44406 Federal Register / Vol. 76, No. 142 / Monday, July 25, 2011 / Rules and Regulations 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 80 

[EPA–HQ–OAR–2010–0448; FRL–9428–2] 

RIN 2060–AQ17 

Regulation To Mitigate the Misfueling 

of Vehicles and Engines With Gasoline 

Containing Greater Than Ten Volume 

Percent Ethanol and Modifications to 

the Reformulated and Conventional 

Gasoline Programs 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: In two recent actions under 

the Clean Air Act (CAA), EPA granted 

partial waivers that allow gasoline 

containing greater than 10 volume 

percent (vol%) ethanol up to 15 vol% 

ethanol (E15) to be introduced into 

commerce for use in model year (MY) 

2001 and newer light-duty motor 

vehicles, subject to certain conditions. 

In today’s action, EPA is establishing 

several measures to mitigate misfueling 

of other vehicles, engines and 

equipment with E15 and the potential 

emissions consequences of misfueling. 

Specifically, the rule prohibits the use 

of gasoline containing more than 10 

vol% ethanol in vehicles, engines and 

equipment not covered by the partial 

waiver decisions. The final rule also 

requires all E15 gasoline fuel dispensers 

to have a specific label when a retail 

station or wholesale-purchaser 

consumer chooses to sell E15. In 

addition, the rule requires that product 

transfer documents (PTDs) specifying 

ethanol content and Reid Vapor 

Pressure (RVP) accompany the transfer 

of gasoline blended with ethanol 

through the fuel distribution system, 

and a survey of retail stations to ensure 

compliance with E15 labeling, ethanol 

content and other requirements. The 

rule also modifies the Reformulated 

Gasoline (RFG) program to allow fuel 

manufacturers to certify batches of E15. 

Finally, today’s action denies a petition 

for rulemaking to require retail stations 

to offer for sale gasoline containing 10 

vol% ethanol or less. 

DATES: This final rule is effective on 

August 24, 2011. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–HQ–OAR–2010–0448. All 

documents in the docket are listed on 

the http://www.regulations.gov Web 

site. Although listed in the index, some 

information is not publicly available, 

e.g., CBI or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the Internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available either electronically through 

http://www.regulations.gov or in hard 

copy at the Air and Radiation Docket 

and Information Center, EPA/DC, EPA 

West, Room 3334, 1301 Constitution 

Ave., NW., Washington, DC. The Public 

Reading Room is open from 8:30 a.m. to 

4:30 p.m., Monday through Friday, 

excluding legal holidays. The telephone 

number for the Public Reading Room is 

(202) 566–1744, and the telephone 

number for the Air Docket is (202) 566– 

1742. 

FOR FURTHER INFORMATION CONTACT: 

Robert K. Anderson, Office of 

Transportation and Air Quality, 

Compliance and Innovative Strategies 

Division, Environmental Protection 

Agency, 1310 L St., NW., Washington, 

DC; telephone number: 202–343–9718; 

fax number: 202–343–2800; e-mail 

address: anderson.robert@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Does this action apply to me? 

Entities potentially affected by this 

action include those involved with the 

production, importation, distribution, 

marketing, or retailing of diesel fuel and 

production of gasoline. Categories and 

entities affected by this action include: 

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. 

Other fuel dealers. 

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

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

Truck stops. 

This table is not intended to be 

exhaustive, but rather provides a guide 

for readers regarding entities likely to be 

affected by this action; however, other 

types of entities not listed in the table 

could also be affected. To determine 

whether your entity is affected by this 

action, you should examine the 

applicability criteria of parts 79 and 80 

of title 40 of the Code of Federal 

Regulations. If you have any question 

regarding applicability of this action to 

a particular entity, consult the person in 

the preceding FOR FURTHER INFORMATION

CONTACT section. 

Outline of This Preamble 

I. Executive Summary 

A. Proposed Rule 

B. Final Mitigation Measures 

C. Other Mitigation Measures 

D. Emissions Impacts of the Rule 

E. Related Regulatory Changes 

F. Liability Issues 

G. Petition for Rulemaking To Require the 

Continued Availability of E10 and/or E0 

II. Background 

A. Statutory Authority 

B. E15 Partial Waivers 

C. The Proposed Misfueling Mitigation 

Measures Rule 

D. Reasons for the Actions in This 

Rulemaking 

III. Misfueling Mitigation Program 

A. Misfueling Prohibition 

B. Fuel Pump Labeling Requirements 

1. Proposed Approach 

2. Consideration of Comments 

a. Choice of Word for Warning Component 

b. Description of Motor Vehicles That Can 

Use E15 

c. Statements About Prohibition and 

Damage 

d. Addressing Non-English Speakers 

e. Portable Fuel Containers 

f. Color, Size, Shape, Font, and Placement 

of the Label 

g. Separate Labels for Different Levels of 

Ethanol 

3. Final Fuel Pump Labeling Requirements 

C. PTD Requirements 

1. PTD Requirements Downstream of the 

Point of Ethanol Addition 

2. PTD Requirements Up to and Including 

the Point of Ethanol Addition 

3. General PTD Requirements 

D. Ongoing Implementation Survey 

1. Proposed Approaches and Consideration 

of Comments 

a. General Survey Comments 

b. Survey Option 1 

c. Survey Option 2 

2. Final Survey Requirements 


jlentini on DSK4TPTVN1PROD with RULES2
Federal Register / Vol. 76, No. 142 / Monday, July 25, 2011 / Rules and Regulations 44407 

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. 

2Off-highway motorcycles are considered 

nonroad vehicles but for purposes of this preamble 

on and off-highway motorcycles are referred to 

collectively as ‘‘motorcycles.’’ 

3For purposes of this preamble, nonroad engines, 

vehicles, and equipment are referred to as ‘‘nonroad 

products.’’ 

E. Program Outreach 

F. Other Misfueling Mitigation Measures 

1. Need for More Mitigation Measures 

2. Specific Suggestions for Additional 

Mitigation Measures 

a. Distinctive Hand Warmers for E15 

Dispensers 

b. Keypad/Touch Screen Information/ 

Confirmation 

c. Radio Frequency Identification (RFID) 

d. Requiring the Continued Availability of 

E10 and/or E0 

G. Modification of the Complex Model 

Regulations and VOC Adjustment Rule 

1. Proposed Approach and Consideration 

of Comments 

a. VOC Emissions from Permeation 

b. Representation of NOX and Toxic 

Emissions in the Complex Model 

c. Adequacy of the Guerreri/Caffrey Study 

to Justify Modification of the Complex 

Model Regulations 

d. Representation of Other Renewable 

Fuels and Fuel Additives in the Complex 

Model 

e. Modification of the VOC Adjustment for 

RFG in Chicago and Milwaukee 

2. Final Approach Concerning the Complex 

Model and the VOC Adjustment Rule 

H. Federalism Issues 

IV. Other Issues Addressed by Commenters 

A. Cost of Compliance 

B. The Applicability of the Statutory 1.0 

psi RVP Waiver to E15 

C. RVP and E15 Underground Storage Tank 

Transition 

D. Credit for RFG Downstream Oxygenate 

Blending 

E. Compliance, Enforcement and Warranty 

1. Proposed Approach 

2. Consideration of Comments 

a. Prohibited Acts and Liability Provisions 

b. Emissions Warranty Issues for Vehicles, 

Engines, and Equipment 

c. Other Issues Outside of CAA Jurisdiction 

3. Final Requirements 

F. Technical Basis for the Rule 

G. The Effect of the Rule on the Misfueling 

Mitigation Conditions of the Partial 

Waivers 

H. E15 Emissions and Anti-Backsliding 

V. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

B. Paperwork Reduction Act 

C. Regulatory Flexibility Act 

D. Unfunded Mandates Reform Act 

E. Executive Order 13132 (Federalism) 

F. Executive Order 13175 

G. Executive Order 13045: Protection of 

Children from Environmental Health 

Risks and Safety Risks 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

I. National Technology Transfer and 

Advancement Act 

J. Executive Order 12898: Federal Actions 

To Address Environmental Justice in 

Minority Populations and Low-Income 

Populations 

K. Congressional Review Act 

VI. Legal Authority and Judicial Review 

A. Legal Authority 

B. Judicial Review 

I. Executive Summary 

In today’s final rule, EPA is 

establishing several measures to 

mitigate the potential for E15 1 to be 

used to fuel vehicles, engines and 

equipment for which E15 has not been 

approved for introduction into 

commerce. These regulations are being 

issued in conjunction with EPA’s two 

recent decisions to grant partial waivers 

for E15 under section 211(f)(4) of the 

Clean Air Act (CAA or the Act). The 

partial waivers allow the introduction 

into commerce of E15 for use in model 

year (MY) 2001 and newer light-duty 

motor vehicles (cars, light-duty trucks 

and medium-duty passenger vehicles). 

The E15 partial waivers impose a 

number of conditions designed to help 

ensure that E15 is introduced into 

commerce for use only in MY2001 and 

newer light-duty motor vehicles and in 

flexible-fueled vehicles, and not for use 

in any other vehicles, engines or 

equipment. Some of the regulatory 

provisions in this action parallel those 

waiver conditions and are expected to 

be a more efficient way to minimize inuse emission increases that might result 

from misfueling with E15. The 

misfueling mitigation measures adopted 

today ensure that fuel providers have a 

strong incentive to properly blend and 

label E15 and consumers have a strong 

incentive to avoid misfueling. By 

effectively addressing the potential for 

misfueling, the measures should also 

have the benefit of facilitating the 

successful introduction of E15 into 

commerce. 

A. Proposed Rule 

EPA proposed four regulatory 

provisions to address concerns about 

potential misfueling: (1) A prohibition 

against the use of gasoline containing 

more than 10 vol% ethanol in vehicles, 

engines and equipment not covered by 

the partial waiver decisions, specifically 

MY2000 and older motor vehicles, 

heavy-duty gasoline engines and 

vehicles, on and off-highway 

motorcycles,2 and nonroad engines, 

vehicles, and equipment; 3 (2) labeling 

requirements for fuel pumps that 

dispense E15 to alert consumers to the 

appropriate and lawful use of the fuel; 

(3) the addition to PTDs of information 

regarding the ethanol content of, or the 

level of ethanol that may be added to, 

gasoline being sold to retail stations or 

wholesale purchaser-consumers so that 

E15 may be properly blended and 

labeled; and (4) an ongoing 

implementation survey requirement to 

ensure that E15 is in fact being properly 

blended and labeled (75 FR 68044, Nov. 

4, 2010). EPA explained that it has used 

such strategies to implement several 

fuels programs over the past 30 years, 

and that the proposed measures should 

effectively mitigate misfueling and the 

associated emissions impacts while 

enabling the use of E15 in appropriate 

motor vehicles. The E15 misfueling 

mitigation waiver conditions and a 

substantial consumer education and 

outreach effort are also directed at 

achieving this result. The Agency asked 

for comment on its proposed 

requirements and on several other 

options, including whether additional 

misfueling mitigation measures might 

be appropriate. 

EPA received over 80 comments from 

fuel providers, manufacturers of 

vehicles, engines and gasoline-powered 

equipment, boat owners, States, and 

environmental groups. While a number 

of comments raised continuing concerns 

with EPA’s decision to grant the partial 

waivers, all acknowledged the 

importance of an effective misfueling 

mitigation program and provided 

thoughtful suggestions about how the 

Agency’s proposed regulations might be 

improved or supplemented. 

B. Final Mitigation Measures 

After carefully considering the public 

comments, we are finalizing the four 

proposed misfueling mitigation 

measures with a number of changes 

designed to enhance their effectiveness 

and more carefully tailor them to their 

purpose. Specifically, we are adopting 

the prohibition on misfueling. The 

comments we received were generally 

supportive of the prohibition in view of 

EPA’s decision to deny the E15 waiver 

request for MY2000 and older light-duty 

motor vehicles, heavy-duty gasoline 

engines and vehicles, motorcycles and 

nonroad products because of the 

emissions increases that could result if 

E15 (or higher gasoline-ethanol blends) 

were used, particularly over time, in 

those vehicles, engines and products. 

With adoption of the misfueling 

prohibition, gasoline and ethanol 

producers, distributors, retailers and 

consumers have a legal obligation not to 

make, distribute, sell or use gasoline 

containing more than 10 vol% ethanol 

for or in vehicles, engines and 


jlentini on DSK4TPTVN1PROD with RULES2
44408 Federal Register / Vol. 76, No. 142 / Monday, July 25, 2011 / Rules and Regulations 

4The FTC has experience designing labels to help 

consumers make informed decisions at the point-ofsale. See, e.g., 16 CFR part 305 (EnergyGuide and 

Light Bulb labels); 16 CFR parts 306 and 309 

(Automotive Fuel labels); and 16 CFR part 423 

(Clothing Care labels). 

equipment not covered by the partial 

waiver decisions. 

To provide consumers with 

information at the pump to avoid 

misfueling, we are adopting an E15 

pump label that reflects many 

commenters’ suggestions and our 

consultation with consumer labeling 

experts at the Federal Trade 

Commission (FTC).4 Before EPA issued 

its partial waiver decisions, FTC had 

proposed labels for gasoline-ethanol 

blends containing more than 10 vol% 

ethanol to address issues within its 

jurisdiction. Commenters on our 

proposed E15 label urged us to work 

with FTC to develop a coordinated 

labeling program to avoid multiple, 

potentially conflicting labels. 

Commenters also recommended that we 

seek advice from labeling experts. In 

developing today’s final labeling 

requirements, we consulted with FTC 

consumer labeling experts and other 

staff about effective label design and 

potential coordination with FTC labels. 

EPA’s final E15 label incorporates 

public and FTC staff suggestions for 

more simply and effectively 

communicating the information 

consumers need to avoid misfueling 

with E15. The label also adopts FTC’s 

color scheme for alternative fuel labels 

and other aspects of the design of FTC’s 

proposed gasoline-ethanol blend labels, 

such as size, shape, and font, so that the 

two agencies’ labels could work together 

as a coordinated labeling scheme for 

gasoline-ethanol blends containing more 

than 10 vol% ethanol. We believe that 

the final E15 label provides consumers 

with the key information they need 

about the appropriate use of E15. 

Today’s rule also includes PTD and 

implementation survey requirements 

that have been revised and refined in 

response to public comments to better 

accomplish their purpose. We are 

requiring that PTDs provide more 

pertinent information, and we are 

providing more flexibility in how that 

information is conveyed to help ensure 

that fuel producers, distributors and 

retailers have the information they need 

to properly blend, track and label E15. 

For surveys of whether E15 is being 

properly blended and labeled, we are 

providing options that allow the 

businesses involved to match the 

geographic scope of an ongoing survey 

to their business plans and to share the 

cost of surveys among themselves as 

they see fit. We are also requiring that 

surveys collect RVP information for fuel 

samples labeled as E15 to help ensure 

implementation of the waiver condition 

that E15 be limited to 9.0 psi RVP in the 

summertime. In the aggregate, these 

measures will provide strong incentives 

for fuel providers to properly blend and 

label E15 and for consumers to avoid 

misfueling. 

Relatedly, we are adopting our 

proposed interpretation that CAA 

section 211(h)(4) provides a 1.0 psi RVP 

waiver and related compliance 

provision only to gasoline-ethanol 

blended fuels containing between nine 

and 10 vol% ethanol, in light of the 

terms and legislative history of the 

relevant statutory provisions. 

C. Other Mitigation Measures 

EPA received a number of comments 

expressing concern that the proposed 

misfueling mitigation measures would 

not adequately mitigate misfueling. 

Several of the comments suggested that 

the Agency issue one or more additional 

measures in this final rule, although 

only a few commenters provided 

specific recommendations. A later 

section of this notice reviews those 

comments and EPA’s analysis of several 

other measures. Overall, we concluded 

that the misfueling mitigation measures 

required by today’s rule should be 

effective, and that requiring additional 

measures is not necessary or appropriate 

at this time. 

As explained in the proposed rule, 

EPA drew on its experience with the 

recent transition to ultra-low sulfur 

diesel (ULSD) fuel in developing the 

E15 misfueling mitigation proposal. 

Several commenters contended that the 

transition to unleaded gasoline that 

occurred several decades ago provided 

more applicable lessons, including the 

need for additional mitigation measures. 

After considering those comments, and 

as fully discussed later in this notice, 

EPA continues to believe that the 

misfueling mitigation measures adopted 

today are reasonable, appropriate and 

sufficient to address E15 misfueling 

concerns. We expect that the E15 label 

will provide consumers with the key 

information they need to make 

appropriate fuel choices, and that the 

prohibition against misfueling will 

provide additional incentives for all 

parties to minimize misfueling. The 

PTD and survey requirements will 

provide fuel blenders, distributors and 

retailers with the information they need 

to properly blend, track and label E15 

and confirmation that E15 has been 

properly made and sold. In addition to 

these required measures, retailers and 

other fuel providers may employ any 

other strategies they believe would 

further reduce the risk of misfueling 

under their particular circumstances. 

For example, retailers that serve a 

significant population of boat or small 

equipment owners can evaluate whether 

it is appropriate under their 

circumstances to post signs that 

specifically address misfueling of those 

products. We encourage consideration 

of additional measures as may be 

helpful in a fuel provider’s specific 

circumstances. By taking additional, 

tailored steps, retailers and other fuel 

providers can provide examples of other 

misfueling mitigation measures that 

may also be effective in reducing the 

risk of misfueling. 

In deciding what mitigation measures 

to require at this time, we also 

considered what we do, and do not, 

know about the introduction of E15 into 

the marketplace. The partial waivers 

that EPA has granted to E15 do not 

require that E15 be made or sold. The 

waivers merely allow fuel or fuel 

additive manufacturers to introduce E15 

into commerce if they meet the waivers’ 

conditions. Other Federal, state and 

local requirements must also be 

addressed before E15 may be sold. 

While EPA is working to address issues 

within its jurisdiction, it is ultimately 

up to businesses to decide whether, 

when and how to market E15. In light 

of the various decisions that need to be 

made by various parties, we expect that 

the transition to E15, like the transition 

to E10, will occur over several years and 

begin in some parts of the country 

before becoming broadly available. In 

the process, business decisions will be 

made about how to market E15 (e.g., the 

price of E15 and its use for a particular 

grade of gasoline). 

As the transition to E15 occurs, we 

plan to work with industry, state, 

environmental and consumer 

stakeholders to track developments and 

evaluate the effectiveness of the 

mitigation measures required by today’s 

rule. We are already in the process of 

working with the ethanol industry and 

other stakeholders to help establish a 

public education and outreach 

campaign to assist fuel producers, 

distributors, retailers and consumers in 

understanding how E15 may be made, 

distributed, sold and used. Our recent 

experience with the transition to ULSD 

fuel shows that a stakeholder-led 

campaign can work synergistically with 

labeling requirements and provide 

another means of providing important 

information to everyone involved in fuel 

production, distribution and use. 

Establishing a similar campaign for E15 

can also provide a forum for identifying 

and resolving any issues that may 


jlentini on DSK4TPTVN1PROD with RULES2
Federal Register / Vol. 76, No. 142 / Monday, July 25, 2011 / Rules and Regulations 44409 

develop as E15 moves into the 

marketplace. 

D. Emissions Impacts of the Rule 

These misfueling mitigation 

regulations are issued under CAA 

section 211(c) to mitigate and minimize 

the emission increases that would occur 

if E15 (or a higher gasoline-ethanol 

blend) is used in vehicles, engines, and 

products for which the E15 waiver was 

denied, specifically, MY2000 and older 

motor vehicles and all heavy-duty 

gasoline engines and vehicles, 

motorcycles and nonroad products. As 

described below in Section IV.F and in 

the E15 partial waiver decisions, our 

assessment of the potential emission 

consequences of E15 use indicates that 

the emission-related components of 

MY2001 and newer light-duty motor 

vehicles are durable for use on gasolineethanol blends up to E15. This 

conclusion is based on the results of the 

Department of Energy (DOE) Catalyst 

Study and other relevant test programs, 

as well as the Agency’s engineering 

assessment of advances in motor vehicle 

technology and materials that have 

taken place in response to a series of 

important exhaust and evaporative 

emissions requirements since 2000 and 

in-use experience with E10. 

Unlike for MY2001 and newer motor 

vehicles, there is very little, if any, test 

data with respect to the effect of E15 use 

in MY2000 and older light-duty motor 

vehicles and all heavy-duty gasoline 

engines and vehicles, motorcycles, and 

nonroad products. In addition, our 

engineering assessment for these 

vehicles, engines, and products 

identifies a number of emission-related 

concerns with the use of E15 (or a 

higher gasoline-ethanol blend). For 

motor vehicles, these concerns include 

the potential for catalyst deterioration or 

catalyst failure as well as material 

compatibility issues that could lead to 

extremely elevated exhaust and 

evaporative emissions. For motorcycles 

and nonroad products, the misfueling 

concerns include the potential for 

elevated exhaust and evaporative 

emissions, as well as the potential for 

emissions impacts related to engine 

failure from overheating. It is not 

possible to precisely quantify the 

frequency at which these vehicles, 

engines, and products might experience 

problems with the use of E15. However, 

we believe that emission-related 

problems could potentially occur with 

enough frequency that the avoided 

emissions increases from reduced or 

prevented misfueling would more than 

outweigh the relatively low cost 

imposed by the required misfueling 

mitigation regulations. The potential 

emission increases from misfueling 

warrant today’s action, even if a very 

low percentage of vehicles, engines, and 

products experience problems. 

E. Related Regulatory Changes 

In addition to misfueling mitigation 

measures, today’s action also finalizes 

slight modifications to the RFG and 

anti-dumping (conventional) gasoline 

fuels programs to open the way for 

refiners and importers to produce and 

certify gasoline containing up to 15 

vol% ethanol. For gasoline to be sold in 

the U.S., it must comply with the RFG 

and anti-dumping standards. To comply 

with the RFG and anti-dumping 

standards, the emissions performance of 

gasoline is calculated using a model, 

called the Complex Model, which 

predicts the emissions of regulated 

pollutants based on the measured values 

of certain fuel properties. The equations 

in the model were limited to an oxygen 

content of no more than 4.0% by weight 

in gasoline, which is the maximum 

possible amount of oxygen in E10. EPA 

has modified the Complex Model to 

allow fuel manufacturers to certify 

batches of E15 and made a related 

change to certain volatile organic 

compound (VOC) standards, in response 

to comments. 

F. Liability Issues 

In today’s notice, EPA also addresses 

issues that many commenters raised 

concerning liability or responsibility for 

potential consequences of the use of, or 

transition to, E15. According to a 

number of commenters, fuel providers 

are unlikely to sell E15 until liability 

issues are resolved. EPA is not in a 

position to resolve all of the liability 

issues raised by commenters, but we do 

address those within our jurisdiction 

and clarify the responsibilities of 

various parties, including fuel 

producers, distributors, retailers, 

product manufacturers and consumers, 

for compliance with misfueling 

prohibitions and vehicle and engine 

warranty and other requirements under 

the Clean Air Act. In general, we believe 

the long-standing approach of EPA’s 

fuels programs and warranty regulations 

to assigning respective responsibilities 

for compliance with our regulations is 

also appropriate for E15. We believe that 

the required label and other misfueling 

mitigation measures will minimize 

consumer use of E15 in vehicles, 

engines and products not covered by the 

partial waivers and any liability issues 

that might arise from or be attributed to 

misfueling with E15. A public outreach 

campaign is expected to reinforce the 

misfueling mitigation measures. Also, to 

the extent fuel providers determine that 

it is appropriate to further reduce the 

risk or potential of consumer 

misfueling, they may take additional 

misfueling mitigation measures that 

they believe could be useful in showing 

they did not encourage or otherwise 

cause the misfueling. 

With regard to other transition issues 

within EPA’s jurisdiction, we are 

continuing to make progress in 

developing guidance for determining 

whether existing underground storage 

tank systems are compatible for storing 

E15. We also plan to work with 

stakeholders to monitor and facilitate 

efforts to address other transition issues 

involving state, local and other 

requirements. 

G. Petition for Rulemaking To Require 

the Continued Availability of E10 and/ 

or E0 

On March 23, 2011, EPA received a 

petition for rulemaking that EPA 

promulgate a rule under its Clean Air 

Act section 211(c) authority to ensure 

the continued availability of gasoline 

containing 10 vol% or less ethanol 

(‘‘≤E10’’) at retail stations for use in 

vehicles, engines, and equipment not 

covered by the E15 partial waivers. EPA 

also received a number of comments on 

the proposed rule similarly requesting 

that EPA ensure that ≤E10 be made 

available. For the reasons discussed in 

section III.F, the Agency is not requiring 

the availability of E10 (or E0) in this 

rulemaking and is also denying the 

rulemaking petition. In considering the 

future availability of ≤E10, it is 

important to remember that EPA’s 

partial waiver decisions allow, but do 

not require, E15 to be sold. It is up to 

businesses to decide whether and how 

to produce and sell E15 for MY2001 and 

newer light-duty motor vehicles. EPA 

recognizes that the availability of 

appropriate fuels is important for 

mitigating misfueling, but we cannot 

forecast now how E15 will be 

distributed and marketed over the next 

several years, and how this might 

impact the availability of ≤E10. Until 

E15 enters the market and further 

developments take place, requiring the 

continued availability of E10 (or E0) 

would be premature and potentially 

unnecessary. As the transition to E15 

occurs, we will work with fuel 

producers, distributors, and marketers 

to monitor the availability of E15, E10, 

and E0 so that any problems can be 

addressed on a timely basis. 

II. Background 

A. Statutory Authority 

CAA section 211(f)(1) makes it 

unlawful for any manufacturer of any 


jlentini on DSK4TPTVN1PROD with RULES2
44410 Federal Register / Vol. 76, No. 142 / Monday, July 25, 2011 / Rules and Regulations 

5 56 FR 5352 (February 11, 1991). 

6Since E15 has greater than 2.7 weight percent 

oxygen content, E15 needs a waiver under CAA 

section 211(f)(4). 

7 75 FR 68094 (November 4, 2010). 

8 76 FR 4662 (January 26, 2011). 

9 75 FR 68044 (November 4, 2010). 

fuel or fuel additive to first introduce 

into commerce, or to increase the 

concentration in use of, any fuel or fuel 

additive for use in motor vehicles 

manufactured after model year 1974 

unless it is substantially similar to any 

fuel or fuel additive utilized in the 

certification of any model year 1975, or 

subsequent model year, vehicle or 

engine under section 206 of the Act. 

Section 211(f)(4) of the Act provides 

that upon application by any fuel or fuel 

additive manufacturer, the 

Administrator may waive the 

prohibition of section 211(f)(1). A 

waiver may be granted if the 

Administrator determines that the 

applicant has established that the fuel or 

fuel additive, and the emission products 

of such fuel or fuel additive, will not 

cause or contribute to a failure of any 

emission control device or system (over 

the useful life of the motor vehicle, 

motor vehicle engine, nonroad engine or 

nonroad vehicle in which such device 

or system is used) to achieve 

compliance with the emission standards 

to which the vehicle or engine has been 

certified. In other words, the 

Administrator may grant a waiver for an 

otherwise prohibited fuel or fuel 

additive if the applicant can 

demonstrate that the fuel or fuel 

additive will not cause or contribute to 

engines, vehicles or equipment failing to 

meet their emissions standards over 

their useful life. 

EPA previously issued a 

‘‘substantially similar’’ interpretive rule 

for unleaded gasoline which allows 

oxygen content up to 2.7% by weight for 

certain ethers and alcohols.5 E10 

contains approximately 3.5% oxygen by 

weight, which means E10 is not 

‘‘substantially similar’’ to certification 

fuel under the current interpretation. As 

explained at 44 FR 20777 (April 6, 

1979), E10 received a waiver of the 

substantially similar prohibition by 

operation of law because EPA did not 

grant or deny a waiver request for E10 

within 180 days of receiving that 

request. At the time of the E10 waiver 

request, CAA section 211(f)(4) provided 

for waivers to be granted by operation 

of law, but that aspect of section 

211(f)(4) was later removed by the 

Energy Independence and Security Act 

of 2007. 

Section 211(c)(1) of the Act allows the 

Administrator, by regulation, to ‘‘control 

or prohibit the manufacture, 

introduction into commerce, offering for 

sale, or sale of any fuel or fuel additive 

for use in a motor vehicle, motor vehicle 

engine, or nonroad engine or nonroad 

vehicle (A) if, in the judgment of the 

Administrator, any fuel or fuel additive 

or any emission product of such fuel or 

fuel additive causes, or contributes, to 

air pollution or water pollution 

(including any degradation in the 

quality of groundwater) that may 

reasonably be anticipated to endanger 

the public health or welfare, or (B) if 

emission products of such fuel or fuel 

additive will impair to a significant 

degree the performance of any emission 

control device or system which is in 

general use, or which the Administrator 

finds has been developed to a point 

where in a reasonable time it would be 

in general use were such regulation to 

be promulgated.’’ The regulations 

adopted today are pursuant to this 

authority, as well as the recordkeeping 

and information collection authority 

under CAA sections 208 and 114. 

B. E15 Partial Waivers 

In 2009, Growth Energy and 54 

ethanol manufacturers submitted an 

application under section 211(f)(4) of 

the CAA for a waiver for gasolineethanol blends of up to 15 vol% 

ethanol.6 On April 21, 2009, EPA 

published notice of receipt of the 

application and requested public 

comment on all aspects of the 

application to assist the Administrator 

in determining whether the statutory 

basis for granting the waiver request had 

been met (74 FR 18228). 

On October 13, 2010, EPA took two 

actions on the waiver request based on 

the information available at that time 

(‘‘October Waiver Decision’’).7 First, it 

partially approved Growth Energy’s 

waiver request to allow the introduction 

of E15 into commerce for use in 

MY2007 and newer light-duty motor 

vehicles, subject to several conditions. 

The October Waiver Decision was based 

on a determination that E15 will not 

cause or contribute to a failure of 

MY2007 and newer light-duty motor 

vehicles to achieve compliance with the 

emissions standards to which they were 

certified under section 206 of the CAA 

over their useful lives. Second, the 

Agency denied the waiver request for 

MY2000 and older light-duty motor 

vehicles, heavy-duty gasoline engines 

and vehicles, highway and off-highway 

motorcycles, and other nonroad engines, 

vehicles, and equipment. The Agency 

also deferred making a decision on the 

waiver request for MY2001–2006 lightduty motor vehicles to await the results 

of additional testing being conducted by 

the Department of Energy (DOE). On 

January 21, 2011, EPA partially 

approved Growth Energy’s waiver 

request to allow the introduction of E15 

into commerce for use in MY2001–2006 

light-duty motor vehicles after receiving 

and analyzing the completed DOE test 

data (‘‘January Waiver Decision’’).8

EPA issued the partial waiver 

decisions with several conditions. The 

conditions apply to the parties upstream 

of the point of the addition of ethanol 

who are subject to the partial waiver 

(gasoline refiners/importers, ethanol 

producers/importers, and ethanol 

blenders that introduce E15 into 

commerce), and are designed to ensure 

that when E15 is introduced into 

commerce, it will only be used in the 

appropriate light-duty motor vehicles. 

Some of the conditions call for the 

ethanol blenders, fuel manufacturers 

(gasoline refiners/importers), and fuel 

additive manufacturers (ethanol 

producers/importers) to take various 

actions to control the distribution and 

use of their product so that E15 is only 

used in approved motor vehicles. The 

partial waiver decisions impose 

different conditions on the different 

parties. Gasoline refiners/importers, 

ethanol producers/importers, and 

ethanol blenders that introduce E15 into 

commerce are all responsible for making 

sure that appropriate labeling occurs on 

fuel pumps to mitigate potential 

misfueling. These parties are also 

responsible for conducting fuel pump 

labeling surveys to ensure that the 

correct gasoline-ethanol blends are 

loaded into the appropriate tanks at 

retail stations and that fuel pumps are 

properly labeled. Gasoline refiners/ 

importers, ethanol producers/importers, 

and ethanol blenders must also use 

PTDs to properly document information 

regarding the ethanol blends to help 

ensure proper blending and 

distribution. 

C. The Proposed Misfueling Mitigation 

Measures Rule 

On October 13, 2010, EPA issued a 

proposed rule to mitigate misfueling 

and maximize the likelihood that E15 is 

used only in vehicles for which its sale 

is approved. As we explained, the 

proposed rule was developed to help 

ensure that E15 is introduced into 

commerce for use only in MY2001 and 

newer light-duty motor vehicles and in 

flexible-fueled vehicles, and not for use 

in any other vehicles, engines or 

equipment.9 Some of the proposed 

regulatory provisions parallel the partial 

E15 waiver decision conditions and 

were expected to be an effective and 


jlentini on DSK4TPTVN1PROD with RULES2
Federal Register / Vol. 76, No. 142 / Monday, July 25, 2011 / Rules and Regulations 44411 

efficient way to further reduce the 

potential for in-use emissions increases 

that could result from misfueling with 

E15. 

EPA held one public hearing 

regarding the proposed rule on 

November 16, 2010, in Chicago, IL. The 

public comment period for the proposal 

ended on January 3, 2011, and 

approximately 80 public comments 

were submitted. Today’s final rule 

contains a brief summary of the major 

comments received, and our responses, 

on several topics, including the 

proposed misfueling mitigation 

measures, changes to the Complex 

Model, and other issues discussed in the 

proposal. Responses to comments not 

addressed here can be found in a 

separate document entitled ‘‘E15 

Misfueling Mitigation Measures Rule 

Response to Public Comments’’ which is 

available in the public docket for this 

rule. 

D. Reasons for the Actions in This 

Rulemaking 

In granting partial waivers for E15, 

EPA imposed various conditions on fuel 

or fuel additive manufacturers that use 

the waivers, including conditions 

designed to minimize the potential for 

misfueling. Under CAA section 

211(f)(4), EPA can place conditions on 

fuel or fuel manufacturers but cannot 

place conditions directly on other 

parties in the fuel distribution system. 

Consequently, EPA placed the partial 

waiver conditions on ethanol blenders, 

fuel manufacturers, and ethanol 

producers, the parties subject to the 

prohibition in section 211(f)(1), and 

thus the parties that benefit from the 

partial waiver of that prohibition if they 

choose to make and distribute E15, but 

not on retail stations. Since most retail 

stations are independently owned and 

operated, the ethanol blenders, fuel 

manufacturers, and ethanol producers 

that decide to introduce E15 into 

commerce might need to develop and 

enforce business arrangements with a 

potentially large number of retail 

stations in order to meet the partial 

waiver conditions. 

EPA believes that the provisions 

adopted in today’s final rulemaking (i.e. 

misfueling prohibition, fuel pump 

labeling, PTDs, and ongoing 

implementation surveys) are a direct 

and efficient way to further reduce the 

potential for misfueling and the 

emission increases that would result 

from misfueling. Under CAA section 

211(c), EPA has the authority to adopt 

appropriate controls or prohibitions on 

the distribution and sale of fuels and 

fuel additives to avoid emissions 

increases. EPA’s use of this authority in 

today’s rule will do that with respect to 

E15 that is introduced into commerce in 

accordance with the partial waivers. It 

provides EPA with appropriate tools for 

regulatory oversight of the ethanol 

blenders, fuel manufacturers, ethanol 

producers and others introducing E15 

into commerce. It adopts provisions that 

create additional, strong incentives to 

properly blend and label E15 and avoid 

misfueling. The new provisions, 

collectively and in tandem with the 

partial waiver conditions, will 

maximize the likelihood that E15 is 

used only in motor vehicles covered by 

the partial waivers and minimize the 

potential for emissions increases that 

might otherwise occur. The specific 

provisions are discussed in detail in 

Section III, and the relationship between 

these provisions and the conditions in 

the partial waivers is described in 

Section IV.G. By making misfueling 

mitigation more efficient and effective, 

these measures should also have the 

benefit of facilitating the successful 

introduction of E15 into commerce. 

