Thursday, 

November 4, 2010 

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; Proposed Rule 


srobinson on DSKHWCL6B1PROD with PROPOSALS2
68044 Federal Register / Vol. 75, No. 213 / Thursday, November 4, 2010 / Proposed Rules 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 80 

[EPA–HQ–OAR–2010–0448; FRL–9215–4] 

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: Proposed rule. 

SUMMARY: EPA is proposing a regulatory 

program to help mitigate the potential 

for misfueling of certain engines, 

vehicles and equipment with gasoline 

containing greater than 10 volume 

percent (‘‘vol%’’) ethanol up to 15 vol% 

ethanol (E15). This proposal is in 

conjunction with the Agency’s partial 

waiver, pursuant to Clean Air Act 

section 211(f)(4), which allows for the 

introduction into commerce of gasolineethanol blends containing up to 15 

vol% ethanol for use in model year 2007 

and newer on-highway light-duty motor 

vehicles. The E15 waiver is limited in 

scope to a portion of the light-duty fleet, 

and the proposed misfueling mitigation 

program will help avoid the misfueling 

of all other engines, vehicles, and 

equipment with unapproved fuels. This 

proposed rule would require all E15 

gasoline fuel dispensers to have a label 

if a retail station chooses to sell E15 and 

seeks comment on separate labeling 

requirements for fuel blender pumps 

and fuel pumps that dispense E85. 

Similar to the prohibition in section 

211(f)(1), the proposed rule would 

prohibit the use of gasoline containing 

greater than 10 vol% ethanol in vehicles 

and engines not covered by the partial 

waiver for E15. In addition, the 

proposed rule would require product 

transfer documents specifying ethanol 

content and Reid Vapor Pressure (RVP) 

to accompany the transfer of gasoline 

blended with ethanol and a national 

survey of retail stations to ensure 

compliance with the these 

requirements. The proposed rule would 

also modify the Reformulated Gasoline 

(‘‘RFG’’) program by updating the 

Complex Model to allow fuel 

manufacturers to certify batches of 

gasoline containing up to 15 vol% 

ethanol. 

DATES: Comments must be received on 

or before January 3, 2011. Under the 

Paperwork Reduction Act, comments on 

the information collection provisions 

are best assured of full consideration if 

the Office of Management and Budget 

(OMB) receives a copy of your 

comments on or before December 6, 

2010, thirty days after date of 

publication in the Federal Register. 

Hearing: We will hold a public 

hearing on November 16, 2010 at the 

Millennium Knickerbocker Hotel in 

Chicago, IL. The hearing will start at 10 

a.m. local time and continue until 

everyone has had a chance to speak. If 

you want to testify at the hearing, notify 

the contact person listed under FOR

FURTHER INFORMATION CONTACT by 

November 8, 2010. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–HQ– 

OAR–2010–0448, by one of the 

following methods: 

• http://www.regulations.gov: Follow 

the on-line instructions for submitting 

comments. 

• E-mail: E15@epa.gov. 

• Fax: (202) 566–1741. 

• Mail: Air and Radiation Docket, 

Docket ID No. EPA–HQ–OAR–2010– 

0448, Environmental Protection Agency, 

Mailcode: 6102T, 1200 Pennsylvania 

Avenue, NW., Washington, DC 20460. 

Please include a total of two copies. 

• Hand Delivery: EPA Docket Center, 

Public Reading Room, EPA West 

Building, Room 3334, 1301 Constitution 

Avenue, NW., Washington, DC 20460. 

Such deliveries are only accepted 

during the Docket’s normal hours of 

operation, and special arrangements 

should be made for deliveries of boxed 

information. 

Instructions: Direct your comments to 

Docket ID No. EPA–HQ–OAR–2010– 

0448. EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available online at http:// 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit information that you 

consider to be CBI or otherwise 

protected through http:// 

www.regulations.gov or e-mail. The 

http://www.regulations.gov Web site is 

an ‘‘anonymous access’’ system, which 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an e-mail comment directly 

to EPA without going through http:// 

www.regulations.gov your e-mail 

address will be automatically captured 

and included as part of the comment 

that is placed in the public docket and 

made available on the Internet. If you 

submit an electronic comment, EPA 

recommends that you include your 

name and other contact information in 

the body of your comment and with any 

disk or CD–ROM you submit. If EPA 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, EPA may not be 

able to consider your comment. 

Electronic files should avoid the use of 

special characters, any form of 

encryption, and be free of any defects or 

viruses. For additional information 

about EPA’s public docket, visit the EPA 

Docket Center homepage at http:// 

www.epa.gov/epahome/dockets.htm. 

For additional instructions on 

submitting comments, go to ‘‘What 

Should I Consider as I Prepare My 

Comments for EPA?’’ in the 

SUPPLEMENTARY INFORMATION section of 

this document. 

Docket: All documents in the docket 

are listed in the http:// 

www.regulations.gov index. 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, 

will be publicly available only in hard 

copy. Publicly available docket 

materials are available either 

electronically in http:// 

www.regulations.gov or in hard copy at 

the Air and Radiation Docket, 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: Julia 

MacAllister, Office of Transportation 

and Air Quality, Assessment and 

Standards Division, Environmental 

Protection Agency, 2000 Traverwood 

Drive, Ann Arbor, MI 48105; Telephone 

number: 734–214–4131; Fax number: 

734–214–4816; E-mail address: 

macallister.julia@epa.gov, or 

Assessment and Standards Division 

Hotline; telephone number (734) 214– 

4636; E-mail address asdinfo@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: 


srobinson on DSKHWCL6B1PROD with PROPOSALS2
Federal Register / Vol. 75, No. 213 / Thursday, November 4, 2010 / Proposed Rules 68045 

Category NAICS1 codes SIC 2

codes Examples of potentially regulated 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. 

Industry .......................................................... 454319 5989 Other fuel dealers. 

Industry .......................................................... 447190 5541 Gasoline service stations. 

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. 

What should I consider as I prepare my 

comments for EPA? 

A. Submitting CBI. Do not submit this 

information to EPA through http:// 

www.regulations.gov or e-mail. Clearly 

mark the information that you claim to 

be CBI. For CBI information on a disk 

or CD ROM that you mail to EPA, mark 

the outside of the disk or CD ROM as 

CBI and then identify electronically 

within the disk or CD ROM the specific 

information that is claimed as CBI. In 

addition to one complete version of the 

comment that includes information 

claimed as CBI, a copy of the comment 

that does not contain the information 

claimed as CBI must be submitted for 

inclusion in the public docket. 

Information marked as CBI will not be 

disclosed except in accordance with 

procedures set forth in 40 CFR Part 2. 

B. Tips for Preparing Your Comments. 

When submitting comments, remember 

to: 

• Identify the rulemaking by docket 

number and other identifying 

information (subject heading, Federal 

Register date and page number). 

• Follow directions—The agency may 

ask you to respond to specific questions 

or organize comments by referencing a 

Code of Federal Regulations (CFR) part 

or section number. 

• Explain why you agree or disagree; 

suggest alternatives and substitute 

language for your requested changes. 

• Describe any assumptions and 

provide any technical information and/ 

or data that you used. 

• If you estimate potential costs or 

burdens, explain how you arrived at 

your estimate in sufficient detail to 

allow for it to be reproduced. 

• Provide specific examples to 

illustrate your concerns, and suggest 

alternatives. 

• Explain your views as clearly as 

possible, avoiding the use of profanity 

or personal threats. 

• Make sure to submit your 

comments by the comment period 

deadline identified. 

C. Docket Copying Costs. You may be 

charged a reasonable fee for 

photocopying docket materials, as 

provided by 40 CFR Part 2. 

Outline of This Preamble 

I. Overview 

II. Background 

A. Statutory Authority 

B. E15 Waiver Request 

C. Reasons for the Proposed Actions in 

This Rulemaking 

D. Federalism Implications 

III. Misfueling Mitigation Measures 

A. Labeling Requirements 

1. E15 Labels 

a. Information Component 

b. Legal Approval Component 

c. Technical Warning Component 

d. Legal Warning Component 

e. E15 Label Proposal 

2. Additional Fuel Pump Labeling 

Requirements 

3. Stakeholder Labeling Suggestions 

4. FTC Labeling Proposal 

5. Labeling Requirements and Liability for 

Misfueling 

B. Product Transfer Document 

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 

C. Retail Fuel Dispenser Label and Fuel 

Ethanol Content Survey 

D. Program Outreach 

E. What Other Means of Mitigating 

Misfueling Were Considered? 

F. Cost of Compliance 

1. Labeling Costs 

2. PTD Costs 

3. Survey Costs 

4. Avoided Motor Vehicle and Nonroad 

Product Repair Costs 

G. Compliance and Enforcement 

1. What are the Prohibited Acts? 

2. What are the Proposed Liability and 

Penalty Provisions for Noncompliance? 

a. Presumptive Liability 

b. Affirmative Defenses for Liable Parties 

c. Penalties for Violations 

IV. Other Measures to Ensure Compliance 

A. The 1.0 psi RVP Waiver for E10 Blends 

1. National RVP Survey 

2. RVP and E15 Underground Storage Tank 

Transition 

B. Credit for RFG Downstream Oxygenate 

Blending 

V. Modification of the Complex Model 

A. Background of RFG Requirements 

B. The Complex Model 

VI. Why are we proposing misfueling 

mitigation measures? 

A. History of Ethanol Use in the U.S. 

B. Chemical and Physical Differences 

between Ethanol and Gasoline 

1. Impact on the A/F Ratio—Combustion 

Enleanment 

2. Polarity and affinity for water 

3. Material Compatibility 

4. Corrosion 

5. Solvency 

6. Volatility 

C. Model Year 2000 and Older Light-Duty 

Motor Vehicles 

1. Enleanment 

2. Material Compatibility 

3. Motor Vehicle Population and 

Anticipated Emissions Impact 

D. Heavy-duty Gasoline Engines and 

Vehicles 

E. Motorcycles 

F. Nonroad Engines, Vehicles, and 

Equipment (Nonroad Products) 

1. Introduction 

2. Enleanment 

3. Material Compatibility and Corrosion 

4. Phase Separation and Solvency/ 

Detergency 

G. Model Year 2007 and Newer Light-duty 

Motor Vehicles 

H. Model Year 2001–2006 Motor Vehicles 

I. Emissions Impact Summary and 

Conclusions 

VII. What is our legal authority for proposing 

these misfueling mitigation measures? 

A. Health and Welfare Concerns of Air 

Pollution Caused by E15 

B. Impact of E15 Emission Products on 

Emission Control Systems 

C. Effect of Misfueling Mitigation Measures 

on the Use of Other Fuels or Fuel 

Additives 

VIII. Public Participation 

A. How Do I Submit Comments? 

B. How Should I Submit CBI to the 

Agency? 

C. Will There Be a Public Hearing? 

D. Comment Period 

E. What Should I Consider as I Prepare My 

Comments for EPA? 

IX. Administrative Requirements 


srobinson on DSKHWCL6B1PROD with PROPOSALS2
68046 Federal Register / Vol. 75, No. 213 / Thursday, November 4, 2010 / Proposed Rules 

1For 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. 

2For purposes of this preamble on and offhighway motorcycles are referred to collectively as 

‘‘motorcycles.’’ 3For purposes of this preamble, nonroad engines, 

vehicles, and equipment are referred to as ‘‘nonroad 

products.’’ 

A. Executive Order 12866: Regulatory 

Planning and 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 

I. Overview 

In today’s action, the U.S. 

Environmental Protection Agency (EPA 

or the Agency) is proposing regulations 

to mitigate the potential for misfueling 

of vehicles and engines with gasoline 

containing up to 15 vol% ethanol 

(E15).1 These regulations are being 

proposed in conjunction with today’s 

action by EPA granting of a partial 

waiver for ethanol blends up to 15 vol% 

ethanol under section 211(f)(4) of the 

Clean Air Act (CAA or the Act). This 

partial waiver will allow the 

introduction into commerce of E15 for 

use in 2007 model year (MY) and newer 

light-duty motor vehicles. In partially 

granting the E15 waiver, EPA imposed 

a number of conditions on the refiners 

and renewable fuel producers subject to 

the waiver. These conditions are 

designed to help ensure that E15 is 

introduced into commerce for use in 

MY2007 and newer light-duty motor 

vehicles and flexible-fueled vehicles, 

and not for use in any other vehicles or 

engines. Some of the regulatory 

provisions proposed today parallel 

those conditions and are expected to be 

a more efficient way to help ensure that 

the conditions of the E15 partial waiver 

decision are met and to minimize in-use 

emissions increases that might result 

from misfueling vehicles and engines 

with E15. The proposed safeguards 

would also promote the successful 

introduction of E15 into commerce. 

We are proposing four requirements 

as part of our misfueling mitigation 

regulations. The first requirement, 

consistent with the partial waiver being 

granted today, is a prohibition against 

using E15 in MY2000 and older motor 

vehicles, heavy-duty gasoline engines 

and vehicles, on and off-highway 

motorcycles,2 and nonroad engines, 

vehicles, and equipment.3 This 

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 prohibitions proposed 

today would apply at the retail level as 

well as upstream. The conditions on the 

partial waiver and the regulations 

proposed today are similar in nature 

and have a common goal—ensuring that 

E15 is used in appropriate motor 

vehicles covered by the partial waiver, 

and is not used in other motor vehicles 

and engines. Since the Agency is 

deferring a decision for MY2001–2006 

light-duty motor vehicles, we are not 

proposing a prohibition with respect to 

the fuel used in these motor vehicles at 

this time. DOE testing of MY2001–2006 

light-duty motor vehicles is ongoing and 

EPA expects to make a waiver 

determination for these vehicles shortly 

after the results of the DOE testing are 

available. If EPA does not grant an E15 

waiver for MY2001–2006 light-duty 

motor vehicles, then we would expect to 

include the same prohibitions for these 

MY motor vehicles in the final 

rulemaking. 

Second, we are proposing labeling 

requirements for fuel pumps that 

dispense E15 to effectively inform 

consumers regarding the appropriate 

fuel to be used in vehicles and engines. 

Third, EPA proposes that product 

transfer documents (PTDs) from 

refiners, gasoline terminals, and 

oxygenate blenders specify the ethanol 

content or approved level of ethanol 

addition, of the fuel being sold to retail 

stations or wholesale purchaserconsumer to ensure that retail stations 

and wholesale purchaser-consumers 

know the level of ethanol content they 

are buying so that, in turn, the retail 

pumps can be properly labeled. Fourth, 

EPA proposes a national survey 

requirement on ethanol producers and 

the blenders of E15 (e.g., refiners, 

gasoline terminals, oxygenate blenders) 

to ensure that retail station pumps are 

in fact being labeled properly. EPA is 

seeking comment on including an RVP 

component to this national E15 labeling 

survey to help ensure that summertime 

RVP requirements are being met 

throughout the gasoline distribution 

chain. To avoid confusion for 

consumers when pumps are not labeled, 

the Agency is also seeking comment on 

requiring the labeling of non-E15 

pumps. The Agency has used such 

misfueling mitigation strategies to 

implement several fuel programs over 

the past thirty years, including the 

unleaded gasoline program, the RFG 

program, and the diesel sulfur program. 

The Agency believes that the misfueling 

mitigation measures proposed in this 

rulemaking, coupled with the E15 

waiver and a substantial consumer 

education and outreach effort by 

industry, can be an effective strategy to 

help reduce misfueling and the 

associated emissions impacts while 

enabling the use of E15 in appropriate 

vehicles. 

The misfueling mitigation program 

proposed today generally mirrors the 

misfueling conditions in today’s partial 

waiver decision. While the waiver 

provides an opportunity for a fuel or 

fuel additive manufacturer to meet the 

conditions, the Agency believes that the 

proposed safeguards would provide the 

most practical method of addressing the 

purposes and satisfying the conditions 

of today’s partial waiver decision. 

These misfueling mitigation 

regulations are proposed under CAA 

section 211(c), based on the projected 

emission increases that would be 

avoided by deterring the use of E15 in 

older motor vehicles, heavy-duty 

gasoline engines and vehicles, 

motorcycles and nonroad products. 

Engineering judgment supported by test 

data, where available, forms the basis 

for our technical review and 

conclusions. Our engineering 

assessment described in Section VI 

identifies a number of emissions related 

concerns with the long-term use of E15 

in MY2000 and older light-duty motor 

vehicles, heavy-duty gasoline engines 

and vehicles, motorcycles, and nonroad 

products. 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 

nonroad products and for motorcycles 

the misfueling concerns include not 

only the potential for elevated exhaust 

and evaporative emissions but also the 

potential for engine failure from 

overheating. While it is not possible to 

quantify precisely the frequency at 

which motor vehicles and nonroad 

products might experience these 

problems with the use of E15, we 

believe that emissions related problems 

could potentially occur with enough 

frequency that the resulting emission 

benefits from avoiding misfueling 

would outweigh the relatively low cost 

imposed by the proposed regulations. 

This would justify the proposed rule, 


srobinson on DSKHWCL6B1PROD with PROPOSALS2
Federal Register / Vol. 75, No. 213 / Thursday, November 4, 2010 / Proposed Rules 68047 

4See Partial Grant and Partial Denial of Clean Air 

Act Waiver Application Submitted by Growth 

Energy to Increase the Allowable Ethanol Content 

of Gasoline to 15 Percent; Decision of the 

Administrator elsewhere in this issue of the Federal 

Register. 

5See Partial Grant and Partial Denial of Clean Air 

Act Waiver Application Submitted by Growth 

Energy to Increase the Allowable Ethanol Content 

of Gasoline to 15 Percent; Decision of the 

Administrator elsewhere in this issue of the Federal 

Register. 

6The effect of E20 ethanol fuel on vehicle 

emissions, B Hilton and B Duddy, Center for 

Integrated Manufacturing Studies, Rochester 

Institute of Technology, June 26, 2009. See Docket 

ID No. EPA–HQ–OAR–2010–0448. 

7See section IV.A. for more information on the 

1.0 psi RVP waiver. 

even if a very low percentage of vehicle 

and engines experiences problems. 

As described below in Section VI and 

in the E15 partial waiver decision 

document,4 our assessment indicates 

that manufacturers have designed at 

least MY2007 and newer light-duty 

motor vehicles to be durable for use on 

gasoline blends up to E15. This 

conclusion is primarily based on the 

recently completed catalyst durability 

test program conducted by the 

Department of Energy (DOE) wherein 

they tested 19 vehicle models 

representative of the Tier 2 motor 

vehicle fleet out to their full useful life. 

The study found that Tier 2 motor 

vehicles continued to meet their 

emissions standards after operating on 

E15 for full useful life mileage 

accumulation. Additionally, according 

to our analysis of the DOE test data, for 

Tier 2 motor vehicles we found no 

statistically significant increases in the 

emissions of regulated pollutants for 

motor vehicles operating on E15, and no 

apparent material compatibility issues, 

when compared to vehicles that were 

operated on E0.5 These results confirm 

our engineering assessment that 

MY2007 and newer motor vehicle’s 

emissions should be less sensitive to the 

increased ethanol content in E15. This 

engineering assessment is based on the 

advances in motor vehicle materials and 

technology in response to in-use 

experience with E10 and the 

requirement that motor vehicles comply 

with a series of important new EPA 

emission requirements over the years, 

e.g., enhanced evaporative emission 

standards and E10 durability testing, 

supplemental FTP emission standards, 

CAP2000 in-use durability 

requirements, and the Tier 2 motor 

vehicle standards themselves. 

For MY2001–2006 light-duty motor 

vehicles, it is currently less clear 

whether they could experience 

significant emission increases when 

fueled on E15 like MY2000 and older 

motor vehicles, or continue to function 

properly like the newer 2007 and newer 

motor vehicles. On the one hand we 

believe that many of the same elements 

for ethanol compatibility of MY2007 

and newer light-duty motor vehicles 

also apply to MY2001–2006 light-duty 

motor vehicles (e.g., enhanced 

evaporative emission standards, SFTP, 

CAP2000). On the other hand, they were 

not all required to demonstrate 

evaporative emission system durability 

on E10 or to upgrade their catalyst and 

emission control systems to the extent 

needed to comply with the Tier 2 

standards. Furthermore, currently 

available test data on these model year 

vehicles is much more limited. DOE is 

in the process of developing relevant 

data for these model year vehicles. 

Specifically, DOE is conducting catalyst 

durability testing on six motor vehicle 

models certified to NLEV standards and 

two motor vehicles certified to Tier 1 

standards scheduled to be completed in 

November, 2010. Additionally, a study 

of in-use motor vehicles by Rochester 

Institute of Technology on E20 6

suggests such motor vehicles may 

operate acceptably on E20—and by 

interpolation E15. However, the mileage 

accumulation of RIT test vehicles is 

limited and the study is still ongoing 

until November 2010. This additional 

information, as well as information 

gathered through comment on this 

proposal and any final decision on a 

section 211(f) waiver for MY2001–2006 

light-duty motor vehicles, will be 

considered in the decisions made for the 

final rule. 

In addition to misfueling mitigation 

measures, today’s action also proposes 

slight modifications to the Reformulated 

Gasoline and Antidumping fuels 

programs to open the way for refiners 

and importers to produce and certify 

gasoline containing up to 15 vol% 

ethanol. 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 of each regulated pollutant 

based on the measured values of certain 

gasoline properties. For gasoline to be 

sold in the U.S., it must comply with 

the RFG and Antidumping standards 

and refiners are required to certify that 

their fuel meets the standards by using 

the Complex Model. Currently, the 

equations in the model are 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 is proposing to modify the 

Complex Model to allow fuel 

manufacturers to certify batches of E15 

fuel. 

Finally, EPA proposes to require that 

Reid Vapor Pressure (RVP) be identified 

on PTDs from fuel refineries to 

oxygenate blenders for conventional 

gasoline to ensure that EPA summertime 

RVP requirements are met. This is 

necessary because the waiver 

announced today is for blends that meet 

the summertime gasoline volatility 

standards for conventional gasoline.7 In 

order to introduce a fuel that meets both 

the Federal summertime RVP standards 

and contains between 10 and 15 vol% 

ethanol, fuel refiners would have to 

create a fuel or blendstock that has 

approximately 1.0 psi lower RVP than a 

fuel or blendstock intended for E10 due 

to the interaction between gasoline 

volatility and ethanol when blended. 

Oxygenate blenders would need to 

know the RVP of a blendstock or have 

the intended ethanol content of a 

blendstock be specified on the PTD to 

ensure that they know the correct 

amount of ethanol that should be 

blended into a fuel. The Agency is not 

proposing to change RFG PTD 

requirements found at 40 CFR 80.77 

since RVP is carefully controlled 

throughout the distribution chain in 

order to comply with summertime RFG 

VOC emissions performance standards. 

II. Background 

A. Statutory Authority 

CAA section 211(f)(1) makes it 

unlawful for any manufacturer of any 

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 


srobinson on DSKHWCL6B1PROD with PROPOSALS2
68048 Federal Register / Vol. 75, No. 213 / Thursday, November 4, 2010 / Proposed Rules 

8See 56 FR 5352 (February 11, 1991). 

9Since E15 has greater than 2.7 wt% oxygen 

content, E15 needs a waiver under CAA section 

211(f)(4). 

10See Partial Grant and Partial Denial of Clean 

Air Act Waiver Application Submitted by Growth 

Energy to Increase the Allowable Ethanol Content 

of Gasoline to 15 Percent; Decision of the 

Administrator elsewhere in this issue of the Federal 

Register. 

11Woertz, P.A. Letter to Lisa P. Jackson. 7 June 

2010. See Docket ID EPA–HQ–OAR–2009–0211. 

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.8 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 since EPA did not grant 

or deny a waiver request for a fuel 

containing 90% unleaded gasoline and 

10% ethyl alcohol within 180 days of 

receiving that request. This waiver by 

operation of law was based on the then 

current terms of CAA section 211(f)(4), 

which has subsequently been amended. 

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.’’ Today’s proposed 

misfueling regulations are based on this 

authority in section 211(c)(1), as well as 

our recordkeeping and information 

collection authority under sections 208 

and 114. 

B. E15 Waiver Request 

On March 6, 2009, Growth Energy and 

54 ethanol manufacturers submitted an 

application to EPA for a waiver under 

section 211(f)(4) of the CAA. This 

application sought a waiver for ethanolgasoline blends of up to 15 vol% 

ethanol.9 On April 21, 2009, EPA 

published notice of the receipt of the 

application, and, as required by CAA 

section 211(f)(4) of the Act, EPA 

requested public comment on all 

aspects of the waiver application, to 

assist the Administrator in determining 

whether the statutory basis for granting 

the waiver request for ethanol-gasoline 

blends containing up to 15 vol% 

ethanol had been met. (See 74 FR 

18228). 

In a separate action today, EPA 

waived the prohibition in CAA section 

211(f)(1) to allow introduction into 

commerce of E15 for use in MY2007 and 

newer light-duty motor vehicles, 

including passenger cars, light-duty 

trucks and medium duty passenger 

vehicles (hereafter light-duty motor 

vehicles). EPA is deferring a decision 

concerning MY2001–2006 light-duty 

motor vehicles, and has denied the 

waiver for all other motor vehicles.10

EPA’s partial waiver decision is 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. EPA is still 

evaluating the effect of E15 on MY2001– 

2006 light-duty motor vehicles to 

determine whether a waiver of CAA 

section 211(f)(1) is appropriate for use of 

E15 in those motor vehicles. EPA also 

decided that it could not make such a 

determination and therefore was 

denying the waiver for all other motor 

vehicles, including MY2000 and older 

light-duty motor vehicles. EPA requests 

comment and additional information 

regarding the use of E15 in MY 2000 

and older motor vehicles. 

EPA issued the partial waiver with 

several conditions, some of which 

would be fulfilled by the safeguards 

being proposed today. The conditions 

apply to the upstream parties subject to 

the waiver (refiners, producers of 

ethanol and oxygenate 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, and fuel additive 

manufacturers (ethanol producers) 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 imposes 

different conditions on the different 

parties. Ethanol blenders, fuel 

manufacturers, and ethanol producers 

that introduce E15 into commerce are 

all responsible for making sure that 

appropriate labeling occurs on fuel 

pumps to mitigate potential misfueling. 

However, this condition, in particular, 

may be difficult for these parties to 

satisfy given their limited control over 

actions taken at retail, which, as 

discussed below, prompted today’s 

proposal for fuel pump labels. All three 

parties are also responsible for 

conducting fuel pump labeling surveys 

to ensure that pumps are properly 

labeled and that the correct ethanol 

blends are loaded into the appropriate 

tanks at retail stations. Ethanol blenders 

and fuel manufacturers must also use 

PTDs to properly document information 

regarding the ethanol blends to help 

ensure proper blending and 

distribution. 

In June 2010 EPA received a request 

from ADM to consider, within the 

context of the E15 waiver application, a 

waiver for E12 for all motor vehicles.11

As discussed in the E15 waiver decision 

document, EPA concluded that there 

was insufficient basis to support such a 

waiver for motor vehicles or nonroad 

products beyond the MY2007 and 

newer model year light-duty motor 

vehicles for which the E15 waiver was 

being granted. 

C. Reasons for the Proposed Actions in 

This Rulemaking 

The proposed rules would directly 

prohibit or control the distribution and 

use of E15. The rules would apply to 

parties such as retail stations that are 

not directly subject to the conditions on 

the waiver. Collectively, these 

provisions would mitigate misfueling 

and maximize the likelihood that E15 is 

only used in approved motor vehicles. 

This would also promote the successful 

introduction of E15 into commerce. The 

specific provisions are discussed in 

detail in Sections III–V. 

In this action, the Agency is 

proposing to use its authority to help 

minimize the potential for emissions 

increases associated with misfueling 

with E15. Importantly, the proposed 

safeguards would also assist the ethanol 

producers and blenders in carrying out 

the conditions of the waiver. EPA 

realizes that ethanol blenders, fuel 

manufacturers, and ethanol producers 


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12Even though we are not proposing an actual 

prohibition for motor vehicles MY2001–2006, it is 

still unlawful to use E15 in these motor vehicles 

until an E15 waiver is granted for these motor 

vehicles. 

may have difficulty satisfying the 

conditions outlined in the E15 partial 

waiver decision, particularly the fuel 

pump labeling requirements. Most retail 

stations are independently owned and 

operated, which may make it difficult 

for the ethanol blenders, fuel 

manufacturers, and ethanol producers to 

ensure that labels are properly placed 

on fuel pumps dispensing E15. Under 

CAA section 211(f)(4), EPA is limited in 

what kind of conditions it can place on 

a waiver decision and on whom those 

conditions may be placed. For example, 

EPA placed the partial waiver 

conditions on the ethanol blenders, fuel 

manufacturers, and ethanol producers, 

the parties subject to the prohibition in 

section 211(f)(1), and not on the retail 

stations. This makes it difficult to 

ensure effective or complete pump 

labeling and misfueling mitigation. 

Without Agency action that requires the 

provisions proposed in today’s 

rulemaking (i.e. fuel pump labeling, 

PTDs, and a national survey), the 

conditions contained in the E15 partial 

waiver decision would likely make the 

distribution of E15 impracticable. 

However, 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 proposed use of this 

authority would also assist the ethanol 

blenders, fuel manufacturers, and 

ethanol producers in carrying out the 

conditions of the partial waiver so the 

conditions on the E15 partial waiver are 

properly implemented. Today’s 

rulemaking also provides EPA with 

additional tools for regulatory oversight 

of the ethanol blenders, fuel 

manufacturers, and ethanol producers 

introducing E15 into commerce. 

D. Federalism Implications 

As mentioned in Section II.A, the 

proposed prohibition regarding use of 

E15 in MY2000 and older vehicles, 

heavy-duty gasoline engines and 

vehicles, motorcycles, and nonroad 

engines, vehicles, and equipment is 

based on the authority in section 

211(c)(1) of the Act, as well as our 

recordkeeping and information 

collection authority under sections 208 

and 114. Section 211(c)(4)(A) of the 

CAA provides that no State or political 

subdivision thereof may prescribe or 

attempt 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). This 

prohibition applies to all States except 

California, as provided in section 

211(c)(4)(B). Also, section 211(c)(4)(A) 

applies only to controls or prohibitions 

respecting any characteristics or 

components of fuels or fuel additives for 

motor vehicles or motor vehicle engines, 

that is, highway vehicles. Therefore, a 

State control or prohibition would be 

preempted under section 211(c)(4)(A), 

only if it is ‘‘for the purposes of motor 

vehicle emission control.’’ Further, even 

if a State rule is established for purposes 

of motor vehicle emission control, it 

will not be preempted under section 

211(c)(4)(A) unless it is for the same 

‘‘characteristic or component of a fuel or 

fuel additive in a motor vehicle or motor 

vehicle engine’’ for which EPA has 

prescribed a control or prohibition 

under section 211(c)(1)(A). Today’s 

action proposes a rule that would limit 

the ethanol content in fuel used in 

certain vehicles and engines as well as 

proposes misfueling mitigation 

measures to effectuate that limitation. 

The Agency is not aware of any State 

rules or laws that would be preempted 

by today’s proposed rule if adopted. 

States have not controlled ethanol 

volumes in gasoline for purposes of 

motor vehicle emission control. Also, 

our rule would not require States to 

change their existing labels. The rule as 

proposed would impose no substantial 

direct costs, nor would it have any 

substantial direct effects on State or 

local governments. EPA requests 

comments on the issue of preemption of 

State fuel programs. 

Further, EPA consulted with State 

and local officials early in the process 

of developing the proposed action to 

permit them to have meaningful and 

timely input into its development. EPA 

met with members of the National 

Association of Clean Air Agencies 

(NACAA) to discuss the nature of 

today’s proposed rule. Additionally, we 

provided State and local governments 

an opportunity to provide comment on 

the implementation of misfueling 

mitigation measures for a partial E15 

waiver in both the RFS2 NPRM (see 74 

FR 25016) and the E15 waiver request 

notice (see 74 FR 18228). We received 

comments from only one State on this 

issue in the RFS2 NPRM, and it 

supported efforts for properly labeling 

fuel pumps containing gasoline-ethanol 

blends. 

III. Misfueling Mitigation Measures 

As explained above, CAA section 

211(c) grants the Agency authority to 

control or prohibit the distribution of a 

fuel or fuel additive when it will 

significantly impair emission controls or 

the emission products from that fuel 

will cause or contribute to air pollution 

that we reasonably anticipate may 

endanger public health or welfare. As 

more fully discussed in Section VI, we 

are proposing to prohibit use of E15 in 

MY2000 and older light-duty motor 

vehicles, and in all heavy-duty gasoline 

engines and vehicles, motorcycles and 

nonroad products based on the 

projected increased emissions that 

would occur from using E15 in those 

motor vehicles and nonroad products. 

