the rulemaking petition. 

In considering the future availability of <=E10, it is important to 

remember that EPA's partial waiver decisions allow, but do not require, 

E15 to be sold. It is up to businesses to decide whether and how to 

produce and sell E15 for MY2001 and newer light-duty motor vehicles. 

EPA recognizes that the availability of appropriate fuels is important 

for mitigating misfueling, but we cannot forecast now how E15 will be 

distributed and marketed over the next several years, and how this 

might impact the availability of <=E10. Until E15 enters the market and 

further developments take place, requiring the continued availability 

of E10 (or E0) would be premature and potentially unnecessary. As the 

transition to E15 occurs, we will work with fuel producers, 

distributors, and marketers to monitor the availability of E15, E10, 

and E0 so that any problems can be addressed on a timely basis.



II. Background



A. Statutory Authority



    CAA section 211(f)(1) makes it unlawful for any manufacturer of any



[[Page 44410]]



fuel or fuel additive to first introduce into commerce, or to increase 

the concentration in use of, any fuel or fuel additive for use in motor 

vehicles manufactured after model year 1974 unless it is substantially 

similar to any fuel or fuel additive utilized in the certification of 

any model year 1975, or subsequent model year, vehicle or engine under 

section 206 of the Act.

    Section 211(f)(4) of the Act provides that upon application by any 

fuel or fuel additive manufacturer, the Administrator may waive the 

prohibition of section 211(f)(1). A waiver may be granted if the 

Administrator determines that the applicant has established that the 

fuel or fuel additive, and the emission products of such fuel or fuel 

additive, will not cause or contribute to a failure of any emission 

control device or system (over the useful life of the motor vehicle, 

motor vehicle engine, nonroad engine or nonroad vehicle in which such 

device or system is used) to achieve compliance with the emission 

standards to which the vehicle or engine has been certified. In other 

words, the Administrator may grant a waiver for an otherwise prohibited 

fuel or fuel additive if the applicant can demonstrate that the fuel or 

fuel additive will not cause or contribute to engines, vehicles or 

equipment failing to meet their emissions standards over their useful 

life.

    EPA previously issued a ``substantially similar'' interpretive rule 

for unleaded gasoline which allows oxygen content up to 2.7% by weight 

for certain ethers and alcohols.\5\ E10 contains approximately 3.5% 

oxygen by weight, which means E10 is not ``substantially similar'' to 

certification fuel under the current interpretation. As explained at 44 

FR 20777 (April 6, 1979), E10 received a waiver of the substantially 

similar prohibition by operation of law because EPA did not grant or 

deny a waiver request for E10 within 180 days of receiving that 

request. At the time of the E10 waiver request, CAA section 211(f)(4) 

provided for waivers to be granted by operation of law, but that aspect 

of section 211(f)(4) was later removed by the Energy Independence and 

Security Act of 2007.

---------------------------------------------------------------------------



    \5\ 56 FR 5352 (February 11, 1991).

---------------------------------------------------------------------------



    Section 211(c)(1) of the Act allows the Administrator, by 

regulation, to ``control or prohibit the manufacture, introduction into 

commerce, offering for sale, or sale of any fuel or fuel additive for 

use in a motor vehicle, motor vehicle engine, or nonroad engine or 

nonroad vehicle (A) if, in the judgment of the Administrator, any fuel 

or fuel additive or any emission product of such fuel or fuel additive 

causes, or contributes, to air pollution or water pollution (including 

any degradation in the quality of groundwater) that may reasonably be 

anticipated to endanger the public health or welfare, or (B) if 

emission products of such fuel or fuel additive will impair to a 

significant degree the performance of any emission control device or 

system which is in general use, or which the Administrator finds has 

been developed to a point where in a reasonable time it would be in 

general use were such regulation to be promulgated.'' The regulations 

adopted today are pursuant to this authority, as well as the 

recordkeeping and information collection authority under CAA sections 

208 and 114.



B. E15 Partial Waivers



    In 2009, Growth Energy and 54 ethanol manufacturers submitted an 

application under section 211(f)(4) of the CAA for a waiver for 

gasoline-ethanol blends of up to 15 vol% ethanol.\6\ On April 21, 2009, 

EPA published notice of receipt of the application and requested public 

comment on all aspects of the application to assist the Administrator 

in determining whether the statutory basis for granting the waiver 

request had been met (74 FR 18228).

---------------------------------------------------------------------------



    \6\ Since E15 has greater than 2.7 weight percent oxygen 

content, E15 needs a waiver under CAA section 211(f)(4).

---------------------------------------------------------------------------



    On October 13, 2010, EPA took two actions on the waiver request 

based on the information available at that time (``October Waiver 

Decision'').\7\ First, it partially approved Growth Energy's waiver 

request to allow the introduction of E15 into commerce for use in 

MY2007 and newer light-duty motor vehicles, subject to several 

conditions. The October Waiver Decision was based on a determination 

that E15 will not cause or contribute to a failure of MY2007 and newer 

light-duty motor vehicles to achieve compliance with the emissions 

standards to which they were certified under section 206 of the CAA 

over their useful lives. Second, the Agency denied the waiver request 

for MY2000 and older light-duty motor vehicles, heavy-duty gasoline 

engines and vehicles, highway and off-highway motorcycles, and other 

nonroad engines, vehicles, and equipment. The Agency also deferred 

making a decision on the waiver request for MY2001-2006 light-duty 

motor vehicles to await the results of additional testing being 

conducted by the Department of Energy (DOE). On January 21, 2011, EPA 

partially approved Growth Energy's waiver request to allow the 

introduction of E15 into commerce for use in MY2001-2006 light-duty 

motor vehicles after receiving and analyzing the completed DOE test 

data (``January Waiver Decision'').\8\

---------------------------------------------------------------------------



    \7\ 75 FR 68094 (November 4, 2010).

    \8\ 76 FR 4662 (January 26, 2011).

---------------------------------------------------------------------------



    EPA issued the partial waiver decisions with several conditions. 

The conditions apply to the parties upstream of the point of the 

addition of ethanol who are subject to the partial waiver (gasoline 

refiners/importers, ethanol producers/importers, and ethanol blenders 

that introduce E15 into commerce), and are designed to ensure that when 

E15 is introduced into commerce, it will only be used in the 

appropriate light-duty motor vehicles. Some of the conditions call for 

the ethanol blenders, fuel manufacturers (gasoline refiners/importers), 

and fuel additive manufacturers (ethanol producers/importers) to take 

various actions to control the distribution and use of their product so 

that E15 is only used in approved motor vehicles. The partial waiver 

decisions impose different conditions on the different parties. 

Gasoline refiners/importers, ethanol producers/importers, and ethanol 

blenders that introduce E15 into commerce are all responsible for 

making sure that appropriate labeling occurs on fuel pumps to mitigate 

potential misfueling. These parties are also responsible for conducting 

fuel pump labeling surveys to ensure that the correct gasoline-ethanol 

blends are loaded into the appropriate tanks at retail stations and 

that fuel pumps are properly labeled. Gasoline refiners/importers, 

ethanol producers/importers, and ethanol blenders must also use PTDs to 

properly document information regarding the ethanol blends to help 

ensure proper blending and distribution.



C. The Proposed Misfueling Mitigation Measures Rule



    On October 13, 2010, EPA issued a proposed rule to mitigate 

misfueling and maximize the likelihood that E15 is used only in 

vehicles for which its sale is approved. As we explained, the proposed 

rule was developed to help ensure that E15 is introduced into commerce 

for use only in MY2001 and newer light-duty motor vehicles and in 

flexible-fueled vehicles, and not for use in any other vehicles, 

engines or equipment.\9\ Some of the proposed regulatory provisions 

parallel the partial E15 waiver decision conditions and were expected 

to be an effective and



[[Page 44411]]



efficient way to further reduce the potential for in-use emissions 

increases that could result from misfueling with E15.

---------------------------------------------------------------------------



    \9\ 75 FR 68044 (November 4, 2010).

---------------------------------------------------------------------------



    EPA held one public hearing regarding the proposed rule on November 

16, 2010, in Chicago, IL. The public comment period for the proposal 

ended on January 3, 2011, and approximately 80 public comments were 

submitted. Today's final rule contains a brief summary of the major 

comments received, and our responses, on several topics, including the 

proposed misfueling mitigation measures, changes to the Complex Model, 

and other issues discussed in the proposal. Responses to comments not 

addressed here can be found in a separate document entitled ``E15 

Misfueling Mitigation Measures Rule Response to Public Comments'' which 

is available in the public docket for this rule.



D. Reasons for the Actions in This Rulemaking



    In granting partial waivers for E15, EPA imposed various conditions 

on fuel or fuel additive manufacturers that use the waivers, including 

conditions designed to minimize the potential for misfueling. Under CAA 

section 211(f)(4), EPA can place conditions on fuel or fuel 

manufacturers but cannot place conditions directly on other parties in 

the fuel distribution system. Consequently, EPA placed the partial 

waiver conditions on ethanol blenders, fuel manufacturers, and ethanol 

producers, the parties subject to the prohibition in section 211(f)(1), 

and thus the parties that benefit from the partial waiver of that 

prohibition if they choose to make and distribute E15, but not on 

retail stations. Since most retail stations are independently owned and 

operated, the ethanol blenders, fuel manufacturers, and ethanol 

producers that decide to introduce E15 into commerce might need to 

develop and enforce business arrangements with a potentially large 

number of retail stations in order to meet the partial waiver 

conditions.

    EPA believes that the provisions adopted in today's final 

rulemaking (i.e. misfueling prohibition, fuel pump labeling, PTDs, and 

ongoing implementation surveys) are a direct and efficient way to 

further reduce the potential for misfueling and the emission increases 

that would result from misfueling. Under CAA section 211(c), EPA has 

the authority to adopt appropriate controls or prohibitions on the 

distribution and sale of fuels and fuel additives to avoid emissions 

increases. EPA's use of this authority in today's rule will do that 

with respect to E15 that is introduced into commerce in accordance with 

the partial waivers. It provides EPA with appropriate tools for 

regulatory oversight of the ethanol blenders, fuel manufacturers, 

ethanol producers and others introducing E15 into commerce. It adopts 

provisions that create additional, strong incentives to properly blend 

and label E15 and avoid misfueling. The new provisions, collectively 

and in tandem with the partial waiver conditions, will maximize the 

likelihood that E15 is used only in motor vehicles covered by the 

partial waivers and minimize the potential for emissions increases that 

might otherwise occur. The specific provisions are discussed in detail 

in Section III, and the relationship between these provisions and the 

conditions in the partial waivers is described in Section IV.G. By 

making misfueling mitigation more efficient and effective, these 

measures should also have the benefit of facilitating the successful 

introduction of E15 into commerce.



III. Misfueling Mitigation Program



    As explained above, CAA section 211(c) authorizes EPA to control or 

prohibit the distribution of a fuel or fuel additive when it will 

significantly impair emission control systems or when the emission 

products from that fuel or fuel additive will cause or contribute to 

air pollution that we reasonably anticipate may endanger public health 

or welfare. As described in detail below, EPA is exercising this 

authority to establish a prohibition on the use of gasoline containing 

more than 10 vol% ethanol in vehicles, engines and equipment not 

covered by the partial waiver decisions (i.e., MY2000 and older light-

duty motor vehicles, and in all heavy-duty gasoline engines and 

vehicles, motorcycles and nonroad products) in order to prevent or 

minimize emission increases that could otherwise occur. We are also 

requiring gasoline retail stations and wholesale purchaser-consumer 

facilities that sell E15 to properly label their E15 pumps. To 

effectuate these prohibitions, and to more generally limit the use of 

E15 to MY2001 and newer light-duty motor vehicles, we are also 

requiring that relevant information be conveyed by PTDs, and that a 

survey designed to demonstrate compliance with labeling, ethanol 

content and related requirements be conducted.

    As we described in our proposed rule, there are four important 

components of an effective E15 misfueling mitigation strategy. First, a 

prohibition on misfueling establishes a legal barrier against 

production, distribution, sale or use of gasoline containing more than 

10 vol% ethanol in vehicles, engines and equipment not covered by the 

partial waiver decisions because of the potential consequences for 

emissions standards compliance violations by those vehicles, engines 

and equipment. The prohibition is broadly applicable, including to 

consumers. Second, effective labeling is needed to provide consumers 

with the information they need to avoid misfueling, including 

information about the prohibition on misfueling and the potential 

consequences of misfueling. To be effective, labeling must be done at 

the point of sale where the consumer is choosing which fuel to use. 

Third, retail stations, wholesale purchaser-consumers and fuel blenders 

need assurance regarding the ethanol content and RVP of the fuel (or 

blendstock) that they purchase so they can properly blend, store and 

label E15 and other fuels. The use of proper documentation in the form 

of PTDs has proven to be an effective means of ensuring that retail 

stations and other fuel providers know what fuel they are purchasing. 

Fourth, appropriate labeling and fuel sampling surveys are necessary to 

ensure implementation of E15 content, RVP and labeling requirements 

that are in turn important to mitigating misfueling and the emissions 

consequences of misfueling. Today's rule adopts provisions covering all 

of these areas. The Agency has used this general strategy to implement 

several fuels programs, including the unleaded gasoline program, the 

RFG program, and the ULSD program. The fourth component of an effective 

misfueling mitigation strategy is public outreach and consumer 

education. Our experience has shown that consumers need to be engaged 

through a variety of media to ensure that accurate information is 

timely conveyed to the owners and operators of vehicles, engines and 

equipment.

    EPA proposed establishing a misfueling prohibition and E15 

labeling, PTD and survey requirements, and sought comments on those and 

any additional mitigation measures that might be needed to minimize 

misfueling with E15. The following sections of this final rule describe 

each of the proposed measures, the comments we received about that 

measure, our response to those comments, and the final decisions we 

made in light of the comments and other available information. We also 

discuss several suggestions that some commenters made for other 

possible mitigation measures, and our



[[Page 44412]]



conclusion that no additional measures should be required at this time.



A. Misfueling Prohibition



    We proposed to prohibit the use of gasoline containing more than 10 

vol% ethanol in vehicles, engines and equipment not covered by the 

partial waiver decisions, specifically MY2000 and older motor vehicles, 

heavy-duty gasoline engines and vehicles, on and off-highway 

motorcycles, and nonroad engines, vehicles, and equipment.\10\ The 

prohibition is similar in nature to the prohibition on producers of 

fuels and fuel additives under section 211(f)(1). However, the 

prohibition in section 211(f)(1) only applies to these upstream 

parties. The proposed prohibition would also apply at the retail level 

as well as to upstream fuel providers and consumers, so that all 

parties involved in fueling gasoline-powered products would have a 

legal obligation to avoid misfueling the vehicles, engines and 

equipment not covered by the partial waivers.

---------------------------------------------------------------------------



    \10\ Flexible fuel vehicles (FFVs) are designed to meet EPA's 

emissions standards on any blend of gasoline and ethanol up to 85% 

ethanol. FFVs are not subject to either the waiver denial or the 

misfueling prohibition adopted in this rule.

---------------------------------------------------------------------------



    Most public commenters that addressed this provision supported it 

in view of EPA's decision to deny a waiver for introduction of E15 into 

commerce for use in MY2000 and older motor vehicles, heavy-duty 

gasoline engines and vehicles, motorcycles, and nonroad products. EPA 

based its denial on the lack of test data on the effect of E15 on 

emissions from these products and the Agency's engineering judgment 

that E15 would likely result in significant exceedances of emission 

standards by these products.

    Several commenters disputed the need for a misfueling prohibition 

because, in their view, E15 would not have adverse emissions 

consequences for the vehicles, engines and equipment not covered by the 

partial waivers. In making this argument, the commenters were 

essentially taking issue with EPA's decision to deny the E15 waiver for 

these products. However, the commenters did not provide, and EPA is not 

aware of, any new information or analysis that would support a finding 

that E15 may be used by the vehicles, engines and equipment not covered 

by the partial waivers without significant adverse consequences for 

their emission control performance. We are therefore finalizing the 

misfueling prohibition as proposed.



B. Fuel Pump Labeling Requirements



1. Proposed Approach

    We proposed that gasoline pumps dispensing E15 be labeled and that 

this label be applied to any pump dispensing gasoline containing 

greater than 10 vol% ethanol but not more than 15 vol% ethanol. We also 

solicited comment on whether separate labels should be required for 

other gasoline-ethanol blends to avoid potential consumer confusion.

    Specifically, we proposed that the language on the E15 label have 

four components: (1) An ethanol content information component; (2) a 

legal approval component; (3) a technical warning component; and (4) a 

legal warning component. We explained that together these four 

components highlight the critical information that we considered 

necessary to inform consumers about the legal and appropriate use of 

E15 and the potential consequences of illegal and inappropriate uses.

    The ethanol content information component of the label informs 

consumers of the maximum ethanol content the fuel may contain. We 

proposed that this component of the label read: ``This fuel contains 

15% ethanol maximum.''

    The legal approval component of the label includes information that 

informs consumers of the types and model years of vehicles for which 

E15 may be used. At the time of the proposal, EPA had granted a partial 

waiver of E15 allowing its sale for use only in MY2007 and newer light-

duty motor vehicles. Based on that partial waiver, the Agency proposed 

that the legal approval portion of the label read as follows:

    Use only in:

    2007 and newer gasoline cars.

    2007 and newer light-duty trucks.

    Flex-fuel vehicles.

    As noted above, EPA later issued a second partial waiver decision 

that allowed E15 to be introduced into commerce for MY2001-2006 light-

duty motor vehicles. Taken together, the two partial waivers allow E15 

to be sold for use in MY2001 and newer light-duty motor vehicles, as 

well as in vehicles designed and certified to run on gasoline and 

gasoline-ethanol blends as high as E85 (``flex-fuel vehicles''). EPA 

noted in the proposed rule that if we granted a partial waiver for 

MY2001-2006 light-duty motor vehicles, we would modify this component 

of the final label accordingly.

    The technical warning component of the label alerts consumers that 

use of E15 in other engines, vehicles, and equipment might cause damage 

to these products. This warning reflects the results of EPA's analysis 

of available test and other data and its engineering assessment 

concerning the potential impact of E15 on emission controls and other 

aspects of vehicle design, materials and operation that can affect 

emissions. EPA proposed the following language: ``This fuel might 

damage other vehicles or engines.'' We also proposed that the word 

``Caution'' be placed at the top of the label, and solicited comment on 

other words that could be used to alert consumers, and specifically 

asked for comment on the alternative word ``Attention.''

    The legal warning component of the label informs consumers that 

using E15 in a vehicle or engine for which E15 is not allowed violates 

the Agency's prohibition against misfueling. Based on the language 

currently used on the low-sulfur diesel (LSD) label (see 40 CFR 

80.570), the Agency proposed that the E15 label read as follows: 

``Federal law prohibits its use in other vehicles and engines.''

    Putting the four components together in a manner intended to 

attract consumers' attention, the Agency proposed the following E15 

label:



[[Page 44413]]



[GRAPHIC] [TIFF OMITTED] TR25JY11.001



2. Consideration of Comments

    We solicited comments on the above label, where it should be placed 

and whether labeling should be required for three other levels of 

gasoline-ethanol blends: (1) E10; (2) blends containing between 15 and 

85 vol% ethanol; and (3) E85. We also sought advice from the FTC's 

labeling experts and discussed with FTC staff the issue of labeling 

additional gasoline-ethanol blends, which FTC was considering for other 

purposes. We shared with FTC staff the suggestions made in public 

comments on the proposed E15 label, and they provided us with 

information about effective label design, recommendations for 

addressing some of the issues raised in the comments, and assistance in 

designing the final label. We also considered the appropriateness of 

coordinating EPA labels and FTC labels.

    Most of the public comments on the proposed E15 label made specific 

recommendations for improvement with respect to wording and/or design. 

Overall, there was a wide spectrum of suggestions reflecting the 

different perspectives of ethanol producers, oil refiners, gasoline 

retailers, and manufacturers and users of vehicles, engines and 

equipment. Commenters generally agreed with the need for labels, but 

differed about how best to alert consumers and provide them with 

information for avoiding misfueling, without discouraging or chilling 

appropriate use of E15 in MY2001 and newer light-duty motor vehicles. 

One commenter also recommended that EPA allow fuel providers to develop 

and submit for approval an alternative label, a flexibility afforded by 

the Agency's ULSD program. Specific suggestions fell into the following 

categories which are discussed in more detail below:

     Choice of word for warning.

     Description of vehicles that can use E15.

     Prohibition statement.

     Statement about E15 causing damage.

     Addressing non-English speakers.

     Portable gasoline containers.

     Color, shape, and placement of labels.

     Separate labels for different levels of ethanol.

a. Choice of Word for Warning Component

    Commenters were divided between those who believed that use of 

``CAUTION!'' on the proposed label would deter appropriate use of E15, 

and those who believed that it would not be effective at preventing 

misfueling. Two commenters stated that any kind of a warning word may 

result in skepticism and concern about E15 use in MY2001 and newer 

light-duty motor vehicles, and suggested that no warning word be used. 

They argued that the proposed label would not promote the successful 

introduction of this new fuel into the marketplace. Other commenters 

expressed concern that the proposed label was not strong enough and 

recommended that ``WARNING'' or ``STOP'' be used. In these commenters' 

opinion, the label on its own must provide for adequate informed 

consent to prevent misfueling and consumer lawsuits concerning possible 

damage from misfueling.

    The purpose of today's rule is to mitigate potential misfueling and 

the emissions increases that could occur as a result of misfueling. We 

are therefore exercising our authority to address the emission 

consequences of misfueling. The Agency recognizes, however, that while 

the label needs to effectively communicate to consumers about 

misfueling, it should avoid deterring E15's use in motor vehicles for 

which its sale and use is allowed. We discussed this issue with FTC's 

consumer labeling experts who advised that the word ``ATTENTION'' would 

more likely attract consumer notice without the risk of discouraging 

appropriate use of the fuel.

    After considering the comments and FTC's advice, we are finalizing 

use of ``ATTENTION'' instead of ``CAUTION.'' Use of ``ATTENTION'' 

strikes the right balance between alerting consumers about the improper 

use of E15 and scaring them away from appropriate use of E15. FTC staff 

also suggested that ``ATTENTION'' be placed at an angle in the upper 

left corner of the label to help draw consumers' eyes to it (see 

Section III.A.2. for further details), and we are adopting that 

placement. We believe that ``ATTENTION'' so placed, and in combination 

with other label information alerting consumers to the potential for 

damage from misfueling (discussed below), will effectively communicate 

that care must be taken in fueling with E15 without unduly discouraging 

its proper use.



[[Page 44414]]



b. Description of Motor Vehicles That Can Use E15

    Many commenters suggested rewording the label's references to the 

motor vehicles that can use E15 to clarify and/or streamline those 

references. Several also suggested that the label state that E15 is 

``Approved for use in 2001 and newer vehicles'' (emphasis added). Two 

commenters noted that use of E15 in flex-fuel vehicles is independent 

of model year and that flex-fuel vehicles should be listed first. Some 

commenters expressed concern that sport utility vehicles (SUVs) and 

minivans were not explicitly mentioned in the label even though both 

vehicle types fall within the definitions of light-duty vehicles, 

light-duty trucks, or medium-duty passenger vehicles and are covered by 

the partial waivers. They suggested that there be a consumer-friendly 

reference for these vehicles.

    We agree with commenters that the language can and should be 

clarified and streamlined in a way more readily understood by 

consumers. The partial waivers allow E15 to be sold for use in MY2001 

and newer ``light-duty motor vehicles,'' meaning cars, light-duty 

trucks and medium-duty passenger vehicles. Light-duty trucks and 

medium-duty passenger vehicles are regulatory terms that encompass a 

range of vehicles including minivans and all but the largest pick-up 

trucks (greater than 8,500 pounds gross vehicle weight rating) and some 

SUVs (greater than 10,000 pounds gross vehicle weight rating). FTC 

staff generally advised that the E15 label be as concise as possible 

since consumers are much less apt to read detailed labels, particularly 

in the context of routine activities like buying gasoline. With that in 

mind, we are finalizing the phrase ``2001 and newer passenger 

vehicles'' as the reference to the types of gasoline-fueled motor 

vehicles that may use E15. The common denominator of virtually all of 

the relevant vehicle types is that they are used to transport people. 

``Passenger vehicle'' is a common term and should be more effective in 

conveying the types of gasoline-fueled motor vehicles for which E15 can 

be sold and used. Since all flex-fuel vehicles are made to use 

gasoline-ethanol blends up to E85, all may use E15.

    We are leaving the reference to passenger vehicles first in the 

list of the types of motor vehicles that can use E15. In most of the 

country, gasoline-fueled vehicles are much more common than flex-fuel 

vehicles, and under the partial waiver decisions E15 is approved for 

use in only MY2001 and newer passenger vehicles. The reference to 

passenger vehicles and the model year limitation is thus more relevant 

and important to more consumers, and so should precede the reference to 

flex-fuel vehicles.

    We are not adopting the suggestions to include the phrases 

``approved for use in'' or ``model year'' in referring to the vehicle 

types that may use E15. EPA's partial waiver decisions are not 

approvals for use of E15 in the general sense that term is used; they 

are waivers allowing E15 to be introduced into commerce for use in 

certain motor vehicles. The Agency's role in the waiver proceeding is 

limited to determining whether E15 meets the criteria for a waiver 

under CAA section 211(f)(4) and in this rulemaking under section 211(c) 

to minimizing the potential for any misfueling that might occur. As for 

prefacing the reference to 2001 and newer passenger vehicles with 

``model year,'' any potential benefit of adding that phrase is 

outweighed by the risk that the additional wording may decrease the 

effectiveness of the label. Consumers are likely to understand the 

reference to 2001 as indicating model year, and we are mindful that 

labels with more words are less apt to be read.

    Therefore, today's final rule will require the following language 

on the label:

    ``Use only in:

     2001 and newer passenger vehicles;

     Flex-fuel vehicles''.

c. Statements About Prohibition and Damage

    Commenters were generally supportive of the proposed statements on 

prohibition and damage, but suggested variations in the wording and 

order of the statements to clarify their scope and meaning. Most 

commenters stated that it is essential to include a statement that 

``this fuel may damage'' other vehicles, engines and equipment for 

consumers to have the information they need to avoid misfueling. 

However, several commenters objected to including any damage statement 

because they believe available information does not support that E15 

may cause damage. In contrast, one commenter argued that the proposed 

damage statement should communicate that, in the commenter's view, 

significant physical injuries may result from using E15 in lawn mowers, 

chain saws, and other equipment.

    A number of commenters noted that the proposal's reference to other 

``vehicles and engines'' would not necessarily convey the various kinds 

of gasoline-powered equipment that should not use E15. Specifically, 

one commenter pointed out that ``engine'' is not a term that consumers 

use to describe lawn and garden equipment, boats and other nonroad 

equipment. Two commenters suggested using graphic symbols or icons to 

depict some of the common types of nonroad vehicles and equipment for 

which E15 use would be prohibited. One commenter provided sample icons 

of a boat, motorcycle, chainsaw, lawnmower and snowmobile, each 

depicted in a circle with a slash or X across the image to convey to 

consumers that E15 should not be used in those products. Along the same 

lines, one commenter suggested including on the label a list of the 

various kinds of vehicles, engines and equipment that should not use 

E15.

    Other commenters provided further suggestions for improving the 

wording of the damage and prohibition statements. Three commenters 

suggested that the label clarify that ``Federal law prohibits use in 

all other vehicles and nonroad engines and equipment.'' Another stated 

that the label should be consistent with other EPA labels and should 

state: ``Federal law prohibits use in all other model year vehicles and 

engines.'' (Suggested additional words in italics.)

    In addition to the prohibition and damage statements, some 

commenters suggested adding to the label statements that fuel economy 

would be adversely affected and that consumers should consult 

manufacturers' fuel recommendations. These commenters pointed out that 

ethanol has somewhat lower energy content than gasoline and, when 

ethanol is cheaper than gasoline, E15 might be priced lower than E10 or 

E0. These commenters argued that without an understanding of the 

relationship between energy content and fuel price, many consumers 

might intentionally misfuel vehicles, engines, and equipment not 

covered by the partial waivers if E15 appeared to be a better bargain 

than E10 or E0.

    After considering all of the comments, we continue to believe that 

a damage statement is necessary and appropriate for the E15 label. As 

explained in the October Waiver Decision, EPA denied the E15 waiver 

request with respect to MY2000 and older light-duty motor vehicles and 

all heavy-duty engines, motorcycles and nonroad equipment because (1) 

Available data is insufficient to show that E15 would not cause or 

contribute to a failure by these products to meet emission standards, 

and (2) our engineering judgment is that E15 may adversely affect the 

emissions control performance of these products, particularly over 

time. The waiver decisions also considered materials



[[Page 44415]]



compatibility, operability, and maintenance issues related to E15 and 

their potential impact on emissions. A statement that E15 use in those 

products ``may cause damage'' is consistent with and supported by EPA's 

technical analysis for its decision to deny the waiver request for 

introduction of E15 into commerce for use in these products. Including 

the damage statement is also critical to the effectiveness of the E15 

label, since consumers are more likely to comply with the label's 

direction if they understand that harm might otherwise occur.

    We do agree with commenters' suggestion that a reference to 

``equipment'' is needed on the label. The label as proposed used the 

word ``engines'' to refer to engines in all nonroad equipment. After 

considering the comments, we agree that most consumers think in terms 

of the types of equipment they own or operate, not the engines that 

power the equipment. However, given the extremely broad range of 

equipment that uses gasoline engines, we believe it would be infeasible 

and counterproductive to attempt to include even a partial list of the 

types of products that should not use E15. As noted above, labels 

generally need to be brief and succinct to be effective. Also, a 

partial list would run the risk of implying that types of equipment not 

included on the list are suitable for E15 use. We are therefore 

choosing the phrase ``gasoline-powered equipment'' to refer to the many 

types of equipment that have gasoline engines. We are also including a 

reference to boats since many consumers may not consider boats to be 

either ``vehicles'' or ``equipment.'' Moreover, representatives of boat 

manufacturers and users expressed particular concerns about the 

potential for, and consequences of, misfueling boat engines.

    We are otherwise combining and revising the wording of the 

prohibition and damage language on the label to reduce the number of 

words and increase the directness, and therefore the effectiveness, of 

the message, in a manner suggested by FTC staff.

    We are not adopting some commenters' suggestions that the label 

provide a warning that injury might occur if misfueling results in 

product malfunction. In considering all the information before the 

Agency (i.e. test data and other information provided by the waiver 

applicants and in public comments submitted on the waiver and on the 

proposed rule), we determined that the information does not provide a 

clear enough basis for including a separate warning about risk of 

injury in addition to the warning about the potential for damage.

    We disagree with the suggestion to include a statement that fuel 

economy would be adversely affected by use of E15. While ethanol has a 

lower energy content than gasoline,\11\ the effect of E15 (or E10) on 

the fuel economy of a particular model or vehicle depends on a number 

of factors (e.g., fuel formulation, engine calibration, manner of 

vehicle operation, etc.) that cannot be easily communicated on a label. 

To the extent the appropriate information were added to the label, 

consumers may be less likely to read the label at all. In light of the 

trade-off between providing more, somewhat complex information and 

decreasing the likelihood that the label will be read and heeded, we 

believe that the damage statement will be more effective in mitigating 

misfueling on its own than in combination with fuel economy 

information. The costs associated with potential damage of the engine 

or replacement of catalysts (see section IV.A for a description of the 

costs associated with these repairs) are significant and likely to 

provide sufficient incentive not to misfuel with E15. Fuel providers 

may use supplemental labels, signs or other forms of communication to 

inform their customers of the potential fuel economy impacts of the 

various types of gasoline and gasoline-ethanol blends that they sell.