III. Misfueling Mitigation Program 

As explained above, CAA section 

211(c) authorizes EPA to control or 

prohibit the distribution of a fuel or fuel 

additive when it will significantly 

impair emission control systems or 

when the emission products from that 

fuel or fuel additive will cause or 

contribute to air pollution that we 

reasonably anticipate may endanger 

public health or welfare. As described 

in detail below, EPA is exercising this 

authority to establish a prohibition on 

the use of gasoline containing more than 

10 vol% ethanol in vehicles, engines 

and equipment not covered by the 

partial waiver decisions (i.e., MY2000 

and older light-duty motor vehicles, and 

in all heavy-duty gasoline engines and 

vehicles, motorcycles and nonroad 

products) in order to prevent or 

minimize emission increases that could 

otherwise occur. We are also requiring 

gasoline retail stations and wholesale 

purchaser-consumer facilities that sell 

E15 to properly label their E15 pumps. 

To effectuate these prohibitions, and to 

more generally limit the use of E15 to 

MY2001 and newer light-duty motor 

vehicles, we are also requiring that 

relevant information be conveyed by 

PTDs, and that a survey designed to 

demonstrate compliance with labeling, 

ethanol content and related 

requirements be conducted. 

As we described in our proposed rule, 

there are four important components of 

an effective E15 misfueling mitigation 

strategy. First, a prohibition on 

misfueling establishes a legal barrier 

against production, distribution, sale or 

use of gasoline containing more than 10 

vol% ethanol in vehicles, engines and 

equipment not covered by the partial 

waiver decisions because of the 

potential consequences for emissions 

standards compliance violations by 

those vehicles, engines and equipment. 

The prohibition is broadly applicable, 

including to consumers. Second, 

effective labeling is needed to provide 

consumers with the information they 

need to avoid misfueling, including 

information about the prohibition on 

misfueling and the potential 

consequences of misfueling. To be 

effective, labeling must be done at the 

point of sale where the consumer is 

choosing which fuel to use. Third, retail 

stations, wholesale purchaserconsumers and fuel blenders need 

assurance regarding the ethanol content 

and RVP of the fuel (or blendstock) that 

they purchase so they can properly 

blend, store and label E15 and other 

fuels. The use of proper documentation 

in the form of PTDs has proven to be an 

effective means of ensuring that retail 

stations and other fuel providers know 

what fuel they are purchasing. Fourth, 

appropriate labeling and fuel sampling 

surveys are necessary to ensure 

implementation of E15 content, RVP 

and labeling requirements that are in 

turn important to mitigating misfueling 

and the emissions consequences of 

misfueling. Today’s rule adopts 

provisions covering all of these areas. 

The Agency has used this general 

strategy to implement several fuels 

programs, including the unleaded 

gasoline program, the RFG program, and 

the ULSD program. The fourth 

component of an effective misfueling 

mitigation strategy is public outreach 

and consumer education. Our 

experience has shown that consumers 

need to be engaged through a variety of 

media to ensure that accurate 

information is timely conveyed to the 

owners and operators of vehicles, 

engines and equipment. 

EPA proposed establishing a 

misfueling prohibition and E15 labeling, 

PTD and survey requirements, and 

sought comments on those and any 

additional mitigation measures that 

might be needed to minimize misfueling 

with E15. The following sections of this 

final rule describe each of the proposed 

measures, the comments we received 

about that measure, our response to 

those comments, and the final decisions 

we made in light of the comments and 

other available information. We also 

discuss several suggestions that some 

commenters made for other possible 

mitigation measures, and our 


jlentini on DSK4TPTVN1PROD with RULES2
44412 Federal Register / Vol. 76, No. 142 / Monday, July 25, 2011 / Rules and Regulations 

10Flexible fuel vehicles (FFVs) are designed to 

meet EPA’s emissions standards on any blend of 

gasoline and ethanol up to 85% ethanol. FFVs are 

not subject to either the waiver denial or the 

misfueling prohibition adopted in this rule. 

conclusion that no additional measures 

should be required at this time. 

A. Misfueling Prohibition 

We proposed to prohibit the use of 

gasoline containing more than 10 vol% 

ethanol in vehicles, engines and 

equipment not covered by the partial 

waiver decisions, specifically MY2000 

and older motor vehicles, heavy-duty 

gasoline engines and vehicles, on and 

off-highway motorcycles, and nonroad 

engines, vehicles, and equipment.10 The 

prohibition is similar in nature to the 

prohibition on producers of fuels and 

fuel additives under section 211(f)(1). 

However, the prohibition in section 

211(f)(1) only applies to these upstream 

parties. The proposed prohibition 

would also apply at the retail level as 

well as to upstream fuel providers and 

consumers, so that all parties involved 

in fueling gasoline-powered products 

would have a legal obligation to avoid 

misfueling the vehicles, engines and 

equipment not covered by the partial 

waivers. 

Most public commenters that 

addressed this provision supported it in 

view of EPA’s decision to deny a waiver 

for introduction of E15 into commerce 

for use in MY2000 and older motor 

vehicles, heavy-duty gasoline engines 

and vehicles, motorcycles, and nonroad 

products. EPA based its denial on the 

lack of test data on the effect of E15 on 

emissions from these products and the 

Agency’s engineering judgment that E15 

would likely result in significant 

exceedances of emission standards by 

these products. 

Several commenters disputed the 

need for a misfueling prohibition 

because, in their view, E15 would not 

have adverse emissions consequences 

for the vehicles, engines and equipment 

not covered by the partial waivers. In 

making this argument, the commenters 

were essentially taking issue with EPA’s 

decision to deny the E15 waiver for 

these products. However, the 

commenters did not provide, and EPA 

is not aware of, any new information or 

analysis that would support a finding 

that E15 may be used by the vehicles, 

engines and equipment not covered by 

the partial waivers without significant 

adverse consequences for their emission 

control performance. We are therefore 

finalizing the misfueling prohibition as 

proposed. 

B. Fuel Pump Labeling Requirements 

1. Proposed Approach 

We proposed that gasoline pumps 

dispensing E15 be labeled and that this 

label be applied to any pump 

dispensing gasoline containing greater 

than 10 vol% ethanol but not more than 

15 vol% ethanol. We also solicited 

comment on whether separate labels 

should be required for other gasolineethanol blends to avoid potential 

consumer confusion. 

Specifically, we proposed that the 

language on the E15 label have four 

components: (1) An ethanol content 

information component; (2) a legal 

approval component; (3) a technical 

warning component; and (4) a legal 

warning component. We explained that 

together these four components 

highlight the critical information that 

we considered necessary to inform 

consumers about the legal and 

appropriate use of E15 and the potential 

consequences of illegal and 

inappropriate uses. 

The ethanol content information 

component of the label informs 

consumers of the maximum ethanol 

content the fuel may contain. We 

proposed that this component of the 

label read: ‘‘This fuel contains 15% 

ethanol maximum.’’ 

The legal approval component of the 

label includes information that informs 

consumers of the types and model years 

of vehicles for which E15 may be used. 

At the time of the proposal, EPA had 

granted a partial waiver of E15 allowing 

its sale for use only in MY2007 and 

newer light-duty motor vehicles. Based 

on that partial waiver, the Agency 

proposed that the legal approval portion 

of the label read as follows: 

Use only in: 

2007 and newer gasoline cars. 

2007 and newer light-duty trucks. 

Flex-fuel vehicles. 

As noted above, EPA later issued a 

second partial waiver decision that 

allowed E15 to be introduced into 

commerce for MY2001–2006 light-duty 

motor vehicles. Taken together, the two 

partial waivers allow E15 to be sold for 

use in MY2001 and newer light-duty 

motor vehicles, as well as in vehicles 

designed and certified to run on 

gasoline and gasoline-ethanol blends as 

high as E85 (‘‘flex-fuel vehicles’’). EPA 

noted in the proposed rule that if we 

granted a partial waiver for MY2001– 

2006 light-duty motor vehicles, we 

would modify this component of the 

final label accordingly. 

The technical warning component of 

the label alerts consumers that use of 

E15 in other engines, vehicles, and 

equipment might cause damage to these 

products. This warning reflects the 

results of EPA’s analysis of available test 

and other data and its engineering 

assessment concerning the potential 

impact of E15 on emission controls and 

other aspects of vehicle design, 

materials and operation that can affect 

emissions. EPA proposed the following 

language: ‘‘This fuel might damage other 

vehicles or engines.’’ We also proposed 

that the word ‘‘Caution’’ be placed at the 

top of the label, and solicited comment 

on other words that could be used to 

alert consumers, and specifically asked 

for comment on the alternative word 

‘‘Attention.’’ 

The legal warning component of the 

label informs consumers that using E15 

in a vehicle or engine for which E15 is 

not allowed violates the Agency’s 

prohibition against misfueling. Based on 

the language currently used on the lowsulfur diesel (LSD) label (see 40 CFR 

80.570), the Agency proposed that the 

E15 label read as follows: ‘‘Federal law 

prohibits its use in other vehicles and 

engines.’’ 

Putting the four components together 

in a manner intended to attract 

consumers’ attention, the Agency 

proposed the following E15 label: 


jlentini on DSK4TPTVN1PROD with RULES2
Federal Register / Vol. 76, No. 142 / Monday, July 25, 2011 / Rules and Regulations 44413 

2. Consideration of Comments 

We solicited comments on the above 

label, where it should be placed and 

whether labeling should be required for 

three other levels of gasoline-ethanol 

blends: (1) E10; (2) blends containing 

between 15 and 85 vol% ethanol; and 

(3) E85. We also sought advice from the 

FTC’s labeling experts and discussed 

with FTC staff the issue of labeling 

additional gasoline-ethanol blends, 

which FTC was considering for other 

purposes. We shared with FTC staff the 

suggestions made in public comments 

on the proposed E15 label, and they 

provided us with information about 

effective label design, recommendations 

for addressing some of the issues raised 

in the comments, and assistance in 

designing the final label. We also 

considered the appropriateness of 

coordinating EPA labels and FTC labels. 

Most of the public comments on the 

proposed E15 label made specific 

recommendations for improvement with 

respect to wording and/or design. 

Overall, there was a wide spectrum of 

suggestions reflecting the different 

perspectives of ethanol producers, oil 

refiners, gasoline retailers, and 

manufacturers and users of vehicles, 

engines and equipment. Commenters 

generally agreed with the need for 

labels, but differed about how best to 

alert consumers and provide them with 

information for avoiding misfueling, 

without discouraging or chilling 

appropriate use of E15 in MY2001 and 

newer light-duty motor vehicles. One 

commenter also recommended that EPA 

allow fuel providers to develop and 

submit for approval an alternative label, 

a flexibility afforded by the Agency’s 

ULSD program. Specific suggestions fell 

into the following categories which are 

discussed in more detail below: 

• Choice of word for warning. 

• Description of vehicles that can use 

E15. 

• Prohibition statement. 

• Statement about E15 causing 

damage. 

• Addressing non-English speakers. 

• Portable gasoline containers. 

• Color, shape, and placement of 

labels. 

• Separate labels for different levels 

of ethanol. 

a. Choice of Word for Warning 

Component 

Commenters were divided between 

those who believed that use of 

‘‘CAUTION!’’ on the proposed label 

would deter appropriate use of E15, and 

those who believed that it would not be 

effective at preventing misfueling. Two 

commenters stated that any kind of a 

warning word may result in skepticism 

and concern about E15 use in MY2001 

and newer light-duty motor vehicles, 

and suggested that no warning word be 

used. They argued that the proposed 

label would not promote the successful 

introduction of this new fuel into the 

marketplace. Other commenters 

expressed concern that the proposed 

label was not strong enough and 

recommended that ‘‘WARNING’’ or 

‘‘STOP’’ be used. In these commenters’ 

opinion, the label on its own must 

provide for adequate informed consent 

to prevent misfueling and consumer 

lawsuits concerning possible damage 

from misfueling. 

The purpose of today’s rule is to 

mitigate potential misfueling and the 

emissions increases that could occur as 

a result of misfueling. We are therefore 

exercising our authority to address the 

emission consequences of misfueling. 

The Agency recognizes, however, that 

while the label needs to effectively 

communicate to consumers about 

misfueling, it should avoid deterring 

E15’s use in motor vehicles for which its 

sale and use is allowed. We discussed 

this issue with FTC’s consumer labeling 

experts who advised that the word 

‘‘ATTENTION’’ would more likely 

attract consumer notice without the risk 

of discouraging appropriate use of the 

fuel. 

After considering the comments and 

FTC’s advice, we are finalizing use of 

‘‘ATTENTION’’ instead of ‘‘CAUTION.’’ 

Use of ‘‘ATTENTION’’ strikes the right 

balance between alerting consumers 

about the improper use of E15 and 

scaring them away from appropriate use 

of E15. FTC staff also suggested that 

‘‘ATTENTION’’ be placed at an angle in 

the upper left corner of the label to help 

draw consumers’ eyes to it (see Section 

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

adopting that placement. We believe 

that ‘‘ATTENTION’’ so placed, and in 

combination with other label 

information alerting consumers to the 

potential for damage from misfueling 

(discussed below), will effectively 

communicate that care must be taken in 

fueling with E15 without unduly 

discouraging its proper use. 


jlentini on DSK4TPTVN1PROD with RULES2ER25JY11.001</GPH>
44414 Federal Register / Vol. 76, No. 142 / Monday, July 25, 2011 / Rules and Regulations 

b. Description of Motor Vehicles That 

Can Use E15 

Many commenters suggested 

rewording the label’s references to the 

motor vehicles that can use E15 to 

clarify and/or streamline those 

references. Several also suggested that 

the label state that E15 is ‘‘Approved for 

use in 2001 and newer vehicles’’ 

(emphasis added). Two commenters 

noted that use of E15 in flex-fuel 

vehicles is independent of model year 

and that flex-fuel vehicles should be 

listed first. Some commenters expressed 

concern that sport utility vehicles 

(SUVs) and minivans were not 

explicitly mentioned in the label even 

though both vehicle types fall within 

the definitions of light-duty vehicles, 

light-duty trucks, or medium-duty 

passenger vehicles and are covered by 

the partial waivers. They suggested that 

there be a consumer-friendly reference 

for these vehicles. 

We agree with commenters that the 

language can and should be clarified 

and streamlined in a way more readily 

understood by consumers. The partial 

waivers allow E15 to be sold for use in 

MY2001 and newer ‘‘light-duty motor 

vehicles,’’ meaning cars, light-duty 

trucks and medium-duty passenger 

vehicles. Light-duty trucks and 

medium-duty passenger vehicles are 

regulatory terms that encompass a range 

of vehicles including minivans and all 

but the largest pick-up trucks (greater 

than 8,500 pounds gross vehicle weight 

rating) and some SUVs (greater than 

10,000 pounds gross vehicle weight 

rating). FTC staff generally advised that 

the E15 label be as concise as possible 

since consumers are much less apt to 

read detailed labels, particularly in the 

context of routine activities like buying 

gasoline. With that in mind, we are 

finalizing the phrase ‘‘2001 and newer 

passenger vehicles’’ as the reference to 

the types of gasoline-fueled motor 

vehicles that may use E15. The common 

denominator of virtually all of the 

relevant vehicle types is that they are 

used to transport people. ‘‘Passenger 

vehicle’’ is a common term and should 

be more effective in conveying the types 

of gasoline-fueled motor vehicles for 

which E15 can be sold and used. Since 

all flex-fuel vehicles are made to use 

gasoline-ethanol blends up to E85, all 

may use E15. 

We are leaving the reference to 

passenger vehicles first in the list of the 

types of motor vehicles that can use 

E15. In most of the country, gasolinefueled vehicles are much more common 

than flex-fuel vehicles, and under the 

partial waiver decisions E15 is approved 

for use in only MY2001 and newer 

passenger vehicles. The reference to 

passenger vehicles and the model year 

limitation is thus more relevant and 

important to more consumers, and so 

should precede the reference to flex-fuel 

vehicles. 

We are not adopting the suggestions 

to include the phrases ‘‘approved for 

use in’’ or ‘‘model year’’ in referring to 

the vehicle types that may use E15. 

EPA’s partial waiver decisions are not 

approvals for use of E15 in the general 

sense that term is used; they are waivers 

allowing E15 to be introduced into 

commerce for use in certain motor 

vehicles. The Agency’s role in the 

waiver proceeding is limited to 

determining whether E15 meets the 

criteria for a waiver under CAA section 

211(f)(4) and in this rulemaking under 

section 211(c) to minimizing the 

potential for any misfueling that might 

occur. As for prefacing the reference to 

2001 and newer passenger vehicles with 

‘‘model year,’’ any potential benefit of 

adding that phrase is outweighed by the 

risk that the additional wording may 

decrease the effectiveness of the label. 

Consumers are likely to understand the 

reference to 2001 as indicating model 

year, and we are mindful that labels 

with more words are less apt to be read. 

Therefore, today’s final rule will 

require the following language on the 

label: 

‘‘Use only in: 

• 2001 and newer passenger vehicles; 

• Flex-fuel vehicles’’. 

c. Statements About Prohibition and 

Damage 

Commenters were generally 

supportive of the proposed statements 

on prohibition and damage, but 

suggested variations in the wording and 

order of the statements to clarify their 

scope and meaning. Most commenters 

stated that it is essential to include a 

statement that ‘‘this fuel may damage’’ 

other vehicles, engines and equipment 

for consumers to have the information 

they need to avoid misfueling. However, 

several commenters objected to 

including any damage statement 

because they believe available 

information does not support that E15 

may cause damage. In contrast, one 

commenter argued that the proposed 

damage statement should communicate 

that, in the commenter’s view, 

significant physical injuries may result 

from using E15 in lawn mowers, chain 

saws, and other equipment. 

A number of commenters noted that 

the proposal’s reference to other 

‘‘vehicles and engines’’ would not 

necessarily convey the various kinds of 

gasoline-powered equipment that 

should not use E15. Specifically, one 

commenter pointed out that ‘‘engine’’ is 

not a term that consumers use to 

describe lawn and garden equipment, 

boats and other nonroad equipment. 

Two commenters suggested using 

graphic symbols or icons to depict some 

of the common types of nonroad 

vehicles and equipment for which E15 

use would be prohibited. One 

commenter provided sample icons of a 

boat, motorcycle, chainsaw, lawnmower 

and snowmobile, each depicted in a 

circle with a slash or X across the image 

to convey to consumers that E15 should 

not be used in those products. Along the 

same lines, one commenter suggested 

including on the label a list of the 

various kinds of vehicles, engines and 

equipment that should not use E15. 

Other commenters provided further 

suggestions for improving the wording 

of the damage and prohibition 

statements. Three commenters 

suggested that the label clarify that 

‘‘Federal law prohibits use in all other 

vehicles and nonroad engines and 

equipment.’’ Another stated that the 

label should be consistent with other 

EPA labels and should state: ‘‘Federal 

law prohibits use in all other model year 

vehicles and engines.’’ (Suggested 

additional words in italics.) 

In addition to the prohibition and 

damage statements, some commenters 

suggested adding to the label statements 

that fuel economy would be adversely 

affected and that consumers should 

consult manufacturers’ fuel 

recommendations. These commenters 

pointed out that ethanol has somewhat 

lower energy content than gasoline and, 

when ethanol is cheaper than gasoline, 

E15 might be priced lower than E10 or 

E0. These commenters argued that 

without an understanding of the 

relationship between energy content 

and fuel price, many consumers might 

intentionally misfuel vehicles, engines, 

and equipment not covered by the 

partial waivers if E15 appeared to be a 

better bargain than E10 or E0. 

After considering all of the comments, 

we continue to believe that a damage 

statement is necessary and appropriate 

for the E15 label. As explained in the 

October Waiver Decision, EPA denied 

the E15 waiver request with respect to 

MY2000 and older light-duty motor 

vehicles and all heavy-duty engines, 

motorcycles and nonroad equipment 

because (1) Available data is insufficient 

to show that E15 would not cause or 

contribute to a failure by these products 

to meet emission standards, and (2) our 

engineering judgment is that E15 may 

adversely affect the emissions control 

performance of these products, 

particularly over time. The waiver 

decisions also considered materials 


jlentini on DSK4TPTVN1PROD with RULES2
Federal Register / Vol. 76, No. 142 / Monday, July 25, 2011 / Rules and Regulations 44415 

11Ethanol has approximately 33 percent less 

volumetric energy content than conventional 

gasoline (see CITE RFS2 RIA). A recent study by the 

Department of Energy involving 16 light-duty 

vehicles from model years 1999 to 2007 found that, 

when compared to E0, the average reduction in fuel 

economy was 3.7 percent for E10, 5.3 percent for 

E15, and 7.7 percent for E20 (see National 

Renewable Energy Laboratory, Oak Ridge National 

Laboratory, Effects of Intermediate Ethanol Blends 

on Legacy Vehicles and Small Non-Road Engines, 

Report 1—Updated (February 2009). 

compatibility, operability, and 

maintenance issues related to E15 and 

their potential impact on emissions. A 

statement that E15 use in those products 

‘‘may cause damage’’ is consistent with 

and supported by EPA’s technical 

analysis for its decision to deny the 

waiver request for introduction of E15 

into commerce for use in these 

products. Including the damage 

statement is also critical to the 

effectiveness of the E15 label, since 

consumers are more likely to comply 

with the label’s direction if they 

understand that harm might otherwise 

occur. 

We do agree with commenters’ 

suggestion that a reference to 

‘‘equipment’’ is needed on the label. 

The label as proposed used the word 

‘‘engines’’ to refer to engines in all 

nonroad equipment. After considering 

the comments, we agree that most 

consumers think in terms of the types of 

equipment they own or operate, not the 

engines that power the equipment. 

However, given the extremely broad 

range of equipment that uses gasoline 

engines, we believe it would be 

infeasible and counterproductive to 

attempt to include even a partial list of 

the types of products that should not 

use E15. As noted above, labels 

generally need to be brief and succinct 

to be effective. Also, a partial list would 

run the risk of implying that types of 

equipment not included on the list are 

suitable for E15 use. We are therefore 

choosing the phrase ‘‘gasoline-powered 

equipment’’ to refer to the many types 

of equipment that have gasoline 

engines. We are also including a 

reference to boats since many 

consumers may not consider boats to be 

either ‘‘vehicles’’ or ‘‘equipment.’’ 

Moreover, representatives of boat 

manufacturers and users expressed 

particular concerns about the potential 

for, and consequences of, misfueling 

boat engines. 

We are otherwise combining and 

revising the wording of the prohibition 

and damage language on the label to 

reduce the number of words and 

increase the directness, and therefore 

the effectiveness, of the message, in a 

manner suggested by FTC staff. 

We are not adopting some 

commenters’ suggestions that the label 

provide a warning that injury might 

occur if misfueling results in product 

malfunction. In considering all the 

information before the Agency (i.e. test 

data and other information provided by 

the waiver applicants and in public 

comments submitted on the waiver and 

on the proposed rule), we determined 

that the information does not provide a 

clear enough basis for including a 

separate warning about risk of injury in 

addition to the warning about the 

potential for damage. 

We disagree with the suggestion to 

include a statement that fuel economy 

would be adversely affected by use of 

E15. While ethanol has a lower energy 

content than gasoline,11 the effect of E15 

(or E10) on the fuel economy of a 

particular model or vehicle depends on 

a number of factors (e.g., fuel 

formulation, engine calibration, manner 

of vehicle operation, etc.) that cannot be 

easily communicated on a label. To the 

extent the appropriate information were 

added to the label, consumers may be 

less likely to read the label at all. In light 

of the trade-off between providing more, 

somewhat complex information and 

decreasing the likelihood that the label 

will be read and heeded, we believe that 

the damage statement will be more 

effective in mitigating misfueling on its 

own than in combination with fuel 

economy information. The costs 

associated with potential damage of the 

engine or replacement of catalysts (see 

section IV.A for a description of the 

costs associated with these repairs) are 

significant and likely to provide 

sufficient incentive not to misfuel with 

E15. Fuel providers may use 

supplemental labels, signs or other 

forms of communication to inform their 

customers of the potential fuel economy 

impacts of the various types of gasoline 

and gasoline-ethanol blends that they 

sell. 

We also disagree with the suggestion 

to include a statement that consumers 

should consult the manufacturer’s fuel 

recommendation. Mention of 

manufacturers’ fuel recommendations 

may confuse consumers, since E15 only 

recently received partial waivers 

allowing its sale for use in certain 

vehicles. It is not yet available in the 

marketplace, and thus would not be 

specifically referenced in any existing 

manual or manufacturer’s 

specifications. 

Today’s final rule will therefore 

require the following damage and 

prohibition message at the bottom of the 

label: 

‘‘Don’t use in other vehicles, boats, or 

gasoline powered equipment. It may 

cause damage and is prohibited by 

Federal law.’’ 

We carefully considered the 

suggestion to add graphic icons to the 

label to help convey what products can, 

or cannot, use E15, and have decided 

not to require icons for several reasons. 

First, the icons suggested for the onhighway vehicles that can, or cannot 

use, E15 rely on text to convey much of 

their message. Those icons also depict a 

passenger car, which is only one of 

several vehicle types that can use E15 if 

from the specified model years. In 

addition, the other icons portray only 

some of the nonroad vehicles and 

equipment that cannot use E15, raising 

the issue noted above concerning partial 

lists: Depicting some equipment but not 

other equipment may lead consumers to 

think E15 can be used in the types of 

equipment not depicted. Use of multiple 

icons would also make the label more 

dense and complicated. 

In light of these considerations, we 

are not including icons in the final 

label. However, fuel providers may post 

supplemental labels or signs that they 

believe would be useful for informing 

their customers. We are also adopting 

the suggestion made by one commenter 

to allow fuel providers to submit to EPA 

for approval an alternative label. There 

are a number of circumstances that may 

make it appropriate for a retailer to 

make small changes in the shape or size 

of the label and/or include additional 

information. (It should be noted that the 

addition of information, including 

icons, would require enlarging the label 

so that all of the information on the 

label may be easily read). To the extent 

a fuel provider believes icons would be 

helpful to its customers, it may post 

them on its own signs and/or develop 

and submit an alternative E15 label 

including appropriate icons for EPA 

consideration and approval. 

d. Addressing Non-English Speakers 

Two commenters expressed concern 

that the label needs to accommodate 

non-English speakers, and pointed out 

that a relatively high percentage of 

commercial landscapers that purchase 

fuel for lawn, garden, and forestry 

products may not be able to read or 

comprehend an English-narrative label. 

They suggested that the final label 

should contain generic symbols or icons 

to clearly and strongly convey the 

necessary warnings. 

We have addressed the use of icons 

above, but have also considered whether 

labels in other languages should be 

used. We appreciate the importance of 

conveying the necessary information to 

those who do not speak or read English. 

However, we are not requiring multiVerDate Mar<15>2010 18:31 Jul 22, 2011 Jkt 223001 PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 E:\FR\FM\25JYR2.SGM 25JYR2

jlentini on DSK4TPTVN1PROD with RULES2
44416 Federal Register / Vol. 76, No. 142 / Monday, July 25, 2011 / Rules and Regulations 

12FTC press release ‘‘FTC Issues Final 

Amendments to Its Fuel Rating Rule, Including 

New Octane Rating Method’’ available at http://

www.ftc.gov/opa/2011/03/fuellabel.shtm [accessed 

March 21, 2011]. 

lingual labels at this time because we do 

not have enough information to 

determine under what circumstances 

one or more additional languages 

should be added to the label. The 

commenters suggesting that labels 

accommodate non-English speakers did 

not provide information that would 

allow us to make these determinations. 

Also, a label in two or more languages 

would necessarily be longer and may 

detract from the effectiveness of the 

label as a whole. We will continue to 

consider whether bi- or multi-lingual 

signs would be appropriate, and will 

work with stakeholders to address this 

issue through public outreach and 

education as E15 enters the market. As 

noted above, retailers may also post 

additional labels or signs, including in 

other languages. Further, today’s rule 

provides the option of seeking EPA 

approval of an alternative label that 

could incorporate languages in addition 

to English. Under the regulations, 

retailers could submit translated 

versions of the final label to EPA for 

approval. Retailers thus have the 

flexibility to use signs and/or labels 

conveying information in any language 

they believe is appropriate for their 

customers. 

e. Portable Fuel Containers 

Some commenters expressed concern 

that the label by itself would not be 

effective at preventing misfueling of 

boats and other nonroad vehicles and 

equipment. The commenters pointed 

out that nonroad products are generally 

fueled from portable containers, which 

are in turn fueled at the same time and 

location that motor vehicles are fueled. 

The commenters stated that any fuel 

dispensing nozzle used to fill a motor 

vehicle could also be used to fill the 

portable container. One commenter 

urged that the labels for pumps 

dispensing fuels greater than E10 should 

also warn against those fuels being 

dispensed into portable containers. 

We considered this suggestion but 

have decided that prohibiting the 

dispensing of E15 into portable 

containers is not necessary or 

appropriate. The prohibition established 

by today’s rule extends to misfueling of 

E15 into nonroad products, including by 

use of portable containers, so a separate 

ban on E15 use in portable containers is 

not needed to effectuate the prohibition. 

Banning use of such containers for E15 

would also prevent their legitimate use, 

including in emergencies, for motor 

vehicles that may fuel with E15. The 

outreach campaign being developed can 

help consumers understand that use of 

E15 in portable containers is limited to 

fueling the types of motor vehicles that 

may use E15. 

f. Color, Size, Shape, Font, and 

Placement of the Label 

There was general agreement among 

commenters that labels for gasolineethanol blends should be uniform in 

color, size, and shape for easy 

identification. Commenters were 

divided, however, on what the color and 

shape should be, with some commenters 

focused on what combination would 

stand out and/or be more legible, and 

others emphasizing coordination with 

other labels. Several different color 

schemes, including FTC’s for its 

proposed gasoline-ethanol blend labels, 

were suggested. Shapes other than 

squares were also urged, with octagonal 

and triangular shapes specifically 

recommended since they are already 

associated with stop and hazard signs, 

respectively. 

One commenter recommended that 

rather than requiring a one-size-fits-all 

label, EPA should allow gasoline 

marketers to determine the color scheme 

and appropriate size of the E15 label. 

Another commenter specifically cited 

experience with EPA’s ULSD 

regulations, which did not specify the 

color and size of the labels required for 

that program. This commenter pointed 

out that while retailers initially 

welcomed the opportunity to design 

their own labels, ultimately the lack of 

consistency in label design resulted in 

confusion and uncertainty with respect 

to compliance and enforcement. The 

commenter recommended that EPA 

should adopt specific label size, color, 

dimension and design requirements 

similar to those specified for dispenser 

labels under FTC regulations. 

With respect to placement of the 

label, commenters generally suggested 

that labels should be placed directly 

above, below or next to the E15 pump 

nozzle or the button a consumer would 

use to select E15 from among several 

fuel choices. One commenter 

recommended that for pumps that use 

one hose to dispense several grades of 

gasoline the label should be on the 

button for selecting the grade for which 

E15 is used. For pumps with multiple 

hoses, this commenter suggested the 

label could appear in the same location 

as the octane ratings for the other hoses 

(or above/below the octane rating). 

We agree with commenters that the 

E15 label design should generally be 

uniform for easy identification and 

utility. Significant variations in label 

design could thwart the goal of 

associating the label with E15 and 

making the label readily recognized and 

understood. At the same time, we 

recognize that slight modifications in 

size or shape may be useful or 

appropriate for a retailer’s particular 

circumstances. For example, some slight 

changes in shape may be necessary to 

allow the label to be placed where 

consumers will see it when they are 

selecting what fuel to buy. The 

flexibility afforded by today’s 

regulations will give retailers the option 

to develop an alternative label that 

works with their pumps. However, 

alternative labels must include the four 

required components of the E15 label, 

must be as legible as the required label, 

and must be similar enough in design 

that their use would not confuse 

consumers or undermine the utility of 

relatively consistent labeling of E15. 

We have decided to use FTC’s 

proposed color scheme and general 

design so that the two agencies’ labels 

could work together as a coordinated 

labeling scheme for gasoline-ethanol 

blends. FTC recently deferred making a 

decision on the ethanol labeling portion 

of their proposed fuel rating rule 

because more time was needed to 

address the issue.12 FTC’s proposal was 

based in part on existing FTC rules for 

labeling alternative fuels (see 16 CFR 

parts 306 and 309). Those rules specify 

the color scheme that the FTC used for 

its proposed labels for gasoline-ethanol 

blends. The FTC’s alternative fuel labels 

provide a generally consistent color 

scheme for alternative fuels so 

consumers may readily recognize 

pumps and other dispensers that deliver 

those fuels. In view of the existing FTC 

rules for alternative fuel labeling and 

FTC’s further consideration of gasolineethanol blend labeling, we are adopting 

the proposed FTC color scheme so that 

E15 labels may become part of a 

broader, coordinated scheme for 

labeling alternative fuels in general and 

gasoline-ethanol blends in particular. 

Consumers are more likely to 

understand the import of both agencies’ 

labels if they see relatively consistent 

labels across the relevant types of fuel. 

In addition, FTC’s proposed labels uses 

colors, fonts, shape and other design 

aspects that make its labels noticeable, 

easily understood, and consistent with 

labeling conventions. An E15 label 

similar in appearance should thus be 

similarly effective. We also note that we 

varied the font size of different parts of 

the E15 label in light of FTC consumer 

labeling staff advice that use of larger 

fonts for the most important information 


jlentini on DSK4TPTVN1PROD with RULES2
Federal Register / Vol. 76, No. 142 / Monday, July 25, 2011 / Rules and Regulations 44417 

13We considered requiring EPA labels for higher 

gasoline-ethanol blends that combined the 

information on EPA’s label and FTC’s proposed 

labels. However, FTC’s proposed labels contain a 

more general damage statement as well as direction 

to check the owner’s manual. For the reasons 

discussed above, we do not believe it is appropriate 

to include the reference to owners’ manuals on 

EPA’s E15 label. Also, it is not clear that EPA could 

require labels for the particular ranges of blends for 

which FTC proposed labels (e.g., 30–40%, 10– 

70%). Since we do not have data to show 

differences in emission consequences for those 

particular ranges for all types of vehicles, engines 

or equipment, we do not believe it would be 

appropriate for EPA to require labels for those 

particular ranges. In any event, we do not want to 

presume the conclusion of FTC’s consideration of 

ethanol labeling. 

would help draw consumers’ attention 

and make it more likely they would read 

the label. 

We agree with the comments that the 

label should be placed where consumers 

will see it when they are selecting 

which fuel to buy. We recognize, 

however, that pump designs vary 

widely and evolve over time. In 

particular, pumps that use one hose to 

dispense several grades of gasoline raise 

the issue of where to place the label so 

that it is associated with the selector 

button for E15 fuel. Given the wide 

variety of pumps, we are not specifying 

the exact placement of the label on 

every type of pump, but we are 

requiring that retailers place the E15 

label where consumers will see it when 

they are making their fuel selection. In 

the case of pumps with one nozzle 

dispensing several grades of gasoline, 

the regulations direct the retailer to 

place the label above the selector button 

dispensing E15 or otherwise place it so 

that it is clear which button is 

dispensing E15. Using the flexibility 

afforded by the regulations for 

alternative labels, some retailers may 

want to put a variation of the E15 label 

on the selector button itself. 