We are also proposing to prohibit 

gasoline retail stations and wholesale 

purchaser-consumer facilities from 

selling E15 for use in these products if 

pumps at those locations are not 

properly labeled. Since the Agency is 

deferring a decision for MY2001–2006 

light-duty motor vehicles, we are not 

proposing a prohibition for fuel used in 

these motor vehicles at this time. DOE 

testing of MY2001–2006 light-duty 

motor vehicles is ongoing and EPA 

expects to make a waiver determination 

for these vehicles shortly after the 

results of the DOE testing are available. 

If EPA does not grant an E15 waiver for 

MY2001–2006 light-duty motor 

vehicles, then we would expect to 

include the same prohibitions for these 

MY motor vehicles in the final 

rulemaking .12

EPA is proposing a misfueling 

mitigation strategy to effectuate those 

proposed prohibitions and to more 

generally limit the use of E15 to 

MY2007 and newer light-duty motor 

vehicles as approved today in the E15 

partial waiver decision. We believe that 

there are four important components to 

an effective misfueling mitigation 

strategy for reducing the potential for 

misfueling with E15. First, effective 

labeling is a key factor. Labeling is 

needed to inform consumers of the 

potential impacts of using E15 in 

vehicles and engines not approved for 

its use, to mitigate the potential for 

intentional and unintentional 

misfueling of these vehicles and 

engines. Labeling is also done at the 

point of sale where the consumer most 

likely will be choosing which fuel to 

use. Second, retail stations and 

wholesale purchaser-consumers need 

assurance regarding the ethanol content 

of the fuel that they purchase so they 

can direct the fuel to the appropriate 

storage tank and properly label their 

fuel pumps. The use of proper 


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documentation in the form of PTDs has 

proven to be an effective means of both 

ensuring that retail stations know what 

fuel they are purchasing and as a 

possible defense for retail stations in 

cases of liability in the event of a 

violation of EPA standards. Third, 

national labeling and fuel sampling 

surveys are necessary to ensure that 

retail stations are complying with 

labeling requirements, ethanol blenders 

are not blending more than the stated 

amount of ethanol on PTDs, and 

assuring downstream compliance for 

fuel refiners. The Agency has used this 

general strategy to implement several 

fuel programs over the past thirty years, 

including the unleaded gasoline 

program, the RFG program, and the 

diesel sulfur program. EPA solicits 

comments on all of these provisions as 

more fully described below. 

The fourth component of an effective 

misfueling mitigation strategy is 

effective public outreach and consumer 

education. Outreach to consumers and 

stakeholders is critical to mitigate 

misfueling incidents that can result in 

increased emissions and vehicle or 

engine damage. Consumers will need to 

be engaged through a variety of media 

to ensure that accurate information is 

conveyed to the owners and operators of 

vehicles and engines. 

The misfueling mitigation program 

proposed today generally mirrors the 

misfueling conditions in today’s partial 

waiver decision. While the waiver 

provides an opportunity for a fuel or 

fuel additive manufacturer to meet the 

conditions, the Agency believes that the 

proposed the measures would provide 

the most practical method of meeting 

the purposes of and satisfying the 

conditions of today’s partial waiver 

decision. 

A. Labeling Requirements 

Today’s rule proposes to require that 

retailers and wholesale purchaserconsumers who choose to sell or 

dispense E15 must label any dispensers 

of this gasoline-ethanol blend. We are 

also seeking comment on requiring that 

dispensers of other gasoline-ethanol 

blends that contain 10 vol% ethanol or 

less to be labeled at such time as a retail 

station chooses to dispense E15 to help 

alleviate any confusion to consumers. 

Additionally, we seek comment on 

requiring labels for E85 pumps and 

blender pumps. 

1. E15 Labels 

We are proposing requirements that 

gasoline pumps dispensing E15 be 

labeled. The label would have to 

indicate that the fuel contains up to 15 

vol% ethanol—that is, the fuel is a 

gasoline-ethanol blend that contains 

greater than 10 vol% ethanol but not 

more than 15 vol% ethanol. Retailers 

and wholesale purchaser-consumers 

who choose to sell E15 would be 

required to label pumps dispensing E15, 

clearly indicating that the fuel should 

not be used in MY2000 and older motor 

vehicles, motorcycles, heavy-duty 

gasoline engines and vehicles, or any 

nonroad products. However, EPA also 

proposes that the label would be 

modified if the E15 waiver is extended 

to earlier model year vehicles and/or 

nonroad products. 

Based on the Agency’s experience 

with fuel pump labeling for Ultra-Low 

Sulfur Diesel (ULSD) and Low Sulfur 

Diesel (LSD) (see 40 CFR 80.570), there 

are four important elements to an 

effective label for misfueling. The 

Agency proposes that the language of 

the E15 label would have four 

components: (1) An information 

component; (2) a legal approval 

component; (3) a technical warning 

component; and (4) a legal warning 

component. Together, these four 

components highlight the critical 

information necessary to inform 

consumers about the impacts of using 

E15. 

a. Information Component 

The first component informs 

consumers of the maximum ethanol 

content the fuel may contain. For E15, 

the Agency proposes that the 

information component of the label 

should contain two aspects, both an 

acronym for the fuel (in this case E15) 

and a description of what the acronym 

means (in this case informing 

consumers that the fuel may consist of 

a range of ethanol up to a maximum of 

15 vol% ethanol by volume). We 

propose that this component of the label 

read: 

This fuel contains 15% ethanol maximum 

We propose that this label be applied to 

any fuel dispenser with greater than 

10% ethanol but not more than 15 vol% 

ethanol. Thus, in the case of any midgrade fuel that might be blended from 

E10 and E15, it would also be required 

to have the E15 label. 

b. Legal Approval Component 

The second component of the label 

language would include information 

that informs consumers of what vehicles 

and engines are approved to use E15, 

mirroring EPA’s decisions taken in the 

waiver context. Since EPA granted a 

partial waiver of E15 limiting its legal 

use to MY2007 and later light-duty 

motor vehicles, its use is only permitted 

in these motor vehicles. Based on the 

partial waiver, the Agency proposes that 

this 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 discussed elsewhere in today’s 

proposal, if EPA decides to include 

more model years in a subsequent 

waiver decision based on the findings of 

the testing program, then the model year 

distinction on the label would also need 

to be adjusted accordingly. We 

anticipate this will occur before this 

rulemaking is finalized, and we will 

make that adjustment in the final rule. 

Therefore, the proposed language could 

read as follows: 

Use only in: 

2001 and newer gasoline cars 

2001 and newer light-duty trucks 

Flex-fuel vehicles. 

c. Technical Warning Component 

The third component of the label 

language would alert consumers that 

use of E15 in other engines, vehicles, 

and equipment might cause damage to 

these products. Our experience with 

past labeling provisions supports the 

need for both the legal and technical 

warning so that consumers are informed 

of the reason for the prohibition. As 

discussed more fully in Section VI, it 

appears that use of E15 in these 

particular products may not only lead to 

increased emissions but also has the 

potential, even if limited in nature, to 

lead to damage of motor vehicle and 

nonroad product components. Without 

this component to the label, consumers 

may more likely be tempted to 

misfuel—particularly if the price in the 

marketplace for E15 is lower than E10. 

Therefore, EPA proposes the following 

language: ‘‘This fuel might damage other 

vehicles or engines.’’ 

d. Legal Warning Component 

The fourth component of the label 

would inform consumers that using E15 

in a vehicle or engine not approved for 

E15 use violates Federal law. This is 

similar to the approach used to mitigate 

the use of LSD in 2007 and newer onhighway diesel engines. Based on that 

experience, EPA believes that explicitly 

notifying consumers that E15 is 

prohibited by Federal law for use in 

MY2000 and older motor vehicles, 

heavy-duty gasoline engines and 

vehicles, on and off-highway 

motorcycles, and all nonroad products 

will result in consumers being less 

likely to misfuel. 

Based on the language currently used 

on the LSD label (see 40 CFR 80.570), 

the Agency proposes that the label read 


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as follows: ‘‘Federal law prohibits its use 

in other vehicles and engines.’’ 

The Agency has traditionally had 

‘‘WARNING’’ language appear before the 

legal warning component to better draw 

consumers’ attention to the prohibition 

of using a fuel in certain vehicles and 

engines (e.g. LSD in 2007 and newer 

highway diesel vehicles). After 

consultation with stakeholders, it was 

suggested that the Agency should both 

change ‘‘WARNING’’ to ‘‘CAUTION!’’ 

and place this language at the top of the 

label. This would draw consumer 

attention to the label and help mitigate 

both intentional and unintentional 

misfueling. Therefore, we propose to 

have the word ‘‘CAUTION!’’ appear at 

the top of the label before the 

information component. The Agency 

also considered the use of the word 

‘‘ATTENTION’’ instead of ‘‘WARNING’’ 

or ‘‘CAUTION.’’ We specifically seek 

comment on using the term 

‘‘CAUTION!’’ versus ‘‘WARNING’’ or 

‘‘ATTENTION’’. In addition, the Agency 

is also interested in whether using 

‘‘STOP’’, with or without including a 

depiction of a stop sign, would be an 

appropriate way to draw consumers’ 

attention to the label. We seek comment 

on whether there are other words that 

would better convey the message to 

consumers. 

e. E15 Label Proposal 

Taken together, the Agency proposes 

the following E15 label: 

EPA seeks comment on all aspects of 

the label language. For example, we 

seek comment on whether any 

additional label language should be 

required or whether any language 

should be removed. In particular, we 

seek comment on ways to portray the 

information in ways that are the most 

concise and meaningful to consumers. 

EPA proposes that the pump labels for 

E15 be required to be placed on pumps 

that will dispense E15 prior to any 

commercial sale of E15. 

One issue that arose from the labeling 

provisions of the diesel sulfur program 

was that the diesel sulfur labeling 

provisions were written in a way that 

allowed flexibility in color and design, 

causing retailers difficulty with coming 

up with a suitable design that satisfied 

EPA labeling requirements at the least 

possible cost. To help address this issue, 

stakeholders met with EPA to discuss 

standardized label designs that would 

both satisfy EPA diesel sulfur 

requirements and make it easier for 

retail stations to procure labels. Labeling 

templates were designed and made 

available to retail stations to use. Based 

on this experience, we are proposing 

more explicit specifications for the E15 

label, covering not only the content, but 

also the appearance of the E15 pump 

label. 

In today’s rulemaking, we are 

proposing similar appearance and 

placement requirements for the E15 

labels that were required for the diesel 

sulfur program labels. We propose that 

the titles of the labels (e.g., E15) must be 

24-point, white, bold Arial font, the 

‘‘CAUTION!’’ text should also be red, 

uppercase 16-point bold type, the text in 

the labels which describes the ethanol 

content of the fuel must be 20-point 

type and that all other required language 

in the labels must be 14-point black, 

Arial font. We propose that the word 

‘‘prohibits’’ be in 14 point, black, bold, 

italic, Arial font. All text should be 

centered with the arrangement and 

spacing of the text consistent with the 

illustration. We further propose that the 

label be 3.625’’ width by 3.125’’ height 

and that the background for the area 

which includes ‘‘CAUTION!’’, the title 

(i.e. ‘‘E15’’), and the ethanol content (i.e., 

‘‘15% Ethanol Maximum) shall be 1- 

inch wide and neon-orange in color, 

except that a rectangular white 

background large enough to encompass 

‘‘CAUTION!’’ shall be superimposed on 

this neon-orange background. While we 

believe it is important to propose these 

specific label appearance requirements 

to aid in consumer recognition and 

avoid unnecessary burden on retailers 

in developing their own designs, we 

also recognize that there is a great deal 

of variation in the design of fuel pumps 

and dispensers throughout the nation. 

Consequently, we not only seek 

comment on all visual aspects of our 

proposed label, but also suggest that if 

changes are deemed necessary, 

regulated and other interested parties 

work together to provide us with a 

consensus recommendation in their 

comments, if possible. 

In addition to content and 

appearance, the placement of the label 

on the pump is also of concern given the 

limited space available on the fuel 

pump itself. In the diesel sulfur program 


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13 If the fuel contains no ethanol, it could be 

labeled as such. 

14FFVs are vehicles or engines that are designed 

to run on gasoline or gasoline-ethanol blends up to 

E85. 

we required that labels must be placed 

on the vertical surface of each pump 

housing and on each side that has gallon 

and price meters and that labels be on 

the upper two-thirds of the pump in a 

location where they are clearly visible 

(see 40 CFR 80.570(d)). We propose the 

same placement requirements for the 

E15 labels. However, since most States 

require labels for gasoline blended with 

ethanol and the Federal Trade 

Commission (FTC) requires labels 

specifying minimum octane levels 

across grades of gasoline, the addition of 

the proposed E15 label may impact 

placement of other labels required by 

State or Federal law. Furthermore, FTC 

has proposed a mid-level ethanol 

gasoline-blend label (described below) 

in addition to its octane label which 

may further confuse consumers and 

make E15 label placement difficult. The 

Agency seeks comment on the proposed 

placement of the E15 label in order to 

most effectively mitigate misfueling, 

while at the same time avoid 

interference with other labels on the 

pumps. 

2. Additional Fuel Pump Labeling 

Requirements 

In addition to the E15 label proposed 

above, the Agency is seeking comment 

on three additional fuel pump labels 

that would provide consistent labeling 

across all gasoline fuel pumps. First, the 

Agency seeks comment on requiring a 

label on gasoline dispensing fuel pumps 

that are dispensing fuels which contain 

ethanol in concentrations up to 10 vol% 

(‘‘E10 label’’).13 We further seek 

comment on whether E10 labels should 

be required at a retail station only if and 

when E15 is made available for sale at 

a particular retail station. Such an E10 

label would have similar appearance 

and location requirements to the E15 

label and the required label language 

would follow a similar form to that of 

the E15 label so as to standardize labels 

for consumers. 

The purpose of such a label would be 

to enhance the effectiveness of the E15 

label to protect against consumer 

misfueling and the associated emissions 

impacts. Without such labels, 

consumers may be confused regarding 

whether an unlabeled pump was 

appropriate for their vehicle or engine, 

undercutting the effectiveness and 

confidence in the E15 label. This 

approach is consistent with the labeling 

requirements we used in the diesel 

sulfur program where we required the 

use of labels specifying which type of 

diesel fuel (low-sulfur diesel, ultra-low 

sulfur diesel, etc.) was being dispensed 

from each pump dispensing diesel fuel. 

However, since increasing the number 

of labels will increase the total cost to 

retail stations by requiring that all 

gasoline dispensing fuel pumps at a 

station be labeled, we seek comment on 

the appropriateness of such a 

requirement. The Agency seeks 

comment on the following E10 label 

language: 

E10 

(Contains up to 10% Ethanol) 

For use in all gasoline vehicles and 

engines. 

The Agency also seeks comment on 

requiring a label on pumps distributing 

E85 fuel. E85 is fuel that contains up to 

85 vol% ethanol and at least 15 vol% 

gasoline, used by flex fuel vehicles 

(FFVs).14 As we noted in the RFS2 

NPRM, fuel retailers expressed concern 

that if E85 were priced low enough to 

encourage FFV owners to fuel on it 

more frequently, then owners of nonFFVs would also be enticed to misfuel 

on it (see 74 FR 24977). This could 

cause the vehicles and equipment to 

operate very poorly, increasing 

emissions, as well as cause potential 

long-term damage and long-term 

emissions increases. We believe that in 

most cases fuel pump labels warning 

that the use of E85 in non-flex fuel 

vehicles is illegal, can damage the 

vehicle, and can void vehicle 

manufacturer warranties may be a 

sufficient disincentive to mitigate 

intentional misfueling. Non-FFVs and 

nonroad products were not designed for 

operation on E85 and may experience 

serious emissions increases, operability, 

and driveability issues, particularly 

with prolonged use (e.g. accelerated 

catalyst deterioration, fuel system 

component failures, etc.). 

Such an E85 label would have similar 

appearance and location requirements 

to the E15 label (discussed above) and 

the required label language would 

follow a similar form to that of the E15 

label. The Agency seeks comment on 

the following E85 label language: 

E85 

(Contains up to 85% Ethanol) 

For use in flex-fuel vehicles only. 

WARNING 

Federal law prohibits use in all other 

vehicles and engines. 

May damage these vehicles and engines. 

We request comment on whether the 

proposed labeling requirements would 

provide sufficient warning to consumers 

not to refuel non-flex-fuel vehicles with 

E85. Additionally the Agency seeks 

comment on the label language for the 

E85 label. 

The Agency also seeks comment on 

requiring labels for so-called blender 

pumps. Blender pumps allow station 

owners to blend E85 and gasoline in 

their storage tanks to create intermediate 

gasoline-ethanol blends. This allows 

either station owners or potentially FFV 

drivers to choose which gasolineethanol blend they prefer, based on 

operating characteristics and price. 

During both the RFS2 and E15 waiver 

request comment periods, the Agency 

received several comments asking us to 

require labeling provisions for blender 

pumps to address misfueling. Similar to 

E85, consumers may misfuel their nonFFVs and engines on ethanol blends 

greater than 10% (greater than 15% for 

2007 and newer light-duty motor 

vehicles) due to possible price 

differences between intermediate 

ethanol blends and gasoline. Non-FFVs 

and nonroad products were not 

designed for operation on such high 

levels of ethanol and may experience 

serious emission, operability, and 

driveability issues, particularly with 

prolonged use (e.g. accelerated catalyst 

deterioration, fuel system component 

failures, etc.). 

Such a blender pump label would 

have similar appearance and location 

requirements to the E15 label (discussed 

above) and the required label language 

would follow a similar form to that of 

the E15 label. The Agency seeks 

comment on the following two blender 

pump label language options. The first 

option’s language addresses a situation 

where a vehicle operator can ‘‘dial’’ their 

own gasoline-ethanol blend level. 

E15–E85 

(Contains between 15% and 85% ethanol) 

For use in flex-fuel vehicles. 

WARNING 

Federal law prohibits use in all other 

vehicles and engines. 

May damage these vehicles. 

The second option’s language is to 

provide for a specific blend of higher 

than 15 vol% ethanol content within 

this range, in which case the station 

owner would replace the option 1’s 

language with the specific value. The 

language for option 2 would be as 

follows: 

EXX 

(Contains up to XX% Ethanol) 

For use in flex-fuel vehicles. 

WARNING 

Federal law prohibits use in all other 

vehicles and engines 

May damage these vehicles and engines. 

On this label, ‘‘XX’’ is the exact 

maximum ethanol content a fuel 

dispensed from a particular blender 


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Federal Register / Vol. 75, No. 213 / Thursday, November 4, 2010 / Proposed Rules 68053 

15Buis, T. Letter to Karl Simon. 4 April 2010. See 

Docket ID No. EPA–HQ–OAR–2010–0448. 

16See Docket ID No. EPA–HQ–OAR–2010–0448. 

17Federal Trade Commission, ‘‘# 335; FTC File 

No. R811005; 16 CFR Part 306: The Federal Trade 

Commission Rule For Automotive Fuel Ratings, 

Certification and Posting: Notice of Proposed 

Rulemaking and Request for Comments.’’ September 

2010. Available at http://www.ftc.gov/os/comments/ 

fuelratingnprm/index.shtm. 

18Currently, ethanol blending typically takes 

place at the terminal. Evaluations are underway 

which may facilitate the shipment of ethanolgasoline blends by pipeline to terminals. Hence, 

although the proposed PTD requirements regarding 

maximum ethanol content currently would 

typically apply to parties downstream of the 

terminal, parties upstream of the terminal may need 

to include information on maximum ethanol 

concentration on product PTDs in the future. 

19This is dependent on the proper amount of 

ethanol being added to the blendstock, and on the 

product being segregated from all products with a 

different RVP. 

20Such as, ‘‘Designed for the special RVP 

provisions for ethanol blends. Do not blend with 

gasoline containing less than 9 vol% ethanol or 

E15.’’ 

pump setting is expected to dispense 

that is greater than 15 vol% ethanol. 

The blender pump labels would not 

need to specify blends containing 

between 10 and 15% ethanol because 

any such fuel pumps would be required 

to display the E15 label. However, since 

a blender pump may dispense several 

intermediate ethanol blends (e.g. E20, 

E30, E40, etc.), the label should specify 

a range of ethanol content from E15 

through E85. Therefore, under this 

second option the blender pump would 

have multiple labels for each of the 

blends that the pump dispenses. 

3. Stakeholder Labeling Suggestions 

In anticipation of this proposal, EPA 

met with several stakeholders to discuss 

the potential label language used for the 

E15 label language. To date, the Agency 

has received label language suggestions 

from Growth Energy.15 AllSAFE and the 

American Petroleum Institute provided 

EPA with their public comments to the 

FTC labeling proposal.16 Copies of these 

labeling recommendations may be 

viewed in the docket.17 We have 

considered the suggestions in these 

comments for our proposal, but 

nevertheless seek comment on whether 

and if so how to modify our label 

proposals based on these and other 

suggestions. 

4. FTC Labeling Proposal 

On February 26, 2010, the Federal 

Trade Commission (FTC) issued a 

proposed rulemaking that proposes 

explicit requirements for gasolineethanol blends that contain more than 

10 vol% ethanol and less than 70 vol% 

ethanol (‘‘Mid-Level Ethanol blends’’) 

(see 75 FR 12470). Since the FTC 

labeling proposal did not contemplate 

the granting of a waiver for E15, it 

would have to be modified to be 

consistent with our recent E15 partial 

waiver decision. In addition, as 

discussed above, we believe it is 

important that the label contain certain 

components and language necessary to 

both inform and warn the consumer that 

are not fully captured in the FTC labels. 

Therefore, EPA is working with FTC 

to develop coordinated labeling 

requirements and seeks comment on 

how best to achieve this outcome. 

Preferably, one label would be 

developed that meets EPA and FTC 

labeling requirements, since imposing 

separate labeling requirements may 

confuse consumers and would 

ultimately limit the effectiveness of 

labeling to mitigate misfueling. 

Requiring two separate labels would 

also create issues concerning the 

placement of the E15 label and may 

impose an unnecessary burden on retail 

stations. Finally, we also believe that to 

ensure the effectiveness of all gasoline 

pump labels, it is important that they be 

of similar type and format (i.e. those for 

E10, E15, E85, and blender pumps). 

5. Labeling Requirements and Liability 

for Misfueling 

It is important to note that compliance 

with the labeling requirements specified 

in this rule does not protect responsible 

parties from liability for misfueling. 

Today’s regulations not only impose 

labeling requirements but also a 

prohibition of the sale or offer for sale 

of E15 for use in unapproved engines, 

vehicles, and equipment (see section 

III.G below). Compliance with the 

labeling requirement does not ensure 

that the responsible parties have not 

made prohibited sales. In addition, our 

regulations do not address issues of 

common law or contract liability 

between private parties. 

B. Product Transfer Document 

Requirements 

Product transfer documents (PTDs) 

are customarily generated and used in 

the course of business and are familiar 

to parties who transfer or receive 

blendstocks, base gasoline for oxygenate 

blending and oxygenated gasoline. In 

addition, EPA has historically put in 

place certain requirements for PTDs for 

reformulated gasoline blends and 

blendstocks to help ensure downstream 

compliance with our fuel standards. The 

introduction of E15 into the marketplace 

results in the need for additional 

information on the PTDs that 

accompany the transfer of gasoline and 

the base gasoline/gasoline blendstocks 

used for oxygenate blending, both for 

reformulated gasoline and conventional 

gasoline. The type of additional 

information needed is different 

upstream versus downstream of the 

point of ethanol addition. We believe 

that the additions discussed below to 

existing PTDs are necessary to minimize 

misfueling, to help ensure downstream 

compliance with our fuel standards, and 

thereby to support the introduction of 

E15. 

1. PTD Requirements Downstream of the 

Point of Ethanol Addition 

Downstream of the point where 

ethanol blending takes place, 

information on the maximum ethanol 

concentration in the ethanol blend is 

needed to help ensure that fuel 

shipments are delivered into the 

appropriate storage tanks at retail and 

fleet fueling facilities.18 Information on 

the maximum Reid Vapor Pressure 

(RVP) of E0, E10 and E15 blends is 

needed on PTDs to help ensure that the 

fuel is compliant with the applicable 

summertime RVP requirements. The 

RVP reported on the PTD for E10 and 

E15 blends could be based on the 

intended RVP that the manufacturer of 

the blendstock for oxygenate blending 

designed for as identified on the PTD for 

the blendstock.19 Therefore, RVP testing 

after the addition of ethanol would not 

be necessary to provide the information 

on RVP that would be required on the 

PTD. 

We are proposing that the following 

statements would be included on the 

PTDs for the various fuel blends: 

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’’. 

We request comment on whether 

additional language on E10 PTDs is 

needed to inform parties that a blend 

containing between 9 and 10 volume 

percent ethanol which benefits from the 

1 psi RVP waiver may not be 

commingled with an E0 or E15 blend.20

We request comment on whether any 

other additional information should be 


srobinson on DSKHWCL6B1PROD with PROPOSALS2
68054 Federal Register / Vol. 75, No. 213 / Thursday, November 4, 2010 / Proposed Rules 

21For purposes of this discussion, the blendstock 

or base gasoline (BOB) is typically referring to the 

fungible base gasoline produced at a refinery for the 

specific intention of adding ethanol. The fungible 

gasoline produced for this purpose is subject to all 

of the 40 CFR parts 79 and 80 regulations applicable 

to gasoline. However, under 40 CFR 80.101(d)(4), a 

refiner with direct control of the ethanol addition 

to the actual gasoline produced by that refiner may 

consider the final fuel including the ethanol when 

complying with part 79 and 80 regulations. 

22See section IV of this preamble for a discussion 

of the RVP requirements for E15 and E10. 

23 See Partial Grant and Partial Denial of Clean 

Air Act Waiver Application Submitted by Growth 

Energy to Increase the Allowable Ethanol Content 

of Gasoline to 15 Percent; Decision of the 

Administrator elsewhere in this issue of the Federal 

Register. 

provided on the PTDs for ethanol fuel 

blends. 

2. PTD Requirements Up to and 

Including the Point of Ethanol Addition 

Upstream of the point where E10 and 

E15 blends are manufactured, 

information is needed on the PTDs for 

base gasoline or gasoline blendstock 

used for oxygenate blending (BOB) 21 to 

facilitate ethanol blender compliance 

with the applicable EPA summertime 

RVP requirements.22 This information 

would need to include the maximum 

potential RVP of the BOB and the 

maximum ethanol concentration that 

may be added to the BOB. 

To satisfy these needs, we are 

proposing that PTDs for BOBs for use in 

the manufacture of ethanol blends that 

are subject to summertime RVP controls 

include the maximum RVP of the BOB. 

We are also proposing that such PTDs 

in non-RFG areas indicate what ethanol 

concentration is suitable to be blended 

with the BOB. The RFG requirements 

found at 40 CFR 80.77 already contain 

requirements that PTDs indicate what 

oxygenate and oxygenate amount are 

suitable to be blended with the 

reformulated blendstocks for oxygenate 

blending (RBOBs). 

We are proposing that the following 

statements would 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 1psi 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]’’ 

As we are proposing and seeking 

comment on blendstock commingling 

prohibitions in addition to those already 

in place for RFG (see section III.D.) we 

also request comment on whether 

additional information is needed on the 

PTDs for BOBs to help ensure that these 

blending restrictions are observed. We 

request comment on whether the 

following language should be added to 

the PTD for a BOB designed to take 

advantage of the 1psi allowance for E10 

in order to help prevent downstream 

violations of the RVP standards: ‘‘The 

use of this gasoline to manufacture a 

gasoline-ethanol blend with less than 9 

vol% ethanol or E15 may cause an RVP 

violation.’’ We request comment on 

whether any additional information 

should be provided on the PTDs for 

BOBs. 

3. General PTD Requirements 

We are proposing that on each 

occasion when any person transfers 

custody and/or ownership of any 

gasoline or base gasoline/gasoline 

blendstock used for oxygenate blending, 

the transferor would be required to 

provide the transferee with an 

appropriate PTD identifying the 

gasoline/blendstock/base gasoline 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 

specific information described in this 

preamble. We are proposing that all 

parties would be required to retain PTDs 

for a period of not less than five years 

and would be required to provide them 

to EPA upon request. Five years is the 

normal record retention requirement for 

40 CFR part 80 fuels programs, such as 

the reformulated gasoline (RFG) 

program. 

We are proposing that PTDs would be 

required to be used by all parties in the 

distribution chain down to the point 

where the product is sold, dispensed, or 

otherwise made available to the ultimate 

consumer. We are proposing that 

product codes could be used to convey 

the information required as long as the 

codes are clearly understood by each 

transferee. However, we believe that 

product codes alone would not be 

sufficient for transfers to truck carriers, 

retailers, or wholesale-purchaser 

consumers. Hence, we are proposing 

that the full proposed text would need 

to be included on the PTD for transfers 

to truck carriers, retailers, or wholesalepurchaser consumers. 

Parties would be afforded significant 

freedom with regard to the form PTDs 

take under this proposal, although we 

are proposing that the PTDs would be 

required to travel in some manner 

(paper or electronically) with the 

volume of blendstock or fuel being 

transferred. The addition of the 

proposed information to PTDs would 

not require any additional testing of fuel 

composition. Adoption of these 

proposed changes would add a one-time 

burden to program and implement new 

product codes and statements, as well as 

a continuing small burden associated 

with using product codes and 

statements on PTDs. Given this and the 

fact that PTDs are used in the course of 

business, we believe that the proposed 

new PTD requirements could be readily 

accommodated by industry. The 

increased burden which would result 

from the adoption of these proposed 

PTD requirements is detailed in section 

IX.B. of this preamble. 

C. Retail Fuel Dispenser Label and Fuel 

Ethanol Content Survey 

To help mitigate the potential for 

misfueling, oversight of fuel retailer 

compliance with the proposed E15 

labeling requirements and of the actual 

ethanol content of the dispensed fuel in 

comparison to the information on the 

label is needed. To provide adequate 

oversight, EPA conditioned the E15 

partial waiver on a requirement that 

ethanol blenders, ethanol producers, 

ethanol importers, petroleum refiners, 

and petroleum importers participate in 

a survey of compliance at fuel retail 

facilities.23 The E15 partial waiver 

decision specified that an EPAapproved survey plan is to be in place 

prior to introduction of E15 to the 

marketplace and that the results of the 

survey must be provided to EPA for use 

in its enforcement and compliance 

assurance activities. 

Today’s notice contains our proposal 

on requiring a survey as part of a 

misfueling mitigation program. This 

proposal covers how the required 

survey should be formulated and 

conducted. As discussed in section 

III.G., we are proposing that the survey 

could be used to meet the periodic 

sampling and testing elements of a 

regulated party’s affirmative defenses to 

presumptive liability in cases where 

instances of noncompliance with the 

applicable maximum ethanol content 

specification are discovered. Should 

EPA finalize the additional labeling 

requirements that we requested 

comment on in section III.A.2. of this 

proposal, evaluation of retailer 

compliance with these labeling 

requirements would also be included in 

the survey. Regardless of whether we 

finalize labeling provisions, testing on 

the ethanol content of the fuel delivered 

from all non-FFV dispensers would 

need to be included in the survey to 

help mitigate misfueling. 

The survey requirements that we are 

proposing are based on an existing 


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Federal Register / Vol. 75, No. 213 / Thursday, November 4, 2010 / Proposed Rules 68055 

24Alternative Affirmative Defense Requirements 

for Ultra-Low Sulfur Diesel and Gasoline Benzene 

Technical Amendment, 75 FR 26121, May 11, 2010. 

25Transportation corridors would include areas 

immediately adjacent to the highways themselves 

and a swath within several miles on each side of 

the highway. For any given survey, a certain length 

of any specific highway might be deemed 

appropriate as a sampling unit or cluster. 

survey of compliance with the EPA 

labeling requirements for retail diesel 

fuel dispensers, and with the maximum 

allowable sulfur content of the diesel 

fuel delivered from these dispensers 

under EPA’s ULSD program. EPA 

recently codified the requirements for 

this diesel fuel survey in a direct final 

rule that became effective on July 12, 

2010.24 The reformulated gasoline (RFG) 

program also utilizes a compliance 

survey program to ensure seasonal RFG 

area requirements are met for predicted 

emissions performance based on average 

area fuel parameters. Based on the 

ULSD and RFG programs, we are 

proposing two options for obligated 

parties to satisfy the survey 

requirement. Survey Option 1 allows 

individual obligated parties to elect to 

individually survey gasoline and retail 

stations anywhere their fuel might be 

sold. Survey Option 2 allows obligated 

parties to form a consortium that 

contracts an independent survey 

association to conduct a national 

ethanol content and E15 labeling 

survey. 