---------------------------------------------------------------------------



    \11\ Ethanol has approximately 33 percent less volumetric energy 

content than conventional gasoline (see CITE RFS2 RIA). A recent 

study by the Department of Energy involving 16 light-duty vehicles 

from model years 1999 to 2007 found that, when compared to E0, the 

average reduction in fuel economy was 3.7 percent for E10, 5.3 

percent for E15, and 7.7 percent for E20 (see National Renewable 

Energy Laboratory, Oak Ridge National Laboratory, Effects of 

Intermediate Ethanol Blends on Legacy Vehicles and Small Non-Road 

Engines, Report 1--Updated (February 2009).

---------------------------------------------------------------------------



    We also disagree with the suggestion to include a statement that 

consumers should consult the manufacturer's fuel recommendation. 

Mention of manufacturers' fuel recommendations may confuse consumers, 

since E15 only recently received partial waivers allowing its sale for 

use in certain vehicles. It is not yet available in the marketplace, 

and thus would not be specifically referenced in any existing manual or 

manufacturer's specifications.

    Today's final rule will therefore require the following damage and 

prohibition message at the bottom of the label:



    ``Don't use in other vehicles, boats, or gasoline powered 

equipment. It may cause damage and is prohibited by Federal law.''



    We carefully considered the suggestion to add graphic icons to the 

label to help convey what products can, or cannot, use E15, and have 

decided not to require icons for several reasons. First, the icons 

suggested for the on-highway vehicles that can, or cannot use, E15 rely 

on text to convey much of their message. Those icons also depict a 

passenger car, which is only one of several vehicle types that can use 

E15 if from the specified model years. In addition, the other icons 

portray only some of the nonroad vehicles and equipment that cannot use 

E15, raising the issue noted above concerning partial lists: Depicting 

some equipment but not other equipment may lead consumers to think E15 

can be used in the types of equipment not depicted. Use of multiple 

icons would also make the label more dense and complicated.

    In light of these considerations, we are not including icons in the 

final label. However, fuel providers may post supplemental labels or 

signs that they believe would be useful for informing their customers. 

We are also adopting the suggestion made by one commenter to allow fuel 

providers to submit to EPA for approval an alternative label. There are 

a number of circumstances that may make it appropriate for a retailer 

to make small changes in the shape or size of the label and/or include 

additional information. (It should be noted that the addition of 

information, including icons, would require enlarging the label so that 

all of the information on the label may be easily read). To the extent 

a fuel provider believes icons would be helpful to its customers, it 

may post them on its own signs and/or develop and submit an alternative 

E15 label including appropriate icons for EPA consideration and 

approval.

d. Addressing Non-English Speakers

    Two commenters expressed concern that the label needs to 

accommodate non-English speakers, and pointed out that a relatively 

high percentage of commercial landscapers that purchase fuel for lawn, 

garden, and forestry products may not be able to read or comprehend an 

English-narrative label. They suggested that the final label should 

contain generic symbols or icons to clearly and strongly convey the 

necessary warnings.

    We have addressed the use of icons above, but have also considered 

whether labels in other languages should be used. We appreciate the 

importance of conveying the necessary information to those who do not 

speak or read English. However, we are not requiring multi-



[[Page 44416]]



lingual labels at this time because we do not have enough information 

to determine under what circumstances one or more additional languages 

should be added to the label. The commenters suggesting that labels 

accommodate non-English speakers did not provide information that would 

allow us to make these determinations. Also, a label in two or more 

languages would necessarily be longer and may detract from the 

effectiveness of the label as a whole. We will continue to consider 

whether bi- or multi-lingual signs would be appropriate, and will work 

with stakeholders to address this issue through public outreach and 

education as E15 enters the market. As noted above, retailers may also 

post additional labels or signs, including in other languages. Further, 

today's rule provides the option of seeking EPA approval of an 

alternative label that could incorporate languages in addition to 

English. Under the regulations, retailers could submit translated 

versions of the final label to EPA for approval. Retailers thus have 

the flexibility to use signs and/or labels conveying information in any 

language they believe is appropriate for their customers.

e. Portable Fuel Containers

    Some commenters expressed concern that the label by itself would 

not be effective at preventing misfueling of boats and other nonroad 

vehicles and equipment. The commenters pointed out that nonroad 

products are generally fueled from portable containers, which are in 

turn fueled at the same time and location that motor vehicles are 

fueled. The commenters stated that any fuel dispensing nozzle used to 

fill a motor vehicle could also be used to fill the portable container. 

One commenter urged that the labels for pumps dispensing fuels greater 

than E10 should also warn against those fuels being dispensed into 

portable containers.

    We considered this suggestion but have decided that prohibiting the 

dispensing of E15 into portable containers is not necessary or 

appropriate. The prohibition established by today's rule extends to 

misfueling of E15 into nonroad products, including by use of portable 

containers, so a separate ban on E15 use in portable containers is not 

needed to effectuate the prohibition. Banning use of such containers 

for E15 would also prevent their legitimate use, including in 

emergencies, for motor vehicles that may fuel with E15. The outreach 

campaign being developed can help consumers understand that use of E15 

in portable containers is limited to fueling the types of motor 

vehicles that may use E15.

f. Color, Size, Shape, Font, and Placement of the Label

    There was general agreement among commenters that labels for 

gasoline-ethanol blends should be uniform in color, size, and shape for 

easy identification. Commenters were divided, however, on what the 

color and shape should be, with some commenters focused on what 

combination would stand out and/or be more legible, and others 

emphasizing coordination with other labels. Several different color 

schemes, including FTC's for its proposed gasoline-ethanol blend 

labels, were suggested. Shapes other than squares were also urged, with 

octagonal and triangular shapes specifically recommended since they are 

already associated with stop and hazard signs, respectively.

    One commenter recommended that rather than requiring a one-size-

fits-all label, EPA should allow gasoline marketers to determine the 

color scheme and appropriate size of the E15 label. Another commenter 

specifically cited experience with EPA's ULSD regulations, which did 

not specify the color and size of the labels required for that program. 

This commenter pointed out that while retailers initially welcomed the 

opportunity to design their own labels, ultimately the lack of 

consistency in label design resulted in confusion and uncertainty with 

respect to compliance and enforcement. The commenter recommended that 

EPA should adopt specific label size, color, dimension and design 

requirements similar to those specified for dispenser labels under FTC 

regulations.

    With respect to placement of the label, commenters generally 

suggested that labels should be placed directly above, below or next to 

the E15 pump nozzle or the button a consumer would use to select E15 

from among several fuel choices. One commenter recommended that for 

pumps that use one hose to dispense several grades of gasoline the 

label should be on the button for selecting the grade for which E15 is 

used. For pumps with multiple hoses, this commenter suggested the label 

could appear in the same location as the octane ratings for the other 

hoses (or above/below the octane rating).

    We agree with commenters that the E15 label design should generally 

be uniform for easy identification and utility. Significant variations 

in label design could thwart the goal of associating the label with E15 

and making the label readily recognized and understood. At the same 

time, we recognize that slight modifications in size or shape may be 

useful or appropriate for a retailer's particular circumstances. For 

example, some slight changes in shape may be necessary to allow the 

label to be placed where consumers will see it when they are selecting 

what fuel to buy. The flexibility afforded by today's regulations will 

give retailers the option to develop an alternative label that works 

with their pumps. However, alternative labels must include the four 

required components of the E15 label, must be as legible as the 

required label, and must be similar enough in design that their use 

would not confuse consumers or undermine the utility of relatively 

consistent labeling of E15.

    We have decided to use FTC's proposed color scheme and general 

design so that the two agencies' labels could work together as a 

coordinated labeling scheme for gasoline-ethanol blends. FTC recently 

deferred making a decision on the ethanol labeling portion of their 

proposed fuel rating rule because more time was needed to address the 

issue.\12\ FTC's proposal was based in part on existing FTC rules for 

labeling alternative fuels (see 16 CFR parts 306 and 309). Those rules 

specify the color scheme that the FTC used for its proposed labels for 

gasoline-ethanol blends. The FTC's alternative fuel labels provide a 

generally consistent color scheme for alternative fuels so consumers 

may readily recognize pumps and other dispensers that deliver those 

fuels. In view of the existing FTC rules for alternative fuel labeling 

and FTC's further consideration of gasoline-ethanol blend labeling, we 

are adopting the proposed FTC color scheme so that E15 labels may 

become part of a broader, coordinated scheme for labeling alternative 

fuels in general and gasoline-ethanol blends in particular. Consumers 

are more likely to understand the import of both agencies' labels if 

they see relatively consistent labels across the relevant types of 

fuel. In addition, FTC's proposed labels uses colors, fonts, shape and 

other design aspects that make its labels noticeable, easily 

understood, and consistent with labeling conventions. An E15 label 

similar in appearance should thus be similarly effective. We also note 

that we varied the font size of different parts of the E15 label in 

light of FTC consumer labeling staff advice that use of larger fonts 

for the most important information



[[Page 44417]]



would help draw consumers' attention and make it more likely they would 

read the label.

---------------------------------------------------------------------------



    \12\ FTC press release ``FTC Issues Final Amendments to Its Fuel 

Rating Rule, Including New Octane Rating Method'' available at 

http:[sol][sol]www.ftc.gov/opa/2011/03/fuellabel.shtm [accessed 

March 21, 2011].

---------------------------------------------------------------------------



    We agree with the comments that the label should be placed where 

consumers will see it when they are selecting which fuel to buy. We 

recognize, however, that pump designs vary widely and evolve over time. 

In particular, pumps that use one hose to dispense several grades of 

gasoline raise the issue of where to place the label so that it is 

associated with the selector button for E15 fuel. Given the wide 

variety of pumps, we are not specifying the exact placement of the 

label on every type of pump, but we are requiring that retailers place 

the E15 label where consumers will see it when they are making their 

fuel selection. In the case of pumps with one nozzle dispensing several 

grades of gasoline, the regulations direct the retailer to place the 

label above the selector button dispensing E15 or otherwise place it so 

that it is clear which button is dispensing E15. Using the flexibility 

afforded by the regulations for alternative labels, some retailers may 

want to put a variation of the E15 label on the selector button itself.

    We note also that in response to our request for comment on whether 

the designation of ``E15'' be placed at the top of the label, many 

commenters agreed that this should be done. Today's rule will require 

that ``E15'' be so placed.

g. Separate Labels for Different Levels of Ethanol

    Most commenters stated that there is no need to label E0 or E10. 

These commenters noted that since the purpose of the rule is to 

minimize misfueling with E15, EPA labeling should be limited to fuels 

containing more than 10 vol% ethanol. Several other commenters 

recommended labels for E0 and every level of gasoline-ethanol blend 

(including E10) to provide a comprehensive system for identifying the 

amount of ethanol in the gasoline being sold.

    We have concluded that it is not useful or necessary to label E0 or 

E10. Both fuels are prevalent in the market now, and both may be used 

by virtually all vehicles, engines and nonroad equipment. Requiring 

labels for E0 and E10 might help consumers understand the spectrum of 

gasoline-ethanol blends that are available, but they are not needed to 

help minimize misfueling. ``E0'' and ``E10'' labels may also cause some 

confusion. Many pumps dispensing E10 are already labeled under state 

law, and adding a new label would be duplicative and may lead some 

consumers to think that E10 is a new type of gasoline. We believe that 

labeling only E15 pumps will help make clear to consumers that E15 is 

indeed a new and different blend, and that attention needs to be paid 

to avoid misfueling with it. Thus, today's rule will not require labels 

for E0 and E10.

    Commenters were divided on whether additional labels were needed 

for E85, for blends between E15 and E85, and for blender-pumps (pumps 

that dispense a range of gasoline-ethanol blends). One commenter stated 

that no additional labels were necessary and that requiring an 

additional label for these fuels would likely be counterproductive to 

the consumer education underway in states where mid-level gasoline-

ethanol blends and E85 are already available. Some commenters believed 

that such labels were necessary, with some favoring labels that 

indicate a range of ethanol levels and other urging that labels specify 

the precise, or close to the precise, level of ethanol being dispensed 

(e.g., E20, E30, E40 and so on).

    As mentioned above, FTC is considering labels for mid-level 

gasoline-ethanol blends. FTC already requires labels for E85 and other 

alternative fuels. There are currently about 2,300 E85 pumps and 215 

blender pumps dispensing mid- and high-level gasoline-ethanol blends. 

These pumps typically have labels or other signage that clearly 

identifies mid- and high-level gasoline-ethanol blends as such, 

indicates which nozzle or selector button dispenses those higher 

blends, and communicates that the blends are for flex-fuel vehicles 

only. Most alternative fuel labels subject to current FTC regulations 

must also use the color scheme that we have adopted for the E15 label.

    In light of these circumstances, we believe that it is sufficient 

and appropriate for EPA to require labels only for E15 pumps at this 

time. There are relatively few pumps dispensing mid- and high-levels of 

gasoline-ethanol blends, and their current labels and signage are 

generally designed to attract attention and make clear that the fuel 

they dispense is for flex-fuel vehicles only. The E15 label we are 

requiring will provide appropriate information for E15, and should not 

lead to misfueling with higher gasoline-ethanol blends. In our view, an 

owner of a MY2000 car, for example, is not likely to read the E15 

label, learn that it is inappropriate for his or her motor vehicle, 

move to an E30 or E85 pump, and buy that fuel instead. Also, as 

discussed below, the labels that EPA could require in this rulemaking 

for higher gasoline-ethanol blends could cause consumer confusion. FTC 

is continuing to consider labeling for mid-level gasoline-ethanol 

blends, and we anticipate that the two agencies will continue to 

consult about ethanol labeling. (For example, EPA and FTC staff are 

working to prevent duplicative labeling.) As we work with our 

stakeholders to help the public understand the appropriate use of E15, 

we will share information and insights with FTC for their 

consideration.\13\

---------------------------------------------------------------------------



    \13\ We considered requiring EPA labels for higher gasoline-

ethanol blends that combined the information on EPA's label and 

FTC's proposed labels. However, FTC's proposed labels contain a more 

general damage statement as well as direction to check the owner's 

manual. For the reasons discussed above, we do not believe it is 

appropriate to include the reference to owners' manuals on EPA's E15 

label. Also, it is not clear that EPA could require labels for the 

particular ranges of blends for which FTC proposed labels (e.g., 30-

40%, 10-70%). Since we do not have data to show differences in 

emission consequences for those particular ranges for all types of 

vehicles, engines or equipment, we do not believe it would be 

appropriate for EPA to require labels for those particular ranges. 

In any event, we do not want to presume the conclusion of FTC's 

consideration of ethanol labeling.

---------------------------------------------------------------------------



    Since the misfueling prohibition established by today's rule 

applies to gasoline-ethanol blends greater than E10, and not just E15, 

EPA considered whether to require a label for higher blends in order to 

provide information about the prohibition. We concluded, however, that 

such labels would more likely confuse consumers than help them avoid 

misfueling. The prohibition established in this rule reflects and is 

based largely on the same information and engineering assessment 

supporting EPA's decision to deny a waiver for E15 to be introduced 

into commerce for use in MY2000 and older light-duty vehicles, heavy-

duty engines, motorcycles and nonroad products. In this rulemaking, we 

are not addressing the emissions impact of blends above E15 on MY2001 

and newer light-duty vehicles. Therefore, the misfueling prohibition 

that we are promulgating in this rule applies only to the vehicles, 

engines and nonroad products not covered by the E15 partial waivers. In 

this context, any EPA labels for blends greater than E15 would 

accordingly carry a misfueling prohibition statement that would 

reference only MY2000 and older light-duty vehicles, heavy-duty 

engines, motorcycles and nonroad products, and not MY2001 and newer 

light-duty vehicles. However, such labels might leave the mistaken 

impression that blends greater than E15 are currently lawful for 

gasoline-fueled MY2001 and newer light-duty motor vehicles, when they 

are not. Under CAA section 211(f)(1), those higher blends may be 

introduced into commerce only



[[Page 44418]]



for sale for flex-fuel vehicles. As discussed above, the current labels 

on pumps dispensing higher gasoline-ethanol blends typically provide 

that information. Given the scope of this rulemaking, we have concluded 

that adopting EPA labels in this rulemaking for higher gasoline-ethanol 

blends could be confusing and counterproductive.

    In sum, we expect the E15 label will serve EPA's purpose in 

providing consumers with the information they need to avoid misfueling 

with E15, and that it is not appropriate to adopt labeling requirements 

for blends above E15 in this rulemaking.

3. Final Fuel Pump Labeling Requirements

    Today's final rule requires the wording and general color and 

design aspects of the label described above. In addition, we are 

allowing retailers the flexibility to submit alternative labels to EPA 

for approval. Such alternatives may potentially include the addition of 

icons and other languages, and small changes in shape and size (except 

to the extent a larger size is necessary to accommodate more 

information), but must include the four required components of the E15 

label.

    We are not requiring labels for other gasoline-ethanol blends. 

Thus, only the E15 label is required for pumps dispensing that fuel.

    Placement of the label will depend on the type of pump that is 

used. In the case of pumps with one nozzle dispensing several grades of 

gasoline, the regulations direct the retailer to place the label above 

the selector button dispensing E15 or otherwise place it so that it is 

clear which button is dispensing E15. In the case of pumps with a 

nozzle for each grade, the regulation directs the retailer to place the 

label where consumers will see it when they are making their fuel 

selection.

    The final E15 label is as follows:

    [GRAPHIC] [TIFF OMITTED] TR25JY11.002

    

C. PTD Requirements



    EPA proposed several additions to existing PTD requirements to 

provide the information needed for fuel providers to properly blend and 

label E15 fuel. EPA has previously established similar requirements for 

PTDs for RFG and blendstocks to help ensure downstream compliance with 

national RFG standards. As we explained in the proposed rule, the 

potential introduction of E15 into the marketplace makes it important 

to include additional information on the PTDs that accompany the 

transfer of gasoline and gasoline blendstocks used for oxygenate 

blending, both for RFG and conventional gasoline. We also noted that 

the type of additional information needed differs for businesses 

upstream versus downstream of the point of ethanol addition. Most 

commenters agreed that PTD changes are necessary to minimize misfueling 

and to help ensure downstream compliance with our fuels regulations as 

E15 enters the market.

1. PTD Requirements Downstream of the Point of Ethanol Addition

    EPA proposed to include on PTDs language indicating the amount of 

ethanol in the blend and the summertime RVP standards applicable to the 

blend so that downstream marketers can properly label E15 fuel and 

avoid commingling fuels that could result in RVP and other 

violations.\14\ EPA proposed that the following statements be included 

on PTDs for pure gasoline (E0) and the various gasoline-ethanol blends 

downstream of the point where ethanol blending takes place:

---------------------------------------------------------------------------



    \14\ As was indicated in the proposed regulations, the RVP 

language would be required for PTDs only for the summertime RVP 

season.



    For E0: ``E0: Contains no ethanol. The RVP does not exceed [Fill in 

appropriate value]''.

    For E10: ``E10: Contains between 9 and 10 volume percent ethanol. 

The RVP does not exceed [Fill in appropriate value]''.

    For E15: ``E15: Contains up to 15 volume percent ethanol. The RVP 

does not exceed [Fill in appropriate value]''.

    For EXX: ``EXX--Contains up to XX% ethanol.



    ``EXX'' refers to fuels blends above E15, up to and including E85 

and fuel blends below 9 volume percent ethanol. The maximum potential 

ethanol content of the fuel would be required to be specified on the 

PTD in the place of ``XX''.

    Most comments were generally supportive of the language as 

proposed. One commenter recommended that the language on PTDs for 

gasoline-ethanol blends should be simplified and standardized, and 

should read: ``Contains at least  volume percent 

ethanol and up to  volume percent ethanol. RVP does 

not exceed  psi.'' EPA agrees that standardizing the 

language for gasoline-ethanol blends is



[[Page 44419]]



simpler and easier to understand, and is finalizing changes to the 

required PTD language for gasoline-ethanol blends to reflect this. For 

E0, we are finalizing the language to read as proposed (i.e., ``E0: 

Contains no ethanol''), since the standardized language suggested by 

commenters contains more information than necessary for gasoline 

containing no ethanol.

    Another commenter argued that the language ``The RVP does not 

exceed [Fill in appropriate value]'' is unnecessary, as the petroleum 

industry has a long history of distributing gasoline with the correct 

RVP to the correct area, and E15 will not change this situation. In 

contrast, another commenter stated that the proposed requirements to 

include ethanol content and maximum RVP on the PTD downstream of the 

point of blending would be beneficial, because it would alleviate the 

need for additional downstream testing. After considering the public 

comments, EPA concludes that, downstream of the point where ethanol 

blending takes place, information on the maximum ethanol concentration 

and RVP of gasoline and gasoline-ethanol blends is needed to help 

ensure that shipments of E15 and other fuel are delivered into the 

appropriate storage tanks at retail and fleet fueling facilities and 

not improperly commingled. The introduction of E15 into the marketplace 

will increase the complexity of blending, distributing and selling 

fuel. The required additions to PTDs will help fuel providers comply 

with E15 labeling requirements, the summertime RVP requirements for E0, 

E10 and E15, and the prohibition against misfueling with E15 (including 

gasoline-ethanol blends greater than 10 vol% ethanol and up to 15 vol% 

ethanol). Therefore, EPA is finalizing the requirement that information 

on the maximum ethanol concentration and RVP of gasoline and gasoline-

ethanol blends be included on PTDs downstream of the point of ethanol 

addition.

    EPA also requested comment on whether additional language on E10 

PTDs is needed to inform parties that a blend containing between 9 and 

10 vol% ethanol which benefits from the 1.0 psi RVP waiver under CAA 

section 211(h) may not be commingled with E0 or a gasoline-ethanol 

blend that contains less than 9 or more than 10 vol% ethanol. We 

received comments advocating that EPA require that PTDs for gasoline-

ethanol blends higher than 10 vol% ethanol state that those volumes are 

not eligible for the 1.0 psi RVP waiver. One commenter also suggested 

that, to avoid downstream commingling of E10 and other fuels not 

eligible for the 1.0 psi RVP waiver, EPA should incorporate additional 

language into the E10 PTDs stating: ``This blend is subject to the 1.0 

psi RVP waiver. Do not blend with gasoline containing anything other 

than between 9 and 10 vol % ethanol.'' EPA has decided to include the 

suggested language to provide clarity and avert potential instances of 

improper commingling of fuels eligible for the 1.0 psi RVP waiver and 

those that are not. Thus, we are finalizing a requirement that for 

gasoline-ethanol blends containing between 9 and 10 vol% ethanol, the 

PTD must state: ``The 1.0 psi RVP waiver applies to this gasoline. Do 

not mix with gasoline containing anything other than between 9 and 10 

vol% ethanol.''

2. PTD Requirements Up to and Including the Point of Ethanol Addition

    EPA proposed that PTDs for gasoline or gasoline blendstock used for 

oxygenate blending (BOBs) in the manufacture of gasoline-ethanol blends 

that are subject to summertime RVP controls include the maximum RVP of 

the BOB to avoid improper blending of E15 or commingling with E15 and 

other fuels. We also proposed that such PTDs in non-RFG areas indicate 

what ethanol concentration is suitable to be blended with the BOB to 

facilitate ethanol blender compliance with applicable EPA summertime 

RVP requirements.

    Specifically, we proposed that the following statements be included 

on the PTDs for BOBs in non-RFG areas:



    ``Suitable for blending with ethanol at a concentration up to 15 

volume % ethanol'' or, in the case of a BOB designed to take advantage 

of the 1 psi allowance for E10 in 40 CFR 80.27(d)(2):

    ``Designed for the special RVP provisions for ethanol blends that 

contain between 9 and 10 volume % ethanol''.

    ``The RVP of this blendstock/base gasoline for oxygenate blending 

does not exceed [Fill in appropriate value]''.



    Comments were generally supportive of the proposed language, 

although EPA received a comment stating that the requirement to include 

the RVP of a BOB on the PTD is not useful because regulated parties are 

already prohibited from releasing a finished product onto the market 

that exceeds the regional and/or seasonal RVP requirements. The 

commenter argued that the proposed requirement overcomplicates an 

approach that has worked well in the past and that PTD requirements for 

BOBs should be flexible and need only contain the type and level of 

oxygenate with which the BOB should be blended, with additional 

language included at the discretion of the regulated party. However, 

while the current approach to compliance with the relevant RVP 

requirements may work under current conditions, in light of the 

increasing complexity that will come with the entry of E15 into the 

market, EPA believes that, upstream of the point where E10 and E15 are 

manufactured, the maximum RVP is needed on the PTDs for BOBs to 

facilitate ethanol blender compliance with the applicable EPA 

summertime RVP requirements.

    In order to help ensure that the proposed blendstock commingling 

restrictions are observed, we requested comment on whether the 

following language should be added to the PTD for a BOB designed to 

take advantage of the 1.0 psi allowance for E10: ``The use of this 

gasoline to manufacture a gasoline-ethanol blend with less than 9 vol% 

ethanol or E15 may cause an RVP violation.'' Some commenters argued 

that the proposed changes to the PTD language do not sufficiently 

address the consequences of blending additional levels of ethanol in 

gasoline beyond 10 vol% and that language similar to what EPA proposed 

should be added to the final regulations. One commenter stated that the 

final rule must ensure that PTDs make it clear that any gasoline-

ethanol blends above E10 do not receive the 1.0 psi RVP waiver. The 

commenter suggested that EPA require the following language on PTDs for 

fuel for which the waiver does not apply: ``Adding ethanol to this 

product will result in a blend higher than E10 which will not qualify 

for the one pound waiver.'' After considering these comments, EPA has 

decided to require the additional suggested language on PTDs for BOBs 

designed to take advantage of the 1.0 psi RVP allowance. This PTD 

language will serve to remind blenders that gasoline-ethanol blends 

containing more than 10 vol % ethanol do not receive the 1 psi RVP 

waiver. Furthermore, the PTD language clarifies the proper amount of 

ethanol with which the associated fuel may be blended. EPA believes 

that this additional PTD language will help prevent downstream 

violations of the RVP requirements for E15 and other fuels.

    In conclusion, for PTDs for gasoline or BOBs up to and including 

the point of ethanol addition, we are requiring the following language: 

``Suitable for blending with ethanol at a concentration up to 15 vol % 

ethanol'' or, in the case of a BOB designed to take advantage of the 

1.0 psi allowance for E10 in 40 CFR 80.27(d)(2):





[[Page 44420]]





    ``Suitable for the special RVP provisions for ethanol blends that 

contain between 9 and 10 vol % ethanol.''

    ``The RVP of this blendstock/gasoline for oxygenate blending does 

not exceed [Fill in appropriate value] psi.''

    ``The use of this gasoline to manufacture a gasoline-ethanol blend 

containing anything other than between 9 and 10 vol % ethanol may cause 

a summertime RVP violation.''



3. General PTD Requirements

    We proposed several general PTD requirements so that the specific 

information discussed above is useful to the various parties involved 

in fuel production, distribution and marketing. Specifically, we 

proposed that on each occasion when any person transfers custody and/or 

ownership of any gasoline or gasoline BOB, the transferor would be 

required to provide the transferee with an appropriate PTD identifying 

the gasoline/blendstock and its characteristics (as defined below), as 

well as such general information as the names and addresses of the 

transferor and transferee, the volume of product being transferred, the 

location of the product on the date of transfer, and other specific 

information. We proposed that all parties be required to retain PTDs 

for a period of not less than five years and provide them to EPA upon 

request.

    We also proposed that PTDs be required to be used by all parties in 

the fuel distribution chain down to the point where the product is 

sold, dispensed, or otherwise made available to the ultimate consumer. 

We proposed that PTDs would be required to travel in some manner (paper 

or electronically) with the volume of blendstock or fuel being 

transferred. Additionally, we proposed that product codes could be used 

to convey the information required as long as the codes are clearly 

understood by each transferee, but that the full proposed text would 

need to be included on the PTD for transfers to truck carriers, 

retailers, or wholesale purchaser consumers.

    We received comments indicating that space is limited on the 

physical PTDs, and that EPA should allow for the use of abbreviations 

and the printing of text on the back of the PTD, provided a clear 

reference to the back is made on the front. While EPA does require 

certain language to be included on PTDs, we generally do not specify 

the form that the PTD must take. We agree that printing on the back of 

a PTD is appropriate, provided all the required language is included on 

the PTD and a clear reference to the printing on the back is made on 

the front of the PTD. Therefore, EPA is allowing parties to print 

required language on the back of the PTD, provided there is a clear 

reference on the front. The commenter also suggests the use of ``%'' in 

place of ``percent'' and ``vol'' in the place of ``volume.'' EPA agrees 

that the use of these particular abbreviations is reasonable as they 

are generally understood by industry, and is allowing for the use of 

``%'' in place of ``percent'' and ``vol'' in the place of ``volume.''

    Finally, we received comments stating that, if product codes can be 

used on PTDs as proposed by EPA, EPA should also require a product code 

key on the PTD, as the use of product codes in the current distribution 

chain has created confusion. EPA believes that the limitations proposed 

for the use of product codes are sufficient to prevent confusion, as 

those parties who might be confused by the use of product codes will 

not receive PTDs that contain them. Specifically, the proposed 

requirement stipulated that product codes may not be included on PTDs 

for transfers to truck carriers, retailers, or wholesale purchaser 

consumers, since these parties are more likely to be unfamiliar with 

the meaning of product codes. Therefore, EPA is allowing for the use of 

product codes on the PTD provided the codes are clearly understood by 

each transferee, and is requiring that the full proposed text be 

included on the PTD for transfers to truck carriers, retailers, or 

wholesale purchaser consumers. Although EPA is not requiring a product 

code key on PTDs, parties are encouraged to include them whenever it 

would be useful to others in understanding product codes downstream in 

the distribution chain.

    The final rule makes the PTD requirements applicable beginning 

November 1, 2011, to allow sufficient time for all the relevant parties 

in the fuel distribution chain to comply. Businesses wishing to begin 

marketing E15 prior to that date may do so by explaining in the plan 

required by the E15 partial waiver conditions how the PTD requirements 

of the partial waivers will be addressed. (As discussed in a later 

section of this notice, businesses that introduce E15 into commerce do 

so under the E15 partial waivers and must comply with the partial 

waiver conditions. Today's rule will facilitate compliance with some 

conditions, but do not supplant them.) Under the waivers, plans must be 

submitted to EPA to address the waivers' misfueling mitigation 

conditions, which include PTD and survey requirements. Prior to the 

effective date for compliance with the PTD requirements of today's 

rule, such a plan should describe how PTDs for gasoline, blendstocks or 

gasoline-ethanol blends would be utilized by the various parties 

involved in marketing E15 before the compliance date for today's PTD 

regulations. Such a plan could follow the PTD approach finalized in 

today's rule to help ensure that appropriate labeling of pumps will 

occur and that compliant fuel will be dispensed. In this way, a plan 

for the introduction of E15 may be implemented prior to the compliance 

date for PTDs as specified in today's rule.