We note also that in response to our 

request for comment on whether the 

designation of ‘‘E15’’ be placed at the 

top of the label, many commenters 

agreed that this should be done. Today’s 

rule will require that ‘‘E15’’ be so 

placed. 

g. Separate Labels for Different Levels of 

Ethanol 

Most commenters stated that there is 

no need to label E0 or E10. These 

commenters noted that since the 

purpose of the rule is to minimize 

misfueling with E15, EPA labeling 

should be limited to fuels containing 

more than 10 vol% ethanol. Several 

other commenters recommended labels 

for E0 and every level of gasolineethanol blend (including E10) to 

provide a comprehensive system for 

identifying the amount of ethanol in the 

gasoline being sold. 

We have concluded that it is not 

useful or necessary to label E0 or E10. 

Both fuels are prevalent in the market 

now, and both may be used by virtually 

all vehicles, engines and nonroad 

equipment. Requiring labels for E0 and 

E10 might help consumers understand 

the spectrum of gasoline-ethanol blends 

that are available, but they are not 

needed to help minimize misfueling. 

‘‘E0’’ and ‘‘E10’’ labels may also cause 

some confusion. Many pumps 

dispensing E10 are already labeled 

under state law, and adding a new label 

would be duplicative and may lead 

some consumers to think that E10 is a 

new type of gasoline. We believe that 

labeling only E15 pumps will help make 

clear to consumers that E15 is indeed a 

new and different blend, and that 

attention needs to be paid to avoid 

misfueling with it. Thus, today’s rule 

will not require labels for E0 and E10. 

Commenters were divided on whether 

additional labels were needed for E85, 

for blends between E15 and E85, and for 

blender-pumps (pumps that dispense a 

range of gasoline-ethanol blends). One 

commenter stated that no additional 

labels were necessary and that requiring 

an additional label for these fuels would 

likely be counterproductive to the 

consumer education underway in states 

where mid-level gasoline-ethanol blends 

and E85 are already available. Some 

commenters believed that such labels 

were necessary, with some favoring 

labels that indicate a range of ethanol 

levels and other urging that labels 

specify the precise, or close to the 

precise, level of ethanol being dispensed 

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

As mentioned above, FTC is 

considering labels for mid-level 

gasoline-ethanol blends. FTC already 

requires labels for E85 and other 

alternative fuels. There are currently 

about 2,300 E85 pumps and 215 blender 

pumps dispensing mid- and high-level 

gasoline-ethanol blends. These pumps 

typically have labels or other signage 

that clearly identifies mid- and highlevel gasoline-ethanol blends as such, 

indicates which nozzle or selector 

button dispenses those higher blends, 

and communicates that the blends are 

for flex-fuel vehicles only. Most 

alternative fuel labels subject to current 

FTC regulations must also use the color 

scheme that we have adopted for the 

E15 label. 

In light of these circumstances, we 

believe that it is sufficient and 

appropriate for EPA to require labels 

only for E15 pumps at this time. There 

are relatively few pumps dispensing 

mid- and high-levels of gasoline-ethanol 

blends, and their current labels and 

signage are generally designed to attract 

attention and make clear that the fuel 

they dispense is for flex-fuel vehicles 

only. The E15 label we are requiring 

will provide appropriate information for 

E15, and should not lead to misfueling 

with higher gasoline-ethanol blends. In 

our view, an owner of a MY2000 car, for 

example, is not likely to read the E15 

label, learn that it is inappropriate for 

his or her motor vehicle, move to an E30 

or E85 pump, and buy that fuel instead. 

Also, as discussed below, the labels that 

EPA could require in this rulemaking 

for higher gasoline-ethanol blends could 

cause consumer confusion. FTC is 

continuing to consider labeling for midlevel gasoline-ethanol blends, and we 

anticipate that the two agencies will 

continue to consult about ethanol 

labeling. (For example, EPA and FTC 

staff are working to prevent duplicative 

labeling.) As we work with our 

stakeholders to help the public 

understand the appropriate use of E15, 

we will share information and insights 

with FTC for their consideration.13

Since the misfueling prohibition 

established by today’s rule applies to 

gasoline-ethanol blends greater than 

E10, and not just E15, EPA considered 

whether to require a label for higher 

blends in order to provide information 

about the prohibition. We concluded, 

however, that such labels would more 

likely confuse consumers than help 

them avoid misfueling. The prohibition 

established in this rule reflects and is 

based largely on the same information 

and engineering assessment supporting 

EPA’s decision to deny a waiver for E15 

to be introduced into commerce for use 

in MY2000 and older light-duty 

vehicles, heavy-duty engines, 

motorcycles and nonroad products. In 

this rulemaking, we are not addressing 

the emissions impact of blends above 

E15 on MY2001 and newer light-duty 

vehicles. Therefore, the misfueling 

prohibition that we are promulgating in 

this rule applies only to the vehicles, 

engines and nonroad products not 

covered by the E15 partial waivers. In 

this context, any EPA labels for blends 

greater than E15 would accordingly 

carry a misfueling prohibition statement 

that would reference only MY2000 and 

older light-duty vehicles, heavy-duty 

engines, motorcycles and nonroad 

products, and not MY2001 and newer 

light-duty vehicles. However, such 

labels might leave the mistaken 

impression that blends greater than E15 

are currently lawful for gasoline-fueled 

MY2001 and newer light-duty motor 

vehicles, when they are not. Under CAA 

section 211(f)(1), those higher blends 

may be introduced into commerce only 


jlentini on DSK4TPTVN1PROD with RULES2
44418 Federal Register / Vol. 76, No. 142 / Monday, July 25, 2011 / Rules and Regulations 

14As was indicated in the proposed regulations, 

the RVP language would be required for PTDs only 

for the summertime RVP season. 

for sale for flex-fuel vehicles. As 

discussed above, the current labels on 

pumps dispensing higher gasolineethanol blends typically provide that 

information. Given the scope of this 

rulemaking, we have concluded that 

adopting EPA labels in this rulemaking 

for higher gasoline-ethanol blends could 

be confusing and counterproductive. 

In sum, we expect the E15 label will 

serve EPA’s purpose in providing 

consumers with the information they 

need to avoid misfueling with E15, and 

that it is not appropriate to adopt 

labeling requirements for blends above 

E15 in this rulemaking. 

3. Final Fuel Pump Labeling 

Requirements 

Today’s final rule requires the 

wording and general color and design 

aspects of the label described above. In 

addition, we are allowing retailers the 

flexibility to submit alternative labels to 

EPA for approval. Such alternatives may 

potentially include the addition of icons 

and other languages, and small changes 

in shape and size (except to the extent 

a larger size is necessary to 

accommodate more information), but 

must include the four required 

components of the E15 label. 

We are not requiring labels for other 

gasoline-ethanol blends. Thus, only the 

E15 label is required for pumps 

dispensing that fuel. 

Placement of the label will depend on 

the type of pump that is used. In the 

case of pumps with one nozzle 

dispensing several grades of gasoline, 

the regulations direct the retailer to 

place the label above the selector button 

dispensing E15 or otherwise place it so 

that it is clear which button is 

dispensing E15. In the case of pumps 

with a nozzle for each grade, the 

regulation directs the retailer to place 

the label where consumers will see it 

when they are making their fuel 

selection. 

The final E15 label is as follows: 

C. PTD Requirements 

EPA proposed several additions to 

existing PTD requirements to provide 

the information needed for fuel 

providers to properly blend and label 

E15 fuel. EPA has previously 

established similar requirements for 

PTDs for RFG and blendstocks to help 

ensure downstream compliance with 

national RFG standards. As we 

explained in the proposed rule, the 

potential introduction of E15 into the 

marketplace makes it important to 

include additional information on the 

PTDs that accompany the transfer of 

gasoline and gasoline blendstocks used 

for oxygenate blending, both for RFG 

and conventional gasoline. We also 

noted that the type of additional 

information needed differs for 

businesses upstream versus downstream 

of the point of ethanol addition. Most 

commenters agreed that PTD changes 

are necessary to minimize misfueling 

and to help ensure downstream 

compliance with our fuels regulations as 

E15 enters the market. 

1. PTD Requirements Downstream of the 

Point of Ethanol Addition 

EPA proposed to include on PTDs 

language indicating the amount of 

ethanol in the blend and the 

summertime RVP standards applicable 

to the blend so that downstream 

marketers can properly label E15 fuel 

and avoid commingling fuels that could 

result in RVP and other violations.14

EPA proposed that the following 

statements be included on PTDs for 

pure gasoline (E0) and the various 

gasoline-ethanol blends downstream of 

the point where ethanol blending takes 

place: 

For E0: ‘‘E0: Contains no ethanol. The 

RVP does not exceed [Fill in appropriate 

value]’’. 

For E10: ‘‘E10: Contains between 9 

and 10 volume percent ethanol. The 

RVP does not exceed [Fill in appropriate 

value]’’. 

For E15: ‘‘E15: Contains up to 15 

volume percent ethanol. The RVP does 

not exceed [Fill in appropriate value]’’. 

For EXX: ‘‘EXX—Contains up to XX% 

ethanol. 

‘‘EXX’’ refers to fuels blends above 

E15, up to and including E85 and fuel 

blends below 9 volume percent ethanol. 

The maximum potential ethanol content 

of the fuel would be required to be 

specified on the PTD in the place of 

‘‘XX’’. 

Most comments were generally 

supportive of the language as proposed. 

One commenter recommended that the 

language on PTDs for gasoline-ethanol 

blends should be simplified and 

standardized, and should read: 

‘‘Contains at least ## volume percent 

ethanol and up to ## volume percent 

ethanol. RVP does not exceed ## psi.’’ 

EPA agrees that standardizing the 

language for gasoline-ethanol blends is 


jlentini on DSK4TPTVN1PROD with RULES2ER25JY11.002</GPH>
Federal Register / Vol. 76, No. 142 / Monday, July 25, 2011 / Rules and Regulations 44419 

simpler and easier to understand, and is 

finalizing changes to the required PTD 

language for gasoline-ethanol blends to 

reflect this. For E0, we are finalizing the 

language to read as proposed (i.e., ‘‘E0: 

Contains no ethanol’’), since the 

standardized language suggested by 

commenters contains more information 

than necessary for gasoline containing 

no ethanol. 

Another commenter argued that the 

language ‘‘The RVP does not exceed 

[Fill in appropriate value]’’ is 

unnecessary, as the petroleum industry 

has a long history of distributing 

gasoline with the correct RVP to the 

correct area, and E15 will not change 

this situation. In contrast, another 

commenter stated that the proposed 

requirements to include ethanol content 

and maximum RVP on the PTD 

downstream of the point of blending 

would be beneficial, because it would 

alleviate the need for additional 

downstream testing. After considering 

the public comments, EPA concludes 

that, downstream of the point where 

ethanol blending takes place, 

information on the maximum ethanol 

concentration and RVP of gasoline and 

gasoline-ethanol blends is needed to 

help ensure that shipments of E15 and 

other fuel are delivered into the 

appropriate storage tanks at retail and 

fleet fueling facilities and not 

improperly commingled. The 

introduction of E15 into the marketplace 

will increase the complexity of 

blending, distributing and selling fuel. 

The required additions to PTDs will 

help fuel providers comply with E15 

labeling requirements, the summertime 

RVP requirements for E0, E10 and E15, 

and the prohibition against misfueling 

with E15 (including gasoline-ethanol 

blends greater than 10 vol% ethanol and 

up to 15 vol% ethanol). Therefore, EPA 

is finalizing the requirement that 

information on the maximum ethanol 

concentration and RVP of gasoline and 

gasoline-ethanol blends be included on 

PTDs downstream of the point of 

ethanol addition. 

EPA also requested comment on 

whether additional language on E10 

PTDs is needed to inform parties that a 

blend containing between 9 and 10 

vol% ethanol which benefits from the 

1.0 psi RVP waiver under CAA section 

211(h) may not be commingled with E0 

or a gasoline-ethanol blend that contains 

less than 9 or more than 10 vol% 

ethanol. We received comments 

advocating that EPA require that PTDs 

for gasoline-ethanol blends higher than 

10 vol% ethanol state that those 

volumes are not eligible for the 1.0 psi 

RVP waiver. One commenter also 

suggested that, to avoid downstream 

commingling of E10 and other fuels not 

eligible for the 1.0 psi RVP waiver, EPA 

should incorporate additional language 

into the E10 PTDs stating: ‘‘This blend 

is subject to the 1.0 psi RVP waiver. Do 

not blend with gasoline containing 

anything other than between 9 and 10 

vol % ethanol.’’ EPA has decided to 

include the suggested language to 

provide clarity and avert potential 

instances of improper commingling of 

fuels eligible for the 1.0 psi RVP waiver 

and those that are not. Thus, we are 

finalizing a requirement that for 

gasoline-ethanol blends containing 

between 9 and 10 vol% ethanol, the 

PTD must state: ‘‘The 1.0 psi RVP 

waiver applies to this gasoline. Do not 

mix with gasoline containing anything 

other than between 9 and 10 vol% 

ethanol.’’ 

2. PTD Requirements Up to and 

Including the Point of Ethanol Addition 

EPA proposed that PTDs for gasoline 

or gasoline blendstock used for 

oxygenate blending (BOBs) in the 

manufacture of gasoline-ethanol blends 

that are subject to summertime RVP 

controls include the maximum RVP of 

the BOB to avoid improper blending of 

E15 or commingling with E15 and other 

fuels. We also proposed that such PTDs 

in non-RFG areas indicate what ethanol 

concentration is suitable to be blended 

with the BOB to facilitate ethanol 

blender compliance with applicable 

EPA summertime RVP requirements. 

Specifically, we proposed that the 

following statements be included on the 

PTDs for BOBs in non-RFG areas: 

‘‘Suitable for blending with ethanol at 

a concentration up to 15 volume % 

ethanol’’ or, in the case of a BOB 

designed to take advantage of the 1 psi 

allowance for E10 in 40 CFR 80.27(d)(2): 

‘‘Designed for the special RVP 

provisions for ethanol blends that 

contain between 9 and 10 volume % 

ethanol’’. 

‘‘The RVP of this blendstock/base 

gasoline for oxygenate blending does 

not exceed [Fill in appropriate value]’’. 

Comments were generally supportive 

of the proposed language, although EPA 

received a comment stating that the 

requirement to include the RVP of a 

BOB on the PTD is not useful because 

regulated parties are already prohibited 

from releasing a finished product onto 

the market that exceeds the regional 

and/or seasonal RVP requirements. The 

commenter argued that the proposed 

requirement overcomplicates an 

approach that has worked well in the 

past and that PTD requirements for 

BOBs should be flexible and need only 

contain the type and level of oxygenate 

with which the BOB should be blended, 

with additional language included at the 

discretion of the regulated party. 

However, while the current approach to 

compliance with the relevant RVP 

requirements may work under current 

conditions, in light of the increasing 

complexity that will come with the 

entry of E15 into the market, EPA 

believes that, upstream of the point 

where E10 and E15 are manufactured, 

the maximum RVP is needed on the 

PTDs for BOBs to facilitate ethanol 

blender compliance with the applicable 

EPA summertime RVP requirements. 

In order to help ensure that the 

proposed blendstock commingling 

restrictions are observed, we requested 

comment on whether the following 

language should be added to the PTD for 

a BOB designed to take advantage of the 

1.0 psi allowance for E10: ‘‘The use of 

this gasoline to manufacture a gasolineethanol blend with less than 9 vol% 

ethanol or E15 may cause an RVP 

violation.’’ Some commenters argued 

that the proposed changes to the PTD 

language do not sufficiently address the 

consequences of blending additional 

levels of ethanol in gasoline beyond 10 

vol% and that language similar to what 

EPA proposed should be added to the 

final regulations. One commenter stated 

that the final rule must ensure that PTDs 

make it clear that any gasoline-ethanol 

blends above E10 do not receive the 1.0 

psi RVP waiver. The commenter 

suggested that EPA require the 

following language on PTDs for fuel for 

which the waiver does not apply: 

‘‘Adding ethanol to this product will 

result in a blend higher than E10 which 

will not qualify for the one pound 

waiver.’’ After considering these 

comments, EPA has decided to require 

the additional suggested language on 

PTDs for BOBs designed to take 

advantage of the 1.0 psi RVP allowance. 

This PTD language will serve to remind 

blenders that gasoline-ethanol blends 

containing more than 10 vol % ethanol 

do not receive the 1 psi RVP waiver. 

Furthermore, the PTD language clarifies 

the proper amount of ethanol with 

which the associated fuel may be 

blended. EPA believes that this 

additional PTD language will help 

prevent downstream violations of the 

RVP requirements for E15 and other 

fuels. 

In conclusion, for PTDs for gasoline or 

BOBs up to and including the point of 

ethanol addition, we are requiring the 

following language: ‘‘Suitable for 

blending with ethanol at a concentration 

up to 15 vol % ethanol’’ or, in the case 

of a BOB designed to take advantage of 

the 1.0 psi allowance for E10 in 40 CFR 

80.27(d)(2): 


jlentini on DSK4TPTVN1PROD with RULES2
44420 Federal Register / Vol. 76, No. 142 / Monday, July 25, 2011 / Rules and Regulations 

15See 75 FR 68054–68056. 

‘‘Suitable for the special RVP 

provisions for ethanol blends that 

contain between 9 and 10 vol % 

ethanol.’’ 

‘‘The RVP of this blendstock/gasoline 

for oxygenate blending does not exceed 

[Fill in appropriate value] psi.’’ 

‘‘The use of this gasoline to 

manufacture a gasoline-ethanol blend 

containing anything other than between 

9 and 10 vol % ethanol may cause a 

summertime RVP violation.’’ 

3. General PTD Requirements 

We proposed several general PTD 

requirements so that the specific 

information discussed above is useful to 

the various parties involved in fuel 

production, distribution and marketing. 

Specifically, we proposed that on each 

occasion when any person transfers 

custody and/or ownership of any 

gasoline or gasoline BOB, the transferor 

would be required to provide the 

transferee with an appropriate PTD 

identifying the gasoline/blendstock and 

its characteristics (as defined below), as 

well as such general information as the 

names and addresses of the transferor 

and transferee, the volume of product 

being transferred, the location of the 

product on the date of transfer, and 

other specific information. We proposed 

that all parties be required to retain 

PTDs for a period of not less than five 

years and provide them to EPA upon 

request. 

We also proposed that PTDs be 

required to be used by all parties in the 

fuel distribution chain down to the 

point where the product is sold, 

dispensed, or otherwise made available 

to the ultimate consumer. We proposed 

that PTDs would be required to travel in 

some manner (paper or electronically) 

with the volume of blendstock or fuel 

being transferred. Additionally, we 

proposed that product codes could be 

used to convey the information required 

as long as the codes are clearly 

understood by each transferee, but that 

the full proposed text would need to be 

included on the PTD for transfers to 

truck carriers, retailers, or wholesale 

purchaser consumers. 

We received comments indicating that 

space is limited on the physical PTDs, 

and that EPA should allow for the use 

of abbreviations and the printing of text 

on the back of the PTD, provided a clear 

reference to the back is made on the 

front. While EPA does require certain 

language to be included on PTDs, we 

generally do not specify the form that 

the PTD must take. We agree that 

printing on the back of a PTD is 

appropriate, provided all the required 

language is included on the PTD and a 

clear reference to the printing on the 

back is made on the front of the PTD. 

Therefore, EPA is allowing parties to 

print required language on the back of 

the PTD, provided there is a clear 

reference on the front. The commenter 

also suggests the use of ‘‘%’’ in place of 

‘‘percent’’ and ‘‘vol’’ in the place of 

‘‘volume.’’ EPA agrees that the use of 

these particular abbreviations is 

reasonable as they are generally 

understood by industry, and is allowing 

for the use of ‘‘%’’ in place of ‘‘percent’’ 

and ‘‘vol’’ in the place of ‘‘volume.’’ 

Finally, we received comments stating 

that, if product codes can be used on 

PTDs as proposed by EPA, EPA should 

also require a product code key on the 

PTD, as the use of product codes in the 

current distribution chain has created 

confusion. EPA believes that the 

limitations proposed for the use of 

product codes are sufficient to prevent 

confusion, as those parties who might 

be confused by the use of product codes 

will not receive PTDs that contain them. 

Specifically, the proposed requirement 

stipulated that product codes may not 

be included on PTDs for transfers to 

truck carriers, retailers, or wholesale 

purchaser consumers, since these 

parties are more likely to be unfamiliar 

with the meaning of product codes. 

Therefore, EPA is allowing for the use 

of product codes on the PTD provided 

the codes are clearly understood by each 

transferee, and is requiring that the full 

proposed text be included on the PTD 

for transfers to truck carriers, retailers, 

or wholesale purchaser consumers. 

Although EPA is not requiring a product 

code key on PTDs, parties are 

encouraged to include them whenever it 

would be useful to others in 

understanding product codes 

downstream in the distribution chain. 

The final rule makes the PTD 

requirements applicable beginning 

November 1, 2011, to allow sufficient 

time for all the relevant parties in the 

fuel distribution chain to comply. 

Businesses wishing to begin marketing 

E15 prior to that date may do so by 

explaining in the plan required by the 

E15 partial waiver conditions how the 

PTD requirements of the partial waivers 

will be addressed. (As discussed in a 

later section of this notice, businesses 

that introduce E15 into commerce do so 

under the E15 partial waivers and must 

comply with the partial waiver 

conditions. Today’s rule will facilitate 

compliance with some conditions, but 

do not supplant them.) Under the 

waivers, plans must be submitted to 

EPA to address the waivers’ misfueling 

mitigation conditions, which include 

PTD and survey requirements. Prior to 

the effective date for compliance with 

the PTD requirements of today’s rule, 

such a plan should describe how PTDs 

for gasoline, blendstocks or gasolineethanol blends would be utilized by the 

various parties involved in marketing 

E15 before the compliance date for 

today’s PTD regulations. Such a plan 

could follow the PTD approach 

finalized in today’s rule to help ensure 

that appropriate labeling of pumps will 

occur and that compliant fuel will be 

dispensed. In this way, a plan for the 

introduction of E15 may be 

implemented prior to the compliance 

date for PTDs as specified in today’s 

rule. 

D. Ongoing Implementation Survey 

Consistent with the misfueling 

mitigation conditions of the E15 partial 

waivers, EPA proposed that the parties 

involved in making, distributing and 

selling E15 be responsible for 

conducting an ongoing survey of the 

implementation of the labeling, ethanol 

content and RVP requirements for 

E15.15 As we explained, the purpose of 

the survey program is to help ensure 

that fuel pump labeling requirements 

are being met at retail stations or 

wholesale purchaser-consumer 

facilities, that the appropriate level of 

ethanol content is being properly 

blended and documented in fuel 

shipments, and that the RVP limitation 

of the E15 partial waivers is being met. 

The survey would also deter violations 

of the ethanol content, labeling and RVP 

requirements. 

EPA proposed to provide responsible 

parties with the flexibility to conduct 

surveys that reflected the geographical 

scope of their plans for E15 distribution 

and sale. Survey Option 1 would allow 

an individual or group of gasoline 

producer(s)/importer(s), ethanol 

producer(s)/importer(s), and/or 

oxygenate blender(s) to conduct a local 

or regional survey if their E15 business 

plans are limited in geographical scope. 

Survey Option 2 would allow 

responsible parties to conduct a 

nationwide survey, which would likely 

become the most efficient option as 

businesses decide to sell E15 in more 

parts of the country. EPA explained that 

the flexibility afforded by these two 

options would be appropriate given the 

likelihood that E15 will gradually 

expand into the marketplace. Based on 

the history of the transition to E10, we 

expect that sale of E15 will initially 

begin in a relatively small number of 

retail stations in a few geographic areas. 

In that case, it may make sense for 

responsible parties to comply with 

survey requirements via Survey Option 

1 to limit costs. If E15 expands beyond 


jlentini on DSK4TPTVN1PROD with RULES2
Federal Register / Vol. 76, No. 142 / Monday, July 25, 2011 / Rules and Regulations 44421 

16Under the final rule, any oxygenate blender 

that blends a gasoline that contains greater than 10 

vol% and less than or equal to 15 vol% ethanol is 

responsible for satisfying the survey program 

requirements along with the gasoline and ethanol 

producers/importers that manufacture, introduce 

into commerce, sell or offer for sale E15, or base 

gasoline, BOB, or ethanol that is intended for use 

in the manufacture of E15. To help blenders be 

aware of those gasoline and ethanol producers/ 

importers, today’s regulations provide that a 

gasoline producer/importer intends a base gasoline 

or a BOB for use in manufacturing E15 if a 

producer/importer amends its registration to 

include E15 under 40 CFR 79 or designates that 

their base gasoline or BOB may be suitable for the 

addition of up to 15 vol% ethanol in the PTDs 

accompanying the fuel or blendstock (see 

discussion of PTD requirements in Section III.B.). 

In addition, under the regulations, any ethanol 

producer/importer that sends ethanol into the 

marketplace is assumed to intend that the ethanol 

may be used to manufacture E15 unless the ethanol 

producer/importer demonstrates (e.g., through 

contracts) that its ethanol is not for use in the 

manufacture of E15. 

a few areas, Survey Option 2 may 

become more cost-effective. The parties 

involved in selling E15 can thus decide 

which survey option makes the most 

sense for their circumstances. 

1. Proposed Approaches and 

Consideration of Comments 

a. General Survey Comments 

In the NPRM, we proposed that 

ethanol producers/importers, gasoline 

producers/importers, and oxygenate 

blenders involved in introducing E15 

into the market be responsible for 

carrying out the proposed survey 

provisions. Several commenters stated 

that it would make little sense to 

include ethanol or gasoline producers/ 

importers as required participants in the 

survey given their lack of direct control 

over relevant regulated activities (e.g. 

proper labeling at a retail station or 

blending too much ethanol into 

gasoline). These commenters also stated 

that the proposal would unnecessarily 

and inappropriately shift EPA’s 

compliance and enforcement obligations 

onto industry, and that EPA should 

fund and conduct the survey itself. 

Some commenters specifically argued 

that the sole responsibility of complying 

with survey requirements should be on 

ethanol blenders and marketers that 

choose to blend and market E15. Some 

commenters also stated that unlike the 

RFG and ULSD survey programs, which 

allow responsible parties to reduce 

compliance costs and/or help establish 

alternative affirmative defenses to fuel 

standard violations, the E15 survey 

program provides no benefits to the 

responsible parties and may add an 

additional level of complexity that 

would hinder the introduction of E15 

into commerce. 

When EPA granted the partial waivers 

allowing E15 to be introduced into 

commerce for MY2001 and newer lightduty motor vehicles, it placed a survey 

requirement on the fuel and fuel 

additive manufacturers (i.e. gasoline 

manufacturers/importers, ethanol 

producers/importers, and oxygenate 

blenders) that introduce E15 into 

commerce as a waiver condition in 

order to mitigate misfueling. Since fuel 

and fuel additive manufacturers are the 

parties that are subject to the CAA 

section 211(f)(4) prohibition that was 

partially waived for E15, they are the 

parties that, under the partial waivers of 

the prohibition, bear the obligation to 

introduce E15 in a manner that avoids 

misfueling if they choose to make use of 

the waivers. For a similar reason, to 

minimize the misfueling that might 

result from the introduction of E15 into 

commerce for use by some vehicles but 

not other vehicles, EPA proposed that 

these parties be subject to the survey 

requirements under the misfueling 

mitigation regulations. This aspect of 

the proposal also ensures that 

compliance with the survey 

requirements of the rule (at 40 CFR 

80.1502) would help satisfy the survey 

conditions of the partial waiver 

decision. 

After considering the public 

comments, we have concluded that it is 

appropriate for the parties involved in 

making and selling E15 to be 

responsible for conducting surveys that 

assess implementation of the E15 partial 

waiver conditions related to misfueling 

mitigation. The partial waivers allow 

businesses to introduce E15 into 

commerce for use in MY2001 and newer 

motor vehicles. To the extent businesses 

desire to avail themselves of the 

opportunity to make and sell E15, they 

should also bear the cost of monitoring 

compliance with misfueling mitigation 

adopted in today’s action. EPA has 

required regulated parties to conduct 

surveys in the RFG and ULSD programs 

if they choose to take advantage of 

regulatory provisions that provide 

greater compliance flexibility made 

possible by the surveys. For E15, EPA 

has granted partial waivers that make it 

necessary for those who take advantage 

of the waivers to take certain steps to 

mitigate misfueling and limit RVP and 

thereby avoid the emission increases 

and standard exceedances that would 

otherwise result. Although the case for 

surveys in the RFG, ULSD and E15 

contexts is not entirely the same, the 

common, compelling thread is that 

when regulated parties seek 

opportunities that may heighten the risk 

of emission increases, they should be 

responsible for taking steps to offset or 

minimize that risk. In all three cases, 

surveys are an effective means of 

reducing risk—and at relatively low 

cost. Moreover, complying with survey 

requirements will help responsible 

parties satisfy waiver conditions and 

introduce E15 into commerce, and will 

also help establish an affirmative 

defense to violations found downstream 

for upstream parties. For these reasons, 

EPA is finalizing the list of responsible 

parties as proposed.16

EPA also received comments that it 

should make survey plans and results 

available to the public. EPA will make 

plans and results available in the same 

manner as it has made plans and data 

from both the RFG and ULSD survey 

programs available to the public. For 

example, EPA has provided the Clean 

Diesel Fuel Alliance (CDFA) with 

quarterly summary data of the 

performance of the ULSD survey 

program for publication on the public 

CDFA Web site. EPA is committed to 

providing timely data to the public and 

will disseminate E15 survey data 

through avenues similar to those 

utilized in previous survey programs. 

Some commenters suggested that EPA 

should require that surveys include 

visual monitoring of pumps in order to 

observe and record customer behavior to 

determine the rate of actual misfueling. 

Other commenters suggested that EPA 

should conduct its own survey to 

monitor actual misfueling rates at retail 

stations. EPA does not believe that it is 

necessary to require that surveys 

include visual monitoring at this time. 

As the transition to E15 occurs, we plan 

to work with industry, state, 

environmental and consumer 

stakeholders to track developments and 

evaluate the effectiveness of the 

required misfueling mitigation 

measures, including the prohibition 

against misfueling with E15. Also, as 

noted previously, we are working with 

ethanol and other stakeholders to help 

establish a public education and 

outreach campaign to assist fuel 

producers, distributors, retailers and 

consumers in understanding how E15 

may be made, distributed, sold and 

used. That effort can help identify and 

resolve misfueling issues that may 

develop as E15 moves into the 

marketplace. 

EPA proposed to include the testing 

of fuel samples for RVP to ensure that 

E15 being sold at retail stations was in 

compliance with the RVP condition of 

the E15 waiver and that an E10 fuel that 

used the 1.0 psi RVP waiver under CAA 

section 211(h) was not commingled 

with E15, which must have a lower RVP 

in the summertime. EPA received a 


jlentini on DSK4TPTVN1PROD with RULES2
44422 Federal Register / Vol. 76, No. 142 / Monday, July 25, 2011 / Rules and Regulations 

number of comments both in favor of 

and opposed to including RVP testing. 

Those who were opposed argued that 

determining RVP levels of E15 and other 

fuels was unrelated to misfueling, that 

existing RVP controls have proven 

effective over time, and that it was up 

to EPA to enforce RVP requirements 

with the aid of states without imposing 

additional costs on industry. 

EPA continues to believe that it is 

necessary and appropriate for the 

surveys to measure the RVP of fuel 

samples from pumps labeled as 

dispensing E15. For E15 to be lawfully 

sold under the partial waivers, it must 

have the proper ethanol content, not 

exceed 9.0 psi RVP in the summertime, 

and be dispensed from properly labeled 

pumps. It is thus appropriate for the 

surveys to measure the RVP of fuel 

labeled as E15 in order to determine 

whether E15 is being properly blended 

and sold under the partial waivers. 

However, EPA believes that the 

comments opposing RVP sampling for 

fuels being dispensed from pumps not 

labeled for E15 have merit. Since a fuel 

with an ethanol content above 10 vol% 

up to 15 vol% that is dispensed from a 

pump lacking the E15 label is not 

covered by the partial waivers, its sale 

violates the misfueling prohibition 

established in today’s rule, regardless of 

its RVP. Therefore, requiring that 

surveys sample the RVP of such a fuel 

is not necessary to determine that its 

sale is unlawful. We also believe that 

the current controls on summertime 

RVP established in 40 CFR 80.27 

adequately ensure that E0 and E10 meet 

the applicable RVP standards. We are 

therefore limiting the requirement to 

measure RVP to fuels being sold and 

labeled as E15. 

One commenter asked that the survey 

be fair and balanced and not place any 

undue burdens on small petroleum 

marketers and retailers. EPA is 

committed to not placing undue 

burdens on small businesses. Retailers 

do not have any obligations to conduct 

a survey; however, they are responsible 

for complying with E15 labeling 

requirements if they choose to sell E15, 

and they are subject to the prohibition 

against misfueling with E15. EPA 

believes that by allowing two survey 

options, it is providing marketers and 

other small businesses flexibility to 

determine which survey method is most 

practical if they choose to sell E15. 

b. Survey Option 1 

EPA received many comments about 

Survey Option 1. Some commenters 

argued that Survey Option 1 would not 

provide the Agency with accurate 

information to the degree that a 

nationwide survey would, because a 

geographically limited survey would not 

necessarily detect E15 sent beyond the 

areas covered by the survey. Some 

commenters urged that we eliminate 

Option 1 altogether. These commenters 

pointed out that the national ULSD and 

RFG survey programs have been 

effective and that there was no reason to 

deviate from such an approach for E15. 

The Agency continues to believe that 

Survey Option 1 is appropriate to 

provide for parties that choose to 

manufacture, market, or sell E15. Unlike 

the ULSD and RFG programs, which 

regulated the content of fuels that were 

already distributed and sold, E15 will 

likely enter the market first in a few 

areas of country and then gradually 

expand to other areas over time. Under 

these circumstances, it is appropriate to 

provide businesses that decide to sell 

E15 in a limited area with the option of 

developing a relatively localized survey. 

EPA believes that Survey Option 1 can 

provide the same rigor as a nationwide 

survey for the areas potentially affected 

by business decisions to sell E15 in a 

limited area. Survey Option 1, as 

finalized today, includes survey 

requirements (e.g. sampling and testing 

methods) similar to those applicable to 

the national survey. Also, to be 

approved, surveys under Survey Option 

1 will have to take a robust approach to 

surveying affected areas considering the 

fuel distribution network for those 

areas. EPA provides a similar 

opportunity to conduct localized or 

individual surveys under the RFG and 

ULSD survey programs, and we believe 

that it is appropriate to provide parties 

making, marketing and selling E15 the 

opportunity to choose which approach 

is most economical and effective in 

ensuring proper ethanol content and 

labeling downstream. We are also 

clarifying the language at § 80.1502(a) to 

reflect that a survey program conducted 

under Survey Option 1 must adhere to 

requirements for robustness similar to 

those applicable to a national survey. 