For Survey Option 1, we propose that 

obligated parties choosing the 

individual survey option must survey 

labels and ethanol content at retail 

stations wherever their gasoline may be 

distributed if it may be blended as E15. 

Prior to conducting such a survey a 

survey plan would have to be approved 

by EPA. We seek comment on all 

aspects related to Survey Option 1. 

For Survey Option 2, we propose that 

the survey would consist of a 

nationwide program of sampling and 

testing designed to provide oversight of 

all retail stations that sell gasoline. 

Details of the proposed survey 

requirements are similar to those 

included in the ULSD and RFG 

programs. We propose that the survey 

organization would be required to 

submit survey plans on an annual basis 

that would be applicable from January 

1 through December 31. We propose 

that EPA would review the first survey 

plan within two months of its receipt. 

We propose that the survey organization 

would be required to submit subsequent 

survey plans to EPA for approval by 

November 1 of the year proceeding the 

calendar year in which the sampling 

and testing program would be 

implemented. The Agency also proposes 

that proof that the amount of money 

necessary has been paid to the surveyor 

is sent to EPA no later than December 

15 of the year proceeding the calendar 

year in which the sampling and testing 

program would be implemented. For the 

first annual survey, we propose that 

proof of payment be submitted to the 

Agency no later than one month before 

the sampling and testing program would 

be implemented. We seek comment on 

the deadlines for both the survey plan 

and proof of payment for the survey for 

the first survey and on subsequent 

surveys. 

We propose that the sampling and 

testing program would ensure 

comprehensive geographic coverage 

nationally representative of gasoline 

sold at retail outlets by providing 

proportionate coverage of gasoline 

across three sampling strata. These three 

strata generally refer to: (1) Densely 

populated areas, which include 

Metropolitan Statistical Areas and the 

reformulated gasoline control areas; (2) 

transportation corridors, which are 

based on interstate highways outside the 

densely populated areas;25 and (3) rural 

areas, which include all areas not 

included in the previous two strata. 

These areas would be subdivided into 

clusters, generally based on groupings of 

counties. The specific criteria used for 

selecting sampling areas for each survey 

plan would be subject to EPA approval. 

We seek comment on all aspects of the 

proposed elements that a survey plan 

should include. 

Comment is specifically requested on 

the criteria which should be used to 

determine the minimum sample size for 

the survey. The sampling and testing 

program would need to both accurately 

estimate the proportion of retail stations 

that are non-compliant with E15 

labeling and ethanol content 

requirements and provide a credible 

deterrent to deliberate or inadvertent 

violations of downstream enforcement 

standards. For the ULSD survey 

program, we require a minimum of 

5,250 samples annually. For a national 

survey looking at all gasoline retail 

stations, we believe the minimum 

number of samples needs to be greater 

because there are more than three times 

the number of retail stations that sell 

gasoline compared with stations that 

sell diesel. We propose that the survey 

take a minimum of 7,500 samples 

spread across four quarterly surveys. We 

also propose a sample size equation 

similar to the one used to determine 

sample sizes for the ULSD survey 

program (see equation in the proposed 

regulations at 80.1502(b)(4)(v)(A)). This 

equation bases sample size on the 

proportion of retail stations that are 

non-compliant. We seek comment on 

both the minimum number of samples 

and the method for determining samples 

sizes. 

Since initially E15 may be introduced 

into commerce in a limited geographical 

area, it may not be necessary to carry 

out the full survey or to carry it out 

nationwide. One way to potentially 

resolve this issue would be to limit the 

areas required to be surveyed to areas 

that are known to have E15 being 

distributed. Unfortunately, there are no 

reliable real-time data that show when 

E15 is first introduced into an area and 

it could take awhile for the proposed 

annual survey program to incorporate 

these new geographic areas. 

Additionally, the borders of such areas 

are difficult to define and constantly 

shift in response to market forces. This 

approach also undermines one of the 

stated purposes of the survey program, 

namely that the survey program helps 

deter either intentional or unintentional 

violations by increasing the likelihood 

of violators being randomly caught. If 

EPA allows only certain areas to be 

surveyed while excluding others, some 

parties may manufacturer, blend, or 

distribute E15 without properly 

identifying the fuel as E15 or properly 

labeling the fuel dispenser as dispensing 

E15. By the time the survey program 

caught up, motor vehicles and nonroad 

products not approved for E15 use may 

have been misfueled for a long time. On 

the other hand, if there were ways to 

properly identify areas that are 

distributing E15 real time, then limiting 

the survey to only those areas could 

considerably reduce the cost of 

compliance with the proposed survey 

requirements. The Agency seeks 

comment on ways to possibly limit 

surveys to only those areas that have 

E15 being introduced into commerce. 

Another option to limit survey 

requirements would be to require a 

national survey, but have a lower 

minimum sample size that gradually 

increases over time. Since the proposed 

approach for determining sample sizes 

above 7,500 discussed above is based on 

the proportion of retail stations that are 

noncompliant with ethanol content and/ 

or E15 labeling requirements, if there is 

very little E15 being introduced into the 

marketplace, the proportion of 

noncompliant retail stations would be 

small. In this case, 7,500 samples may 

be substantially higher than the number 

of samples required by the proposed 

method for determining sample sizes. 

Since this is most likely to occur at the 

beginning of the survey program, the 

survey program could gradually 

increase the annual minimum sample 


srobinson on DSKHWCL6B1PROD with PROPOSALS2
68056 Federal Register / Vol. 75, No. 213 / Thursday, November 4, 2010 / Proposed Rules 

size to reduce the burden to industry. 

For example, the Agency may only 

require a minimum of 2,000 samples the 

first full survey year (2012), 4,000 

samples in 2013, 6,000 samples in 2014, 

and 7,500 samples in 2015. We seek 

comment on this gradual minimum 

sample size approach and all other 

issues related to determining the 

minimum number of samples for a 

national ethanol content and E15 

labeling survey. 

We also are proposing that the 

independent survey association would 

ship fuel samples on the same day that 

the sample was collected and that the 

sample be analyzed for ethanol content 

within 24 hours from the time the 

samples were acquired. Although 

having such a short delivery time for 

fuel samples to be analyzed may 

increase costs, this time period is both 

consistent with other fuel survey 

programs and would allow ethanol 

content and E15 labeling violations 

found by the survey to be corrected 

quickly to mitigate misfueling. We seek 

comment on the proposed amount of 

time allowed for samples to be shipped 

for the analysis of ethanol content. 

For both survey options, we require 

that survey plans would include a 

methodology for determining when the 

survey samples will be collected, the 

locations of the retail outlets where the 

samples will be collected, the number of 

samples to be included in the survey, 

procedures that would prevent the 

advance notification of retail stations, 

and how individual retail stations will 

be determined for sampling. We propose 

that samples at retail stations be taken 

from all gasoline dispensers and have 

the samples tested for ethanol content 

and that retail stations be selected 

randomly with the probability of 

selection proportionate to the volume of 

gasoline sold at the retail outlet. We also 

propose that ethanol content be 

measured in accordance with a test 

method that meets the requirement of 40 

CFR 80.46(g). We seek comment on 

these requirements for survey plans and 

whether any additional requirements 

are necessary. We also seek comment on 

all matters related to the national 

ethanol content and E15 labeling survey 

proposed today. 

D. Program Outreach 

Effective outreach to consumers and 

stakeholders is often essential to the 

successful implementation of 

environmental protection programs. To 

implement the RFS program, for 

example, EPA provides training 

seminars for stakeholders and manages 

dedicated telephone and e-mail support 

lines. Various industry representatives 

and organizations provided program 

information and coordination to their 

members and customers as well as to 

facilitate the introduction of new 

program requirements this past July. 

In the case of E15, outreach to 

consumers and stakeholders may be 

critical to help mitigate misfueling 

incidents that can result in increased 

emissions or vehicle or engine damage. 

The potential for E15 misfueling 

incidents exists because consumers tend 

to choose the lowest priced fuel, and 

E15 may cost less than E10 since 

ethanol currently tends to be less 

expensive than gasoline. 

A recent example of successful 

outreach to consumers and stakeholders 

is the coordinated work done in support 

of the ULSD program. ULSD was a new 

fuel with the possibility of consumer 

misfueling that could result in engine 

damage. With ULSD, the fuel industry 

trade association API took the lead in 

working with stakeholders to establish 

the Clean Diesel Fuel Alliance (CDFA), 

a collaboration of public and private 

organizations designed to ensure a 

smooth program transition by providing 

comprehensive information and 

technical coordination. The 

organizations represented in the CDFA 

include engine manufacturers, fuel 

retailers, trucking fleets, DOE and EPA. 

CDFA efforts to educate ULSD users 

include developing technical guidance 

and educational information, including 

a Web site (http://www.clean-diesel.org), 

as well as serving as a central point of 

contact to address ULSD-related 

questions. 

The CDFA outreach model could 

prove beneficial in this case. EPA 

anticipates that all parties that may be 

involved in bringing higher gasolineethanol blends to market would 

participate in a coordinated industry-led 

consumer education and outreach effort. 

In the context of this program, potential 

key participants include ethanol 

producers, fuel manufacturers, 

automobile, engine and equipment 

manufacturers, States, nongovernmental organizations, parties in 

the fuel distribution system, EPA, DOE, 

and USDA. Potential education and 

outreach activities a public/private 

group could undertake include serving 

as a central clearinghouse for technical 

questions about E15 and its use, 

promoting best practices to educate 

consumers or mitigate misfueling 

instances, and developing educational 

materials and making them available to 

the public. 

Some stakeholders have also 

suggested that a Web site be created to 

inform consumers of the potential 

impacts of E15 on older motor vehicles, 

heavy-duty gasoline engines and 

vehicles, motorcycles, and nonroad 

products. Stakeholders have further 

suggested that, if a unique misfueling 

Web site is created, then EPA should 

require the Web site address to be 

displayed on the E15 label. EPA seeks 

comment on the appropriateness of a 

unique misfueling Web site and of 

including such a Web site address on 

the E15 label. 

E. What other means of mitigating 

misfueling were considered? 

EPA believes that the proposed 

misfueling mitigation approach will 

effectively and sufficiently mitigate 

misfueling based on our past 

experience. The Agency employed a 

similar and relevant misfueling 

mitigation program when ULSD was 

introduced in 2006. Retail stations and 

wholesale purchaser-consumers were 

required to have fuel dispenser labels 

indicating whether the diesel being 

dispensed was 500 ppm (low sulfur 

diesel or LSD) or 15 ppm (ULSD). 

MY2007 and newer on-highway diesel 

vehicles and engines were required to 

use ULSD and prohibited from using 

LSD. At the beginning of the ULSD 

program, we were aware of several 

instances where consumers, after 

checking the labels, had difficulty 

finding ULSD in some areas. Consumers 

were informed that misfueling would 

result in significant engine damage. We 

are not aware of any significant 

instances when misfueling occurred 

during this labeling program. This 

indicates that EPA outreach and 

information provided by the engine 

manufacturers, Clean Diesel Fuel 

Alliance, and other stakeholders, was 

effective in educating consumers and 

mitigating misfueling. Additionally, we 

feel that product transfer document 

requirements and the ULSD survey 

program were vital in implementing and 

enforcing this fuel transition. Based on 

the success of the ULSD program, we 

believe that similar requirements for 

E15 will be sufficient and successful. 

Some have argued that the ULSD 

program example is not applicable in 

this case since the MY2007 and newer 

on-highway diesel vehicles and engines 

were at risk from misfueling, whereas 

for E15, it is primarily older motor 

vehicles (i.e., MY2000 and older motor 

vehicles) that are at risk. While EPA 

believes that the potential for engine 

repair costs applies in both cases, the 

Agency also believes that similar 

misfueling mitigation measures can be 

effective for E15 as well. Coupled with 

an effective outreach and public 

education program, the proposed 

mitigation measures should deter 


srobinson on DSKHWCL6B1PROD with PROPOSALS2
Federal Register / Vol. 75, No. 213 / Thursday, November 4, 2010 / Proposed Rules 68057 

26American Petroleum Institute, ‘‘Evaluation of 

Measures to Mitigate Misfueling of Mid- to HighEthanol Blend Fuels at Fuel Dispensing Facilities,’’ 

EPA Docket # EPA–HQ–OAR–2010–0448. 

misfueling and encourage consumers to 

pay close attention to the E15 labels. 

Some have also argued that the ULSD 

program is not applicable because the 

ULSD program focused primarily on 

commercial truck drivers, who may be 

more cognizant of fuel choices due to 

the potential impact on their 

commercial investments, than the 

general public. We believe that 

consumers are also concerned about 

their private vehicles, and that the 

potential costs associated with 

misfueling (discussed below in section 

III.F) will have just as much of an 

impact in informing consumer fuel 

choices. As long as fuel dispensers are 

properly labeled and consumers are 

adequately informed of the associated 

risks of misfueling nonroad products 

and older motor vehicles on E15, we 

believe the proposed misfueling 

mitigation program will be effective. 

While EPA believes that the 

misfueling mitigation provisions 

included in today’s proposal will 

address potential misfueling concerns, 

we recognize that these provisions are 

not the only potential means for 

addressing misfueling concerns. EPA 

has received many suggestions for 

mitigating misfueling. For example, API 

conducted a scoping study, ‘‘Evaluation 

of Measures to Mitigate Misfueling of 

Mid- to High-Ethanol Blend Fuels at 

Fuel Dispensing Facilities,’’ that 

includes many of these suggestions. 

That study may be found in the 

docket.26

One suggestion in API’s study was to 

have full service attendants at gas 

stations that ensure E15 is only used in 

appropriate motor vehicles. While such 

a measure may be effective, its overall 

effectiveness is unknown and it would 

be a large burden on service stations to 

employ service attendants for this 

purpose. This option would come at an 

extremely large cost, and there would 

need to be significant training of new 

employees. API estimates the average 

annual cost per service station at 

$67,500 and the annual nationwide cost 

at $10.6 billion. Another suggestion was 

to have separate islands at service 

stations, with one for blends at E10 and 

below, and one for mid- and highgasoline-ethanol blends. It was noted 

that this measure would also likely 

cause congestion at the pumps, be 

inconvenient for the consumer, reduce 

the number of pumps available for 

higher-demand fuels, and not prevent 

intentional misfueling. API estimates 

the cost of separate islands at $700 per 

station and $40 million nationwide, 

though they did not cost out the 

consumer implications. 

Another option discussed is a 

measure in which keypads or 

touchscreens would be made available 

at each pump to allow consumers to 

input data about their motor vehicle or 

simply answer ‘‘yes’’ or ‘‘no’’ to the 

question of whether their motor vehicle 

is an FFV or non-FFV. If the motor 

vehicle is appropriate for the fuel, then 

the pump would allow fueling. If 

existing dispensers do not already have 

display screens, this strategy would 

require retail stations to install keypads 

or touchscreens at an approximate cost 

of $5,000 for dispensers that may be 

retrofitted, with the cost prohibitive for 

dispensers that may not be retrofitted. 

There may also be an additional cost per 

station of $10,000—$20,000 to install a 

central controller to accept motor 

vehicle information. Such a strategy 

may cause some congestion at the 

pumps. Intentional misfueling would 

not be prevented through such measure. 

Also discussed in the report was a 

strategy in which retail stations would 

have a video or audio presentation play 

when a mid- to high- gasoline-ethanol 

blend pump is lifted from the dispenser. 

The presentation would provide 

information to the consumer about 

E10+, which motor vehicles may fuel 

with it, and why other motor vehicles 

should not. Optionally, the consumer 

could be required to confirm fueling 

with E10+ at the end of the 

presentation. The cost of such an 

alternative for those stations without 

display screens, is estimated to be 

$5,000; if the existing dispenser could 

not be retrofitted with a display screen, 

there would be additional and 

considerable costs incurred for 

replacing a dispenser. Costs for this 

option could be as high as $20,000 per 

station. 

API also suggested that a different 

colored hand warmer or a different type 

of nozzle grip for fuel pumps with E15+ 

may help alert consumers to the new 

type of fuel without a large burden on 

retail stations. Hand nozzles for E15+ 

would be a different color than for other 

gasoline types, or would have a different 

texture from other hand grips. To be 

effective, one color or one type of grip 

should be used for E15+ on a national 

basis. Consumers would know by the 

color and/or texture that those pumps 

were for E15+. Some concerns about 

this option are that it would not be 

possible to distinguish nozzles that 

dispense both E10 and E15, some 

consumers may not notice the warmer 

or grip, and this would not prevent 

intentional misfueling. However, API 

believes that nozzle grips with different 

textures would be noticeable to most 

consumers, even those who do not read 

the pump labels. Also, hand nozzle 

grips are easy to install and replace as 

needed. API has estimated the cost at $5 

to $11 per nozzle with a national cost 

of $800,000 to $1.6 million. 

While many of the strategies 

discussed in the API study may be 

effective in communicating with the 

consumer about E15, EPA believes that 

the combination of pump labels, 

regulatory prohibition on misfueling, 

PTDs, a survey, and consumer outreach 

will adequately mitigate misfueling by 

consumers. The labels on the fuel 

pumps will notify consumers that the 

pump is for E15 and only certain MY 

motor vehicles should use that fuel. 

Consumer outreach will give the 

consumer more in-depth information, 

such as why older MY motor vehicles, 

heavy-duty gasoline engines and 

vehicles, motorcycles, and nonroad 

products should not fuel with E15 and 

what damage may occur from 

misfueling. The PTDs will help ensure 

that E15 is identified as such through 

the distribution chain, which will help 

prevent inadvertent mislabeling of fuel. 

Finally, a survey will identify where 

mislabeling (or no labeling) of E15 has 

occurred so that appropriate labels are 

used. 

Other options that have been 

suggested may be too expensive, 

difficult to implement, and/or otherwise 

not likely acceptable to consumers. As 

such, EPA does not deem it appropriate 

to include these options in today’s 

proposal. We seek comment on any 

other measures not proposed in the rule 

that the regulated industries and other 

interested parties feel may be necessary 

to mitigate misfueling. We seek 

comment on any other cost-effective 

mitigation measures that may be 

appropriate. If EPA considers requiring 

any other mitigation measures that are 

suggested by commenters in the final 

rule, EPA will conduct appropriate 

analyses of such measures, including 

the impacts on small businesses, before 

deciding whether to include such 

mitigation measures in the final rule. 

F. Cost of Compliance 

The cost of compliance with the 

provisions being proposed today 

include 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 is estimated at $1.04 

million per year on an annualized basis. 

The cost of the proposed PTD 


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68058 Federal Register / Vol. 75, No. 213 / Thursday, November 4, 2010 / Proposed Rules 

27RFS2 NPRM RIA page 581 (EPA–420–D–09– 

001; May, 2009); available at: http://www.epa.gov/ 

otaq/renewablefuels/420d09001.pdf). 

28National Petroleum News, ‘‘2008 marketfacts’’, 

states that there were 161,768 gasoline retail 

facilities in 2008 http://www.npnweb.com. 

29RFS2 Final RIA, page 232 (EPA–420–R–10– 

006; February 2010); available at: http:// 

www.epa.gov/otaq/renewablefuels/420r10006.pdf). 

30The National Association of Convenience 

Stores (NACS) 2006 State of the Industry Report 

states that for motor fuel retail stations that sell less 

than 75,000 gallons of all motor fuels, the average 

monthly throughput is 57,778 gallons. 

31Energy Information Administration (EIA) 

annual national average gasoline price data http:// 

www.eia.gov/dnav/pet/ 

pet_pri_gnd_dcus_nus_a.htm. 32See section IX.D. of this notice for additional 

discussion of potential impacts from today’s 

proposal on small businesses. 33 Including E0, E10, E15, EXX, and E85 fuel 

dispensers. See section III.A. of this notice. 34Section III.B. contains a discussion of the 

proposed PTD requirements. 

35See section III.C. for a discussion of the 

proposed survey provisions. 

36While this analysis is focused on small SI 

engines, note that other nonroad equipment/vehicle 

categories can incur higher expenses due to the 

higher complexity of the equipment/vehicle 

compared to small SI engines. 

requirements is estimated at $0.56 

million per year on an annualized basis. 

The cost of the proposed survey 

requirements is estimated at $2.05 

million per year. The total cost of all of 

the proposed requirements is estimated 

at $3.65 million per year. These 

estimated costs are detailed in the 

following sections. As discussed in 

section III.F.4, we believe that these 

costs will be more than offset by the 

avoided costs of repairing engines/ 

vehicles that could otherwise have been 

damaged by misfueling in the absence of 

the implementation of the proposed 

requirements. 

1. Labeling Costs 

Our estimate of the cost of the 

proposed E15 fuel dispenser labeling 

requirement includes the cost to the fuel 

retailer of purchasing the label, the 

administrative cost to ensure that all 

gasoline dispensers are labeled 

appropriately, and the labor cost to 

replace fuel dispenser labels. Based on 

our past experience with labeling 

programs, the RFS2 NPRM and industry 

input, the cost of an E15 label is 

estimated to be $5.00 per label.27 There 

are approximately 162,000 retail gas 

stations in the U.S. according to 

National Petroleum News.28 The RFS2 

Final RIA estimates that there is an 

average of 7.7 gasoline refueling 

positions per retail station.29 Thus, for 

a retail facility that has 8 refueling 

positions, the total cost if all of the 

dispenser labels are replaced would be 

$40.00. A number of fuel retailers are 

small businesses. However, we believe 

that the minor cost of label replacement 

would not represent a significant 

additional burden to any fuel retailer. 

Specifically, making the conservative 

assumption that there will be the 

maximum number of pumps (8) even for 

small stations and assuming an 8 year 

life before labels need to be replaced, 

the annualized cost to a service station 

is $5 per year. The amount of gasoline 

sold at a small service station is 

estimated to be approximately 60,000 

gallons/month.30 Assuming an average 

cost of gasoline at $2.31/gal (per the EIA 

2009 national average regular grade 

gasoline price) the annual revenue for a 

small service station from its gasoline 

sales is approximately $1.7 million.31

Thus, the cost of the labels represents 

less than 0.001% of the total annual 

revenue of a small gas station from its 

gasoline sales.32

Although we are requesting comment 

on whether all gasoline fuel dispensers 

should be labeled,33 today’s notice only 

includes proposed labeling 

requirements for E15 fuel dispensers. 

Nevertheless, we are assuming all 

gasoline refueling positions would be 

relabeled for the purposes of estimating 

the costs of this proposal. This approach 

provides a conservatively high estimate 

of costs if only the proposed E15 

labeling requirements are finalized. By 

multiplying the average number of 

gasoline refueling positions per retail 

facility, by the number of fuel retailers, 

and the cost per label, we arrived at an 

estimated cost of $6.23 million to 

replace all of the labels at gasoline 

refueling positions at all fuel retailers in 

the U.S. We assumed an 8 year label life 

before it needs to be replaced. 

Amortizing the periodic labeling costs 

using a 7% cost of capital, we estimate 

the annualized cost to comply with the 

proposed labeling provisions to be 

approximately $1.04 million per year. 

We request comments on these 

estimated costs. 

2. PTD Costs 

Section IX.B. of today’s preamble 

contains a discussion of the costs of the 

PTD requirements proposed in today’s 

notice.34 There would be a one-time cost 

of $5.1 million to regulated parties to 

modify the formatting of their existing 

PTDs to accommodate the new 

information which would be required as 

a result of the implementation of today’s 

proposal. 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 that would be 

required by today’s proposal 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 $560,000 for the 

proposed PTD requirements. We request 

comment on these estimated costs. 

3. Survey Costs 

The estimated costs of the proposed 

ethanol content and labeling survey are 

based on experience with the existing 

RFG and ULSD surveys and discussions 

with industry. The RFG survey includes 

all of the elements required in the 

proposed nationwide survey except the 

survey of compliance with the proposed 

labeling requirements. We estimate that 

the cost of adding the proposed survey 

of compliance with the proposed 

labeling requirements to the existing 

RFG survey at $50,000 per year. The 

cost to implement all of the proposed 

survey provisions for conventional 

gasoline is estimated at $2 million per 

year. Thus, the total cost of the 

proposed survey requirements is 

estimated to be $2.05 million per year.35

We request comments on this estimate. 

4. Avoided Motor Vehicle and Nonroad 

Product Repair Costs 

We believe that proposed labeling and 

associated survey and PTD provisions 

will be an effective tool at mitigating 

unintentional misfueling based on our 

experience with other labeling 

provisions (such as ULSD). The 

resulting prevention of misfueling will 

not only minimize the potential 

emission increases that could result (as 

discussed in section VI.I.), but also 

avoid potentially costly highway motor 

vehicle, heavy-duty gasoline engines 

and vehicles, motorcycles, and nonroad 

product repairs that would be 

anticipated to far exceed the cost of the 

labels. For example, based on a poll of 

automobile repair facilities, fuel pump 

and catalyst replacements average $427 

and $1,250, respectively. Similarly, for 

nonroad equipment, the cost for a fuel 

line repair of handheld equipment (e.g. 

trimmers, chainsaws) or non-handheld 

equipment (e.g. lawnmowers, 

generators) could cost $100-$400 (based 

on information received from repair 

facilities in Ann Arbor, Michigan and 

vicinity) and replacing this same 

equipment can range from $100 

(consumer handheld) to $5,000 

(commercial grade garden tractor) 

should the engine fail.36 While there are 

no data to estimate the frequency at 

which these repairs or other potential 

complications (discussed in section VI) 

associated with misfueling on E15 might 


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Federal Register / Vol. 75, No. 213 / Thursday, November 4, 2010 / Proposed Rules 68059 

37A violation of this prohibition could cause or 

contribute to vehicle misfueling downstream. 

38See 40 CFR 80.27. 39See section 80.5 (penalties for fuels violations); 

section 80.23 (liability for lead violations); section 

80.28 (liability for volatility violations); section 

80.30 (liability for diesel violations); section 80.79 

(liability for violation of RFG prohibited acts); 

section 80.80 (penalties for RFG/CG violations); 

section 80.395 (liability for gasoline sulfur 

violations); section 80.405 (penalties for gasoline 

sulfur regulations). 

40An additional type of liability, vicarious 

liability, is also imposed on branded refiners under 

these fuels programs. 

occur, even if these potential 

complications were avoided on a tiny 

fraction of MY2000 and older motor 

vehicles and nonroad products as a 

result of the regulations (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. We 

request comment on this assessment. 

G. Compliance and Enforcement 

1. What are the prohibited acts? 

There is a long-standing prohibition, 

under CAA section 211(f)(1), that fuel 

manufacturers may not introduce 

gasoline-ethanol blends containing 

greater than 10 vol% ethanol into 

commerce for use in non-flex-fuel 

vehicles. The partial waiver modifies 

this prohibition so that gasoline-ethanol 

blends containing up to 15 vol% 

ethanol may legally be introduced into 

commerce by fuel manufacturers for use 

in MY2007 and later light-duty motor 

vehicles. The waiver does not apply to 

any MY heavy-duty gasoline engine or 

vehicle, motorcycle, or nonroad 

product. 

We are proposing that all parties 

would be prohibited from selling, 

introducing into commerce or causing 

or allowing the sale or introduction into 

commerce of gasoline that has an 

ethanol content above 10 vol% ethanol 

into MY 2000 and older light-duty 

motor vehicles, any heavy-duty gasoline 

engine or vehicle, any motorcycle, and 

any nonroad product. We are also 

proposing that fuel distributors who 

transport or store a gasoline-ethanol 

blend, base gasoline or blendstock for 

ethanol blending would be prohibited 

from increasing the ethanol content to 

exceed the value noted on the PTD.37

Since the Agency is deferring a decision 

for MY2001–2006 motor vehicles, we 

are not proposing a prohibition for fuel 

used in these motor vehicles at this 

time. DOE testing of MY2001–2006 

light-duty motor vehicles is ongoing and 

EPA expects to make a waiver 

determination for these vehicles shortly 

after the results of the DOE testing are 

available. If EPA does not grant an E15 

waiver for MY2001–2006 light-duty 

motor vehicles, then we would expect to 

include the same prohibitions for these 

MY motor vehicles in the final 

rulemaking. Even though we are not 

proposing an actual prohibition for 

motor vehicles MY2001–2006, it is still 

unlawful for fuel manufacturers to 

introduce E15 into commerce for use in 

these motor vehicles unless we grant an 

E15 waiver for these motor vehicles. 

In addition to this general misfueling 

prohibition, there are several other 

prohibited acts that we are proposing in 

conjunction with the regulatory 

provisions being proposed today. We 

are proposing that retailers and 

wholesale purchaser consumers would 

be prohibited from dispensing E15 

unless they comply with the proposed 

dispenser labeling requirements in 

section III.A. of today’s preamble. We 

are proposing that ethanol blenders 

would be prohibited from introducing 

E15 into commerce without complying 

with the proposed ethanol content 

survey requirements in section III.C. of 

today’s preamble. 

In addition, there are several RVP 

related prohibitions that exist today that 

may need to be modified in light of E15. 

There is an existing prohibition with 

respect to exceeding applicable 

summertime RVP requirements.38 We 

are proposing to prohibit the 

commingling of an E10 gasoline-ethanol 

blend with either E0 or E15 due to 

potential concerns about causing a 

violation of summertime RVP 

requirements unless the E10 blend had 

not taken advantage of the 1 psi RVP 

waiver. For the same reasons, 

prohibitions on the commingling of 

BOBs is necessary. Therefore we are 

proposing certain prohibitions against 

commingling conventional gasoline 

BOBs similar to the prohibitions for 

reformulated blendstocks for oxygenate 

blending (RBOBs) in 40 CFR 80.78 

under the RFG program. Specifically, 

we are proposing to prohibit 

commingling an E10 BOB (produced to 

take advantage of the 1 psi RVP waiver) 

with an E15 BOB unless the resulting 

mixture is designated as an E10 BOB. 

We request comment on whether other 

modifications to these existing RVP 

related regulatory requirements are 

needed as a result of the introduction of 

E15. 

2. What are the proposed liability and 

penalty provisions for noncompliance? 

Today’s proposed rule contains 

prohibition and liability provisions that 

are similar to those of the other fuels 

programs in 40 CFR Part 80.39 Under the 

proposed regulation, regulated parties 

would be liable for committing certain 

prohibited acts, such as selling or 

distributing gasoline-ethanol blends 

with an ethanol content that exceeds the 

maximum for the intended end-use 

category of vehicles/engines, or causing/ 

contributing to others committing 

prohibited acts. In addition, parties 

would be liable for a failure to meet 

certain affirmative requirements or 

causing others to fail to meet their 

affirmative requirements. All parties in 

the fuel distribution system would be 

liable for a failure to fulfill the 

recordkeeping and PTD requirements. 

a. Presumptive Liability 

All EPA fuels programs include a 

presumptive liability scheme for 

violations of prohibited acts. Under this 

approach, liability is imposed on two 

types of parties: (1) The party in the fuel 

distribution system that controls the 

facility where the violation was found 

or has occurred; and (2) those parties, 

typically upstream in the fuel 

distribution system from the initially 

listed party (such as any distributor of 

the fuel), whose prohibited activities 

could have caused the program 

nonconformity to exist.40 This 

presumptive liability scheme has 

worked well in enabling us to enforce 

our fuels programs since it creates 

comprehensive liability for essentially 

all the potentially responsible parties. 

The presumptions of liability may be 

rebutted by establishing an affirmative 

defense. 

To clarify the inclusive nature of 

these presumptive liability schemes, 

today’s proposed rule would explicitly 

include as prohibitions causing another 

person to commit a prohibited act and 

causing the presence of a nonconforming gasoline-ethanol blend 

(such as a blend designated as 

containing less than 15 vol% ethanol 

which actually contains a greater 

concentration of ethanol) to be in the 

distribution system. This is consistent 

with the provisions and implementation 

of other fuels programs. 

Today’s proposed rule, therefore, 

provides that most parties involved in 

the chain of distribution would be 

subject to a presumption of liability for 

committing prohibited actions and 

causing violations by other parties. For 

example, an ethanol blender could be 

held presumptively liable for causing a 

gasoline-ethanol blend that exceeds the 

maximum ethanol content stated on the 

product’s PTD to be present in the 

distribution system unless the blender 

provides an affirmative defense to 


srobinson on DSKHWCL6B1PROD with PROPOSALS2
68060 Federal Register / Vol. 75, No. 213 / Thursday, November 4, 2010 / Proposed Rules 

41For example, an ethanol manufacturer might 

cause a downstream exceedance of maximum 

ethanol content requirements if they did not add 

the required amount of denaturant. 