D. Ongoing Implementation Survey



    Consistent with the misfueling mitigation conditions of the E15 

partial waivers, EPA proposed that the parties involved in making, 

distributing and selling E15 be responsible for conducting an ongoing 

survey of the implementation of the labeling, ethanol content and RVP 

requirements for E15.\15\ As we explained, the purpose of the survey 

program is to help ensure that fuel pump labeling requirements are 

being met at retail stations or wholesale purchaser-consumer 

facilities, that the appropriate level of ethanol content is being 

properly blended and documented in fuel shipments, and that the RVP 

limitation of the E15 partial waivers is being met. The survey would 

also deter violations of the ethanol content, labeling and RVP 

requirements.

---------------------------------------------------------------------------



    \15\ See 75 FR 68054-68056.

---------------------------------------------------------------------------



    EPA proposed to provide responsible parties with the flexibility to 

conduct surveys that reflected the geographical scope of their plans 

for E15 distribution and sale. Survey Option 1 would allow an 

individual or group of gasoline producer(s)/importer(s), ethanol 

producer(s)/importer(s), and/or oxygenate blender(s) to conduct a local 

or regional survey if their E15 business plans are limited in 

geographical scope. Survey Option 2 would allow responsible parties to 

conduct a nationwide survey, which would likely become the most 

efficient option as businesses decide to sell E15 in more parts of the 

country. EPA explained that the flexibility afforded by these two 

options would be appropriate given the likelihood that E15 will 

gradually expand into the marketplace. Based on the history of the 

transition to E10, we expect that sale of E15 will initially begin in a 

relatively small number of retail stations in a few geographic areas. 

In that case, it may make sense for responsible parties to comply with 

survey requirements via Survey Option 1 to limit costs. If E15 expands 

beyond



[[Page 44421]]



a few areas, Survey Option 2 may become more cost-effective. The 

parties involved in selling E15 can thus decide which survey option 

makes the most sense for their circumstances.

1. Proposed Approaches and Consideration of Comments

a. General Survey Comments

    In the NPRM, we proposed that ethanol producers/importers, gasoline 

producers/importers, and oxygenate blenders involved in introducing E15 

into the market be responsible for carrying out the proposed survey 

provisions. Several commenters stated that it would make little sense 

to include ethanol or gasoline producers/importers as required 

participants in the survey given their lack of direct control over 

relevant regulated activities (e.g. proper labeling at a retail station 

or blending too much ethanol into gasoline). These commenters also 

stated that the proposal would unnecessarily and inappropriately shift 

EPA's compliance and enforcement obligations onto industry, and that 

EPA should fund and conduct the survey itself. Some commenters 

specifically argued that the sole responsibility of complying with 

survey requirements should be on ethanol blenders and marketers that 

choose to blend and market E15. Some commenters also stated that unlike 

the RFG and ULSD survey programs, which allow responsible parties to 

reduce compliance costs and/or help establish alternative affirmative 

defenses to fuel standard violations, the E15 survey program provides 

no benefits to the responsible parties and may add an additional level 

of complexity that would hinder the introduction of E15 into commerce.

    When EPA granted the partial waivers allowing E15 to be introduced 

into commerce for MY2001 and newer light-duty motor vehicles, it placed 

a survey requirement on the fuel and fuel additive manufacturers (i.e. 

gasoline manufacturers/importers, ethanol producers/importers, and 

oxygenate blenders) that introduce E15 into commerce as a waiver 

condition in order to mitigate misfueling. Since fuel and fuel additive 

manufacturers are the parties that are subject to the CAA section 

211(f)(4) prohibition that was partially waived for E15, they are the 

parties that, under the partial waivers of the prohibition, bear the 

obligation to introduce E15 in a manner that avoids misfueling if they 

choose to make use of the waivers. For a similar reason, to minimize 

the misfueling that might result from the introduction of E15 into 

commerce for use by some vehicles but not other vehicles, EPA proposed 

that these parties be subject to the survey requirements under the 

misfueling mitigation regulations. This aspect of the proposal also 

ensures that compliance with the survey requirements of the rule (at 40 

CFR 80.1502) would help satisfy the survey conditions of the partial 

waiver decision.

    After considering the public comments, we have concluded that it is 

appropriate for the parties involved in making and selling E15 to be 

responsible for conducting surveys that assess implementation of the 

E15 partial waiver conditions related to misfueling mitigation. The 

partial waivers allow businesses to introduce E15 into commerce for use 

in MY2001 and newer motor vehicles. To the extent businesses desire to 

avail themselves of the opportunity to make and sell E15, they should 

also bear the cost of monitoring compliance with misfueling mitigation 

adopted in today's action. EPA has required regulated parties to 

conduct surveys in the RFG and ULSD programs if they choose to take 

advantage of regulatory provisions that provide greater compliance 

flexibility made possible by the surveys. For E15, EPA has granted 

partial waivers that make it necessary for those who take advantage of 

the waivers to take certain steps to mitigate misfueling and limit RVP 

and thereby avoid the emission increases and standard exceedances that 

would otherwise result. Although the case for surveys in the RFG, ULSD 

and E15 contexts is not entirely the same, the common, compelling 

thread is that when regulated parties seek opportunities that may 

heighten the risk of emission increases, they should be responsible for 

taking steps to offset or minimize that risk. In all three cases, 

surveys are an effective means of reducing risk--and at relatively low 

cost. Moreover, complying with survey requirements will help 

responsible parties satisfy waiver conditions and introduce E15 into 

commerce, and will also help establish an affirmative defense to 

violations found downstream for upstream parties. For these reasons, 

EPA is finalizing the list of responsible parties as proposed.\16\

---------------------------------------------------------------------------



    \16\ Under the final rule, any oxygenate blender that blends a 

gasoline that contains greater than 10 vol% and less than or equal 

to 15 vol% ethanol is responsible for satisfying the survey program 

requirements along with the gasoline and ethanol producers/importers 

that manufacture, introduce into commerce, sell or offer for sale 

E15, or base gasoline, BOB, or ethanol that is intended for use in 

the manufacture of E15. To help blenders be aware of those gasoline 

and ethanol producers/importers, today's regulations provide that a 

gasoline producer/importer intends a base gasoline or a BOB for use 

in manufacturing E15 if a producer/importer amends its registration 

to include E15 under 40 CFR 79 or designates that their base 

gasoline or BOB may be suitable for the addition of up to 15 vol% 

ethanol in the PTDs accompanying the fuel or blendstock (see 

discussion of PTD requirements in Section III.B.). In addition, 

under the regulations, any ethanol producer/importer that sends 

ethanol into the marketplace is assumed to intend that the ethanol 

may be used to manufacture E15 unless the ethanol producer/importer 

demonstrates (e.g., through contracts) that its ethanol is not for 

use in the manufacture of E15.

---------------------------------------------------------------------------



    EPA also received comments that it should make survey plans and 

results available to the public. EPA will make plans and results 

available in the same manner as it has made plans and data from both 

the RFG and ULSD survey programs available to the public. For example, 

EPA has provided the Clean Diesel Fuel Alliance (CDFA) with quarterly 

summary data of the performance of the ULSD survey program for 

publication on the public CDFA Web site. EPA is committed to providing 

timely data to the public and will disseminate E15 survey data through 

avenues similar to those utilized in previous survey programs.

    Some commenters suggested that EPA should require that surveys 

include visual monitoring of pumps in order to observe and record 

customer behavior to determine the rate of actual misfueling. Other 

commenters suggested that EPA should conduct its own survey to monitor 

actual misfueling rates at retail stations. EPA does not believe that 

it is necessary to require that surveys include visual monitoring at 

this time. As the transition to E15 occurs, we plan to work with 

industry, state, environmental and consumer stakeholders to track 

developments and evaluate the effectiveness of the required misfueling 

mitigation measures, including the prohibition against misfueling with 

E15. Also, as noted previously, we are working with ethanol and other 

stakeholders to help establish a public education and outreach campaign 

to assist fuel producers, distributors, retailers and consumers in 

understanding how E15 may be made, distributed, sold and used. That 

effort can help identify and resolve misfueling issues that may develop 

as E15 moves into the marketplace.

    EPA proposed to include the testing of fuel samples for RVP to 

ensure that E15 being sold at retail stations was in compliance with 

the RVP condition of the E15 waiver and that an E10 fuel that used the 

1.0 psi RVP waiver under CAA section 211(h) was not commingled with 

E15, which must have a lower RVP in the summertime. EPA received a



[[Page 44422]]



number of comments both in favor of and opposed to including RVP 

testing. Those who were opposed argued that determining RVP levels of 

E15 and other fuels was unrelated to misfueling, that existing RVP 

controls have proven effective over time, and that it was up to EPA to 

enforce RVP requirements with the aid of states without imposing 

additional costs on industry.

    EPA continues to believe that it is necessary and appropriate for 

the surveys to measure the RVP of fuel samples from pumps labeled as 

dispensing E15. For E15 to be lawfully sold under the partial waivers, 

it must have the proper ethanol content, not exceed 9.0 psi RVP in the 

summertime, and be dispensed from properly labeled pumps. It is thus 

appropriate for the surveys to measure the RVP of fuel labeled as E15 

in order to determine whether E15 is being properly blended and sold 

under the partial waivers. However, EPA believes that the comments 

opposing RVP sampling for fuels being dispensed from pumps not labeled 

for E15 have merit. Since a fuel with an ethanol content above 10 vol% 

up to 15 vol% that is dispensed from a pump lacking the E15 label is 

not covered by the partial waivers, its sale violates the misfueling 

prohibition established in today's rule, regardless of its RVP. 

Therefore, requiring that surveys sample the RVP of such a fuel is not 

necessary to determine that its sale is unlawful. We also believe that 

the current controls on summertime RVP established in 40 CFR 80.27 

adequately ensure that E0 and E10 meet the applicable RVP standards. We 

are therefore limiting the requirement to measure RVP to fuels being 

sold and labeled as E15.

    One commenter asked that the survey be fair and balanced and not 

place any undue burdens on small petroleum marketers and retailers. EPA 

is committed to not placing undue burdens on small businesses. 

Retailers do not have any obligations to conduct a survey; however, 

they are responsible for complying with E15 labeling requirements if 

they choose to sell E15, and they are subject to the prohibition 

against misfueling with E15. EPA believes that by allowing two survey 

options, it is providing marketers and other small businesses 

flexibility to determine which survey method is most practical if they 

choose to sell E15.

b. Survey Option 1

    EPA received many comments about Survey Option 1. Some commenters 

argued that Survey Option 1 would not provide the Agency with accurate 

information to the degree that a nationwide survey would, because a 

geographically limited survey would not necessarily detect E15 sent 

beyond the areas covered by the survey. Some commenters urged that we 

eliminate Option 1 altogether. These commenters pointed out that the 

national ULSD and RFG survey programs have been effective and that 

there was no reason to deviate from such an approach for E15.

    The Agency continues to believe that Survey Option 1 is appropriate 

to provide for parties that choose to manufacture, market, or sell E15. 

Unlike the ULSD and RFG programs, which regulated the content of fuels 

that were already distributed and sold, E15 will likely enter the 

market first in a few areas of country and then gradually expand to 

other areas over time. Under these circumstances, it is appropriate to 

provide businesses that decide to sell E15 in a limited area with the 

option of developing a relatively localized survey. EPA believes that 

Survey Option 1 can provide the same rigor as a nationwide survey for 

the areas potentially affected by business decisions to sell E15 in a 

limited area. Survey Option 1, as finalized today, includes survey 

requirements (e.g. sampling and testing methods) similar to those 

applicable to the national survey. Also, to be approved, surveys under 

Survey Option 1 will have to take a robust approach to surveying 

affected areas considering the fuel distribution network for those 

areas. EPA provides a similar opportunity to conduct localized or 

individual surveys under the RFG and ULSD survey programs, and we 

believe that it is appropriate to provide parties making, marketing and 

selling E15 the opportunity to choose which approach is most economical 

and effective in ensuring proper ethanol content and labeling 

downstream. We are also clarifying the language at Sec.  80.1502(a) to 

reflect that a survey program conducted under Survey Option 1 must 

adhere to requirements for robustness similar to those applicable to a 

national survey.

    Other commenters argued that Survey Option 1 is overly broad and 

not practical. These commenters stated that as written the proposed 

regulations implied that all gasoline refiners/importers and ethanol 

producers/importers would have to survey each area their products could 

enter even though they would have no idea whether their products are 

being used to blend E15. In response to these comments, it is important 

to clarify that the obligation to conduct a survey applies only to 

those parties that decide to make, distribute or sell E15 or their 

gasoline or ethanol for use in E15. Any party that chooses not to 

manufacture, market, and/or sell E15 does not need to comply with the 

rule's survey requirements. Any party that chooses to market ethanol, 

gasoline, or gasoline blend stock as appropriate for use in E15 is 

subject to the survey requirement. If a party wants to use Survey 

Option 1, the party will need to limit where its fuel or fuel additive 

is sold and distributed. If a party does not want to limit the 

distribution of its product, then Option 1 would likely not be 

appropriate for that party. The choice is up to each party considering 

how the party decides to market their fuel or fuel additive--with or 

without any limitation on its eventual use downstream. There are many 

benefits associated with deciding to market a fuel or fuel additive 

without limitation, but a companion responsibility is to then develop a 

survey program that is appropriate to the distribution of the product.

    One commenter suggested that a survey of five percent of the 

stations that sold a responsible party's fuel in a prior year be deemed 

sufficiently representative. This commenter suggested that for the 

first year of sampling under Option 1, the responsible party should 

conduct a survey that represents the higher of either: (1) Five percent 

of the responsible party's estimate of the number of stations that will 

sell the responsible party's E15 during the first survey year; or (2) 

five percent of the stations where the responsible party sold fuels 

containing ethanol the prior year. This commenter pointed out that five 

percent was approximately the number of stations EPA proposed be 

surveyed annually under Survey Option 2.

    EPA does not agree with this approach to determining the minimum 

number of stations to be sampled. The Agency chose the number of 

samples required under Survey Option 2 using an appropriate statistical 

approach based on the previous performance of the similar ULSD survey 

program. The number of samples required under that program, and 

proposed for Survey Option 2, can fluctuate year to year since the 

number of samples is based in part on noncompliance rates; therefore, 

more than five percent of retail stations may need to be sampled in a 

particular survey year. Furthermore, the number of samples for a survey 

conducted under Survey Option 1 can vary considerably depending on the 

size and scope of the individual survey plan. Since survey plans should 

use statistical means to determine the appropriate number of samples 

needed to comply with the general survey requirements being



[[Page 44423]]



adopted, the Agency believes it would be inappropriate to specify a 

minimum number of samples or percentage of stations to be sampled. The 

Agency believes that the proposed approach to determining sample size 

provides appropriate flexibility to responsible parties. Therefore, EPA 

is finalizing Survey Option 1 as proposed.

c. Survey Option 2

    EPA received many comments about most aspects of proposed Survey 

Option 2, the nationwide ethanol content and E15 labeling survey. 

Several commenters stated that the proposed requirements that a fuel 

sample be shipped on the same day it is collected, and that the sample 

be analyzed for ethanol content within 24 hours, are unnecessary to 

ensure program integrity, are not practically feasible, and create 

unnecessary additional costs. We believe that these comments have 

merit. We chose 24 hours to be consistent with the fuel sample 

transport and analysis deadlines required in the ULSD and RFG survey 

programs. However, commenters noted that the independent survey 

association that has conducted the ULSD and RFG survey programs for the 

past 15 years has shown that it is not practical to find a shipping 

carrier that will consistently meet the required 24-hour schedule. One 

commenter suggested that EPA allow the use of ground shipment service, 

which takes in general 1-5 days to be received at the lab. This 

commenter also pointed out that for testing samples, due to the volume 

of samples that will need to be analyzed, 72 hours would be a best case 

scenario, with 10-12 business days being more realistic.

    EPA believes that it should impose practical, cost-effective 

requirements regarding the shipping and testing of fuel samples 

collected as part of the surveys. Therefore, EPA will require that 

samples be shipped from the retail station to the laboratory for 

analysis within five days. Additionally, EPA is requiring that samples 

be analyzed and reported to EPA for both oxygen content and RVP, if 

applicable, within 10 days of receipt at the laboratory. These changes 

will reduce the costs of conducting the survey. However, EPA is not 

changing ULSD and RFG survey requirements at this time since we did not 

propose to make changes to those survey programs in the NPRM. EPA may 

adjust the time allotted for shipment and analysis of fuel samples for 

these programs in an upcoming rulemaking.

    EPA also received comments suggesting that surveys begin only after 

E15 has achieved a certain level of market penetration considering data 

from the previous year. One commenter specifically suggested that the 

survey year begin on July 1 instead of January 1 of the year E15 is 

introduced into commerce. EPA does not believe that it is appropriate 

for surveys to begin only after E15 has been on the market. The purpose 

of the survey is to help ensure that E15 is being properly blended and 

labeled so that misfueling is minimized. That purpose needs to be 

served from the time E15 first enters the market. Also, we do not 

believe it is feasible to determine whether an area has exceeded any 

level of market penetration without accurate survey data upon which to 

base that determination. Additionally, the misfueling waiver conditions 

require that a survey plan be approved by EPA and that implementation 

of the plan begin before E15 may be introduced into commerce. EPA 

believes that it is best to keep the final survey requirements 

consistent with the misfueling conditions outlined in its partial 

waiver decisions.

    EPA does not agree that changing the start date of the survey from 

January 1 to July 1 would be beneficial since, if E15 actually enters 

the market earlier in the year, the later start date would delay 

delivery of information needed on a more real-time basis to minimize 

labeling and other problems that could lead to misfueling. The survey 

programs for the other fuel programs have been conducted with a January 

1 start date and for a normal calendar year, and there is no reason to 

believe that an E15 survey could not also be conducted on the same 

schedule. Furthermore, the existing and proposed survey programs break 

surveys down into four quarterly surveys that ensure that EPA is 

receiving more real-time information on a regular basis that is not 

tied to any particular start date. Therefore, EPA is finalizing the 

survey timing requirements as proposed.

    EPA proposed that a nationwide ethanol content and E15 labeling 

survey conducted under Survey Option 2 have a minimum of 7,500 samples 

annually and that the next year's survey sample size be determined by 

the equation found at 40 CFR 80.1502 based on the previous year's non-

compliance rates. EPA also sought comment on whether it should allow a 

smaller number of samples in the first years of the nationwide survey 

in order to reduce burden. EPA received comments that suggested that 

EPA should require fewer or more samples than proposed. For example, 

one commenter suggested that EPA sample 20 percent of the retail 

stations nationwide. Another commenter suggested a reduction in the 

number of samples in the first year since E15 will not likely be sold 

at many retail stations the first year it is introduced into commerce.

    The sample size methodology and minimum sample size EPA proposed 

were based on statistical principles and past survey experience with 

similar programs. Reducing the sample size even in the first year would 

compromise the statistical rigor, and therefore the effectiveness, of 

the program. If, as expected, E15 is initially marketed and sold in a 

limited geographic area, responsible parties that wish to market and 

sell E15 could take advantage of Survey Option 1 to reduce the required 

number of samples. On the other hand, increasing the minimum number of 

samples does not provide much more information given the large number 

of samples already required and the substantial increase in costs that 

a larger number of samples would entail, which would pose an 

unnecessary burden on responsible parties. However, as part of the 

survey plan approval process, EPA will consider whether a higher 

minimum sample size may be methodologically necessary under some 

circumstances to maintain the rigor of a nationwide survey program. In 

the regulations issued today, EPA is finalizing the sample size 

methodology and minimum sample size of 7,500 samples per year as 

proposed.

    One commenter questioned whether proof that a surveyor had been 

paid must be sent to EPA by the proposed deadline since EPA could bring 

an enforcement action under the Clean Air Act if the survey was not 

conducted according to the approved plan. The Agency believes that the 

requirements that the survey plan be contracted and paid for in advance 

are important to ensuring that the required surveys will occur.\17\ EPA 

has made this a requirement of both the RFG and ULSD survey programs, 

and the cost of providing proof of payment to the Agency is minimal.

---------------------------------------------------------------------------



    \17\ Contracting and paying for a survey also mark commencement 

of a survey for related regulatory purposes.

---------------------------------------------------------------------------



    EPA is making changes to the survey provision governing revoking 

approval of a survey plan to more closely conform to the method 

provided for in the ULSD regulations \18\ of ensuring that survey plans 

serve their intended purpose and that this goal is fulfilled until the 

expiration of the plan.\19\ Given the importance of a robust survey for 

effective implementation of ethanol content, labeling and related



[[Page 44424]]



requirements, if experience with an approved survey plan proves that it 

is inadequate in practice, EPA may revoke it. Before deciding whether 

to revoke a plan, EPA will generally work with the submitter to make 

changes necessary to remedy the plan's flaws. If satisfactory 

amendments cannot be achieved, EPA may decide to revoke its approval of 

the survey plan. In the event a survey plan is revoked, distribution of 

the E15 authorized for introduction into commerce under the E15 partial 

waivers based, in part, on the survey plan would have to cease until 

such time as a replacement survey is approved.

---------------------------------------------------------------------------



    \18\ See 40 CFR 80.613(e)(10)(v) and 80.613(e)(12).

    \19\ These provisions apply to surveys approved under options 1 

or 2.

---------------------------------------------------------------------------



    To ensure that the E15 survey provisions create incentives similar 

to those created by the ULSD program for developing and implementing 

effective survey plans, the regulations being promulgated today include 

a provision for voiding a survey plan ab initio under appropriate 

circumstances. If EPA determines that approval of a survey plan was 

based on false, misleading or incomplete information, or if there is a 

failure to fulfill or cause to be fulfilled any requirements of the 

survey, EPA may void ab initio the approved survey plan. EPA's years of 

experience in approving applications that authorize distribution of 

motor vehicles, nonroad vehicles and engines, and fuels based on 

compliance with applicable Agency regulations confirm the importance of 

basing approval determinations on information that is true, clearly 

stated and comprehensive, and on ensuring implementation of the terms 

of the application. Given the importance of E15 surveys to effective 

implementation of E15 misfueling mitigation measures, providing that 

survey plans may be voided ab initio under appropriate circumstances 

will help ensure that plans are properly developed, supported and 

implemented. E15 distributed based on a plan whose approval was secured 

with false, misleading or incomplete information, or a plan whose 

requirements are not fulfilled, was not distributed in compliance with 

the conditions of the waiver.

    In considering whether it is appropriate to void a survey plan ab 

initio, EPA will review the information that was submitted in support 

of the plan. EPA will regard information that is not true to be false 

information; information that, while true, may lead a reasonable person 

to an incorrect conclusion to be misleading information; \20\ and 

information that is missing elements necessary for a full understanding 

of the information that was presented to be incomplete information. 

Survey plans with these kinds of information flaws are inherently 

unreliable, and effectively prevent EPA from conducting a meaningful 

review of the survey plan and from basing its decision to approve the 

plan on complete and accurate information. Thus, when EPA discovers 

that its approval of a survey plan was based on false, misleading or 

incomplete information, EPA may decide to treat its approval as never 

having been granted. In addition, as discussed above, EPA is requiring 

proof of a valid contract for conducting the survey and payment for the 

survey to be provided to EPA to help ensure that the survey is 

implemented. If, despite the fact that EPA receives this proof, the 

requirements of a survey plan are not fulfilled, EPA may treat the 

survey plan as never having been granted by voiding it ab initio. 

Distribution of E15 under any survey plan that is voided ab initio 

would have to cease until such time as a replacement survey is 

approved, and E15 that was distributed based on that plan will be 

deemed to have been distributed in violation of 40 CFR 80.1504(a)(2).

---------------------------------------------------------------------------



    \20\ For example, a plan implemented by a survey association 

that is misleadingly described in the plan as independent of and 

free from obligation to ethanol blenders and producers, gasoline 

refiners and ethanol and gasoline importers or their employees, but 

which is in fact not independent of or free from such obligation, 

yields survey results that are inherently unreliable. Such a plan 

may be voided ab initio.

---------------------------------------------------------------------------



2. Final Survey Requirements

    In today's rule, EPA is finalizing both survey options. After 

carefully considering all of the comments received pertaining to the 

survey requirements, EPA is finalizing Survey Option 1 as proposed. In 

additional, EPA is finalizing most elements of Survey Option 2 as 

proposed. However, Survey Option 2 as finalized does not require RVP 

testing of fuel samples from pumps not labeled for E15, and provides 

more time for the shipping and testing of samples. Finally, EPA is 

revising provisions to permit both revoking and voiding ab initio 

approval of survey plans in appropriate circumstances.



E. Program Outreach



    In the NPRM we pointed out that a public education and outreach 

program for E15 will be important to help mitigate misfueling that 

could result in increased emissions and vehicle or engine damage. We 

also noted that the industry-lead outreach campaign for the ULSD 

program helped successfully transition the nation to ULSD while 

mitigating most misfueling.

    Almost all commenters agreed that an effective outreach program 

would be essential to mitigate E15 misfueling, and some cited the ULSD 

outreach effort as an example of how EPA and affected stakeholders 

could work together to aid in the transition to E15 and minimize 

misfueling. Recommendations included a dedicated Web site, use of EPA's 

online Green Vehicle Guide, use of other media, pamphlets at retail 

outlets, and consumer interaction via keypad entry at the pump. There 

were also comments that EPA should establish and lead the outreach 

program.

    EPA agrees that public outreach and consumer education are key to 

effectively mitigating misfueling. However, we believe that industry 

needs to take the lead in such efforts. Our recent experience with the 

transition to ULSD shows that a stakeholder-led outreach campaign can 

work synergistically with labeling requirements and provide another 

means of providing important information to everyone involved in fuel 

production, distribution and use. The ULSD outreach program also shows 

that industry is better situated to coordinate with the parties 

involved in the production, transport, and marketing of E15. More 

importantly, businesses interact with consumers (via advertising, a Web 

site, pamphlets, etc.) about the fuels they sell, and those that decide 

to sell E15 will need to make decisions about how to promote E15 in a 

manner that also minimizes misfueling. As noted previously, the 

introduction of E15 into the market is likely to start in a limited 

number of areas and grow over time. In these circumstances it is even 

more appropriate that the parties who choose to market this product 

take the lead in outreach and consumer education in the areas the 

product is introduced.

    In light of these considerations, EPA believes that primary 

responsibility for public outreach and education about E15 

appropriately rests with the businesses that decide to make and sell 

E15. As we did for the ULSD program, we intend to actively assist in 

the development and implementation of an outreach and education 

campaign for E15 when it enters the market. We are already in the 

process of working with ethanol and other stakeholders to help 

establish such a campaign. As that process moves forward, we will help 

ensure that a broad range of stakeholders are kept informed so they may 

become involved as they see fit.



F. Other Misfueling Mitigation Measures



    In the proposed rule, we explained our expectation that the 

misfueling



[[Page 44425]]



mitigation provisions we were proposing would adequately address 

misfueling mitigation concerns. We based our expectation on the 

relatively recent transition to ULSD when similar measures were 

employed to help minimize misfueling of new vehicles and engines that 

were designed and built to achieve stringent emission standards when 

operated on ULSD. However, we also recognized that there could be other 

means for addressing misfueling, as suggested by API in its misfueling 

mitigation measures scoping study.\21\ In the NPRM, we discussed 

several suggestions covered in API's study and sought comment on those 

and any other measures that industry or other stakeholders considered 

necessary or helpful to mitigate misfueling with E15.

---------------------------------------------------------------------------



    \21\ ``Evaluation of Measures to Mitigate Misfueling of Mid- to 

High-Ethanol Blend Fuels at Fuel Dispensing Facilities,'' American 

Petroleum Institute, EPA Docket  EPA-HQ-OAR-2010-0448.

---------------------------------------------------------------------------



    We received many comments recommending that EPA implement or study 

one or more mitigation measures in addition to those we proposed. This 

section contains a brief summary of major comments and our responses to 

those comments. It begins with a discussion of the general issue of 

whether the proposed misfueling mitigation measures are sufficient to 

mitigate misfueling, and then considers several specific measures 

suggested by commenters for inclusion in today's final rule. Responses 

to comments not addressed in this section can be found in the ``E15 

Misfueling Mitigation Measures Response to Public Comments.''

1. Need for More Mitigation Measures

    Many commenters expressed strong concern that the proposed suite of 

misfueling mitigation measures would not be sufficient to minimize 

potential misfueling with E15. They took issue with EPA's comparison of 

the potential for misfueling with E15 to the potential for misfueling 

under EPA's ULSD program, and contended that the more instructive 

comparison is to the transition to unleaded fuel, where EPA required 

additional mitigation measures.

    The commenters generally argued that the transition to ULSD did not 

provide the best or most appropriate point of reference for designing a 

misfueling mitigation program for several reasons. First, EPA 

regulations required that ULSD replace low sulfur diesel (LSD) fuel 

over several years, whereas, according to the commenters, E0, E10, and 

E15 will coexist in the marketplace for an indefinite period, 

increasing the likelihood of misfueling. Second, the commenters noted 

that the potential harm from LSD was to newer engines equipped with 

advanced emissions control devices, while the potential harm from E15 

is to older vehicles and engines. For ULSD, they noted there was 

opportunity for vehicle manufacturers to educate new diesel vehicle 

consumers at the time of purchase about the risks of misfueling, with 

this information reinforced in the owner's manual and on the vehicles 

themselves. For E15, the commenters explained, there is no similar 

opportunity for consumer education. While the commenters acknowledged 

that vehicle turnover will decrease the number of MY2000 and older 

light-duty motor vehicles in the U.S. vehicle fleet, they stated that 

the rate of vehicle turnover is decreasing as vehicle quality and 

durability have improved and will take decades to complete. 

Representatives of boat manufacturers and owners also noted that many 

larger boats have longer useful lives than passenger vehicles. A third 

reason for concern, according to commenters, is that E15 may be priced 

less than E10 or E0, adding a cost incentive for misfueling.

    Many of these commenters contended that the transition to unleaded 

gasoline was at least as relevant to the design of E15 misfueling 

mitigation measures as the transition to USLD. (Similar to the 

transition to ULSD, the transition to unleaded gasoline occurred as a 

result of new emission standards that required new emission control 

equipment that would be irreversibly damaged by lead in gasoline.) The 

commenters noted that the measures established to reduce misfueling of 

new motor vehicles with leaded gasoline included physical constraints--

specifically, vehicle fuel inlets and gasoline nozzles designed so that 

new vehicles requiring unleaded gasoline could only accept nozzles 

dispensing unleaded gasoline. The commenters pointed out that even 

these constraints did not prevent all misfueling, particularly when 

leaded gasoline was priced less than unleaded gasoline.

    After carefully considering these comments, EPA continues to 

believe that the comparison to the ULSD program is valid and provides 

an appropriate basis for designing the E15 misfueling mitigation 

program. LSD and ULSD were available in the market at the same time for 

several years, just as E15 is expected to be available along with E10 

and/or E0 for a number of years. In the case of both USLD and E15, the 

potential for engine damage and associated repair costs exists if 

misfueling occurs. EPA believes that consumers have a strong interest 

in avoiding repair and replacement costs, whether their vehicles or 

gasoline-powered equipment are new or old. Owners may expect to get 

less use from their older vehicles and equipment, but that does not 

mean that they will put their possessions at risk, absent a strong 

price incentive (discussed below). An essential element of a misfueling 

mitigation program is alerting consumers to that risk. For ULSD, pump 

labeling was important for notifying consumers of newer vehicles and 

engines of the need to use ULSD and the consequences of misfueling. The 

E15 label will serve the same purpose for owners of older motor 

vehicles and other products for which E15 is not allowed. For ULSD, 

industry established the Clean Diesel Fuel Alliance to educate diesel 

product consumers about the importance of avoiding misfueling with LSD. 