Other commenters argued that Survey 

Option 1 is overly broad and not 

practical. These commenters stated that 

as written the proposed regulations 

implied that all gasoline refiners/ 

importers and ethanol producers/ 

importers would have to survey each 

area their products could enter even 

though they would have no idea 

whether their products are being used to 

blend E15. In response to these 

comments, it is important to clarify that 

the obligation to conduct a survey 

applies only to those parties that decide 

to make, distribute or sell E15 or their 

gasoline or ethanol for use in E15. Any 

party that chooses not to manufacture, 

market, and/or sell E15 does not need to 

comply with the rule’s survey 

requirements. Any party that chooses to 

market ethanol, gasoline, or gasoline 

blend stock as appropriate for use in 

E15 is subject to the survey requirement. 

If a party wants to use Survey Option 1, 

the party will need to limit where its 

fuel or fuel additive is sold and 

distributed. If a party does not want to 

limit the distribution of its product, 

then Option 1 would likely not be 

appropriate for that party. The choice is 

up to each party considering how the 

party decides to market their fuel or fuel 

additive—with or without any 

limitation on its eventual use 

downstream. There are many benefits 

associated with deciding to market a 

fuel or fuel additive without limitation, 

but a companion responsibility is to 

then develop a survey program that is 

appropriate to the distribution of the 

product. 

One commenter suggested that a 

survey of five percent of the stations 

that sold a responsible party’s fuel in a 

prior year be deemed sufficiently 

representative. This commenter 

suggested that for the first year of 

sampling under Option 1, the 

responsible party should conduct a 

survey that represents the higher of 

either: (1) Five percent of the 

responsible party’s estimate of the 

number of stations that will sell the 

responsible party’s E15 during the first 

survey year; or (2) five percent of the 

stations where the responsible party 

sold fuels containing ethanol the prior 

year. This commenter pointed out that 

five percent was approximately the 

number of stations EPA proposed be 

surveyed annually under Survey Option 

2. 

EPA does not agree with this 

approach to determining the minimum 

number of stations to be sampled. The 

Agency chose the number of samples 

required under Survey Option 2 using 

an appropriate statistical approach 

based on the previous performance of 

the similar ULSD survey program. The 

number of samples required under that 

program, and proposed for Survey 

Option 2, can fluctuate year to year 

since the number of samples is based in 

part on noncompliance rates; therefore, 

more than five percent of retail stations 

may need to be sampled in a particular 

survey year. Furthermore, the number of 

samples for a survey conducted under 

Survey Option 1 can vary considerably 

depending on the size and scope of the 

individual survey plan. Since survey 

plans should use statistical means to 

determine the appropriate number of 

samples needed to comply with the 

general survey requirements being 


jlentini on DSK4TPTVN1PROD with RULES2
Federal Register / Vol. 76, No. 142 / Monday, July 25, 2011 / Rules and Regulations 44423 

17Contracting and paying for a survey also mark 

commencement of a survey for related regulatory 

purposes. 18See 40 CFR 80.613(e)(10)(v) and 80.613(e)(12). 19These provisions apply to surveys approved 

under options 1 or 2. 

adopted, the Agency believes it would 

be inappropriate to specify a minimum 

number of samples or percentage of 

stations to be sampled. The Agency 

believes that the proposed approach to 

determining sample size provides 

appropriate flexibility to responsible 

parties. Therefore, EPA is finalizing 

Survey Option 1 as proposed. 

c. Survey Option 2 

EPA received many comments about 

most aspects of proposed Survey Option 

2, the nationwide ethanol content and 

E15 labeling survey. Several 

commenters stated that the proposed 

requirements that a fuel sample be 

shipped on the same day it is collected, 

and that the sample be analyzed for 

ethanol content within 24 hours, are 

unnecessary to ensure program 

integrity, are not practically feasible, 

and create unnecessary additional costs. 

We believe that these comments have 

merit. We chose 24 hours to be 

consistent with the fuel sample 

transport and analysis deadlines 

required in the ULSD and RFG survey 

programs. However, commenters noted 

that the independent survey association 

that has conducted the ULSD and RFG 

survey programs for the past 15 years 

has shown that it is not practical to find 

a shipping carrier that will consistently 

meet the required 24-hour schedule. 

One commenter suggested that EPA 

allow the use of ground shipment 

service, which takes in general 1–5 days 

to be received at the lab. This 

commenter also pointed out that for 

testing samples, due to the volume of 

samples that will need to be analyzed, 

72 hours would be a best case scenario, 

with 10–12 business days being more 

realistic. 

EPA believes that it should impose 

practical, cost-effective requirements 

regarding the shipping and testing of 

fuel samples collected as part of the 

surveys. Therefore, EPA will require 

that samples be shipped from the retail 

station to the laboratory for analysis 

within five days. Additionally, EPA is 

requiring that samples be analyzed and 

reported to EPA for both oxygen content 

and RVP, if applicable, within 10 days 

of receipt at the laboratory. These 

changes will reduce the costs of 

conducting the survey. However, EPA is 

not changing ULSD and RFG survey 

requirements at this time since we did 

not propose to make changes to those 

survey programs in the NPRM. EPA may 

adjust the time allotted for shipment 

and analysis of fuel samples for these 

programs in an upcoming rulemaking. 

EPA also received comments 

suggesting that surveys begin only after 

E15 has achieved a certain level of 

market penetration considering data 

from the previous year. One commenter 

specifically suggested that the survey 

year begin on July 1 instead of January 

1 of the year E15 is introduced into 

commerce. EPA does not believe that it 

is appropriate for surveys to begin only 

after E15 has been on the market. The 

purpose of the survey is to help ensure 

that E15 is being properly blended and 

labeled so that misfueling is minimized. 

That purpose needs to be served from 

the time E15 first enters the market. 

Also, we do not believe it is feasible to 

determine whether an area has exceeded 

any level of market penetration without 

accurate survey data upon which to base 

that determination. Additionally, the 

misfueling waiver conditions require 

that a survey plan be approved by EPA 

and that implementation of the plan 

begin before E15 may be introduced into 

commerce. EPA believes that it is best 

to keep the final survey requirements 

consistent with the misfueling 

conditions outlined in its partial waiver 

decisions. 

EPA does not agree that changing the 

start date of the survey from January 1 

to July 1 would be beneficial since, if 

E15 actually enters the market earlier in 

the year, the later start date would delay 

delivery of information needed on a 

more real-time basis to minimize 

labeling and other problems that could 

lead to misfueling. The survey programs 

for the other fuel programs have been 

conducted with a January 1 start date 

and for a normal calendar year, and 

there is no reason to believe that an E15 

survey could not also be conducted on 

the same schedule. Furthermore, the 

existing and proposed survey programs 

break surveys down into four quarterly 

surveys that ensure that EPA is 

receiving more real-time information on 

a regular basis that is not tied to any 

particular start date. Therefore, EPA is 

finalizing the survey timing 

requirements as proposed. 

EPA proposed that a nationwide 

ethanol content and E15 labeling survey 

conducted under Survey Option 2 have 

a minimum of 7,500 samples annually 

and that the next year’s survey sample 

size be determined by the equation 

found at 40 CFR 80.1502 based on the 

previous year’s non-compliance rates. 

EPA also sought comment on whether it 

should allow a smaller number of 

samples in the first years of the 

nationwide survey in order to reduce 

burden. EPA received comments that 

suggested that EPA should require fewer 

or more samples than proposed. For 

example, one commenter suggested that 

EPA sample 20 percent of the retail 

stations nationwide. Another 

commenter suggested a reduction in the 

number of samples in the first year since 

E15 will not likely be sold at many retail 

stations the first year it is introduced 

into commerce. 

The sample size methodology and 

minimum sample size EPA proposed 

were based on statistical principles and 

past survey experience with similar 

programs. Reducing the sample size 

even in the first year would compromise 

the statistical rigor, and therefore the 

effectiveness, of the program. If, as 

expected, E15 is initially marketed and 

sold in a limited geographic area, 

responsible parties that wish to market 

and sell E15 could take advantage of 

Survey Option 1 to reduce the required 

number of samples. On the other hand, 

increasing the minimum number of 

samples does not provide much more 

information given the large number of 

samples already required and the 

substantial increase in costs that a larger 

number of samples would entail, which 

would pose an unnecessary burden on 

responsible parties. However, as part of 

the survey plan approval process, EPA 

will consider whether a higher 

minimum sample size may be 

methodologically necessary under some 

circumstances to maintain the rigor of a 

nationwide survey program. In the 

regulations issued today, EPA is 

finalizing the sample size methodology 

and minimum sample size of 7,500 

samples per year as proposed. 

One commenter questioned whether 

proof that a surveyor had been paid 

must be sent to EPA by the proposed 

deadline since EPA could bring an 

enforcement action under the Clean Air 

Act if the survey was not conducted 

according to the approved plan. The 

Agency believes that the requirements 

that the survey plan be contracted and 

paid for in advance are important to 

ensuring that the required surveys will 

occur.17 EPA has made this a 

requirement of both the RFG and ULSD 

survey programs, and the cost of 

providing proof of payment to the 

Agency is minimal. 

EPA is making changes to the survey 

provision governing revoking approval 

of a survey plan to more closely 

conform to the method provided for in 

the ULSD regulations 18 of ensuring that 

survey plans serve their intended 

purpose and that this goal is fulfilled 

until the expiration of the plan.19 Given 

the importance of a robust survey for 

effective implementation of ethanol 

content, labeling and related 


jlentini on DSK4TPTVN1PROD with RULES2
44424 Federal Register / Vol. 76, No. 142 / Monday, July 25, 2011 / Rules and Regulations 

20For example, a plan implemented by a survey 

association that is misleadingly described in the 

plan as independent of and free from obligation to 

ethanol blenders and producers, gasoline refiners 

and ethanol and gasoline importers or their 

employees, but which is in fact not independent of 

or free from such obligation, yields survey results 

that are inherently unreliable. Such a plan may be 

voided ab initio. 

requirements, if experience with an 

approved survey plan proves that it is 

inadequate in practice, EPA may revoke 

it. Before deciding whether to revoke a 

plan, EPA will generally work with the 

submitter to make changes necessary to 

remedy the plan’s flaws. If satisfactory 

amendments cannot be achieved, EPA 

may decide to revoke its approval of the 

survey plan. In the event a survey plan 

is revoked, distribution of the E15 

authorized for introduction into 

commerce under the E15 partial waivers 

based, in part, on the survey plan would 

have to cease until such time as a 

replacement survey is approved. 

To ensure that the E15 survey 

provisions create incentives similar to 

those created by the ULSD program for 

developing and implementing effective 

survey plans, the regulations being 

promulgated today include a provision 

for voiding a survey plan ab initio under 

appropriate circumstances. If EPA 

determines that approval of a survey 

plan was based on false, misleading or 

incomplete information, or if there is a 

failure to fulfill or cause to be fulfilled 

any requirements of the survey, EPA 

may void ab initio the approved survey 

plan. EPA’s years of experience in 

approving applications that authorize 

distribution of motor vehicles, nonroad 

vehicles and engines, and fuels based on 

compliance with applicable Agency 

regulations confirm the importance of 

basing approval determinations on 

information that is true, clearly stated 

and comprehensive, and on ensuring 

implementation of the terms of the 

application. Given the importance of 

E15 surveys to effective implementation 

of E15 misfueling mitigation measures, 

providing that survey plans may be 

voided ab initio under appropriate 

circumstances will help ensure that 

plans are properly developed, supported 

and implemented. E15 distributed based 

on a plan whose approval was secured 

with false, misleading or incomplete 

information, or a plan whose 

requirements are not fulfilled, was not 

distributed in compliance with the 

conditions of the waiver. 

In considering whether it is 

appropriate to void a survey plan ab 

initio, EPA will review the information 

that was submitted in support of the 

plan. EPA will regard information that 

is not true to be false information; 

information that, while true, may lead a 

reasonable person to an incorrect 

conclusion to be misleading 

information; 20 and information that is 

missing elements necessary for a full 

understanding of the information that 

was presented to be incomplete 

information. Survey plans with these 

kinds of information flaws are 

inherently unreliable, and effectively 

prevent EPA from conducting a 

meaningful review of the survey plan 

and from basing its decision to approve 

the plan on complete and accurate 

information. Thus, when EPA discovers 

that its approval of a survey plan was 

based on false, misleading or 

incomplete information, EPA may 

decide to treat its approval as never 

having been granted. In addition, as 

discussed above, EPA is requiring proof 

of a valid contract for conducting the 

survey and payment for the survey to be 

provided to EPA to help ensure that the 

survey is implemented. If, despite the 

fact that EPA receives this proof, the 

requirements of a survey plan are not 

fulfilled, EPA may treat the survey plan 

as never having been granted by voiding 

it ab initio. Distribution of E15 under 

any survey plan that is voided ab initio 

would have to cease until such time as 

a replacement survey is approved, and 

E15 that was distributed based on that 

plan will be deemed to have been 

distributed in violation of 40 CFR 

80.1504(a)(2). 

2. Final Survey Requirements 

In today’s rule, EPA is finalizing both 

survey options. After carefully 

considering all of the comments 

received pertaining to the survey 

requirements, EPA is finalizing Survey 

Option 1 as proposed. In additional, 

EPA is finalizing most elements of 

Survey Option 2 as proposed. However, 

Survey Option 2 as finalized does not 

require RVP testing of fuel samples from 

pumps not labeled for E15, and provides 

more time for the shipping and testing 

of samples. Finally, EPA is revising 

provisions to permit both revoking and 

voiding ab initio approval of survey 

plans in appropriate circumstances. 

E. Program Outreach 

In the NPRM we pointed out that a 

public education and outreach program 

for E15 will be important to help 

mitigate misfueling that could result in 

increased emissions and vehicle or 

engine damage. We also noted that the 

industry-lead outreach campaign for the 

ULSD program helped successfully 

transition the nation to ULSD while 

mitigating most misfueling. 

Almost all commenters agreed that an 

effective outreach program would be 

essential to mitigate E15 misfueling, and 

some cited the ULSD outreach effort as 

an example of how EPA and affected 

stakeholders could work together to aid 

in the transition to E15 and minimize 

misfueling. Recommendations included 

a dedicated Web site, use of EPA’s 

online Green Vehicle Guide, use of 

other media, pamphlets at retail outlets, 

and consumer interaction via keypad 

entry at the pump. There were also 

comments that EPA should establish 

and lead the outreach program. 

EPA agrees that public outreach and 

consumer education are key to 

effectively mitigating misfueling. 

However, we believe that industry 

needs to take the lead in such efforts. 

Our recent experience with the 

transition to ULSD shows that a 

stakeholder-led outreach campaign can 

work synergistically with labeling 

requirements and provide another 

means of providing important 

information to everyone involved in fuel 

production, distribution and use. The 

ULSD outreach program also shows that 

industry is better situated to coordinate 

with the parties involved in the 

production, transport, and marketing of 

E15. More importantly, businesses 

interact with consumers (via 

advertising, a Web site, pamphlets, etc.) 

about the fuels they sell, and those that 

decide to sell E15 will need to make 

decisions about how to promote E15 in 

a manner that also minimizes 

misfueling. As noted previously, the 

introduction of E15 into the market is 

likely to start in a limited number of 

areas and grow over time. In these 

circumstances it is even more 

appropriate that the parties who choose 

to market this product take the lead in 

outreach and consumer education in the 

areas the product is introduced. 

In light of these considerations, EPA 

believes that primary responsibility for 

public outreach and education about 

E15 appropriately rests with the 

businesses that decide to make and sell 

E15. As we did for the ULSD program, 

we intend to actively assist in the 

development and implementation of an 

outreach and education campaign for 

E15 when it enters the market. We are 

already in the process of working with 

ethanol and other stakeholders to help 

establish such a campaign. As that 

process moves forward, we will help 

ensure that a broad range of 

stakeholders are kept informed so they 

may become involved as they see fit. 

F. Other Misfueling Mitigation Measures 

In the proposed rule, we explained 

our expectation that the misfueling 


jlentini on DSK4TPTVN1PROD with RULES2
Federal Register / Vol. 76, No. 142 / Monday, July 25, 2011 / Rules and Regulations 44425 

21 ‘‘Evaluation of Measures to Mitigate Misfueling 

of Mid- to High-Ethanol Blend Fuels at Fuel 

Dispensing Facilities,’’ American Petroleum 

Institute, EPA Docket # EPA–HQ–OAR–2010–0448. 

mitigation provisions we were 

proposing would adequately address 

misfueling mitigation concerns. We 

based our expectation on the relatively 

recent transition to ULSD when similar 

measures were employed to help 

minimize misfueling of new vehicles 

and engines that were designed and 

built to achieve stringent emission 

standards when operated on ULSD. 

However, we also recognized that there 

could be other means for addressing 

misfueling, as suggested by API in its 

misfueling mitigation measures scoping 

study.21 In the NPRM, we discussed 

several suggestions covered in API’s 

study and sought comment on those and 

any other measures that industry or 

other stakeholders considered necessary 

or helpful to mitigate misfueling with 

E15. 

We received many comments 

recommending that EPA implement or 

study one or more mitigation measures 

in addition to those we proposed. This 

section contains a brief summary of 

major comments and our responses to 

those comments. It begins with a 

discussion of the general issue of 

whether the proposed misfueling 

mitigation measures are sufficient to 

mitigate misfueling, and then considers 

several specific measures suggested by 

commenters for inclusion in today’s 

final rule. Responses to comments not 

addressed in this section can be found 

in the ‘‘E15 Misfueling Mitigation 

Measures Response to Public 

Comments.’’ 

1. Need for More Mitigation Measures 

Many commenters expressed strong 

concern that the proposed suite of 

misfueling mitigation measures would 

not be sufficient to minimize potential 

misfueling with E15. They took issue 

with EPA’s comparison of the potential 

for misfueling with E15 to the potential 

for misfueling under EPA’s ULSD 

program, and contended that the more 

instructive comparison is to the 

transition to unleaded fuel, where EPA 

required additional mitigation 

measures. 

The commenters generally argued that 

the transition to ULSD did not provide 

the best or most appropriate point of 

reference for designing a misfueling 

mitigation program for several reasons. 

First, EPA regulations required that 

ULSD replace low sulfur diesel (LSD) 

fuel over several years, whereas, 

according to the commenters, E0, E10, 

and E15 will coexist in the marketplace 

for an indefinite period, increasing the 

likelihood of misfueling. Second, the 

commenters noted that the potential 

harm from LSD was to newer engines 

equipped with advanced emissions 

control devices, while the potential 

harm from E15 is to older vehicles and 

engines. For ULSD, they noted there 

was opportunity for vehicle 

manufacturers to educate new diesel 

vehicle consumers at the time of 

purchase about the risks of misfueling, 

with this information reinforced in the 

owner’s manual and on the vehicles 

themselves. For E15, the commenters 

explained, there is no similar 

opportunity for consumer education. 

While the commenters acknowledged 

that vehicle turnover will decrease the 

number of MY2000 and older light-duty 

motor vehicles in the U.S. vehicle fleet, 

they stated that the rate of vehicle 

turnover is decreasing as vehicle quality 

and durability have improved and will 

take decades to complete. 

Representatives of boat manufacturers 

and owners also noted that many larger 

boats have longer useful lives than 

passenger vehicles. A third reason for 

concern, according to commenters, is 

that E15 may be priced less than E10 or 

E0, adding a cost incentive for 

misfueling. 

Many of these commenters contended 

that the transition to unleaded gasoline 

was at least as relevant to the design of 

E15 misfueling mitigation measures as 

the transition to USLD. (Similar to the 

transition to ULSD, the transition to 

unleaded gasoline occurred as a result 

of new emission standards that required 

new emission control equipment that 

would be irreversibly damaged by lead 

in gasoline.) The commenters noted that 

the measures established to reduce 

misfueling of new motor vehicles with 

leaded gasoline included physical 

constraints—specifically, vehicle fuel 

inlets and gasoline nozzles designed so 

that new vehicles requiring unleaded 

gasoline could only accept nozzles 

dispensing unleaded gasoline. The 

commenters pointed out that even these 

constraints did not prevent all 

misfueling, particularly when leaded 

gasoline was priced less than unleaded 

gasoline. 

After carefully considering these 

comments, EPA continues to believe 

that the comparison to the ULSD 

program is valid and provides an 

appropriate basis for designing the E15 

misfueling mitigation program. LSD and 

ULSD were available in the market at 

the same time for several years, just as 

E15 is expected to be available along 

with E10 and/or E0 for a number of 

years. In the case of both USLD and E15, 

the potential for engine damage and 

associated repair costs exists if 

misfueling occurs. EPA believes that 

consumers have a strong interest in 

avoiding repair and replacement costs, 

whether their vehicles or gasolinepowered equipment are new or old. 

Owners may expect to get less use from 

their older vehicles and equipment, but 

that does not mean that they will put 

their possessions at risk, absent a strong 

price incentive (discussed below). An 

essential element of a misfueling 

mitigation program is alerting 

consumers to that risk. For ULSD, pump 

labeling was important for notifying 

consumers of newer vehicles and 

engines of the need to use ULSD and the 

consequences of misfueling. The E15 

label will serve the same purpose for 

owners of older motor vehicles and 

other products for which E15 is not 

allowed. For ULSD, industry established 

the Clean Diesel Fuel Alliance to 

educate diesel product consumers about 

the importance of avoiding misfueling 

with LSD. EPA is working with E15 

stakeholders to help establish a similar 

public education effort for E15. Overall, 

the transition to USLD posed misfueling 

issues similar to those that will be 

raised by E15’s entry into the market, 

making the misfueling mitigation 

measures employed in the ULSD 

program appropriate models for 

mitigating misfueling with E15. 

Commenters did not provide 

sufficient evidence or rationale to 

persuade us that use of physical 

constraints to prevent misfueling with 

leaded gasoline means that similar, 

physical measures are necessary for E15. 

A key difference between E15 and 

leaded gasoline is that misfueling with 

E15 could result in driveability and 

operability issues with older motor 

vehicles and nonroad equipment, while 

unleaded gasoline did not affect the 

driveability of vehicles designed to run 

on leaded gasoline. The E15 label will 

inform consumers that misfueling with 

E15 may cause damage, and a public 

education effort can reinforce that 

message. Also, consumers today have 

more and easier access to more 

information about how to maintain their 

vehicles for best performance and 

durability. 

Another factor that contributed to 

misfueling with leaded gasoline was the 

perception that the higher octane of 

leaded gasoline, typically 89 anti-knock 

index (AKI) versus 87 AKI for most 

unleaded gasoline, made leaded 

gasoline a better fuel. An even stronger 

factor was price. Leaded gasoline was 

typically five or more cents per gallon 

cheaper than unleaded gasoline, at a 

time when gasoline was less than a 

dollar per gallon. With the perception of 


jlentini on DSK4TPTVN1PROD with RULES2
44426 Federal Register / Vol. 76, No. 142 / Monday, July 25, 2011 / Rules and Regulations 

no harm from misfueling and the loss of 

higher octane, some consumers saw no 

reason to spend the extra money on 

unleaded gasoline. Such is not the case 

for E15. Depending on the availability of 

ethanol, which can vary by season, E15 

could be priced somewhat more or less 

than E0/E10 with a comparable octane. 

Considering the extent that recent 

gasoline prices have fluctuated, it does 

not seem likely that consumers would 

risk damaging their vehicles or 

equipment for small incremental 

savings. Public outreach can also help 

remind consumers of the cost 

consequences of misfueling. 

At the same time, we agree that if E15 

is priced less than E10 or E0, the risk 

of misfueling may increase if consumers 

believe that they can save more money 

by purchasing E15 and do not consider 

or believe the savings are more than 

they would pay to repair or replace their 

vehicles or equipment sooner than 

might otherwise occur. However, it is 

too early to know how E15 will be 

marketed, including how it will be 

priced. EPA will work with stakeholders 

to monitor the transition to E15 and the 

effectiveness of the mitigation measures 

being required by today’s rule. In the 

meantime, it is worth noting that the 

prohibition against misfueling with E15 

is applicable to both fuel providers and 

users. As discussed later in this notice, 

retailers can avoid liability for consumer 

misfueling if they properly label E15 

pumps and can show that they did not 

encourage or otherwise cause 

misfueling. In general, fuel providers are 

encouraged to consider whether their 

particular circumstances would make it 

useful to take additional, tailored steps 

to avoid consumer misfueling. 

In sum, as with the ULSD program, 

we believe that the misfueling measures 

being finalized today for E15 will work 

together so that fuel providers have a 

strong incentive to properly blend and 

label E15 and consumers have a strong 

incentive to avoid misfueling. An 

industry-led public outreach campaign 

can reinforce how and why it is 

important to avoid misfueling. 

In evaluating the need for additional 

mitigation measures, we also considered 

the fact that there is currently 

significant uncertainty about where, 

when and how E15 will enter the 

market. While the partial waiver 

decisions removed one legal barrier to 

introducing E15 into commerce, other 

steps must be taken to address 

additional Federal, State and local 

requirements, including registering the 

fuel as required by the Clean Air Act 

and determining the compatibility of 

fuel storage and dispensing equipment 

under various Federal, State and local 

regulations. Ultimately, businesses must 

decide whether and how to introduce 

E15 into the market. We expect that the 

transition to E15, like the transition to 

E10, will take time and begin in some 

parts of the country before becoming 

broadly available. In the process, 

business decisions will be made about 

how to market E15 (e.g., price of E15, its 

use for a particular grade of gasoline, 

types of pumps used to dispense it) that 

will bear on what, if any, additional 

measures may be useful to mitigate 

misfueling, including the specific 

suggestions assessed below. In light of 

these various considerations, we have 

concluded that it is neither necessary 

nor appropriate to require additional 

misfueling mitigation measures as part 

of today’s final rule. 

As the transition to E15 occurs, we 

plan to work with industry, state, 

environmental and consumer 

stakeholders to track developments and 

evaluate the effectiveness of the 

required misfueling mitigation 

measures. As noted previously, we are 

working with ethanol and other 

stakeholders to help establish a public 

education and outreach campaign to 

assist fuel producers, distributors, 

retailers and consumers in 

understanding how E15 may be made, 

distributed, sold and used. That effort 

can also help identify and resolve 

misfueling issues that may develop as 

E15 moves into the marketplace. In the 

meantime, if fuel providers believe 

additional measures will further reduce 

the risk of misfueling under their 

particular circumstances, they may take 

such actions. For example, retailers that 

serve a significant population of boat or 

small equipment owners may decide it 

is appropriate under their specific 

circumstances to post signs that 

specifically address misfueling of those 

products. By taking additional tailored 

steps, retailers and other fuel providers 

can provide examples of other measures 

that may prove effective in further 

reducing the risk of misfueling. 

2. Specific Suggestions for Additional 

Mitigation Measures 

We examined the feasibility and 

utility of several specific misfueling 

mitigation measures suggested by public 

commenters for adoption in the final 

rule. As described below, each of the 

suggestions presents implementation, 

feasibility or cost issues. There is also 

little empirical data about the relative 

effectiveness of these measures. Given 

the uncertainties about the transition to 

E15 and the need for and effectiveness 

of the suggested measures, we have 

concluded that it is not appropriate to 

require them at this time, although fuel 

providers are encouraged to develop 

and deploy these and other measures as 

they deem appropriate for their 

circumstances. 

a. Distinctive Hand Warmers for E15 

Dispensers 

As discussed in the NPRM, the 

American Petroleum Institute (API) 

study considered the use of different 

colored ‘‘hand warmers’’ or ‘‘nozzle 

grips’’ (the flexible plastic sheath that 

covers the part of the pump nozzle that 

is gripped when dispensing gasoline) to 

distinguish E15 fuel dispensers from 

other fuel dispensers. A number of 

commenters recommended the adoption 

of such hand warmers, suggesting that 

EPA require E15 hand warmers to be a 

uniform and unique color and/or texture 

nationwide to indicate to consumers 

that E15 is different than other gasoline 

and not appropriate for all motor 

vehicles. Some commenters also 

suggested complementary signs to 

highlight the distinctive hand warmer. 

We carefully considered the 

workability and utility of this measure. 

Hand warmers are low cost and are 

replaced periodically, so this option 

could be relatively inexpensive and easy 

to implement. However, this option 

could be challenging to implement for a 

number of other reasons. First, there is 

no industry standard color scheme for 

hand warmers. An assigned color for 

E15 hand warmers could conflict with, 

or be confusing in the context of, retail 

stations’ existing color schemes. To 

address this issue, we considered 

whether to require E15 hand warmers 

with a noticeably different texture or 

bearing the text ‘‘E15.’’ However, there 

is currently no available data for 

determining whether or to what degree 

such differences would be effective in 

drawing consumers’ attention more than 

the required label itself. 

We also identified another 

implementation challenge concerning 

pumps that use a single nozzle to 

dispense multiple grades of gasoline. 

Many existing pumps use a single 

nozzle to dispense multiple grades of 

gasoline, such as regular grade (e.g., 87 

octane), premium grade (e.g., 92 octane), 

and a mid-grade (e.g., 89 octane). 

Consumers push a button to select the 

grade of gasoline desired and then use 

the single nozzle to dispense the fuel 

selected. It is likely that E15 may be 

marketed as one, but not all, grades of 

gasoline, especially in the near term. 

Requiring an E15 hand warmer on the 

nozzle of these pumps could be 

misleading or confusing to consumers if 

the dispenser supplies not only E15 but 

also E10 or E0. 


jlentini on DSK4TPTVN1PROD with RULES2
Federal Register / Vol. 76, No. 142 / Monday, July 25, 2011 / Rules and Regulations 44427 

22 ‘‘Petition for Rulemaking Under the Clean Air 

Act to Require the Continued Availability of 

Gasoline Blends of Less Than or Equal to 10% 

Ethanol,’’ Alexander David Menotti, Kelley Drye & 

Warren LLP on behalf of American Motorcyclist 

Association (AMA), et al., EPA Docket # EPA–HQ– 

OAR–2010–0448. 

23On May 27, 2011, EPA received comments 

opposing the petition from the National Association 

of Convenience Stores and the Society of 

Independent Gasoline Marketers of America. These 

comments are summarized in the Response to 

Comments document located in the public docket. 

In light of these issues and the lack of 

information about the effectiveness of 

uniquely colored or textured hand 

warmers, we have concluded that it is 

not appropriate to require this measure 

in today’s final rule. At the same time, 

we think distinctive hand warmers 

might prove useful in many 

circumstances, and we encourage 

retailers to consider whether their use 

might provide customers with a useful 

visual or textual cue given their stations’ 

pump types, color schemes or other 

relevant attributes. 

b. Keypad/Touch Screen Information/ 

Confirmation 

Some commenters stated that EPA 

should require all fuel pumps 

dispensing E15 to require affirmative 

confirmation from consumers that they 

wish to purchase E15. The commenters 

suggested this could be accomplished 

through a mandatory electronic keypad 

approval (tied to fuel grade selection), in 

which the consumer would need to 

confirm the use of E15 prior to 

purchase. Some commenters argued that 

the sale of E15 should be prohibited 

from pumps that do not have an 

electronic keypad. Commenters favoring 

this measure did not provide specific 

information about how affirmative 

confirmation using electronic keypads 

or touch screens could be implemented. 

EPA agrees that requiring affirmative 

confirmation from consumers before 

they fuel with E15 could help 

consumers avoid misfueling with E15. 

However, based on the limited 

information provided by commenters, it 

does not appear that this measure could 

be implemented using available 

technology or software. The electronic 

keypad used for credit/debit card 

transactions do not generally interface 

with the fuel selector such that the 

pump can be locked if the consumer 

makes an inappropriate selection. 

Providing an interactive process for 

selecting E15 would likely require 

substantial upgrades to the point-of-sale 

system of the dispensers. We have 

therefore decided that available 

information does not support requiring 

this measure at this time. However, 

retailers may develop and implement 

keypad-based methods for providing 

consumers with further information or 

opportunities to make appropriate fuel 

choices. 

c. Radio Frequency Identification (RFID) 

Some commenters suggested the use 

of RFID technology as another 

misfueling mitigation measure. RFID 

technology is already used in fuel 

dispenser activation and purchasing 

systems. For example, one oil company 

uses RFID technology in a tag or card 

that provides a ‘‘contactless’’ payment 

system that provides members with a 

quick way to pay for purchases at 

participating stations. The tag has a 

built-in chip and radio frequency 

antenna that allows it to communicate 

with readers at gasoline dispensers. 

For this option to be useful in 

mitigating misfueling with E15, MY2001 

and newer motor vehicles would need 

to be retrofitted with an RFID device 

that allows E15 to be dispensed into the 

motor vehicle. Some commenters 

indicated that the device installation is 

relatively simple (for example, a 

consumer could have a device installed 

during an oil change). One commenter 

estimated the cost of an RFID ring tag to 

be $50–75 and installation of the tag 

around the fuel inlet to be $12.50. 

Retrofitting of fuel dispensers with a 

companion RFID device would raise 

larger cost and implementation issues. 

One commenter indicated a cost of $500 

for installing an RFID reader per fuel 

dispenser nozzle and $10,000 to $20,000 

to install a central controller per facility 

per dispenser to upgrade software for 

security purposes. 

Based on the information provided, 

this measure, while potentially 

effective, raises a number of significant 

issues. First, it would require the 

owners of MY2001 and newer light-duty 

motor vehicles, which can lawfully use 

E15, to spend time and money to install 

devices so that owners of vehicles and 

equipment that cannot lawfully use E15 

cannot dispense E15 into those vehicles 

or equipment. Second, it is not clear 

whether or how consumers could be 

persuaded or required to install the 

RFID technology. Third, the cost to 

retail stations would likely be 

considerable. Particularly given the 

uncertainties about the transition to 

E15, it seems highly unlikely the 

benefits of this measure would outweigh 

its costs. In light of these issues, we 

determined that adoption of this 

measure would be inappropriate. 

d. Requiring the Continued Availability 

of E10 and/or E0 

Several commenters urged EPA to 

require the continued availability of E10 

and/or E0, arguing that EPA should 

adopt regulatory requirements now to 

ensure that owners of older motor 

vehicles and other gasoline-powered 

engines, vehicles, and nonroad 

equipment not covered by the E15 

partial waiver decisions can find the 

fuel they need. In addition, on March 

23, 2011, EPA received a petition for 

rulemaking requesting that EPA 

promulgate a rule under Clean Air Act 

section 211(c) to ensure the continued 

availability of gasoline containing 10 

vol% or less ethanol (‘‘≤E10’’) at retail 

stations for use in vehicles, engines, and 

nonroad equipment not covered by the 

E15 partial waivers.22 23 Both the 

commenters and the petitioners noted 

that E10 has, over time, largely 

displaced E0 in the marketplace, and in 

some areas of the country, it is already 

difficult to locate E0. They expressed 

concern that E15 could similarly 

displace E10, particularly if economic 

factors and the Renewable Fuel 

Standard result in broad adoption of 

E15. They argued that unless E10 

remains available, owners of vehicles 

and gasoline-powered engines, vehicles, 

and nonroad equipment for which E15 

is not allowed may have no choice but 

to misfuel with E15. Petitioners also 

contend that EPA’s proposed misfueling 

mitigation measures will not be effective 

unless EPA ensures that ≤E10 remains 

available alongside E15. Petitioners 

point out that EPA required availability 

of unleaded gasoline and USLD to 

protect emission control systems, and 

they ask EPA to similarly require the 

availability of E10 to protect the 

performance of emission control 

systems of vehicles, engines, and 

nonroad equipment not covered by the 

E15 partial waiver decisions. 

For the reasons discussed below, the 

Agency is not requiring the availability 

of E10 (or E0) in this rulemaking and is 

also denying the rulemaking petition. 