42See section III.C. of today’s notice for a 

discussion of the ethanol content survey and 

section IV for a discussion of the RVP survey. 

demonstrate that it did not cause the 

exceedance. An ethanol blender could 

cause such an exceedance by adding too 

much ethanol to a blend or making an 

error on the PTD that they prepare. An 

ethanol manufacturer could be held 

presumptively liability for causing an 

exceedance of the maximum ethanol 

content requirements unless it could 

demonstrate that the ethanol it 

produced could not have caused the 

downstream violation.41 Like other fuels 

regulations, a refiner also would be 

subject to a presumption of vicarious 

liability for violations by any 

downstream facility that displays the 

refiner’s brand name, based on the 

refiner’s ability to exercise control at 

these facilities. Carriers, however, 

would be liable only for violations 

arising from product under their control 

or custody and not for causing nonconforming gasoline to be in the 

distribution system, except where 

specific evidence of causation exists. A 

carrier might cause an exceedance of the 

ethanol content stated on the PTD for 

product in its custody by commingling 

products with dissimilar ethanol 

contents. For example, a carrier might 

cause the ethanol content of a product 

designated as E15 to exceed 15 vol% 

ethanol by transporting the product in a 

tank truck that had previously 

transported E85 that had not been 

properly drained. 

b. Affirmative Defenses for Liable 

Parties 

This proposal also includes 

affirmative defenses for each party that 

is deemed liable for a violation. 

Additionally, all presumptions of 

liability are rebuttable. The proposed 

defenses are similar to the defenses 

available to parties for violations of the 

RFG and diesel sulfur regulations. We 

believe that these defense elements set 

forth reasonably attainable criteria to 

rebut a presumption of liability. We are 

proposing that the affirmative defense 

require a party to demonstrate all of the 

following: (1) The party did not commit 

or cause the violation; (2) the party has 

PTDs indicating that the fuel was in 

compliance at its facility; and (3) except 

for retailers and wholesale purchaserconsumers, the party conducted a 

quality assurance program. For parties 

other than tank truck carriers, we are 

proposing that the quality assurance 

program would be required to include 

periodic sampling and testing of 

gasoline-ethanol blends for their ethanol 

content. For tank truck carriers, we are 

proposing that the quality assurance 

program would not need to include 

periodic sampling and testing of the 

gasoline-ethanol blend, but in lieu of 

sampling and testing, the carrier would 

be required to demonstrate evidence of 

an oversight program for monitoring 

compliance, such as appropriate 

guidance to drivers on compliance with 

applicable requirements and the 

periodic review of records concerning 

the quality of gasoline-ethanol blends 

and their delivery. 

With respect to the assessment of 

liability for the introduction of E15 into 

any engines, vehicles or equipment that 

are not covered by the partial waiver for 

use of E15, EPA would typically not 

hold a self-service fuel retailer liable for 

customer misfueling if the retailer has 

labeled their dispensers appropriately 

and did not condone or facilitate such 

misfueling. 

We are proposing that participation in 

the ethanol content survey could be 

used to meet some or all of the periodic 

sampling and testing elements of a 

regulated party’s (e.g. branded refiners, 

ethanol blenders, and fuel distributors) 

affirmative defenses to presumptive 

liability in cases where instances of 

noncompliance with the applicable 

maximum ethanol content specification 

are discovered.42 In addition to 

participation in the survey, we are 

proposing that ethanol blenders would 

be required to periodically test the 

accuracy of their equipment/methods 

used to add ethanol to gasoline. We are 

proposing that all other regulated 

parties could satisfy all of the periodic 

sampling and testing elements of their 

affirmative defenses to presumptive 

liability by participating in the survey. 

As in other fuel regulations, branded 

refiners would be subject to more 

stringent standards for establishing a 

defense because of the control such 

refiners have over branded downstream 

parties. Under today’s rule, in addition 

to other presumptive liability defense 

elements, we are proposing that branded 

refiners would also be required to show 

that the violation was caused by an 

action by another person in violation of 

law, an action by another person in 

violation of a contractual agreement 

with the refiner, or the action of a 

distributor not subject to a contract with 

the refiner for the transportation of the 

gasoline. 

Based on experience with other fuels 

programs, we believe that a presumptive 

liability approach would increase the 

likelihood of identifying persons who 

cause violations of the prohibited acts in 

today’s proposal. We normally do not 

have the information necessary to 

establish the cause of a violation found 

at a downstream facility. We believe 

that those persons who actually handle 

the fuel are in the best position to 

identify the cause of the violation, and 

that a rebuttable presumption of liability 

would provide an incentive for parties 

to be forthcoming with information 

regarding the cause of the violation. In 

addition to identifying the party that 

caused the violation, providing 

evidence to rebut a presumption of 

liability would serve to establish a 

defense for the parties that are not 

responsible. Presumptive liability is 

familiar to both the petroleum industry 

and EPA, and we believe that this 

approach would make the most efficient 

use of EPA’s enforcement resources. For 

these reasons we are proposing a 

liability scheme based on a presumption 

of liability. We request comment on the 

proposed liability provisions. 

c. Penalties for Violations 

CAA section 211(d)(1) provides for 

penalties for violations of the fuels 

regulations. These penalty provisions 

subject any person that violates any 

requirement or prohibition of the rule to 

a civil penalty of up to $27,500 for every 

day of each such violation and the 

amount of economic benefit or savings 

resulting from the violation. Pursuant to 

40 CFR 19.4, the amounts of civil 

penalties for these violations increased 

to $37,500 per day, plus the amount of 

any economic benefit or savings 

resulting from the violation, for 

violations that occurred after January 

12, 2009. Today’s proposal would 

subject any person who violates any of 

the proposed requirements or 

prohibitions to a civil penalty up to 

$37,500 for every day of each such 

violation and the amount of the 

economic benefit or savings resulting 

from the violation. 

We propose that a violation of the 

requirements in today’s notice would 

constitute a separate day of violation for 

each day the gasoline giving rise to the 

violation remains in the fuel’s 

distribution system. The length of time 

the gasoline in question remains in the 

distribution system would be deemed to 

be twenty-five days unless there is 

evidence that the fuel remained in its 

distribution system a lesser or greater 

amount of time. These proposed penalty 

provisions are similar to those in the 

RFG, Tier 2 sulfur, and diesel sulfur 

programs. We request comment on the 

proposed penalty provisions. 


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Federal Register / Vol. 75, No. 213 / Thursday, November 4, 2010 / Proposed Rules 68061 

43Based EPA discussions with industry, the costs 

of for RVP survey requirements as part of the E15 

labeling survey would add approximately $200,000 

dollars per year to the total costs of the survey. 

IV. Other Measures To Ensure 

Compliance 

A. The 1.0 psi RVP Waiver for E10 

Blends 

One concern that was raised in the 

comment periods on the E15 waiver and 

RFS2 NPRM in addition to stakeholder 

meetings prior to this proposal was 

whether E15 would qualify for the 

1.0 psi RVP waiver permitted under the 

Clean Air Act (CAA) section 211(h) for 

conventional gasoline. As discussed in 

the partial waiver decision document, 

we believe that E15 blends with higher 

volatility would cause vehicles to 

violate their evaporative emission 

standards in-use. Consequently, the 

waiver announced today is for E15 

blends that meet the summertime 

gasoline volatility standards for 

conventional gasoline without any 

1.0 psi RVP waiver, and the regulatory 

provisions proposed today reflect this 

decision. Furthermore, EPA interprets 

section 211(h)(4) of the CAA as limiting 

the 1.0 psi waiver 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% 

blends. EPA implemented 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. 

Nevertheless, we seek comment on 

whether section 211(h) of the CAA 

could be interpreted such that E15 is 

eligible for the RVP provisions in 

section 211(h)(4) and whether this 

would have any impact on our E15 

waiver decision. 

In order to introduce a fuel that meets 

both the Federal summertime RVP 

standards and contains between 10 and 

15 vol% ethanol, fuel refiners would 

have to create a fuel or blendstock that 

has approximately 1.0 psi lower RVP 

than a fuel or blendstock intended for 

E10 due to the interaction between 

gasoline volatility and ethanol when 

blended. Oxygenate blenders would 

need to know the RVP of a blendstock 

or have the intended ethanol content of 

a blendstock be specified on the PTD to 

ensure that they know the correct 

amount of ethanol that should be 

blended into a fuel. If an oxygenate 

blender or retail station blended more 

than 10 vol% ethanol into a fuel or 

blendstock produced with the 

expectation of taking advantage of the 

1 psi waiver that applies to E10, the 

resulting blend would be in violation of 

summertime RVP standards. 

Having E10 and E15 at different RVP 

levels in-use also raises the potential 

that mixtures of the two at retail would 

cause the blend to exceed the 

summertime RVP requirements. Many 

retail stations only have two 

underground storage tanks and those 

tanks typically contain regular and 

premium grade fuels. Since, in many 

cases, midgrade gasoline is made by 

blending regular and premium grade 

gasoline, the possibility exists that a 

midgrade fuel blended from a high-RVP 

E10 fuel and a low-RVP E15 fuel would 

exceed summertime RVP requirements. 

This fuel would not receive the 1.0 psi 

RVP waiver and selling such a fuel 

would violate RVP requirements. 

These RVP related complications 

could be avoided by refiners producing 

a lower RVP blendstock for E10 as well. 

While there are cost and supply 

considerations refiners and fuel 

distributors may find it in their best 

interest to do so given the flexibility it 

affords. Regardless, the Agency believes 

that it would be possible to help 

alleviate some of these challenges with 

the slight modifications to the PTDs and 

the national fuel survey requirements 

discussed in Section III of this proposal. 

RFG already has similar requirements to 

those that we are proposing in today’s 

rulemaking, and given the effectiveness 

we have had with the RFG program, we 

believe that the proposed approach 

would be an effective means of allowing 

fuel manufacturers to ensure that the 

correct amount of ethanol was blended 

into the appropriate blendstock or 

finished fuel with only slight additions 

at minimal costs. We believe that these 

PTD proposals are appropriate under 

our authority under sections 208 and 

114 of the Clean Air Act. 

1. National RVP Survey 

In section III.C., we described our 

proposal for a national E15 labeling and 

ethanol content survey that is intended 

to ensure that fuel pumps would be 

properly labeled if retail stations chose 

to sell E15. In order to determine if the 

proposed labeling requirements are 

being met and the ethanol content is 

consistent with the label, fuel sampling 

and testing would be required to 

determine the ethanol content. Since 

fuel refiners will have difficulty 

ensuring that downstream summertime 

RVP requirements are met in non-RFG 

areas, adding testing for RVP to this 

survey would be a low-cost 43 approach 

to enforcing downstream RVP standards 

and help provide an affirmative defense 

for upstream parties in the event of a 

violation downstream. We seek 

comment on whether RVP survey 

requirements should be included as part 

of the national ethanol survey proposed 

in section III.C. 

2. RVP and E15 Underground Storage 

Tank Transition 

Another issue associated with the 

RVP standards is the potential 

comingling of a higher RVP E10 fuel 

that received the 1.0 psi RVP waiver 

with a lower RVP E15 that met 

summertime RVP requirements in 

underground storage tanks when a retail 

station decides to transition from selling 

E10 to E15. If the retail station does not 

completely remove all E10 from a tank 

before E15 is added to the tank, the 

retail station would create a fuel that 

violates RVP standards. The resulting 

blend would be above 10 vol% ethanol 

and would not qualify for the 1.0 psi 

waiver, but would have an RVP above 

the requirement for E0 and E15. 

Section 211(t) of the Clean Air Act, as 

amended by the Energy Policy Act of 

2005, allows retail stations to blend 

compliant RFG batches of non-ethanol 

blended and ethanol-blended gasoline 

in storage tanks twice a year as long as 

the duration of the blended 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 that case and we 

do not believe this provision authorizes 

a blending down of E10 and E15 over 

time in non-RFG areas. 

We seek comment on the issue of tank 

transition from E10 to E15 fuels and if 

there are ways that the Agency could 

address this issue. 

B. Credit for RFG Downstream 

Oxygenate Blending 

Pursuant to 40 CFR 80.69, refiners of 

RBOB are permitted to take credit for 

downstream oxygenate blending toward 

compliance with RFG standards. To do 

so the refiner must direct the 

downstream oxygenate blender on the 

PTD to add a particular type and 

amount of oxygenate. However, these 

provisions may require some 

reconsideration. In light of the addition 

of E15 to the RFG marketplace, it may 

be more difficult to ensure that 15 vol% 

ethanol is in fact added downstream if 

the RBOB would also meet all other 

finished gasoline specifications with the 

addition of just 10 vol% ethanol. 

Oxygenate blenders could also be left in 

the untenable position of having a 

supply of RBOB for E15 blending and an 

inability to blend more than 10 vol% 


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68062 Federal Register / Vol. 75, No. 213 / Thursday, November 4, 2010 / Proposed Rules 

44Because 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% by 

weight to reflect the maximum amount of oxygen 

associated with E10. In most fuels, however, this 

volume is equivalent to 3.5% by weight oxygen. 

45 Guerrieri, David Al., Peter Caffrey, and 

Venkatesch Rao; Investigation Into the Vehicle 

Exhaust Emissions of High Percentage Ethanol 

Blends’’; SAE Technical Paper Series; 950777; 

presented at International Congress and Exposition; 

Detroit, Michigan; March, 1995. 

46 Guerrieri, et al.; op. cit. 

ethanol. We request comment regarding 

how the final regulation should address 

this issue. For example, the regulation 

could limit the refiner’s claimed ethanol 

content to 10 vol% ethanol unless: (A) 

The final blend would not comply with 

all gasoline specifications (e.g., octane) 

without the addition of 15 vol% 

ethanol, or (B) until such time as the 

RBOB surveys for a particular RFG area 

indicates that there is a sufficient, stable 

market demand for E15. We request 

comment on this and other approaches 

to resolve this issue. 

V. Modification of the Complex Model 

A. Background of RFG Requirements 

Reformulated gasoline (RFG) is 

gasoline that is required to be sold in 

certain parts of the country, and is 

required to be reformulated to meet 

certain performance standards for 

emissions of smog forming and toxic air 

pollutants. In 1990 Congress amended 

the CAA to require that RFG be sold in 

cities with the worst ozone pollution 

problems. In addition, other cities with 

significant smog problems were 

provided the opportunity to voluntarily 

opt-in to the RFG program. RFG is 

currently used in portions of 17 States 

and the District of Columbia. About 

30% of gasoline sold in the U.S. is 

reformulated. In the 1990 Amendments, 

Congress also required that 

conventional gasoline (CG, or non-RFG) 

sold in the rest of the country become 

no more polluting than gasoline sold in 

1990. Often referred to as ‘‘antidumping’’, this requirement ensures that 

refiners do not ‘‘dump’’ into 

conventional gasoline fuel components 

that are restricted in RFG and that 

increase environmentally harmful 

emissions. 

EPA introduced the RFG program in 

1995, as required by the CAA. The RFG 

program established emissions 

performance standards for volatile 

organic compounds (VOCs), nitrogen 

oxides (NOX), and toxics. These 

standards are based on percent 

reductions from the average emissions 

of these pollutants in 1990 model year 

vehicles operated on a specified 

baseline gasoline. The program required 

an oxygen minimum standard of 2.0% 

by weight, however the Energy Policy 

Act of 2005 removed that requirement. 

For conventional gasoline, the program 

establishes emissions standards for 

exhaust toxics and NOX designed to 

ensure that an individual refinery’s or 

importer’s gasoline will not have higher 

levels of these pollutants than the 

refinery’s or importer’s 1990 gasoline. 

Refiners of RFG must comply with the 

RFG standards separately for each 

refinery. Refiners of conventional 

gasoline may comply separately for each 

refinery, or they may aggregate their 

refineries. Importers comply with both 

the RFG and conventional gasoline 

standards for the aggregate of the 

gasoline they import during the year. 

B. The Complex Model 

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. These 

properties are: Aromatics, olefins, 

sulfur, Reid Vapor Pressure (RVP), 

benzene, oxygen and distillation points, 

as well as the content of ethanol, ETBE, 

TAME and MTBE. Refiners and 

importers are required to measure these 

properties in each batch of gasoline they 

produce or import, using a prescribed 

test method, and calculate the emissions 

level of each pollutant for each batch of 

gasoline using the Complex Model. 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 standards for VOC, NOX

and toxics are stated in terms of percent 

reductions from the baseline. Thus, for 

fuel to comply with the standards, the 

percent reduction computed by the 

Complex Model must be equal to or 

greater than the standard for each 

pollutant. 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 the standards. 

Refiners are therefore required to certify 

that their fuel meets the standards by 

using the Complex Model. Currently, 

the equations in the model are limited 

to an oxygen content of no more than 

4.0% by weight in gasoline, which is the 

maximum amount of oxygen in gasoline 

containing 10 vol% ethanol, or E10.44 In 

order for refiners to produce gasoline 

that will contain 15 vol% ethanol, the 

model must be modified to predict the 

effect of the additional oxygen. 

The applicability of the Complex 

Model to gasoline certification has 

become limited as EPA’s more recent 

clean gasoline standards take effect and 

provide even greater emission 

reductions beyond those of the RFG 

program. The NOX emission 

performance requirements for RFG and 

conventional gasoline have not been 

required since January 1, 2007 when the 

Tier2 gasoline average sulfur standard of 

30 ppm took effect (see 40 CFR 

80.101(c)(3)(i)). Finally, beginning 

January 1, 2011, the air toxics emission 

standards for gasoline will be deemed 

met by compliance with the new 

MSAT2 nationwide benzene standard 

for gasoline, the volatility standard, and 

sulfur standard (see 40 CFR 80.41(e)(2) 

and (3)). The result is that beginning 

January 1, 2011, only the VOC equation 

in the Complex Model will continue to 

be binding and only for RFG. For 

conventional gasoline, there are no VOC 

performance standards; only RVP limits. 

Thus, compliance with the antidumping regulations does not require 

use of the Complex Model to evaluate 

VOC emissions. 

The one exception to this is small 

refiners that take advantage of the 

option for delayed compliance with the 

MSAT2 benzene standard until January 

1, 2015. They would still need the 

Complex Model for air toxics emission 

performance compliance during this 

interim period. However, since no small 

refiners are currently producing RFG, it 

would only be for CG. For CG, since 

refiners typically certify CG as E0, with 

oxygenate blended downstream, they 

should be unaffected by the increase in 

ethanol content from E10 to E15. 

Therefore, it appears that the only 

equation that needs to be modified in 

the Complex Model to allow refiners 

and importers to certify gasoline 

containing E15 after January 1, 2011 is 

the VOC equation. 

Because emissions performance at 

issue is specified in the Act as the 

emissions performance of 1990 vehicle 

technology, we are not able to use 

current emission test data on motor 

vehicles using E15 gasoline as a basis 

for evaluating appropriate changes to 

the VOC equation. The test results from 

today’s vehicle fleet would not 

represent the 1990 vehicle technology 

required to calculate the emission 

baseline. Instead, we relied on a study 

conducted in 1994 by Guerrieri, et al., 

that examined the exhaust emissions 

from 1990 vehicles using gasoline with 

ethanol levels varying from 0 to 40 

volume percent.45 Figure V.B–1 shows 

data reported by Guerrieri et al.46 The 

figure shows the average values of 


srobinson on DSKHWCL6B1PROD with PROPOSALS2
Federal Register / Vol. 75, No. 213 / Thursday, November 4, 2010 / Proposed Rules 68063 

47The level of 5.8% by weight of 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 5.2%. 

hydrocarbon emissions (representative 

of VOC) at several ethanol levels 

relevant to this discussion, as well as 

the uncertainty bars at each value. The 

study 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 

(also shown in Figure V.B–1) indicate a 

decreasing trend in hydrocarbon 

emissions with increased ethanol in 

gasoline. 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. This outcome is consistent 

with our engineering judgment. As 

discussed in Section VI.C 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. 

Because the data available on 1990 

vehicles is limited, we are not proposing 

to change the Complex Model to 

indicate decreasing VOC emissions with 

increased ethanol content between E10 

and E15. Instead, we are proposing to 

modify the application of the Complex 

Model equations to treat VOC exhaust 

emissions at ethanol levels greater than 

E10 and up to E15 the same as for E10. 

We are therefore proposing in today’s 

rule to modify the Complex Model to 

allow up oxygen levels up to 5.8% by 

weight to be input to the model but that 

the VOC emissions effects would be 

modeled the same as if it contained 

4.0% by weight oxygen.47 This will 

provide flexibility for the Complex 

Model to be used over a broader range 

of ethanol content. We request comment 

on whether the data and rationale 

discussed above are an appropriate basis 

for the proposed adjustment to the 

Complex Model to account for E15. 

VI. Why are we proposing misfueling 

mitigation measures? 

In previous sections we proposed to 

prohibit the use of E15 in MY2000 and 

older motor vehicles, heavy-duty 

gasoline engines and vehicles, 

motorcycles, and all nonroad products 

(which includes marine applications). 

This section provides the technical 

rationale supporting this decision. As 

discussed below, it appears that the 

unique physical and chemical 

properties of ethanol may impact these 

products when they are using gasolineethanol blends, particularly as many of 

these products were not designed to 

operate on such fuels. The potential 

impacts could be the impairment of the 

performance of their emission control 

devices or systems, which would likely 

lead to increased HC, CO and/or NOX

emissions. 

Light-duty motor vehicles (i.e., 

passenger cars and light-duty trucks) 

have evolved significantly over time, 

mainly in response to increasingly 

tighter emission standards, but also to 

improve fuel economy, vehicle 

driveability, and vehicle durability. The 

primary advancements in emissions 

control have been in the control of the 

air-to-fuel (A/F) ratio matched with 

advancements in catalyst formulations 

and designs with each new generation 

of motor vehicles. Today’s motor 

vehicles are far more sophisticated and 

up to 99% less polluting than they were 

in the 1970s while also more tolerant of 

variables like fuel composition (i.e., 

RVP, oxygen content). However, 

MY2000 and older light-duty motor 

vehicles have not benefitted from these 


srobinson on DSKHWCL6B1PROD with PROPOSALS2EP04NO10.001</MATH>
68064 Federal Register / Vol. 75, No. 213 / Thursday, November 4, 2010 / Proposed Rules 

48Refer to the Energy Tax Act of 1978, Public Law 

95–618, enacted November 9, 1978. 

49EIA, Motor Gasoline Outlook and State MTBE 

Bans, Table 2, available at: http://www.eia.doe.gov/ 

emeu/steo/pub/special/mtbeban.html and FHWA, 

Estimate Use of Gasohol, 1999, available at: 

http://www.fhwa.dot.gov/ohim/hs99/tables/

mf33e.pdf. 

advancements in technology and could 

experience combustion and material 

compatibility problems leading to 

increased emissions if operated on E15. 

While motorcycles (highway and offhighway), heavy-duty gasoline engines 

and vehicles, and nonroad products 

have also evolved over time, since they 

have not been regulated as long, and 

have much more diverse applications, 

they do not reflect the same level of 

advanced technology across the board as 

do today’s light-duty motor vehicles. 

Consequently, their engines and 

emission control systems may also be 

impacted in ways that affect emission 

performance if operated on E15. 

On the other hand, the Agency 

believes that newer light-duty motor 

vehicles (vehicles designed to meet Tier 

2 emissions standards) were designed 

with significantly more robust emission 

controls and fuel system components to 

regularly use gasoline-ethanol blends. 

For MY2001–2006 light-duty motor 

vehicles, EPA does not have enough 

data on which to base a decision at this 

point in time. DOE testing of MY2001– 

2006 light-duty motor vehicles is 

ongoing and will factor into the 

Agency’s decisions for the final rule. 

The sections that follow discuss in 

more detail the history of ethanol use in 

the U.S., the chemical and physical 

differences between ethanol and 

gasoline, and how these differences, 

especially combustion enleanment and 

material compatibility, could impact 

exhaust and evaporative components 

and emissions. Specifically, we discuss 

the ability of the following groups of 

vehicles and engines to handle E15: (1) 

MY2000 and older light-duty motor 

vehicles; (2) heavy-duty gasoline 

engines and vehicles; (3) motorcycles; 

(4) nonroad products; (5) MY2007 and 

newer light-duty motor vehicles; and (6) 

MY2001–2006 light-duty motor 

vehicles. 

A. History of Ethanol Use in the U.S. 

Any assessment of the impacts of E15 

use in vehicles, engines, and equipment 

must begin with an understanding of the 

degree to which they were designed for 

the use of low level gasoline-ethanol 

blends. E10 is currently blended in 

significant quantities in most gasoline 

distributed and sold in most States, but 

this was not always the case. Most auto 

manufacturers today support the use of 

E10 in their vehicles and engines since 

their designs have evolved over time in 

response to the growing use of E10 

across the country. However, the total 

fleet is made up of old and new 

vehicles, engines, and equipment with 

varying technologies and therefore 

varying compatibility with gasolineethanol blends. 

Ethanol and ethanol-gasoline blends 

have a long history as automotive fuels 

in the United States. Inexpensive crude 

oil prices kept ethanol from making a 

significant presence in the 

transportation sector until the end of the 

20th century when tax subsidies and 

environmental programs helped to spur 

growth. On November 9, 1978, the U.S. 

passed the Energy Tax Act which 

defined ‘‘gasohol’’ as a blend of gasoline 

with 10% alcohol by volume (excluding 

alcohol made from petroleum, natural 

gas or coal) and offered the fuel an 

excise tax exemption to encourage its 

use.48 While the ethanol tax subsidy has 

been modified over the years, 

conventional ethanol continues to 

receive a $0.45/gallon tax credit and 

cellulosic ethanol is eligible for a $1.01/ 

gallon credit. 

Environmental programs have also 

been an important contributor to 

ethanol expansion in the United States. 

First, in the late 1980s and early 1990s, 

ethanol was used as a gasoline 

oxygenate (along with MTBE) to help 

reduce carbon monoxide (CO) emissions 

in various CO nonattainment areas. 

Then, ethanol was used as part of the 

requirements for reformulated gasoline 

in the worst ozone nonattainment areas 

beginning in the mid 1990s. 

Tax subsidies and environmental 

programs resulted in the growth of the 

fuel ethanol market such that by the late 

1990s, E10 represented slightly more 

than 10% of gasoline nationwide. By 

1999, 35 States were blending ethanol 

into at least a portion of their gasoline.49

However, its use remained concentrated 

in the Midwest, e.g., Illinois, Ohio, and 

Minnesota. Ethanol did not begin 

expanding significantly beyond the 

Midwest until the early 2000s when 

States started banning the use of Methyl 

Tertiary-butyl Ether (MTBE) due to 

groundwater concerns. Ethanol quickly 

became the primary oxygenate in the 

gasoline market. With the removal of the 

RFG oxygen mandate by the Energy 

Policy Act of 2005 (EPAct), MTBE was 

removed from gasoline almost entirely 

by 2006. Ethanol replaced MTBE, 

broadening the fuel’s use into 

California, the East Coast, and other 

RFG areas. From 2000 to 2006, the share 

of gasoline containing 10% ethanol by 

volume (‘‘E10 market share’’) more than 

doubled as shown in Figure VI.A.-1. 

According to fuel survey and 

certification data, ethanol is the only 

oxygenate currently used in any 

significant quantity today. 


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50 75 FR 14670 (March 26, 2010). 51Refer to EIA Monthly Energy Review 

September 2010 (Tables 10.3 and 3.7c, 

respectively). 

52 1999–2004 state E10 marketshares based on 

FHWA ethanol and EIA total motor gasoline sales. 

2005 ethanol usage based on EIA’s National 

Emission Inventory Estimates. 2007–2009 based on 

HART estimates. 

Since 2006, E10’s market share has 

continued to rise. The increase can be 

attributed primarily to rising crude oil 

prices which led to very favorable 

ethanol blending economics over most 

of the past 4–5 years, but also to the 

market certainty provided by the 

Renewable Fuel Standard (RFS) 

established by EPAct and later modified 

by the Energy Independence and 

Security Act of 2007 (EISA). EPAct 

required 7.5 billion gallons of renewable 

fuel to be blended into transportation 

fuel by 2012. In 2007, EISA expanded 

the RFS to 36 billion gallons by 2022. 

On March 26, 2010, EPA promulgated 

final RFS2 regulations to implement the 

EISA volumes.50 While there are a 

number of renewable fuels that can be 

used to meet the RFS2 requirements, 

EPA projects a large percentage will 

come from ethanol. According to EIA, 

ethanol comprised 9.4% of total U.S. 

motor gasoline sales during the first half 

of 2010.51 In other words, over 90% of 

motor gasoline sold today is E10. 

As E10’s market share has increased 

over the last few years, its prevalence 

has also expanded nationwide. A map 

showing today’s estimated E10 

penetration by State is provided in 

Figure VI.A–2. This State-level 

information, provided by HART Energy 

Consulting, does not reflect California’s 

recent shift from 5.7 to 10 vol% ethanol. 

While vehicles, engines, and equipment 

in the Midwest have been experiencing 

E10 use for a number of years, this is not 

the case in most of the country. Even in 

much of the Midwest, E10 has become 

the dominant fuel only recently. It took 

many years for States to reach 25% E10 

saturation and even longer for States to 

reach 50% E10 saturation. As shown in 

Figure VI.A–3, 23 States (including the 

District of Columbia) just recently 

reached 50% saturation between 2008 

and 2009.52 Alaska is the only State 

without significant ethanol blending. 

According to HART, only 10% of 

Alaska’s gasoline is currently comprised 

of E10. 


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53 In the U.S., the most common FFVs are also 

known as ‘‘E85’’ vehicles. They are designed to run 

on gasoline or a blend of up to 85 vol% ethanol 

(E85) and are equipped with modified components 

designed specifically to be compatible with 

ethanol’s chemical properties. 

54ASTM D4814, Standard Specification for 

Automotive Spark Ignition Fuel. 55ASTM D4806, Standard Specification for 

Denatured Fuel Ethanol for Blending with Gasoline 

for Use in Automotive Spark Ignition Fuel. 

56SAE J1297, revised July, 2007, Surface Vehicle 

Information Report, Alternative Fuels. 

57SAE J1297, revised July, 2007, Surface Vehicle 

Information Report, Alternative Fuels. Note: The 

values in Table 1 should be considered for relative 

comparisons only. 

58SAE 861178, ‘‘The Properties and Performance 

of Modern Automotive Fuels,’’ P. Dorn, A.M. 

Mourao, and S. Herbstman, Texaco Research 

Center, Beacon, N.Y. 

59SAE 912413 ‘‘An Overview of the Technical 

Implications of Methanol and Ethanol as Highway 

Motor Vehicle Fuels,’’ Frank Black, U.S. 

Environmental Protection Agency, Research 

Triangle Park, N.C. 

60BTU/Gal = 279 J/L 

61BTU/Gal = 279 J/L 

B. Chemical and Physical Differences 

Between Ethanol and Gasoline 

Understanding the chemical and 

physical differences between gasoline 

and ethanol is helpful in determining 

how increased ethanol concentrations in 

gasoline may impact vehicle and engine 

technologies and whether emission 

differences may occur. Throughout most 

of the 20th century, engines and 

vehicles were designed to run on 

gasoline. Engines can and have been 

designed for the use of ethanol, and in 

the case of FFVs, have been designed to 

operate effectively on both.53 Over the 

last couple of decades, manufacturers 

have also taken varying steps to 

redesign their gasoline engines to be 

more compatible with blends of gasoline 

and ethanol up to 10 vol%. 

Gasoline is a complex mixture of 

several hundred hydrocarbon molecules 

(organic compounds containing carbon 

and hydrogen) ranging in carbon 

number from four to twelve that are 

produced from various refinery streams. 

In contrast, fuel ethanol contains only 

one kind of molecule with two carbon 

atoms. Alcohols such as ethanol are 

derived from hydrocarbons by replacing 

the hydrogen atoms in their parent 

hydrocarbon (ethane is the parent of 

ethanol) with one or more hydroxyl 

groups containing oxygen and 

hydrogen. 