EPA is working with E15 stakeholders to help establish a similar public 

education effort for E15. Overall, the transition to USLD posed 

misfueling issues similar to those that will be raised by E15's entry 

into the market, making the misfueling mitigation measures employed in 

the ULSD program appropriate models for mitigating misfueling with E15.

    Commenters did not provide sufficient evidence or rationale to 

persuade us that use of physical constraints to prevent misfueling with 

leaded gasoline means that similar, physical measures are necessary for 

E15. A key difference between E15 and leaded gasoline is that 

misfueling with E15 could result in driveability and operability issues 

with older motor vehicles and nonroad equipment, while unleaded 

gasoline did not affect the driveability of vehicles designed to run on 

leaded gasoline. The E15 label will inform consumers that misfueling 

with E15 may cause damage, and a public education effort can reinforce 

that message. Also, consumers today have more and easier access to more 

information about how to maintain their vehicles for best performance 

and durability.

    Another factor that contributed to misfueling with leaded gasoline 

was the perception that the higher octane of leaded gasoline, typically 

89 anti-knock index (AKI) versus 87 AKI for most unleaded gasoline, 

made leaded gasoline a better fuel. An even stronger factor was price. 

Leaded gasoline was typically five or more cents per gallon cheaper 

than unleaded gasoline, at a time when gasoline was less than a dollar 

per gallon. With the perception of



[[Page 44426]]



no harm from misfueling and the loss of higher octane, some consumers 

saw no reason to spend the extra money on unleaded gasoline. Such is 

not the case for E15. Depending on the availability of ethanol, which 

can vary by season, E15 could be priced somewhat more or less than E0/

E10 with a comparable octane. Considering the extent that recent 

gasoline prices have fluctuated, it does not seem likely that consumers 

would risk damaging their vehicles or equipment for small incremental 

savings. Public outreach can also help remind consumers of the cost 

consequences of misfueling.

    At the same time, we agree that if E15 is priced less than E10 or 

E0, the risk of misfueling may increase if consumers believe that they 

can save more money by purchasing E15 and do not consider or believe 

the savings are more than they would pay to repair or replace their 

vehicles or equipment sooner than might otherwise occur. However, it is 

too early to know how E15 will be marketed, including how it will be 

priced. EPA will work with stakeholders to monitor the transition to 

E15 and the effectiveness of the mitigation measures being required by 

today's rule. In the meantime, it is worth noting that the prohibition 

against misfueling with E15 is applicable to both fuel providers and 

users. As discussed later in this notice, retailers can avoid liability 

for consumer misfueling if they properly label E15 pumps and can show 

that they did not encourage or otherwise cause misfueling. In general, 

fuel providers are encouraged to consider whether their particular 

circumstances would make it useful to take additional, tailored steps 

to avoid consumer misfueling.

    In sum, as with the ULSD program, we believe that the misfueling 

measures being finalized today for E15 will work together so that fuel 

providers have a strong incentive to properly blend and label E15 and 

consumers have a strong incentive to avoid misfueling. An industry-led 

public outreach campaign can reinforce how and why it is important to 

avoid misfueling.

    In evaluating the need for additional mitigation measures, we also 

considered the fact that there is currently significant uncertainty 

about where, when and how E15 will enter the market. While the partial 

waiver decisions removed one legal barrier to introducing E15 into 

commerce, other steps must be taken to address additional Federal, 

State and local requirements, including registering the fuel as 

required by the Clean Air Act and determining the compatibility of fuel 

storage and dispensing equipment under various Federal, State and local 

regulations. Ultimately, businesses must decide whether and how to 

introduce E15 into the market. We expect that the transition to E15, 

like the transition to E10, will take time and begin in some parts of 

the country before becoming broadly available. In the process, business 

decisions will be made about how to market E15 (e.g., price of E15, its 

use for a particular grade of gasoline, types of pumps used to dispense 

it) that will bear on what, if any, additional measures may be useful 

to mitigate misfueling, including the specific suggestions assessed 

below. In light of these various considerations, we have concluded that 

it is neither necessary nor appropriate to require additional 

misfueling mitigation measures as part of today's final rule.

    As the transition to E15 occurs, we plan to work with industry, 

state, environmental and consumer stakeholders to track developments 

and evaluate the effectiveness of the required misfueling mitigation 

measures. As noted previously, we are working with ethanol and other 

stakeholders to help establish a public education and outreach campaign 

to assist fuel producers, distributors, retailers and consumers in 

understanding how E15 may be made, distributed, sold and used. That 

effort can also help identify and resolve misfueling issues that may 

develop as E15 moves into the marketplace. In the meantime, if fuel 

providers believe additional measures will further reduce the risk of 

misfueling under their particular circumstances, they may take such 

actions. For example, retailers that serve a significant population of 

boat or small equipment owners may decide it is appropriate under their 

specific circumstances to post signs that specifically address 

misfueling of those products. By taking additional tailored steps, 

retailers and other fuel providers can provide examples of other 

measures that may prove effective in further reducing the risk of 

misfueling.

2. Specific Suggestions for Additional Mitigation Measures

    We examined the feasibility and utility of several specific 

misfueling mitigation measures suggested by public commenters for 

adoption in the final rule. As described below, each of the suggestions 

presents implementation, feasibility or cost issues. There is also 

little empirical data about the relative effectiveness of these 

measures. Given the uncertainties about the transition to E15 and the 

need for and effectiveness of the suggested measures, we have concluded 

that it is not appropriate to require them at this time, although fuel 

providers are encouraged to develop and deploy these and other measures 

as they deem appropriate for their circumstances.

a. Distinctive Hand Warmers for E15 Dispensers

    As discussed in the NPRM, the American Petroleum Institute (API) 

study considered the use of different colored ``hand warmers'' or 

``nozzle grips'' (the flexible plastic sheath that covers the part of 

the pump nozzle that is gripped when dispensing gasoline) to 

distinguish E15 fuel dispensers from other fuel dispensers. A number of 

commenters recommended the adoption of such hand warmers, suggesting 

that EPA require E15 hand warmers to be a uniform and unique color and/

or texture nationwide to indicate to consumers that E15 is different 

than other gasoline and not appropriate for all motor vehicles. Some 

commenters also suggested complementary signs to highlight the 

distinctive hand warmer.

    We carefully considered the workability and utility of this 

measure. Hand warmers are low cost and are replaced periodically, so 

this option could be relatively inexpensive and easy to implement. 

However, this option could be challenging to implement for a number of 

other reasons. First, there is no industry standard color scheme for 

hand warmers. An assigned color for E15 hand warmers could conflict 

with, or be confusing in the context of, retail stations' existing 

color schemes. To address this issue, we considered whether to require 

E15 hand warmers with a noticeably different texture or bearing the 

text ``E15.'' However, there is currently no available data for 

determining whether or to what degree such differences would be 

effective in drawing consumers' attention more than the required label 

itself.

    We also identified another implementation challenge concerning 

pumps that use a single nozzle to dispense multiple grades of gasoline. 

Many existing pumps use a single nozzle to dispense multiple grades of 

gasoline, such as regular grade (e.g., 87 octane), premium grade (e.g., 

92 octane), and a mid-grade (e.g., 89 octane). Consumers push a button 

to select the grade of gasoline desired and then use the single nozzle 

to dispense the fuel selected. It is likely that E15 may be marketed as 

one, but not all, grades of gasoline, especially in the near term. 

Requiring an E15 hand warmer on the nozzle of these pumps could be 

misleading or confusing to consumers if the dispenser supplies not only 

E15 but also E10 or E0.



[[Page 44427]]



    In light of these issues and the lack of information about the 

effectiveness of uniquely colored or textured hand warmers, we have 

concluded that it is not appropriate to require this measure in today's 

final rule. At the same time, we think distinctive hand warmers might 

prove useful in many circumstances, and we encourage retailers to 

consider whether their use might provide customers with a useful visual 

or textual cue given their stations' pump types, color schemes or other 

relevant attributes.

b. Keypad/Touch Screen Information/Confirmation

    Some commenters stated that EPA should require all fuel pumps 

dispensing E15 to require affirmative confirmation from consumers that 

they wish to purchase E15. The commenters suggested this could be 

accomplished through a mandatory electronic keypad approval (tied to 

fuel grade selection), in which the consumer would need to confirm the 

use of E15 prior to purchase. Some commenters argued that the sale of 

E15 should be prohibited from pumps that do not have an electronic 

keypad. Commenters favoring this measure did not provide specific 

information about how affirmative confirmation using electronic keypads 

or touch screens could be implemented.

    EPA agrees that requiring affirmative confirmation from consumers 

before they fuel with E15 could help consumers avoid misfueling with 

E15. However, based on the limited information provided by commenters, 

it does not appear that this measure could be implemented using 

available technology or software. The electronic keypad used for 

credit/debit card transactions do not generally interface with the fuel 

selector such that the pump can be locked if the consumer makes an 

inappropriate selection. Providing an interactive process for selecting 

E15 would likely require substantial upgrades to the point-of-sale 

system of the dispensers. We have therefore decided that available 

information does not support requiring this measure at this time. 

However, retailers may develop and implement keypad-based methods for 

providing consumers with further information or opportunities to make 

appropriate fuel choices.

c. Radio Frequency Identification (RFID)

    Some commenters suggested the use of RFID technology as another 

misfueling mitigation measure. RFID technology is already used in fuel 

dispenser activation and purchasing systems. For example, one oil 

company uses RFID technology in a tag or card that provides a 

``contactless'' payment system that provides members with a quick way 

to pay for purchases at participating stations. The tag has a built-in 

chip and radio frequency antenna that allows it to communicate with 

readers at gasoline dispensers.

    For this option to be useful in mitigating misfueling with E15, 

MY2001 and newer motor vehicles would need to be retrofitted with an 

RFID device that allows E15 to be dispensed into the motor vehicle. 

Some commenters indicated that the device installation is relatively 

simple (for example, a consumer could have a device installed during an 

oil change). One commenter estimated the cost of an RFID ring tag to be 

$50-75 and installation of the tag around the fuel inlet to be $12.50. 

Retrofitting of fuel dispensers with a companion RFID device would 

raise larger cost and implementation issues. One commenter indicated a 

cost of $500 for installing an RFID reader per fuel dispenser nozzle 

and $10,000 to $20,000 to install a central controller per facility per 

dispenser to upgrade software for security purposes.

    Based on the information provided, this measure, while potentially 

effective, raises a number of significant issues. First, it would 

require the owners of MY2001 and newer light-duty motor vehicles, which 

can lawfully use E15, to spend time and money to install devices so 

that owners of vehicles and equipment that cannot lawfully use E15 

cannot dispense E15 into those vehicles or equipment. Second, it is not 

clear whether or how consumers could be persuaded or required to 

install the RFID technology. Third, the cost to retail stations would 

likely be considerable. Particularly given the uncertainties about the 

transition to E15, it seems highly unlikely the benefits of this 

measure would outweigh its costs. In light of these issues, we 

determined that adoption of this measure would be inappropriate.

d. Requiring the Continued Availability of E10 and/or E0

    Several commenters urged EPA to require the continued availability 

of E10 and/or E0, arguing that EPA should adopt regulatory requirements 

now to ensure that owners of older motor vehicles and other gasoline-

powered engines, vehicles, and nonroad equipment not covered by the E15 

partial waiver decisions can find the fuel they need. In addition, on 

March 23, 2011, EPA received a petition for rulemaking requesting that 

EPA promulgate a rule under Clean Air Act section 211(c) to ensure the 

continued availability of gasoline containing 10 vol% or less ethanol 

(``<=E10'') at retail stations for use in vehicles, engines, and 

nonroad equipment not covered by the E15 partial 

waivers.22 23 Both the commenters and the petitioners noted 

that E10 has, over time, largely displaced E0 in the marketplace, and 

in some areas of the country, it is already difficult to locate E0. 

They expressed concern that E15 could similarly displace E10, 

particularly if economic factors and the Renewable Fuel Standard result 

in broad adoption of E15. They argued that unless E10 remains 

available, owners of vehicles and gasoline-powered engines, vehicles, 

and nonroad equipment for which E15 is not allowed may have no choice 

but to misfuel with E15. Petitioners also contend that EPA's proposed 

misfueling mitigation measures will not be effective unless EPA ensures 

that <=E10 remains available alongside E15. Petitioners point out that 

EPA required availability of unleaded gasoline and USLD to protect 

emission control systems, and they ask EPA to similarly require the 

availability of E10 to protect the performance of emission control 

systems of vehicles, engines, and nonroad equipment not covered by the 

E15 partial waiver decisions.

---------------------------------------------------------------------------



    \22\ ``Petition for Rulemaking Under the Clean Air Act to 

Require the Continued Availability of Gasoline Blends of Less Than 

or Equal to 10% Ethanol,'' Alexander David Menotti, Kelley Drye & 

Warren LLP on behalf of American Motorcyclist Association (AMA), et 

al., EPA Docket  EPA-HQ-OAR-2010-0448.

    \23\ On May 27, 2011, EPA received comments opposing the 

petition from the National Association of Convenience Stores and the 

Society of Independent Gasoline Marketers of America. These comments 

are summarized in the Response to Comments document located in the 

public docket.

---------------------------------------------------------------------------



    For the reasons discussed below, the Agency is not requiring the 

availability of E10 (or E0) in this rulemaking and is also denying the 

rulemaking petition. Based on the information currently available to 

the Agency, we find that it is neither necessary nor appropriate to 

issue such regulations at this time or to initiate a rulemaking process 

to adopt them. While EPA appreciates that the availability of 

appropriate fuels is important to mitigating misfueling, it is 

premature for EPA to try to forecast now how E15 will be distributed 

and marketed over the next several years, and how this might impact the 

availability of <=E10. In considering the future availability of <=E10, 

it is important to remember that EPA's partial waiver decisions allow, 

but do not require, E15 to be sold. Instead, the partial waivers remove 

a statutory prohibition on introducing E15 into commerce, subject to 

misfueling



[[Page 44428]]



mitigation and other conditions. It is now up to businesses to decide 

whether and how to produce and sell E15 for MY2001 and newer light-duty 

motor vehicles. Further, before E15 can be legally sold and made 

broadly available for these vehicles, a number of additional steps must 

be taken by fuel producers, distributers, and marketers as well as 

Federal, state and local government agencies. These steps include 

registering E15 as a motor vehicle fuel under the Clean Air Act, 

addressing the compatibility of E15 with fuel storage and dispensing 

equipment, and potential changes to state and/or local requirements. In 

light of these additional steps, EPA expects that any significant 

market shift to E15 will take several years or more, and that the 

decisions fuel providers will make about the continued availability of 

<=E10 will largely determine if any availability requirement is needed. 

Since <=E10 is widely available now, the appropriate response to any 

future <=E10 availability issues will best be determined by evaluating 

the distribution and market circumstances of E15 and <=E10 fuels as E15 

enters the market. EPA will work with stakeholders to monitor those 

circumstances and timely address any <=E10 availability issues that are 

based on those specific circumstances.

    Commenters and petitioners did not provide data that suggest that 

<=E10 will be unavailable in either the short- or long-term, nor did 

they provide quantitative analysis or evidence to support claims that 

E15 will be less expensive than E10. This is significant since, as 

explained above, it is not EPA that determines whether, how, or where 

E15 will be distributed and sold, or how this will impact availability 

of <=E10. It is the fuel industries involved that will determine the 

role that E15 plays in the fuel distribution system and how this will 

affect availability of <=E10. Without commenters and petitioners 

providing data to support their assertions, EPA can only consider 

available information, which shows that it is far from a foregone 

conclusion that E15 will result in a scarcity of <=E10 in the next 

several years or more. Under the E15 partial waivers and the misfueling 

prohibition in today's rule, E15 may be used only in MY 2001 and newer 

light-duty motor vehicles and FFVs. Gasoline containing no more than 10 

vol% ethanol will continue to be needed for fueling MY2000 and older 

light-duty motor vehicles and all heavy-duty gasoline vehicles and 

engines, motorcycles and nonroad equipment. EPA estimates there are 

over 240 million such vehicles, engines, and nonroad equipment in 

existence today, and even as some products are retired, new heavy-duty 

gasoline-powered vehicles and engines, motorcycles, and nonroad 

equipment will be purchased. In view of the continuing demand for 

<=E10, EPA expects that many retailers will continue to make <=E10 

available. Also, as noted above, retail stations that decide to sell 

E15 will need to address the compatibility of fuel dispensers and 

underground storage tank systems with E15, which could affect the pace 

of E15's entry into the marketplace. According to some commenters, 

gasoline producers may need to change fuel formulations to accommodate 

the use of E15, which could further impact the availability and cost of 

E15 relative to <=E10. In short, many factors affect the timing and 

extent of the availability of E15 and any impact on the continued 

availability of <=E10. At this time, EPA cannot forecast how decisions 

will be made by the various industries involved and is not in a 

position to evaluate either the detailed scope of any future issues 

concerning availability of <=E10 or the appropriate regulatory 

response.

    Commenters and petitioners stated that EPA has the legal authority 

under Clean Air Act section 211(c) to require the availability of 

<=E10. Under section 211(c), EPA may control or prohibit fuels and fuel 

additives that cause or contribute to air pollution that may endanger 

public health or welfare or significantly impair emission control 

devices or systems. Those controls may include, where justified, 

requiring the availability of particular fuels needed to ensure the 

continued effectiveness of emissions control systems. However, to 

require <=E10 availability, EPA would need to conduct a number of 

analyses, including of the costs, small business impacts, and 

environmental and other benefits of such a requirement. CAA section 

211(c), the Regulatory Flexibility Act, and various Executive Orders 

pertaining to rulemaking call for analysis of various factors before 

proposing and adopting regulations such as a fuel availability 

requirement under section 211(c). Petitioners requested that EPA 

require that <=E10 be made available at any retail gasoline station 

that offers gasoline containing greater than 10 vol% ethanol. However, 

petitioners provided no quantitative or qualitative data necessary to 

analyze the important issues that are relevant for establishing this 

kind of requirement. For example, petitioners did not show that the 

requirement is necessary to avoid misfueling based on an analysis of a 

reasonable projection of the future volumes and marketing patterns of 

E15 and <=E10 fuels in the future. Petitioners also provided no 

information on how the costs of such a requirement would compare to the 

benefits, under the same volume and marketing projections. Without such 

information, the Agency cannot justify placing potentially costly 

requirements on small businesses (e.g., the thousands of independently 

owned and operated gasoline retail stations) or require that the fuel 

distribution system maintains storage capacity for <=E10 (e.g., 

potentially requiring that terminals provide additional tanks to store 

more blendstocks). Indeed, given the many uncertainties that exist 

concerning the future availability of E15, E10 and E0, it would be 

difficult, if not impossible, to conduct the required analyses in a 

meaningful way at this time.

    EPA raises these points not to discount the important issues raised 

by the petitioners and commenters, but to indicate the kind of analysis 

that would be needed to evaluate either the suggested regulatory 

approach or other less comprehensive regulatory requirements, and to 

highlight the premature nature of taking regulatory action at this 

time.\24\ Until E15 enters the market and further developments take 

place, much of the information needed to conduct those analyses will be 

unavailable or difficult to obtain. Better, well-informed decisions can 

be made by monitoring developments concerning the availability of E15 

and <=E10 and formulating any EPA response in light of specific 

developments as they occur over time.\25\

---------------------------------------------------------------------------



    \24\ In addition, EPA notes that there would be serious notice 

and comment concerns if EPA attempted to adopt any regulatory 

requirement on availability in this final rule.

    \25\ Given EPA's many statutory responsibilities, we also 

conclude that it does not make sense to use EPA's limited resources 

to attempt to develop information or make projections now where much 

more reliable information will become available over time, nor is it 

appropriate to undertake a rulemaking now that imposes specific 

requirements that could well be unnecessary in light of future 

developments.

---------------------------------------------------------------------------



    Contrary to petitioners' assertions, the circumstances that led EPA 

to ensure the availability of unleaded and USLD fuels are substantially 

different from those of any transition from E10 to E15. In the case of 

both the lead phase-down and the ULSD programs, a new fuel was needed 

to protect the advanced emission controls of new vehicles and engines. 

The predominant fuels on the market at the time (i.e., leaded gasoline 

and 500 ppm sulfur diesel fuel) would have damaged those controls, so 

it was important for EPA to ensure the availability of new fuels that 

would allow the advanced emission controls to



[[Page 44429]]



work properly.\26\ Here, commenters and petitioners are asking for 

regulatory assurance that the currently predominant fuel on the market 

remains available. Because we expect, for the reasons discussed above, 

that E10 will remain the predominant fuel for some time, and is likely 

to remain available for a long period of time in response to market 

demand for the fuel, we do not believe it is appropriate to require the 

availability of <=E10 at this time.

---------------------------------------------------------------------------



    \26\ For lead phase-down, EPA required the availability of 

unleaded gasoline to replace leaded gasoline because use of unleaded 

gasoline was necessary to the proper operation of the catalytic 

converters equipped on new motor vehicles. With the ULSD program, 

refiners were required to produce ULSD because it was needed for 

proper operation of the advanced emission control technologies with 

which MY2007 and newer diesel engines would be equipped. There was 

no availability requirement for ULSD, but the rule was designed in 

such a way to ensure an adequate supply and distribution of ULSD for 

the new heavy-duty vehicles that would need it.

---------------------------------------------------------------------------



    The petitioners also incorrectly assert that the E15 misfueling 

measures finalized in today's action will supersede the waiver 

conditions. In fact, as discussed in section IV.G, today's requirements 

are not a substitute for the waiver conditions, although they should 

help responsible parties satisfy some of the conditions. Fuel and fuel 

additive manufacturers must still satisfy all waiver conditions before 

E15 may be introduced into commerce. This includes submitting plans 

that detail how a fuel or fuel additive manufacturer will ensure that 

misfueling does not occur. To the extent E10 becomes scarce and would 

not be reasonably available to consumers, plans submitted under the 

waiver may be an avenue for addressing the issue. In the future EPA 

would evaluate that approach as well as any potential regulatory 

approach under section 211(c).

    As discussed above (see section III.F.1), EPA believes that the 

misfueling mitigation measures included in today's action will 

appropriately and effectively reduce the potential for misfueling. 

Those measures include a misfueling prohibition and an E15 label that 

communicates that prohibition, along with the potential for damage to 

vehicles and engines not covered by the partial waivers, to consumers. 

With those measures in place, retailers, distributors, and consumers 

are expected to obey the law and find fuel that is compatible with 

their vehicles, engines, and equipment.

    For the reasons discussed above, EPA is denying the petition for 

rulemaking to require that gasoline-ethanol blends containing 10 vol% 

or less ethanol be made available in the marketplace. As the transition 

to E15 occurs, we will work with fuel producers, distributors, and 

marketers to monitor the availability of E15, E10, and E0 so that any 

potential problems can be anticipated and addressed on a timely basis, 

based on real world conditions as they develop.



G. Modification of the Complex Model Regulations and VOC Adjustment 

Rule



    To measure compliance with the RFG and anti-dumping standards, the 

emissions performance of gasoline is calculated using a model, called 

the Complex Model, which predicts the emissions level of each regulated 

pollutant based on the measured values of certain gasoline properties. 

Currently, the amount of oxygen that can be used as input to the 

Complex Model is limited to no more than 4.0 percent by weight (wt%) in 

gasoline in which the oxygenate is ethanol. This level is equivalent to 

the maximum amount of oxygen in gasoline containing 10 percent by 

volume (vol%) ethanol, or E10.\27\

---------------------------------------------------------------------------



    \27\ Because the percent by weight of oxygen in the fuel varies 

depending on the density of the fuel, the limit in the Complex Model 

is currently 4.0 wt% to reflect the maximum amount of oxygen 

associated with E10. In most fuels, however, this quantity is 

equivalent to 3.5 to 3.7 wt% oxygen.

---------------------------------------------------------------------------



    The emissions level as computed by the Complex Model is compared to 

the baseline emissions for each pollutant, and the percent reduction is 

then calculated. The RFG standards for VOC, NOx, and toxics are stated 

in terms of percent reductions from the baseline, whereas the 

antidumping regulations applicable to conventional gasoline generally 

require no greater emissions than baseline levels. Under the Clean Air 

Act, baseline emissions must be based on 1990 vehicle technology, not 

current fleets, nor off-road equipment. For gasoline to be sold in the 

U.S., it must comply with either the RFG or antidumping standards, as 

appropriate. Refiners are required to certify that their fuel meets the 

standards by using the Complex Model. For the RFG areas of Chicago and 

Milwaukee, RFG that contains 10 vol% ethanol is given an adjustment of 

the VOC performance standard, resulting in a slightly less stringent 

requirement.

1. Proposed Approach and Consideration of Comments

    Because the Act specifies that the emissions performance for RFG is 

to be measured against a baseline that represents 1990 vehicle 

technology, we were not able to use current emissions test data on 

motor vehicles using E15 gasoline as a basis for evaluating appropriate 

changes to the oxygen input parameter of the Complex Model VOC 

equation. Instead, we relied on a study conducted in 1994 by Guerrieri 

et al. (Guerrieri/Caffrey study) that examined the exhaust emissions 

from 1990 vehicles using gasoline with ethanol levels varying from 0 to 

40 vol%.\28\ Based on the study findings, we are reasonably confident 

that the average VOC emissions for ethanol blends greater than E10 up 

to and including E15 will be no worse than for E10, for 1990 technology 

motor vehicles.

---------------------------------------------------------------------------



    \28\ Guerrieri, D., Caffrey, P., and Rao, V., ``Investigation 

into the Vehicle Exhaust Emissions of High Percentage Ethanol 

Blends,'' SAE Technical Paper 950777, 1995, doi:10.4271/950777.

---------------------------------------------------------------------------



    This outcome is consistent with our engineering judgment. The 

study's data showed that on average exhaust hydrocarbon emissions 

increased from E10 to E12, but then decreased beyond E12. While the 

study does not provide sufficient data to determine the precise VOC 

emission effect between E10 and E15, the linear regression results 

presented in the study indicate a decreasing trend in hydrocarbon 

emissions with increased ethanol in gasoline. In the NPRM, we therefore 

proposed to modify the regulations to allow gasoline fuels containing 

greater than 4.0 wt% oxygen and up to 5.8 wt% oxygen to be certified 

with the VOC emissions effects modeled the same as if the fuel 

contained 4.0 wt% oxygen.\29\

---------------------------------------------------------------------------



    \29\ The level of 5.8 wt% oxygen is the potential maximum oxygen 

level associated with E15 due to lighter than average gasoline 

components. The typical weight of oxygen in E15 is around 5.2%.

---------------------------------------------------------------------------



    Most comments received supported the proposed change to the Complex 

Model regulations. Some commenters were concerned permeation effects, 

the representation of NOX and toxic emissions by the Complex 

Model, and whether the Complex Model should be modified to allow 

increased oxygen levels from all renewable fuels. Two comments also 

suggested that the VOC adjustment that applies in Chicago and Milwaukee 

for RFG containing nine to ten percent ethanol should be modified to 

allow RFG that contains up to 15% ethanol to have the same VOC standard 

as E10. We discuss these comments in further detail below.

a. VOC Emissions From Permeation

    One commenter pointed out that with respect to the effect of 

increased ethanol levels on VOC emissions, the Guerrieri/Caffrey study 

examined only exhaust VOC emissions. Evaporative VOC emissions were not 

investigated. The commenter pointed out that permeation emissions are a 

concern with ethanol, and that the Complex Model should



[[Page 44430]]



reflect such emissions. The commenter stated, ``At a minimum, EPA must 

conduct permeation testing on relevant fuel system materials to 

determine how permeation rates vary with ethanol content (i.e., does 

the rate change between E10 and E15). EPA should then modify the 

Complex Model to reflect the change in permeation related evaporative 

emissions from the zero percent ethanol baseline.''

    We acknowledge that the referenced study did not address 

evaporative emissions due to permeation. However, evaporative 

permeation was not tested during development of the Complex Model. 

Thus, the model never reflected permeation emissions for any level of 

ethanol (E0, E10, E15 or any values in between). Recent data from CRC 

show that although permeation emissions increase with higher levels of 

ethanol, the effects of E15 are likely to be comparable to E10.\30\ 

Since the permeation rates of E15 are comparable to those of E10, it 

would be inappropriate to modify the model to account for E15 

permeation emissions and not for E10. Major changes to the Complex 

Model such as would be needed to reflect permeation emissions for 

different levels of ethanol are beyond the scope of this rulemaking. 

Since evaporative permeation from E15 is comparable to that from E10, 

we believe today's regulatory change to treat E15 like E10 under the 

Complex Model is appropriate.

---------------------------------------------------------------------------



    \30\ Enhanced Evaporative Emission Vehicles (CRC Report: E-77-

2), March 2010, and Evaporative Emissions From In-Use Vehicles: Test 

Fleet Expansion (CRC Report: E-77-2b), June 2010.

---------------------------------------------------------------------------



b. Representation of NOX and Toxic Emissions in the Complex 

Model

    One commenter expressed concern that the Guerrieri/Caffrey study 

showed that NOX emissions on the six vehicles tested 

increased with increasing levels of ethanol. The commenter suggested 

that we therefore should modify the equations of the Complex Model to 

account for such increases in NOX.

    The NOX emission performance requirements for RFG and 

conventional gasoline (CG) have not been applicable to most refiners 

since January 1, 2007, when the Tier 2 gasoline average sulfur standard 

of 30 ppm took effect (see 40 CFR 80.41(e)(2)(i) for RFG; and 40 CFR 

80.101(c)(3)(i) for CG). This is the case for all refiners as of 

January 1, 2011 (see 40 CFR 80.41(e)(2)(ii) for RFG; and 40 CFR 

80.101(c)(3)(ii)). The applicability of the Complex Model to gasoline 

certification has thus become limited as EPA's more recent clean 

gasoline standards take effect and require even greater emission 

reductions than those required by the RFG and antidumping programs. As 

a result, there is no current NOX performance standard for 

RFG or conventional gasoline under the RFG or antidumping regulations, 

and the Complex Model is no longer used for modeling NOX 

performance. Therefore, there would be no point in modifying the 

Complex Model regulations to account for additional NOX 

emissions that may be associated with E15.

    The same commenter also raised concern over our approach to air 

toxics. Specifically, in the NPRM, we stated that we would not need to 

modify the air toxics standard of the Complex Model because beginning 

January 1, 2011, the air toxics emission standards no longer apply for 

gasoline subject to the new mobile source air toxic (MSAT2) nationwide 

benzene standard for gasoline (see 40 CFR 80.41(e)(3) for RFG; and 40 

CFR 80.101(c)(4) for CG). We noted, though, that small refiners can 

take advantage of the option for delayed compliance with the MSAT2 

benzene standard until January 1, 2015. We stated that since small 

refiners typically certify CG as E0, with oxygenate blended downstream, 

their compliance with the toxics performance standard should be 

unaffected by the increase in ethanol content from E10 to E15. In 

addition, no small refiners currently produce RFG or are expected to 

produce RFG. Thus, there is no need to revise the toxics performance 

standard of the Complex Model.

    The commenter recommended that EPA revise the toxics standards of 

the Complex Model to account for E15, and maintained that even if there 

are currently no small refiners producing RFG, EPA cannot preclude the 

possibility that they may do so in the future. However, to make the 

relevant change to the Complex Model would be a major undertaking and 

EPA continues to believe that such an undertaking is unnecessary and 

unwarranted in light of current and expected practices by small 

refiners. Furthermore, even if we were to make the suggested change, 

any possibility of relevance would disappear effective January 1, 2015. 