Based on the information currently 

available to the Agency, we find that it 

is neither necessary nor appropriate to 

issue such regulations at this time or to 

initiate a rulemaking process to adopt 

them. While EPA appreciates that the 

availability of appropriate fuels is 

important to mitigating misfueling, it is 

premature for EPA to try to forecast now 

how E15 will be distributed and 

marketed over the next several years, 

and how this might impact the 

availability of ≤E10. In considering the 

future availability of ≤E10, it is 

important to remember that EPA’s 

partial waiver decisions allow, but do 

not require, E15 to be sold. Instead, the 

partial waivers remove a statutory 

prohibition on introducing E15 into 

commerce, subject to misfueling 


jlentini on DSK4TPTVN1PROD with RULES2
44428 Federal Register / Vol. 76, No. 142 / Monday, July 25, 2011 / Rules and Regulations 

24 In addition, EPA notes that there would be 

serious notice and comment concerns if EPA 

attempted to adopt any regulatory requirement on 

availability in this final rule. 

25 Given EPA’s many statutory responsibilities, 

we also conclude that it does not make sense to use 

EPA’s limited resources to attempt to develop 

information or make projections now where much 

more reliable information will become available 

over time, nor is it appropriate to undertake a 

rulemaking now that imposes specific requirements 

that could well be unnecessary in light of future 

developments. 

mitigation and other conditions. It is 

now up to businesses to decide whether 

and how to produce and sell E15 for 

MY2001 and newer light-duty motor 

vehicles. Further, before E15 can be 

legally sold and made broadly available 

for these vehicles, a number of 

additional steps must be taken by fuel 

producers, distributers, and marketers 

as well as Federal, state and local 

government agencies. These steps 

include registering E15 as a motor 

vehicle fuel under the Clean Air Act, 

addressing the compatibility of E15 with 

fuel storage and dispensing equipment, 

and potential changes to state and/or 

local requirements. In light of these 

additional steps, EPA expects that any 

significant market shift to E15 will take 

several years or more, and that the 

decisions fuel providers will make 

about the continued availability of ≤E10 

will largely determine if any availability 

requirement is needed. Since ≤E10 is 

widely available now, the appropriate 

response to any future ≤E10 availability 

issues will best be determined by 

evaluating the distribution and market 

circumstances of E15 and ≤E10 fuels as 

E15 enters the market. EPA will work 

with stakeholders to monitor those 

circumstances and timely address any 

≤E10 availability issues that are based 

on those specific circumstances. 

Commenters and petitioners did not 

provide data that suggest that ≤E10 will 

be unavailable in either the short- or 

long-term, nor did they provide 

quantitative analysis or evidence to 

support claims that E15 will be less 

expensive than E10. This is significant 

since, as explained above, it is not EPA 

that determines whether, how, or where 

E15 will be distributed and sold, or how 

this will impact availability of ≤E10. It 

is the fuel industries involved that will 

determine the role that E15 plays in the 

fuel distribution system and how this 

will affect availability of ≤E10. Without 

commenters and petitioners providing 

data to support their assertions, EPA can 

only consider available information, 

which shows that it is far from a 

foregone conclusion that E15 will result 

in a scarcity of ≤E10 in the next several 

years or more. Under the E15 partial 

waivers and the misfueling prohibition 

in today’s rule, E15 may be used only 

in MY 2001 and newer light-duty motor 

vehicles and FFVs. Gasoline containing 

no more than 10 vol% ethanol will 

continue to be needed for fueling 

MY2000 and older light-duty motor 

vehicles and all heavy-duty gasoline 

vehicles and engines, motorcycles and 

nonroad equipment. EPA estimates 

there are over 240 million such vehicles, 

engines, and nonroad equipment in 

existence today, and even as some 

products are retired, new heavy-duty 

gasoline-powered vehicles and engines, 

motorcycles, and nonroad equipment 

will be purchased. In view of the 

continuing demand for ≤E10, EPA 

expects that many retailers will 

continue to make ≤E10 available. Also, 

as noted above, retail stations that 

decide to sell E15 will need to address 

the compatibility of fuel dispensers and 

underground storage tank systems with 

E15, which could affect the pace of 

E15’s entry into the marketplace. 

According to some commenters, 

gasoline producers may need to change 

fuel formulations to accommodate the 

use of E15, which could further impact 

the availability and cost of E15 relative 

to ≤E10. In short, many factors affect the 

timing and extent of the availability of 

E15 and any impact on the continued 

availability of ≤E10. At this time, EPA 

cannot forecast how decisions will be 

made by the various industries involved 

and is not in a position to evaluate 

either the detailed scope of any future 

issues concerning availability of ≤E10 or 

the appropriate regulatory response. 

Commenters and petitioners stated 

that EPA has the legal authority under 

Clean Air Act section 211(c) to require 

the availability of ≤E10. Under section 

211(c), EPA may control or prohibit 

fuels and fuel additives that cause or 

contribute to air pollution that may 

endanger public health or welfare or 

significantly impair emission control 

devices or systems. Those controls may 

include, where justified, requiring the 

availability of particular fuels needed to 

ensure the continued effectiveness of 

emissions control systems. However, to 

require ≤E10 availability, EPA would 

need to conduct a number of analyses, 

including of the costs, small business 

impacts, and environmental and other 

benefits of such a requirement. CAA 

section 211(c), the Regulatory Flexibility 

Act, and various Executive Orders 

pertaining to rulemaking call for 

analysis of various factors before 

proposing and adopting regulations 

such as a fuel availability requirement 

under section 211(c). Petitioners 

requested that EPA require that ≤E10 be 

made available at any retail gasoline 

station that offers gasoline containing 

greater than 10 vol% ethanol. However, 

petitioners provided no quantitative or 

qualitative data necessary to analyze the 

important issues that are relevant for 

establishing this kind of requirement. 

For example, petitioners did not show 

that the requirement is necessary to 

avoid misfueling based on an analysis of 

a reasonable projection of the future 

volumes and marketing patterns of E15 

and ≤E10 fuels in the future. Petitioners 

also provided no information on how 

the costs of such a requirement would 

compare to the benefits, under the same 

volume and marketing projections. 

Without such information, the Agency 

cannot justify placing potentially costly 

requirements on small businesses (e.g., 

the thousands of independently owned 

and operated gasoline retail stations) or 

require that the fuel distribution system 

maintains storage capacity for ≤E10 

(e.g., potentially requiring that terminals 

provide additional tanks to store more 

blendstocks). Indeed, given the many 

uncertainties that exist concerning the 

future availability of E15, E10 and E0, 

it would be difficult, if not impossible, 

to conduct the required analyses in a 

meaningful way at this time. 

EPA raises these points not to 

discount the important issues raised by 

the petitioners and commenters, but to 

indicate the kind of analysis that would 

be needed to evaluate either the 

suggested regulatory approach or other 

less comprehensive regulatory 

requirements, and to highlight the 

premature nature of taking regulatory 

action at this time.24 Until E15 enters 

the market and further developments 

take place, much of the information 

needed to conduct those analyses will 

be unavailable or difficult to obtain. 

Better, well-informed decisions can be 

made by monitoring developments 

concerning the availability of E15 and 

≤E10 and formulating any EPA response 

in light of specific developments as they 

occur over time.25

Contrary to petitioners’ assertions, the 

circumstances that led EPA to ensure 

the availability of unleaded and USLD 

fuels are substantially different from 

those of any transition from E10 to E15. 

In the case of both the lead phase-down 

and the ULSD programs, a new fuel was 

needed to protect the advanced 

emission controls of new vehicles and 

engines. The predominant fuels on the 

market at the time (i.e., leaded gasoline 

and 500 ppm sulfur diesel fuel) would 

have damaged those controls, so it was 

important for EPA to ensure the 

availability of new fuels that would 

allow the advanced emission controls to 


jlentini on DSK4TPTVN1PROD with RULES2
Federal Register / Vol. 76, No. 142 / Monday, July 25, 2011 / Rules and Regulations 44429 

26For lead phase-down, EPA required the 

availability of unleaded gasoline to replace leaded 

gasoline because use of unleaded gasoline was 

necessary to the proper operation of the catalytic 

converters equipped on new motor vehicles. With 

the ULSD program, refiners were required to 

produce ULSD because it was needed for proper 

operation of the advanced emission control 

technologies with which MY2007 and newer diesel 

engines would be equipped. There was no 

availability requirement for ULSD, but the rule was 

designed in such a way to ensure an adequate 

supply and distribution of ULSD for the new heavyduty vehicles that would need it. 

27Because the percent by weight of oxygen in the 

fuel varies depending on the density of the fuel, the 

limit in the Complex Model is currently 4.0 wt% 

to reflect the maximum amount of oxygen 

associated with E10. In most fuels, however, this 

quantity is equivalent to 3.5 to 3.7 wt% oxygen. 

28 Guerrieri, D., Caffrey, P., and Rao, V., 

‘‘Investigation into the Vehicle Exhaust Emissions 

of High Percentage Ethanol Blends,’’ SAE Technical 

Paper 950777, 1995, doi:10.4271/950777. 

29The level of 5.8 wt% oxygen is the potential 

maximum oxygen level associated with E15 due to 

lighter than average gasoline components. The 

typical weight of oxygen in E15 is around 5.2%. 

work properly.26 Here, commenters and 

petitioners are asking for regulatory 

assurance that the currently 

predominant fuel on the market remains 

available. Because we expect, for the 

reasons discussed above, that E10 will 

remain the predominant fuel for some 

time, and is likely to remain available 

for a long period of time in response to 

market demand for the fuel, we do not 

believe it is appropriate to require the 

availability of ≤E10 at this time. 

The petitioners also incorrectly assert 

that the E15 misfueling measures 

finalized in today’s action will 

supersede the waiver conditions. In fact, 

as discussed in section IV.G, today’s 

requirements are not a substitute for the 

waiver conditions, although they should 

help responsible parties satisfy some of 

the conditions. Fuel and fuel additive 

manufacturers must still satisfy all 

waiver conditions before E15 may be 

introduced into commerce. This 

includes submitting plans that detail 

how a fuel or fuel additive manufacturer 

will ensure that misfueling does not 

occur. To the extent E10 becomes scarce 

and would not be reasonably available 

to consumers, plans submitted under 

the waiver may be an avenue for 

addressing the issue. In the future EPA 

would evaluate that approach as well as 

any potential regulatory approach under 

section 211(c). 

As discussed above (see section 

III.F.1), EPA believes that the misfueling 

mitigation measures included in today’s 

action will appropriately and effectively 

reduce the potential for misfueling. 

Those measures include a misfueling 

prohibition and an E15 label that 

communicates that prohibition, along 

with the potential for damage to 

vehicles and engines not covered by the 

partial waivers, to consumers. With 

those measures in place, retailers, 

distributors, and consumers are 

expected to obey the law and find fuel 

that is compatible with their vehicles, 

engines, and equipment. 

For the reasons discussed above, EPA 

is denying the petition for rulemaking to 

require that gasoline-ethanol blends 

containing 10 vol% or less ethanol be 

made available in the marketplace. As 

the transition to E15 occurs, we will 

work with fuel producers, distributors, 

and marketers to monitor the 

availability of E15, E10, and E0 so that 

any potential problems can be 

anticipated and addressed on a timely 

basis, based on real world conditions as 

they develop. 

G. Modification of the Complex Model 

Regulations and VOC Adjustment Rule 

To measure compliance with the RFG 

and anti-dumping standards, the 

emissions performance of gasoline is 

calculated using a model, called the 

Complex Model, which predicts the 

emissions level of each regulated 

pollutant based on the measured values 

of certain gasoline properties. Currently, 

the amount of oxygen that can be used 

as input to the Complex Model is 

limited to no more than 4.0 percent by 

weight (wt%) in gasoline in which the 

oxygenate is ethanol. This level is 

equivalent to the maximum amount of 

oxygen in gasoline containing 10 

percent by volume (vol%) ethanol, or 

E10.27

The emissions level as computed by 

the Complex Model is compared to the 

baseline emissions for each pollutant, 

and the percent reduction is then 

calculated. The RFG standards for VOC, 

NOx, and toxics are stated in terms of 

percent reductions from the baseline, 

whereas the antidumping regulations 

applicable to conventional gasoline 

generally require no greater emissions 

than baseline levels. Under the Clean 

Air Act, baseline emissions must be 

based on 1990 vehicle technology, not 

current fleets, nor off-road equipment. 

For gasoline to be sold in the U.S., it 

must comply with either the RFG or 

antidumping standards, as appropriate. 

Refiners are required to certify that their 

fuel meets the standards by using the 

Complex Model. For the RFG areas of 

Chicago and Milwaukee, RFG that 

contains 10 vol% ethanol is given an 

adjustment of the VOC performance 

standard, resulting in a slightly less 

stringent requirement. 

1. Proposed Approach and 

Consideration of Comments 

Because the Act specifies that the 

emissions performance for RFG is to be 

measured against a baseline that 

represents 1990 vehicle technology, we 

were not able to use current emissions 

test data on motor vehicles using E15 

gasoline as a basis for evaluating 

appropriate changes to the oxygen input 

parameter of the Complex Model VOC 

equation. Instead, we relied on a study 

conducted in 1994 by Guerrieri et al. 

(Guerrieri/Caffrey study) that examined 

the exhaust emissions from 1990 

vehicles using gasoline with ethanol 

levels varying from 0 to 40 vol%.28

Based on the study findings, we are 

reasonably confident that the average 

VOC emissions for ethanol blends 

greater than E10 up to and including 

E15 will be no worse than for E10, for 

1990 technology motor vehicles. 

This outcome is consistent with our 

engineering judgment. The study’s data 

showed that on average exhaust 

hydrocarbon emissions increased from 

E10 to E12, but then decreased beyond 

E12. While the study does not provide 

sufficient data to determine the precise 

VOC emission effect between E10 and 

E15, the linear regression results 

presented in the study indicate a 

decreasing trend in hydrocarbon 

emissions with increased ethanol in 

gasoline. In the NPRM, we therefore 

proposed to modify the regulations to 

allow gasoline fuels containing greater 

than 4.0 wt% oxygen and up to 5.8 wt% 

oxygen to be certified with the VOC 

emissions effects modeled the same as 

if the fuel contained 4.0 wt% oxygen.29

Most comments received supported 

the proposed change to the Complex 

Model regulations. Some commenters 

were concerned permeation effects, the 

representation of NOX and toxic 

emissions by the Complex Model, and 

whether the Complex Model should be 

modified to allow increased oxygen 

levels from all renewable fuels. Two 

comments also suggested that the VOC 

adjustment that applies in Chicago and 

Milwaukee for RFG containing nine to 

ten percent ethanol should be modified 

to allow RFG that contains up to 15% 

ethanol to have the same VOC standard 

as E10. We discuss these comments in 

further detail below. 

a. VOC Emissions From Permeation 

One commenter pointed out that with 

respect to the effect of increased ethanol 

levels on VOC emissions, the Guerrieri/ 

Caffrey study examined only exhaust 

VOC emissions. Evaporative VOC 

emissions were not investigated. The 

commenter pointed out that permeation 

emissions are a concern with ethanol, 

and that the Complex Model should 


jlentini on DSK4TPTVN1PROD with RULES2
44430 Federal Register / Vol. 76, No. 142 / Monday, July 25, 2011 / Rules and Regulations 

30Enhanced 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. 

reflect such emissions. The commenter 

stated, ‘‘At a minimum, EPA must 

conduct permeation testing on relevant 

fuel system materials to determine how 

permeation rates vary with ethanol 

content (i.e., does the rate change 

between E10 and E15). EPA should then 

modify the Complex Model to reflect the 

change in permeation related 

evaporative emissions from the zero 

percent ethanol baseline.’’ 

We acknowledge that the referenced 

study did not address evaporative 

emissions due to permeation. However, 

evaporative permeation was not tested 

during development of the Complex 

Model. Thus, the model never reflected 

permeation emissions for any level of 

ethanol (E0, E10, E15 or any values in 

between). Recent data from CRC show 

that although permeation emissions 

increase with higher levels of ethanol, 

the effects of E15 are likely to be 

comparable to E10.30 Since the 

permeation rates of E15 are comparable 

to those of E10, it would be 

inappropriate to modify the model to 

account for E15 permeation emissions 

and not for E10. Major changes to the 

Complex Model such as would be 

needed to reflect permeation emissions 

for different levels of ethanol are beyond 

the scope of this rulemaking. Since 

evaporative permeation from E15 is 

comparable to that from E10, we believe 

today’s regulatory change to treat E15 

like E10 under the Complex Model is 

appropriate. 

b. Representation of NOX and Toxic 

Emissions in the Complex Model 

One commenter expressed concern 

that the Guerrieri/Caffrey study showed 

that NOX emissions on the six vehicles 

tested increased with increasing levels 

of ethanol. The commenter suggested 

that we therefore should modify the 

equations of the Complex Model to 

account for such increases in NOX. 

The NOX emission performance 

requirements for RFG and conventional 

gasoline (CG) have not been applicable 

to most refiners since January 1, 2007, 

when the Tier 2 gasoline average sulfur 

standard of 30 ppm took effect (see 40 

CFR 80.41(e)(2)(i) for RFG; and 40 CFR 

80.101(c)(3)(i) for CG). This is the case 

for all refiners as of January 1, 2011 (see 

40 CFR 80.41(e)(2)(ii) for RFG; and 40 

CFR 80.101(c)(3)(ii)). The applicability 

of the Complex Model to gasoline 

certification has thus become limited as 

EPA’s more recent clean gasoline 

standards take effect and require even 

greater emission reductions than those 

required by the RFG and antidumping 

programs. As a result, there is no 

current NOX performance standard for 

RFG or conventional gasoline under the 

RFG or antidumping regulations, and 

the Complex Model is no longer used 

for modeling NOX performance. 

Therefore, there would be no point in 

modifying the Complex Model 

regulations to account for additional 

NOX emissions that may be associated 

with E15. 

The same commenter also raised 

concern over our approach to air toxics. 

Specifically, in the NPRM, we stated 

that we would not need to modify the 

air toxics standard of the Complex 

Model because beginning January 1, 

2011, the air toxics emission standards 

no longer apply for gasoline subject to 

the new mobile source air toxic 

(MSAT2) nationwide benzene standard 

for gasoline (see 40 CFR 80.41(e)(3) for 

RFG; and 40 CFR 80.101(c)(4) for CG). 

We noted, though, that small refiners 

can take advantage of the option for 

delayed compliance with the MSAT2 

benzene standard until January 1, 2015. 

We stated that since small refiners 

typically certify CG as E0, with 

oxygenate blended downstream, their 

compliance with the toxics performance 

standard should be unaffected by the 

increase in ethanol content from E10 to 

E15. In addition, no small refiners 

currently produce RFG or are expected 

to produce RFG. Thus, there is no need 

to revise the toxics performance 

standard of the Complex Model. 

The commenter recommended that 

EPA revise the toxics standards of the 

Complex Model to account for E15, and 

maintained that even if there are 

currently no small refiners producing 

RFG, EPA cannot preclude the 

possibility that they may do so in the 

future. However, to make the relevant 

change to the Complex Model would be 

a major undertaking and EPA continues 

to believe that such an undertaking is 

unnecessary and unwarranted in light of 

current and expected practices by small 

refiners. Furthermore, even if we were 

to make the suggested change, any 

possibility of relevance would disappear 

effective January 1, 2015. In light of 

these considerations, EPA has not 

modified its Complex Model regulations 

to account for air toxics emissions 

related to E15. 

c. Adequacy of the Guerrieri/Caffrey 

Study To Justify Modification of the 

Complex Model Regulations 

One commenter stated that the 

Guerrieri/Caffrey study that we used to 

document the effects of increased levels 

of ethanol on exhaust VOC emissions is 

inadequate. The commenter contended 

that the Guerrieri/Caffrey study used six 

vehicles, whereas the original study 

used to develop the Complex Model was 

based on 19 vehicles. In addition, the 

commenter points out that the gasoline 

for the Guerrieri/Caffrey study is not 

representative of the gasoline that is 

now sold, since neither the low sulfur 

gasoline rule nor the MSAT2 rule was 

in effect at that time. 

With regards to the gasoline used in 

the Guerrieri/Caffrey study not being 

representative, the gasoline used for the 

study to develop the Complex Model 

was also different than today’s. In fact, 

the gasolines used for both the original 

Complex Model study and the 

Guerrieri/Caffrey study were the same, 

providing some level of consistency 

between them. Both were designed to 

reflect the statutory baseline fuel for 

these standards—1990 fuel, not today’s 

fuel. Notwithstanding the relatively few 

vehicles tested, the Guerrieri/Caffrey 

study provides data that allows EPA to 

estimate with reasonable confidence 

what would be the likely effect on 

exhaust emissions of blends of E15 in 

RFG as represented by the Complex 

Model. As stated in the preamble of the 

NPRM, the outcome of that study was 

consistent with our engineering 

judgment. That is, the general trend 

across vehicles of all ages is that the 

addition of ethanol to gasoline tends to 

lower VOC emissions due to its 

enleanment effect during open loop 

operation. 

d. Representation of Other Renewable 

Fuels and Fuel Additives in the 

Complex Model 

We proposed modifying the Complex 

Model only for the increased level of 

oxygen associated with E15. Two 

commenters suggested that the 

modification not be limited only to 

ethanol but to all renewable fuels and 

fuel additives that supply oxygen up to 

the new 5.8 wt% level. We believe that 

this comment has merit, since the 

Complex Model treats the parameter of 

oxygen independently of the oxygenate 

which supplies it. In other words, the 

model was developed using fuel oxygen 

level as an input independent of which 

oxygenate contributed the oxygen. In 

addition, we believe that the increased 

use of any oxygenate in the range of 4.0 

wt% to 5.8 wt% would have effects on 

VOC emissions that are similar 

directionally to those of increased 

ethanol use in that range. Thus, we 

agree with the commenters that it is not 

necessary to limit the higher levels of 

oxygen in fuel (i.e., above 4.0 up to 5.8 

wt%) only to ethanol for purposes of 

modifications to the Complex Model 


jlentini on DSK4TPTVN1PROD with RULES2
Federal Register / Vol. 76, No. 142 / Monday, July 25, 2011 / Rules and Regulations 44431 

regulations. We will therefore modify 

the regulations to allow the Complex 

Model to be run for fuels containing 

oxygen levels up to 5.8 wt% from any 

oxygenate. However, it should be noted 

that this change to the Complex Model 

regulations has no effect on any other 

restrictions applicable to such fuels. For 

example, this modification to the 

Complex Model regulations does not 

relieve any party from the substantially 

similar prohibition in section 211(f)(4) 

of the Clean Air Act or the need, in 

appropriate circumstances, to receive a 

waiver of this prohibition. 

e. Modification of the VOC Adjustment 

for RFG in Chicago and Milwaukee 

Two commenters pointed out that the 

regulations for RFG (40 CFR 80.41) 

currently allow for an adjustment of the 

VOC performance standard for RFG 

containing between nine and 10 vol% 

ethanol in the Chicago and Milwaukee 

RFG areas. For RFG sold in these areas, 

the adjustment allows for a slightly 

lower emission reduction of VOCs as 

computed by the Complex Model. The 

amount of this adjustment is equivalent 

to a decrease in the RVP by 

approximately 0.3 psi. Since we 

proposed to allow the Complex Model 

to accommodate ethanol in RFG up to 

15 vol%, one commenter argued that we 

should also allow such blends to be 

eligible for the VOC adjustment. The 

other commenter stated that unlike the 

1.0 psi waiver for conventional gasoline, 

the VOC adjustment for RFG is not a 

statutory requirement and that ‘‘the 

policy rationale behind the adjusted 

standard for E–10 applies equally to E– 

15.’’ The commenter also stated that not 

extending the VOC adjustment in 

Chicago and Milwaukee to E15 would 

present additional logistical and 

financial challenges including the 

creation and storage of a lower RVP 

blendstock for splash-blending E15. 

The VOC adjustment rule was 

promulgated in 2001 when RFG had an 

oxygen content requirement. E10 was 

typically used in the Chicago and 

Milwaukee RFG areas, generally 

resulting in a higher oxygen content in 

these areas than in other RFG areas. 

EPA’s reasons for adopting the VOC 

adjustment rule can be found at 66 FR 

37164 (July 17, 2001). In essence, at that 

time, EPA determined that, for purposes 

of ozone, the higher oxygen levels in 

E10 led to greater reductions in CO 

which offset to some extent VOC 

emissions. EPA reduced the VOC 

performance standard for E10 consistent 

with this offset. 

Today’s rulemaking is limited to 

consideration of issues associated with 

the entry of E15 into commerce. EPA is 

not in a position to reevaluate, and is 

not reevaluating, whether the VOC 

adjustment provision for E10 continues 

to be appropriate. The only issue before 

EPA in this rulemaking is whether the 

existing adjusted VOC performance 

standard for the Chicago and Milwaukee 

RFG areas should be extended to E15. In 

addition, it should be noted that section 

1504 of the Energy Policy Act of 2005 

(EPAct) requires that EPA remove the 

VOC performance standards for VOC– 

Control Region 2 that are currently in 40 

CFR 80.41, and instead apply the 

standards in 40 CFR 80.41 for VOC– 

Control Region 1 for all RFG areas. 

When EPA implements this EPAct 

provision, it will consolidate the 

northern and southern VOC 

performance standards for RFG, 

adopting the southern VOC performance 

standards for all RFG areas. At that 

point the adjusted VOC performance 

standard would no longer apply in the 

Chicago and Milwaukee RFG areas. EPA 

intends to address this EPAct provision 

in a future rulemaking. However, EPA is 

not in a position to make these broad 

changes to the VOC performance 

standards in this rulemaking, and is 

limiting this action to issues associated 

with the introduction of E15 into 

commerce. 

In that context, EPA believes it is 

appropriate to extend the current 

adjusted VOC performance standard to 

E15. If the adjusted VOC standard is 

extended and E15 is introduced into 

these RFG areas, it will likely replace 

E10. EPA expects that the base blend of 

gasoline would not change whether it is 

used to produce E10 or E15 RFG. By 

replacing E10, E15 RFG would 

directionally lead to greater reductions 

in VOC emissions in-use, as E15 

produces a slightly lower increase in 

RVP than E10. In addition, E15 would 

likely lead to greater reductions in CO 

compared to E10, because of the 

increased oxygen content. Extending the 

adjusted VOC performance standard to 

E15 would therefore likely lead to 

somewhat greater reductions in VOCs 

and CO than would occur if the adjusted 

VOC standard is not extended to E15. 

This increase in emissions reductions is 

consistent with the provisions of Clean 

Air Act § 211(k)(1)(A), and starts to 

move at least directionally in a manner 

consistent with the EPAct provision. As 

such, it is appropriate at this time to 

make the narrow revision of extending 

the adjusted VOC standard to E15. 

2. Final Approach Concerning the 

Complex Model and the VOC 

Adjustment Rule 

For the reasons discussed above, EPA 

is revising the Complex Model 

regulations generally as proposed. The 

equations in the Complex Model 

relating to NOX and toxics will not be 

changed. The Complex Model 

regulations will be modified to specify 

use in the model equations of a 4.0 wt% 

oxygen content for fuels with actual 

oxygen content greater than 4.0 wt% 

and up to 5.8 wt%. Thus, the VOC 

emissions performance for these fuels 

shall be evaluated as if the oxygen 

content were 4.0 wt% oxygen. Today’s 

rule also modifies 40 CFR 80.41 so that 

the VOC adjustment in effect for 

Chicago and Milwaukee will apply to 

RFG with ethanol content between nine 

and 15 vol%. 

H. Federalism Issues 

In the NPRM, we discussed the 

potential federalism issues that the 

proposed rule might raise. We noted 

that the proposed mitigation measures 

were based on the authority in CAA 

section 211(c) as well as the 

recordkeeping and information 

collection authorities of the Act. In that 

context, we specifically discussed 

section 211(c)(4)(A), which prohibits 

states and political subdivisions from 

prescribing or attempting to enforce for 

purposes of motor vehicle emission 

control any control or prohibition 

‘‘respecting any characteristic or 

component of a fuel or fuel additive in 

a motor vehicle or motor vehicle 

engine’’ if EPA has prescribed a control 

or prohibition applicable to such 

characteristic or component of the fuel 

or fuel additive under section 211(c)(1). 

We explained that this prohibition does 

not apply to controls that are identical 

to prohibitions or controls adopted by 

EPA (section 211(c)(4)(A)(ii)) or to 

California (section 211(c)(4)(B)). We also 

noted that a state may adopt nonidentical fuel control measures upon a 

showing of necessity under section 

211(c)(4)(C). 

In light of these CAA provisions, we 

indicated that we were not aware of any 

state rules or laws that would be 

preempted by the proposed rule if 

adopted. We explained that, to our 

knowledge, states have not controlled 

ethanol volumes in gasoline for 

purposes of motor vehicle emissions 

control. We also stated that the 

proposed rule, if adopted, would not 

require states to change their existing 

labels. 

We received a comment from a state 

agency agreeing with our explanation of 

the scope and effect of the Federal 

preemption provisions of CAA section 

211(c) and noting the importance of 

state regulation of fuel as allowed under 

the Act. Several commenters, however, 

expressed concern about the potential 


jlentini on DSK4TPTVN1PROD with RULES2
44432 Federal Register / Vol. 76, No. 142 / Monday, July 25, 2011 / Rules and Regulations 

for state fuel regulations to create a 

patchwork of requirements, and urged 

EPA to clarify that state laws cannot 

conflict with or undermine any of EPA’s 

control measures. In particular, these 

commenters stated that EPA should 

specifically prohibit states from 

undermining the effectiveness of the 

EPA warning label through requiring 

conflicting or distracting ethanol labels. 

Today’s action is based on the 

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

under sections 208 and 114 of the Act. 

As such, today’s action leads to the 

express preemption of certain state 

actions that prescribe or enforce 

controls or prohibitions respecting 

ethanol content in gasoline, under 

section 211(c)(4)(A). Thus, because 

section 211(c)(4)(A) applies only to 

controls or prohibitions respecting any 

characteristics or components of fuels or 

fuel additives for use in motor vehicles 

or motor vehicle engines, i.e., on road or 

highway vehicles, a state control or 

prohibition respecting ethanol content 

in fuel or fuel additives would be 

preempted only if it is ‘‘for purposes of 

motor vehicle emission control.’’ 

Further, states, other than California, 

may prescribe and enforce non-identical 

measures if they seek and obtain EPA 

approval of State Implementation Plan 

revisions containing such control 

measures, under section 211(c)(4)(C). 

Additionally, aside from the express 

preemption in section 211(c)(4)(A), a 

state control for fuels or fuel additives 

may be implicitly preempted under the 

supremacy clause of the U.S. 

Constitution where the state 

requirement actually conflicts with 

Federal law by preventing compliance 

with the Federal requirement, or by 

standing as an obstacle to 

accomplishment of the Federal 

objectives. A state standard respecting 

ethanol content that is not subject to the 

express exemption provisions of section 

211(c)(4)(A) nevertheless may be 

preempted because it meets the criteria 

for conflict preemption. 

In light of the relevant statutory and 

constitutional provisions, EPA believes 

that questions regarding preemption of 

specific state fuel regulations should be 

addressed on a case-specific basis. 

Generally speaking, state requirements 

related to ethanol can co-exist with the 

misfueling mitigation provisions of 

today’s rule, including, for example, the 

requirement for the specified E15 pump 

label, where the state requirements are 

not ‘‘for purposes of motor vehicle 

emission control’’ and do not conflict or 

undermine the effectiveness of the 

Federal misfueling mitigation measures. 

IV. Other Issues Addressed by 

Commenters 

A. Cost of Compliance 

We calculated the proposed cost of 

compliance based on the periodic 

capital costs of labeling fuel dispensers, 

the onetime costs of the PTD 

requirements, and the annual cost of the 

survey requirements. The cost of the 

proposed labeling requirements was 

estimated at $1.04 million per year on 

an annualized basis. This estimate was 

conservative (tends to overestimate 

costs) as it was based on a label being 

placed on all pumps at all stations. 

Since we are requiring only labels at 

E15 pumps and we did not receive 

information indicating that our cost 

estimate for labeling was low, we are 

using the same estimate for the cost of 

the labeling requirement for the final 

rule. 

Our estimate for the cost of the 

proposed PTD requirements in the 

NPRM was $0.56 million per year. We 

did not receive comments to the 

contrary. We have revised this estimate 

to $0.45 million per year. The revised 

estimate is based on a one-time cost of 

$4.1 million to regulated parties to 

modify the formatting of their existing 

PTDs to accommodate the new 

information which will be required as a 

result of the rule. After the one-time 

modification of PTD formatting is 

complete, we believe that there would 

be no significant additional costs 

associated with communicating the 

additional information required by 

today’s rule to downstream parties in 

the distribution system (either in 

electronic or paper form). By amortizing 

the one-time reformatting costs over a 

period of 15 years at a 7% cost of 

capital, we arrive at an annualized cost 

of $450,000 for the PTD requirements. 

We estimated the cost to implement 

the proposed survey provisions for 

conventional gasoline at $2 million per 

year and the cost of adding the proposed 

survey requirements to the existing RFG 

survey at $50,000 per year. We also 

estimated that the cost of RVP testing of 

the samples would be $200,000 per 

year. One commenter stated that EPA 

underestimated survey costs because the 

proposed requirement for same-day 

shipping would increase costs by as 

much as $1 million per year. For the 

final rule, we have removed the 

requirement for expedited shipping, so 

the basis for the commenter’s concern is 

no longer applicable. Since in the final 

rule we are requiring RVP testing only 

of samples labeled as E15, we estimate 

that no more than $100,000 will be 

necessary to complete such testing. 

Thus, the total cost of the final survey 

requirements is estimated to be $2.15 

million per year. 

The total estimated cost of all the 

requirements is $3.64 million per year, 

slightly lower than the $3.75 million we 

estimated in the NPRM. We stated in the 

NPRM that the misfueling mitigation 

measures would reduce the potential for 

misfueling and consequent emission 

increases and repairs to nonroad 

products and MY2000 and older motor 

vehicles. We also stated that while there 

are no data to estimate the frequency at 

which emission increases and repairs or 

other potential complications might 

occur with misfueling in the absence of 

today’s rule, even if these consequences 

were avoided for only a tiny fraction of 

vehicles and equipment not covered by 

the partial waivers (as opposed to 

actions taken independently by industry 

in response to conditions on the partial 

waiver), the savings would still far 

exceed the costs of compliance. In 

reaching this view, we considered the 

avoided costs of repairing or replacing 

catalysts, although the costs of other 

repairs and emission increases might 

also be avoided. We expected that 

emissions-related consequences would 

occur with enough frequency that the 

benefits of the proposed rule’s 

requirements would clearly outweigh 

the relatively low costs. See 75 FR 

68044, 68058, 081 (Nov. 4, 2010). 

During the public comment period for 

the proposed rule, additional 

information that might be useful to 

estimating costs or benefits was not 

submitted and did not otherwise 

become available. As a result, we 

continue to expect that the benefits of 

today’s final rule will significantly 

outweigh the rule’s low costs. 