Gasoline quality specifications are 

provided by ASTM D4814,54 while 

ethanol quality specifications for 

blending in gasoline are provided by 

ASTM D4806.55 Several properties of 

ethanol, as compared to typical gasoline 

and toluene, are listed below in Table 

VI.B–1. Since toluene is a common 

hydrocarbon used as an octane enhancer 

in gasoline, it is included below for 

comparison purposes.56 Ethanol has 

been used successfully in gasoline for 

several decades as a volumetric fuel 

extender due to its beneficial Research 

Octane Number and Motor Octane 

Number blending values. 

TABLE VI.B–1—PROPERTIES OF ETHANOL, GASOLINE AND TOLUENE 57 58 59

Property Gasoline (typical properties) Toluene Ethanol 

Chemical Formula .......................................................... Mixed C4 to C12 Hydrocarbons ...................................... C7H8 ............. CH3CH2OH. 

Molecular Weight ........................................................... 95–115 ........................................................................... 92 ................. 46. 

Oxygen Weight Percent ................................................. ........................................................................................ 0 ................... 34.7. 

Boiling Point °F .............................................................. 85–437 ........................................................................... 231 ............... 173. 

Specific Gravity 60 °F/60 °F .......................................... 0.72–0.78 ....................................................................... 0.87 .............. 0.79. 

Research Octane Number ............................................. 91–100 ........................................................................... 111 ............... 111. 

Motor Octane Number ................................................... 82–92 ............................................................................. 95 ................. 92. 

(R + M)/2 ........................................................................ 87–92 ............................................................................. 103 ............... 102. 

Net Heat of Combustion BTU/Gal 60 .............................. 117,000 .......................................................................... 126,000 ........ 76,000. 

Latent Heat of Vaporization BTU/Gal 61 ......................... 800 ................................................................................. 1130 ............. 2600. 

Solubility in Water, gram/100g H2O ............................... Trace .............................................................................. Trace ............ Infinite. 

Stoichiometric A/F Ratio, Mass Air/Mass Fuel .............. 14.6 ................................................................................ 13.5 .............. 9.0. 

Vapor Flammability Limits Percent by Volume .............. 0.6–8 .............................................................................. ...................... 3.5–15. 

Vapor Pressure @ 100 °F psi ........................................ 9–13 ............................................................................... ...................... 2.5. 

Because gasoline is composed of 

different molecules of different lengths, 

it has a boiling range as well as a 

distillation curve. On the other hand, 

because ethanol is composed of a single 

type of molecule, it has a single boiling 

point and lacks the characteristic 

distillation curve of gasoline. Functional 

groups such as ethanol’s hydroxyl group 

generally determine how a molecule 

will behave. 

The question with the use of E15 is 

whether or not the vehicles, engines, 

equipment, and products that are 

designed for the properties of gasoline 

and/or E10 are also designed for the 

properties of E15. Some property 

differences between E10 and E15 may 

be dealt with in fuel blending such that 

the base gasoline can be adjusted in 

advance to accommodate the ethanol. 

This adjustment will ensure that the 

resulting blend meets a target 

specification for properties such as 

volatility and octane rating. On the 

other hand, some property differences 

between E10 and E15 are inherent to the 

ethanol fraction and cannot be 

accounted for by blending. For example, 

the impact of E15 versus E10 on engine 

combustion is a potential concern. How 

a vehicle or engine adapts to combust 

fuels with different ethanol 

concentrations depends on the vehicle 

hardware and software control 

strategies. Vehicles and engines 

operating on E15 may have hotter 

exhaust temperatures than the same 

vehicles and engines running on E10. In 

addition, material compatibility is time, 

temperature, and concentration 

dependent. Some material effects with 

E15 are possible that may not have been 

experienced with E10 in the past. 

The following sections describe in 

greater detail the chemical and physical 

differences of gasoline and ethanol, 

particularly focusing on the effects of 

these differences when ethanol is 

blended with gasoline. This discussion 

lays the foundation for vehicle and 

engine specific discussion in sections 

VI.C.–VI.I. 

1. Impact on the A/F Ratio— 

Combustion Enleanment 

When gasoline is combusted in an 

engine, the stoichiometric A/F ratio (i.e., 

the ideal ratio for complete combustion 

of the fuel and air into carbon dioxide 

and water vapor) is approximately 14.7 

times the mass of air to fuel (14.7:1). For 

gasoline, any mixture less than 14.7:1 is 


srobinson on DSKHWCL6B1PROD with PROPOSALS2
68068 Federal Register / Vol. 75, No. 213 / Thursday, November 4, 2010 / Proposed Rules 

62SAE 912413 ‘‘An Overview of the Technical 

Implications of Methanol and Ethanol as Highway 

Motor Vehicle Fuels,’’ Frank Black, U.S. 

Environmental Protection Agency, Research 

Triangle Park, N.C. 

63SAE 912413 ‘‘An Overview of the Technical 

Implications of Methanol and Ethanol as Highway 

Motor Vehicle Fuels,’’ Frank Black, U.S. 

Environmental Protection Agency, Research 

Triangle Park, N.C. 64 Discussion of additional studies evaluating the 

impacts of gasoline-ethanol blends on materials 

used in vehicles and nonroad engines, vehicles, and 

equipment can be found in the subsections that 

follow. 

65SAE 750124, ‘‘Racing Experiences with 

Methanol and Ethanol-Based Motor-Fuel Blends,’’ 

T. Powell, Automotive Engineering Congress and 

Exposition, Detroit, Michigan, February 24–28, 

1975. 

66SAE 912413 ‘‘An Overview of the Technical 

Implications of Methanol and Ethanol as Highway 

Motor Vehicle Fuels,’’ Frank Black, U.S. 

Environmental Protection Agency, Research 

Triangle Park, N.C. 

considered to be a rich mixture (excess 

fuel), and any mixture more than 14.7:1 

is a lean mixture (excess air/oxygen) 

given ideal test fuel and complete 

combustion. The addition of oxygenates 

such as ethanol (with its hydroxyl 

group) to gasoline alters the 

stoichiometric A/F ratio and therefore 

affects combustion. Engines/vehicles 

equipped with feedback controls can 

adjust the A/F ratio to stoichiometric 

conditions—around 14.0:1 for E10 and 

13.8:1 for E15 (the ratio is lower as 

ethanol contains oxygen so less air is 

needed). However, for gasoline engines 

that do not have the ability to react to 

the desired stoichiometric A/F ratio for 

a different fuel (e.g., gasoline-ethanol 

blends), combustion is enleaned. E10 

would result in approximately 4% 

enleanment when compared with 

gasoline, E15 would result in 

approximately 6% enleanment. This 

means E10 and E15 have 4% and 6% 

more oxygen, respectively, than the 

stoichiometric A/F ratio. 

Fuel metering components are sized 

to deliver an A/F mixture that optimizes 

emission performance, power output, 

fuel economy, and durability. If an 

engine is allowed to operate at a mixture 

that is leaner than it is designed for (too 

much oxygen for a given amount of 

fuel), it may run at a somewhat higher 

combustion temperature. This in turn 

can lead to changes in exhaust 

temperatures which may affect catalyst 

durability, and, especially in the case of 

nonroad products, engine durability, 

causing an increase in emissions. In 

addition, combustion instability from 

lean mixtures, which can cause misfire, 

can then lead to accelerated catalyst 

performance degradation or damage. 

2. Polarity and Affinity for Water 

Water is one of the most polar 

molecules (an uneven distribution of 

charge with the hydrogen atoms being 

positively charged and the oxygen atom 

negatively charged) while ethanol is 

only slightly polar and a hydrophilic 

(meaning water loving) molecule 

because of its hydroxyl group. Ethanol 

dissolves in water when the two are 

mixed together. Unlike ethanol, gasoline 

is considered to be a non-polar and 

hydrophobic hydrocarbon molecule 

which means that it does not attract 

water in the same way as ethanol does. 

As a result, gasoline and water are only 

very slightly soluble. If enough water is 

added to straight gasoline, two layers 

will form, known as phase separation: a 

water layer and a gasoline layer. 

Ethanol is soluble in gasoline though 

to a lesser extent than it is in water. If 

a gasoline-ethanol blend is saturated 

with water, a reduction in ambient 

temperature may cause the ethanol and 

gasoline to separate into two layers. 

However, the presence of ethanol in 

gasoline will allow more water to be 

absorbed by the gasoline-ethanol blend 

before phase separation occurs. Some 

level of water carried through the fuel 

distribution system is generally 

acceptable and likely unavoidable given 

fuel exposure to moisture and humidity 

in normal dispensing and storage, either 

at the fuel station or on-board. However, 

excessive water in the fuel can lead to 

phase separation that can in turn cause 

stalling or permanent damage to most 

internal combustion engines. 

3. Material Compatibility 

The hydroxyl group of ethanol also 

reacts with natural rubber materials. 

Certain elastomers exposed to alcohols 

may swell or soften and lose strength.62

Some plastics and fiberglass can become 

brittle leading to cracks and leaks.63

Table VI.B.2.–1 shows the effects of 

gasoline and ethanol on some of the 

many elastomers that have been 

developed.64 As noted from this table, 

polyfluorocarbons have been shown to 

be compatible with ethanol and ethanol 

blends. As discussed below in VI.C.2., 

the physical interaction of ethanol with 

certain elastomers also leads to 

increased permeation of ethanol and 

hydrocarbons through the walls of 

components made from such materials. 

TABLE VI.B.2–1—EFFECTS OF GASOLINE AND ETHANOL ON ELASTOMERS

Elastomer 

Volume swell (%) after 72 hour 

immersion in: 

Gasoline Ethanol E10 

Fluorocarbon (FKM) ................................................................................................................................. 0 2 3 

Polyester urethane ................................................................................................................................... 11 19 37 

Fluorosilicone (FMQ) ............................................................................................................................... 14 6 18 

Butadiene-acrylonitrile (NBR) .................................................................................................................. 43 8 51 

Polyacrylate (ACM) .................................................................................................................................. 44 101 136 

Chlorosulfonated polyethylene (CSM) ..................................................................................................... 49 1 56 

Ethylene-propylenediene terpolymer (ePDM) ......................................................................................... 137 13 124 

Natural Rubber (NR) ................................................................................................................................ 169 2 176 

Adapted from SAE 912413 ‘‘An Overview of the Technical Implications of Methanol and Ethanol as Highway Motor Vehicle Fuels,’’ Frank 

Black, U.S. Environmental Protection Agency, Research Triangle Park, N.C. 

4. Corrosion 

Ethanol can also contribute to 

corrosion due to galvanic coupling or 

the absorption of water. Alcohols are 

better electrical conductors compared to 

gasoline so gasoline-ethanol blends 

could promote galvanic corrosion and 

galvanic-couple effects between 

electrochemically dissimilar alloys in 

the fuel system.65, 66 The National 

Ethanol Vehicle Coalition and the 

Petroleum Equipment Institute have 

demonstrated that aluminum is 

sensitive to corrosion from ethanol. In 

addition, water in gasoline-ethanol 

blends can cause corrosion of metallic 

materials (such as brass, cast iron, 

copper, and various types of steel) as the 


srobinson on DSKHWCL6B1PROD with PROPOSALS2
Federal Register / Vol. 75, No. 213 / Thursday, November 4, 2010 / Proposed Rules 68069 

67Nakaguichi, G.M., ‘‘Ethanol Fuel Modifications 

for Highway Vehicle Use-Final Report,’’ U.S. DOE 

Contract EY–76–C–04–3683, NTIS document ALO– 

3683–T1, Washington, DC July, 1989. 68Microbiologically Influenced Corrosion of 

Galvanic Steel, Frederick J. Passman, PhD, 

Biodeterioration Control Associates, Princeton, NJ, 

USA., ASTM Workshop on Fuel Corrosivity, July, 

2010. 69Behavior of Corrosion Inhibitor Acids In Fuel/ 

Water Blends, Andrew McKnight, PhD, Innospec, 

Newark, DE, USA, ASTM Workshop on Fuel 

Corrosivity, July 2010. 70 Interaction of Contaminants with Pipeline 

Corrosion Inhibitors, Joseph Stark, PhD, Baker 

Hughes, Sugarland, TX, USA, ASTM Workshop on 

Fuel Corrosivity, July 2010. 71 Diesel Soap—Formation and Related Problems, 

Richard Chapman, BP Global Fuel Technology, 

Naperville, IL, USA, ASTM Workshop on Fuel 

Corrosivity, July 2010. 

72 J.L. Keller, ‘‘Methanol and Ethanol Fuels for 

Modern Cars, 44th Refinery Mid-year Meeting/ 

Session on Fossil Fuels in 1980’s, Reprint No. 08– 

79, May 15, 1979. 

73F.W. Cox, Physical Properties of Gasoline/ 

Alcohol Automotive Fuels, Presented at the Alcohol 

Fuel Technology Conference, May 28–31, 1979. 

74SAE 912413 ‘‘An Overview of the Technical 

Implications of Methanol and Ethanol as Highway 

Motor Vehicle Fuels,’’ Frank Black, U.S. 

Environmental Protection Agency, Research 

Triangle Park, N.C. 

75SAE 861178, ‘‘The Properties and Performance 

of Modern Automotive Fuels,’’ P. Dorn, A.M. 

Mourao, and S. Herbstman, Texaco Research 

Center, Beacon, N.Y. 

water/ethanol layer becomes acidic if 

phase separation occurs.67 The presence 

of water in the fuel distribution system 

also provides a suitable habitat for the 

growth of microbes which excrete acids 

that in turn are also detrimental to 

metallic fuel storage systems.68

Contaminants in water may also impact 

additives used in finished fuel that are 

designed to maintain the integrity of the 

finished fuel.69, 70, 71 Because of these 

corrosion concerns, actions are usually 

taken to accommodate ethanol in 

ethanol production, storage, and 

distribution systems, as well as in 

vehicles and engines. Such actions 

include the careful selection of 

materials and/or the use of appropriate 

ethanol compatible coatings on 

susceptible metal parts that come into 

contact with the ethanol fuel, as well as 

the use of corrosion and biocide 

additives. 

5. Solvency 

Ethanol can also act as a solvent for 

various materials. As such, ethanol has 

historically been known to remove or 

dissolve components built up in the fuel 

storage, handling and delivery systems 

(e.g. fuel tank, fuel lines, injectors, etc.). 

Once these components are loosened or 

partially dissolved, they are transported 

through the fuel system, and if 

excessive, may cause fuel filter, injector 

plugging or other component problems, 

all of which can lead to poor operability 

and degraded emission performance. 

Gasoline-ethanol blends may also pick 

up contaminants from storage tanks and 

delivery trucks. The amount of build-up 

is related to a combination of fuel 

composition properties and fuel usage 

patterns (i.e., regular fuel usage versus 

infrequent, etc.). Non-automotive 

equipment may experience fuel filter 

plugging related more to extended 

storage periods where gasoline can 

deteriorate and lead to more deposits 

requiring a plugged fuel filter 

replacement. 

6. Volatility 

Fuel volatility is a measure of a fuel’s 

vapor pressure or its tendency to 

vaporize. When ethanol is blended into 

gasoline, the hydrogen bonding between 

the ethanol molecules is weakened 

significantly and the alcohol 

‘‘depolarizes.’’ This results in higher 

Reid Vapor Pressures (RVP) for gasoline 

containing ethanol. Ethanol’s effects on 

RVP have been well 

documented,72, 73, 74 where low level 

ethanol blends, in general, will increase 

gasoline RVP by up to one pound per 

square inch with the maximum effect 

occurring at approximately 3 vol% 

ethanol concentration. The RVP of the 

base fuel will also influence just how 

much increase will occur by the 

addition of ethanol.75 Increases in RVP 

result in increased vapor generation and 

increased evaporative emissions. 

Additionally, while ethanol at certain 

levels may raise the general volatility of 

the gasoline-ethanol blend, because of 

ethanol’s single boiling point and high 

latent heat of vaporization, the ethanol 

fraction may cause combustion 

difficulties and increased emissions 

during the start of some spark-ignition 

engines when the engines are cold, 

particularly at colder start temperatures. 

Further, once the engine is hot, the 

single boiling point can also cause 

difficulty in operating and starting a hot 

engine as observed in older motor 

vehicles when ethanol first became 

available. The ethanol would reach its 

boiling point in the fuel system and 

result in what is known as ‘‘vapor lock.’’ 

C. Model Year 2000 and Older LightDuty Motor Vehicles 

Ethanol impacts motor vehicles in 

three primary ways. First, as discussed 

in Section VI.B.1 above, ethanol enleans 

the A/F ratio which leads to increased 

exhaust gas temperatures and therefore 

potentially incremental deterioration of 

emission control hardware and 

performance over time. Second, over 

time, enleanment caused by ethanol can 

ultimately lead to catalyst failure. Third, 

ethanol can cause material compatibility 

issues which may lead to other 

component failure. Ultimately, all of 

these impacts may lead to exhaust and/ 

or evaporative emission increases. 

1. Enleanment 

MY2000 and older light-duty motor 

vehicles have much less sophisticated 

emissions control systems compared to 

today’s motor vehicles and, as described 

below, may experience conditions that 

lead to both immediate emission 

increases and increases over time if 

operated on E15. Vehicles produced 

prior to the mid-1980s were equipped 

primarily with carbureted engines. The 

A/F ratio of the carburetor is preset at 

the factory based on the expected 

operating conditions of the engine such 

as ambient temperature, atmospheric 

pressure, speed, and load. As a result, 

carburetors have ‘‘open loop’’ fuel 

control which means that the air and 

fuel are provided at a specified, 

predetermined ratio that is not 

automatically adjusted during motor 

vehicle operation. As fuel composition 

can vary, an engine with a carburetor 

and open loop fuel control would never 

know whether it achieved the desired 

A/F ratio. Since the motor vehicles at 

this time operated ‘‘open loop’’ all of the 

time with no ability to react for changes 

in the A/F ratio, the addition of ethanol 

to the fuel tended to make the A/F ratio 

leaner—closer to stoichiometry, which 

had the immediate effect of reducing HC 

and CO emissions, but increasing NOX

emissions. However, some of these older 

open loop systems already operate at the 

lean edge of combustion on current 

commercial fuels so an increase in 

ethanol may cause them to begin to 

misfire resulting in HC and CO 

increases. 

As a result of the Clean Air Act, EPA 

established standards and measurement 

procedures for exhaust, evaporative, and 

refueling emissions of criteria 

pollutants. From 1975 into the 1980s, 

motor vehicles became equipped with 

catalytic converters, first with catalysts 

capable of oxidizing HC and CO, and 

then, in response to EPA’s ‘‘Tier 0’’ 

standards, with three-way catalysts that 

also reduced NOX. Motor vehicles 

produced in the 1980s and even more so 

in the 1990s as a result of more stringent 

California and Federal (e.g., ‘‘Tier 1’’) 

standards evolved to incorporate more 

sophisticated and durable emission 

control systems. These systems 

generally included an onboard 

computer, oxygen sensor, and electronic 

fuel injection with more precise closedloop fuel compensation and therefore 

A/F ratio control during more of the 

engine’s operating range. However, even 


srobinson on DSKHWCL6B1PROD with PROPOSALS2
68070 Federal Register / Vol. 75, No. 213 / Thursday, November 4, 2010 / Proposed Rules 

76 Mid-level Ethanol Blends Catalyst Durability 

Study Screening (CRC Report: E–87–1), June 2009 

(‘‘CRC Screening Study’’). http://www.crcao.com/ 

reports/recentstudies2009/E–87–1/E–87– 

1%20Final%20Report%2007_06_2009.pdf 

with the use of closed loop systems 

through the late 1990s, the emission 

control system and controls remained 

fairly simple with a limited range of 

authority and were primarily designed 

to adjust for component variability (i.e., 

fuel pressure, injectors, etc.) and not for 

changes in the fuel composition. During 

this period, ethanol was only available 

in very limited areas of the US so the 

manufacturers’ designs of the emission 

controls and the durability of emission 

control hardware generally did not 

account for the increased oxygen 

content of ethanol. As a result, this 

generation of vehicles certified to Tier 0 

and early Tier 1 emission standards 

operated leaner on ethanol, causing 

immediate emission impacts (lower HC 

and CO emissions, higher NOX

emissions) and may have also 

deteriorated at different rates when 

exposed to ethanol. These designs 

continued to evolve during the early 

period of the Tier 1 emission standards 

as manufacturers and component 

suppliers gained experience with 

vehicles in-use. However, the largest 

improvements to emission controls and 

hardware durability came after 2000 

with the introduction of several new 

emission standards and durability 

requirements forcing manufacturers to 

better account for the implications of inuse fuels on the evaporative and exhaust 

emission control systems. 

While most motor vehicles are 

operating today on E10, motor vehicles 

operated on E15 will likely run even 

leaner than those operated on E10 

depending on the motor vehicle 

technology and operating conditions. 

Enleaned combustion leads to an 

increase in the temperature of the 

exhaust gases. This increase in exhaust 

gas temperatures has the potential to 

raise the temperatures of various 

exhaust system components (e.g., 

exhaust valves, exhaust manifolds, 

catalysts, and oxygen sensors) beyond 

their design limits. However, based on 

past experience, the most sensitive 

component is likely the catalyst, 

particularly in older motor vehicles 

with early catalyst technology. Catalyst 

durability is highly dependent on 

temperature, time, and fuel gas 

composition. Catalyst temperatures 

must be controlled and catalyst 

deterioration minimized during all 

motor vehicle operation modes for the 

catalyst to maintain high conversion 

efficiency over the motor vehicle’s life. 

This is particularly important during 

high load operation of a motor vehicle 

where high exhaust gas temperatures are 

encountered and the risk for catalyst 

deterioration is highest. Catalysts that 

exceed temperature thresholds will 

deteriorate at rates higher than 

expected, compromising the motor 

vehicle’s ability to meet the required 

emission standards over its full useful 

life. Extended catalyst exposure to 

higher exhaust temperatures can 

accelerate catalyst thermal deactivation 

mechanisms (e.g., sintering of active 

precious metal sites, sintering of oxygen 

storage materials, and migration of 

active materials into inert support 

materials). While this damage can occur 

at a highly accelerated rate with a 

sudden change in temperature (e.g., 

with a misfire allowing raw fuel to reach 

the catalyst), it is more likely to occur 

over time from elevated exhaust 

temperatures as may be experienced 

with frequent or even occasional 

exposure to E15. This deterioration may 

adversely affect a motor vehicle’s ability 

to control emissions, particularly after 

significant mileage accumulation. 

Some motor vehicles may be able to 

manage catalyst temperatures by 

compensating for the oxygen in the fuel 

under all operating conditions, 

including high loads. This is achieved 

by using a closed-loop fuel system that 

measures the A/F ratio and makes the 

appropriate corrections to maintain the 

A/F ratio in the very tight ban of 

operation around stoichiometry 

necessary for optimum catalyst 

performance and reductions in HC, CO, 

and NOX emissions. The part of the 

closed-loop fuel system that is 

responsible for the correction to the 

A/F ratio is referred to as ‘‘fuel trim.’’ 

The fuel trim adds or removes fuel to 

the engine to maintain the required 

A/F ratio. If the measured A/F ratio has 

insufficient oxygen, or is ‘‘rich’’ 

compared to what the engine needs, the 

fuel trim will instruct the fuel injectors 

to inject less fuel, making the A/F ratio 

‘‘leaner.’’ The opposite is true if the 

measured A/F ratio has too much 

oxygen and needs to inject more fuel for 

a ‘‘richer’’ A/F ratio. The fuel trim is 

generally comprised of two major parts, 

short term fuel trim and long term or 

adaptive learned fuel trim. Learned fuel 

trim, also known as adaptive fuel trim, 

can also be applied to open loop 

operation such as high load or wide 

open throttle to alleviate the catalyst 

temperature increases caused by 

operating on E15 fuel. However, while 

this strategy was more common in later 

model years closer to MY2000, it was 

not consistently employed by all 

manufacturers. Some manufacturer 

models may have less range of authority 

than others and some may require 

longer periods of time to adapt. Hence, 

control algorithms and calibrations used 

by some manufacturers may be more 

effective than others. 

The fuel trim has a limited range of 

adjustment in which it can continue to 

update the A/F ratio and maintain the 

fuel system at or near stoichiometry. For 

MY2000 and older light-duty motor 

vehicles, the fuel trim range is generally 

more limited than the range for newer 

light-duty motor vehicles, and MY2000 

and older motor vehicles may use their 

full range of fuel trim adjustment to 

account for normal component 

deterioration. Injectors, sensors and 

changes to fuel pressure may shift with 

time and aging to use all of the fuel 

trim’s range of adjustment. The 

additional oxygenate in E15 may 

actually shift the A/F ratio more than 

the earlier introduction of E10 if the 

engine’s A/F ratio feedback cannot 

compensate because it has reached its 

adjustment limit. In short, MY2000 and 

older motor vehicles are at risk of 

having insufficient thermal margins to 

accommodate ethanol blends up to E15 

due to the limits of their fuel trim range. 

Test data to confirm or refute 

concerns over the use of E15 in older 

vehicles is very limited in scope and 

content. The available data do not prove 

or disprove the concerns, although there 

are several studies that support the 

potential for long term durability issues 

consistent with engineering theory. 

Three studies—the CRC Screening 

Study, DOE Pilot Study, and the Orbital 

Study—discussed in section IV.A. 

highlight in particular the concern with 

MY2000 and older motor vehicles. The 

CRC Screening Study (E–87–1) was a 

test program developed to look at the 

effects of mid-level ethanol blends on 

U.S. vehicles.76 This screening study 

was the first phase of a two-phase study 

evaluating the effects of mid-level 

ethanol blends on emission control 

systems. The purpose of this first phase 

of the study was to identify vehicles 

which used learned fuel trims to correct 

open loop air-fuel rations. Under the 

test program a fleet of 25 test vehicles 

was identified and acquired with six of 

those vehicles being MY2000 and older. 

The study collected vehicle speed, 

oxygen sensor air-fuel-ratio, and catalyst 

temperature data for four fuels (E0, E10, 

E15, and E20). The results of the three 

ethanol blended fuels compared to E0 

showed that four of the six MY2000 and 

older vehicles tested failed to apply 

long-term fuel trim to open loop 

operation in order to compensate for 

increasing ethanol levels. And that these 


srobinson on DSKHWCL6B1PROD with PROPOSALS2
Federal Register / Vol. 75, No. 213 / Thursday, November 4, 2010 / Proposed Rules 68071 

77Ricardo Inc., Technical Assessment of the 

Feasibility of introducing E15 Blended Fuel in U.S. 

Vehicle Fleet, 1994 to 2000 Model Years, 10 

September, 2010. EPA Docket # EPA–HQ–OAR– 

2010–0448. 

78 Diurnal testing refers to a process for measuring 

evaporative emissions where a vehicle is placed in 

a sealed enclosure and the temperature varied over 

multiple cycles to simulate ambient day and night 

conditions in summertime. 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. 

same four vehicles exhibited increased 

catalyst temperatures when operated on 

E20 as compared to E0. While the 

subsequent DOE Catalyst Study 

concluded that this learned fuel trim 

was not important for MY2007 and 

newer motor vehicles because they are 

durable (and therefore can handle E15) 

as discussed in section IV.A, there was 

no such follow on program for MY2000 

and older motor vehicles so the 

durability of these vehicles on E15 is 

unknown. 

Another study suggests that many 

MY2000 and older motor vehicles may 

also have emission exceedances if 

operated on E15. In 2003, the Orbital 

Engine Company issued a report on the 

findings of vehicle testing it completed 

to assess the impact of E20 on the 

Australian passenger vehicle fleet. 

While the Australian vehicles in this 

study were not representative of U.S. 

vehicles of the same model years, they 

are similar to MY2000 and older U.S. 

motor vehicles with respect to 

technology and emission standards. The 

testing program covered vehicle 

performance and operability testing, 

vehicle durability testing, and 

component material compatibility 

testing, on nine different vehicle makes 

or models, five vehicles from MY2001 

and four vehicles from MY1985 to 

MY1993. Testing results showed 

increases in exhaust gas temperature in 

five of the nine vehicles tested with 

three showing increases in catalyst 

temperature. Enleanment was found to 

occur in six of the nine vehicles tested, 

with three having closed loop control— 

the old vehicles without closed loop 

control all displayed enleanment. In 

general, the increase in exhaust gas 

temperature was found to follow those 

vehicles with enleanment. Furthermore, 

one vehicle in the study experienced 

catalyst degradation sufficient to make 

the tested vehicle no longer meet its 

applicable Australian emission 

standards. 

EPA recently received a report by 

Ricardo 77 commissioned by the 

Renewable Fuels Association 

specifically discussing the potential 

impacts of E15 on MY1994–2000 lightduty motor vehicles. However, as 

discussed in the decision document, it 

sheds little new light on the potential 

emission impacts of E15 on MY2000 

and older motor vehicles. While arguing 

that many MY1994–2000 motor vehicles 

may be designed to be compatible with 

E15, it did so only for ‘‘properly 

engineered’’ vehicles. Furthermore, it 

acknowledged potential emission 

increases in-use, but in the context of 

the waiver decision highlighted that 

they were likely within manufacturer 

compliance margins. Finally, it drew 

many of its conclusions only relative to 

E10, not to E0. 

Hence, based on the limited data 

available and our engineering judgment, 

we conclude that MY2000 and older 

motor vehicles have the potential to 

experience conditions when operated 

on E15 which may ultimately lead to an 

increase in emissions. 

2. Material Compatibility 

Data and information exist in the 

literature regarding ethanol’s impacts on 

motor vehicle material compatibility. 

Engine, fuel system, and emission 

control materials (metals, plastics, and 

elastomers) must maintain their 

integrity for motor vehicles to meet their 

exhaust and evaporative emissions 

standards. Material incompatibility can 

result from the chemical reaction or 

physical interaction between a fuel and 

material with which it comes into 

contact. This can lead to emissions 

compliance problems not only 

immediately upon using the new fuel or 

fuel additive, but especially over time. 

In most cases one would expect any 

materials incompatibility to show up in 

the emissions tests, but there may be 

impacts that do not show up due to the 

way the testing is performed or because 

the tests simply do not capture the 

effect. As a result, along with emissions 

testing, materials compatibility is a key 

factor in assessing the emissions 

durability of a fuel or fuel additive. 

Based on our engineering assessment, 

it appears that manufacturers took 

varying steps at different points in time 

to transition the materials in their motor 

vehicle designs to be E10 compatible. 

Many in the mid-to-late 1980s took 

steps for E10 compatibility at least for 

the more immediate effects of ethanol 

(e.g., the dissolving of certain 

elastomers). Large parts suppliers began 

testing materials on gasoline-ethanol 

blends in the mid-to-late 1980s and 

early 1990s, but practices varied with 

manufacturer. At the same time, certain 

areas have now had E10 for a number 

of years and therefore motor vehicles in 

these areas have experienced a much 

higher frequency of ethanol exposure. 

This has led many to argue that ethanol 

is compatible for all motor vehicles in 

the in-use fleet and therefore E15 should 

be too. However, since the effects would 

be long term, it is difficult to assess 

whether these motor vehicles 

experienced any higher rates of 

deterioration or component failure on 

E10. Furthermore, material 

compatibility with ethanol is time, 

condition (e.g., temperature, pressure), 

and concentration dependent, such that 

problems may occur with E15 that did 

not show up with E10. 

Moving from E10 to E15 reflects a 

50% increase in the volume of ethanol 

present in gasoline. Therefore, since the 

impacts of ethanol on materials are a 

function of concentration, E15 has the 

potential to have more significant 

impacts than E10 if used in motor 

vehicles not equipped for it. For 

MY2000 and older motor vehicles, E15 

use may result in degradation of 

metallic and non-metallic components 

in the fuel and evaporative emissions 

control systems that can lead to highly 

elevated hydrocarbon emissions from 

both vapor and liquid leaks. Potential 

problems such as fuel pump corrosion 

or fuel hose swelling would likely be 

worse with E15 than historically with 

E10, especially if motor vehicles will be 

operating exclusively on it. Since 

ethanol historically comprised a much 

smaller portion of the fuel supply (see 

section VI.A.), in-use experience with 

E10 was often discontinuous or 

temporary, while material effects are 

time and exposure dependent. Thus, 

problems may surface with E15 that 

have not surfaced historically in-use. 

Additionally, leak detection diagnostics 

did not appear until MY1996 and 

enhanced evaporative test procedures 

were not fully implemented until the 

late 1990s. 