In light of these considerations, EPA has not modified its Complex 

Model regulations to account for air toxics emissions related to E15.

c. Adequacy of the Guerrieri/Caffrey Study To Justify Modification of 

the Complex Model Regulations

    One commenter stated that the Guerrieri/Caffrey study that we used 

to document the effects of increased levels of ethanol on exhaust VOC 

emissions is inadequate. The commenter contended that the Guerrieri/

Caffrey study used six vehicles, whereas the original study used to 

develop the Complex Model was based on 19 vehicles. In addition, the 

commenter points out that the gasoline for the Guerrieri/Caffrey study 

is not representative of the gasoline that is now sold, since neither 

the low sulfur gasoline rule nor the MSAT2 rule was in effect at that 

time.

    With regards to the gasoline used in the Guerrieri/Caffrey study 

not being representative, the gasoline used for the study to develop 

the Complex Model was also different than today's. In fact, the 

gasolines used for both the original Complex Model study and the 

Guerrieri/Caffrey study were the same, providing some level of 

consistency between them. Both were designed to reflect the statutory 

baseline fuel for these standards--1990 fuel, not today's fuel. 

Notwithstanding the relatively few vehicles tested, the Guerrieri/

Caffrey study provides data that allows EPA to estimate with reasonable 

confidence what would be the likely effect on exhaust emissions of 

blends of E15 in RFG as represented by the Complex Model. As stated in 

the preamble of the NPRM, the outcome of that study was consistent with 

our engineering judgment. That is, the general trend across vehicles of 

all ages is that the addition of ethanol to gasoline tends to lower VOC 

emissions due to its enleanment effect during open loop operation.

d. Representation of Other Renewable Fuels and Fuel Additives in the 

Complex Model

    We proposed modifying the Complex Model only for the increased 

level of oxygen associated with E15. Two commenters suggested that the 

modification not be limited only to ethanol but to all renewable fuels 

and fuel additives that supply oxygen up to the new 5.8 wt% level. We 

believe that this comment has merit, since the Complex Model treats the 

parameter of oxygen independently of the oxygenate which supplies it. 

In other words, the model was developed using fuel oxygen level as an 

input independent of which oxygenate contributed the oxygen. In 

addition, we believe that the increased use of any oxygenate in the 

range of 4.0 wt% to 5.8 wt% would have effects on VOC emissions that 

are similar directionally to those of increased ethanol use in that 

range. Thus, we agree with the commenters that it is not necessary to 

limit the higher levels of oxygen in fuel (i.e., above 4.0 up to 5.8 

wt%) only to ethanol for purposes of modifications to the Complex Model



[[Page 44431]]



regulations. We will therefore modify the regulations to allow the 

Complex Model to be run for fuels containing oxygen levels up to 5.8 

wt% from any oxygenate. However, it should be noted that this change to 

the Complex Model regulations has no effect on any other restrictions 

applicable to such fuels. For example, this modification to the Complex 

Model regulations does not relieve any party from the substantially 

similar prohibition in section 211(f)(4) of the Clean Air Act or the 

need, in appropriate circumstances, to receive a waiver of this 

prohibition.

e. Modification of the VOC Adjustment for RFG in Chicago and Milwaukee

    Two commenters pointed out that the regulations for RFG (40 CFR 

80.41) currently allow for an adjustment of the VOC performance 

standard for RFG containing between nine and 10 vol% ethanol in the 

Chicago and Milwaukee RFG areas. For RFG sold in these areas, the 

adjustment allows for a slightly lower emission reduction of VOCs as 

computed by the Complex Model. The amount of this adjustment is 

equivalent to a decrease in the RVP by approximately 0.3 psi. Since we 

proposed to allow the Complex Model to accommodate ethanol in RFG up to 

15 vol%, one commenter argued that we should also allow such blends to 

be eligible for the VOC adjustment. The other commenter stated that 

unlike the 1.0 psi waiver for conventional gasoline, the VOC adjustment 

for RFG is not a statutory requirement and that ``the policy rationale 

behind the adjusted standard for E-10 applies equally to E-15.'' The 

commenter also stated that not extending the VOC adjustment in Chicago 

and Milwaukee to E15 would present additional logistical and financial 

challenges including the creation and storage of a lower RVP blendstock 

for splash-blending E15.

    The VOC adjustment rule was promulgated in 2001 when RFG had an 

oxygen content requirement. E10 was typically used in the Chicago and 

Milwaukee RFG areas, generally resulting in a higher oxygen content in 

these areas than in other RFG areas. EPA's reasons for adopting the VOC 

adjustment rule can be found at 66 FR 37164 (July 17, 2001). In 

essence, at that time, EPA determined that, for purposes of ozone, the 

higher oxygen levels in E10 led to greater reductions in CO which 

offset to some extent VOC emissions. EPA reduced the VOC performance 

standard for E10 consistent with this offset.

    Today's rulemaking is limited to consideration of issues associated 

with the entry of E15 into commerce. EPA is not in a position to 

reevaluate, and is not reevaluating, whether the VOC adjustment 

provision for E10 continues to be appropriate. The only issue before 

EPA in this rulemaking is whether the existing adjusted VOC performance 

standard for the Chicago and Milwaukee RFG areas should be extended to 

E15. In addition, it should be noted that section 1504 of the Energy 

Policy Act of 2005 (EPAct) requires that EPA remove the VOC performance 

standards for VOC-Control Region 2 that are currently in 40 CFR 80.41, 

and instead apply the standards in 40 CFR 80.41 for VOC-Control Region 

1 for all RFG areas. When EPA implements this EPAct provision, it will 

consolidate the northern and southern VOC performance standards for 

RFG, adopting the southern VOC performance standards for all RFG areas. 

At that point the adjusted VOC performance standard would no longer 

apply in the Chicago and Milwaukee RFG areas. EPA intends to address 

this EPAct provision in a future rulemaking. However, EPA is not in a 

position to make these broad changes to the VOC performance standards 

in this rulemaking, and is limiting this action to issues associated 

with the introduction of E15 into commerce.

    In that context, EPA believes it is appropriate to extend the 

current adjusted VOC performance standard to E15. If the adjusted VOC 

standard is extended and E15 is introduced into these RFG areas, it 

will likely replace E10. EPA expects that the base blend of gasoline 

would not change whether it is used to produce E10 or E15 RFG. By 

replacing E10, E15 RFG would directionally lead to greater reductions 

in VOC emissions in-use, as E15 produces a slightly lower increase in 

RVP than E10. In addition, E15 would likely lead to greater reductions 

in CO compared to E10, because of the increased oxygen content. 

Extending the adjusted VOC performance standard to E15 would therefore 

likely lead to somewhat greater reductions in VOCs and CO than would 

occur if the adjusted VOC standard is not extended to E15. This 

increase in emissions reductions is consistent with the provisions of 

Clean Air Act Sec.  211(k)(1)(A), and starts to move at least 

directionally in a manner consistent with the EPAct provision. As such, 

it is appropriate at this time to make the narrow revision of extending 

the adjusted VOC standard to E15.

2. Final Approach Concerning the Complex Model and the VOC Adjustment 

Rule

    For the reasons discussed above, EPA is revising the Complex Model 

regulations generally as proposed. The equations in the Complex Model 

relating to NOX and toxics will not be changed. The Complex 

Model regulations will be modified to specify use in the model 

equations of a 4.0 wt% oxygen content for fuels with actual oxygen 

content greater than 4.0 wt% and up to 5.8 wt%. Thus, the VOC emissions 

performance for these fuels shall be evaluated as if the oxygen content 

were 4.0 wt% oxygen. Today's rule also modifies 40 CFR 80.41 so that 

the VOC adjustment in effect for Chicago and Milwaukee will apply to 

RFG with ethanol content between nine and 15 vol%.



H. Federalism Issues



    In the NPRM, we discussed the potential federalism issues that the 

proposed rule might raise. We noted that the proposed mitigation 

measures were based on the authority in CAA section 211(c) as well as 

the recordkeeping and information collection authorities of the Act. In 

that context, we specifically discussed section 211(c)(4)(A), which 

prohibits states and political subdivisions from prescribing or 

attempting to enforce for purposes of motor vehicle emission control 

any control or prohibition ``respecting any characteristic or component 

of a fuel or fuel additive in a motor vehicle or motor vehicle engine'' 

if EPA has prescribed a control or prohibition applicable to such 

characteristic or component of the fuel or fuel additive under section 

211(c)(1). We explained that this prohibition does not apply to 

controls that are identical to prohibitions or controls adopted by EPA 

(section 211(c)(4)(A)(ii)) or to California (section 211(c)(4)(B)). We 

also noted that a state may adopt non-identical fuel control measures 

upon a showing of necessity under section 211(c)(4)(C).

    In light of these CAA provisions, we indicated that we were not 

aware of any state rules or laws that would be preempted by the 

proposed rule if adopted. We explained that, to our knowledge, states 

have not controlled ethanol volumes in gasoline for purposes of motor 

vehicle emissions control. We also stated that the proposed rule, if 

adopted, would not require states to change their existing labels.

    We received a comment from a state agency agreeing with our 

explanation of the scope and effect of the Federal preemption 

provisions of CAA section 211(c) and noting the importance of state 

regulation of fuel as allowed under the Act. Several commenters, 

however, expressed concern about the potential



[[Page 44432]]



for state fuel regulations to create a patchwork of requirements, and 

urged EPA to clarify that state laws cannot conflict with or undermine 

any of EPA's control measures. In particular, these commenters stated 

that EPA should specifically prohibit states from undermining the 

effectiveness of the EPA warning label through requiring conflicting or 

distracting ethanol labels.

    Today's action is based on the authority in section 211(c)(1), as 

well as under sections 208 and 114 of the Act. As such, today's action 

leads to the express preemption of certain state actions that prescribe 

or enforce controls or prohibitions respecting ethanol content in 

gasoline, under section 211(c)(4)(A). Thus, because section 

211(c)(4)(A) applies only to controls or prohibitions respecting any 

characteristics or components of fuels or fuel additives for use in 

motor vehicles or motor vehicle engines, i.e., on road or highway 

vehicles, a state control or prohibition respecting ethanol content in 

fuel or fuel additives would be preempted only if it is ``for purposes 

of motor vehicle emission control.'' Further, states, other than 

California, may prescribe and enforce non-identical measures if they 

seek and obtain EPA approval of State Implementation Plan revisions 

containing such control measures, under section 211(c)(4)(C).

    Additionally, aside from the express preemption in section 

211(c)(4)(A), a state control for fuels or fuel additives may be 

implicitly preempted under the supremacy clause of the U.S. 

Constitution where the state requirement actually conflicts with 

Federal law by preventing compliance with the Federal requirement, or 

by standing as an obstacle to accomplishment of the Federal objectives. 

A state standard respecting ethanol content that is not subject to the 

express exemption provisions of section 211(c)(4)(A) nevertheless may 

be preempted because it meets the criteria for conflict preemption.

    In light of the relevant statutory and constitutional provisions, 

EPA believes that questions regarding preemption of specific state fuel 

regulations should be addressed on a case-specific basis. Generally 

speaking, state requirements related to ethanol can co-exist with the 

misfueling mitigation provisions of today's rule, including, for 

example, the requirement for the specified E15 pump label, where the 

state requirements are not ``for purposes of motor vehicle emission 

control'' and do not conflict or undermine the effectiveness of the 

Federal misfueling mitigation measures.



IV. Other Issues Addressed by Commenters



A. Cost of Compliance



    We calculated the proposed cost of compliance based on the periodic 

capital costs of labeling fuel dispensers, the onetime costs of the PTD 

requirements, and the annual cost of the survey requirements. The cost 

of the proposed labeling requirements was estimated at $1.04 million 

per year on an annualized basis. This estimate was conservative (tends 

to overestimate costs) as it was based on a label being placed on all 

pumps at all stations. Since we are requiring only labels at E15 pumps 

and we did not receive information indicating that our cost estimate 

for labeling was low, we are using the same estimate for the cost of 

the labeling requirement for the final rule.

    Our estimate for the cost of the proposed PTD requirements in the 

NPRM was $0.56 million per year. We did not receive comments to the 

contrary. We have revised this estimate to $0.45 million per year. The 

revised estimate is based on a one-time cost of $4.1 million to 

regulated parties to modify the formatting of their existing PTDs to 

accommodate the new information which will be required as a result of 

the rule. After the one-time modification of PTD formatting is 

complete, we believe that there would be no significant additional 

costs associated with communicating the additional information required 

by today's rule to downstream parties in the distribution system 

(either in electronic or paper form). By amortizing the one-time 

reformatting costs over a period of 15 years at a 7% cost of capital, 

we arrive at an annualized cost of $450,000 for the PTD requirements.

    We estimated the cost to implement the proposed survey provisions 

for conventional gasoline at $2 million per year and the cost of adding 

the proposed survey requirements to the existing RFG survey at $50,000 

per year. We also estimated that the cost of RVP testing of the samples 

would be $200,000 per year. One commenter stated that EPA 

underestimated survey costs because the proposed requirement for same-

day shipping would increase costs by as much as $1 million per year. 

For the final rule, we have removed the requirement for expedited 

shipping, so the basis for the commenter's concern is no longer 

applicable. Since in the final rule we are requiring RVP testing only 

of samples labeled as E15, we estimate that no more than $100,000 will 

be necessary to complete such testing. Thus, the total cost of the 

final survey requirements is estimated to be $2.15 million per year.

    The total estimated cost of all the requirements is $3.64 million 

per year, slightly lower than the $3.75 million we estimated in the 

NPRM. We stated in the NPRM that the misfueling mitigation measures 

would reduce the potential for misfueling and consequent emission 

increases and repairs to nonroad products and MY2000 and older motor 

vehicles. We also stated that while there are no data to estimate the 

frequency at which emission increases and repairs or other potential 

complications might occur with misfueling in the absence of today's 

rule, even if these consequences were avoided for only a tiny fraction 

of vehicles and equipment not covered by the partial waivers (as 

opposed to actions taken independently by industry in response to 

conditions on the partial waiver), the savings would still far exceed 

the costs of compliance. In reaching this view, we considered the 

avoided costs of repairing or replacing catalysts, although the costs 

of other repairs and emission increases might also be avoided. We 

expected that emissions-related consequences would occur with enough 

frequency that the benefits of the proposed rule's requirements would 

clearly outweigh the relatively low costs. See 75 FR 68044, 68058, 081 

(Nov. 4, 2010). During the public comment period for the proposed rule, 

additional information that might be useful to estimating costs or 

benefits was not submitted and did not otherwise become available. As a 

result, we continue to expect that the benefits of today's final rule 

will significantly outweigh the rule's low costs.

    One commenter stated that our analysis failed to consider the cost 

for controlling the additional emissions from E15 at service stations, 

as well as the potential impacts to ground water and the associated 

costs of upgrading underground storage tank systems and the dispensers 

that deliver the fuel to the motor vehicle. The commenter argued that 

EPA must consider and include the costs associated with installing 

equipment to protect ground water and the air from releases and 

emissions due to any incompatibility of USTs and Stage I vapor recovery 

equipment with E15. Specifically, the commenter stated that dispensing 

E15 using Stage I and Stage II vapor recovery equipment at retail 

gasoline stations could result in increased emissions, and noted that 

currently no Stage I or Stage II equipment are listed as approved for 

fuels beyond E10. Also, the commenter stated that EPA had not 

considered the potential impacts to ground water



[[Page 44433]]



presumably from leakage of underground storage tanks in the event of 

E15 incompatibility. The commenter, citing the results of the DOE's 

National Renewable Energy Laboratory (NREL) report of November 12, 

2010, stated that there are significant operational or material 

incompatibilities between legacy equipment and E15. The commenter 

asserted that the cost to replace a dispenser or an underground storage 

tank that may leak and release product to the ground water should also 

be included.

    It is important to recognize that the cost impacts we are 

evaluating for the final rule are the costs associated with 

implementing the regulatory requirements established by the rule. These 

regulatory requirements will apply only to the extent fuel providers 

decide to make and sell E15. Neither the partial waivers nor today's 

rule require that E15 be made or sold. Therefore, while some retail 

stations may need to make upgrades in order to sell E15, the cost of 

making any upgrades is not attributable to any regulatory requirement 

adopted in this rule. If equipment upgrades are made as needed to 

dispense E15, it will be because retailers decide to sell E15, not 

because of a requirement to do so. We have therefore estimated the 

costs of implementing the requirements adopted by this rule for 

labeling, PTDs and surveys. While the commenter provided no information 

on costs of potential equipment upgrades, we recognize that there may 

be additional costs like those noted by the commenter associated with 

distributing and selling E15. However, those costs are not relevant to 

an evaluation of the costs of the requirements adopted in this 

rulemaking.



B. The Applicability of the Statutory 1.0 psi RVP Waiver to E15



    EPA proposed that CAA section 211(h)(4) should be interpreted ``as 

limiting the 1.0 psi waiver [that the section provides] to gasoline-

ethanol blends that contain 10 vol% ethanol, including limiting the 

provision concerning `deemed to be in full compliance' to the same 10 

vol% gasoline-ethanol blends.'' 75 FR 68061. We explained that EPA 

implements CAA section 211(h)(4) through 40 CFR 80.27(d), which 

provides that gasoline-ethanol blends that contain at least 9 vol% 

ethanol and not more than 10 vol% ethanol qualify for the 1.0 psi 

waiver of the applicable RVP standard. We requested comment on whether 

section 211(h) could be interpreted such that E15 would also be 

eligible for the RVP provisions in section 211(h)(4). 75 FR 68081.

    We received several comments arguing that section 211(h)(4) should 

be read to apply to E15 and urging the Agency to amend the relevant 

regulations to reflect this reading. Commenters argued that reading 

section 211(h)(4) to extend the 1 psi waiver to E15 is consistent with 

EPA's fuel volatility rulemakings and the provision's legislative 

history and intent. Commenters pointed to the Agency's 1987 RVP 

rulemaking for support, noting that the Agency allowed blends 

containing gasoline and a minimum of 10% ethanol to exceed the RVP 

limits by 1 psi (see 52 FR 31305 (August 19, 1987)) and that Congress 

codified this approach in section 211(h)(4). The commenters argued that 

a later EPA rulemaking allowing a range of gasoline-ethanol blends 

(i.e., gasoline ethanol blends that contain at least 9 vol% and no more 

than 10 vol% ethanol) instead of simply requiring exactly 10 vol% 

ethanol was an indication of EPA's discretion in interpreting section 

211(h)(4). They also argued that EPA could reasonably interpret section 

211(h)(4) as applying to E15. One commenter further argued that E15 

meets the terms of the 1 psi waiver for 10 vol% blends because it 

contains gasoline and the minimum 10 vol% ethanol. Another commenter 

contended that section 211(h)(4) could be interpreted to provide 

authority for extending the 1 psi waiver to low to mid-level gasoline-

ethanol blends that have received a waiver under section 211(f)(4). 

Finally, commenters mentioned that E15 would have a similar (if not 

slightly lower) RVP to E10 and would not exceed applicable RVP limits 

if the 1 psi waiver is applied. One commenter suggested further that 

the deemed to comply provision found in section 211(h)(4) of the Act 

does not tie the compliance of gasoline-ethanol blends directly to 

ethanol content. The commenter argued that the primary limitation on 

applying the 1 psi waiver would likely be actions that increase RVP not 

hard percentage limits on ethanol content, and since E15 would have 

similar if not lower RVP than E10, then E15 should receive the 1 psi 

waiver.

    We also received several comments supporting our proposed 

interpretation. In today's rule, we are confirming our view that 

section 211(h)(4) limits the 1 psi waiver to fuel blends containing 

gasoline and 9-10 vol% ethanol, including limiting the provision 

concerning ``deemed to be in full compliance'' to the same 9-10 vol% 

gasoline-ethanol blends.

    Evaporative emissions from motor vehicles and off-highway equipment 

are a major source of volatile organic compounds (VOCs) that contribute 

to ozone. The amount of evaporative emissions from a gasoline blend is 

closely related to its volatility, which generally increases when 

ethanol is blended with gasoline. RVP is the most common measure of 

gasoline volatility under ambient conditions. In 1989, EPA began 

reducing gasoline volatility by limiting its RVP. We provided an 

interim RVP level that was 1 psi higher ``for gasoline-ethanol blends 

commonly known as gasohol.'' 54 FR 11868, 11879 (March 22, 1989). In 

1990, we promulgated additional RVP regulations that continued to 

provide a 1.0 psi RVP allowance for E10 so as not to require a special 

low-RVP blending gasoline. 55 FR 23658, 23660 (June 11, 1990).

    Subsequently, in the 1990 CAA amendments, Congress largely codified 

our RVP regulations by adding a new section 211(h). That provision 

established 9.0 psi as the maximum RVP during the high ozone season, 

with authority for EPA to set a more stringent RVP level under certain 

circumstances. In section 211(h)(4), Congress also established that the 

RVP limit for fuel blends containing gasoline and 10 percent denatured 

anhydrous ethanol would be 1 psi higher than the RVP standard otherwise 

established in section 211(h). This is referred to as the 1 psi waiver. 

``For fuel blends containing gasoline and 10 percent denatured 

anhydrous ethanol, the Reid vapor pressure limitation under this 

subsection shall be one pound per square inch (psi) greater than the 

applicable Reid vapor pressure limitations established under paragraph 

(1).'' Section 211(h)(4). Congress also enacted a conditional defense 

against liability for violations of the RVP level allowed under the 1 

psi waiver by stating that ``[p]rovided; however, That a distributor, 

blender, marketer, reseller, carrier, retailer, or wholesale purchaser-

consumer shall be deemed to be in full compliance with the provisions 

of this subsection and the regulations promulgated thereunder if it can 

demonstrate that--(A) The gasoline portion of the blend complies with 

the Reid vapor pressure limitations promulgated pursuant to this 

subsection; (B) the ethanol portion of the blend does not exceed its 

waiver condition under subsection (f)(4) of this section; and (C) no 

additional alcohol or other additive has been added to increase the 

Reid Vapor Pressure of the ethanol portion of this blend.'' Section 

211(h)(4). This is referred to as the



[[Page 44434]]



``deemed to be in full compliance'' or the ``deemed to comply'' 

provision.

    Following the 1990 amendments, EPA modified its RVP regulations to 

conform to the new provisions. In that rulemaking EPA ``did not 

propos[e] any change to the current requirement that the blend contain 

between 9 and 10 percent ethanol (by volume) to obtain the one psi 

allowance.'' 56 FR 64704, 64708 (December 12, 1991). We explained that 

``this is consistent with Congressional intent [because] the nature of 

the blending process * * * further complicates a requirement that the 

ethanol portion of the blend be exactly 10 percent ethanol.'' 56 FR 

24245. We also explained that the deemed to be in full compliance 

provision was ``a new defense against liability for violation of the 

ethanol blend RVP requirement [and that] EPA believes that this 

statutorily mandated defense is in addition to and does not supersede 

any of the defenses currently contained in the regulations.'' 56 FR 

64708. Additionally, EPA explained that this provision would allow ``a 

party to demonstrate the elements of the new defense by production of a 

certification from the facility from which the gasoline is received 

[and that] this defense is limited to ethanol blends which meet the 

minimum 9 percent requirement in the regulations and the maximum 10 

percent requirement.'' 56 FR 64708.

    In the Energy Policy Act of 2005 (EPAct), Congress removed the 

requirement that reformulated gasoline contain oxygenate additives, and 

mandated that increasing volumes of renewable fuel be used in gasoline. 

In recognition of the expected increase in ethanol use resulting from 

these provisions, Congress added section 211(h)(5) to allow States to 

obtain an exclusion from the less stringent RVP limit under section 

211(h)(4) for air quality reasons. ``Upon notification, accompanied by 

supporting documentation, from the Governor of a State that the RVP 

limitation established by paragraph (4) will increase emissions that 

contribute to air pollution in any area in the State, the Administrator 

shall, by regulation, apply, in lieu of the RVP limitation established 

by paragraph (4), the RVP limitation established by paragraph (1) to 

all fuel blends containing gasoline and 10 percent denatured anhydrous 

ethanol [sold] in the area during the high ozone season.'' Section 

211(h)(5).

    The legislative history of the 1 psi waiver provision shows that it 

is for fuel blends containing gasoline and 10 percent ethanol. The 

purpose of the 1 psi waiver provision was to facilitate the 

participation of ethanol in the transportation fuel industry while also 

limiting gasoline volatility resulting from ethanol blending. Congress 

also intended for this provision to remove the possibility that ethanol 

blends would be used to circumvent the gasoline volatility 

restrictions. In 1987, prior to adoption of the 1990 Amendments, 

Congress considered a legislative provision that was identical in 

relevant part to section 211(h)(4). The legislative history of this 

provision shows that Congress based the 1 psi waiver on technical data 

indicating that blending gasoline with ethanol so that it contains 9-10 

vol% ethanol results in an approximate 1 psi RVP increase. In sum, the 

text of section 211(h)(4) and this legislative history supports EPA's 

interpretation, adopted in the 1991 rulemaking, that the 1 psi waiver 

only applies to gasoline blends containing 9-10 vol% ethanol.

    In the 1991 rulemaking EPA also interpreted the deemed to comply 

provision in section 211(h)(4) as establishing an alternative 

compliance mechanism closely tied to the 1 psi waiver. It was 

interpreted as a conditional defense against liability for those 

parties who blend ethanol into gasoline to achieve 9-10% ethanol by 

volume. EPA continues to interpret the deemed to comply provision in 

this manner, such that it does not apply to ethanol blends greater than 

10% by volume. This is consistent with the text and legislative history 

of section 211(h)(4) and (h)(5).

    As noted above, in 1987 Congress considered a bill containing 

language identical in relevant part to section 211(h)(4). The 

provisions in that 1987 Senate bill were in response to EPA's 1987 

proposed RVP rule, in which EPA proposed a 1 psi waiver for ethanol 

blends, but conditioned this waiver on the final blend being tested for 

RVP. The deemed to comply provision was Congress' response to concerns 

that this was an impractical and overly burdensome way to implement a 1 

psi waiver for 10% gasohol. The Senate bill describes the deemed to 

comply provision as an alternative enforcement arrangement that 

simplified compliance with the 1 psi waiver. Thus, the deemed to comply 

provision is tied to the 1 psi waiver, and is designed to provide 

blenders the practical benefits of the 1 psi RVP waiver. It is not 

intended as a separate authorization for a relaxed RVP limit 

independent of the provision for a 1 psi waiver for 9-10% blends.

    The text of the deemed to comply provision supports this 

interpretation. The provision is an addition after the 1 psi waiver 

that modifies the 1 psi waiver for 9-10% blends. It is not written as a 

free standing RVP limit that acts separate and apart from the 1 psi 

waiver for 9-10% blends of ethanol. Its reference to section 211(f)(4) 

is an indication that Congress was well aware of the existing section 

211(f)(4) waiver conditions for 10% ethanol by volume. It refers to the 

ethanol blend not exceeding its section 211(f)(4) waiver conditions, 

and does not explicitly refer to 10% ethanol, but the condition of 

``not exceed[ing]'' the section 211(f)(4) waiver limit cannot be read 

literally. A literal reading of this phrase would mean that blends 

containing 1%, or 2%, or 5% ethanol would all be blends that are deemed 

to comply, as they do not exceed the section 211(f)(4) waiver limit. 

Such a broad reading would make the 1 psi waiver for 9-10% blends 

meaningless. Moreover, had Congress intended that the deemed to comply 

provision would establish a different ethanol content for ethanol 

blends that would be eligible for a relaxed RVP limit, whether higher 

or lower content, it could have expressly employed terms to that 

effect.

    The deemed to comply provision and the 1 psi waiver provision are 

each given consistent meaning by limiting the deemed to comply 

provision to a subset of lawful ethanol blends. The text of these 

provisions and their legislative history indicate that the deemed to 

comply provision was designed to address the same subset of ethanol 

blends that receive the 1 psi waver--blends of 9-10% ethanol. It was 

not a separate and free standing RVP provision aimed at another, larger 

subset of lawful ethanol blends, whether above or below 9-10% blends. 

Instead it was tied closely to the 1 psi waiver provision and limits 

the range of ethanol blends that can take advantage of the deemed to 

comply provision to blends of 9-10% ethanol.

    Further support for this view is provided in the action Congress 

took in 2005 when it adopted section 211(h)(5). This provision treats 

the RVP limitation of section 211(h)(4) as a whole--it refers to the 

RVP ``limitation established by paragraph (4)'' and provides that when 

a State notifies EPA that such limitation increases emissions that 

contribute to air pollution in the State, then EPA is to apply the RVP 

limits of paragraph (1) ``in lieu of the [RVP] limitation established 

by paragraph (4)'' for blends of 10% ethanol. It draws no distinction 

between the 1 psi waiver provision and the deemed to comply provision 

when referring to the RVP limitation in section 211(h)(4). Section 

211(h)(5) recognizes the potential that the relaxed RVP limit in 

section 211(h)(4) could



[[Page 44435]]



increase emissions that contribute to air pollution, and provides 

States with an appropriate solution. When a State notifies EPA that the 

RVP limit under section 211(h)(4) is contributing to an air pollution 

problem, EPA is to apply the more stringent RVP limit under paragraph 

(1) in lieu of the relaxed limit allowed under section 211(h)(4). These 

more stringent RVP limits are applied to blends of 9-10% ethanol. A 

straightforward reading of this provision is that Congress intended to 

provide States a meaningful and complete solution to emissions 

increases stemming from the relaxed RVP provisions in section 

211(h)(4), not a partial solution. If the deemed to comply provision is 

read as applying to ethanol blends above or below 9-10% ethanol, 

however, this provision would provide no relief for emissions from 

various ethanol blends different from 9-10% ethanol, including E15. 

There is no indication Congress intended such a partial and 

inconsistent solution. Both the text and legislative history of this 

provision indicate Congress viewed section 211(h)(5) as addressing the 

potential for air pollution problems from the relaxed RVP limit in 

section 211(h)(4), which applies to blends of 9-10% ethanol.

    In sum, EPA views these three provisions--the 1 psi waiver and the 

deemed to comply provision in section 211(h)(4), and the State relief 

provision in section 211(h)(5)--as related provisions that should be 

interpreted together in a way that harmonizes them and provides 

significance and a balanced meaning to each of them. EPA believes that 

this is reasonably done by viewing the 1 psi waiver provision in 

section 211(h)(4) as applying to blends of 9-10% ethanol; by viewing 

the deemed to comply provision as applying to the same subset of 9-10% 

ethanol blends, and not applying to blends above or below the range of 

9-10%; and by viewing the provision for relief to States in section 

211(h)(5) as applying to the same subset of 9-10% ethanol blends. This 

is consistent with the text and legislative history of the three 

provisions, which indicate that the RVP provisions in section 211(h)(4) 

are intended to work together to facilitate the use of ethanol blends 

of 9-10%, that the deemed to comply provision is not a free standing or 

separate provision that addresses fuels different from those covered by 

the 1 psi waiver, and that the provision for States in section 

211(h)(5) is intended to provide relief co-extensive with the RVP 

limits in section 211(h)(4). This interpretation harmonizes all three 

provisions, gives each of them significant meaning, avoids making any 

of the provisions meaningless, and reasonably balances the various 

interests Congress was addressing in these provisions--controlling the 

RVP of gasoline and ethanol blends in a way that facilitates the 

practical downstream blending of ethanol while also preserving the 

ability of States to address the increased emissions associated with a 

relaxed RVP limit for ethanol blends.