One commenter stated that our 

analysis failed to consider the cost for 

controlling the additional emissions 

from E15 at service stations, as well as 

the potential impacts to ground water 

and the associated costs of upgrading 

underground storage tank systems and 

the dispensers that deliver the fuel to 

the motor vehicle. The commenter 

argued that EPA must consider and 

include the costs associated with 

installing equipment to protect ground 

water and the air from releases and 

emissions due to any incompatibility of 

USTs and Stage I vapor recovery 

equipment with E15. Specifically, the 

commenter stated that dispensing E15 

using Stage I and Stage II vapor recovery 

equipment at retail gasoline stations 

could result in increased emissions, and 

noted that currently no Stage I or Stage 

II equipment are listed as approved for 

fuels beyond E10. Also, the commenter 

stated that EPA had not considered the 

potential impacts to ground water 


jlentini on DSK4TPTVN1PROD with RULES2
Federal Register / Vol. 76, No. 142 / Monday, July 25, 2011 / Rules and Regulations 44433 

presumably from leakage of 

underground storage tanks in the event 

of E15 incompatibility. The commenter, 

citing the results of the DOE’s National 

Renewable Energy Laboratory (NREL) 

report of November 12, 2010, stated that 

there are significant operational or 

material incompatibilities between 

legacy equipment and E15. The 

commenter asserted that the cost to 

replace a dispenser or an underground 

storage tank that may leak and release 

product to the ground water should also 

be included. 

It is important to recognize that the 

cost impacts we are evaluating for the 

final rule are the costs associated with 

implementing the regulatory 

requirements established by the rule. 

These regulatory requirements will 

apply only to the extent fuel providers 

decide to make and sell E15. Neither the 

partial waivers nor today’s rule require 

that E15 be made or sold. Therefore, 

while some retail stations may need to 

make upgrades in order to sell E15, the 

cost of making any upgrades is not 

attributable to any regulatory 

requirement adopted in this rule. If 

equipment upgrades are made as needed 

to dispense E15, it will be because 

retailers decide to sell E15, not because 

of a requirement to do so. We have 

therefore estimated the costs of 

implementing the requirements adopted 

by this rule for labeling, PTDs and 

surveys. While the commenter provided 

no information on costs of potential 

equipment upgrades, we recognize that 

there may be additional costs like those 

noted by the commenter associated with 

distributing and selling E15. However, 

those costs are not relevant to an 

evaluation of the costs of the 

requirements adopted in this 

rulemaking. 

B. The Applicability of the Statutory 1.0 

psi RVP Waiver to E15 

EPA proposed that CAA section 

211(h)(4) should be interpreted ‘‘as 

limiting the 1.0 psi waiver [that the 

section provides] to gasoline-ethanol 

blends that contain 10 vol% ethanol, 

including limiting the provision 

concerning ‘deemed to be in full 

compliance’ to the same 10 vol% 

gasoline-ethanol blends.’’ 75 FR 68061. 

We explained that EPA implements 

CAA section 211(h)(4) through 40 CFR 

80.27(d), which provides that gasolineethanol blends that contain at least 9 

vol% ethanol and not more than 10 

vol% ethanol qualify for the 1.0 psi 

waiver of the applicable RVP standard. 

We requested comment on whether 

section 211(h) could be interpreted such 

that E15 would also be eligible for the 

RVP provisions in section 211(h)(4). 75 

FR 68081. 

We received several comments 

arguing that section 211(h)(4) should be 

read to apply to E15 and urging the 

Agency to amend the relevant 

regulations to reflect this reading. 

Commenters argued that reading section 

211(h)(4) to extend the 1 psi waiver to 

E15 is consistent with EPA’s fuel 

volatility rulemakings and the 

provision’s legislative history and 

intent. Commenters pointed to the 

Agency’s 1987 RVP rulemaking for 

support, noting that the Agency allowed 

blends containing gasoline and a 

minimum of 10% ethanol to exceed the 

RVP limits by 1 psi (see 52 FR 31305 

(August 19, 1987)) and that Congress 

codified this approach in section 

211(h)(4). The commenters argued that 

a later EPA rulemaking allowing a range 

of gasoline-ethanol blends (i.e., gasoline 

ethanol blends that contain at least 9 

vol% and no more than 10 vol% 

ethanol) instead of simply requiring 

exactly 10 vol% ethanol was an 

indication of EPA’s discretion in 

interpreting section 211(h)(4). They also 

argued that EPA could reasonably 

interpret section 211(h)(4) as applying 

to E15. One commenter further argued 

that E15 meets the terms of the 1 psi 

waiver for 10 vol% blends because it 

contains gasoline and the minimum 10 

vol% ethanol. Another commenter 

contended that section 211(h)(4) could 

be interpreted to provide authority for 

extending the 1 psi waiver to low to 

mid-level gasoline-ethanol blends that 

have received a waiver under section 

211(f)(4). Finally, commenters 

mentioned that E15 would have a 

similar (if not slightly lower) RVP to E10 

and would not exceed applicable RVP 

limits if the 1 psi waiver is applied. One 

commenter suggested further that the 

deemed to comply provision found in 

section 211(h)(4) of the Act does not tie 

the compliance of gasoline-ethanol 

blends directly to ethanol content. The 

commenter argued that the primary 

limitation on applying the 1 psi waiver 

would likely be actions that increase 

RVP not hard percentage limits on 

ethanol content, and since E15 would 

have similar if not lower RVP than E10, 

then E15 should receive the 1 psi 

waiver. 

We also received several comments 

supporting our proposed interpretation. 

In today’s rule, we are confirming our 

view that section 211(h)(4) limits the 1 

psi waiver to fuel blends containing 

gasoline and 9–10 vol% ethanol, 

including limiting the provision 

concerning ‘‘deemed to be in full 

compliance’’ to the same 9–10 vol% 

gasoline-ethanol blends. 

Evaporative emissions from motor 

vehicles and off-highway equipment are 

a major source of volatile organic 

compounds (VOCs) that contribute to 

ozone. The amount of evaporative 

emissions from a gasoline blend is 

closely related to its volatility, which 

generally increases when ethanol is 

blended with gasoline. RVP is the most 

common measure of gasoline volatility 

under ambient conditions. In 1989, EPA 

began reducing gasoline volatility by 

limiting its RVP. We provided an 

interim RVP level that was 1 psi higher 

‘‘for gasoline-ethanol blends commonly 

known as gasohol.’’ 54 FR 11868, 11879 

(March 22, 1989). In 1990, we 

promulgated additional RVP regulations 

that continued to provide a 1.0 psi RVP 

allowance for E10 so as not to require 

a special low-RVP blending gasoline. 55 

FR 23658, 23660 (June 11, 1990). 

Subsequently, in the 1990 CAA 

amendments, Congress largely codified 

our RVP regulations by adding a new 

section 211(h). That provision 

established 9.0 psi as the maximum RVP 

during the high ozone season, with 

authority for EPA to set a more stringent 

RVP level under certain circumstances. 

In section 211(h)(4), Congress also 

established that the RVP limit for fuel 

blends containing gasoline and 10 

percent denatured anhydrous ethanol 

would be 1 psi higher than the RVP 

standard otherwise established in 

section 211(h). This is referred to as the 

1 psi waiver. ‘‘For fuel blends 

containing gasoline and 10 percent 

denatured anhydrous ethanol, the Reid 

vapor pressure limitation under this 

subsection shall be one pound per 

square inch (psi) greater than the 

applicable Reid vapor pressure 

limitations established under paragraph 

(1).’’ Section 211(h)(4). Congress also 

enacted a conditional defense against 

liability for violations of the RVP level 

allowed under the 1 psi waiver by 

stating that ‘‘[p]rovided; however, That 

a distributor, blender, marketer, reseller, 

carrier, retailer, or wholesale purchaserconsumer shall be deemed to be in full 

compliance with the provisions of this 

subsection and the regulations 

promulgated thereunder if it can 

demonstrate that—(A) The gasoline 

portion of the blend complies with the 

Reid vapor pressure limitations 

promulgated pursuant to this 

subsection; (B) the ethanol portion of 

the blend does not exceed its waiver 

condition under subsection (f)(4) of this 

section; and (C) no additional alcohol or 

other additive has been added to 

increase the Reid Vapor Pressure of the 

ethanol portion of this blend.’’ Section 

211(h)(4). This is referred to as the 


jlentini on DSK4TPTVN1PROD with RULES2
44434 Federal Register / Vol. 76, No. 142 / Monday, July 25, 2011 / Rules and Regulations 

‘‘deemed to be in full compliance’’ or 

the ‘‘deemed to comply’’ provision. 

Following the 1990 amendments, EPA 

modified its RVP regulations to conform 

to the new provisions. In that 

rulemaking EPA ‘‘did not propos[e] any 

change to the current requirement that 

the blend contain between 9 and 10 

percent ethanol (by volume) to obtain 

the one psi allowance.’’ 56 FR 64704, 

64708 (December 12, 1991). We 

explained that ‘‘this is consistent with 

Congressional intent [because] the 

nature of the blending process * * * 

further complicates a requirement that 

the ethanol portion of the blend be 

exactly 10 percent ethanol.’’ 56 FR 

24245. We also explained that the 

deemed to be in full compliance 

provision was ‘‘a new defense against 

liability for violation of the ethanol 

blend RVP requirement [and that] EPA 

believes that this statutorily mandated 

defense is in addition to and does not 

supersede any of the defenses currently 

contained in the regulations.’’ 56 FR 

64708. Additionally, EPA explained that 

this provision would allow ‘‘a party to 

demonstrate the elements of the new 

defense by production of a certification 

from the facility from which the 

gasoline is received [and that] this 

defense is limited to ethanol blends 

which meet the minimum 9 percent 

requirement in the regulations and the 

maximum 10 percent requirement.’’ 56 

FR 64708. 

In the Energy Policy Act of 2005 

(EPAct), Congress removed the 

requirement that reformulated gasoline 

contain oxygenate additives, and 

mandated that increasing volumes of 

renewable fuel be used in gasoline. In 

recognition of the expected increase in 

ethanol use resulting from these 

provisions, Congress added section 

211(h)(5) to allow States to obtain an 

exclusion from the less stringent RVP 

limit under section 211(h)(4) for air 

quality reasons. ‘‘Upon notification, 

accompanied by supporting 

documentation, from the Governor of a 

State that the RVP limitation established 

by paragraph (4) will increase emissions 

that contribute to air pollution in any 

area in the State, the Administrator 

shall, by regulation, apply, in lieu of the 

RVP limitation established by paragraph 

(4), the RVP limitation established by 

paragraph (1) to all fuel blends 

containing gasoline and 10 percent 

denatured anhydrous ethanol [sold] in 

the area during the high ozone season.’’ 

Section 211(h)(5). 

The legislative history of the 1 psi 

waiver provision shows that it is for fuel 

blends containing gasoline and 10 

percent ethanol. The purpose of the 1 

psi waiver provision was to facilitate the 

participation of ethanol in the 

transportation fuel industry while also 

limiting gasoline volatility resulting 

from ethanol blending. Congress also 

intended for this provision to remove 

the possibility that ethanol blends 

would be used to circumvent the 

gasoline volatility restrictions. In 1987, 

prior to adoption of the 1990 

Amendments, Congress considered a 

legislative provision that was identical 

in relevant part to section 211(h)(4). The 

legislative history of this provision 

shows that Congress based the 1 psi 

waiver on technical data indicating that 

blending gasoline with ethanol so that it 

contains 9–10 vol% ethanol results in 

an approximate 1 psi RVP increase. In 

sum, the text of section 211(h)(4) and 

this legislative history supports EPA’s 

interpretation, adopted in the 1991 

rulemaking, that the 1 psi waiver only 

applies to gasoline blends containing 9– 

10 vol% ethanol. 

In the 1991 rulemaking EPA also 

interpreted the deemed to comply 

provision in section 211(h)(4) as 

establishing an alternative compliance 

mechanism closely tied to the 1 psi 

waiver. It was interpreted as a 

conditional defense against liability for 

those parties who blend ethanol into 

gasoline to achieve 9–10% ethanol by 

volume. EPA continues to interpret the 

deemed to comply provision in this 

manner, such that it does not apply to 

ethanol blends greater than 10% by 

volume. This is consistent with the text 

and legislative history of section 

211(h)(4) and (h)(5). 

As noted above, in 1987 Congress 

considered a bill containing language 

identical in relevant part to section 

211(h)(4). The provisions in that 1987 

Senate bill were in response to EPA’s 

1987 proposed RVP rule, in which EPA 

proposed a 1 psi waiver for ethanol 

blends, but conditioned this waiver on 

the final blend being tested for RVP. The 

deemed to comply provision was 

Congress’ response to concerns that this 

was an impractical and overly 

burdensome way to implement a 1 psi 

waiver for 10% gasohol. The Senate bill 

describes the deemed to comply 

provision as an alternative enforcement 

arrangement that simplified compliance 

with the 1 psi waiver. Thus, the deemed 

to comply provision is tied to the 1 psi 

waiver, and is designed to provide 

blenders the practical benefits of the 1 

psi RVP waiver. It is not intended as a 

separate authorization for a relaxed RVP 

limit independent of the provision for a 

1 psi waiver for 9–10% blends. 

The text of the deemed to comply 

provision supports this interpretation. 

The provision is an addition after the 1 

psi waiver that modifies the 1 psi 

waiver for 9–10% blends. It is not 

written as a free standing RVP limit that 

acts separate and apart from the 1 psi 

waiver for 9–10% blends of ethanol. Its 

reference to section 211(f)(4) is an 

indication that Congress was well aware 

of the existing section 211(f)(4) waiver 

conditions for 10% ethanol by volume. 

It refers to the ethanol blend not 

exceeding its section 211(f)(4) waiver 

conditions, and does not explicitly refer 

to 10% ethanol, but the condition of 

‘‘not exceed[ing]’’ the section 211(f)(4) 

waiver limit cannot be read literally. A 

literal reading of this phrase would 

mean that blends containing 1%, or 2%, 

or 5% ethanol would all be blends that 

are deemed to comply, as they do not 

exceed the section 211(f)(4) waiver 

limit. Such a broad reading would make 

the 1 psi waiver for 9–10% blends 

meaningless. Moreover, had Congress 

intended that the deemed to comply 

provision would establish a different 

ethanol content for ethanol blends that 

would be eligible for a relaxed RVP 

limit, whether higher or lower content, 

it could have expressly employed terms 

to that effect. 

The deemed to comply provision and 

the 1 psi waiver provision are each 

given consistent meaning by limiting 

the deemed to comply provision to a 

subset of lawful ethanol blends. The text 

of these provisions and their legislative 

history indicate that the deemed to 

comply provision was designed to 

address the same subset of ethanol 

blends that receive the 1 psi waver— 

blends of 9–10% ethanol. It was not a 

separate and free standing RVP 

provision aimed at another, larger 

subset of lawful ethanol blends, whether 

above or below 9–10% blends. Instead 

it was tied closely to the 1 psi waiver 

provision and limits the range of 

ethanol blends that can take advantage 

of the deemed to comply provision to 

blends of 9–10% ethanol. 

Further support for this view is 

provided in the action Congress took in 

2005 when it adopted section 211(h)(5). 

This provision treats the RVP limitation 

of section 211(h)(4) as a whole—it refers 

to the RVP ‘‘limitation established by 

paragraph (4)’’ and provides that when 

a State notifies EPA that such limitation 

increases emissions that contribute to 

air pollution in the State, then EPA is 

to apply the RVP limits of paragraph (1) 

‘‘in lieu of the [RVP] limitation 

established by paragraph (4)’’ for blends 

of 10% ethanol. It draws no distinction 

between the 1 psi waiver provision and 

the deemed to comply provision when 

referring to the RVP limitation in 

section 211(h)(4). Section 211(h)(5) 

recognizes the potential that the relaxed 

RVP limit in section 211(h)(4) could 


jlentini on DSK4TPTVN1PROD with RULES2
Federal Register / Vol. 76, No. 142 / Monday, July 25, 2011 / Rules and Regulations 44435 

increase emissions that contribute to air 

pollution, and provides States with an 

appropriate solution. When a State 

notifies EPA that the RVP limit under 

section 211(h)(4) is contributing to an 

air pollution problem, EPA is to apply 

the more stringent RVP limit under 

paragraph (1) in lieu of the relaxed limit 

allowed under section 211(h)(4). These 

more stringent RVP limits are applied to 

blends of 9–10% ethanol. A 

straightforward reading of this provision 

is that Congress intended to provide 

States a meaningful and complete 

solution to emissions increases 

stemming from the relaxed RVP 

provisions in section 211(h)(4), not a 

partial solution. If the deemed to 

comply provision is read as applying to 

ethanol blends above or below 9–10% 

ethanol, however, this provision would 

provide no relief for emissions from 

various ethanol blends different from 9– 

10% ethanol, including E15. There is no 

indication Congress intended such a 

partial and inconsistent solution. Both 

the text and legislative history of this 

provision indicate Congress viewed 

section 211(h)(5) as addressing the 

potential for air pollution problems 

from the relaxed RVP limit in section 

211(h)(4), which applies to blends of 9– 

10% ethanol. 

In sum, EPA views these three 

provisions—the 1 psi waiver and the 

deemed to comply provision in section 

211(h)(4), and the State relief provision 

in section 211(h)(5)—as related 

provisions that should be interpreted 

together in a way that harmonizes them 

and provides significance and a 

balanced meaning to each of them. EPA 

believes that this is reasonably done by 

viewing the 1 psi waiver provision in 

section 211(h)(4) as applying to blends 

of 9–10% ethanol; by viewing the 

deemed to comply provision as 

applying to the same subset of 9–10% 

ethanol blends, and not applying to 

blends above or below the range of 9– 

10%; and by viewing the provision for 

relief to States in section 211(h)(5) as 

applying to the same subset of 9–10% 

ethanol blends. This is consistent with 

the text and legislative history of the 

three provisions, which indicate that the 

RVP provisions in section 211(h)(4) are 

intended to work together to facilitate 

the use of ethanol blends of 9–10%, that 

the deemed to comply provision is not 

a free standing or separate provision 

that addresses fuels different from those 

covered by the 1 psi waiver, and that the 

provision for States in section 211(h)(5) 

is intended to provide relief coextensive with the RVP limits in section 

211(h)(4). This interpretation 

harmonizes all three provisions, gives 

each of them significant meaning, 

avoids making any of the provisions 

meaningless, and reasonably balances 

the various interests Congress was 

addressing in these provisions— 

controlling the RVP of gasoline and 

ethanol blends in a way that facilitates 

the practical downstream blending of 

ethanol while also preserving the ability 

of States to address the increased 

emissions associated with a relaxed RVP 

limit for ethanol blends. 

Some commenters argued that section 

211(h) should be interpreted such that 

E15 is eligible for the 1 psi waiver in 

section 211(h)(4), and that under section 

211(h)(4) the 1 psi waiver applies to 

fuels that contain a minimum of 10% 

ethanol, while section 211(f)(4) sets the 

maximum ethanol content under the 

deemed to comply provision. None of 

the commenters discussed section 

211(h)(5) or explained how their 

respective interpretations would 

interact with section 211(h)(5). For the 

reasons discussed above, EPA does not 

agree with the commenters’ arguments. 

For a full discussion of the comments 

and EPA’s response, see the Response to 

Comments document, which is in the 

docket for this rulemaking. 

C. RVP and E15 Underground Storage 

Tank Transition 

In the NPRM, we pointed out the 

potential problems that could occur if a 

higher RVP E10 fuel (i.e., E10 fuel that 

took advantage of the statutory 1.0 psi 

RVP waiver) is commingled in 

underground storage tanks with a lower 

RVP E15 fuel (i.e., E15 fuel that met the 

summertime conventional gasoline RVP 

standard without the 1.0 psi RVP 

increase, since the statutory 1.0 psi RVP 

waiver is not applicable to E15, and that 

also complied with the condition of the 

partial waivers limiting the summertime 

volatility of E15 to 9 psi). Commingling 

of these fuels would typically be an 

issue when a retail station decides to 

transition from selling E10 to E15, or 

E15 to E10, during the summertime 

ozone season. In these circumstances, if 

the retail station does not completely 

remove all E10 from a tank before E15 

is added to the tank (or E15 before E10 

is added), the gasoline fuel remaining in 

the dispensing station tank would likely 

violate the applicable RVP standards as 

well as the 9 psi RVP condition of the 

E15 partial waivers. For example, if a 

quantity of E10 at 10.0 psi RVP is 

blended with a quantity of E15 at 9.0 psi 

RVP, the resulting blend would have an 

ethanol content somewhere above 10 

vol% (but below 15 vol%). The 

resulting blend would also have an RVP 

above 9.0 psi. Since the blend is above 

10 vol% ethanol, it would not qualify 

for the 1.0 psi waiver. It would also be 

subject to the 9 psi RVP condition of the 

partial waivers, since the waivers cover 

any gasoline-ethanol blend above 10 

vol% ethanol up to 15 vol% ethanol. In 

this way, commingling would likely 

result in fuel that does not comply with 

applicable RVP limits or the RVP 

condition of the partial waivers. 

As mentioned in the NPRM, section 

211(t) of the Clean Air Act, adopted in 

the Energy Policy Act of 2005, allows 

retail stations to blend compliant 

reformulated gasoline batches of nonethanol blended and ethanol-blended 

gasoline in storage tanks twice a year as 

long as the duration of the blending 

period is no longer than 10 consecutive 

calendar days. However, the authority 

granted to the Agency for the transition 

of fuels in underground storage tanks 

was specifically limited to the case of 

reformulated gasoline, and this 

provision does not authorize a change in 

the RVP standards for blending down of 

E10 and E15 over time in nonreformulated gasoline areas. We sought 

comment on the issue of tank transition 

between E10 and E15 fuels and ways 

that the Agency could address this issue 

so that tank transition might be more 

easily accomplished. 

A related issue is whether to 

specifically disallow the commingling 

of E10 and E15 or of blendstocks 

produced specifically for blending E10 

and E15. In the NPRM we proposed a 

specific regulation that would prohibit 

combining ‘‘any base gasoline or 

conventional blendstock for oxygenate 

blending intended for blending with 

E10 that took advantage of the 1 psi 

waiver applicable for 9–10 volume 

percent gasoline-ethanol blends with 

any gasoline or conventional blendstock 

for oxygenate blending intended for 

blending with E15, unless the resultant 

combination is designated, in its 

entirety, as an E10 blendstock for 

oxygenate blending’’. Additionally, we 

proposed to prohibit combining ‘‘any 

gasoline-ethanol blend containing E10 

that took advantage of the 1 psi waiver 

applicable to 9–10 volume percent 

gasoline-ethanol blends, with any 

gasoline containing E0 or any gasoline 

blend containing E15’’. (75 FR 68089, 

November 4, 2010). Such a prohibition 

would aid in preventing mixing that 

would result in gasoline in dispensing 

tanks that does not comply with the 

RVP standards due to tank transitions as 

described above. 

Regarding tank transition in 

reformulated gasoline areas and a 

possible commingling prohibition, one 

commenter stated that it opposed a 

specific commingling prohibition 

because existing rules already prohibit 


jlentini on DSK4TPTVN1PROD with RULES2
44436 Federal Register / Vol. 76, No. 142 / Monday, July 25, 2011 / Rules and Regulations 

31 40 CFR 80.69(a)(10). 

application of the 1 psi RVP waiver to 

other than E10 and any tank transition 

from E10 to E15 would likely happen 

only once. The commenter further 

stated that if such a prohibition is 

necessary, it should apply only in 

summer months. Other commenters also 

opposed a commingling prohibition and 

generally stated that such a prohibition 

would create unnecessary difficulties in 

introducing E15 into commerce. 

As explained above, the 1.0 psi RVP 

waiver for conventional gasoline applies 

only to E10 blends, and it is already a 

violation of RVP standards to have an 

RVP higher than the standards for fuels 

not qualifying for the 1.0 psi RVP 

exemption, such as E15. Furthermore, it 

is correct that any prohibition against 

commingling, like the current RVP 

limitations, would apply only during 

the summertime ozone season. We also 

recognize that current regulatory 

requirements make it a violation to have 

higher RVP than allowed when 

commingling E10 and E15 in retail 

tanks. However, we believe that specific 

commingling regulations can provide 

additional, useful directions and 

incentive not to blend E10 and E15 in 

a way that would produce summertime 

conventional gasoline that violates the 

applicable RVP standard (and the 9 psi 

RVP limitation of the partial waivers). 

The prohibition against combining 

gasoline or blendstocks for E10 and E15 

production prior to blending makes it 

clear that such blending will result in a 

blendstock that will in turn result in an 

unlawful gasoline (unless it is only used 

to make E10). In addition, the 

prohibition against commingling of E15 

with E10 blends, which would likely 

occur in a dispensing tank, will help 

prevent unintended commingling of the 

two blends in dispensing tanks. 

Regarding summertime transitions, the 

additional prohibition makes it clear 

that commingling these types of fuel 

without one or the other fuel being 

completely drawn down in the tank is, 

in fact, prohibited. We are therefore 

adopting the commingling prohibitions 

as proposed. The PTDs described 

elsewhere in today’s final rule will help 

ensure that parties in the distribution 

chain are adequately aware of the fuel 

they are distributing and loading into 

underground dispensing tanks and will 

clearly aid parties in avoiding 

violations. 

Comments were received supporting 

the idea that relief should be granted to 

retail stations transitioning between E10 

and E15. However, the only specific 

suggestion received was to apply the 

statutory 1 psi RVP waiver to E15. As 

discussed above, EPA interprets the 

relevant provisions of the Clean Air Act 

as authorizing the 1 psi RVP waiver 

only for gasoline-ethanol blends 

containing 9–10 vol% ethanol. In 

addition, we note that over the past 

several years most dispensing facilities 

with underground tanks have 

transitioned from E0 to E10 without 

significant difficulties. Transitioning 

tanks between E0 and E10 presents the 

same practical challenges as 

transitioning between E10 and E15 in 

terms of RVP compliance issues. 

Transitions between E0 and E10 have 

typically been accomplished by making 

the transition during the wintertime 

when the RVP compliance issue is not 

relevant, or during the summertime by 

drawing down the tank to effectively 

empty the tank prior to introducing the 

new fuel. These strategies should also 

be effective for transitioning to E15. For 

all of these reasons, we are not adopting 

any specific regulatory program for 

providing relief to retail stations in 

transitioning from E10 to E15. 

D. Credit for RFG Downstream 

Oxygenate Blending 

As stated in the NPRM, refiners (or 

importers) of reformulated blendstock 

for oxygenate blending (RBOB) are 

permitted to take credit for downstream 

oxygenate blending when complying 

with RFG standards if certain conditions 

are met. 40 CFR 80.69. To do so, the 

refiner’s or importer’s RBOB must be 

accompanied by a PTD that specifies the 

type and amount of oxygenate that must 

be added. In addition, the refiner or 

importer must have direct oversight of 

the addition of the oxygenate or, in the 

alternative, a survey of all RFG areas 

supplied by the refiner(s) or importer(s) 

must be performed to show that the 

requisite amount of oxygenate is added 

as specified by the PTD. In either case, 

EPA requested comment regarding how 

credit for RFG downstream oxygenate 

blending should be dealt with in light 

of the potential introduction of E15 into 

the RFG marketplace. 

One commenter noted that PTDs and 

surveys should be sufficient to ensure 

that the requisite amount of oxygenate 

is added downstream so that the refiner 

can claim credit for the oxygenate 

addition when producing RBOB for RFG 

production. 

As pointed out above, the regulations 

at 40 CFR 80.69 already allow credit for 

RFG downstream oxygenate blending 

through either direct oversight or an 

oxygenate survey for RFG areas utilizing 

a specific amount and type of oxygenate 

for blending purposes. Both of these 

approaches can accommodate blending 

of E15 if such blending were to be 

utilized in adding oxygenate 

downstream to produce RFG. 

Importantly, when utilizing either of 

these approaches, the refiner or 

importer must specify in the PTD for the 

RBOB the type and amount of oxygenate 

that must be added, such that the 

oxygenate addition will produce RFG 

that meets applicable standards (such as 

benzene and VOC) that ‘‘formed the 

basis for the refiner’s or importer’s 

compliance determination for these 

parameters.’’ 31 This would mean, for 

example, that if a refiner or importer 

wants to take credit for downstream 

blending of E15, they must either 

directly supervise the addition of E15 to 

their RBOB or conduct an appropriate 

survey to show that E15 has been added 

as directed in the PTD. Therefore, 

considering existing requirements such 

as direct oversight, surveys, and PTDs, 

we conclude that no regulatory change 

is needed regarding credit for RFG 

downstream oxygenate blending. 

E. Compliance, Enforcement and 

Warranty 

We proposed liability and penalty 

provisions for the proposed misfueling 

mitigation measures similar to the 

liability and penalty provisions found in 

other EPA fuels regulations. Many 

commenters raised issues concerning 

liability for violations of the proposed 

misfueling mitigation measures and 

other potential consequences of the use 

of, or transition to, E15. According to a 

number of commenters, fuel providers 

are unlikely to sell E15 until a variety 

of different liability issues are resolved. 

Although EPA is not in a position to 

address all of the liability issues raised 

by commenters, in this section we 

address those within our jurisdiction 

and clarify the responsibilities of 

various parties, including fuel 

producers, distributors, retailers, 

product manufacturers and consumers, 

for compliance with Agency misfueling 

prohibitions and CAA vehicle and 

engine warranty and other requirements 

under the Act. 

In general, we believe the longstanding approach of EPA’s fuels 

programs and vehicle, engine, and 

equipment emissions warranty 

regulations to assigning respective 

responsibilities for compliance with our 

regulations is also appropriate for E15. 

We expect the required label and other 

misfueling mitigation measures, as 

reinforced by a public outreach 

campaign, will minimize consumer use 

of E15 in vehicles, engines, and 

products not covered by the partial 

waiver decisions. The misfueling 

mitigation program should in turn 

minimize any liability that might arise 


jlentini on DSK4TPTVN1PROD with RULES2
Federal Register / Vol. 76, No. 142 / Monday, July 25, 2011 / Rules and Regulations 44437 

32As noted in the preamble to the proposed rule, 

an additional type of liability, vicarious liability, is 

imposed on branded refiners under EPA’s fuels 

programs. 

33As noted previously in this preamble, 

consumers are among the parties subject to the 

prohibition on misfueling with E15. 

under the CAA or our regulations 

regarding misfueling with E15. 

With regard to other transition issues 

within EPA’s jurisdiction, we are 

continuing to make progress in 

developing guidance for determining 

whether existing underground storage 

tank systems are compatible for storing 

E15. We also plan to work with 

stakeholders to monitor and facilitate 

efforts to address other transition issues 

involving state, local and other 

requirements. 

1. Proposed Approach 

In the NPRM, we proposed specific 

prohibited acts for general misfueling 

mitigation purposes related to the 

distribution, sale, and use of gasoline 

containing greater than 10 vol% 

ethanol. We also proposed related 

liability and penalty provisions for 

noncompliance with the proposed 

prohibited acts. These proposed liability 

and penalty provisions included 

presumptive liability for parties in the 

fuel distribution system (consistent with 

presumptive liability provisions of other 

EPA fuels programs), affirmative 

defenses for liable parties, and penalties 

for violations. 

With respect to prohibited acts, we 

proposed that all fuel providers 

(producers, manufacturers, distributors, 

wholesale purchaser-consumers, and 

retailers) would be prohibited from 

selling, introducing into commerce, or 

causing or allowing the sale or 

introduction into commerce of gasoline 

containing greater than 10 vol% ethanol 

into MY2000 and older light-duty motor 

vehicles, any heavy-duty gasoline 

vehicle, any motorcycle and all types of 

nonroad equipment. In addition, we 

proposed that fuel distributors who 

transport or store gasoline-ethanol 

blends, gasoline or blendstock for 

ethanol blending would be prohibited 

from increasing the ethanol content to 

exceed the value noted on the PTD. We 

also proposed that retailers and 

wholesale purchaser-consumers would 

be prohibited from dispensing E15 

unless they comply with the dispenser 

labeling requirements. The final labeling 

and other misfueling mitigation 

requirements are discussed in section 

III.A. of this notice. 

The liability and penalty provisions 

discussed in the proposal are similar to 

the liability and penalty provisions 

found in other EPA fuel regulations. 

Specifically, EPA fuels programs 

generally include a liability scheme for 

violations of prohibited acts that 

involves a rebuttable presumption of 

liability in specified circumstances. 

Under this approach, liability is 

imposed on the party in the fuel 

distribution system that controls the 

facility where the violation occurred 

and those parties, typically upstream in 

the fuel distribution system from the 

initially listed party, whose prohibited 

activities could have caused the 

nonconformity to exist.32 We 

emphasized in the proposal that any 

person who commits a prohibited act, or 

causes another person to commit a 

prohibited act, would also be liable for 

a violation, so most parties in the chain 

of distribution would be subject to the 

rebuttable presumption of liability for 

committing prohibited actions or 

causing violations by other parties.33

The presumptive liability approach 

for violations of prohibited acts in our 

fuels programs also includes affirmative 

defenses to prohibited acts. Generally, 

affirmative defenses require a 

demonstration of all of the following: (1) 

The fuel provider did not commit or 

cause the violation; (2) the fuel provider 

has PTDs indicating the fuel was in 

compliance at its facility; and (3) except 

for retailers and wholesale purchaserconsumers, the fuel provider conducted 

a quality assurance program. In the 

proposal, we stated that if a consumer 

was liable for introducing gasoline with 

an ethanol content greater than 10 vol% 

into a vehicle, engine, or product not 

covered by the E15 partial waivers, then 

a self-service retailer would typically 

not be held liable for the consumer 

misfueling if the retailer’s dispensers 

were labeled appropriately and did not 

condone or facilitate the misfueling. 

While the NPRM proposed general 

misfueling mitigation provisions, it did 

not specifically address emissions 

warranties for vehicles, engines, and 

equipment or the effect of E15 use on 

the warranties. However, warranties are 

addressed by other EPA regulations and 

the effect of E15 use on the warranties 

is no different than the effect of other 

legal fuels on the warranties. EPA 

regulations require emission-related 

parts to be warranted that they are free 

from defects in materials and 

workmanship which cause failure to 

meet emissions standards and that at the 

time of sale the vehicles are designed, 

built, and equipped in compliance with 

EPA’s regulations. (See CAA section 

207(a).) There is also a performance 

warranty that applies in certain cases for 

the short testing conducted by state 

inspection and maintenance programs. 

(See CAA section 207(b).) The emissions 

warranty for light-duty motor vehicles is 

typically two years or 24,000 miles, 

except for the warranty for emission 

control computers and catalytic 

converters, which is eight years or 

80,000 miles. Other vehicles and 

equipment may have warranties of a 

different duration, or warranties 

measured in hours of operation. 

Warranties may be made conditional on 

the use of a specified fuel as long as it 

is available, and the condition is 

appropriately noted in the owner’s 

manual. (See e.g. 40 CFR. 85.2104, 

1068.115). Despite the condition, 

however, manufacturers may not deny a 

warranty based on the use of a different 

fuel if that fuel did not cause the 

problem for which the warranty claim is 

made. 

2. Consideration of Comments 

a. Prohibited Acts and Liability 

Provisions 

Commenters suggested that the 

proposed regulations do not, but should, 

prohibit intentional misfueling of 

vehicles with E15. We believe that the 

proposed regulations did include this 

prohibition. Specifically, the proposed 

regulations would prohibit consumer 

misfueling, whether intentional or not, 

and we are retaining that provision in 

today’s final rule. Thus, today’s final 

rule prohibits any person from 

introducing or causing the introduction 

of gasoline containing greater than 10 

vol% ethanol into vehicles, engines, and 

products not covered by the E15 partial 

waivers, and prohibits causing or 

allowing the introduction of gasoline 

containing greater than 10 vol% ethanol 

into such vehicles, engines, and 

products. 