In addition to potential vapor or 

liquid leaks, ethanol is also known to 

facilitate permeation through the 

materials in the fuel system. Studies 

have shown this to be a significant 

source of increased emissions with 

gasoline-ethanol blends, especially on 

older motor vehicles. Following 

additional testing requirements as part 

of the Tier 2 motor vehicle emission 

standards beginning in 2004, materials 

in newer motor vehicles have been able 

to mitigate the permeation effects of 

ethanol in the fuel, as discussed in the 

waiver decision document. However, as 

shown in the Figure VI.C.2–1 below, 

permeation emissions from older model 

year vehicles may be very high with 

ethanol blends.78


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79 ‘‘The Feasibility of 20 Percent Ethanol Blends 

by Volume as a Motor Fuel;’’ State of Minnesota and 

Renewable Fuels Association. 

80 ‘‘The Effects of E20 on Metals Used in 

Automotive Fuel System Components;’’ Bruce 

Jones, Gary Mead, Paul Steevens, and Mike 

Timanus; Minnesota Center for Automotive 

Research at Minnesota State University, Mankato; 

February 22, 2008. 

81 ‘‘The Effects of E20 on Elastomers Used in 

Automotive Fuel System Components;’’ Bruce 

Jones, Gary Mead, Paul Steevens, and Chris 

Connors; Minnesota Center for Automotive 

Research at Minnesota State University, Mankato; 

February 22, 2008. 

82 ‘‘The Effects of E20 on Plastic Automotive 

System Components;’’ Bruce Jones, Gary Mead, and 

Paul Steevens; Minnesota Center for Automotive 

Research at Minnesota State University, Mankato; 

February 21, 2008. 

83 ‘‘The Effects of E20 on Automotive Fuel Pumps 

and Sending Units;’’ Nathan Hanson, Thomas 

Devens, Colin Rohde, Adam Larson, Gary Mead, 

Paul Steevens, and Bruce Jones; Minnesota State 

University, Mankato; February 21, 2008. 84 ‘‘An Examination of Fuel Pumps and Sending 

Units During a 4000 Hour Endurance Test in E20;’’ 

Gary Mead, Bruce Jones, Paul Steevens, Nathan 

Hanson, and Joe Harrenstein, Minnesota Center for 

Automotive Research at Minnesota State University, 

Mankota; March 25, 2009. 

85Effects assessed in the studies include: Pitting, 

surface texture change, discoloration, or loss of 

mass for metals; appearance, volume, weight, 

tensile strength, elongation, and hardness for 

elastomers; mass loss or gain, volume loss or gain, 

tensile elongation, impact resistance, and tensile 

strength for plastics; and corrosion and longevity as 

measured by flow and pressure tests for pumps and 

sending units. 

As part of its waiver application, 

Growth Energy submitted a series of 

studies completed by the State of 

Minnesota and the Renewable Fuels 

Association (RFA) that investigated 

materials compatibility of motor vehicle 

engines and engine components using 

three test fuels: E0, E10, and E20 

(‘‘Minnesota Compatibility Study’’).79

The Minnesota Compatibility Study 

looked at 19 metals (‘‘Metals Study’’),80

eight elastomers (rubber materials) 

(‘‘Elastomers Study’’),81 eight plastics 

(‘‘Plastics Study’’),82 and 24 common 

fuel sending unit and fuel pump 

combinations (‘‘Fuel Pumps Study’’ and 

‘‘Fuel Pump Endurance Study’’),83, 84

currently used in automotive, marine, 

small engine, and fuel system 

dispensing equipment for physical or 

chemical effects due to ethanol.85

Results from the Minnesota study 

were mixed depending on if the 

comparison was being made between 

E20 and E10 or E20 and E0. Some 

materials were compatible with the 

ethanol blends while some displayed 

larger property changes with the ethanol 

blends. Because of the immense variety 

of materials available and the overlap in 

use of the different materials over time, 

the study could not test all materials in 

the fleet, nor did it directly assign the 

materials tested to a vehicle generation 

or model year. Instead, the study 

generalized that because ethanol was 

available in some parts of the U.S., these 

materials were likely E10 compatible. 

However, these materials were used 

prior to the widespread use of ethanol 

and therefore conceivably prior to many 

manufacturer’s requirement for 

prolonged exposure to ethanol and 

specifically not for gasoline-ethanol 

blends above 10%. It is difficult to 

quantify the overall impact of changes 

in any material due to ethanol at E15 or 

E20 levels and what those changes 

would mean to the older motor vehicle 

fleet, only that some portion of the fleet 

may experience changes that could 

result in accelerated component failures 

beyond what would be expected on E0 

or E10. In addition, it is important to 

note that the Minnesota Compatibility 

Study assessed component parts using 

laboratory bench tests rather than 

durability studies of whole motor 

vehicle fuel systems simulating ‘‘real 

world’’ motor vehicle use. 


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86A detailed description of the development of 

the EPA Predictive Models is available in a 

Technical Support Document: ‘‘Analysis of 

California’s Request for Waiver of the Reformulated 

Gasoline Oxygen Content Requirement for 

California Covered Areas’’, EPA420–R–01–016, June 

2001. 

87The Agency’s MOVES model has undergone 

extensive peer review and testing, and incorporates 

the EPA Predictive Models. 

88These effects are based the EPA Predictive 

Models and are generally consistent with 

conclusions of CRC E–74b report (e.g., Figure ES– 

2). Fuels properties evaluated were based on market 

averages and were as follows: E0 had aromatics 

content of 29.5 vol%, a T50 of 215 °F, a T90 of 325 

°F, and an RVP of 8.9 psi and E10 had aromatics 

content of 24.9 vol%, a T50 of 202 °F, T90 of 325 

°F, and an RVP of 8.9 psi. Other parameters not 

mentioned here were assumed to be held constant 

between the blends. 

89Results based on data mostly from vehicle 

models that predated the Tier 2 emission standards, 

so several recent test programs have been focused 

on Tier 2 vehicles that will soon make up the 

majority of the in-use fleet. 

90See ‘‘Effects of Gasoline Composition on 

Vehicle Engine-Out and Tailpipe Hydrocarbon 

Emissions—The Auto/Oil Air Quality Improvement 

Research Program’’, SAE Paper No. 920329. See also 

‘‘Engine-out and Tail-Pipe Emission Reduction 

Technologies of V–6 LEVs’’, SAE Paper No. 980674. 

A vehicle not operating in closed-loop mode may 

emit more or less NOX depending on combustion 

behavior. During the 1990s, Federal emission 

standards for NOX dropped from 1 g/mi to 0.4 g/ 

mi. 

91See ‘‘Effects of Gasoline Composition on 

Vehicle Engine-Out and Tailpipe Hydrocarbon 

Emissions—The Auto/Oil Air Quality Improvement 

Research Program’’, SAE Paper No. 920329. See also 

‘‘Engine-out and Tail-Pipe Emission Reduction 

Technologies of V–6 LEVs’’, SAE Paper No. 980674. 

In addition to providing comments on 

the Minnesota Compatibility Study as 

discussed in the waiver decision 

document, the Alliance commented that 

engines need to be hardened for 

resistance to ethanol. Use of gasolineethanol blends in unhardened engines 

can result in bore, ring, piston and valve 

seat wear. Deterioration of these 

components can lead to compression 

and power loss, misfire and catalyst 

damage. 

Based on our review of the literature 

and industry comments on the E15 

waiver request, we believe that MY2000 

and older light-duty motor vehicles 

have the potential for increased material 

degradation with E15 use. In addition, 

some MY2000 and older light-duty 

motor vehicles may have been designed 

for only limited exposure to E10 while 

the oldest vehicles on the road pre-date 

ethanol blends in the marketplace all 

together. This potential for material 

degradation may make the emissions 

control and fuel systems more 

susceptible to corrosion and chemical 

reactions from E15 when compared to 

the E0 certification fuels for these motor 

vehicles and may ultimately increase 

vehicle emissions, especially for 

MY2000 and older motor vehicles. 

3. Motor Vehicle Population and 

Anticipated Emissions Impact 

There is a long history of test 

programs that have been carried out on 

light-duty motor vehicles and trucks 

that have quantified the immediate 

emission impacts of blending ethanol 

up to 10 vol% into gasoline. These test 

programs, dating back to the earliest 

days of gasoline-ethanol blends, have 

found that the oxygen content of ethanol 

enleans the A/F ratio in motor vehicles 

during open-loop operation, causing a 

decrease in HC and CO emissions, but 

also results in a corresponding increase 

in NOX emissions. These studies have 

been used to develop emission models, 

such as the EPA Predictive Models 86

incorporated into the Agency’s MOVES 

model,87 that have been thoroughly peer 

reviewed. The result is that for a typical 

E10 blend of gasoline, exhaust NMHC 

emissions have been found to decrease 

by about 5%, and NOX emissions to 

increase by about 6%, relative to E0.88

While the magnitude of impact may 

vary by a few percent depending on the 

motor vehicle technology and how other 

fuel properties change when ethanol is 

blended into gasoline, the relative 

magnitude and direction of the impacts 

remains consistent for typical fuels.89

The limited available data on E15 

suggests that this trend continues, and 

is slightly more pronounced due to the 

higher ethanol content. However, these 

emission impacts are not the focus of 

this proposal as their magnitude tends 

to be within vehicle compliance 

margins (the difference between a 

vehicle’s actual emission certification 

level and the standard). Rather, for this 

proposal, we have focused on long-term 

durability issues associated with E15, as 

discussed in more detail below. The 

issue of immediate emission increases 

for E15 is more properly addressed as 

part of the anti-backsliding study and 

rulemaking under section 211(v) of the 

Act. 

Sufficient data do not exist to predict 

specific changes in emission rates for 

the various motor vehicle technologies 

due to long-term use of E15 blends. 

However, with respect to exhaust 

emissions, if a catalyst were to be 

damaged to the point of having no 

significant remaining functionality, we 

could expect NOX emissions similar in 

magnitude to those in untreated engineout exhaust (i.e., before treatment by the 

catalyst). If, in this situation, the fuel 

control system continued to operate in 

closed-loop mode, NOX emission levels 

in the range of 2–4 g/mi would be 

expected, or approximately ten times 

the typical emissions rate for a properly 

operating 1990s-era motor vehicle and 

about 60 times that of new cars today.90

Similarly, loss of catalyst function could 

also cause significant HC emission 

increases, where levels on the order of 

2 g/mi could be expected.91 This would 

be equivalent to combined HC 

emissions of 40 new cars today. While 

this kind of complete failure would 

likely be limited in nature, misfueled 

motor vehicles may experience a 

reduction in catalyst efficiency earlier 

than intended, resulting in emissions 

levels increased above current levels 

and up to the uncontrolled engine-out 

levels presented above. 

Another area of concern related to 

exhaust emissions is fuel pump 

malfunction occurring due to material 

incompatibility of higher ethanol 

content with parts such as plastic pump 

rotors, shaft seals or elastomeric tubing, 

and increased corrosion of metallic or 

electrical components. As described in 

Section VI.B, ethanol increases the 

electrical conductivity of fuel, 

increasing the likelihood that galvanic 

corrosion of metal parts would occur. 

Before outright failure, malfunctioning 

fuel pumps often provide inconsistent 

fuel pressure for some period of time, 

resulting in long crank (starting) times, 

misfires, and other erratic engine 

behavior. Should such conditions occur, 

they may cause increases in exhaust 

emissions and possible deterioration of 

exhaust catalysts. 

In addition to the potential for 

exhaust emissions increases, 

evaporative emissions are also expected 

to increase, not only immediately due to 

increased permeation (as discussed 

above), but also due to long-term E15 

use that may cause from increased 

corrosion of metallic fuel system 

components and accelerated 

deterioration of elastomeric hoses and 

seals. Corrosion may result in vapor or 

liquid leaks, depending on where in the 

fuel system the corrosion is located. 

Many types of elastomers used in orings and fuel lines swell or crack when 

exposed to ethanol, resulting in 

increased permeation of vapor or liquid 

leaks. Elastomeric seals on older motor 

vehicles may already be brittle and 

weakened from age. Exposure to E15 

may produce accelerated failures of 

these elastomeric components. 

Though it is difficult to quantify the 

impacts of these types of evaporative 

component failures, a recent evaporative 

emissions study produced some 

relevant data. During the program, a 

motor vehicle with a fuel system leak 

due to an o-ring failure produced 

between 23–26 times more gasoline 

vapor during a pair of diurnal tests than 


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68074 Federal Register / Vol. 75, No. 213 / Thursday, November 4, 2010 / Proposed Rules 

92 Diurnal testing refers to a process for measuring 

evaporative emissions where a vehicle is placed in 

a sealed enclosure and the temperature varied over 

multiple cycles to simulate ambient day and night 

conditions in summertime. See Coordinating 

Research Council Report No. E–77–2 for detailed 

results (available at http://www.crcao.org). 

93Onboard refueling vapor recovery systems were 

phased into production in light-duty motor vehicles 

over MY1998–2000, and provide a relatively short, 

large-diameter pathway for vapors to reach the 

carbon canister where they are stored for 

combustion during engine operation. See 

Coordinating Research Council Report No. E–77–2 

for detailed results (available at http:// 

www.crcao.org). 

94There are approximately 250 million cars and 

trucks in the fleet today when diesels are included. 

a properly-functioning new motor 

vehicle meeting current standards.92

The study also placed very small 

simulated leaks (essentially pin holes) 

in gas caps of three motor vehicles, 

representative of what could occur as a 

result of tiny corrosion sites in the vapor 

space of the fuel tank. Diurnal tests were 

performed to compare the emissions 

with and without the leaks. The 

MY1996 motor vehicle produced 54 

times more evaporative emissions with 

the simulated leak, while the MY2001 

and 2004 motor vehicles produced two 

and three times more vapors, 

respectively. The study authors point 

out that the two newer motor vehicles 

had tank vent systems designed to meet 

onboard refueling vapor recovery 

(ORVR) requirements, suggesting this 

may mitigate the effect of vapor space 

leaks.93

Thus, we may conclude that even 

small vapor space leaks occurring in 

older motor vehicles (before ORVR was 

required) have the potential to result in 

large increases in HC emissions. 

For more discussion on potential 

evaporative issues, refer to the Waiver 

Decision document Section IV.A.3 that 

was also released today. 

Table V1.C.3–1 below shows the 

projected population of motor 

vehicles—passenger cars and light-duty 

trucks in the fleet—by model year for 

2011. According to this information, of 

the total estimated 225 million cars and 

trucks that operate on gasoline in the 

fleet today,94 nearly 73 million or onethird are MY2000 and older light-duty 

motor vehicles, and it is these motor 

vehicles for which the effects of E15 are 

uncertain but indicate the potential for 

anywhere from small to significant 

emission increases from the 

deterioration of the emissions control 

system over time. As discussed above, if 

motor vehicles experience engine or 

emission component failure, the 

potential exists for very elevated 

exhaust and/or evaporative system 

emissions rates. If only a fraction of the 

fleet were to experience problems with 

E15, that would still be a large number 

of motor vehicles with a potentially 

significant impact on in-use emissions. 

TABLE VI.C.3–1—PROJECTED POPULATION OF CARS AND LIGHT TRUCKS BY MODEL YEAR IN 2011 

Model year Cars Light trucks Cars and trucks 

combined Cumulative total 

2000 and earlier ....................................................................... 41,548,800 32,162,084 73,710,884 73,710,884 

2001–2006 ............................................................................... 46,567,413 38,594,752 85,162,165 158,873,049 

2007–2011 ............................................................................... 39,068,213 26,755,598 65,823,812 224,696,860 

Total .................................................................................. 127,184,425 97,512,435 224,696,860 

Source: EPA’s vehicle certification data and Mobile Vehicle Emissions Simulator (MOVES) model. 

D. Heavy-Duty Gasoline Engines and 

Vehicles 

Given its limited market, heavy-duty 

gasoline engines and vehicles have not 

been the focus of test programs and 

efforts to assess the potential impacts of 

E15 on such engines. From a historical 

perspective, the introduction of heavyduty gasoline engine and vehicle 

technology has lagged behind the 

implementation of similar technology 

for light-duty motor vehicles. Similarly, 

emission standards for this sector have 

lagged behind those of light-duty motor 

vehicles, such that current heavy-duty 

gasoline engine standards remain 

comparable from a technology 

standpoint to older light-duty motor 

vehicle standards. Consequently, we 

believe the discussion in Section VI.C. 

for MY2000 and older motor vehicles 

should also be applicable to the majority 

of the in-use fleet of heavy-duty gasoline 

engines and vehicles. Therefore, we are 

proposing to prohibit the use of E15 in 

heavy-duty gasoline engines and 

vehicles. We seek comment on this 

assessment. 

E. Motorcycles 

Motorcycles come in many different 

sizes, styles and applications. The 

biggest distinction between motorcycle 

types are that some are designed for 

operation on-road and others are 

designed for operation off-road. The 

motorcycles designed for operation onroad are referred to as highway 

motorcycles. Highway motorcycles can 

range from small scooters equipped 

with a 50 cubic centimeter (cc) single 

cylinder two-stroke engine to a large 

touring motorcycle equipped with a 

multi-cylinder four-stroke engine with 

an engine displacement exceeding 2,000 

cc. Motorcycles designed for off-road 

operation are referred to as off-highway 

motorcycles and can differ significantly 

from highway motorcycles in design 

and appearance. 

Motorcycles have been around for 

well over 100 years. The fuel system 

used to manage the A/F ratio for 

motorcycles has been the carburetor. In 

fact, the carburetor has been the fuel 

control system of choice for highway 

and off-highway motorcycles until the 

last decade. Starting in the late 1990s, 

some of the more expensive high 

performance highway motorcycles 

began to use electronic fuel injection 

(EFI) to manage the A/F ratio. While EFI 

is becoming more common today in 

many highway motorcycles, there are 

still many models that use carburetors. 

Off-highway motorcycles have only 

begun to use EFI in a very few 

expensive competition models. The vast 

majority of off-highway motorcycles 

continue to use carburetors. 

All internal combustion engines need 

a system to cool the engine from the 

excessive heat generated as part of the 

combustion process. Without a cooling 

system, the engine would quickly 

overheat and fail. Motorcycles use two 

types of engine cooling systems: liquidcooled and air-cooled. Liquid-cooled 

systems are very similar to the systems 

used by automobiles. A radiator stores 

a liquid coolant that is distributed 

throughout the engine which cools the 

engine. The heated coolant is returned 

to the radiator where it is cooled by air 

from the moving motorcycle or from an 

external fan. An air-cooled system is 

similar to that used for most nonroad 

engines and is less sophisticated than a 


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liquid-cooled system. An air-cooled 

system uses a series of external ‘‘fins’’ 

located on the cylinders and cylinder 

heads that help direct heat away from 

the cylinder and cylinder head. Since 

the engine in a motorcycle is exposed to 

the atmosphere and not contained in an 

engine compartment like an automobile, 

the engine is exposed to passing air as 

the machine is operated on the road or 

trail. The passing air is channeled 

through the fins and helps cool the 

cylinder and cylinder head, which helps 

cool the combustion chamber, reducing 

the overall engine temperature. Aircooling is not nearly as effective at 

controlling engine temperature as liquid 

cooling. One of the strategies to help 

with engine cooling for engines that rely 

on air-cooling is to operate the engine at 

an A/F ratio that is rich of 

stoichiometry. The additional fuel helps 

reduce combustion temperature, 

keeping overall engine temperature 

lower. For this reason, any increase in 

the A/F ratio beyond that designed for 

at the time of manufacturing, such as 

the enleanment resulting from ethanol, 

raises potential concerns. 

In 1978, EPA issued HC and CO 

emission standards for highway 

motorcycles. There were no standards 

for NOX emissions. To meet these 

standards, the vast majority of 

motorcycle models used the approach of 

adjusting the A/F ratio rather than using 

any unique emission control 

technologies, such as catalytic 

converters, EFI, and air injection. For 

performance and durability purposes, 

most motorcycles operated with an A/F 

ratio that was considerably rich of 

stoichiometry. The strategy used to 

control HC and CO emissions was to 

lean the A/F ratio from these rich values 

traditionally used for maximum 

performance. As with light-duty motor 

vehicles, this strategy resulted in lower 

HC and CO emissions, but caused an 

increase in NOX emissions. Since there 

were no NOX emission standards, the 

increased NOX emissions were allowed. 

This strategy also resulted in complaints 

about vehicle performance and 

driveability. As a result, a common 

practice was for motorcycle owners to 

change the A/F ratio on their own to a 

richer setting that improved the 

performance concerns, but also possibly 

resulted in an exceedance of the 

emissions standards. These emission 

standards were unchanged until 2006 

when more stringent standards for HC 

and new standards for NOX were 

introduced for MY2008. 

Off-highway motorcycles were 

unregulated until 2006. Beginning with 

MY2006, off-highway motorcycles were 

required to meet emission standards for 

HC, CO, and NOx emissions. In general, 

the overall majority of motorcycles 

designed from 1978 through 2006 either 

used an A/F ratio leaner than desired for 

maximum performance and durability 

to comply with highway motorcycle 

emission standards or ran rich, in the 

case of off-highway motorcycles, to help 

cool the engine and protect it from 

overheating and failure. The practice of 

motorcycle owners adjusting the A/F 

ratio to a richer setting to improve 

performance and driveability was even 

more prevalent in the off-highway 

motorcycle sector, especially for 

competition motorcycles where 

performance is an important attribute. 

As E10 fuel has become more 

prevalent in the marketplace, many 

owners of off-highway and older 

highway motorcycles have chosen to 

either operate their motorcycles on E0 

fuel whenever it is available or have 

modified their A/F ratio to a richer 

setting. In fact, the internet is full of 

blogs of motorcycle owners discussing 

concerns with operation on E10 fuel and 

ways to avoid these concerns, including 

how to change the A/F ratio setting. It 

is a violation of the CAA to modify a 

certified motorcycle from its certified 

configuration. Changing the A/F ratio 

from the certified setting would be 

considered tampering, yet it is clear it 

is practiced in-use. 

For highway motorcycles designed to 

already operate leaner to comply with 

emission standards, the use of E15 fuel 

would result in a further leaning of the 

A/F ratio. These motorcycles were 

designed with an optimized A/F ratio 

setting taking into consideration the 

delicate balance of emissions, 

performance, and engine protection. 

Since most of these motorcycles use 

carburetors, the A/F ratio is not easily 

adjusted to adapt to the increased 

amount of oxygen in the A/F mixture. 

The additional enleanment of the A/F 

ratio could cause an increase in 

combustion temperature and ultimately 

engine temperature, potentially 

resulting in an exceedance of the 

emission standards and engine failure. 

For off-highway motorcycles that have 

typically been designed to operate rich 

of stoichiometry for engine protection, 

the enleanment of the A/F ratio could 

cause an increase in engine temperature 

beyond what the engine was designed to 

accommodate and ultimately result in 

engine failure. As a result of the 

increased enleanment resulting from 

E15 fuel, more motorcycle owners may 

be tempted to adjust the A/F setting of 

their motorcycles to protect vehicles 

from potential damage resulting in 

possible exceedances of the emissions 

standards. 

In either case, the use of E15 fuel 

could cause engine damage and 

emission increases for highway 

motorcycles built prior to 2008 and for 

all off-highway motorcycles, regardless 

of age. For highway motorcycles built 

after MY2008 there is the possibility 

that some models may be able to 

successfully accommodate the use E15 

fuel. For MY2008 and beyond, there are 

a number of models that use EFI and 

catalytic converters. The systems are 

similar to automotive closed-loop 

catalyst systems. However, one of the 

advantages to modern Tier 2 light-duty 

emission control systems is that they 

use very sophisticated fuel trim learning 

systems that allow a very precise 

‘‘learning and adapting’’ of changes to 

the A/F ratio mixture. While many of 

today’s motorcycle models use closedloop systems, they do not have the 

advanced fuel trim control of today’s 

motor vehicles, meaning they would 

most likely not be able to accommodate 

the enleanment of the A/F ratio in the 

same manner as today’s motor vehicles. 

Their closed-loop technology is more 

similar to that of MY2000 and older 

motor vehicles than to current motor 

vehicles. 

In light of the above, while there is no 

actual E15 test data on motorcycles, 

EPA believes that any operation of 

highway or off-highway motorcycles on 

fuel containing E15 could result in 

engine damage and emission increases 

for highway and off-highway 

motorcycles. It also could have the 

unintentional result of encouraging 

motorcycle owners to violate the CAA 

by tampering with the vehicles A/F ratio 

setting to improve performance, 

driveability, and protect the engine from 

damage, while at the same time 

significantly increasing hydrocarbon 

and CO emissions. Therefore, we are 

proposing to prohibit the use of E15 in 

all motorcycles (highway and offhighway) but seek comment on our 

assessment. 

F. Nonroad Engines, Vehicles, and 

Equipment (Nonroad Products) 

1. Introduction 

The nonroad product market is 

extremely diverse which makes it 

difficult to determine what the impacts 

of E15 use might be. However, similar 

to older motor vehicles, it appears that 

nonroad products may experience 

emissions increases related to 

enleanment and material compatibility 

issues if operated on E15. This is based 

in large part on the history of the design 

of nonroad products operating on E10 in 

relation to the age of those products in 

the field, and the implications of 


srobinson on DSKHWCL6B1PROD with PROPOSALS2
68076 Federal Register / Vol. 75, No. 213 / Thursday, November 4, 2010 / Proposed Rules 

95The first exhaust emission regulations for 

nonroad products began with Small SI Engines in 

1997 and the last onroad categories of Marine 

Inboard/Sterndrive and Snowmobiles will meet 

their first exhaust emission standards in 2010. The 

design changes to comply with the standards 

tended to enlean the A/F ratio of new engines 

compared to prior engines and limit the ability to 

manually adjust the A/F ratio, so while newer 

engines may use materials better suited for ethanol, 

they may also be more susceptible to enleanment 

concerns. 

96See EPA–HQ–OAR–2010–0448, Submittal to 

Docket on Yamaha Web site information. 

97See EPA–HQ–OAR–2010–0448, CPSC, Health 

Canada and Toro snowblower recall. 

98See EPA–HQ–OAR–2010–0448, Oregon State 

Government Non-Ethanol Fuel Supplier Listing. 

extrapolating this in-use operating 

experience with E10 to E15. 

The majority of nonroad products are 

still carbureted, or have very simplistic 

electronic fuel injection which cannot 

adjust the engine A/F ratio, and do not 

have any onboard diagnostics to 

monitor engine performance before 

components may fail. The experience of 

consumers with E10 in nonroad 

products in the 1980s pushed most 

manufacturers to take some steps to 

address enleanment and E10 material 

compatibility issues at that time, either 

with changes in engine design or 

warnings in consumer owner manuals 

(either to avoid ethanol blended fuels or 

blends higher than 10%). However, the 

design practices and recommendations 

varied across the industry due to the 

breadth of the nonroad market (as 

highlighted in Table VI.F.1–1) and the 

wide range of manufacturers, 

applications, and markets. The design 

practices also continued to evolve over 

time in part due to emission 

regulations.95 While a review of current 

nonroad engine and equipment 

manufacturer Web sites indicates a 

general acceptance of E10 use with the 

new products being produced today, 

manufacturers continue to caution 

against any higher level ethanol use, 

and marine manufacturers still caution 

against E10 use.96 In addition, nonroad 

product manufacturers are clearly still 

learning how to design for compatibility 

with E10 as evidenced by a recent large 

recall of snowblowers due to corroded 

carburetors.97

TABLE VI.F.1–1—2010 ESTIMATED POPULATION OF NONROAD ENGINES, EQUIPMENT AND VEHICLES

Nonroad category Typical equipment/vehicles Estimated 2010 in-use 

population (millions) 

Small SI Engine .................................. Handheld: Trimmers, chainsaws, blowers, hedge trimmers ......................... 131. 

Nonhandheld: Lawnmowers, generators, riding tractors.

Marine Outboard ................................ Outboard engines to power fishing boats, pontoon boats ............................ 10. 

Marine Sterndrive/Inboard .................. Speed boats, Ocean going fishing boats ...................................................... 2. 

Marine Personal Watercraft ............... Jet skis, jet boats, etc. ................................................................................... 1.3. 

All Terrain Vehicles ............................ Four wheelers ................................................................................................ 11. 

Nonroad Motorcycles ......................... Nonroad motorcycles ..................................................................................... 2.6. 

Snowmobiles ...................................... Snowmobiles .................................................................................................. 2.4. 

Large SI .............................................. Fork Lifts ........................................................................................................ 0.24. 

On-Highway Motorcycles ................... On-Highway Motorcycles ............................................................................... 8 (2008 estimated population). 

In addition, as shown in Table 

VI.F.1–2, consumers are still using a 

considerable amount of older nonroad 

products (e.g., marine engines) that are 

not necessarily designed for E10 use. In 

recognition of this situation, States such 

as Minnesota, Missouri, Oregon, and 

Washington that have mandated the use 

of ethanol blends have also provided 

exceptions to the mandate for sale of 

ethanol free gasoline (E0) for a variety 

of nonroad products. In addition, 

Oregon has taken the additional step of 

publishing a list of retail stations 

distributing E0 to assist their nonroad 

consumers in locating it.98

TABLE VI.F.1–2—2010 ESTIMATED ACTIVE NONROAD PRODUCT POPULATION

Sales years 

Nonroad SI, 

excluding 

marine SI 

(thousands) 

Marine SI 

(thousands) 

2007–2010 ............................................................................................................................................................... 98,255 3,155 

2003–2006 ............................................................................................................................................................... 39,466 2,953 

1999- 2002 ............................................................................................................................................................... 7,245 2,484 

1995–1998 ............................................................................................................................................................... 1,253 1,828 

1991–1994 ............................................................................................................................................................... 475 1,215 

1987–1990 ............................................................................................................................................................... 208 656 

1983–1986 ............................................................................................................................................................... 72 348 

1979–1982 ............................................................................................................................................................... 28 177 

1975–1978 ............................................................................................................................................................... 18 100 

1971–1974 ............................................................................................................................................................... 11 50 

1967–1970 ............................................................................................................................................................... 6 23 

1963–1966 ............................................................................................................................................................... 3 10 

Total .................................................................................................................................................................. 147,040 12,999 

Source: UnEPA Nonroad8a model. 


srobinson on DSKHWCL6B1PROD with PROPOSALS2
Federal Register / Vol. 75, No. 213 / Thursday, November 4, 2010 / Proposed Rules 68077 

99 ‘‘Effects of Intermediate Ethanol B lends on 

Legacy Vehicles and Small Non-Road Engines, 

Report 1’’, NREL/TP–540–43543 and ORNL/TM– 

2008/117, October 2008. 

100 ‘‘Effects of Intermediate Ethanol B lends on 

Legacy Vehicles and Small Non-Road Engines, 

Report 1’’, NREL/TP–540–43543 and ORNL/TM– 

2008/117, October 2008. 

101Of the nearly 1200 gasoline-fueled nonroad 

engine families certified in 2010, only 36 are 

estimated to have closed loop electronic fuel 

injection, and most of those are large spark-ignited 

nonroad engines. 102Older nonroad products—those prior to 

emission standards—tended to have A/F ratio 

adjustment screws so knowledgeable consumers or 

maintenance facilities could adjust the A/F ratio of 

the engine if it operating poorly. Manufacturers 

tended to remove or limit the capability for such 

manual adjustments to meet emission standards. 

103Standards for some nonroad categories which 

require evaporative emission certification on E10 

and allow it as an option for exhaust are just 

beginning to phase in. 

104Some engines have been under emission 

regulation for 13 years while others are just falling 

under emission regulation. In order to meet EPA 

emission standards, engines have either been 

enleaned and/or taken on engine designs of a more 

efficient engine such as a 4 stroke engine. 

105 ‘‘Effects of Intermediate Ethanol B lends on 

Legacy Vehicles and Small Non-Road Engines, 

Report 1’’, NREL/TP–540–43543 and ORNL/TM– 

2008/117, October 2008. 

2. Enleanment 

Given the relatively undeveloped 

technological design of the nonroad 

product fleet for purposes of emissions 

control, one of the main concerns with 

the use of E15 in nonroad products, as 

for older motor vehicles, is the 

increased temperatures caused by 

enleanment of the A/F ratio. With 

higher levels of ethanol, the 

stoichiometric (ideal) A/F ratio becomes 

lower (i.e., more fuel is needed for the 

same amount of air) due to the increased 

oxygen in the fuel; hence, the nonroad 

products run leaner since they do not 

adjust to the fuel oxygen content. 