    Some commenters argued that section 211(h) should be interpreted 

such that E15 is eligible for the 1 psi waiver in section 211(h)(4), 

and that under section 211(h)(4) the 1 psi waiver applies to fuels that 

contain a minimum of 10% ethanol, while section 211(f)(4) sets the 

maximum ethanol content under the deemed to comply provision. None of 

the commenters discussed section 211(h)(5) or explained how their 

respective interpretations would interact with section 211(h)(5). For 

the reasons discussed above, EPA does not agree with the commenters' 

arguments. For a full discussion of the comments and EPA's response, 

see the Response to Comments document, which is in the docket for this 

rulemaking.



C. RVP and E15 Underground Storage Tank Transition



    In the NPRM, we pointed out the potential problems that could occur 

if a higher RVP E10 fuel (i.e., E10 fuel that took advantage of the 

statutory 1.0 psi RVP waiver) is commingled in underground storage 

tanks with a lower RVP E15 fuel (i.e., E15 fuel that met the summertime 

conventional gasoline RVP standard without the 1.0 psi RVP increase, 

since the statutory 1.0 psi RVP waiver is not applicable to E15, and 

that also complied with the condition of the partial waivers limiting 

the summertime volatility of E15 to 9 psi). Commingling of these fuels 

would typically be an issue when a retail station decides to transition 

from selling E10 to E15, or E15 to E10, during the summertime ozone 

season. In these circumstances, if the retail station does not 

completely remove all E10 from a tank before E15 is added to the tank 

(or E15 before E10 is added), the gasoline fuel remaining in the 

dispensing station tank would likely violate the applicable RVP 

standards as well as the 9 psi RVP condition of the E15 partial 

waivers. For example, if a quantity of E10 at 10.0 psi RVP is blended 

with a quantity of E15 at 9.0 psi RVP, the resulting blend would have 

an ethanol content somewhere above 10 vol% (but below 15 vol%). The 

resulting blend would also have an RVP above 9.0 psi. Since the blend 

is above 10 vol% ethanol, it would not qualify for the 1.0 psi waiver. 

It would also be subject to the 9 psi RVP condition of the partial 

waivers, since the waivers cover any gasoline-ethanol blend above 10 

vol% ethanol up to 15 vol% ethanol. In this way, commingling would 

likely result in fuel that does not comply with applicable RVP limits 

or the RVP condition of the partial waivers.

    As mentioned in the NPRM, section 211(t) of the Clean Air Act, 

adopted in the Energy Policy Act of 2005, allows retail stations to 

blend compliant reformulated gasoline batches of non-ethanol blended 

and ethanol-blended gasoline in storage tanks twice a year as long as 

the duration of the blending period is no longer than 10 consecutive 

calendar days. However, the authority granted to the Agency for the 

transition of fuels in underground storage tanks was specifically 

limited to the case of reformulated gasoline, and this provision does 

not authorize a change in the RVP standards for blending down of E10 

and E15 over time in non-reformulated gasoline areas. We sought comment 

on the issue of tank transition between E10 and E15 fuels and ways that 

the Agency could address this issue so that tank transition might be 

more easily accomplished.

    A related issue is whether to specifically disallow the commingling 

of E10 and E15 or of blendstocks produced specifically for blending E10 

and E15. In the NPRM we proposed a specific regulation that would 

prohibit combining ``any base gasoline or conventional blendstock for 

oxygenate blending intended for blending with E10 that took advantage 

of the 1 psi waiver applicable for 9-10 volume percent gasoline-ethanol 

blends with any gasoline or conventional blendstock for oxygenate 

blending intended for blending with E15, unless the resultant 

combination is designated, in its entirety, as an E10 blendstock for 

oxygenate blending''. Additionally, we proposed to prohibit combining 

``any gasoline-ethanol blend containing E10 that took advantage of the 

1 psi waiver applicable to 9-10 volume percent gasoline-ethanol blends, 

with any gasoline containing E0 or any gasoline blend containing E15''. 

(75 FR 68089, November 4, 2010). Such a prohibition would aid in 

preventing mixing that would result in gasoline in dispensing tanks 

that does not comply with the RVP standards due to tank transitions as 

described above.

    Regarding tank transition in reformulated gasoline areas and a 

possible commingling prohibition, one commenter stated that it opposed 

a specific commingling prohibition because existing rules already 

prohibit



[[Page 44436]]



application of the 1 psi RVP waiver to other than E10 and any tank 

transition from E10 to E15 would likely happen only once. The commenter 

further stated that if such a prohibition is necessary, it should apply 

only in summer months. Other commenters also opposed a commingling 

prohibition and generally stated that such a prohibition would create 

unnecessary difficulties in introducing E15 into commerce.

    As explained above, the 1.0 psi RVP waiver for conventional 

gasoline applies only to E10 blends, and it is already a violation of 

RVP standards to have an RVP higher than the standards for fuels not 

qualifying for the 1.0 psi RVP exemption, such as E15. Furthermore, it 

is correct that any prohibition against commingling, like the current 

RVP limitations, would apply only during the summertime ozone season. 

We also recognize that current regulatory requirements make it a 

violation to have higher RVP than allowed when commingling E10 and E15 

in retail tanks. However, we believe that specific commingling 

regulations can provide additional, useful directions and incentive not 

to blend E10 and E15 in a way that would produce summertime 

conventional gasoline that violates the applicable RVP standard (and 

the 9 psi RVP limitation of the partial waivers). The prohibition 

against combining gasoline or blendstocks for E10 and E15 production 

prior to blending makes it clear that such blending will result in a 

blendstock that will in turn result in an unlawful gasoline (unless it 

is only used to make E10). In addition, the prohibition against 

commingling of E15 with E10 blends, which would likely occur in a 

dispensing tank, will help prevent unintended commingling of the two 

blends in dispensing tanks. Regarding summertime transitions, the 

additional prohibition makes it clear that commingling these types of 

fuel without one or the other fuel being completely drawn down in the 

tank is, in fact, prohibited. We are therefore adopting the commingling 

prohibitions as proposed. The PTDs described elsewhere in today's final 

rule will help ensure that parties in the distribution chain are 

adequately aware of the fuel they are distributing and loading into 

underground dispensing tanks and will clearly aid parties in avoiding 

violations.

    Comments were received supporting the idea that relief should be 

granted to retail stations transitioning between E10 and E15. However, 

the only specific suggestion received was to apply the statutory 1 psi 

RVP waiver to E15. As discussed above, EPA interprets the relevant 

provisions of the Clean Air Act as authorizing the 1 psi RVP waiver 

only for gasoline-ethanol blends containing 9-10 vol% ethanol. In 

addition, we note that over the past several years most dispensing 

facilities with underground tanks have transitioned from E0 to E10 

without significant difficulties. Transitioning tanks between E0 and 

E10 presents the same practical challenges as transitioning between E10 

and E15 in terms of RVP compliance issues. Transitions between E0 and 

E10 have typically been accomplished by making the transition during 

the wintertime when the RVP compliance issue is not relevant, or during 

the summertime by drawing down the tank to effectively empty the tank 

prior to introducing the new fuel. These strategies should also be 

effective for transitioning to E15. For all of these reasons, we are 

not adopting any specific regulatory program for providing relief to 

retail stations in transitioning from E10 to E15.



D. Credit for RFG Downstream Oxygenate Blending



    As stated in the NPRM, refiners (or importers) of reformulated 

blendstock for oxygenate blending (RBOB) are permitted to take credit 

for downstream oxygenate blending when complying with RFG standards if 

certain conditions are met. 40 CFR 80.69. To do so, the refiner's or 

importer's RBOB must be accompanied by a PTD that specifies the type 

and amount of oxygenate that must be added. In addition, the refiner or 

importer must have direct oversight of the addition of the oxygenate 

or, in the alternative, a survey of all RFG areas supplied by the 

refiner(s) or importer(s) must be performed to show that the requisite 

amount of oxygenate is added as specified by the PTD. In either case, 

EPA requested comment regarding how credit for RFG downstream oxygenate 

blending should be dealt with in light of the potential introduction of 

E15 into the RFG marketplace.

    One commenter noted that PTDs and surveys should be sufficient to 

ensure that the requisite amount of oxygenate is added downstream so 

that the refiner can claim credit for the oxygenate addition when 

producing RBOB for RFG production.

    As pointed out above, the regulations at 40 CFR 80.69 already allow 

credit for RFG downstream oxygenate blending through either direct 

oversight or an oxygenate survey for RFG areas utilizing a specific 

amount and type of oxygenate for blending purposes. Both of these 

approaches can accommodate blending of E15 if such blending were to be 

utilized in adding oxygenate downstream to produce RFG. Importantly, 

when utilizing either of these approaches, the refiner or importer must 

specify in the PTD for the RBOB the type and amount of oxygenate that 

must be added, such that the oxygenate addition will produce RFG that 

meets applicable standards (such as benzene and VOC) that ``formed the 

basis for the refiner's or importer's compliance determination for 

these parameters.'' \31\ This would mean, for example, that if a 

refiner or importer wants to take credit for downstream blending of 

E15, they must either directly supervise the addition of E15 to their 

RBOB or conduct an appropriate survey to show that E15 has been added 

as directed in the PTD. Therefore, considering existing requirements 

such as direct oversight, surveys, and PTDs, we conclude that no 

regulatory change is needed regarding credit for RFG downstream 

oxygenate blending.

---------------------------------------------------------------------------



    \31\ 40 CFR 80.69(a)(10).

---------------------------------------------------------------------------



E. Compliance, Enforcement and Warranty



    We proposed liability and penalty provisions for the proposed 

misfueling mitigation measures similar to the liability and penalty 

provisions found in other EPA fuels regulations. Many commenters raised 

issues concerning liability for violations of the proposed misfueling 

mitigation measures and other potential consequences of the use of, or 

transition to, E15. According to a number of commenters, fuel providers 

are unlikely to sell E15 until a variety of different liability issues 

are resolved. Although EPA is not in a position to address all of the 

liability issues raised by commenters, in this section we address those 

within our jurisdiction and clarify the responsibilities of various 

parties, including fuel producers, distributors, retailers, product 

manufacturers and consumers, for compliance with Agency misfueling 

prohibitions and CAA vehicle and engine warranty and other requirements 

under the Act.

    In general, we believe the long-standing approach of EPA's fuels 

programs and vehicle, engine, and equipment emissions warranty 

regulations to assigning respective responsibilities for compliance 

with our regulations is also appropriate for E15. We expect the 

required label and other misfueling mitigation measures, as reinforced 

by a public outreach campaign, will minimize consumer use of E15 in 

vehicles, engines, and products not covered by the partial waiver 

decisions. The misfueling mitigation program should in turn minimize 

any liability that might arise



[[Page 44437]]



under the CAA or our regulations regarding misfueling with E15.

    With regard to other transition issues within EPA's jurisdiction, 

we are continuing to make progress in developing guidance for 

determining whether existing underground storage tank systems are 

compatible for storing E15. We also plan to work with stakeholders to 

monitor and facilitate efforts to address other transition issues 

involving state, local and other requirements.

1. Proposed Approach

    In the NPRM, we proposed specific prohibited acts for general 

misfueling mitigation purposes related to the distribution, sale, and 

use of gasoline containing greater than 10 vol% ethanol. We also 

proposed related liability and penalty provisions for noncompliance 

with the proposed prohibited acts. These proposed liability and penalty 

provisions included presumptive liability for parties in the fuel 

distribution system (consistent with presumptive liability provisions 

of other EPA fuels programs), affirmative defenses for liable parties, 

and penalties for violations.

    With respect to prohibited acts, we proposed that all fuel 

providers (producers, manufacturers, distributors, wholesale purchaser-

consumers, and retailers) would be prohibited from selling, introducing 

into commerce, or causing or allowing the sale or introduction into 

commerce of gasoline containing greater than 10 vol% ethanol into 

MY2000 and older light-duty motor vehicles, any heavy-duty gasoline 

vehicle, any motorcycle and all types of nonroad equipment. In 

addition, we proposed that fuel distributors who transport or store 

gasoline-ethanol blends, gasoline or blendstock for ethanol blending 

would be prohibited from increasing the ethanol content to exceed the 

value noted on the PTD. We also proposed that retailers and wholesale 

purchaser-consumers would be prohibited from dispensing E15 unless they 

comply with the dispenser labeling requirements. The final labeling and 

other misfueling mitigation requirements are discussed in section 

III.A. of this notice.

    The liability and penalty provisions discussed in the proposal are 

similar to the liability and penalty provisions found in other EPA fuel 

regulations. Specifically, EPA fuels programs generally include a 

liability scheme for violations of prohibited acts that involves a 

rebuttable presumption of liability in specified circumstances. Under 

this approach, liability is imposed on the party in the fuel 

distribution system that controls the facility where the violation 

occurred and those parties, typically upstream in the fuel distribution 

system from the initially listed party, whose prohibited activities 

could have caused the nonconformity to exist.\32\ We emphasized in the 

proposal that any person who commits a prohibited act, or causes 

another person to commit a prohibited act, would also be liable for a 

violation, so most parties in the chain of distribution would be 

subject to the rebuttable presumption of liability for committing 

prohibited actions or causing violations by other parties.\33\

---------------------------------------------------------------------------



    \32\ As noted in the preamble to the proposed rule, an 

additional type of liability, vicarious liability, is imposed on 

branded refiners under EPA's fuels programs.

    \33\ As noted previously in this preamble, consumers are among 

the parties subject to the prohibition on misfueling with E15.

---------------------------------------------------------------------------



    The presumptive liability approach for violations of prohibited 

acts in our fuels programs also includes affirmative defenses to 

prohibited acts. Generally, affirmative defenses require a 

demonstration of all of the following: (1) The fuel provider did not 

commit or cause the violation; (2) the fuel provider has PTDs 

indicating the fuel was in compliance at its facility; and (3) except 

for retailers and wholesale purchaser-consumers, the fuel provider 

conducted a quality assurance program. In the proposal, we stated that 

if a consumer was liable for introducing gasoline with an ethanol 

content greater than 10 vol% into a vehicle, engine, or product not 

covered by the E15 partial waivers, then a self-service retailer would 

typically not be held liable for the consumer misfueling if the 

retailer's dispensers were labeled appropriately and did not condone or 

facilitate the misfueling.

    While the NPRM proposed general misfueling mitigation provisions, 

it did not specifically address emissions warranties for vehicles, 

engines, and equipment or the effect of E15 use on the warranties. 

However, warranties are addressed by other EPA regulations and the 

effect of E15 use on the warranties is no different than the effect of 

other legal fuels on the warranties. EPA regulations require emission-

related parts to be warranted that they are free from defects in 

materials and workmanship which cause failure to meet emissions 

standards and that at the time of sale the vehicles are designed, 

built, and equipped in compliance with EPA's regulations. (See CAA 

section 207(a).) There is also a performance warranty that applies in 

certain cases for the short testing conducted by state inspection and 

maintenance programs. (See CAA section 207(b).) The emissions warranty 

for light-duty motor vehicles is typically two years or 24,000 miles, 

except for the warranty for emission control computers and catalytic 

converters, which is eight years or 80,000 miles. Other vehicles and 

equipment may have warranties of a different duration, or warranties 

measured in hours of operation. Warranties may be made conditional on 

the use of a specified fuel as long as it is available, and the 

condition is appropriately noted in the owner's manual. (See e.g. 40 

CFR. 85.2104, 1068.115). Despite the condition, however, manufacturers 

may not deny a warranty based on the use of a different fuel if that 

fuel did not cause the problem for which the warranty claim is made.

2. Consideration of Comments

a. Prohibited Acts and Liability Provisions

    Commenters suggested that the proposed regulations do not, but 

should, prohibit intentional misfueling of vehicles with E15. We 

believe that the proposed regulations did include this prohibition. 

Specifically, the proposed regulations would prohibit consumer 

misfueling, whether intentional or not, and we are retaining that 

provision in today's final rule. Thus, today's final rule prohibits any 

person from introducing or causing the introduction of gasoline 

containing greater than 10 vol% ethanol into vehicles, engines, and 

products not covered by the E15 partial waivers, and prohibits causing 

or allowing the introduction of gasoline containing greater than 10 

vol% ethanol into such vehicles, engines, and products.

    Concerning retailers' liability, some commenters suggested that 

where a retailer complies with the E15 labeling requirements, the 

retailer should be completely immune from liability in the event that 

misfueling by consumers occurs. Other commenters suggested that proper 

labeling should shield retailers from liability absent evidence that 

the retailer encouraged or facilitated the misfueling. In contrast, 

still other commenters suggested that retailers be required to actively 

assess if misfueling is in fact occurring at self-serve pumps. We do 

not believe that retailers should be provided with blanket immunity 

based on labeling alone. The obligation of a retailer is to not misfuel 

and to not cause misfueling. Misfueling may occur in or as a result of 

varied circumstances, making a bright line provision--such as the 

suggested blanket immunity if dispensers are properly labeled--

problematic. For



[[Page 44438]]



example, proper labeling by a retailer that is located at a marina and 

that sells fuel almost exclusively for use in boats may not be enough 

to avoid liability for misfueling of boats with E15. The variety of 

circumstances in which fueling occurs also do not warrant a blanket 

requirement of some specific degree of active oversight by the 

retailer. We therefore believe that it is appropriate to continue to 

apply the liability provisions of the misfueling mitigation regulations 

generally as proposed. The provisions finalized today are substantially 

the same as the liability provisions of other regulations governing the 

sale and use of fuels governed by the Act, and we believe that those 

provisions are effective. Like those regulations, today's final 

regulations specify which regulated parties can be held liable for 

infractions of the requirements, and allows assertion of defenses to 

such liability if a party meets specified conditions. For retailers, as 

well as other regulated parties, one of those conditions is that the 

prohibited act was not committed or caused by the party.

    Commenters suggested that EPA specify in the regulations that a 

retailer did not ``cause'' misfueling at properly labeled pumps if the 

retailer did not condone or facilitate the misfueling. EPA does not 

believe that adding such a specification to the regulation is merited, 

for the reasons discussed above. If a misfueling violation does occur, 

we will assess all of the circumstances pertaining to the violation to 

assess whether a defense of lack of causation is valid, and if not, the 

severity of the violation. EPA will take into consideration all actions 

taken by the retailer to avoid misfueling. For the reasons discussed in 

Section III of this notice, today's rule requires that several specific 

misfueling mitigation measures be implemented and does not require that 

additional measures be employed at this time. However, retailers may 

choose to employ a variety of other measures, such as obtaining 

confirmation that the consumer desires to dispense E15 or equipping 

pumps that dispense only E15 with a distinctly colored nozzle hand 

warmer, as they consider appropriate for their circumstances. A party 

does not need to employ such measures in order to establish an 

affirmative defense to a presumption of liability, but EPA will 

consider any additional measures that a party has taken in assessing 

all of the circumstances that pertain to a violation.

    Similarly, commenters also suggested that where a branded supplier 

of E15 complies with the labeling and other provisions, and has 

implemented a program notifying its retailers of the requirements of 

the law, it should be immune from liability if misfueling does occur. 

Based on EPA's experience with other fuels programs, EPA does not 

believe that merely notifying retailers about the requirements should 

immunize branded suppliers from liability for violations at retailers. 

As a result, EPA is not changing those defenses in the rule promulgated 

today. However, for a misfueling violation by a consumer at a branded 

retailer, EPA will consider all of the circumstances pertaining to the 

violation to assess whether a branded refiner's defense of lack of 

causation is valid, and if not, the severity of the violation.

b. Emissions Warranty Issues for Vehicles, Engines, and Equipment

    Commenters expressed concern that motor vehicle manufacturers might 

void the emissions warranty of motor vehicles based on use of E15 and/

or that warranty claims will increase in number as a result of E15 use. 

Based on the test data and analysis on which the E15 partial waivers 

were based, EPA believes that voiding a warranty claim will occur 

infrequently if at all for MY2001 and newer light-duty vehicles (i.e., 

those for which the E15 partial waivers allow E15 to be sold for use) 

fueled with E15. For light-duty and other motor vehicles not covered by 

the partial waivers, EPA notes that to avoid honoring an emissions 

warranty, a manufacturer must not only condition the warranty on use of 

a fuel other than E15, it must also must show that use of E15 was 

relevant to the reason that the motor vehicle failed emissions testing. 

EPA regulations for nonroad equipment impose similar conditions on 

voiding warranties for nonroad equipment. In light of the misfueling 

prohibition and labeling requirements adopted in today's rule, we 

expect that consumers will have both the information and incentive they 

need to avoid misfueling with E15 and any damage to emission controls 

that misfueling could cause.

    Commenters also stated that imposing a burden on manufacturers to 

show that E15 was the cause of a failure is unfair, and that 

manufacturers will be required to report more defects to EPA. 

Manufacturers currently make such determinations under the warranty 

provisions, as well as the defect reporting provisions (see 40 CFR 

85.1901 et seq., 1068.501). As with other emissions warranty related 

circumstances, manufacturers are in the best position to investigate 

and determine the cause of defects and emissions failures of their 

vehicles or equipment, and they are best equipped to make 

determinations regarding whether a warranty should be honored. We are 

interested in learning about any defects, or investigations of defects 

that are required to be reported, including those involving defects 

that may be related to use of E15, including misfueling with E15. 

However, we note that EPA will only order a recall based on a 

determination that a substantial number of vehicles would fail to meet 

their emissions standards when the motor vehicle is properly maintained 

and used (see e.g. 40 CFR 85.1802(a)).

c. Other Issues Outside of CAA Jurisdiction

    Commenters expressed concern that consumers will make monetary 

claims against E15 retailers for damage to their vehicles or equipment 

related to E15 use. They asked that EPA indemnify retailers against 

such claims. As noted above, EPA does not believe that such damage will 

occur when E15 is properly used. In addition, the provisions adopted 

today provide a strong incentive for all parties, including consumers, 

to avoid misfueling. We also plan to work with stakeholders on an 

outreach effort, which should further limit misfueling incidences. 

However, we have no authority to, and do not intend to, address issues 

of liability that might be raised in litigation between private 

parties. EPA is only addressing issues relevant to its exercise of 

authority under the Clean Air Act. It is also worth noting that fuel 

providers are not required to make or offer E15 and do so of their own 

choosing.

    Commenters expressed concern that E15 misfueling could result in 

personal injury to consumers, leading to safety recalls by other 

Federal agencies, among other things. They also suggested that EPA 

should address materials compatibility and safety issues regarding E15 

and dispensing equipment and storage tanks. Other agencies act under 

their own authorities, and EPA is not in a position to address in this 

rule actions that may or may not be taken by other agencies in the 

future. As noted previously, EPA is developing final guidance for 

determining the compatibility of existing underground storage tanks 

with E15. The issues of materials compatibility and safety issues 

regarding dispensing equipment are addressed by state and/or local 

requirements.

3. Final Requirements

    With respect to compliance and enforcement associated with 

prohibited acts to mitigate misfueling, today's final



[[Page 44439]]



rule includes liability requirements that are consistent with the 

liability requirements of other EPA fuels programs--retailers and other 

parties are presumptively liable for consumer misfueling and other 

violations, but parties are not liable if they can show they did not 

cause the misfueling. Consumers are also liable for misfueling their 

own vehicles, engines or products.

    Regarding vehicle, engine, and equipment emissions warranties, 

under EPA warranty regulations, manufacturers may condition an 

emissions warranty on the use of a specific fuel but they may not deny 

a warranty on the use of a different fuel if that fuel did not cause 

problems.



F. Technical Basis for the Rule



    These misfueling mitigation regulations are issued under CAA 

section 211(c) in order to prevent or minimize the emission increases 

that would occur if E15 is used in vehicles, engines, and products for 

which the waiver has been denied, specifically, MY2000 and older motor 

vehicles and all heavy-duty gasoline engines and vehicles, motorcycles 

and nonroad products. As described in the NPRM and E15 partial waiver 

decisions, our assessment of the potential emission consequences of E15 

use indicates that the emission-related components of MY2001 and newer 

light-duty motor vehicles are durable for use on gasoline-ethanol 

blends up to E15. This conclusion is based on the results of DOE's 

Catalyst Study and other relevant test programs, as well as the 

Agency's engineering assessment of advances in motor vehicle technology 

(primarily control of the air-to-fuel ratio matched with advancements 

in catalyst formulations) and materials that have taken place in 

response to a series of important exhaust and evaporative emission 

requirements since MY2000 and in-use experience with E10. These 

requirements include the National Low Emission Vehicle and Tier 2 motor 

vehicle emission standards, Supplemental Federal Test Procedure 

compliance requirements, in-use durability requirements (required by 

the Compliance Assurance Program of 2000), enhanced evaporative 

emission standards, and E10 evaporative durability requirements.

    Unlike for MY2001 and newer motor vehicles, there is very little, 

if any, test data with respect the effect of E15 use in MY2000 and 

older light-duty motor vehicles and all heavy-duty gasoline engines and 

vehicles, motorcycles, and nonroad products. In addition, our 

engineering assessment for these vehicles, engines, and products 

identifies a number of emission-related concerns with the use of E15. 

For motor vehicles and heavy-duty gasoline engines and vehicles, these 

concerns include the potential for catalyst deterioration or catalyst 

failure, as well as materials compatibility issues that could lead to 

extremely elevated exhaust and evaporative emissions. For motorcycles 

and nonroad products, the misfueling concerns include the potential for 

elevated exhaust and evaporative emissions, as well as the potential 

for emissions impacts related to engine failure from overheating. As 

motorcycles and nonroad products have not been regulated as long as 

motor vehicles, and have much more diverse applications, they have not 

benefitted from the same advancements in technology as motor vehicles 

and could experience combustion and materials compatibility problems 

leading to increased emissions if operated on E15.

    Based on these concerns, we proposed to prohibit the use of 

gasoline-ethanol blends greater than 10 vol% in MY2000 and older motor 

vehicles, and all heavy-duty gasoline engines and vehicles, 

motorcycles, and nonroad products and invited comment on the 

prohibition's applicability to those vehicles, engines, and products. 

While some commenters stated that we should approve E15 for all motor 

vehicles, those comments pertain to the waiver decisions. We received 

no comments on our emissions-related technical justification for the 

proposed misfueling mitigation measures under CAA section 211(c).

    It is worth noting that while the labeling requirements covered in 

Section III apply to E15, the prohibitions discussed in this section 

apply to all gasoline-ethanol blends greater than 10 vol% (e.g., 20 

vol% ethanol). This is consistent with our engineering assessment 

discussed in the NPRM which was based, in part, on enleanment of the 

air-to-fuel ratio. Ethanol enleans the air-to-fuel ratio which leads to 

increased exhaust gas temperatures and therefore potentially 

incremental deterioration of emission control hardware and performance 

over time. This enleanment stems from the fact that ethanol contains 

oxygen and consequently requires a lower air-to-fuel ratio to achieve 

the stoichiometric (ideal) mixture for combustion. Vehicles, engines, 

and equipment designed to operate on gasoline will therefore run leaner 

when operating on gasoline-ethanol blends. Older motor vehicles, heavy-

duty gasoline engines and vehicles, motorcycles, and especially nonroad 

products cannot fully compensate for the change in the stoichiometric 

air-to-fuel ratio as ethanol concentration increases. Over time, this 

enleanment caused by ethanol may lead to thermal degradation of the 

emissions control hardware and ultimately catalyst failure. Higher 

ethanol concentration will exacerbate the enleanment effect in these 

vehicles, engines, and equipment and therefore increase the potential 

of thermal degradation and risk of catalyst failure. In addition to 

enleanment, ethanol can cause materials compatibility issues which may 

lead to other component failure and ultimately exhaust and/or 

evaporative emission increases. Materials compatibility with ethanol is 

time, condition (e.g., temperature, pressure), and concentration 

dependent. Therefore, for older motor vehicles, heavy-duty gasoline 

engines and vehicles, motorcycles, and nonroad products, the potential 

for materials compatibility issues increases with higher ethanol 

concentration. We received no comments that the misfueling prohibition 

should be narrowed to E15.

    It is not possible to precisely quantify the frequency at which 

these vehicles, engines, and products might experience problems with 

the use of E15. However, we believe that emission-related problems 

could potentially occur with enough frequency that the resulting 

emissions increases that would be avoided by avoiding misfueling would 

outweigh the relatively low cost imposed by the required misfueling 

mitigation regulations. The potential emission increases from 

misfueling warrant today's action, even if a very low percentage of 

vehicles, engines, and products experiences problems. As discussed 

above, the savings that would be achieved by avoiding misfueling also 

far outweigh the costs of this rule. Therefore, we are finalizing the 

misfueling mitigation measures we proposed with some refinements to 

make them more effective and/or less burdensome.



G. The Effect of the Rule on the Misfueling Mitigation Conditions of 

the Partial Waivers



    In the NPRM, the Agency noted that some of the proposed misfueling 

safeguards parallel the conditions of the partial waiver decisions, and 

were expected to be a more efficient way to help ensure that the 

conditions of the waiver were met.\34\ One commenter



[[Page 44440]]



suggested that if the proposed misfueling mitigation measures were 

adopted, EPA should remove or alter the misfueling mitigation 

conditions of the partial waivers to avoid placing requirements on 

industry that would be duplicative and unnecessary. Specifically, the 

commenter stated that fuel and fuel additive manufacturers should not 

have to submit plans to EPA that explain how a fuel or fuel additive 

manufacturer would meet the misfueling mitigation conditions of the 

partial waivers.

---------------------------------------------------------------------------



    \34\ 75 FR 68044, 68046 (November 4, 2010). The partial waiver 

decisions require that fuel and fuel additive manufacturers (i.e. 

gasoline producers/importers, ethanol producers/importers, and 

oxygenate blenders) submit to EPA a plan prior to introduction of 

E15 into commerce that demonstrates how the fuel or fuel additive 

manufacturer will implement reasonable measures to ensure that 

misfueling does not occur in vehicles and engines not approved for 

use of E15. Reasonable measures to ensure against misfueling 

include, but are not limited to, fuel pump labeling, proper 

documentation of ethanol content on PTDs, and the implementation of 

an ongoing survey program, in addition to any other reasonable 

measures EPA determines are appropriate. See 75 FR 68149-68150.

---------------------------------------------------------------------------



    In response to the commenter's suggestion, it is important to 

clarify that the purpose of this rule is to mitigate misfueling with 

E15 that lawfully has been introduced into commerce under the terms of 

the waiver. The waiver conditions, and implementation of the waiver 

conditions, address a closely related but different issue--when, how 

and by whom E15 can be introduced into commerce under the partial 

waiver decisions. This rule only addresses the issue of mitigating 

misfueling in the event E15 is lawfully introduced into commerce under 

the partial waivers, and is issued under EPA's authority under section 

211(c). In this rulemaking EPA did not propose and is not taking any 

action under section 211(f) with respect to the partial waivers that 

were previously issued. For example, in this rulemaking EPA is not 

modifying any of the conditions of the waivers, or making any decisions 

as to whether they have been met. Decisions related to compliance with 

the conditions on the waivers will be made separate and apart from this 

rulemaking.