Concerning retailers’ liability, some 

commenters suggested that where a 

retailer complies with the E15 labeling 

requirements, the retailer should be 

completely immune from liability in the 

event that misfueling by consumers 

occurs. Other commenters suggested 

that proper labeling should shield 

retailers from liability absent evidence 

that the retailer encouraged or 

facilitated the misfueling. In contrast, 

still other commenters suggested that 

retailers be required to actively assess if 

misfueling is in fact occurring at selfserve pumps. We do not believe that 

retailers should be provided with 

blanket immunity based on labeling 

alone. The obligation of a retailer is to 

not misfuel and to not cause misfueling. 

Misfueling may occur in or as a result 

of varied circumstances, making a bright 

line provision—such as the suggested 

blanket immunity if dispensers are 

properly labeled—problematic. For 


jlentini on DSK4TPTVN1PROD with RULES2
44438 Federal Register / Vol. 76, No. 142 / Monday, July 25, 2011 / Rules and Regulations 

example, proper labeling by a retailer 

that is located at a marina and that sells 

fuel almost exclusively for use in boats 

may not be enough to avoid liability for 

misfueling of boats with E15. The 

variety of circumstances in which 

fueling occurs also do not warrant a 

blanket requirement of some specific 

degree of active oversight by the retailer. 

We therefore believe that it is 

appropriate to continue to apply the 

liability provisions of the misfueling 

mitigation regulations generally as 

proposed. The provisions finalized 

today are substantially the same as the 

liability provisions of other regulations 

governing the sale and use of fuels 

governed by the Act, and we believe 

that those provisions are effective. Like 

those regulations, today’s final 

regulations specify which regulated 

parties can be held liable for infractions 

of the requirements, and allows 

assertion of defenses to such liability if 

a party meets specified conditions. For 

retailers, as well as other regulated 

parties, one of those conditions is that 

the prohibited act was not committed or 

caused by the party. 

Commenters suggested that EPA 

specify in the regulations that a retailer 

did not ‘‘cause’’ misfueling at properly 

labeled pumps if the retailer did not 

condone or facilitate the misfueling. 

EPA does not believe that adding such 

a specification to the regulation is 

merited, for the reasons discussed 

above. If a misfueling violation does 

occur, we will assess all of the 

circumstances pertaining to the 

violation to assess whether a defense of 

lack of causation is valid, and if not, the 

severity of the violation. EPA will take 

into consideration all actions taken by 

the retailer to avoid misfueling. For the 

reasons discussed in Section III of this 

notice, today’s rule requires that several 

specific misfueling mitigation measures 

be implemented and does not require 

that additional measures be employed at 

this time. However, retailers may choose 

to employ a variety of other measures, 

such as obtaining confirmation that the 

consumer desires to dispense E15 or 

equipping pumps that dispense only 

E15 with a distinctly colored nozzle 

hand warmer, as they consider 

appropriate for their circumstances. A 

party does not need to employ such 

measures in order to establish an 

affirmative defense to a presumption of 

liability, but EPA will consider any 

additional measures that a party has 

taken in assessing all of the 

circumstances that pertain to a 

violation. 

Similarly, commenters also suggested 

that where a branded supplier of E15 

complies with the labeling and other 

provisions, and has implemented a 

program notifying its retailers of the 

requirements of the law, it should be 

immune from liability if misfueling does 

occur. Based on EPA’s experience with 

other fuels programs, EPA does not 

believe that merely notifying retailers 

about the requirements should 

immunize branded suppliers from 

liability for violations at retailers. As a 

result, EPA is not changing those 

defenses in the rule promulgated today. 

However, for a misfueling violation by 

a consumer at a branded retailer, EPA 

will consider all of the circumstances 

pertaining to the violation to assess 

whether a branded refiner’s defense of 

lack of causation is valid, and if not, the 

severity of the violation. 

b. Emissions Warranty Issues for 

Vehicles, Engines, and Equipment 

Commenters expressed concern that 

motor vehicle manufacturers might void 

the emissions warranty of motor 

vehicles based on use of E15 and/or that 

warranty claims will increase in number 

as a result of E15 use. Based on the test 

data and analysis on which the E15 

partial waivers were based, EPA 

believes that voiding a warranty claim 

will occur infrequently if at all for 

MY2001 and newer light-duty vehicles 

(i.e., those for which the E15 partial 

waivers allow E15 to be sold for use) 

fueled with E15. For light-duty and 

other motor vehicles not covered by the 

partial waivers, EPA notes that to avoid 

honoring an emissions warranty, a 

manufacturer must not only condition 

the warranty on use of a fuel other than 

E15, it must also must show that use of 

E15 was relevant to the reason that the 

motor vehicle failed emissions testing. 

EPA regulations for nonroad equipment 

impose similar conditions on voiding 

warranties for nonroad equipment. In 

light of the misfueling prohibition and 

labeling requirements adopted in 

today’s rule, we expect that consumers 

will have both the information and 

incentive they need to avoid misfueling 

with E15 and any damage to emission 

controls that misfueling could cause. 

Commenters also stated that imposing 

a burden on manufacturers to show that 

E15 was the cause of a failure is unfair, 

and that manufacturers will be required 

to report more defects to EPA. 

Manufacturers currently make such 

determinations under the warranty 

provisions, as well as the defect 

reporting provisions (see 40 CFR 

85.1901 et seq., 1068.501). As with other 

emissions warranty related 

circumstances, manufacturers are in the 

best position to investigate and 

determine the cause of defects and 

emissions failures of their vehicles or 

equipment, and they are best equipped 

to make determinations regarding 

whether a warranty should be honored. 

We are interested in learning about any 

defects, or investigations of defects that 

are required to be reported, including 

those involving defects that may be 

related to use of E15, including 

misfueling with E15. However, we note 

that EPA will only order a recall based 

on a determination that a substantial 

number of vehicles would fail to meet 

their emissions standards when the 

motor vehicle is properly maintained 

and used (see e.g. 40 CFR 85.1802(a)). 

c. Other Issues Outside of CAA 

Jurisdiction 

Commenters expressed concern that 

consumers will make monetary claims 

against E15 retailers for damage to their 

vehicles or equipment related to E15 

use. They asked that EPA indemnify 

retailers against such claims. As noted 

above, EPA does not believe that such 

damage will occur when E15 is properly 

used. In addition, the provisions 

adopted today provide a strong 

incentive for all parties, including 

consumers, to avoid misfueling. We also 

plan to work with stakeholders on an 

outreach effort, which should further 

limit misfueling incidences. However, 

we have no authority to, and do not 

intend to, address issues of liability that 

might be raised in litigation between 

private parties. EPA is only addressing 

issues relevant to its exercise of 

authority under the Clean Air Act. It is 

also worth noting that fuel providers are 

not required to make or offer E15 and 

do so of their own choosing. 

Commenters expressed concern that 

E15 misfueling could result in personal 

injury to consumers, leading to safety 

recalls by other Federal agencies, among 

other things. They also suggested that 

EPA should address materials 

compatibility and safety issues 

regarding E15 and dispensing 

equipment and storage tanks. Other 

agencies act under their own 

authorities, and EPA is not in a position 

to address in this rule actions that may 

or may not be taken by other agencies 

in the future. As noted previously, EPA 

is developing final guidance for 

determining the compatibility of 

existing underground storage tanks with 

E15. The issues of materials 

compatibility and safety issues 

regarding dispensing equipment are 

addressed by state and/or local 

requirements. 

3. Final Requirements 

With respect to compliance and 

enforcement associated with prohibited 

acts to mitigate misfueling, today’s final 


jlentini on DSK4TPTVN1PROD with RULES2
Federal Register / Vol. 76, No. 142 / Monday, July 25, 2011 / Rules and Regulations 44439 

34 75 FR 68044, 68046 (November 4, 2010). The 

partial waiver decisions require that fuel and fuel 

additive manufacturers (i.e. gasoline producers/ 

importers, ethanol producers/importers, and 

oxygenate blenders) submit to EPA a plan prior to 

introduction of E15 into commerce that 

Continued 

rule includes liability requirements that 

are consistent with the liability 

requirements of other EPA fuels 

programs—retailers and other parties 

are presumptively liable for consumer 

misfueling and other violations, but 

parties are not liable if they can show 

they did not cause the misfueling. 

Consumers are also liable for misfueling 

their own vehicles, engines or products. 

Regarding vehicle, engine, and 

equipment emissions warranties, under 

EPA warranty regulations, 

manufacturers may condition an 

emissions warranty on the use of a 

specific fuel but they may not deny a 

warranty on the use of a different fuel 

if that fuel did not cause problems. 

F. Technical Basis for the Rule 

These misfueling mitigation 

regulations are issued under CAA 

section 211(c) in order to prevent or 

minimize the emission increases that 

would occur if E15 is used in vehicles, 

engines, and products for which the 

waiver has been denied, specifically, 

MY2000 and older motor vehicles and 

all heavy-duty gasoline engines and 

vehicles, motorcycles and nonroad 

products. As described in the NPRM 

and E15 partial waiver decisions, our 

assessment of the potential emission 

consequences of E15 use indicates that 

the emission-related components of 

MY2001 and newer light-duty motor 

vehicles are durable for use on gasolineethanol blends up to E15. This 

conclusion is based on the results of 

DOE’s Catalyst Study and other relevant 

test programs, as well as the Agency’s 

engineering assessment of advances in 

motor vehicle technology (primarily 

control of the air-to-fuel ratio matched 

with advancements in catalyst 

formulations) and materials that have 

taken place in response to a series of 

important exhaust and evaporative 

emission requirements since MY2000 

and in-use experience with E10. These 

requirements include the National Low 

Emission Vehicle and Tier 2 motor 

vehicle emission standards, 

Supplemental Federal Test Procedure 

compliance requirements, in-use 

durability requirements (required by the 

Compliance Assurance Program of 

2000), enhanced evaporative emission 

standards, and E10 evaporative 

durability requirements. 

Unlike for MY2001 and newer motor 

vehicles, there is very little, if any, test 

data with respect the effect of E15 use 

in MY2000 and older light-duty motor 

vehicles and all heavy-duty gasoline 

engines and vehicles, motorcycles, and 

nonroad products. In addition, our 

engineering assessment for these 

vehicles, engines, and products 

identifies a number of emission-related 

concerns with the use of E15. For motor 

vehicles and heavy-duty gasoline 

engines and vehicles, these concerns 

include the potential for catalyst 

deterioration or catalyst failure, as well 

as materials compatibility issues that 

could lead to extremely elevated 

exhaust and evaporative emissions. For 

motorcycles and nonroad products, the 

misfueling concerns include the 

potential for elevated exhaust and 

evaporative emissions, as well as the 

potential for emissions impacts related 

to engine failure from overheating. As 

motorcycles and nonroad products have 

not been regulated as long as motor 

vehicles, and have much more diverse 

applications, they have not benefitted 

from the same advancements in 

technology as motor vehicles and could 

experience combustion and materials 

compatibility problems leading to 

increased emissions if operated on E15. 

Based on these concerns, we proposed 

to prohibit the use of gasoline-ethanol 

blends greater than 10 vol% in MY2000 

and older motor vehicles, and all heavyduty gasoline engines and vehicles, 

motorcycles, and nonroad products and 

invited comment on the prohibition’s 

applicability to those vehicles, engines, 

and products. While some commenters 

stated that we should approve E15 for 

all motor vehicles, those comments 

pertain to the waiver decisions. We 

received no comments on our 

emissions-related technical justification 

for the proposed misfueling mitigation 

measures under CAA section 211(c). 

It is worth noting that while the 

labeling requirements covered in 

Section III apply to E15, the 

prohibitions discussed in this section 

apply to all gasoline-ethanol blends 

greater than 10 vol% (e.g., 20 vol% 

ethanol). This is consistent with our 

engineering assessment discussed in the 

NPRM which was based, in part, on 

enleanment of the air-to-fuel ratio. 

Ethanol enleans the air-to-fuel ratio 

which leads to increased exhaust gas 

temperatures and therefore potentially 

incremental deterioration of emission 

control hardware and performance over 

time. This enleanment stems from the 

fact that ethanol contains oxygen and 

consequently requires a lower air-to-fuel 

ratio to achieve the stoichiometric 

(ideal) mixture for combustion. 

Vehicles, engines, and equipment 

designed to operate on gasoline will 

therefore run leaner when operating on 

gasoline-ethanol blends. Older motor 

vehicles, heavy-duty gasoline engines 

and vehicles, motorcycles, and 

especially nonroad products cannot 

fully compensate for the change in the 

stoichiometric air-to-fuel ratio as 

ethanol concentration increases. Over 

time, this enleanment caused by ethanol 

may lead to thermal degradation of the 

emissions control hardware and 

ultimately catalyst failure. Higher 

ethanol concentration will exacerbate 

the enleanment effect in these vehicles, 

engines, and equipment and therefore 

increase the potential of thermal 

degradation and risk of catalyst failure. 

In addition to enleanment, ethanol can 

cause materials compatibility issues 

which may lead to other component 

failure and ultimately exhaust and/or 

evaporative emission increases. 

Materials compatibility with ethanol is 

time, condition (e.g., temperature, 

pressure), and concentration dependent. 

Therefore, for older motor vehicles, 

heavy-duty gasoline engines and 

vehicles, motorcycles, and nonroad 

products, the potential for materials 

compatibility issues increases with 

higher ethanol concentration. We 

received no comments that the 

misfueling prohibition should be 

narrowed to E15. 

It is not possible to precisely quantify 

the frequency at which these vehicles, 

engines, and products might experience 

problems with the use of E15. However, 

we believe that emission-related 

problems could potentially occur with 

enough frequency that the resulting 

emissions increases that would be 

avoided by avoiding misfueling would 

outweigh the relatively low cost 

imposed by the required misfueling 

mitigation regulations. The potential 

emission increases from misfueling 

warrant today’s action, even if a very 

low percentage of vehicles, engines, and 

products experiences problems. As 

discussed above, the savings that would 

be achieved by avoiding misfueling also 

far outweigh the costs of this rule. 

Therefore, we are finalizing the 

misfueling mitigation measures we 

proposed with some refinements to 

make them more effective and/or less 

burdensome. 

G. The Effect of the Rule on the 

Misfueling Mitigation Conditions of the 

Partial Waivers 

In the NPRM, the Agency noted that 

some of the proposed misfueling 

safeguards parallel the conditions of the 

partial waiver decisions, and were 

expected to be a more efficient way to 

help ensure that the conditions of the 

waiver were met.34 One commenter 


jlentini on DSK4TPTVN1PROD with RULES2
44440 Federal Register / Vol. 76, No. 142 / Monday, July 25, 2011 / Rules and Regulations 

demonstrates how the fuel or fuel additive 

manufacturer will implement reasonable measures 

to ensure that misfueling does not occur in vehicles 

and engines not approved for use of E15. 

Reasonable measures to ensure against misfueling 

include, but are not limited to, fuel pump labeling, 

proper documentation of ethanol content on PTDs, 

and the implementation of an ongoing survey 

program, in addition to any other reasonable 

measures EPA determines are appropriate. See 75 

FR 68149–68150. 

suggested that if the proposed 

misfueling mitigation measures were 

adopted, EPA should remove or alter the 

misfueling mitigation conditions of the 

partial waivers to avoid placing 

requirements on industry that would be 

duplicative and unnecessary. 

Specifically, the commenter stated that 

fuel and fuel additive manufacturers 

should not have to submit plans to EPA 

that explain how a fuel or fuel additive 

manufacturer would meet the 

misfueling mitigation conditions of the 

partial waivers. 

In response to the commenter’s 

suggestion, it is important to clarify that 

the purpose of this rule is to mitigate 

misfueling with E15 that lawfully has 

been introduced into commerce under 

the terms of the waiver. The waiver 

conditions, and implementation of the 

waiver conditions, address a closely 

related but different issue—when, how 

and by whom E15 can be introduced 

into commerce under the partial waiver 

decisions. This rule only addresses the 

issue of mitigating misfueling in the 

event E15 is lawfully introduced into 

commerce under the partial waivers, 

and is issued under EPA’s authority 

under section 211(c). In this rulemaking 

EPA did not propose and is not taking 

any action under section 211(f) with 

respect to the partial waivers that were 

previously issued. For example, in this 

rulemaking EPA is not modifying any of 

the conditions of the waivers, or making 

any decisions as to whether they have 

been met. Decisions related to 

compliance with the conditions on the 

waivers will be made separate and apart 

from this rulemaking. 

EPA recognizes that one result of 

today’s rule is that it will likely be 

easier for parties to show compliance 

with the misfueling mitigation 

conditions of the partial waivers. 

However, today’s rule does not replace 

or supplant the waiver conditions 

themselves. The partial waivers allow 

E15 to be lawfully introduced into 

commerce for use in MY2001 and newer 

light-duty motor vehicles if certain 

conditions are met. Fuel and fuel 

additive manufacturers that desire to 

make and sell E15 must do so in 

compliance with the waivers’ 

conditions, which include submission 

of a misfueling mitigation plan that 

provides, among other things, for E15 

pump labels, PTDs indicating ethanol 

content and an ongoing survey of 

implementation of E15 content and 

labeling requirements. Today’s rule will 

likely simplify compliance with many 

aspects of the required plan. For 

example, a fuel or fuel additive 

manufacturer may decide to reference 

the labeling and PTD requirements of 

the rule as part of its plan to meet the 

counterpart conditions of the waivers. 

EPA also expects that parties will be 

able to submit a single survey plan that 

will meet both the waiver condition as 

well as the separate regulatory 

requirements related to the survey 

adopted in this rule. Since the partial 

waivers and the rule require that survey 

plans be submitted to EPA for approval, 

EPA expects that compliance with the 

survey requirements of the waiver 

conditions and the rule will be 

accomplished with a single submission 

and approval process, covering both this 

rule and the waiver condition. 

EPA believes that the misfueling 

mitigation plans submitted under the 

partial waivers will be especially useful 

when E15 is first introduced into the 

market. For instance, many downstream 

parties may not be aware of the new 

requirements that apply to E15 (e.g., E15 

pump labeling) early in any transition to 

E15. The first plans under the partial 

waivers may thus usefully address how 

the fuel or fuel additive manufacturer 

will work with downstream parties to 

ensure that the misfueling mitigations 

measures adopted today are properly 

implemented. Similarly, it may be 

appropriate for an ethanol manufacturer 

registered under 40 CFR Part 79 to sell 

ethanol for use in manufacturing E15 to 

address in its plan how parties that 

might use its product to make E15 will 

be informed of the misfueling mitigation 

requirements to which those parties 

would become subject under this rule 

(e.g., labeling, PTDs) if they make E15. 

Such parties would include, for 

example, businesses that blend ethanol 

into gasoline to produce E15. 

H. E15 Emissions and Anti-Backsliding 

In the NPRM and in the partial waiver 

decisions, EPA discussed the 

relationship between the ethanol 

content of a gasoline-ethanol blended 

fuel and NOx emissions. EPA concluded 

that, in general, as ethanol 

concentrations in gasoline increase, so 

do NOx emissions. The Agency received 

several comments that argued that 

potential NOx emission increases from 

E15 use would add to the formation of 

ground-level ozone and potentially 

adversely affect public health. 

Additionally, some commenters noted 

that such NOx increases would add to 

the challenge some states and cities face 

in meeting the current national air 

quality standards for ozone and that 

EPA should take action to ameliorate 

potential adverse emissions effects from 

E15 use. Although such action is 

outside of the scope of today’s 

rulemaking, the Agency has been 

performing analysis needed to support 

the anti-backsliding analysis required 

under the Energy Independence and 

Security Act of 2007. We are now in the 

process of assessing possible control 

measures to offset the potential 

increases in ozone and particulate 

matter that are expected to result from 

the increased use of renewable fuels 

required by the Energy Independence 

and Security Act of 2007 and in 

response to the May 21, 2010, 

Presidential Memorandum Regarding 

Fuel Efficiency Standards. (NOx

emissions contribute to the formation of 

both pollutants.) We will incorporate 

the results of our analysis under this 

assessment in a proposal on new motor 

vehicle and fuel control measures. 

V. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

Under Executive Order 12866 (58 FR 

51735, October 4, 1993), this action is a 

‘‘significant regulatory action.’’ This 

action may raise novel legal or policy 

issues. Accordingly, EPA submitted this 

action to the Office of Management and 

Budget (OMB) for review under 

Executive Orders 12866 and 13563 (76 

FR 3821, January 21, 2011) and any 

changes made in response to OMB 

recommendations have been 

documented in the docket for this 

action. 

B. Paperwork Reduction Act 

This rule contains new information 

requirements which will be submitted 

for approval to the Office of 

Management and Budget (OMB) under 

the Paperwork Reduction Act, 44 U.S.C. 

3501 et seq. These information 

collection requirements are not 

enforceable until OMB approves them. 

This final rule contains information 

collection provisions that permit a party 

to apply for approval of an alternative 

or additional E15 label. We anticipate 

that this provision will be utilized by 

some refiners for their branded retailers, 

as well as by some individual retailers 

and wholesale purchaser-consumers. 

A party may elect to satisfy the survey 

requirements of this rule individually 


jlentini on DSK4TPTVN1PROD with RULES2
Federal Register / Vol. 76, No. 142 / Monday, July 25, 2011 / Rules and Regulations 44441 

35 75 FR 68094, 68149–68150 (November 4, 2010). 

rather than through using a nationwide 

survey option (i.e., they may elect 

‘‘Survey Option 1’’ as described above 

in section III.C). In such circumstances, 

the individual information collection 

requirements associated with ‘‘Survey 

Option 1’’ will apply. Parties that may 

be subject to survey information 

collection requirements include 

gasoline refiners, gasoline and ethanol 

importers, gasoline and ethanol 

blenders (including terminals and 

carriers), and ethanol producers. 

Under the terms of the E15 partial 

waiver, fuel and fuel additive 

manufacturers must submit a written 

plan to EPA for approval.35 The plan 

must include provisions designed to 

prevent misfueling. The plan must be 

submitted by all fuel and fuel additive 

manufacturers, regardless of whether a 

party elects ‘‘Survey Option 1’’ 

(individual) or ‘‘Survey Option 2’’ 

(nationwide). Parties that may be subject 

to this information collection item may 

include gasoline refiners, gasoline and 

ethanol importers, gasoline and ethanol 

blenders (including terminals and 

carriers), and ethanol producers. 

This rule contains provisions related 

to product transfer documents (PTDs). 

Parties upstream of the retail station or 

wholesale purchaser-consumer will be 

required to develop and program new 

codes and statements for PTDs. These 

codes will reflect the ethanol content, as 

well as the Reid Vapor pressure (RVP), 

as described in section III.B. Parties 

subject to this one time burden include 

gasoline refiners, gasoline and ethanol 

importers, and gasoline and ethanol 

blenders (including terminals and 

carriers). 

In addition to the one time burden of 

establishing/programming codes and 

statements for PTDs, parties will be 

required to apply the new codes and 

statements to PTDs as part of the normal 

course of business. Typically, refiners 

and wholesale purchaser-consumers 

who are not acting as blenders merely 

accept PTDs given to them by upstream 

parties. The following parties may have 

the burden of applying codes and 

statements: gasoline refiners, gasoline 

and ethanol importers, gasoline and 

ethanol blenders (including terminals 

and carriers). 

EPA estimates that there will be a 

total of 6,211 respondents, submitting a 

total of 44,010,211 responses annually. 

We estimate an annual total of 37,350 

hours for all respondents and responses. 

The total annual cost of this information 

collection request is estimated at 

$4,102,524. 

We estimate that the average annual 

burden per respondent is six (6) hours 

and that the average annual cost per 

respondent is $661. We estimate an 

average of .000849 hours per response. 

(It should be noted that the reason for 

this short average time per response is 

that nearly all of the responses will take 

approximately one second and represent 

the time it takes to apply an automated 

code or statement to a PTD.) 

Burden means the total time, effort, or 

financial resources expended by persons 

to generate, maintain, retain, or disclose 

or provide information to or for a 

Federal agency. This includes the time 

needed to review instructions; develop, 

acquire, install, and utilize technology 

and systems for the purposes of 

collecting, validating, and verifying 

information, processing and 

maintaining information, and disclosing 

and providing information; adjust the 

existing ways to comply with any 

previously applicable instructions and 

requirements; train personnel to be able 

to respond to a collection of 

information; search data sources; 

complete and review the collection of 

information; and transmit or otherwise 

disclose the information. An agency 

may not conduct or sponsor, and a 

person is not required to respond to, a 

collection of information unless it 

displays a currently valid OMB control 

number. The OMB control numbers for 

EPA’s regulations are listed in 40 CFR 

part 9 and 48 CFR chapter 15. 

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA) 

generally requires an agency to prepare 

a regulatory flexibility analysis of any 

rule subject to notice and comment 

rulemaking requirements under the 

Administrative Procedure Act or any 

other statute unless the agency certifies 

that the rule will not have a significant 

economic impact on a substantial 

number of small entities. Small entities 

include small businesses, small 

organizations, and small governmental 

jurisdictions. 

For purposes of assessing the impacts 

of today’s rule on small entities, small 

entity is defined as: (1) A small business 

as defined by the Small Business 

Administration’s (SBA) regulations at 13 

CFR 121.201; (2) a small governmental 

jurisdiction that is a government of a 

city, county, town, school district or 

special district with a population of less 

than 50,000; and (3) a small 

organization that is any not-for-profit 

enterprise which is independently 

owned and operated and is not 

dominant in its field. 

After considering the economic 

impacts of today’s final rule on small 

entities, I certify that this action will not 

have a significant economic impact on 

a substantial number of small entities. 

The small entities directly regulated by 

this final rule are petroleum refiners and 

importers, ethanol producers, ethanol 

blenders, gasoline terminals, gasoline 

stations with convenience stores, and 

other gasoline stations. While there are 

small entities in each of these market 

sectors as discussed in Section III.F., the 

cost impact on any particular entity is 

expected to be a tiny fraction of annual 

revenues. 

D. Unfunded Mandates Reform Act 

This rule does not contain a Federal 

mandate that may result in expenditures 

of $100 million or more for State, local, 

and Tribal governments, in the 

aggregate, or the private sector in any 

one year. The total annual cost is 

expected to be $3.64 million. Thus, this 

rule is not subject to the requirements 

of sections 202 or 205 of UMRA. 

This rule is also not subject to the 

requirements of section 203 of UMRA 

because it contains no regulatory 

requirements that might significantly or 

uniquely affect small governments. This 

action primarily affects the private 

sector, specifically petroleum refiners 

and importers, ethanol producers, 

ethanol blenders, gasoline terminals, 

gasoline stations with convenience 

stores, and other gasoline stations. 

E. Executive Order 13132 (Federalism) 

This action does not have federalism 

implications. It will not have substantial 

direct effects on the States, on the 

relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132. Any preemption 

of State or local controls under section 

211(c)(4)(A), based on issuance of this 

rule under section 211(c)(1), would only 

apply to State or local controls adopted 

for purposes of motor vehicle emissions 

control. This rule will be implemented 

at the Federal level and impose 

compliance costs only on petroleum 

refiners and importers, gasoline stations 

with convenience stores, and other 

gasoline stations. Thus, Executive Order 

13132 does not apply to this action. 

In the spirit of Executive Order 13132, 

and consistent with EPA policy to 

promote communications between EPA 

and State and local governments, EPA 

specifically solicited comment on the 

proposed action from State and local 

officials. The Agency did not receive 

any comments from states or local 

governments that cited a concern over 

state preemption or federalism. 


jlentini on DSK4TPTVN1PROD with RULES2
44442 Federal Register / Vol. 76, No. 142 / Monday, July 25, 2011 / Rules and Regulations 

36Section VII. ‘‘What is our legal authority for 

proposing these misfueling mitigation measures?’’ 

75 FR 68044, 68081 (November 4, 2010). 

F. Executive Order 13175 

This action does not have tribal 

implications, as specified in Executive 

Order 13175 (65 FR 67249, November 9, 

2000). This rule will be implemented at 

the Federal level and impose 

compliance costs only on petroleum 

refiners, importers, oxygenate blenders, 

gasoline stations with convenience 

stores, and other gasoline stations. Thus, 

Executive Order 13175 does not apply 

to this action. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

EPA interprets EO 13045 (62 FR 

19885, April 23, 1997) as applying only 

to those regulatory actions that concern 

health or safety risks, such that the 

analysis required under section 5–501 of 

the EO has the potential to influence the 

regulation. This action is not subject to 

EO 13045 because it does not establish 

an environmental standard intended to 

mitigate health or safety risks. 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This action is not a ‘‘significant 

energy action’’ as defined in Executive 

Order 13211 (66 FR 28355 (May 22, 

2001)), because it is not likely to have 

a significant adverse effect on the 

supply, distribution, or use of energy. 

This final rule has a labeling 

requirement, a prohibition against the 

use of gasoline containing more than 10 

vol% ethanol in vehicles, engines and 

equipment not covered by the partial 

waiver decisions, a PTD requirement; 

and a survey requirement. 

There is no cost for the prohibition. 

The cost of the label is estimated at $5 

per year per service station. This is a 

tiny fraction of the station’s annual 

sales, and is not expected to 

significantly affect energy distribution. 

The cost of the PTD requirement is 

estimated at $0.45 million per year. This 

cost is a one-time cost to reformat PTDs 

amortized over 15 years; any additional 

costs are expected to be insignificant. 

The total cost of the survey 

requirements is estimated to be $2.15 

million per year. The projected total 

cost of the final provisions is $3.64 

million per year (see section IV for a 

more detailed discussion of these 

estimated costs). These costs are not 

expected to increase the cost of energy 

production or distribution in excess of 

one percent. Therefore, this final action 

is not expected to have a significant 

adverse energy effect. 

I. National Technology Transfer and 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (‘‘NTTAA’’), Public Law 

104–113, 12(d) (15 U.S.C. 272 note) 

directs EPA to use voluntary consensus 

standards in its regulatory activities 

unless to do so would be inconsistent 

with applicable law or otherwise 

impractical. Voluntary consensus 

standards are technical standards (e.g., 

materials specifications, test methods, 

sampling procedures, and business 

practices) that are developed or adopted 

by voluntary consensus standards 

bodies. NTTAA directs EPA to provide 

Congress, through OMB, explanations 

when the Agency decides not to use 

available and applicable voluntary 

consensus standards. 

This action does not involve technical 

standards. Therefore, EPA did not 

consider the use of any voluntary 

consensus standards. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order (EO) 12898 (59 FR 

7629 (Feb. 16, 1994)) establishes Federal 

executive policy on environmental 

justice. Its main provision directs 

Federal agencies, to the greatest extent 

practicable and permitted by law, to 

make environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

populations and low-income 

populations in the United States. 

EPA has determined that this final 

rule will not have disproportionately 

high and adverse human health or 

environmental effects on minority or 

low-income populations because it 

increases the level of environmental 

protection for all affected populations 

without having any disproportionately 

high and adverse human health or 

environmental effects on any 

population, including any minority or 

low-income population. This action 

would affect all gasoline stations that 

choose to sell E15 and therefore will not 

affect any particular area 

disproportionately. 

K. Congressional Review Act 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this rule and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A Major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. 804(2). This rule 

will be effective August 24, 2011. 

VI. Legal Authority and Judicial 

Review 

A. Legal Authority 

As explained above, we are finalizing 

the misfueling mitigation measures 

pursuant to our authority under CAA 

section 211(c)(1). This section gives EPA 

authority to ‘‘control or prohibit the 

manufacture, introduction into 

commerce, offering for sale, or sale’’ of 

any fuel or fuel additive (A) Whose 

emission products, in the judgment of 

the Administrator, cause or contribute 

to air pollution ‘‘which may be 

reasonably anticipated to endanger 

public health or welfare’’ or (B) whose 

emission products ‘‘will impair to a 

significant degree the performance of 

any emission control device or system 

which is in general use, or which the 

Administrator finds has been developed 

to a point where in a reasonable time it 

would be in general use’’ were the fuel 

control or prohibition adopted. In 

Section VII 36 of the proposed rule, we 

explained how under section 211(c)(1), 

EPA may adopt a fuel control if at least 

one of the two criteria above is met. We 

also explained that we were proposing 

the misfueling mitigation measures 

based on both of these criteria. We 

stated that under section 211(c)(1)(B), 

we believed that E15 would 

significantly impair the emission 

control systems used in MY2000 and 

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

highway and off-highway motorcycles, 

and all nonroad products. This led to 

our conclusion that under section 

211(c)(1)(A), the likely result would be 

increased HC, CO and NOX emissions 

when these particular engines, vehicles 

and nonroad products use E15. 

EPA received no comments on our 

analysis in Section VII during the public 

comment period. Therefore, EPA is 

finalizing these misfueling mitigation 

measures under our authority in section 


jlentini on DSK4TPTVN1PROD with RULES2
Federal Register / Vol. 76, No. 142 / Monday, July 25, 2011 / Rules and Regulations 44443 

211(c)(1). We fully include by reference 

our analysis in Section VII of the 

proposed rule as our basis for doing so 

since our rationale is the same for this 

final action. 

B. Judicial Review 

Under section 307(b)(1) of the Clean 

Air Act (CAA), judicial review of these 

final rules is available only by filing a 

petition for review in the United States 

Court of Appeals for the District of 

Columbia Circuit by September 23, 

2011. Under section 307(b)(2) of the 

CAA, the requirements established by 

these final rules may not be challenged 

separately in any civil or criminal 

proceedings brought by EPA to enforce 

these requirements. 

Section 307(d)(7)(B) of the CAA 

further provides that ‘‘[o]nly an 

objection to a rule or procedure which 

was raised with reasonable specificity 

during the period for public comment 

(including any public hearing) may be 

raised during judicial review.’’ This 

section also provides a mechanism for 

us to convene a proceeding for 

reconsideration, ‘‘[i]f the person raising 

an objection can demonstrate to the EPA 

that it was impracticable to raise such 

objection within [the period for public 

comment] or if the grounds for such 

objection arose after the period for 

public comment (but within the time 

specified for judicial review) and if such 

objection is of central relevance to the 

outcome of the rule.’’ Any person 

seeking to make such a demonstration to 

us should submit a Petition for 

Reconsideration to the Office of the 

Administrator, U.S. EPA, Room 3000, 

Ariel Rios Building, 1200 Pennsylvania 

Ave., NW., Washington, DC 20460, with 

a copy to both the person(s) listed in the 

preceding FOR FURTHER INFORMATION

CONTACT section, and the Associate 

General Counsel for the Air and 

Radiation Law Office, Office of General 

Counsel (Mail Code 2344A), U.S. EPA, 

1200 Pennsylvania Ave., NW., 

Washington, DC 20460. 

List of Subjects in 40 CFR Part 80 

Environmental protection, Air 

pollution control, Fuel additives, Diesel, 

Gasoline, Imports, Labeling, Motor 

vehicle pollution, Penalties, Reporting 

and recordkeeping requirements. 

Dated: June 23, 2011. 

Lisa P. Jackson, 

Administrator. 

For the reasons set forth in the 

preamble, 40 CFR part 80 is amended as 

follows: 

PART 80—REGULATION OF FUEL 

AND FUEL ADDITIVES 

■ 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 80.40(c)(1) is amended to 

read as follows: 

§ 80.40 Fuel certification procedures. 