Engines designed to operate on nonethanol fuels (0 wt% oxygen) are 

currently operating on E10, which 

typically contains about 3.5–3.7 wt% 

oxygen, and would operate on 

approximately 5.5 wt% oxygen when 

operating on E15. As evidenced by 

various studies,99 enleanment has an 

immediate impact on emissions, causing 

HC and CO emissions to decrease and 

NOX emissions to increase. However, 

since the HC and NOX impacts are 

directionally opposite, these immediate 

impacts are of less concern than the 

impacts of long-term operation and 

durability. Leaner operation increases 

cylinder and exhaust temperatures that 

can lead to overheating of the engine. In 

some cases this can lead to expansion of 

the engine block and pistons and result 

in a seized engine. Increased 

combustion temperature can also result 

in expansion and contraction of the 

engine block and head metals which 

leads to loosening of the head bolts. 

With looser bolts, the gap between the 

engine block and the head will open 

and the head gasket can get damaged, 

which in turn damages other engine 

components (e.g., intake and exhaust 

valves, manifolds, etc.) which can result 

in increased emissions and potential 

engine failure. 

The likelihood that nonroad products 

may experience such issues with E15 is 

difficult to quantify. However, limited 

testing by DOE 100 showed some engine 

failures with E15, and this is not 

entirely unexpected since nonroad 

products are particularly prone to 

enleanment for several reasons. First, 

nonroad products remain primarily 

carbureted and/or have open loop fuel 

control.101 This means they do not have 

the ability to self-adjust the A/F ratio inuse for the presence of ethanol in the 

fuel. The amount of enleanment an 

engine experiences in-use depends on 

several factors, including manufacturing 

variability, engine wear, and, 

importantly for E15, the A/F ratio 

setting of the engine in comparison to 

the setting needed for the fuel the 

engine is operating on. Engine 

manufacturers set the A/F ratio settings 

at the time of production based on a 

number of factors including the 

emission standards, expected 

deterioration of emissions over time and 

the emission certification fuels.102 Inuse engines are Federally certified on 

E0, while engines certified to California 

standards are certified on an MTBE 

blend (the equivalent oxygen content of 

about E6 or about 2.0 wt% oxygen).103

Thus, when nonroad products switch to 

using E10 in the field, they operate 

leaner than they were set to operate and 

would operate leaner still on E15. Older 

nonroad products may have more 

headroom to tolerate enleanment from 

ethanol than newer engines. This is 

because manufacturers have tended to 

set the A/F ratio for their newer engines 

closer to stoichiometry (less rich) to 

meet newer, more stringent emission 

standards in recent years.104 Second, the 

majority of nonroad products are aircooled (rely on fins designed into the 

engine block to dissipate heat and some 

have a fan to aid in cooling) and fuelcooled (rely on rich operation -excess 

fuel—to cool certain engine components 

like exhaust valves and manifolds). 

Thus, they are much less forgiving of 

temperature increases that might result 

from enleanment. Third, nonroad 

products frequently operate at wide 

open throttle for much of their duty 

cycle where exhaust temperatures are 

highest. 

Additionally, as enleanment occurs, 

the potential for an engine to reach its 

lean limit is increased. A lean limit is 

found when the typical emissions trend 

for enleanment (decreased HC and CO 

emissions and increased NOX

emissions) reverses and results in 

increased HC and CO and decreased 

NOX. The reversal of emissions at the 

lean limit is a signal the engine is 

starting to experience incomplete 

combustion and is beginning to 

experience misfires, hence the increases 

in HC. This often results in engine 

failure since the engine cannot operate 

for an extended period of time under 

this condition. Results from a DOE pilot 

study on small SI nonroad products 

confirmed the potential enleanment 

concerns.105 Several engines failed prior 

to reaching their full useful life, and the 

emission results for one of these (a 

consumer market trimmer) indicated 

that it indeed may have exceeded its 

lean limit when operating on E15. 

Finally, as highlighted above in VI.C., 

catalysts are an emission reduction 

technology that is sensitive to increases 

in exhaust temperature that would 

result from the use of E15. Although not 

yet commonly found on nonroad 

products, they began phasing-in on 

small SI handheld engines in 2002. High 

exhaust temperatures are already a 

concern with these catalysts due to the 

close location of the catalyst to the 

combustion chamber (catalysts are 

located within the muffler which is 

commonly attached to the engine block). 

The hotter combustion temperatures 

from engine enleanment result in hotter 

exhaust temperatures experienced by 

the catalyst and can increase the 

likelihood of catalyst washcoat 

sintering. If sintered, the catalyst 

becomes nearly useless. The likelihood 

that an engine/catalyst setup would 

reach this state is dependent on the 

engine/catalyst design and the 

production variability. Both of these 

vary from engine manufacturer to 

engine manufacturer and engine to 

engine. 

These potential enleanment problems 

would also impact the emission 

performance of engines operated on E15 

over their full useful life. Unfortunately, 

emissions data from nonroad products 

operated over their full useful life on 

E15 is very limited and currently is 

known only to exist for the small sparkignition sector of nonroad engines. DOE 

performed a pilot and durability study 

on four small SI engine models operated 


srobinson on DSKHWCL6B1PROD with PROPOSALS2
68078 Federal Register / Vol. 75, No. 213 / Thursday, November 4, 2010 / Proposed Rules 

106 ‘‘Effects of Intermediate Ethanol B lends on 

Legacy Vehicles and Small Non-Road Engines, 

Report 1’’, NREL/TP–540–43543 and ORNL/TM– 

2008/117, October 2008. 

107The NOX emission results on commercial 

engines change less over time on E15 compared to 

E10, however they start at a higher value at new 

engine condition on E15. (ref: ‘‘Effects of 

Intermediate Ethanol B lends on Legacy Vehicles 

and Small Non-Road Engines, Report 1’’, NREL/TP– 

540–43543 and ORNL/TM–2008/117, October 

2008.) 

on E10 and E15.106 The HC emissions 

from a commercial string trimmer 

engine were considerably higher after 

operation over the full useful life on E15 

in comparison to E10 (191% vs. 101% 

increases in HC). Hydrocarbon 

emissions were similarly increased on a 

commercial generator with E15 vs. E10 

when tested over their full useful life 

(47% increase for HC on E15 vs. 4.7% 

increase for E10) and for a consumer 

power washer (150% increase on E15 

vs. a 44% increase for E10 107 The 

consumer blower engines tested did not 

make it to aging at full useful life on 

E15. The blower engines did have 

catalysts, however, the study was not 

able to analyze its effectiveness over 

time. If the catalyst on the blower was 

to fail and the engine continued to 

operate, then the engine could have 

emitted almost the same emissions as 

pre-regulation engines (e.g., 100–120 g/ 

kW-hr without a catalyst vs. 50 g/kW-hr 

with a catalyst). Thus, while it was only 

a small test sample, it is clearly 

suggestive that exhaust emissions may 

increase considerably with E15 over the 

full useful life of the engines. 

Furthermore, while the study was only 

conducted on the small SI segment of 

the nonroad market, the similarities 

between it and most other segments of 

the nonroad market would raise similar 

concerns. 

3. Material Compatibility and Corrosion 

Materials used in engine and fuel 

system components (e.g. metals, 

plastics, and rubbers) must be 

compatible with the full range of 

expected fuel compositions. Any 

deterioration of materials could result in 

loss of function of critical engine 

components, which can result in 

emissions increases from fuel leaks and 

equipment failure. Nonroad products do 

not have onboard diagnostics to detect 

these conditions and report it to the user 

prior to engine failure. Not much is 

known about the use of E15 in nonroad 

products in real world use. However, 

concern exists because, as discussed 

above in section VI.B., ethanol has 

different material compatibility 

characteristics than gasoline, and even 

products operating adequately on E10 

today may have issues with E15. In 

addition, the vast range of nonroad 

product designs and technologies over 

the years indicates that material 

incompatibility may exist in portions of 

the in-use fleet when using E15. 

Motor vehicle manufacturers, as 

discussed in section VI.G, were driven 

by both market forces and EPA emission 

standards to redesign motor vehicles 

and upgrade materials for continual use 

of E10. This is not the case for nonroad 

products. We are not aware of any 

standard design practices self imposed 

by industry in relation to the presence 

of ethanol in gasoline either in the early 

1980s with gasohol in the Midwest or in 

the 2000s as gasoline-ethanol blends 

expanded nationwide. As a result, it 

appears that manufacturers used a 

variety of approaches at different points 

in time in response to market 

conditions. One reason for this is that 

the nonroad market serves a wide range 

of consumers—the low cost consumer 

quality and the higher cost professional 

quality—and the target market may 

govern how decisions are made. 

Another reason is the vast diversity of 

nonroad products as discussed above. 

The wide range of engines, applications, 

manufacturers, and markets leads to a 

wide range of equipment design 

practices. Finally, some manufacturers 

of nonroad vehicles and equipment may 

purchase another manufacturer’s engine 

and modify it and/or its fuel system for 

a different application (e.g. purchasing a 

small SI engine and replacing the fuel 

tank with a different design so it fits in 

the equipment, or marinizing an 

automotive engine for use as a marine 

engine and recertifying). Since there 

have been no evaporative requirements 

for small SI engines until the Phase 3 

standards (beginning in 2009), in prior 

years the hoses and tanks could be 

changed without concern. 

Consequently, even engine fuel systems 

designed for the presence of ethanol by 

the original engine manufacturer may be 

compromised by the vehicle/equipment 

manufacturer. Thus, it is very difficult 

to quantify the volume of nonroad 

products in today’s fleet designed to 

operate on E10 let alone E15. As shown 

in Figure VI.A–1, since E10 now 

represents more than 80% of the 

gasoline market, it is clearly being used 

in nonroad products today. However, as 

shown in Figures VI.A–3 and VI.A–4 the 

expansion of E10 nationwide is still a 

relatively recent event and the effects 

we are focused on are effects from 

longer term use of the fuel. 

Based on manufacturer Web sites and 

owner’s manual recommendations, most 

new nonroad products produced today 

are designed to be compatible with E10. 

The main exceptions are marine 

applications (as well as aircraft, which 

are not nonroad for purposes of section 

211(c), but in some cases use the same 

gasoline as nonroad products). The 

transition appears to have occurred at 

different points in time across the 

market. However, this is not to say that 

these engines have been designed to be 

compatible with E15. The effects of 

ethanol are time and concentration 

dependent such that the effects of E15 

may be more severe than E10 on 

materials. Consequently, manufacturers, 

while approving the use of E10 today, 

now also warn against the use of any 

higher gasoline-ethanol blends. 

Unlike motor vehicles, most nonroad 

products are used periodically and not 

for daily tasks. Many of these products 

are designed to be inexpensive 

consumer products that last a relatively 

short time or are used irregularly and for 

short periods of time. However a 

considerable fraction may remain in the 

in-use fleet for a long time (10–40+ 

years). Table VI.F.1–2 shows an 

estimated age distribution of nonroad 

products in 2010. Marine engines are 

separated in the table to illustrate the 

fact that these products in particular 

remain in the fleet for many years. 

Consequently, even if nonroad products 

today are designed by the manufacturer 

for the presence of 10% ethanol in the 

gasoline, a large number of pieces of 

equipment still exist in the field from 

model years when ethanol was not 

present in gasoline, or was just 

beginning to be introduced into the fuel 

stream. Based on subsequent 

experience, some of this equipment may 

operate fine on E10, while others may 

have complications due to the 

enleanment or material incompatibility 

effects of using ethanol. 

There have been several attempts to 

study the material compatibility of E15 

use in nonroad engines, vehicles and 

equipment. However, the broad range of 

equipment and designs over time make 

it extremely difficult to do any 

definitive study on the nonroad sector 

that would address the entire fleet. A 

literature and information search 

prepared by the University of Minnesota 

Center for Diesel Research outlines a 

number of the concerns with ethanol 

that could be experienced with E15. 

—Corrosion of steel is accelerated by the 

presence of alcohols in the fuel, both 

because the ethanol itself is considered 

to be more corrosive but also because it 

is a solvent that removes oils and 

coatings from the surface that might 

protect against corrosion. In addition, 

ethanol attracts and mixes with water 

which is also corrosive and tends to 

create a slightly acidic solution, 

especially over time. 


srobinson on DSKHWCL6B1PROD with PROPOSALS2
Federal Register / Vol. 75, No. 213 / Thursday, November 4, 2010 / Proposed Rules 68079 

108 ‘‘A Technical Assessment of E10 and E20 

Petrol Ethanol Blends Applied to Non-Automotive 

Engines. Failure Mode and Effects Analysis of 

Engine Function and Component Design for 

Mercury Marine 15hp Outboard and Stihl FS45 

Line-Trimmer Engines,’’ conducted by Orbital 

Engine Company, Report to Environment Australia, 

November 2002. 

109 ‘‘The Effects of E20 on Metals Used in 

Automotive Fuel System Components,’’ by Bruce 

Jones, Gary Mead, Paul Steevens and Mike 

Timanus, Minnesota Center for Automotive 

Research at Minnesota State University, Mankato, 

February 22, 2008. 

110 ‘‘The Effects of E20 on Elastomers Used in 

Automotive Fuel System Components,’’ by Bruce 

Jones, Gary Mead, Paul Steevens, and Mike 

Timanus, Minnesota Center for Automotive 

Research at Minnesota State University, Mankato, 

February 22, 2008. 

111 ‘‘The Effects of E20 on Plastic Automotive Fuel 

System Components,’’ by Bruce Jones, Gary Mead, 

and Paul Steevens, Minnesota Center for 

Automotive Research at Minnesota State University, 

Mankato, February 21, 2008. 

112http://www.fuel-testers.com/marine_e10_bad_

gas_reports.html. 

113http://www.sail-world.com/USA/index.cfm?

SEID=0&Nid=38442&

SRCID=0&ntid=0&tickeruid=0&tickerCID=0. 

114See EPA–HQ–OAR–2010–0448, CPSC, Health 

Canada and Toro snowblower recall. 

115See EPA–HQ–OAR–2010–0448, Collection of 

manufacturer literature from 1980 to present. 

116See EPA–HQ–OAR–2010–0448, Submittal to 

Docket on Yamaha Web site information. 

—Elastomers exposed to higher 

gasoline-ethanol blends over time can 

increase in weight gain, swell, soften 

and increase in hardness when dried 

and as a result lose tensile strength, 

causing fuel pumps and fuel lines to 

fail. For fuel hoses, swelling and 

softening creates a risk of failure of the 

joints. The swelling and softening of Orings, seals and gaskets causes a risk of 

damage or incorrect fit of the seal during 

assembly of joints leading to fuel 

leakage. 

—Seals and gaskets on equipment that 

have not been previously exposed to 

higher alcohol fuels could deteriorate 

and break down creating leakage. 

—Fiberglass-reinforced plastic fuel 

tanks, such as those on marine engines 

and motorcycles, may also experience 

problems depending on the type of resin 

and how much the ethanol will 

contribute to the corrosion of it. 

—Materials such as lead/tin-coated steel 

used in fuel tanks and aluminum fuel 

system components require corrosion 

inhibitors due to the presence of the 

higher alcohol in E15. 

In addition, four studies have been 

reported which tested the effect of a 

number of ethanol containing fuels 

(E10, E20) on materials compatibility of 

polymers, metal, and elastomers in 

motor vehicles and nonroad engines. 

While none of these studies reported on 

E15, a number of reports gave 

conditions seen on E10 and E20 and so 

results for E15 can be interpolated. The 

results of one technical assessment, 

published in 2002,108 of E10 and E20 on 

two 2-stroke engines indicated materials 

compatibility concerns for E20 for both 

engine types, including effects on some 

polymeric materials that were deemed 

unacceptable and E20 tarnishing and 

corroding brass and aluminum parts. 

Similarly, three other studies conducted 

by the University of Minnesota 

published in 2008 on metal, plastic, and 

elastomer materials, 

respectively,109, 110, 111 used in highway 

vehicles and nonroad products found a 

variety of impacts with E20 relative to 

E10 or E0, including clear 

incompatibility with some materials. 

The existence of such materials on 

equipment in the in-use fleet could lead 

to increased emissions, fuel leaks, and 

potentially engine failure from longer 

term use of E15. The degree to which 

such incompatible materials exist in the 

in-use fleet is unknown, but it is clear 

that they do exist based on in-use 

experience with E10.112, 113

We are not aware of any testing that 

has been done that might help quantify 

the potential impact on emissions from 

the types of engine problems that would 

result from material compatibility 

problems. However on July 14, 2010 the 

United States Consumer Protection 

Safety Commission (CPSC) and Health 

Canada (HC) announced a recall of Toro 

snowblowers stating that ‘‘Exposure to 

ethanol in gasoline can cause the 

carburetor needle to become corroded. 

A corroded needle can stick in the open 

position and allow fuel to leak from the 

carburetor.’’ 114 Clearly fuel leaks would 

result in a considerable increase in 

evaporative emissions, and material 

issues with carburetors, fuel pumps, and 

other engine components could clearly 

lead to significant changes in exhaust 

emissions, if not engine survivability. 

4. Phase Separation and Solvency/ 

Detergency 

Two additional concerns with E10 use 

in nonroad products are phase 

separation and solvency/detergency (see 

section VI.B.). However, if nonroad 

products have already been operating on 

E10, the degree to which these would be 

a concern with E15 is unknown. Phase 

separation occurs if a gasoline-ethanol 

blend is saturated with water. Phase 

separation is more likely in nonroad 

products due to the fact that these 

engines are typically used only 

seasonally or occasionally throughout 

the year and in the case of marine 

applications, the equipment is generally 

in a humid, water environment. In 

addition, specifically for small SI 

engines, some of the fuel systems are 

open to the atmosphere through a direct 

vent in the gas cap which exposes the 

fuel to air and humidity. If phase 

separation occurs, it has been reported 

by repair shops to be acidic and result 

in corroded carburetors and potential 

fuel line leaks. However, while phase 

separation has been and continues to be 

a significant concern with E10, as 

evidenced by ongoing guidance on 

manufacturer literature 115 and nonroad 

engine Web sites,116 the additional 

ethanol in E15 would increase the water 

tolerance of the blend and thereby 

potentially reduce the frequency of 

phase separation occurring. 

Similarly, in areas that have 

transitioned to E10, problems have 

historically also shown up in repair 

shops due to the solvency/detergency 

characteristics of ethanol. Ethanol has 

been known to dislodge sludge and 

varnish in the fuel system, causing it to 

clog fuel filters and carburetors. 

However, if in-use engines have already 

been operated on E10, the cleansing 

effect of the ethanol may have already 

occurred, and transitioning to E15 may 

not result in any additional problems. 

G. Model Year 2007 and Newer LightDuty Motor Vehicles 

MY2007 and newer light-duty motor 

vehicles are covered by EPA’s Tier 2 

program which established dramatically 

more stringent NOX standards. While 

the program allowed the standards to 

phase in from MY2004 through 

MY2009, manufacturer certification data 

show that gasoline-fueled motor 

vehicles actually reached full 

implementation with MY2007. MYs 

2004–2006 included a mix of vehicles— 

some Tier 2 and some non-Tier 2. Tier 

2 motor vehicles are more 

technologically advanced and robust 

than cars built years ago, are fully 

capable of running on E10, and must 

have their evaporative emission systems 

aged on E10 for durability purposes. 

Sophisticated computer systems and 

sensors constantly monitor the engine 

and the exhaust to be sure that 

everything (i.e., the A/F ratio mixture) is 

kept at its optimum level. All auto 

manufacturers now warrant their new 

motor vehicles to operate on E10 or less. 

As found in the E15 waiver decision 

also published today, we believe on the 

basis of testing performed and our own 

engineering assessment, that these 

MY2007 and newer Tier 2 light-duty 

motor vehicles are durable and will 

maintain their emission performance 

when operated on E15. 

To evaluate the impacts of E15 on 

Tier 2 motor vehicles, DOE performed a 


srobinson on DSKHWCL6B1PROD with PROPOSALS2
68080 Federal Register / Vol. 75, No. 213 / Thursday, November 4, 2010 / Proposed Rules 

117Catalyst Durability Study, Department of 

Energy/Coordinating Research Council Report: 

E–87–2, September 2010. 

118Mid-level Ethanol Blends Catalyst Durability 

Study Screening, Coordinating Research Council 

Report: 

E–87–1, June 2009. 

119Effects of Intermediate Ethanol Blends on 

Legacy Vehicles and Small Non-road Engines, 

Report 1—Updated, National Renewable Energy 

Laboratory, February 2009. 

catalyst durability test program 117 on 19 

Tier 2 motor vehicles from high sales 

volume models produced by the various 

light-duty vehicle manufacturers 

throughout 2009 and 2010. The specific 

purpose of the test program was to 

evaluate the long term effects of E0, E10, 

E15, and E20 on catalyst system 

durability. However, a number of the 

motor vehicles were also torn down and 

evaluated for any other impacts E15 

may have had, including material 

compatibility in the fuel and 

evaporative emission control systems. 

As discussed in the waiver decision 

document, program results indicate that 

the changes manufacturers made 

(calibration, hardware, etc.) to their 

motor vehicles to comply with the Tier 

2 standards have enabled the motor 

vehicles to operate satisfactorily on E15, 

including the ability of their catalysts to 

withstand the additional enleanment 

caused by E15. 

The DOE test program was critical in 

supporting the waiver decision. 

However, it also serves to confirm our 

engineering assessment of the ability of 

light-duty motor vehicles to handle E15. 

The emission standards that EPA has 

implemented over time affecting motor 

vehicles have become more and more 

stringent (i.e., Tier 0 to Tier 1 to LEV1 

and NLEV to Tier 2 and LEV2). In 

addition, full useful life requirements 

have increased and new test cycles have 

been added. To comply with the 

stringent Tier 2 standards, 

manufacturers must minimize 

deterioration of their vehicle emission 

control systems over a vehicle’s full 

useful life of 120,000 miles. By MY2004, 

new test procedures took effect to better 

represent actual consumer driving 

habits and conditions. These additional 

test cycles, coupled with the in-use 

testing required under the Compliance 

Assurance Program (CAP2000), pushed 

manufacturers to develop more robust 

emissions control systems (such as 

systems using wide range oxygen 

sensors) capable of withstanding the 

higher temperatures experienced during 

these more severe cycles without simply 

relying on enriching of the A/F ratio, 

causing emissions to rise. With each 

new program, manufacturers were 

required to improve the efficiency and 

durability of emission control hardware 

and the methods and control systems 

governing hardware performance 

causing newer motor vehicles to be able 

to accommodate gasoline-ethanol blends 

more so than older motor vehicles. 

Perhaps the most critical changes 

made over time were the changes to the 

engine calibrations and catalyst systems 

to accommodate changes in the A/F 

ratio such as those that occur when 

switching to operation on gasolineethanol blends. Evolution in emission 

standards prompted corresponding 

evolution in motor vehicle emission 

control systems. In particular, catalyst 

deterioration must be minimized and 

catalyst temperatures controlled during 

all vehicle operation modes for the 

catalyst to work properly (i.e., for it to 

maintain the necessary high efficiency 

demanded by the Tier 2 standards). Tier 

2 motor vehicles, especially the MY2007 

and newer motor vehicles, have 

improved hardware as well as more 

sophisticated emission control systems 

and strategies to help maintain catalyst 

effectiveness, and an extended motor 

vehicle operating range over which 

emissions performance must be 

maintained. MY2007 and newer motor 

vehicles have the ability to precisely 

adjust for changes in the A/F ratio and 

ultimately maintain peak catalyst 

efficiency under almost any condition, 

such as exposure to oxygenated fuels 

like those containing ethanol. To do so, 

some manufacturers incorporated 

learned or adaptive fuel trim into their 

motor vehicle designs to modulate the 

A/F ratio and alleviate catalyst 

temperature increases even under open 

loop conditions. Others, through careful 

hardware selection and certain 

calibration approaches, have motor 

vehicle designs with higher thermal 

margins to accommodate the effects of 

enleanment with gasoline-ethanol 

blends. 

Prior to completion of the DOE 

catalyst durability test program some 

concern had been expressed that when 

operated on E15, vehicles, even Tier 2 

motor vehicles that did not apply 

learned fuel trim, may experience 

catalyst degradation and higher 

emissions over time due to the higher 

exhaust temperatures it may cause. 

Several screening studies had measured 

exhaust and catalyst temperature and/or 

evaluated the ability of vehicles to apply 

learned fuel trim to adjust for the 

enleanment due to ethanol during open 

loop operation.118, 119 They had found 

that those vehicles that did not apply 

learned fuel trim tended to experience 

higher catalyst and exhaust 

temperatures when operated on E15. 

However, as evidenced by the DOE 

catalyst durability test program, at least 

for Tier 2 motor vehicles this does not 

appear to be the case. Even those 

vehicles that do not apply learned fuel 

trim appear to have sufficient thermal 

margins. Therefore, not only do all 

manufacturers warrant their Tier 2 

motor vehicles for operation on E10, but 

as discussed in the waiver decision 

document, we believe that they will also 

operate properly on gasoline-ethanol 

blends up to E15. 

With respect to evaporative emissions 

control, evaporative systems have had 

leak detection diagnostic requirements 

since at least MY2000 as a result of the 

Agency’s Onboard Diagnostic (OBD) 

program. In addition, CAP2000 which 

took effect with MY2001 motor vehicles 

placed more emphasis on the ‘‘in-use’’ 

performance of motor vehicle emission 

controls with motor vehicles operating 

nationwide on the different available 

fuels. This emphasis on real world 

motor vehicle testing prompted 

manufacturers to consider different 

available fuels, including gasolineethanol blends, when developing and 

testing their emission systems. 

However, even with the CAP2000 

requirements, some materials issues 

continued to arise during in-use 

emissions testing. Consequently, as part 

of the new Tier 2 standards, EPA added 

the requirement that the evaporative 

control system and all related 

components (i.e. fuel tanks, fuel lines, 

etc.) demonstrate durability over their 

full useful life while operating on E10. 

Due to this new requirement, materials 

that would compromise evaporative 

emission compliance over the full 

useful life with exposure at E10 levels 

were eliminated as options for fuel 

system components. This requirement, 

coupled with much more stringent 

evaporative emission standards (over a 

50% reduction for passenger cars and 

light trucks), was phased-in with the 

Tier 2 exhaust standards. Prior to Tier 

2, materials are believed to have also 

been selected for ethanol compatibility 

but perhaps not for continuous exposure 

over the full useful life. Based on 

conversations with original equipment 

manufacturer parts suppliers, it is our 

understanding that in designing 

materials for continuous E10 exposure, 

they tested materials, components, and 

systems using ethanol levels in excess of 

20% to ensure compatibility with E10. 

Consequently, Tier 2 motor vehicle 

designs should also be designed to be 

compatible with E15, and the results of 

the DOE catalyst durability test program 

served to confirm this belief. 


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120The effect of E20 ethanol fuel on vehicle 

emissions, B Hilton and B Duddy, Center for 

Integrated Manufacturing Studies, Rochester 

Institute of Technology, June 26, 2009. 

H. Model Year 2001–2006 Motor 

Vehicles 

For MY2001–2006 motor vehicles, 

both our engineering assessment and the 

available data make it less clear whether 

motor vehicles produced during those 

model years could have emission 

increases from long-term fueling with 

E15 like MY2000 and older motor 

vehicles or whether they would 

continue to function properly like 

MY2007 and newer motor vehicles. On 

the one hand, we believe that many of 

the same elements for ethanol 

compatibility of MY2007 and newer 

motor vehicles also apply to these motor 

vehicles (e.g., designing to enhanced 

evaporative emission standards, SFTP, 

CAP2000). On the other hand, they were 

not all required to demonstrate 

evaporative emission system durability 

on E10 or to upgrade their catalyst and 

emission control systems to the extent 

needed to comply with the Tier 2 

standards. The NLEV standards that 

began phasing in with MY2001 required 

improvements in closed loop A/F ratio 

control and catalyst efficiency, but the 

Tier 2 standards represented a 

considerable step change beyond NLEV. 

Furthermore, as discussed below, while 

there are some ongoing test programs 

evaluating the effects of E15, we do not 

yet have sufficient data that would serve 

to confirm or deny any engineering 

analysis of the situation, and in 

particular to address the potential 

concerns raised over those motor 

vehicles that do not apply learned fuel 

trim during open loop operation. 

Two studies that might help inform 

the situation are currently still in 

process. The Rochester Institute of 

Technology is conducting a study of 10 

motor vehicles spanning MY1998–2004 

on E20 and is operating roughly 300 

motor vehicles in-use on E20.120 While 

the results of this study to date suggest 

vehicles may operate acceptably on 

E20—and by interpolation E15—mileage 

accumulation is limited, so its ability to 

assess emission impacts over the FUL of 

the vehicles is also limited. In addition, 

since there are no control vehicles 

operating on E0, comparisons of 

emission effects are restricted. The 

study is ongoing until November 2010. 

In addition, DOE is in the process of 

conducting catalyst durability testing on 

six motor vehicles certified to NLEV 

standards and two motor vehicles 

certified to Tier 1 standards which will 

also be completed by November. Since 

the motor vehicles are older, they are 

starting the test program with a 

significant number of miles already 

driven by consumers on E0. However, at 

least 50,000 miles are being 

accumulated on each motor vehicle, and 

identical motor vehicles of the same 

model are being tested on E0, E10, E15, 

and E20. 

I. Emissions Impact Summary and 

Conclusions 

As discussed above, the potential 

exists for E15 use to cause long-term or 

permanent increases in exhaust 

emissions from MY2000 and older lightduty motor vehicles, heavy-duty 

gasoline engines and vehicles, 

motorcycles, and nonroad products, as a 

result of accelerated deterioration of 

engine and emission control 

components. This deterioration can be a 

result of changes in engine operation, 

such as higher exhaust temperature, or 

damage to materials not compatible 

with E15. Similarly, evaporative 

emission increases may occur 

immediately due to increased 

permeation or over time due to repeated 

or on-going exposure of the fuel and 

evaporative emission control systems to 

E15. In some cases the potential 

emission impacts could be quite 

dramatic (i.e., more than an order of 

magnitude) given the large differences 

between controlled and uncontrolled 

emissions on today’s light-duty motor 

vehicles, heavy-duty gasoline engines 

and vehicles, motorcycles, and nonroad 

products. Consequently, the in-use 

emissions increases and air quality 

impact could be substantial for any of 

these products that experience very 

significant deterioration. 

While it is not possible to quantify the 

frequency at which all of these products 

might experience problems with the use 

of E15, the degree of emissions increases 

associated with them, or the 

effectiveness of the proposed misfueling 

mitigation measures, we believe that the 

emission related problems would occur 

with enough frequency that the 

resulting emission benefits from the 

avoided misfueling would clearly 

outweigh the relatively low cost 

imposed by the proposed regulations. 

The emission benefits are the emissions 

increases from longer term use of E15 

that would not occur because of this 

misfueling mitigation program. This is 

particularly the case considering the 

significant consumer savings for 

avoided repairs and replacement that, as 

discussed in section III.F., would by 

themselves be expected to exceed the 

costs of the misfueling mitigation 

measures. 

For these reasons, the Agency 

proposes to prohibit the use of gasoline 

blended with greater than 10 vol% 

ethanol in (1) MY2000 and older motor 

vehicles, (2) heavy-duty gasoline 

engines and vehicles, (3) motorcycles, 

and (4) nonroad products. Today’s 

prohibitions and other requirements are 

intended to reduce emissions due to the 

use of E15 in the group of vehicles or 

engines reasonably expected to have 

these adverse effects. The term 

misfueling describes use of E15 in the 

prohibited engines, vehicles and 

equipment listed above. We are inviting 

comment on whether this prohibition 

should also apply for MY2001–MY2006 

motor vehicles. 

VII. What is our legal authority for 

proposing these misfueling mitigation 

measures? 

As explained above, we are proposing 

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. Under 

section 211(c)(1), EPA may adopt a fuel 

control if at least one of the two criteria 

above are met. We are proposing the 

misfueling mitigation measures based 

on both of these criteria. Under section 

211(c)(1)(B), we believe that E15 would 

significantly impair the emission 

control systems used in MY2000 and 

older light-duty motor vehicles, heavyduty gasoline engines and vehicles, 

highway and off-highway motorcycles, 

and all nonroad products. This leads us 

to conclude, under section 211(c)(1)(A), 

that the likely result would be increased 

HC, CO and NOx emissions when these 

particular engines, vehicles and 

nonroad products use E15. The 

following sections summarize our 

analysis of each criterion. 

A. Health and Welfare Concerns of Air 

Pollution Caused by E15 

We believe that the emissions 

products of E15 contribute to air 

pollution that can reasonably be 

anticipated to endanger public health 

and welfare. As described in Section 

VI.B., the unique physical and chemical 


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properties of ethanol may negatively 

impact certain engines, vehicles and 

equipment when those products use 

gasoline-ethanol blends containing 

increased amounts of ethanol, 

particularly if those engines, vehicles 

and equipment are not designed for 

accommodating that increase. The result 

is likely an increase in HC, CO and NOx 

emissions from these engines, vehicles 

and equipment (see Sections VI.C.–F.). 