    EPA recognizes that one result of today's rule is that it will 

likely be easier for parties to show compliance with the misfueling 

mitigation conditions of the partial waivers. However, today's rule 

does not replace or supplant the waiver conditions themselves. The 

partial waivers allow E15 to be lawfully introduced into commerce for 

use in MY2001 and newer light-duty motor vehicles if certain conditions 

are met. Fuel and fuel additive manufacturers that desire to make and 

sell E15 must do so in compliance with the waivers' conditions, which 

include submission of a misfueling mitigation plan that provides, among 

other things, for E15 pump labels, PTDs indicating ethanol content and 

an ongoing survey of implementation of E15 content and labeling 

requirements. Today's rule will likely simplify compliance with many 

aspects of the required plan. For example, a fuel or fuel additive 

manufacturer may decide to reference the labeling and PTD requirements 

of the rule as part of its plan to meet the counterpart conditions of 

the waivers. EPA also expects that parties will be able to submit a 

single survey plan that will meet both the waiver condition as well as 

the separate regulatory requirements related to the survey adopted in 

this rule. Since the partial waivers and the rule require that survey 

plans be submitted to EPA for approval, EPA expects that compliance 

with the survey requirements of the waiver conditions and the rule will 

be accomplished with a single submission and approval process, covering 

both this rule and the waiver condition.

    EPA believes that the misfueling mitigation plans submitted under 

the partial waivers will be especially useful when E15 is first 

introduced into the market. For instance, many downstream parties may 

not be aware of the new requirements that apply to E15 (e.g., E15 pump 

labeling) early in any transition to E15. The first plans under the 

partial waivers may thus usefully address how the fuel or fuel additive 

manufacturer will work with downstream parties to ensure that the 

misfueling mitigations measures adopted today are properly implemented. 

Similarly, it may be appropriate for an ethanol manufacturer registered 

under 40 CFR Part 79 to sell ethanol for use in manufacturing E15 to 

address in its plan how parties that might use its product to make E15 

will be informed of the misfueling mitigation requirements to which 

those parties would become subject under this rule (e.g., labeling, 

PTDs) if they make E15. Such parties would include, for example, 

businesses that blend ethanol into gasoline to produce E15.



H. E15 Emissions and Anti-Backsliding



    In the NPRM and in the partial waiver decisions, EPA discussed the 

relationship between the ethanol content of a gasoline-ethanol blended 

fuel and NOx emissions. EPA concluded that, in general, as 

ethanol concentrations in gasoline increase, so do NOx 

emissions. The Agency received several comments that argued that 

potential NOx emission increases from E15 use would add to 

the formation of ground-level ozone and potentially adversely affect 

public health. Additionally, some commenters noted that such 

NOx increases would add to the challenge some states and 

cities face in meeting the current national air quality standards for 

ozone and that EPA should take action to ameliorate potential adverse 

emissions effects from E15 use. Although such action is outside of the 

scope of today's rulemaking, the Agency has been performing analysis 

needed to support the anti-backsliding analysis required under the 

Energy Independence and Security Act of 2007. We are now in the process 

of assessing possible control measures to offset the potential 

increases in ozone and particulate matter that are expected to result 

from the increased use of renewable fuels required by the Energy 

Independence and Security Act of 2007 and in response to the May 21, 

2010, Presidential Memorandum Regarding Fuel Efficiency Standards. 

(NOx emissions contribute to the formation of both 

pollutants.) We will incorporate the results of our analysis under this 

assessment in a proposal on new motor vehicle and fuel control 

measures.



V. Statutory and Executive Order Reviews



A. Executive Order 12866: Regulatory Planning and Review and Executive 

Order 13563: Improving Regulation and Regulatory Review



    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 

action is a ``significant regulatory action.'' This action may raise 

novel legal or policy issues. Accordingly, EPA submitted this action to 

the Office of Management and Budget (OMB) for review under Executive 

Orders 12866 and 13563 (76 FR 3821, January 21, 2011) and any changes 

made in response to OMB recommendations have been documented in the 

docket for this action.



B. Paperwork Reduction Act



    This rule contains new information requirements which will be 

submitted for approval to the Office of Management and Budget (OMB) 

under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. These 

information collection requirements are not enforceable until OMB 

approves them.

    This final rule contains information collection provisions that 

permit a party to apply for approval of an alternative or additional 

E15 label. We anticipate that this provision will be utilized by some 

refiners for their branded retailers, as well as by some individual 

retailers and wholesale purchaser-consumers.

    A party may elect to satisfy the survey requirements of this rule 

individually



[[Page 44441]]



rather than through using a nationwide survey option (i.e., they may 

elect ``Survey Option 1'' as described above in section III.C). In such 

circumstances, the individual information collection requirements 

associated with ``Survey Option 1'' will apply. Parties that may be 

subject to survey information collection requirements include gasoline 

refiners, gasoline and ethanol importers, gasoline and ethanol blenders 

(including terminals and carriers), and ethanol producers.

    Under the terms of the E15 partial waiver, fuel and fuel additive 

manufacturers must submit a written plan to EPA for approval.\35\ The 

plan must include provisions designed to prevent misfueling. The plan 

must be submitted by all fuel and fuel additive manufacturers, 

regardless of whether a party elects ``Survey Option 1'' (individual) 

or ``Survey Option 2'' (nationwide). Parties that may be subject to 

this information collection item may include gasoline refiners, 

gasoline and ethanol importers, gasoline and ethanol blenders 

(including terminals and carriers), and ethanol producers.

---------------------------------------------------------------------------



    \35\ 75 FR 68094, 68149-68150 (November 4, 2010).

---------------------------------------------------------------------------



    This rule contains provisions related to product transfer documents 

(PTDs). Parties upstream of the retail station or wholesale purchaser-

consumer will be required to develop and program new codes and 

statements for PTDs. These codes will reflect the ethanol content, as 

well as the Reid Vapor pressure (RVP), as described in section III.B. 

Parties subject to this one time burden include gasoline refiners, 

gasoline and ethanol importers, and gasoline and ethanol blenders 

(including terminals and carriers).

    In addition to the one time burden of establishing/programming 

codes and statements for PTDs, parties will be required to apply the 

new codes and statements to PTDs as part of the normal course of 

business. Typically, refiners and wholesale purchaser-consumers who are 

not acting as blenders merely accept PTDs given to them by upstream 

parties. The following parties may have the burden of applying codes 

and statements: gasoline refiners, gasoline and ethanol importers, 

gasoline and ethanol blenders (including terminals and carriers).

    EPA estimates that there will be a total of 6,211 respondents, 

submitting a total of 44,010,211 responses annually. We estimate an 

annual total of 37,350 hours for all respondents and responses. The 

total annual cost of this information collection request is estimated 

at $4,102,524.

    We estimate that the average annual burden per respondent is six 

(6) hours and that the average annual cost per respondent is $661. We 

estimate an average of .000849 hours per response. (It should be noted 

that the reason for this short average time per response is that nearly 

all of the responses will take approximately one second and represent 

the time it takes to apply an automated code or statement to a PTD.)

    Burden means the total time, effort, or financial resources 

expended by persons to generate, maintain, retain, or disclose or 

provide information to or for a Federal agency. This includes the time 

needed to review instructions; develop, acquire, install, and utilize 

technology and systems for the purposes of collecting, validating, and 

verifying information, processing and maintaining information, and 

disclosing and providing information; adjust the existing ways to 

comply with any previously applicable instructions and requirements; 

train personnel to be able to respond to a collection of information; 

search data sources; complete and review the collection of information; 

and transmit or otherwise disclose the information. An agency may not 

conduct or sponsor, and a person is not required to respond to, a 

collection of information unless it displays a currently valid OMB 

control number. The OMB control numbers for EPA's regulations are 

listed in 40 CFR part 9 and 48 CFR chapter 15.



C. Regulatory Flexibility Act



    The Regulatory Flexibility Act (RFA) generally requires an agency 

to prepare a regulatory flexibility analysis of any rule subject to 

notice and comment rulemaking requirements under the Administrative 

Procedure Act or any other statute unless the agency certifies that the 

rule will not have a significant economic impact on a substantial 

number of small entities. Small entities include small businesses, 

small organizations, and small governmental jurisdictions.

    For purposes of assessing the impacts of today's rule on small 

entities, small entity is defined as: (1) A small business as defined 

by the Small Business Administration's (SBA) regulations at 13 CFR 

121.201; (2) a small governmental jurisdiction that is a government of 

a city, county, town, school district or special district with a 

population of less than 50,000; and (3) a small organization that is 

any not-for-profit enterprise which is independently owned and operated 

and is not dominant in its field.

    After considering the economic impacts of today's final rule on 

small entities, I certify that this action will not have a significant 

economic impact on a substantial number of small entities. The small 

entities directly regulated by this final rule are petroleum refiners 

and importers, ethanol producers, ethanol blenders, gasoline terminals, 

gasoline stations with convenience stores, and other gasoline stations. 

While there are small entities in each of these market sectors as 

discussed in Section III.F., the cost impact on any particular entity 

is expected to be a tiny fraction of annual revenues.



D. Unfunded Mandates Reform Act



    This rule does not contain a Federal mandate that may result in 

expenditures of $100 million or more for State, local, and Tribal 

governments, in the aggregate, or the private sector in any one year. 

The total annual cost is expected to be $3.64 million. Thus, this rule 

is not subject to the requirements of sections 202 or 205 of UMRA.

    This rule is also not subject to the requirements of section 203 of 

UMRA because it contains no regulatory requirements that might 

significantly or uniquely affect small governments. This action 

primarily affects the private sector, specifically petroleum refiners 

and importers, ethanol producers, ethanol blenders, gasoline terminals, 

gasoline stations with convenience stores, and other gasoline stations.



E. Executive Order 13132 (Federalism)



    This action does not have federalism implications. It will not have 

substantial direct effects on the States, on the relationship between 

the national government and the States, or on the distribution of power 

and responsibilities among the various levels of government, as 

specified in Executive Order 13132. Any preemption of State or local 

controls under section 211(c)(4)(A), based on issuance of this rule 

under section 211(c)(1), would only apply to State or local controls 

adopted for purposes of motor vehicle emissions control. This rule will 

be implemented at the Federal level and impose compliance costs only on 

petroleum refiners and importers, gasoline stations with convenience 

stores, and other gasoline stations. Thus, Executive Order 13132 does 

not apply to this action.

    In the spirit of Executive Order 13132, and consistent with EPA 

policy to promote communications between EPA and State and local 

governments, EPA specifically solicited comment on the proposed action 

from State and local officials. The Agency did not receive any comments 

from states or local governments that cited a concern over state 

preemption or federalism.



[[Page 44442]]



F. Executive Order 13175



    This action does not have tribal implications, as specified in 

Executive Order 13175 (65 FR 67249, November 9, 2000). This rule will 

be implemented at the Federal level and impose compliance costs only on 

petroleum refiners, importers, oxygenate blenders, gasoline stations 

with convenience stores, and other gasoline stations. Thus, Executive 

Order 13175 does not apply to this action.



G. Executive Order 13045: Protection of Children From Environmental 

Health Risks and Safety Risks



    EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as applying 

only to those regulatory actions that concern health or safety risks, 

such that the analysis required under section 5-501 of the EO has the 

potential to influence the regulation. This action is not subject to EO 

13045 because it does not establish an environmental standard intended 

to mitigate health or safety risks.



H. Executive Order 13211: Actions Concerning Regulations That 

Significantly Affect Energy Supply, Distribution, or Use



    This action is not a ``significant energy action'' as defined in 

Executive Order 13211 (66 FR 28355 (May 22, 2001)), because it is not 

likely to have a significant adverse effect on the supply, 

distribution, or use of energy. This final rule has a labeling 

requirement, a prohibition against the use of gasoline containing more 

than 10 vol% ethanol in vehicles, engines and equipment not covered by 

the partial waiver decisions, a PTD requirement; and a survey 

requirement.

    There is no cost for the prohibition. The cost of the label is 

estimated at $5 per year per service station. This is a tiny fraction 

of the station's annual sales, and is not expected to significantly 

affect energy distribution. The cost of the PTD requirement is 

estimated at $0.45 million per year. This cost is a one-time cost to 

reformat PTDs amortized over 15 years; any additional costs are 

expected to be insignificant. The total cost of the survey requirements 

is estimated to be $2.15 million per year. The projected total cost of 

the final provisions is $3.64 million per year (see section IV for a 

more detailed discussion of these estimated costs). These costs are not 

expected to increase the cost of energy production or distribution in 

excess of one percent. Therefore, this final action is not expected to 

have a significant adverse energy effect.



I. National Technology Transfer and Advancement Act



    Section 12(d) of the National Technology Transfer and Advancement 

Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272 note) 

directs EPA to use voluntary consensus standards in its regulatory 

activities unless to do so would be inconsistent with applicable law or 

otherwise impractical. Voluntary consensus standards are technical 

standards (e.g., materials specifications, test methods, sampling 

procedures, and business practices) that are developed or adopted by 

voluntary consensus standards bodies. NTTAA directs EPA to provide 

Congress, through OMB, explanations when the Agency decides not to use 

available and applicable voluntary consensus standards.

    This action does not involve technical standards. Therefore, EPA 

did not consider the use of any voluntary consensus standards.



J. Executive Order 12898: Federal Actions To Address Environmental 

Justice in Minority Populations and Low-Income Populations



    Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes 

Federal executive policy on environmental justice. Its main provision 

directs Federal agencies, to the greatest extent practicable and 

permitted by law, to make environmental justice part of their mission 

by identifying and addressing, as appropriate, disproportionately high 

and adverse human health or environmental effects of their programs, 

policies, and activities on minority populations and low-income 

populations in the United States.

    EPA has determined that this final rule will not have 

disproportionately high and adverse human health or environmental 

effects on minority or low-income populations because it increases the 

level of environmental protection for all affected populations without 

having any disproportionately high and adverse human health or 

environmental effects on any population, including any minority or low-

income population. This action would affect all gasoline stations that 

choose to sell E15 and therefore will not affect any particular area 

disproportionately.



K. Congressional Review Act



    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 

Small Business Regulatory Enforcement Fairness Act of 1996, generally 

provides that before a rule may take effect, the agency promulgating 

the rule must submit a rule report, which includes a copy of the rule, 

to each House of the Congress and to the Comptroller General of the 

United States. EPA will submit a report containing this rule and other 

required information to the U.S. Senate, the U.S. House of 

Representatives, and the Comptroller General of the United States prior 

to publication of the rule in the Federal Register. A Major rule cannot 

take effect until 60 days after it is published in the Federal 

Register. This action is not a ``major rule'' as defined by 5 U.S.C. 

804(2). This rule will be effective August 24, 2011.



VI. Legal Authority and Judicial Review



A. Legal Authority



    As explained above, we are finalizing the misfueling mitigation 

measures pursuant to our authority under CAA section 211(c)(1). This 

section gives EPA authority to ``control or prohibit the manufacture, 

introduction into commerce, offering for sale, or sale'' of any fuel or 

fuel additive (A) Whose emission products, in the judgment of the 

Administrator, cause or contribute to air pollution ``which may be 

reasonably anticipated to endanger public health or welfare'' or (B) 

whose emission products ``will impair to a significant degree the 

performance of any emission control device or system which is in 

general use, or which the Administrator finds has been developed to a 

point where in a reasonable time it would be in general use'' were the 

fuel control or prohibition adopted. In Section VII \36\ of the 

proposed rule, we explained how under section 211(c)(1), EPA may adopt 

a fuel control if at least one of the two criteria above is met. We 

also explained that we were proposing the misfueling mitigation 

measures based on both of these criteria. We stated that under section 

211(c)(1)(B), we believed that E15 would significantly impair the 

emission control systems used in MY2000 and older light-duty motor 

vehicles, heavy-duty gasoline engines and vehicles, highway and off-

highway motorcycles, and all nonroad products. This led to our 

conclusion that under section 211(c)(1)(A), the likely result would be 

increased HC, CO and NOX emissions when these particular 

engines, vehicles and nonroad products use E15.

---------------------------------------------------------------------------



    \36\ Section VII. ``What is our legal authority for proposing 

these misfueling mitigation measures?'' 75 FR 68044, 68081 (November 

4, 2010).

---------------------------------------------------------------------------



    EPA received no comments on our analysis in Section VII during the 

public comment period. Therefore, EPA is finalizing these misfueling 

mitigation measures under our authority in section



[[Page 44443]]



211(c)(1). We fully include by reference our analysis in Section VII of 

the proposed rule as our basis for doing so since our rationale is the 

same for this final action.



B. Judicial Review



    Under section 307(b)(1) of the Clean Air Act (CAA), judicial review 

of these final rules is available only by filing a petition for review 

in the United States Court of Appeals for the District of Columbia 

Circuit by September 23, 2011. Under section 307(b)(2) of the CAA, the 

requirements established by these final rules may not be challenged 

separately in any civil or criminal proceedings brought by EPA to 

enforce these requirements.

    Section 307(d)(7)(B) of the CAA further provides that ``[o]nly an 

objection to a rule or procedure which was raised with reasonable 

specificity during the period for public comment (including any public 

hearing) may be raised during judicial review.'' This section also 

provides a mechanism for us to convene a proceeding for 

reconsideration, ``[i]f the person raising an objection can demonstrate 

to the EPA that it was impracticable to raise such objection within 

[the period for public comment] or if the grounds for such objection 

arose after the period for public comment (but within the time 

specified for judicial review) and if such objection is of central 

relevance to the outcome of the rule.'' Any person seeking to make such 

a demonstration to us should submit a Petition for Reconsideration to 

the Office of the Administrator, U.S. EPA, Room 3000, Ariel Rios 

Building, 1200 Pennsylvania Ave., NW., Washington, DC 20460, with a 

copy to both the person(s) listed in the preceding FOR FURTHER 

INFORMATION CONTACT section, and the Associate General Counsel for the 

Air and Radiation Law Office, Office of General Counsel (Mail Code 

2344A), U.S. EPA, 1200 Pennsylvania Ave., NW., Washington, DC 20460.



List of Subjects in 40 CFR Part 80



    Environmental protection, Air pollution control, Fuel additives, 

Diesel, Gasoline, Imports, Labeling, Motor vehicle pollution, 

Penalties, Reporting and recordkeeping requirements.



    Dated: June 23, 2011.

Lisa P. Jackson,

Administrator.



    For the reasons set forth in the preamble, 40 CFR part 80 is 

amended as follows:



PART 80--REGULATION OF FUEL AND FUEL ADDITIVES



0

1. The authority citation for part 80 continues to read as follows:



    Authority:  42 U.S.C. 7414, 7542, 7545, and 7601(a).





0

2. Section 80.40(c)(1) is amended to read as follows:





Sec.  80.40  Fuel certification procedures.



* * * * *

    (c)(1) Adjusted VOC gasoline for purposes of the general 

requirements in 80.65(d)(2)(ii), and the certification procedures in 

this section is gasoline that contains 10 to 15 volume percent ethanol, 

or RBOB intended for blending with 10 to 15 volume percent ethanol, 

that is intended for use in the areas described at 80.70(f) and (i), 

and is designated by the refiner as adjusted VOC gasoline subject to 

less stringent VOC standards in 80.41(e) and (f). In order for adjusted 

VOC gasoline to qualify for the regulatory treatment specified in 

80.41(e) and (f), reformulated gasoline must contain denatured, 

anhydrous ethanol. The concentration of the ethanol, excluding the 

required denaturing agent, must be at least 9 percent and no more than 

15 percent (by volume) of the gasoline. The ethanol content of the 

gasoline shall be determined by use of one of the testing methodologies 

specified in 80.46(g).

* * * * *



0

3. Section 80.45 is amended by adding a new paragraph (c)(1)(iii)(C) 

and by revising paragraphs (f)(1)(i) and (f)(1)(ii) to read as follows:





Sec.  80.45  Complex emissions model.



* * * * *

    (c) * * *

    (1) * * *

    (iii) * * *

    (C) During Phase II, fuels with an oxygen concentration greater 

than 4.0 weight percent and not more than 5.8 weight percent shall be 

evaluated with the OXY fuel parameter set equal to 4.0 percent by 

weight when calculating VOCE using the equations described in 

paragraphs (c)(1)(i) and (c)(1)(ii) of this section.

* * * * *

    (f) * * *

    (1) * * *

    (i) For reformulated gasolines:



------------------------------------------------------------------------

               Fuel property                      Acceptable range

------------------------------------------------------------------------

Oxygen....................................  0.0-5.8 weight percent.

Sulfur....................................  0.0-500.0 parts per million

                                             by weight.

RVP.......................................  6.4-10.0 pounds per square

                                             inch.

E200......................................  30.0-70.0 percent

                                             evaporated.

E300......................................  70.0-100.0 percent

                                             evaporated.

Aromatics.................................  0.0-50.0 volume percent.

Olefins...................................  0.0-25.0 volume percent.

Benzene...................................  0.0-2.0 volume percent.

------------------------------------------------------------------------



     (ii) For conventional gasoline:



------------------------------------------------------------------------

               Fuel property                      Acceptable range

------------------------------------------------------------------------

Oxygen....................................  0.0-5.8 weight percent.

Sulfur....................................  0.0-1000.0 parts per million

                                             by weight.

RVP.......................................  6.4-11.0 pounds per square

                                             inch.

E200......................................  30.0-70.0 evaporated

                                             percent.

E300......................................  70.0-100.0 evaporated

                                             percent.

Aromatics.................................  0.0-55.0 volume percent.

Olefins...................................  0.0-30.0 volume percent.

Benzene...................................  0.0-4.9 volume percent.

------------------------------------------------------------------------



* * * * *

0

4. A new subpart N is added to read as follows:



Subpart N--Additional Requirements for Gasoline-Ethanol Blends



Sec.

80.1500 Definitions.

80.1501 What are the labeling requirements that apply to retailers 

and wholesale purchaser-consumers of gasoline-ethanol blends that 

contain greater than 10.0 volume percent ethanol and not more than 

15.0 volume percent ethanol?

80.1502 What are the survey requirements for gasoline-ethanol 

blends?

80.1503 What are the product transfer document requirements for 

gasoline-ethanol blends, gasolines, and conventional blendstocks for 

oxygenate blending subject to this subpart?

80.1504 What acts are prohibited under this subpart?

80.1505 Who is liable for violations of this subpart?

80.1506 What penalties apply under this subpart?

80.1507 What are the defenses for acts prohibited under this 

subpart?

80.1508 What evidence may be used to determine compliance with the 

requirements of this subpart and liability for violations of this 

subpart?



[[Page 44444]]



Subpart N--Additional Provisions for Gasoline-Ethanol Blends





Sec.  80.1500  Definitions.



    The definitions in Sec.  80.2 apply to this subpart. For purposes 

of this subpart only:

    Blendstock for oxygenate blending means gasoline blendstock which 

could become gasoline solely upon the addition of an oxygenate.

    Conventional blendstock for oxygenate blending means gasoline 

blendstock which could become conventional gasoline solely upon the 

addition of an oxygenate.

    Carrier has the same meaning as defined in Sec.  80.2(t).

    Conventional gasoline has the same meaning as defined in Sec.  

80.2(ff).

    E0 means a gasoline that contains no ethanol.

    E10 means a gasoline-ethanol blend that contains at least 9.0 and 

no more than 10.0 volume percent ethanol.

    E15 means a gasoline-ethanol blend that contains greater than 10.0 

volume percent ethanol and not more than 15.0 volume percent ethanol.

    EX means a gasoline-ethanol blend that contains less than 9 volume 

percent ethanol where X equals the maximum volume percent ethanol in 

the gasoline-ethanol blend.

    EXX means a gasoline-ethanol blend above E15 where XX equals the 

maximum volume percent ethanol in the gasoline-ethanol blend.

    Ethanol blender has the same meaning as defined in Sec.  80.2(v).

    Ethanol importer means a person who brings ethanol into the United 

States (including from the Commonwealth of Puerto Rico, the Virgin 

Islands, Guam, American Samoa, and the Northern Mariana Islands) for 

use in motor vehicles and nonroad engines.

    Ethanol producer means any person who owns, leases, operates, 

controls, or supervises a facility that produces ethanol for use in 

motor vehicles or nonroad engines.

    Flex-fuel vehicle has the same meaning as flexible-fuel vehicle as 

defined in Sec.  86.1803-01.

    Fuel dispenser means the apparatus used to dispense fuel into motor 

vehicles or nonroad vehicles, engines or equipment, or into a portable 

fuel container as defined at Sec.  59.680.

    Gasoline has the same meaning as defined in Sec.  80.2(c).

    Gasoline importer means an importer as defined in Sec.  80.2(r) 

that imports gasoline or gasoline blending stocks that could become 

gasoline solely upon the addition of oxygenates.

    Gasoline refiner means a refiner as defined as in Sec.  80.2(i) 

that produces gasoline or gasoline blending stocks that could become 

gasoline solely upon the addition of oxygenates.

    Oxygenate blender has the same meaning as defined in Sec.  

80.2(mm).

    Oxygenate blending facility has the same meaning as defined in 

Sec.  80.2(ll).

    Regulatory control periods has the same meaning as defined in Sec.  

80.27(a)(2)(ii) or in any State Implementation Plan (SIP) approved or 

promulgated under Sec. Sec.  110 or 172 of the Clean Air Act.

    Retail outlet has the same meaning as defined Sec.  80.2(j).

    Retailer has the same meaning as defined in Sec.  80.2(k).

    Survey series means the four quarterly surveys that comprise a 

survey program.

    Sampling strata means the three types of areas sampled during a 

survey which include the following:

    (1) Densely populated areas;

    (2) Transportation corridors; and

    (3) Rural areas.

    Wholesale purchaser-consumer has the same meaning as defined in 

Sec.  80.2(o).





Sec.  80.1501  What are the labeling requirements that apply to 

retailers and wholesale purchaser-consumers of gasoline-ethanol blends 

that contain greater than 10.0 volume percent ethanol and not more than 

15.0 volume percent ethanol?



    (a) Any retailer or wholesale purchaser-consumer who sells, 

dispenses, or offers for sale or dispensing, gasoline-ethanol blends 

that contain greater than 10.0 volume percent ethanol and not more than 

15.0 volume percent ethanol shall affix the following conspicuous and 

legible label to the fuel dispenser:



Attention

E15

Up to 15% ethanol

Use only in

 2001 and newer passenger vehicles

 Flex-fuel vehicles

    Don't use in other vehicles, boats, or gasoline-powered equipment. 

It may cause damage and is prohibited by Federal law.



    (b) Labels under this section shall meet the following requirements 

for appearance and placement:

    (1) Dimensions. The label shall measure 3 and \5/8\ inches wide by 

3 and \1/8\ inches high.

    (2) Placement. The label shall be placed on the upper two-thirds of 

each fuel dispenser where the consumer will see the label when 

selecting a fuel to purchase. For dispensers with one nozzle, the label 

shall be placed above the button or other control used for selecting 

E15, or in any other manner which clearly indicates which control is 

used to select E15. For dispensers with multiple nozzles, the label 

shall be placed in the location that is most likely to be seen by the 

consumer at the time of selection of E15.

    (3) Text. The text shall be justified and the fonts and backgrounds 

shall be as described in paragraphs (b)(3)(i) through (vi) and 

(b)(4)(i) through (iv) of this section.

    (i) The word ``Attention'' shall be in 20-point, orange, Helvetica 

Neue LT 77 Bold Condensed font, and shall be placed in the top 1.25 

inches of the label as further described in (b)(4)(iii) of this 

section.

    (ii) The word ``E15'' shall be in 42-point, orange, Helvetica Black 

font, and shall be placed in the top 1.25 inches of the label.

    (iii) The ethanol content: ``Up to 15% ethanol'' shall be in 14-

point, center-justified, orange, Helvetica Black font in the top 1.25 

inches of the label, below the word E15.

    (iv) The words ``Use only in'' shall be in 20-point, left-

justified, black, Helvetica Bold font in the top 1.25 inches of the 

label.

    (v) The words, and symbols `` 2001 and newer passenger 

vehicles  Flex-fuel vehicles'' shall be in 14-point, left-

justified, black, Helvetica Bold font.

    (vi) The remaining two sentences shall be in 12-point, left-

justified, Helvetica Bold font, except that the word ``prohibited'' in 

the second sentence shall be in 12-point, black, Helvetica Black 

Italics font.

    (4) Color. (i) The background of the top 1.25 inches of the label 

shall be black.

    (ii) The background of the bottom 1.75 inches of the label shall be 

orange.

    (iii) The label shall have on the upper left side of the label a 

diagonal orange stripe that is .3125 inches tall. The stripe shall be 

placed as far down and across the label as is necessary so as to as to 

create a black triangle of the upper left corner of the label whose 

vertical side is contiguous to the vertical edge of the label and 

is.4375 inches long, and whose horizontal side is contiguous to the 

horizontal edge of the label and is 1.0 inches long. The word 

``Attention'' shall be centered to the upper edge of this stripe.

    (5) Alternative labels to those specified in this section may be 

used if approved by EPA in advance. Such labels must contain all of the 

informational elements specified in paragraph (a) of this section, and 

must use colors and other design elements similar in substance and 

appearance to the label required by this section. Such labels may 

differ in size and shape from



[[Page 44445]]



the label required by this section only to a small degree, except to 

the extent a larger label is necessary to accommodate additional 

information or translation of label information.

    (i) If you use U.S. Mail, send a request for approval of an 

alternative label to: U.S. EPA, Attn: E15 Alternative Label Request, 

6406J, 1200 Pennsylvania Avenue, NW., Washington, DC 20460.

    (ii) If you use an overnight or courier service, send a request for 

approval of an alternative label to: U.S. EPA, Attn: E15 Alternative 

Label Request, 6406J, 1310 L Street, NW., 6th Floor, Washington, DC 

20005. (202) 343-9038.





Sec.  80.1502  What are the survey requirements related to gasoline-

ethanol blends?



    Any gasoline refiner, gasoline importer, ethanol blender, ethanol 

producer, or ethanol importer who manufactures, introduces into 

commerce, sells or offers for sale E15, gasoline, blendstock for 

oxygenate blending, ethanol, or gasoline-ethanol blend that is intended 

for use in or as E15 shall comply with the survey program requirements 

in either paragraph (a) or paragraph (b) of this section. These same 

parties are also subject to paragraphs (c), (d) and (e) of this section 

regardless of whether they choose the survey program requirements in 

paragraph (a) or paragraph (b) of this section. In the case of ethanol 

producers and ethanol importers, the ethanol that is produced or 

imported shall be deemed as intended for use in E15 unless an ethanol 

producer or an ethanol importer demonstrates that it was not intended 

for such use.

    (a) Survey option 1. In order to satisfy the survey program 

requirements, any gasoline refiner, gasoline importer, ethanol blender, 

ethanol producer, or ethanol importer who manufactures, introduces into 

commerce, sells or offers for sale E15, gasoline, blendstock for 

oxygenate blending, ethanol, or gasoline-ethanol blend intended for use 

in or as E15 shall properly conduct a program of compliance surveys in 

accordance with a survey program plan which has been approved by EPA in 

all areas which may be reasonably expected to be supplied with their 

gasoline, blendstock for oxygenate blending, ethanol, or gasoline-

ethanol blend if these may be used to manufacture E15 or as E15 at any 

time during the year. Such approval shall be based upon the survey 

program plan meeting the following criteria:

    (1) The survey program shall consist of at least quarterly surveys 

which shall occur during the following time periods in every year 

during which the gasoline refiner, gasoline importer, ethanol blender, 

ethanol producer, or ethanol importer introduces E15 into commerce:

    (i) One survey during the period January 1 through March 31;

    (ii) One survey during the period April 1 through June 30;

    (iii) One survey during the period July 1 through September 30; and

    (iv) One survey during the period October 1 through December 31.

    (2) The survey program plan shall meet all of the requirements of 

paragraph (b), except paragraphs (b)(4)(ii) and (b)(4)(v) of this 

section. The survey program plan shall specify the sampling strata, 

clusters and area, and number of samples to be included. 