This potential increase in emissions of 

these particular pollutants contributes 

to air pollution levels that, for example, 

can violate the NAAQS for ozone or PM. 

Section 211(c)(2)(A) requires that, 

prior to adopting fuel controls based on 

a finding that the fuel’s emission 

products contribute to air pollution that 

can reasonably be anticipated to 

endanger public health or welfare, EPA 

consider ‘‘all relevant medical and 

scientific evidence available, including 

consideration of other technologically or 

economically feasible means of 

achieving emission standards under 

[section 202 of the Act].’’ EPA’s analysis 

of the evidence relating to the emissions 

impact of emissions from E15 is 

described in Section VI above, while the 

evidence concerning the NAAQS is 

discussed in the NAAQS rulemakings 

themselves. 

EPA has also satisfied the statutory 

requirement to consider ‘‘other 

technologically or economically feasible 

means of achieving emission standards 

under section [202 of the Act].’’ This 

provision has been interpreted as 

requiring consideration of establishing 

emissions standards under section 202 

prior to establishing controls or 

prohibitions on fuels or fuel additives 

under section 211(c)(1)(A). See Ethyl 

Corp. v. EPA, 541 F.2d 1, 31–32 (DC Cir. 

1976). In Ethyl, the Court stated that 

section 211(c)(2)(A) calls for good faith 

consideration of the evidence and 

options, not for mandatory deference to 

regulation under section 202 compared 

to fuel controls. Id. at 32, n.66. For 

MY2000 and older motor vehicles, 

proposing emissions standards under 

section 202 is not an option since 

emissions standards promulgated under 

section 202 only apply to new motor 

vehicles. This is also true for the other 

categories (heavy-duty gasoline engines 

and vehicles, highway and off-highway 

motorcycles, and all nonroad products) 

to the extent these products are already 

in the marketplace. Thus, for all of these 

products, the proposed measures under 

section 211(c)(1) are appropriate for 

addressing misfueling. Additionally, 

EPA has previously promulgated the 

most technologically and economically 

feasible HC, CO and NOX emissions 

standards for all of these engines, 

vehicles and equipment, so new 

emissions standards under section 202 

for any of these products would not 

achieve any additional protection 

beyond those obtained through the 

misfueling mitigation measures being 

proposed today under section 211(c)(1). 

It is therefore appropriate for EPA to 

exercise its authority under section 

211(c)(1)(A) and propose these 

misfueling mitigation measures that will 

likely reduce or eliminate the emissions 

products from E15 that contribute to the 

air pollution that endangers our public 

health or welfare. 

B. Impact of E15 Emission Products on 

Emission Control Systems 

EPA believes that E15 can 

significantly impair the emissions 

control technology in MY2000 and older 

light-duty motor vehicles, heavy-duty 

gasoline engines and vehicles, highway 

and off-highway motorcycles, and all 

nonroad products. As discussed in 

Section VI above, ethanol enleans the 

A/F ratio; this may lead to emissions 

products that can cause increased 

exhaust gas temperatures and, over 

time, incremental deterioration of 

emission control hardware and 

performance. Enleanment can also lead 

to catalyst failure. Additionally, ethanol 

can cause material compatibility issues 

which may lead to other component 

failure. Ultimately, all of these impacts 

would likely significantly impair the 

emissions control systems or devices 

and lead to exhaust and/or evaporative 

emission increases. 

Section 211(c)(2)(B) requires that, 

prior to adopting a fuel control based on 

a significant impairment to emission 

control systems, EPA consider available 

scientific and economic data, including 

a cost benefit analysis comparing 

emission control devices or systems 

which are or will be in general use that 

require the proposed fuel control with 

such devices or systems which are or 

will be in general use that do not require 

the proposed fuel control. This 

provision is not applicable to the 

proposed misfueling mitigation 

measures since a particular emission 

control device or system is not required 

for use with the measures being 

proposed today. Instead, the misfueling 

mitigation measures are being proposed 

to protect existing controls on existing 

engines, vehicles and equipment 

already in the marketplace from the 

detrimental impacts they may incur 

when using E15. 

Thus, EPA may exercise its authority 

under section 211(c)(1)(B) and propose 

these misfueling mitigation measures 

since use of E15 would significantly 

impair the emission control devices or 

systems in MY2000 and older light-duty 

motor vehicles, heavy-duty gasoline 

engines and vehicles, highway and offhighway motorcycles, and all nonroad 

products. 

C. Effect of Misfueling Mitigation 

Measures on the Use of Other Fuels or 

Fuel Additives 

Section 211(c)(2)(C) requires that, 

prior to prohibiting a fuel or fuel 

additive, EPA establish that such 

prohibition will not cause the use of 

another fuel or fuel additive ‘‘which will 

produce emissions which endanger the 

public health or welfare to the same or 

greater degree’’ as the prohibited fuel or 

fuel additive. Even assuming that this 

proposal amounts to a prohibition, as 

compared to a control, EPA does not 

believe that the proposed misfueling 

mitigation measures will result in the 

use of any other fuel or fuel additive 

that will produce emissions that will 

endanger public health or welfare to the 

same or greater degree as the emissions 

produced by E15. In fact, the measures 

being proposed today should lessen the 

overall public health or welfare impacts 

from the emissions from these products. 

To the extent that EPA is proposing a 

prohibition of using E15 in certain 

engines, vehicles and equipment, such a 

prohibition should serve to prevent or 

reduce misfueling in those products and 

avoid the increased detrimental effects 

this provision seeks to protect against. 

These products would instead use other 

gasoline or gasoline-ethanol blends 

currently available in the marketplace 

and be able to meet their current 

emissions standards. Thus, EPA may 

propose these misfueling mitigation 

measures under 211(c)(1) without 

causing other public health or welfare 

effects from the use of another fuel or 

fuel additive. 

VIII. Public Participation 

We request comment on all aspects of 

this proposal. This section describes 

how you can participate in this process. 

A. How do I submit comments? 

We are opening a formal comment 

period by publishing this document. We 

will accept comments during the period 

indicated under DATES in the first part 

of this proposal. If you have an interest 

in the proposed program described in 

this document, we encourage you to 

comment on any aspect of this 

rulemaking. We also request comment 

on specific topics identified throughout 

this proposal. 

Your comments will be most useful if 

you include appropriate and detailed 

supporting rationale, data, and analysis. 

Commenters are especially encouraged 


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to provide specific suggestions for any 

changes to any aspect of the regulations 

that they believe need to be modified or 

improved. You should send all 

comments, except those containing 

proprietary information, to our Air 

Docket (see ADDRESSES in the first part 

of this proposal) before the end of the 

comment period. 

You may submit comments 

electronically, by mail, or through hand 

delivery/courier. To ensure proper 

receipt by EPA, identify the appropriate 

docket identification number in the 

subject line on the first page of your 

comment. Please ensure that your 

comments are submitted within the 

specified comment period. Comments 

received after the close of the comment 

period will be marked ‘‘late.’’ EPA is not 

required to consider these late 

comments. If you wish to submit 

Confidential Business Information (CBI) 

or information that is otherwise 

protected by statute, please follow the 

instructions in Section XI.B. 

B. How should I submit CBI to the 

agency? 

Do not submit information that you 

consider to be CBI electronically 

through the electronic public docket, 

http://www.regulations.gov, or by 

e-mail. Send or deliver information 

identified as CBI only to the following 

address: U.S. Environmental Protection 

Agency, Assessment and Standards 

Division, 2000 Traverwood Drive, Ann 

Arbor, MI 48105, Attention Docket ID 

EPA–HQ–OAR–2010–0448. You may 

claim information that you submit to 

EPA as CBI by marking any part or all 

of that information as CBI (if you submit 

CBI on disk or CD ROM, mark the 

outside of the disk or CD ROM as CBI 

and then identify electronically within 

the disk or CD ROM the specific 

information that is CBI). Information so 

marked will not be disclosed except in 

accordance with procedures set forth in 

40 CFR part 2. 

In addition to one complete version of 

the comments that include any 

information claimed as CBI, a copy of 

the comments that does not contain the 

information claimed as CBI must be 

submitted for inclusion in the public 

docket. If you submit the copy that does 

not contain CBI on disk or CD ROM, 

mark the outside of the disk or CD ROM 

clearly that it does not contain CBI. 

Information not marked as CBI will be 

included in the public docket without 

prior notice. If you have any questions 

about CBI or the procedures for claiming 

CBI, please consult the person identified 

in the FOR FURTHER INFORMATION

CONTACT section. 

C. Will there be a public hearing? 

We will hold a public hearing in 

Chicago, IL on November 16, 2010 at the 

location shown below. The hearing will 

start at 10 a.m. local time and continue 

until everyone has had a chance to 

speak. 

Millennium Knickerbocker Hotel 

Chicago, 163 East Walton Place, @ North 

Michigan Avenue, Chicago, IL 60600, 

Phone# 312–751–8100. 

If you would like to present testimony 

at the public hearing, we ask that you 

notify the contact person listed under 

FOR FURTHER INFORMATION CONTACT in 

the first part of this proposal at least 8 

days before the hearing. You should 

estimate the time you will need for your 

presentation and identify any needed 

audio/visual equipment. We suggest 

that you bring copies of your statement 

or other material for the EPA panel and 

the audience. It would also be helpful 

if you send us a copy of your statement 

or other materials before the hearing. 

We will make a tentative schedule for 

the order of testimony based on the 

notifications we receive. This schedule 

will be available on the morning of the 

hearing. In addition, we will reserve a 

block of time for anyone else in the 

audience who wants to give testimony. 

We will conduct the hearing 

informally, and technical rules of 

evidence will not apply. We will 

arrange for a written transcript of the 

hearing and keep the official record of 

the hearing open for 30 days to allow 

you to submit supplementary 

information. You may make 

arrangements for copies of the transcript 

directly with the court reporter. 

D. Comment Period 

The comment period for this rule will 

end on January 3, 2011. 

E. What should I consider as I prepare 

my comments for EPA? 

You may find the following 

suggestions helpful for preparing your 

comments: 

• Explain your views as clearly as 

possible. 

• Describe any assumptions that you 

used. 

• Provide any technical information 

and/or data you used that support your 

views. 

• If you estimate potential burden or 

costs, explain how you arrived at your 

estimate. 

• Provide specific examples to 

illustrate your concerns. 

• Offer alternatives. 

• Make sure to submit your 

comments by the comment period 

deadline identified. 

• To ensure proper receipt by EPA, 

identify the appropriate docket 

identification number in the subject line 

on the first page of your response. It 

would also be helpful if you provided 

the name, date, and Federal Register 

citation related to your comments. 

XI. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review 

Under Executive Order (EO) 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 EO 12866 and any 

changes made in response to OMB 

recommendations have been 

documented in the docket for this 

action. 

B. Paperwork Reduction Act 

The information collection 

requirements in this proposed rule have 

been submitted for approval to the 

Office of Management and Budget 

(OMB) under the Paperwork Reduction 

Act, 44 U.S.C. 3501 et seq. The 

Information Collection Request (ICR) 

document prepared by EPA has been 

assigned EPA ICR number 2408.01. 

This proposed rule imposes some new 

information collection burdens 

regarding product transfer 

documentation. Product transfer 

documents, or PTDs, are commonly 

used in the fuels distribution system 

and are their use is a customary 

business practice. This proposed rule is 

expected to add a one-time burden to 

program and implement new product 

codes and statements, as well as a 

continuing, small burden associated 

with affixing (using) products codes and 

statements. This proposed regulation 

contains provisions requiring standard 

product labels, which will not impose 

any information collection burden on 

regulated parties. We have also 

estimated the burden associated with 

parties who elect to use proposed 

‘‘Survey Option 1.’’ 

For the proposed information 

collection, we estimate that there will be 

9,608 annual respondents; 2,009,226 

annual responses; and 71,809 annual 

hours. We estimate that annual cost of 

this information collection to 

respondents will be $5,098,427. The 

average burden is 0.04 hours per 

response. Burden is defined at 5 CFR 

1320.3(b). 

We estimate that the cost of adding 

the proposed survey of compliance 


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(which requires sampling and testing) 

with the proposed labeling requirements 

to the existing RFG survey at $50,000 

per year. The cost to implement all of 

the proposed survey provisions for 

conventional gasoline is estimated at $2 

million per year. Thus, the total cost of 

the proposed survey requirements is 

estimated to be $2.05 million per year 

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 in 40 

CFR are listed in 40 CFR part 9. 

To comment on the Agency’s need for 

this information, the accuracy of the 

provided burden estimates, and any 

suggested methods for minimizing 

respondent burden, EPA has established 

a public docket for this rule, which 

includes this ICR, under Docket ID 

number EPA–HQ–OAR–2010–0448. 

Submit any comments related to the ICR 

to EPA and OMB. See ADDRESSES

section at the beginning of this notice 

for where to submit comments to EPA. 

Send comments to OMB at the Office of 

Information and Regulatory Affairs, 

Office of Management and Budget, 725 

17th Street, NW., Washington, DC 

20503, Attention: Desk Office for EPA. 

Since OMB is required to make a 

decision concerning the ICR between 30 

and 60 days after November 4, 2010 a 

comment to OMB is best assured of 

having its full effect if OMB receives it 

by December 6, 2010. The final rule will 

respond to any OMB or public 

comments on the information collection 

requirements contained in this proposal. 

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 proposed 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 proposed 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. 

We continue to be interested in the 

potential impacts of the proposed rule 

on small entities and welcome 

comments on issues related to such 

impacts. 

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 $6 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) 

EPA believes that this action does not 

have federalism implications. This rule 

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. 

EPA consulted with State and local 

officials early in the process of 

developing the proposed action to 

permit them to have meaningful and 

timely input into its development. EPA 

met with members of the National 

Association of Clean Air Agencies 

(NACAA) to discuss the nature of 

today’s proposed rule. Additionally, we 

provided State and local governments 

an opportunity to provide comment on 

the implementation of misfueling 

mitigation measures for a partial E15 

waiver in both the RFS2 NPRM (see 74 

FR 25016) and the E15 waiver request 

notice (see 74 FR 18228). We received 

comments from only one State on this 

issue in the RFS2 NPRM, and it 

supported efforts for properly labeling 

fuel pumps containing gasoline-ethanol 

blends. 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 

solicits comment on this proposed 

action from State and local officials. 

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 and importers, 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 

proposed rule would require a label to 

be placed on E15 fuel dispensers, for 

those stations that elect to sell E15. The 

cost of the labels would average $6.45 

per year per gasoline station. This is a 

tiny fraction of the station’s annual 

profit, and is not expected to 

significantly affect energy distribution. 


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Federal Register / Vol. 75, No. 213 / Thursday, November 4, 2010 / Proposed Rules 68085 

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 proposed rulemaking does not 

involve technical standards. Therefore, 

EPA is not considering 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 

proposed 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. 

List of Subjects in 40 CFR Part 80 

Environmental protection, Air 

pollution control, Fuel additives, Diesel, 

Gasoline, Imports, Incorporation by 

reference, Labeling, Motor vehicle 

pollution, Penalties, Reporting and 

recordkeeping requirements. 

Dated: October 13, 2010. 

Lisa P. Jackson, 

Administrator. 

For the reasons set forth in the 

preamble, 40 CFR part 80 is proposed to 

be amended as follows: 

PART 80–REGULATION OF FUEL AND 

FUEL ADDITIVES 

1. The authority citation for part 80 

continues to read as follows: 

Authority: 42 U.S.C. 7414, 7542, 7545, and 

7601(a). 

2. Section 80.45 is amended by 

adding a new paragraph (c)(1)(iii)(C) to 

read as follows: 

§ 80.45 Complex emissions model. 

* * * * * 

(c) * * * 

(1) * * * 

(iii) * * * 

(C) During Phase II, fuels with an 

ethanol concentration greater than 10 

volume percent and not more than 15 

volume 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. 

* * * * * 

3. 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 

volume percent ethanol and not more 

than 15 volume percent ethanol? 

80.1502 What are the survey requirements 

for gasoline-ethanol blends? 

80.1503 What are the product transfer 

document requirements for gasolineethanol blends, base 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? 

Subpart N—Additional Provisions for 

Gasoline-Ethanol Blends 

§ 80.1500 Definitions. 

All of the definitions in § 80.2 apply 

to this subpart. As used in this subpart: 

(a) Blendstock for oxygenate blending 

means gasoline blendstock which could 

become gasoline solely upon the 

addition of an oxygenate. 

(b) Conventional blendstock for 

oxygenate blending means gasoline 

blendstock which could become 

conventional gasoline solely upon the 

addition of an oxygenate. 

(c) Carrier has the same meaning as 

defined in § 80.2(t). 

(d) Conventional gasoline has the 

same meaning as defined in § 80.2(ff) 

(e) E0 means a gasoline that contains 

no ethanol. 

(f) E10 means a gasoline-ethanol 

blend that contains between 9 and 10 

volume percent ethanol. 

(g) E15 means a gasoline-ethanol 

blend that contains greater than 10 

volume percent ethanol and not more 

than 15 volume percent ethanol. 

(h) EX means a gasoline-ethanol blend 

that contains less than 9 volume percent 

ethanol where X equals the maximum 

volume percent ethanol in the gasolineethanol blend. 

(i) EXX means a gasoline-ethanol 

blend above E15 where XX equals the 

maximum volume percent ethanol in 

the gasoline-ethanol blend. 

(j) Ethanol blender has the same 

meaning as defined in § 80.2(v). 

(k) 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. 

(l) Ethanol producer means any 

person who owns, leases, operates, 

controls, or supervises a facility that 

produces ethanol for use in motor 

vehicles and nonroad engines. 

(m) Flex-fuel vehicle has the same 

meaning as flexible-fuel vehicle as 

defined in § 86.1803–01. 

(n) Fuel dispenser means the 

apparatus used to dispense fuel into the 

fuel tank that is used to power a motor 

vehicle or a nonroad engine, and that is 

attached to a motor vehicle or nonroad 

engine. 

(o) Gasoline has the same meaning as 

defined in § 80.2(c). 

(p) Gasoline importer means an 

importer as defined in § 80.2(r) that 

imports gasoline or gasoline blending 

stocks that could become gasoline solely 

upon the addition of oxygenates. 

(q) Gasoline refiner means a refiner as 

defined as in § 80.2(i) that produces 

gasoline or gasoline blending stocks that 

could become gasoline solely upon the 

addition of oxygenates. 

(r) Oxygenate blender has the same 

meaning as defined in § 80.2(mm). 


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68086 Federal Register / Vol. 75, No. 213 / Thursday, November 4, 2010 / Proposed Rules 

(s) Oxygenate blending facility has the 

same meaning as defined in § 80.2(ll). 

(t) Regulatory control periods has the 

same meaning as defined in 

§ 80.27(a)(1). Regulatory control periods 

is defined in § 80.27(a)(1) to mean June 

1 to September 15 for retail outlets and 

wholesale purchaser-consumers and 

May 1 to September 15 for all other 

facilities. 

(u) Retail outlet has the same meaning 

as defined § 80.2(j). 

(v) Retailer has the same meaning as 

defined in § 80.2(k). 

(w) Survey series means the four 

quarterly surveys that comprise a survey 

program. 

(x) 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. 

(y) Wholesale purchaser-consumer 

has the same meaning as defined in 

§ 80.2(o). 

§ 80.1501 What are the labeling 

requirements that apply to retailers and 

wholesale purchaser-consumers of 

gasoline-ethanol blends that contain 

greater than 10 volume percent ethanol and 

not more than 15 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 volume percent 

ethanol and not more than 15 volume 

percent ethanol shall affix the following 

conspicuous and legible label to the fuel 

dispenser: 

CAUTION! 

This fuel contains 15% ethanol maximum 

Use only in: 

2007 and newer gasoline cars 

2007 and newer light-duty trucks 

Flex-fuel vehicles 

This fuel might damage other vehicles and 

engines. Federal law prohibits its use in 

all other vehicles and engines 

(b) Labels 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 in a location that is 

clearly visible to the consumer. 

(3) Text. The text shall be centered 

and the appropriate font and 

background shall be used as described 

in paragraphs (b)(3)(i) through (iii) and 

(b)(4)(i) through (iv). 

(i) The word ‘‘CAUTION!’’ shall be in 

24-point, dark red, bold, Arial font. 

(ii) The ethanol content ‘‘This fuel 

contains 15% ethanol maximum’’ shall 

be in 14 point, white, Arial font. 

(iii) All other text on the label shall 

appear in 14-point, black, Arial font, 

except that the word ‘‘prohibits’’ shall 

appear in 14-point, black, bold, italic, 

Arial font. 

(4) Color. (i) The background for the 

area which includes the word 

‘‘CAUTION!’’, and the ethanol content 

‘‘This fuel contains 15% ethanol 

maximum’’ shall be 1-inch wide and 

neon-orange in color, except that a 

rectangular white background large 

enough to encompass the word 

‘‘CAUTION!’’ shall be superimposed on 

this neon-orange background. 

(ii) The background for all other text 

on the label shall be white. 

(iii) The label shall have a 1⁄16-inch 

neon-orange three-sided border to the 

left, right, and bottom of the area which 

includes the text described in paragraph 

(b)(3)(iii) of this section. This border 

shall be attached to the neon-orange 

background area described in paragraph 

(b)(4)(i) of this section. 

(iv) The label shall have a 1⁄16-inch 

white border, located to the outside of 

the neon-orange border described in 

paragraph (b)(4)(iii) of this section and 

neon-orange background area described 

in paragraph (b)(4)(i) of this section. 

§ 80.1502 What are the survey 

requirements related to gasoline-ethanol 

blends? 

No responsible party identified in 

paragraphs (a) and (b) of this section 

shall introduce E15 into commerce until 

the survey program requirements in 

either paragraph (a) or paragraph (b) in 

this section are satisfied. 

(a) Survey option 1. In order to satisfy 

the survey program requirements, any 

gasoline refiner, gasoline importer, 

ethanol blender, ethanol producer, or 

ethanol importer 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 supplied with their 

gasoline, blendstock for oxygenate 

blending, ethanol, or gasoline-ethanol 

blend if these may be used to 

manufacture E15 or as E15. Such 

approval shall be based upon the survey 

program plan meeting the following 

criteria: 

(1) The survey program shall consist 

of at least four quarterly surveys which 

shall occur during the following time 

periods: 

(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 the general requirements of 

paragraph (b)(4) of this section. 

(b) Survey option 2. 

(1) To comply with the requirements 

under this paragraph (b), ethanol 

blenders, ethanol producers, ethanol 

importers, gasoline refiners, and 

gasoline importers must participate in 

the funding of 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) General requirements. 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. 


srobinson on DSKHWCL6B1PROD with PROPOSALS2
Federal Register / Vol. 75, No. 213 / Thursday, November 4, 2010 / Proposed Rules 68087 

(iii) Test, or arrange to be tested, the 

samples required under paragraph 

(b)(3)(ii) of this section for oxygenate 

content as follows: 

(A) Samples collected at retail outlets 

shall be shipped the same day the 

samples are collected via overnight 

service to the laboratory and analyzed 

for oxygenate content within 24 hours 

after receipt of the sample in the 

laboratory. 

(B) Any laboratory to be used by the 

independent survey association for 

oxygenate testing shall be approved by 

EPA and its test method for determining 

oxygenate content shall be a method 

permitted under § 80.46(g). 

(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 volume percent ethanol 

dispensed from a fuel dispenser labeled 

as ‘‘E15’’ or a sample containing greater 

than 10 volume percent ethanol and not 

more than 15 volume percent ethanol 

dispensed from a fuel dispenser not 

labeled as ‘‘E15’’), 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. 

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 of the sample. 

(B) In the case of a sample collected 

at other retail outlets, to the retailer and 

EPA. 

(C) The independent survey 

association shall provide notice to the 

identified contact person or persons for 

each party in writing (which includes email or facsimile) and, if requested by 

the identified contact person, by 

telephone. 

(v) Confirm that each fuel dispenser 

sampled is labeled as required in 

§ 80.1501 by confirming that: 

(A) The label meets the appearance 

and content requirements of § 80.1501. 

(B) The label is located on the fuel 

dispenser according to the requirements 

in § 80.1501. 

(vi) In the case of a fuel dispenser that 

is improperly labeled, 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 § 80.1500. 

(ii) Sampling Areas. The survey 

program plan shall include sampling in 

all sampling strata, as defined in 

§ 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 should 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 

volume percent ethanol dispensed from 

a fuel dispenser labeled as ‘‘E15’’ or a 

sample with greater than 10 volume 

percent ethanol and not more than 15 

volume percent ethanol dispensed from 

a fuel dispenser not labeled as ‘‘E15’’), 

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: 

n Z Z arc arc St = + ( ) n ⎡

⎣ ⎤ { ⎦ ( ) − ( ) ⎡

⎣ ⎤⎦

⎛

⎝

⎜ ⎞

⎠

⎟

⎫

⎬

⎭

∗ α β φ φ

2

1

2

4* sin sin 0 ∗∗∗ F F Su ab n

Where: 

n = minimum number of samples in a yearlong survey series. However, in no case 

shall n be smaller than 7,500. 

Zα = upper percentile point from the normal 

distribution to achieve a one-tailed 95% 

confidence level (5% a-level). Thus, Zα

equals 1.645. 

Zβ = upper percentile point to achieve 95% 

power. Thus, Zβ equals 1.645. 

j1 = the maximum proportion of noncompliant 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, j1 will be 5%. 

j0 = the underlying proportion of noncompliant stations in a sample. For the 

first survey plan, j0 will be 2.3%. For 

subsequent survey plans j0, 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 volume percent ethanol 

dispensed from a fuel dispenser labeled 


srobinson on DSKHWCL6B1PROD with PROPOSALS2EP04NO10.006</GPH>
68088 Federal Register / Vol. 75, No. 213 / Thursday, November 4, 2010 / Proposed Rules 

as ‘‘E15’’ or a sample with greater than 10 

volume percent ethanol and not more 

than 15 volume percent ethanol 

dispensed from a fuel dispenser not 

labeled as ‘‘E15’’), 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 

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 

(E) The test method used to determine 

oxygenate content under § 80.46(g). 

(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 

ethanol content, 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. 

(6) Procedures for obtaining approval 

of survey plan. 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 this paragraph (b), 

and for revocation of such approval, is 

as follows: 

(i) For the first year in which a survey 

will be conducted, a survey program 

plan that complies with the 

requirements of this paragraph (b) must 

be submitted to EPA no later than 60 

days prior to the date on which the 

survey program is to begin. 

(ii) For subsequent years in which a 

survey will be conducted, a survey 

program plan that complies with the 

requirements of this paragraph (b) must 

be submitted to EPA no later than 

November 1 of the year preceding the 

calendar year in which the survey will 

be conducted. 

(iii) 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. 

(iv) 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. 

(v) EPA will send a letter to the party 

submitting the survey program plan that 

indicates whether EPA approves or 

disapproves the survey plan. 

(vi) EPA may revoke its approval of a 

survey plan if EPA determines that the 

requirements in this section have not 

been complied with, or that the 

provisions of the survey plan approved 

by EPA pursuant to paragraph (b)(6)(v) 

of this section have not been diligently 

implemented. 

(vii) 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. 

(viii) Any notifications or reports 

required to be submitted to EPA under 

this paragraph (b) must be directed to 

the official designated in paragraph 

(b)(6)(iv) of this section. 

(7) Independent surveyor contract. 

(i) 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. 

(ii) 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. 

(iii) 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. 

(iv) 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. 

(8) Failure to fulfill requirements. A 

failure to fulfill or cause to be fulfilled 

any of the requirements of this 

paragraph (b) is a prohibited act under 

Clean Air Act section 211(c) and 

§ 80.1504. 

§ 80.1503 What are the product transfer 

document requirements for gasolineethanol blends, base gasolines, and 

conventional blendstocks for oxygenate 

blending subject to this subpart? 

(a) Product transfer documentation 

for conventional blendstock for 

oxygenate blending, or base 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 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 base 

gasoline upstream of an oxygenate 

blending facility, as defined in § 80.2(ll), 


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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 § 80.27(a)(1): 

(A) The maximum Reid Vapor 

Pressure (RVP), as determined by a 

method permitted under § 80.46(c), 

stated in the following format: ‘‘The RVP 

of this base gasoline does not exceed 

[fill in appropriate value]’’; and 

(B) For base gasoline designed for the 

special provisions for gasoline-ethanol 

blends in § 80.27(d)(2), information 

about the suitable ethanol content stated 

in the following format: ‘‘Designed for 

the special RVP provisions for ethanol 

blends that contain between 9 and 10 

volume % ethanol.’’ 

(C) For base 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 volume percent ethanol.’’ 

(2) The requirements in paragraph 

(a)(1) do not apply to reformulated 

gasoline blendstock for oxygenate 

blending, as defined in § 80.2(kk), 

which are subject to the product transfer 

document requirements of § 80.69 and 

§ 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 when 

any person transfers custody or title to 

any gasoline-ethanol blend downstream 

of an oxygenate blending facility, as 

defined in § 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 gasolineethanol 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 defined in 

§ 80.27(a)(1). 

(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 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 

and 10 volume percent ethanol (E10), 

the following statement: ‘‘E10: Contains 

between 9 and 10 volume percent 

ethanol. The RVP does not exceed [fill 

in appropriate value] psi.’’ 

(D) For gasoline containing greater 

than 10 volume percent and not more 

than 15 volume percent ethanol (E15), 

the following statement: ‘‘E15: Contains 

up to 15 volume percent 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. 

§ 80.1504 What acts are prohibited under 

this subpart? 

No person shall— 

(a)(1) Sell, introduce, or cause or 

allow the sale or introduction of 

gasoline containing greater than 10 

volume % 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) Notwithstanding § 80.1504(a)(1), 

no person shall be prohibited from 

selling, introducing, or causing or 

allowing the sale or introduction of 

gasoline containing greater than 10 

volume % ethanol into any flex-fuel 

vehicle. 

(b) Sell, offer for sale, dispense, or 

otherwise make available at a retail or 

wholesale purchaser-consumer facility a 

gasoline-ethanol blend that is not 

correctly labeled as to its ethanol 

content in accordance with § 80.1501; 

(c) Fail to fulfill, or cause a failure of 

the fulfillment of, any survey required 

under § 80.1502; 

(d) Fail to generate, use, transfer and 

maintain product transfer documents 

that accurately reflect the type of 

product, ethanol content, maximum 

Reid Vapor pressure (RVP), and other 

information required under § 80.1503; 

(e) Improperly blend, or cause the 

improper blending of, ethanol into 

conventional blendstock for oxygenate 

blending, base gasoline or gasoline 

already containing ethanol, in a manner 

inconsistent with the information on the 

product transfer document under 

§ 80.1503(a)(1)(vi) or § 80.1503(b)(1)(vi); 

(f) For gasoline during the regulatory 

control periods defined in § 80.27(a)(1), 

combine 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. 

(g) For gasoline during the regulatory 

control periods defined in § 80.27(a)(1), 

combine 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. 

(h) Fail to meet any other requirement 

of this subpart. 

(i) Cause another person to commit an 

act in violation of paragraphs (a) 

through (h) of this section. 

§ 80.1505 Who is liable for violations of 

this subpart? 

(a) Persons liable. Any person who 

violates § 80.1504(a) through (i) is liable 

for the violation. In addition, when the 

gasoline contained in any storage tank at 


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any facility owned, leased, operated, 

controlled or supervised by any gasoline 

refiner, gasoline importer, oxygenate 

blender, carrier, distributor, reseller, 

retailer, or wholesale purchaserconsumer is found in violation of the 

prohibitions described in § 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 

§ 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. 

§ 80.1506 What penalties apply under this 

subpart? 

(a) Any person under § 80.1505 who 

is liable for a violation under § 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 twenty-five 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 twenty-five 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. 

§ 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 purchaserconsumer would be in violation under 

§ 80.1504(a), and (c) through (i) it shall 

be deemed not in violation if it can 

demonstrate: 

(i) That the violation was not 

committed or caused by the regulated 

party or its employee or agent; 

(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 purchaserconsumer 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), 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 

§ 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. 

(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 


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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 

§ 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 § 80.1502 was in effect and was 

executed 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. 

§ 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 § 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 § 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. 2010–27446 Filed 11–3–10; 8:45 am] 

BILLING CODE 6560–50–P 


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