Notwithstanding paragraph (b)(2) of this section, in order to comply 

with this paragraph the survey plan need not be conducted by a 

consortium.

    (b) Survey option 2.

    (1) To comply with the requirements under this paragraph (b), any 

gasoline refiner, gasoline importer, ethanol blender, ethanol producer, 

or ethanol importer who manufactures, introduces into commerce, sells 

or offers for sale E15, gasoline, blendstock for oxygenate blending, 

ethanol, or gasoline-ethanol blend intended for use in or as E15 must 

participate in a consortium which arranges to have an independent 

survey association conduct a statistically valid program of compliance 

surveys pursuant to a survey program plan which has been approved by 

EPA, in accordance with the requirements of paragraphs (b)(2) through 

(b)(4) and (b)(6) of this section.

    (2) The consortium survey program under this paragraph (b) must be:

    (i) Planned and conducted by a survey association that is 

independent of the ethanol blenders, ethanol producers, ethanol 

importers, gasoline refiners, and/or gasoline importers that arrange to 

have the survey conducted. In order to be considered independent:

    (A) Representatives of the survey association shall not be an 

employee of any ethanol blender, ethanol producer, ethanol importer, 

gasoline refiner, or gasoline importer;

    (B) The survey association shall be free from any obligation to or 

interest in any ethanol blender, ethanol producer, ethanol importer, 

gasoline refiner, or gasoline importer; and

    (C) The ethanol blenders, ethanol producers, ethanol importers, 

gasoline refiners, and/or gasoline importers that arrange to have the 

survey conducted shall be free from any obligation to or interest in 

the survey association.

    (ii) Conducted at retail outlets that sell gasoline; and

    (iii) Represent all gasoline dispensed nationwide.

    (3) Independent Survey Association Requirements. The consortium 

described in paragraph (b)(1) of this section shall require the 

independent survey association conducting the surveys to:

    (i) Submit to EPA for approval each calendar year a proposed survey 

program plan in accordance with the requirements of paragraph (b)(4) of 

this section.

    (ii) Obtain samples of gasoline offered for sale at gasoline retail 

outlets in accordance with the survey program plan approved under this 

paragraph (b), or immediately notify EPA of any refusal of retail 

outlets to allow samples to be taken.

    (iii) Test, or arrange to be tested, the samples required under 

paragraph (b)(3)(ii) of this section for Reid vapor pressure (RVP), and 

oxygenate content as follows:

    (A) Samples collected at retail outlets shall be shipped the same 

day the samples are collected via ground service to the laboratory and 

analyzed for oxygenate content. Samples collected at a dispenser 

labeled E15 in any manner, or at a tank serving such a dispenser, shall 

also be analyzed for RVP. Such analysis shall be completed within 10 

days after receipt of the sample in the laboratory. Nothing in this 

section shall be interpreted to require RVP testing of a sample from 

any dispenser or tank serving it unless the dispenser is labeled E15 in 

any manner.

    (B) Any laboratory to be used by the independent survey association 

for oxygenate or RVP testing shall be approved by EPA and its test 

method for determining oxygenate content shall be a method permitted 

under Sec.  80.46(g), and its test method for determining RVP shall be 

the method permitted under Sec.  80.46(b).

    (iv) In the case of any test that yields a result that does not 

match the label affixed to the product (e.g., a sample greater than 

15.0 volume percent ethanol dispensed from a fuel dispenser labeled as 

``E15'' or a sample containing greater than 10.0 volume percent ethanol 

and not more than 15.0 volume percent ethanol dispensed from a fuel 

dispenser not labeled as ``E15''), or the RVP standard of Sec.  

80.27(a)(2), the independent survey association shall, within 24 hours 

after the laboratory receives the sample, send notification of the test 

result as follows:

    (A) In the case of a sample collected at a retail outlet at which 

the brand name of a gasoline refiner or gasoline importer is displayed, 

to the gasoline refiner or gasoline importer, and EPA.



[[Page 44446]]



This initial notification to a gasoline refiner or gasoline importer 

shall include specific information concerning the name and address of 

the retail outlet, contact information, the brand, and the ethanol 

content, and the RVP if required, of the sample.

    (B) In the case of a sample collected at other retail outlets, to 

the retailer and EPA, and such notice shall contain the same 

information as in paragraph (b)(3)(iv)(A) of this section.

    (C) The independent survey association shall provide notice to the 

identified contact person or persons for each party in writing (which 

includes e-mail or facsimile) and, if requested by the identified 

contact person, by telephone.

    (v) Confirm that each fuel dispenser sampled is labeled as required 

in Sec.  80.1501 by confirming that:

    (A) The label meets the appearance and content requirements of 

Sec.  80.1501.

    (B) The label is located on the fuel dispenser according to the 

requirements in Sec.  80.1501.

    (vi) In the case of a fuel dispenser that is improperly labeled, or 

whose fuel does not meet the RVP standards of Sec.  80.27(a)(2) the 

survey association shall provide notice as provided in paragraphs 

(b)(2)(iv)(A) through (C) of this section.

    (vii) Provide to EPA quarterly and annual summary survey reports 

which include the information specified in paragraph (b)(5) of this 

section.

    (viii) Maintain all records relating to the surveys conducted under 

this paragraph (b) for a period of at least five (5) years.

    (ix) Permit any representative of EPA to monitor at any time the 

conducting of the surveys, including sample collection, transportation, 

storage, and analysis.

    (4) Survey Plan Design Requirements. The proposed survey program 

plan required under paragraph (b)(3)(i) of this section shall, at a 

minimum, include the following:

    (i) Number of Surveys. The survey program plan shall include four 

quarterly surveys each calendar year. The four quarterly surveys 

collectively are called the survey series as defined in Sec.  80.1500.

    (ii) Sampling Areas. The survey program plan shall include sampling 

in all sampling strata, as defined in Sec.  80.1500, during each 

survey. These sampling strata shall be further divided into discrete 

sampling areas or clusters. Each survey shall include sampling in at 

least 40 sampling areas in each stratum which are randomly selected.

    (iii) No advance notice of surveys. The survey plan shall include 

procedures to keep the identification of the sampling areas that are 

included in any survey plan confidential from any regulated party prior 

to the beginning of a survey in an area. However, this information 

shall not be kept confidential from EPA.

    (iv) Retail outlet selection.

    (A) The retail outlets to be sampled in a sampling area shall be 

selected from among all retail outlets in the sampling area that sell 

gasoline, with the probability of selection proportionate to the volume 

of gasoline sold at the retail outlets; the sample should also include 

retail outlets with different brand names as well as those retail 

outlets that are unbranded.

    (B) In the case of any retail outlet from which a sample of 

gasoline was collected during a survey and determined to have an 

ethanol content that does not match the fuel dispenser label (e.g. a 

sample greater than 15.0 volume percent ethanol dispensed from a fuel 

dispenser labeled as ``E15'' or a sample with greater than 10.0 volume 

percent ethanol and not more than 15.0 volume percent ethanol dispensed 

from a fuel dispenser not labeled as ``E15'') or determined to have a 

dispenser containing fuel whose RVP does not comply with Sec.  

80.27(a)(2), that retail outlet shall be included in the subsequent 

survey.

    (C) One sample of each product dispensed as gasoline shall be 

collected at each retail outlet, and separate samples shall be taken 

that represent the gasoline contained in each gasoline storage tank 

unless collection of separate samples is not practicable.

    (v) Number of samples.

    (A) The minimum number of samples to be included in the survey plan 

for each calendar year shall be calculated as follows:

[GRAPHIC] [TIFF OMITTED] TR25JY11.003



Where:



n = minimum number of samples in a year-long survey series. However, 

in no case shall n be smaller than 7,500.

Z[alpha] = upper percentile point from the normal distribution to 

achieve a one-tailed 95% confidence level (5% [alpha]-level). Thus, 

Z[alpha] equals 1.645.

Z[beta] = upper percentile point to achieve 95% power. Thus, Z[beta] 

equals 1.645.

[oslash]l = the maximum proportion of non-compliant 

stations for a region to be deemed compliant. In this test, the 

parameter needs to be 5% or greater, i.e., 5% or more of the 

stations, within a stratum such that the region is considered non-

compliant. For this survey, [oslash]1 will be 5%.

[oslash]o= the underlying proportion of non-compliant stations in a 

sample. For the first survey plan, [oslash]o = will be 2.3%. For 

subsequent survey plans, [oslash]o = will be the average of the 

proportion of stations found to be non-compliant over the previous 

four surveys.

Stn = number of sampling strata. For purposes of this 

survey program, Stn equals 3.

Fa = adjustment factor for the number of extra samples 

required to compensate for collected samples that cannot be included 

in the survey, based on the number of additional samples required 

during the previous four surveys. However, in no case shall the 

value of Fa be smaller than 1.1.

Fb = adjustment factor for the number of samples required 

to resample each retail outlet with test results exceeding the 

labeled amount (e.g., a sample greater than 15.0 volume percent 

ethanol dispensed from a fuel dispenser labeled as ``E15'', a sample 

with greater than 10.0 volume percent ethanol and not more than 15.0 

volume percent ethanol dispensed from a fuel dispenser not labeled 

as ``E15''), or a sample dispensed from a fuel dispenser labeled as 

``E15'' with greater than the applicable seasonal and geographic RVP 

pursuant to Sec.  80.27, based on the rate of resampling required 

during the previous four surveys. However, in no case shall the 

value of Fb be smaller than 1.1.

Sun = number of surveys per year. For purposes of this 

survey program, Sun equals 4.



    (B) The number of samples determined pursuant to paragraph 

(b)(4)(v)(A) of this section, after being incremented as necessary to 

allocate whole numbers of samples to each cluster, shall be distributed 

approximately equally for the quarterly surveys conducted during the 

calendar year.

    (5) Summary survey reports. The quarterly and annual summary survey 

reports required under paragraph (b)(3)(vii) of this section shall 

include the following information:

    (i) An identification of the parties that are participating in the 

survey.

    (ii) The identification of each sampling area included in a survey 

and



[[Page 44447]]



the dates that the samples were collected in that area.

    (iii) For each retail outlet sampled:

    (A) The identification of the retail outlet;

    (B) The gasoline refiner or gasoline importer brand name displayed, 

if any;

    (C) The fuel dispenser labeling (e.g., ``E15'');

    (D) The sample test result for oxygenate content, and RVP result, 

if any;

    (E) The test method used to determine oxygenate content under Sec.  

80.46(g); and

    (F) The test method used to determine RVP under Sec.  80.46(b).

    (iv) Ethanol level summary statistics by brand and unbranded for 

each sampling area, strata, and survey series. These summary statistics 

shall:

    (A) Include the number of samples, the average, median and range of 

ethanolcontent, expressed in volume percent.

    (B) [Reserved].

    (v) The quarterly reports required under this paragraph (b)(5) are 

due 60 days following the end of the quarter. The annual reports 

required under this paragraph (b)(5) are due 60 days following the end 

of the calendar year.

    (vi) The reports required under this paragraph (b)(5) shall be 

submitted to EPA in an electronic spreadsheet.

    (c) Procedures for obtaining approval of survey plan and providing 

required notices. The first year in which a survey program is conducted 

may consist of only a portion of a calendar year ending on December 31 

(i.e., in the initial year, a survey program may begin on a date after 

January 1, but would still end on December 31). Subsequent survey 

programs shall be conducted on a calendar year basis. The procedure for 

obtaining EPA approval of a survey program plan under paragraph (b) or 

paragraph (c) of this section is as follows:

    (1) For the first year in which a survey will be conducted, a 

survey program plan that complies with the requirements of paragraph 

(a) or paragraph (b) of this section must be submitted to EPA no later 

than 60 days prior to the date on which the survey program is to begin.

    (2) For subsequent years in which a survey will be conducted, a 

survey program plan that complies with the requirements of paragraph 

(a) or paragraph (b) of this section must be submitted to EPA no later 

than November 1 of the year preceding the calendar year in which the 

survey will be conducted.

    (3) The survey program plan must be signed by a responsible officer 

of the consortium which arranges to have an independent surveyor 

conduct the survey program.

    (4) The survey program plan must be sent to the following address: 

Director, Compliance and Innovative Strategies Division, U.S. 

Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Mail Code 

6506J, Washington, DC 20460.

    (5) EPA will send a letter to the party submitting the survey 

program plan that indicates whether EPA approves or disapproves the 

survey plan.

    (6) The approving official for a survey plan under this section is 

the Director of the Compliance and Innovative Strategies Division, 

Office of Transportation and Air Quality.

    (7) Any notifications or reports required to be submitted to EPA 

under this section must be directed to the official designated in 

paragraph (b)(6)(iv) of this section.

    (d) Independent surveyor contract.

    (1) For the first year in which a survey program will be conducted, 

no later than 30 days preceding the start of the survey, the contract 

with the independent surveyor shall be in effect, and an amount of 

money necessary to carry out the entire survey plan shall be paid to 

the independent surveyor or placed into an escrow account with 

instructions to the escrow agent to pay the money to the independent 

surveyor during the course of the conduct of the survey plan.

    (2) For subsequent years in which a survey program will be 

conducted, no later than December 1 of the year preceding the year in 

which the survey will be conducted, the contract with the independent 

surveyor shall be in effect, and an amount of money necessary to carry 

out the entire survey plan shall be paid to the independent surveyor or 

placed into an escrow account with instructions to the escrow agent to 

pay the money to the independent surveyor during the course of the 

conduct of the survey plan.

    (3) For the first year in which a survey program will be conducted, 

no later than 15 days preceding the start of the survey EPA must 

receive a copy of the contract with the independent surveyor and proof 

that the money necessary to carry out the survey plan has either been 

paid to the independent surveyor or placed into an escrow account; if 

the money has been placed into an escrow account, a copy of the escrow 

agreement must to be sent to the official designated in paragraph 

(b)(6)(iv) of this section.

    (4) For subsequent years in which a survey program will be 

conducted, no later than December 15 of the year preceding the year in 

which the survey will be conducted, EPA must receive a copy of the 

contract with the independent surveyor and proof that the money 

necessary to carry out the survey plan has either been paid to the 

independent surveyor or placed into an escrow account; if placed into 

an escrow account, a copy of the escrow agreement must be sent to the 

official designated in paragraph (b)(6)(iv) of this section.

    (e) Consequences of failure to fulfill requirements. A failure to 

fulfill or cause to be fulfilled any of the requirements of this 

section is a prohibited act under Clean Air Act section 211(c) and 

Sec.  80.1504.

    (1) EPA may revoke its approval of a survey plan under this section 

for cause, including, but not limited to, an EPA determination that the 

approved survey plan has proved to be inadequate in practice.

    (2) EPA may void ab initio its approval of a survey plan if EPA's 

approval was based on false information, misleading information, or 

incomplete information, or if there was a failure to fulfill, or cause 

to be fulfilled, any of the requirements of the survey plan.





Sec.  80.1503  What are the product transfer document requirements for 

gasoline-ethanol blends, gasolines, and conventional blendstocks for 

oxygenate blending subject to this subpart?



    (a) Product transfer documentation for conventional blendstock for 

oxygenate blending, or gasoline transferred upstream of an ethanol 

blending facility.

    (1) In addition to any other product transfer document requirements 

under 40 CFR part 80, on each occasion after October 31, 2011, when any 

person transfers custody or title to any conventional blendstock for 

oxygenate blending which could become conventional gasoline solely upon 

the addition of ethanol, or gasoline upstream of an oxygenate blending 

facility, as defined in Sec.  80.2(ll), the transferor shall provide to 

the transferee product transfer documents which include the following 

information:

    (i) The name and address of the transferor;

    (ii) The name and address of the transferee;

    (iii) The volume of conventional blendstock for oxygenate blending 

or gasoline being transferred;

    (iv) The location of the conventional blendstock for oxygenate 

blending or gasoline at the time of the transfer;

    (v) The date of the transfer;

    (vi) For gasoline during the regulatory control periods defined in 

Sec.  80.27(a)(2)(ii) or any SIP approved or promulgated under 

Sec. Sec.  110 or 172 of the Clean Air Act:



[[Page 44448]]



    (A) The maximum RVP, as determined by a method permitted under 

Sec.  80.46(c), stated in the following format: ``The RVP of this 

gasoline does not exceed [fill in appropriate value]''; and

    (B) For gasoline designed for the special provisions for gasoline-

ethanol blends in Sec.  80.27(d)(2), information about the ethanol 

content and RVP in paragraphs (a)(1) through (a)(3) of this section, 

with insertions as indicated:

    (1) ``Suitable for the special RVP provisions for ethanol blends 

that contain between 9 and 10 vol % ethanol.''

    (2) ``The RVP of this blendstock/gasoline for oxygenate blending 

does not exceed [Fill in appropriate value] psi.

    (3) The use of this gasoline to manufacture a gasoline-ethanol 

blend containing anything other than between 9 and 10 volume percent 

ethanol may cause a summertime RVP violation.

    (C) For gasoline not described in paragraph (a)(vi)(B) of this 

section, information regarding the suitable ethanol content, stated in 

the following format: ``Suitable for blending with ethanol at a 

concentration of no more than 15 vol % ethanol.''

    (2) The requirements in paragraph (a)(1) do not apply to 

reformulated gasoline blendstock for oxygenate blending, as defined in 

Sec.  80.2(kk), which are subject to the product transfer document 

requirements of Sec.  80.69 and Sec.  80.77.

    (b) Product transfer documentation for gasoline transferred 

downstream of an oxygenate blending facility.

    (1) In addition to any other product transfer document requirements 

under 40 CFR part 80, on each occasion after October 31, 2011, when any 

person transfers custody or title to any gasoline-ethanol blend 

downstream of an oxygenate blending facility, as defined in Sec.  

80.2(ll), except for transfers to the ultimate consumer, the transferor 

shall provide to the transferee product transfer documents which 

include the following information:

    (i) The name and address of the transferor;

    (ii) The name and address of the transferee;

    (iii) The volume of gasoline being transferred;

    (iv) The location of the gasoline at the time of the transfer;

    (v) The date of the transfer; and

    (vi) One of the statements detailed in paragraph (b)(1)(vi)(A) 

though (E) which accurately describes the gasoline-ethanol blend. The 

information regarding the ethanol content of the fuel is required year-

round. The information regarding the RVP of the fuel is only required 

for gasoline during the regulatory control periods.

    (A) For gasoline containing no ethanol (E0), the following 

statement; ``E0: Contains no ethanol. The RVP does not exceed [fill in 

appropriate value] psi.''

    (B) For gasoline containing less than 9.0 volume percent ethanol, 

the following statement: ``EX--Contains up to X% ethanol. The RVP does 

not exceed [fill in appropriate value] psi.'' The term X refers to the 

maximum volume percent ethanol present in the gasoline.

    (C) For gasoline containing between 9.0 and 10.0 volume percent 

ethanol (E10), the following statement: ``E10: Contains between 9 and 

10 vol % ethanol. The RVP does not exceed [fill in appropriate value] 

psi. The 1.0 psi RVP waiver applies to this gasoline. Do not mix with 

gasoline containing anything other than between 9 and 10 vol % 

ethanol.''

    (D) For gasoline containing greater than 10.0 volume percent and 

not more than 15.0 volume percent ethanol (E15), the following 

statement: ``E15: Contains up to 15 vol % ethanol. The RVP does not 

exceed [fill in appropriate value] psi;'' or

    (E) For all other gasoline that contains ethanol, the following 

statement: ``EXX--Contains no more than XX% ethanol,'' where XX equals 

the volume % ethanol.

    (2) Except for transfers to truck carriers, retailers, or wholesale 

purchaser-consumers, product codes may be used to convey the 

information required under paragraph (b)(1) of this section if such 

codes are clearly understood by each transferee.

    (c) The records required by this section must be kept by the 

transferor and transferee for five (5) years from the date they were 

created or received by each party in the distribution system.

    (d) On request by EPA, the records required by this section must be 

made available to the Administrator or the Administrator's authorized 

representative. For records that are electronically generated or 

maintained, the equipment or software necessary to read the records 

shall be made available, or, if requested by EPA, electronic records 

shall be converted to paper documents.





Sec.  80.1504  What acts are prohibited under this subpart?



    No person shall--

    (a)(1) Sell, introduce, cause or permit the sale or introduction of 

gasoline containing greater than 10.0 volume percent ethanol (i.e., 

greater than E10) into any model year 2000 or older light-duty gasoline 

motor vehicle, any heavy-duty gasoline motor vehicle or engine, any 

highway or off-highway motorcycle, or any gasoline-powered nonroad 

engines, vehicles or equipment.

    (2) Manufacture or introduce into commerce E15 in any calendar year 

for use in an area prior to commencement of a survey approved under 

80.1502 for that area.

    (3) Notwithstanding paragraphs (a)(1) and (a)(2) of this section, 

no person shall be prohibited from manufacturing, selling, introducing, 

or causing or allowing the sale or introduction of gasoline containing 

greater than 10.0 volume percent ethanol into any flex-fuel vehicle.

    (b) Sell, offer for sale, dispense, or otherwise make available at 

a retail or wholesale purchaser-consumer facility E15 that is not 

correctly labeled in accordance with Sec.  80.1501;

    (c) Fail to fully or timely implement, or cause a failure to fully 

or timely implement, an approved survey required under Sec.  80.1502;

    (d) Fail to generate, use, transfer and maintain product transfer 

documents that accurately reflect the type of product, ethanol content, 

maximum RVP, and other information required under Sec.  80.1503;

    (e) Improperly blend, or cause the improper blending of, ethanol 

into conventional blendstock for oxygenate blending, gasoline or 

gasoline already containing ethanol, in a manner inconsistent with the 

information on the product transfer document under Sec.  

80.1503(a)(1)(vi) or Sec.  80.1503(b)(1)(vi);

    (f) For gasoline during the regulatory control periods, combine any 

gasoline or conventional blendstock for oxygenate blending intended for 

blending with E10 that qualifies for the 1 psi allowance under the 

special regulatory treatment as provided by Sec.  80.27(d) applicable 

to 9-10 volume percent gasoline-ethanol blends with any gasoline or 

conventional blendstock for oxygenate blending intended for blending 

with E15, unless the resultant combination is designated, in its 

entirety, as an E10 blendstock for oxygenate blending.

    (g) For gasoline during the regulatory control periods, combine any 

gasoline-ethanol blend containing E10 that qualifies for the 1 psi 

allowance under the special regulatory treatment as provided by Sec.  

80.27(d) applicable to 9-10 volume percent gasoline-ethanol blends, 

with any gasoline containing E0 or any gasoline blend containing E15.

    (h) Fail to meet any other requirement of this subpart.



[[Page 44449]]



    (i) Cause another person to commit an act in violation of 

paragraphs (a) through (h) of this section.





Sec.  80.1505  Who is liable for violations of this subpart?



    (a) Persons liable. Any person who violates Sec.  80.1504(a) 

through (i) is liable for the violation. In addition, when the gasoline 

contained in any storage tank at any facility owned, leased, operated, 

controlled or supervised by any gasoline refiner, gasoline importer, 

oxygenate blender, carrier, distributor, reseller, retailer, or 

wholesale purchaser-consumer is found in violation of the prohibitions 

described in Sec.  80.1504(a), and (c) through (i), the following 

persons shall be deemed in violation:

    (1) Each gasoline refiner, gasoline importer, oxygenate blender, 

carrier, distributor, reseller, retailer, or wholesale purchaser-

consumer who owns, leases, operates, controls or supervises the 

facility where the violation is found.

    (2) Each gasoline refiner or gasoline importer whose corporate, 

trade, or brand name, or whose marketing subsidiary's corporate, trade, 

or brand name, appears at the facility where the violation is found.

    (3) Each gasoline refiner, gasoline importer, oxygenate blender, 

distributor, and reseller who manufactured, imported, sold, offered for 

sale, dispensed, supplied, offered for supply, stored, transported, or 

caused the transportation of any gasoline which is in the storage tank 

containing gasoline found to be in violation.

    (4) Each carrier who dispensed, supplied, stored, or transported 

any gasoline which is in the storage tank containing gasoline found to 

be in violation, provided that EPA demonstrates, by reasonably specific 

showings using direct or circumstantial evidence, that the carrier 

caused the violation.

    (b) For label violations under Sec.  80.1504(b), only the wholesale 

purchaser-consumer or retailer and the branded gasoline refiner or 

branded gasoline importer, if any, shall be liable.

    (c) Each partner to a joint venture, or each owner of a facility 

owned by two or more owners, is jointly and severally liable for any 

violation of this subpart that occurs at the joint venture facility or 

a facility that is owned by the joint owners, or a facility that is 

committed by the joint venture operation or any of the joint owners of 

the facility.

    (d) Any parent corporation is liable for any violations of this 

subpart that are committed by any of its solely-owned subsidiaries.





Sec.  80.1506  What penalties apply under this subpart?



    (a) Any person under Sec.  80.1505 who is liable for a violation 

under Sec.  80.1504 is subject to an administrative or civil penalty, 

as specified in sections 205 and 211(d) of the Clean Air Act, for every 

day of each such violation and the amount of economic benefit or 

savings resulting from the violation.

    (b)(1) Any violation of any requirement that pertains to the 

ethanol content of gasoline shall constitute a separate day of 

violation for each and every day such gasoline giving rise to such 

violations remains any place in the gasoline distribution system, 

beginning on the day that the gasoline that violates such requirement 

is produced or imported and distributed and/or offered for sale, and 

ending on the last day that any such gasoline is offered for sale or is 

dispensed to any ultimate consumer for use in any motor vehicle, unless 

the violation is corrected by altering the properties and 

characteristics of the gasoline giving rise to the violations and any 

mixture of gasolines that contains any of the gasoline giving rise to 

the violations such that the gasoline or mixture of gasolines has the 

properties and characteristics that would have existed if the gasoline 

giving rise to the violations had been produced or imported in 

compliance with all requirements that pertain to the ethanol content of 

gasoline.

    (2) For the purposes of this paragraph (b), the length of time the 

gasoline in question remained in the gasoline distribution system shall 

be deemed to be 25 days; unless the respective party or EPA 

demonstrates by reasonably specific showings, using direct or 

circumstantial evidence, that the gasoline giving rise to the 

violations remained any place in the gasoline distribution system for 

fewer than or more than 25 days.

    (c) Any violation of any affirmative requirement or prohibition not 

included in paragraph (b) of this section shall constitute a separate 

day of violation for each and every day such affirmative requirement is 

not properly accomplished, and/or for each and every day the prohibited 

activity continues. For those violations that may be ongoing each and 

every day the prohibited activity continues shall constitute a separate 

day of violation.





Sec.  80.1507  What are the defenses for acts prohibited under this 

subpart?



    (a) Defenses for prohibited activities.

    (1) In any case in which a gasoline refiner, gasoline importer, 

oxygenate blender, carrier, distributor, reseller, retailer, or 

wholesale purchaser-consumer would be in violation under Sec.  

80.1504(a), and (c) through (i) it shall be deemed not in violation if 

it can demonstrate:

    (i) That the regulated party or its employee or agent did not 

commit, cause, or contribute to another person's causing the violation;

    (ii) That product transfer documents account for all of the 

gasoline in the storage tank found in violation and indicate that the 

gasoline met relevant requirements; and

    (iii)(A) That it has conducted a quality assurance program, 

including a sampling and testing program, as described in paragraph (b) 

of this section;

    (B) A carrier may rely on the sampling and testing program carried 

out by another party, including the party that owns the gasoline in 

question, provided that the sampling and testing program is carried out 

properly.

    (2)(i) Where a violation is found at a facility which is operating 

under the corporate, trade or brand name of a refiner, that refiner 

must show, in addition to the defense elements required by paragraph 

(a)(1) of this section, that the violation was caused by:

    (A) An act in violation of law (other than the Act or this part), 

or an act of sabotage or vandalism;

    (B) The action of any reseller, distributor, oxygenate blender, 

carrier, or a retailer or wholesale purchaser-consumer supplied by any 

of these persons, in violation of a contractual undertaking imposed by 

the gasoline refiner designed to prevent such action, and despite 

periodic sampling and testing by the gasoline refiner to ensure 

compliance with such contractual obligation; or

    (C) The action of any carrier or other distributor not subject to a 

contract with the gasoline refiner but engaged by the gasoline refiner 

for transportation of gasoline, despite specification or inspection of 

procedures and equipment by the gasoline refiner which are reasonably 

calculated to prevent such action.

    (ii) In this paragraph (a) of this section, to show that the 

violation ``was caused'' by any of the specified actions the party must 

demonstrate by reasonably specific showings using direct or 

circumstantial evidence, that the violation was caused or must have 

been caused by another.

    (3) For label violations under Sec.  80.1504(b), the branded 

gasoline refiner or branded gasoline importer shall not be deemed 

liable if the requirements of paragraph (b)(4) of this section are met.



[[Page 44450]]



    (b) Quality assurance program. In order to demonstrate an 

acceptable quality assurance program for gasoline at all points in the 

gasoline distribution network, other than at retail outlets and 

wholesale purchaser-consumer facilities, a party must present evidence 

of the following in addition to other regular appropriate quality 

assurance procedures and practices.

    (1) A periodic sampling and testing program to determine if the 

gasoline contains applicable maximum and/or minimum volume percent of 

ethanol.

    (2) That on each occasion when gasoline is found in noncompliance 

with one of the requirements referred to in paragraph (b)(1) of this 

section:

    (i) The party immediately ceases selling, offering for sale, 

dispensing, supplying, offering for supply, storing, transporting, or 

causing the transportation of the violating product; and

    (ii) The party promptly remedies the violation (such as by removing 

the violating product or adding more complying product until the 

applicable requirements are achieved).

    (3) An oversight program conducted by a carrier under paragraph 

(b)(1) 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 requirements of Sec.  80.1504 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.

    (4) The periodic sampling and testing program specified in 

paragraph (b)(1) of this section shall be deemed to have been in effect 

during the relevant time period for any party, including branded 

gasoline refiners and branded gasoline importers, if:

    (i) An EPA approved survey program under Sec.  80.1502 was in 

effect and was implemented fully and properly;

    (ii) Any retailer at which a violation was discovered allowed 

survey inspectors to take samples and inspect labels; and

    (iii) For truck loading terminals and truck distributors that 

perform oxygenate blending, additional quality assurance procedures and 

practices were in place, such as regular checks to reconcile volumes of 

ethanol in inventory and regular checks of equipment for proper ethanol 

blend rates.





Sec.  80.1508  What evidence may be used to determine compliance with 

the requirements of this subpart and liability for violations of this 

subpart?



    (a) Compliance with the requirements of this subpart pertaining to 

the ethanol content of gasoline shall be determined based on the 

ethanol level of the gasoline, measured using the methodologies 

specified in Sec.  80.46(g). Any evidence or information, including the 

exclusive use of such evidence or information, may be used to establish 

the ethanol content of gasoline if the evidence or information is 

relevant to whether the ethanol content of gasoline would have been in 

compliance with the requirements of this subpart if the appropriate 

sampling and testing methodology had been correctly performed. Such 

evidence may be obtained from any source or location and may include, 

but is not limited to, test results using methods other than those 

specified in Sec.  80.46(g), business records, and commercial 

documents.

    (b) Determinations of compliance with the requirements of this 

subpart other than those pertaining to the ethanol content of gasoline, 

and determinations of liability for any violation of this subpart, may 

be based on information obtained from any source or location. Such 

information may include, but is not limited to, business records and 

commercial documents.



[FR Doc. 2011-16459 Filed 7-22-11; 8:45 am]

BILLING CODE 6560-50-P