* * * * * 

(c)(1) Adjusted VOC gasoline for 

purposes of the general requirements in 

80.65(d)(2)(ii), and the certification 

procedures in this section is gasoline 

that contains 10 to 15 volume percent 

ethanol, or RBOB intended for blending 

with 10 to 15 volume percent ethanol, 

that is intended for use in the areas 

described at 80.70(f) and (i), and is 

designated by the refiner as adjusted 

VOC gasoline subject to less stringent 

VOC standards in 80.41(e) and (f). In 

order for adjusted VOC gasoline to 

qualify for the regulatory treatment 

specified in 80.41(e) and (f), 

reformulated gasoline must contain 

denatured, anhydrous ethanol. The 

concentration of the ethanol, excluding 

the required denaturing agent, must be 

at least 9 percent and no more than 15 

percent (by volume) of the gasoline. The 

ethanol content of the gasoline shall be 

determined by use of one of the testing 

methodologies specified in 80.46(g). 

* * * * * 

■ 3. Section 80.45 is amended by adding 

a new paragraph (c)(1)(iii)(C) and by 

revising paragraphs (f)(1)(i) and (f)(1)(ii) 

to read as follows: 

§ 80.45 Complex emissions model. 

* * * * * 

(c) * * * 

(1) * * * 

(iii) * * * 

(C) During Phase II, fuels with an 

oxygen concentration greater than 4.0 

weight percent and not more than 5.8 

weight percent shall be evaluated with 

the OXY fuel parameter set equal to 4.0 

percent by weight when calculating 

VOCE using the equations described in 

paragraphs (c)(1)(i) and (c)(1)(ii) of this 

section. 

* * * * * 

(f) * * * 

(1) * * * 

(i) For reformulated gasolines: 

Fuel property Acceptable range 

Oxygen ...................... 0.0–5.8 weight percent. 

Sulfur ......................... 0.0–500.0 parts per 

million by weight. 

RVP ........................... 6.4–10.0 pounds per 

square inch. 

Fuel property Acceptable range 

E200 .......................... 30.0–70.0 percent 

evaporated. 

E300 .......................... 70.0–100.0 percent 

evaporated. 

Aromatics .................. 0.0–50.0 volume percent. 

Olefins ....................... 0.0–25.0 volume percent. 

Benzene .................... 0.0–2.0 volume percent. 

(ii) For conventional gasoline: 

Fuel property Acceptable range 

Oxygen ...................... 0.0–5.8 weight percent. 

Sulfur ......................... 0.0–1000.0 parts per 

million by weight. 

RVP ........................... 6.4–11.0 pounds per 

square inch. 

E200 .......................... 30.0–70.0 evaporated 

percent. 

E300 .......................... 70.0–100.0 evaporated percent. 

Aromatics .................. 0.0–55.0 volume percent. 

Olefins ....................... 0.0–30.0 volume percent. 

Benzene .................... 0.0–4.9 volume percent. 

* * * * * 

■ 4. A new subpart N is added to read 

as follows: 

Subpart N—Additional Requirements 

for Gasoline-Ethanol Blends 

Sec. 

80.1500 Definitions. 

80.1501 What are the labeling requirements 

that apply to retailers and wholesale 

purchaser-consumers of gasoline-ethanol 

blends that contain greater than 10.0 

volume percent ethanol and not more 

than 15.0 volume percent ethanol? 

80.1502 What are the survey requirements 

for gasoline-ethanol blends? 

80.1503 What are the product transfer 

document requirements for gasolineethanol blends, gasolines, and 

conventional blendstocks for oxygenate 

blending subject to this subpart? 

80.1504 What acts are prohibited under this 

subpart? 

80.1505 Who is liable for violations of this 

subpart? 

80.1506 What penalties apply under this 

subpart? 

80.1507 What are the defenses for acts 

prohibited under this subpart? 

80.1508 What evidence may be used to 

determine compliance with the 

requirements of this subpart and liability 

for violations of this subpart? 


jlentini on DSK4TPTVN1PROD with RULES2
44444 Federal Register / Vol. 76, No. 142 / Monday, July 25, 2011 / Rules and Regulations 

Subpart N—Additional Provisions for 

Gasoline-Ethanol Blends 

§ 80.1500 Definitions. 

The definitions in § 80.2 apply to this 

subpart. For purposes of this subpart 

only: 

Blendstock for oxygenate blending 

means gasoline blendstock which could 

become gasoline solely upon the 

addition of an oxygenate. 

Conventional blendstock for 

oxygenate blending means gasoline 

blendstock which could become 

conventional gasoline solely upon the 

addition of an oxygenate. 

Carrier has the same meaning as 

defined in § 80.2(t). 

Conventional gasoline has the same 

meaning as defined in § 80.2(ff). 

E0 means a gasoline that contains no 

ethanol. 

E10 means a gasoline-ethanol blend 

that contains at least 9.0 and no more 

than 10.0 volume percent ethanol. 

E15 means a gasoline-ethanol blend 

that contains greater than 10.0 volume 

percent ethanol and not more than 15.0 

volume percent ethanol. 

EX means a gasoline-ethanol blend 

that contains less than 9 volume percent 

ethanol where X equals the maximum 

volume percent ethanol in the gasolineethanol blend. 

EXX means a gasoline-ethanol blend 

above E15 where XX equals the 

maximum volume percent ethanol in 

the gasoline-ethanol blend. 

Ethanol blender has the same 

meaning as defined in § 80.2(v). 

Ethanol importer means a person who 

brings ethanol into the United States 

(including from the Commonwealth of 

Puerto Rico, the Virgin Islands, Guam, 

American Samoa, and the Northern 

Mariana Islands) for use in motor 

vehicles and nonroad engines. 

Ethanol producer means any person 

who owns, leases, operates, controls, or 

supervises a facility that produces 

ethanol for use in motor vehicles or 

nonroad engines. 

Flex-fuel vehicle has the same 

meaning as flexible-fuel vehicle as 

defined in § 86.1803–01. 

Fuel dispenser means the apparatus 

used to dispense fuel into motor 

vehicles or nonroad vehicles, engines or 

equipment, or into a portable fuel 

container as defined at § 59.680. 

Gasoline has the same meaning as 

defined in § 80.2(c). 

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. 

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. 

Oxygenate blender has the same 

meaning as defined in § 80.2(mm). 

Oxygenate blending facility has the 

same meaning as defined in § 80.2(ll). 

Regulatory control periods has the 

same meaning as defined in 

§ 80.27(a)(2)(ii) or in any State 

Implementation Plan (SIP) approved or 

promulgated under §§ 110 or 172 of the 

Clean Air Act. 

Retail outlet has the same meaning as 

defined § 80.2(j). 

Retailer has the same meaning as 

defined in § 80.2(k). 

Survey series means the four quarterly 

surveys that comprise a survey program. 

Sampling strata means the three types 

of areas sampled during a survey which 

include the following: 

(1) Densely populated areas; 

(2) Transportation corridors; and 

(3) Rural areas. 

Wholesale purchaser-consumer has 

the same meaning as defined in 

§ 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 10.0 volume percent ethanol 

and not more than 15.0 volume percent 

ethanol? 

(a) Any retailer or wholesale 

purchaser-consumer who sells, 

dispenses, or offers for sale or 

dispensing, gasoline-ethanol blends that 

contain greater than 10.0 volume 

percent ethanol and not more than 15.0 

volume percent ethanol shall affix the 

following conspicuous and legible label 

to the fuel dispenser: 

Attention 

E15 

Up to 15% ethanol 

Use only in 

• 2001 and newer passenger vehicles 

• Flex-fuel vehicles 

Don’t use in other vehicles, boats, or 

gasoline-powered equipment. It may 

cause damage and is prohibited by 

Federal law. 

(b) Labels under this section shall 

meet the following requirements for 

appearance and placement: 

(1) Dimensions. The label shall 

measure 3 and 5⁄8 inches wide by 3 and 1⁄8 inches high. 

(2) Placement. The label shall be 

placed on the upper two-thirds of each 

fuel dispenser where the consumer will 

see the label when selecting a fuel to 

purchase. For dispensers with one 

nozzle, the label shall be placed above 

the button or other control used for 

selecting E15, or in any other manner 

which clearly indicates which control is 

used to select E15. For dispensers with 

multiple nozzles, the label shall be 

placed in the location that is most likely 

to be seen by the consumer at the time 

of selection of E15. 

(3) Text. The text shall be justified 

and the fonts and backgrounds shall be 

as described in paragraphs (b)(3)(i) 

through (vi) and (b)(4)(i) through (iv) of 

this section. 

(i) The word ‘‘Attention’’ shall be in 

20-point, orange, Helvetica Neue LT 77 

Bold Condensed font, and shall be 

placed in the top 1.25 inches of the label 

as further described in (b)(4)(iii) of this 

section. 

(ii) The word ‘‘E15’’ shall be in 42- 

point, orange, Helvetica Black font, and 

shall be placed in the top 1.25 inches of 

the label. 

(iii) The ethanol content: ‘‘Up to 15% 

ethanol’’ shall be in 14-point, centerjustified, orange, Helvetica Black font in 

the top 1.25 inches of the label, below 

the word E15. 

(iv) The words ‘‘Use only in’’ shall be 

in 20-point, left-justified, black, 

Helvetica Bold font in the top 1.25 

inches of the label. 

(v) The words, and symbols ‘‘• 2001 

and newer passenger vehicles • Flex-fuel 

vehicles’’ shall be in 14-point, leftjustified, black, Helvetica Bold font. 

(vi) The remaining two sentences 

shall be in 12-point, left-justified, 

Helvetica Bold font, except that the 

word ‘‘prohibited’’ in the second 

sentence shall be in 12-point, black, 

Helvetica Black Italics font. 

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

top 1.25 inches of the label shall be 

black. 

(ii) The background of the bottom 1.75 

inches of the label shall be orange. 

(iii) The label shall have on the upper 

left side of the label a diagonal orange 

stripe that is .3125 inches tall. The 

stripe shall be placed as far down and 

across the label as is necessary so as to 

as to create a black triangle of the upper 

left corner of the label whose vertical 

side is contiguous to the vertical edge of 

the label and is.4375 inches long, and 

whose horizontal side is contiguous to 

the horizontal edge of the label and is 

1.0 inches long. The word ‘‘Attention’’ 

shall be centered to the upper edge of 

this stripe. 

(5) Alternative labels to those 

specified in this section may be used if 

approved by EPA in advance. Such 

labels must contain all of the 

informational elements specified in 

paragraph (a) of this section, and must 

use colors and other design elements 

similar in substance and appearance to 

the label required by this section. Such 

labels may differ in size and shape from 


jlentini on DSK4TPTVN1PROD with RULES2
Federal Register / Vol. 76, No. 142 / Monday, July 25, 2011 / Rules and Regulations 44445 

the label required by this section only 

to a small degree, except to the extent 

a larger label is necessary to 

accommodate additional information or 

translation of label information. 

(i) If you use U.S. Mail, send a request 

for approval of an alternative label to: 

U.S. EPA, Attn: E15 Alternative Label 

Request, 6406J, 1200 Pennsylvania 

Avenue, NW., Washington, DC 20460. 

(ii) If you use an overnight or courier 

service, send a request for approval of 

an alternative label to: U.S. EPA, Attn: 

E15 Alternative Label Request, 6406J, 

1310 L Street, NW., 6th Floor, 

Washington, DC 20005. (202) 343–9038. 

§ 80.1502 What are the survey 

requirements related to gasoline-ethanol 

blends? 

Any gasoline refiner, gasoline 

importer, ethanol blender, ethanol 

producer, or ethanol importer who 

manufactures, introduces into 

commerce, sells or offers for sale E15, 

gasoline, blendstock for oxygenate 

blending, ethanol, or gasoline-ethanol 

blend that is intended for use in or as 

E15 shall comply with the survey 

program requirements in either 

paragraph (a) or paragraph (b) of this 

section. These same parties are also 

subject to paragraphs (c), (d) and (e) of 

this section regardless of whether they 

choose the survey program requirements 

in paragraph (a) or paragraph (b) of this 

section. In the case of ethanol producers 

and ethanol importers, the ethanol that 

is produced or imported shall be 

deemed as intended for use in E15 

unless an ethanol producer or an 

ethanol importer demonstrates that it 

was not intended for such use. 

(a) Survey option 1. In order to satisfy 

the survey program requirements, any 

gasoline refiner, gasoline importer, 

ethanol blender, ethanol producer, or 

ethanol importer who manufactures, 

introduces into commerce, sells or offers 

for sale E15, gasoline, blendstock for 

oxygenate blending, ethanol, or 

gasoline-ethanol blend intended for use 

in or as E15 shall properly conduct a 

program of compliance surveys in 

accordance with a survey program plan 

which has been approved by EPA in all 

areas which may be reasonably expected 

to be supplied with their gasoline, 

blendstock for oxygenate blending, 

ethanol, or gasoline-ethanol blend if 

these may be used to manufacture E15 

or as E15 at any time during the year. 

Such approval shall be based upon the 

survey program plan meeting the 

following criteria: 

(1) The survey program shall consist 

of at least quarterly surveys which shall 

occur during the following time periods 

in every year during which the gasoline 

refiner, gasoline importer, ethanol 

blender, ethanol producer, or ethanol 

importer introduces E15 into commerce: 

(i) One survey during the period 

January 1 through March 31; 

(ii) One survey during the period 

April 1 through June 30; 

(iii) One survey during the period July 

1 through September 30; and 

(iv) One survey during the period 

October 1 through December 31. 

(2) The survey program plan shall 

meet all of the requirements of 

paragraph (b), except paragraphs 

(b)(4)(ii) and (b)(4)(v) of this section. 

The survey program plan shall specify 

the sampling strata, clusters and area, 

and number of samples to be included. 

Notwithstanding paragraph (b)(2) of this 

section, in order to comply with this 

paragraph the survey plan need not be 

conducted by a consortium. 

(b) Survey option 2. 

(1) To comply with the requirements 

under this paragraph (b), any gasoline 

refiner, gasoline importer, ethanol 

blender, ethanol producer, or ethanol 

importer who manufactures, introduces 

into commerce, sells or offers for sale 

E15, gasoline, blendstock for oxygenate 

blending, ethanol, or gasoline-ethanol 

blend intended for use in or as E15 must 

participate in a consortium which 

arranges to have an independent survey 

association conduct a statistically valid 

program of compliance surveys 

pursuant to a survey program plan 

which has been approved by EPA, in 

accordance with the requirements of 

paragraphs (b)(2) through (b)(4) and 

(b)(6) of this section. 

(2) The consortium survey program 

under this paragraph (b) must be: 

(i) Planned and conducted by a survey 

association that is independent of the 

ethanol blenders, ethanol producers, 

ethanol importers, gasoline refiners, 

and/or gasoline importers that arrange 

to have the survey conducted. In order 

to be considered independent: 

(A) Representatives of the survey 

association shall not be an employee of 

any ethanol blender, ethanol producer, 

ethanol importer, gasoline refiner, or 

gasoline importer; 

(B) The survey association shall be 

free from any obligation to or interest in 

any ethanol blender, ethanol producer, 

ethanol importer, gasoline refiner, or 

gasoline importer; and 

(C) The ethanol blenders, ethanol 

producers, ethanol importers, gasoline 

refiners, and/or gasoline importers that 

arrange to have the survey conducted 

shall be free from any obligation to or 

interest in the survey association. 

(ii) Conducted at retail outlets that 

sell gasoline; and 

(iii) Represent all gasoline dispensed 

nationwide. 

(3) Independent Survey Association 

Requirements. The consortium 

described in paragraph (b)(1) of this 

section shall require the independent 

survey association conducting the 

surveys to: 

(i) Submit to EPA for approval each 

calendar year a proposed survey 

program plan in accordance with the 

requirements of paragraph (b)(4) of this 

section. 

(ii) Obtain samples of gasoline offered 

for sale at gasoline retail outlets in 

accordance with the survey program 

plan approved under this paragraph (b), 

or immediately notify EPA of any 

refusal of retail outlets to allow samples 

to be taken. 

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

samples required under paragraph 

(b)(3)(ii) of this section for Reid vapor 

pressure (RVP), and oxygenate content 

as follows: 

(A) Samples collected at retail outlets 

shall be shipped the same day the 

samples are collected via ground service 

to the laboratory and analyzed for 

oxygenate content. Samples collected at 

a dispenser labeled E15 in any manner, 

or at a tank serving such a dispenser, 

shall also be analyzed for RVP. Such 

analysis shall be completed within 10 

days after receipt of the sample in the 

laboratory. Nothing in this section shall 

be interpreted to require RVP testing of 

a sample from any dispenser or tank 

serving it unless the dispenser is labeled 

E15 in any manner. 

(B) Any laboratory to be used by the 

independent survey association for 

oxygenate or RVP testing shall be 

approved by EPA and its test method for 

determining oxygenate content shall be 

a method permitted under § 80.46(g), 

and its test method for determining RVP 

shall be the method permitted under 

§ 80.46(b). 

(iv) In the case of any test that yields 

a result that does not match the label 

affixed to the product (e.g., a sample 

greater than 15.0 volume percent 

ethanol dispensed from a fuel dispenser 

labeled as ‘‘E15’’ or a sample containing 

greater than 10.0 volume percent 

ethanol and not more than 15.0 volume 

percent ethanol dispensed from a fuel 

dispenser not labeled as ‘‘E15’’), or the 

RVP standard of § 80.27(a)(2), the 

independent survey association shall, 

within 24 hours after the laboratory 

receives the sample, send notification of 

the test result as follows: 

(A) In the case of a sample collected 

at a retail outlet at which the brand 

name of a gasoline refiner or gasoline 

importer is displayed, to the gasoline 

refiner or gasoline importer, and EPA. 


jlentini on DSK4TPTVN1PROD with RULES2
44446 Federal Register / Vol. 76, No. 142 / Monday, July 25, 2011 / Rules and Regulations 

This initial notification to a gasoline 

refiner or gasoline importer shall 

include specific information concerning 

the name and address of the retail 

outlet, contact information, the brand, 

and the ethanol content, and the RVP if 

required, of the sample. 

(B) In the case of a sample collected 

at other retail outlets, to the retailer and 

EPA, and such notice shall contain the 

same information as in paragraph 

(b)(3)(iv)(A) of this section. 

(C) The independent survey 

association shall provide notice to the 

identified contact person or persons for 

each party in writing (which includes 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, or whose fuel 

does not meet the RVP standards of 

§ 80.27(a)(2) the survey association shall 

provide notice as provided in 

paragraphs (b)(2)(iv)(A) through (C) of 

this section. 

(vii) Provide to EPA quarterly and 

annual summary survey reports which 

include the information specified in 

paragraph (b)(5) of this section. 

(viii) Maintain all records relating to 

the surveys conducted under this 

paragraph (b) for a period of at least five 

(5) years. 

(ix) Permit any representative of EPA 

to monitor at any time the conducting 

of the surveys, including sample 

collection, transportation, storage, and 

analysis. 

(4) Survey Plan Design Requirements. 

The proposed survey program plan 

required under paragraph (b)(3)(i) of this 

section shall, at a minimum, include the 

following: 

(i) Number of Surveys. The survey 

program plan shall include four 

quarterly surveys each calendar year. 

The four quarterly surveys collectively 

are called the survey series as defined 

in § 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 shall not be kept 

confidential from EPA. 

(iv) Retail outlet selection. 

(A) The retail outlets to be sampled in 

a sampling area shall be selected from 

among all retail outlets in the sampling 

area that sell gasoline, with the 

probability of selection proportionate to 

the volume of gasoline sold at the retail 

outlets; the sample should also include 

retail outlets with different brand names 

as well as those retail outlets that are 

unbranded. 

(B) In the case of any retail outlet from 

which a sample of gasoline was 

collected during a survey and 

determined to have an ethanol content 

that does not match the fuel dispenser 

label (e.g. a sample greater than 15.0 

volume percent ethanol dispensed from 

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

sample with greater than 10.0 volume 

percent ethanol and not more than 15.0 

volume percent ethanol dispensed from 

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

determined to have a dispenser 

containing fuel whose RVP does not 

comply with § 80.27(a)(2), that retail 

outlet shall be included in the 

subsequent survey. 

(C) One sample of each product 

dispensed as gasoline shall be collected 

at each retail outlet, and separate 

samples shall be taken that represent the 

gasoline contained in each gasoline 

storage tank unless collection of 

separate samples is not practicable. 

(v) Number of samples. 

(A) The minimum number of samples 

to be included in the survey plan for 

each calendar year shall be calculated as 

follows: 

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. 

<l = 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, <1 will be 5%. 

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

first survey plan, <o = will be 2.3%. For 

subsequent survey plans, <o = will be the 

average of the proportion of stations 

found to be non-compliant over the 

previous four surveys. 

Stn = number of sampling strata. For 

purposes of this survey program, Stn

equals 3. 

Fa = adjustment factor for the number of extra 

samples required to compensate for 

collected samples that cannot be 

included in the survey, based on the 

number of additional samples required 

during the previous four surveys. 

However, in no case shall the value of Fa

be smaller than 1.1. 

Fb = adjustment factor for the number of 

samples required to resample each retail 

outlet with test results exceeding the 

labeled amount (e.g., a sample greater 

than 15.0 volume percent ethanol 

dispensed from a fuel dispenser labeled 

as ‘‘E15’’, a sample with greater than 10.0 

volume percent ethanol and not more 

than 15.0 volume percent ethanol 

dispensed from a fuel dispenser not 

labeled as ‘‘E15’’), or a sample dispensed 

from a fuel dispenser labeled as ‘‘E15’’ 

with greater than the applicable seasonal 

and geographic RVP pursuant to § 80.27, 

based on the rate of resampling required 

during the previous four surveys. 

However, in no case shall the value of Fb

be smaller than 1.1. 

Sun = number of surveys per year. For 

purposes of this survey program, Sun

equals 4. 

(B) The number of samples 

determined pursuant to paragraph 

(b)(4)(v)(A) of this section, after being 

incremented as necessary to allocate 

whole numbers of samples to each 

cluster, shall be distributed 

approximately equally for the quarterly 

surveys conducted during the calendar 

year. 

(5) Summary survey reports. The 

quarterly and annual summary survey 

reports required under paragraph 

(b)(3)(vii) of this section shall include 

the following information: 

(i) An identification of the parties that 

are participating in the survey. 

(ii) The identification of each 

sampling area included in a survey and 


jlentini on DSK4TPTVN1PROD with RULES2er25JY11.003</GPH>
Federal Register / Vol. 76, No. 142 / Monday, July 25, 2011 / Rules and Regulations 44447 

the dates that the samples were 

collected in that area. 

(iii) For each retail outlet sampled: 

(A) The identification of the retail 

outlet; 

(B) The gasoline refiner or gasoline 

importer brand name displayed, if any; 

(C) The fuel dispenser labeling (e.g., 

‘‘E15’’); 

(D) The sample test result for 

oxygenate content, and RVP result, if 

any; 

(E) The test method used to determine 

oxygenate content under § 80.46(g); and 

(F) The test method used to determine 

RVP under § 80.46(b). 

(iv) Ethanol level summary statistics 

by brand and unbranded for each 

sampling area, strata, and survey series. 

These summary statistics shall: 

(A) Include the number of samples, 

the average, median and range of 

ethanolcontent, expressed in volume 

percent. 

(B) [Reserved]. 

(v) The quarterly reports required 

under this paragraph (b)(5) are due 60 

days following the end of the quarter. 

The annual reports required under this 

paragraph (b)(5) are due 60 days 

following the end of the calendar year. 

(vi) The reports required under this 

paragraph (b)(5) shall be submitted to 

EPA in an electronic spreadsheet. 

(c) Procedures for obtaining approval 

of survey plan and providing required 

notices. The first year in which a survey 

program is conducted may consist of 

only a portion of a calendar year ending 

on December 31 (i.e., in the initial year, 

a survey program may begin on a date 

after January 1, but would still end on 

December 31). Subsequent survey 

programs shall be conducted on a 

calendar year basis. The procedure for 

obtaining EPA approval of a survey 

program plan under paragraph (b) or 

paragraph (c) of this section is as 

follows: 

(1) For the first year in which a survey 

will be conducted, a survey program 

plan that complies with the 

requirements of paragraph (a) or 

paragraph (b) of this section must be 

submitted to EPA no later than 60 days 

prior to the date on which the survey 

program is to begin. 

(2) For subsequent years in which a 

survey will be conducted, a survey 

program plan that complies with the 

requirements of paragraph (a) or 

paragraph (b) of this section must be 

submitted to EPA no later than 

November 1 of the year preceding the 

calendar year in which the survey will 

be conducted. 

(3) The survey program plan must be 

signed by a responsible officer of the 

consortium which arranges to have an 

independent surveyor conduct the 

survey program. 

(4) The survey program plan must be 

sent to the following address: Director, 

Compliance and Innovative Strategies 

Division, U.S. Environmental Protection 

Agency, 1200 Pennsylvania Ave., NW., 

Mail Code 6506J, Washington, DC 

20460. 

(5) EPA will send a letter to the party 

submitting the survey program plan that 

indicates whether EPA approves or 

disapproves the survey plan. 

(6) The approving official for a survey 

plan under this section is the Director 

of the Compliance and Innovative 

Strategies Division, Office of 

Transportation and Air Quality. 

(7) Any notifications or reports 

required to be submitted to EPA under 

this section must be directed to the 

official designated in paragraph 

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

(d) Independent surveyor contract. 

(1) For the first year in which a survey 

program will be conducted, no later 

than 30 days preceding the start of the 

survey, the contract with the 

independent surveyor shall be in effect, 

and an amount of money necessary to 

carry out the entire survey plan shall be 

paid to the independent surveyor or 

placed into an escrow account with 

instructions to the escrow agent to pay 

the money to the independent surveyor 

during the course of the conduct of the 

survey plan. 

(2) For subsequent years in which a 

survey program will be conducted, no 

later than December 1 of the year 

preceding the year in which the survey 

will be conducted, the contract with the 

independent surveyor shall be in effect, 

and an amount of money necessary to 

carry out the entire survey plan shall be 

paid to the independent surveyor or 

placed into an escrow account with 

instructions to the escrow agent to pay 

the money to the independent surveyor 

during the course of the conduct of the 

survey plan. 

(3) For the first year in which a survey 

program will be conducted, no later 

than 15 days preceding the start of the 

survey EPA must receive a copy of the 

contract with the independent surveyor 

and proof that the money necessary to 

carry out the survey plan has either 

been paid to the independent surveyor 

or placed into an escrow account; if the 

money has been placed into an escrow 

account, a copy of the escrow agreement 

must to be sent to the official designated 

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

(4) For subsequent years in which a 

survey program will be conducted, no 

later than December 15 of the year 

preceding the year in which the survey 

will be conducted, EPA must receive a 

copy of the contract with the 

independent surveyor and proof that the 

money necessary to carry out the survey 

plan has either been paid to the 

independent surveyor or placed into an 

escrow account; if placed into an escrow 

account, a copy of the escrow agreement 

must be sent to the official designated 

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

(e) Consequences of failure to fulfill 

requirements. A failure to fulfill or 

cause to be fulfilled any of the 

requirements of this section is a 

prohibited act under Clean Air Act 

section 211(c) and § 80.1504. 

(1) EPA may revoke its approval of a 

survey plan under this section for cause, 

including, but not limited to, an EPA 

determination that the approved survey 

plan has proved to be inadequate in 

practice. 

(2) EPA may void ab initio its 

approval of a survey plan if EPA’s 

approval was based on false 

information, misleading information, or 

incomplete information, or if there was 

a failure to fulfill, or cause to be 

fulfilled, any of the requirements of the 

survey plan. 

§ 80.1503 What are the product transfer 

document requirements for gasolineethanol blends, gasolines, and conventional 

blendstocks for oxygenate blending subject 

to this subpart? 

(a) Product transfer documentation 

for conventional blendstock for 

oxygenate blending, or gasoline 

transferred upstream of an ethanol 

blending facility. 

(1) In addition to any other product 

transfer document requirements under 

40 CFR part 80, on each occasion after 

October 31, 2011, when any person 

transfers custody or title to any 

conventional blendstock for oxygenate 

blending which could become 

conventional gasoline solely upon the 

addition of ethanol, or gasoline 

upstream of an oxygenate blending 

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

transferor shall provide to the transferee 

product transfer documents which 

include the following information: 

(i) The name and address of the 

transferor; 

(ii) The name and address of the 

transferee; 

(iii) The volume of conventional 

blendstock for oxygenate blending or 

gasoline being transferred; 

(iv) The location of the conventional 

blendstock for oxygenate blending or 

gasoline at the time of the transfer; 

(v) The date of the transfer; 

(vi) For gasoline during the regulatory 

control periods defined in 

§ 80.27(a)(2)(ii) or any SIP approved or 

promulgated under §§ 110 or 172 of the 

Clean Air Act: 


jlentini on DSK4TPTVN1PROD with RULES2
44448 Federal Register / Vol. 76, No. 142 / Monday, July 25, 2011 / Rules and Regulations 

(A) The maximum RVP, as 

determined by a method permitted 

under § 80.46(c), stated in the following 

format: ‘‘The RVP of this gasoline does 

not exceed [fill in appropriate value]’’; 

and 

(B) For gasoline designed for the 

special provisions for gasoline-ethanol 

blends in § 80.27(d)(2), information 

about the ethanol content and RVP in 

paragraphs (a)(1) through (a)(3) of this 

section, with insertions as indicated: 

(1) ‘‘Suitable for the special RVP 

provisions for ethanol blends that 

contain between 9 and 10 vol % 

ethanol.’’ 

(2) ‘‘The RVP of this blendstock/ 

gasoline for oxygenate blending does 

not exceed [Fill in appropriate value] 

psi. 

(3) The use of this gasoline to 

manufacture a gasoline-ethanol blend 

containing anything other than between 

9 and 10 volume percent ethanol may 

cause a summertime RVP violation. 

(C) For gasoline not described in 

paragraph (a)(vi)(B) of this section, 

information regarding the suitable 

ethanol content, stated in the following 

format: ‘‘Suitable for blending with 

ethanol at a concentration of no more 

than 15 vol % ethanol.’’ 

(2) The requirements in paragraph 

(a)(1) do not apply to reformulated 

gasoline blendstock for oxygenate 

blending, as defined in § 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 after 

October 31, 2011, when any person 

transfers custody or title to any gasolineethanol 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. 

(A) For gasoline containing no ethanol 

(E0), the following statement; ‘‘E0: 

Contains no ethanol. The RVP does not 

exceed [fill in appropriate value] psi.’’ 

(B) For gasoline containing less than 

9.0 volume percent ethanol, the 

following statement: ‘‘EX—Contains up 

to X% ethanol. The RVP does not 

exceed [fill in appropriate value] psi.’’ 

The term X refers to the maximum 

volume percent ethanol present in the 

gasoline. 

(C) For gasoline containing between 

9.0 and 10.0 volume percent ethanol 

(E10), the following statement: ‘‘E10: 

Contains between 9 and 10 vol % 

ethanol. The RVP does not exceed [fill 

in appropriate value] psi. The 1.0 psi 

RVP waiver applies to this gasoline. Do 

not mix with gasoline containing 

anything other than between 9 and 10 

vol % ethanol.’’ 

(D) For gasoline containing greater 

than 10.0 volume percent and not more 

than 15.0 volume percent ethanol (E15), 

the following statement: ‘‘E15: Contains 

up to 15 vol % ethanol. The RVP does 

not exceed [fill in appropriate value] 

psi;’’ or 

(E) For all other gasoline that contains 

ethanol, the following statement: 

‘‘EXX—Contains no more than XX% 

ethanol,’’ where XX equals the volume 

% ethanol. 

(2) Except for transfers to truck 

carriers, retailers, or wholesale 

purchaser-consumers, product codes 

may be used to convey the information 

required under paragraph (b)(1) of this 

section if such codes are clearly 

understood by each transferee. 

(c) The records required by this 

section must be kept by the transferor 

and transferee for five (5) years from the 

date they were created or received by 

each party in the distribution system. 

(d) On request by EPA, the records 

required by this section must be made 

available to the Administrator or the 

Administrator’s authorized 

representative. For records that are 

electronically generated or maintained, 

the equipment or software necessary to 

read the records shall be made available, 

or, if requested by EPA, electronic 

records shall be converted to paper 

documents. 

§ 80.1504 What acts are prohibited under 

this subpart? 

No person shall— 

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

the sale or introduction of gasoline 

containing greater than 10.0 volume 

percent ethanol (i.e., greater than E10) 

into any model year 2000 or older lightduty gasoline motor vehicle, any heavyduty gasoline motor vehicle or engine, 

any highway or off-highway motorcycle, 

or any gasoline-powered nonroad 

engines, vehicles or equipment. 

(2) Manufacture or introduce into 

commerce E15 in any calendar year for 

use in an area prior to commencement 

of a survey approved under 80.1502 for 

that area. 

(3) Notwithstanding paragraphs (a)(1) 

and (a)(2) of this section, no person 

shall be prohibited from manufacturing, 

selling, introducing, or causing or 

allowing the sale or introduction of 

gasoline containing greater than 10.0 

volume percent ethanol into any flexfuel vehicle. 

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

otherwise make available at a retail or 

wholesale purchaser-consumer facility 

E15 that is not correctly labeled in 

accordance with § 80.1501; 

(c) Fail to fully or timely implement, 

or cause a failure to fully or timely 

implement, an approved 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 

RVP, and other information required 

under § 80.1503; 

(e) Improperly blend, or cause the 

improper blending of, ethanol into 

conventional blendstock for oxygenate 

blending, gasoline or gasoline already 

containing ethanol, in a manner 

inconsistent with the information on the 

product transfer document under 

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

(f) For gasoline during the regulatory 

control periods, combine any gasoline 

or conventional blendstock for 

oxygenate blending intended for 

blending with E10 that qualifies for the 

1 psi allowance under the special 

regulatory treatment as provided by 

§ 80.27(d) applicable to 9–10 volume 

percent gasoline-ethanol blends with 

any gasoline or conventional blendstock 

for oxygenate blending intended for 

blending with E15, unless the resultant 

combination is designated, in its 

entirety, as an E10 blendstock for 

oxygenate blending. 

(g) For gasoline during the regulatory 

control periods, combine any gasolineethanol blend containing E10 that 

qualifies for the 1 psi allowance under 

the special regulatory treatment as 

provided by § 80.27(d) applicable to 9– 

10 volume percent gasoline-ethanol 

blends, with any gasoline containing E0 

or any gasoline blend containing E15. 

(h) Fail to meet any other requirement 

of this subpart. 


jlentini on DSK4TPTVN1PROD with RULES2
Federal Register / Vol. 76, No. 142 / Monday, July 25, 2011 / Rules and Regulations 44449 

(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 

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 25 days; unless the respective party 

or EPA demonstrates by reasonably 

specific showings, using direct or 

circumstantial evidence, that the 

gasoline giving rise to the violations 

remained any place in the gasoline 

distribution system for fewer than or 

more than 25 days. 

(c) Any violation of any affirmative 

requirement or prohibition not included 

in paragraph (b) of this section shall 

constitute a separate day of violation for 

each and every day such affirmative 

requirement is not properly 

accomplished, and/or for each and 

every day the prohibited activity 

continues. For those violations that may 

be ongoing each and every day the 

prohibited activity continues shall 

constitute a separate day of violation. 

§ 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 regulated party or its 

employee or agent did not commit, 

cause, or contribute to another person’s 

causing the violation; 

(ii) That product transfer documents 

account for all of the gasoline in the 

storage tank found in violation and 

indicate that the gasoline met relevant 

requirements; and 

(iii)(A) That it has conducted a quality 

assurance program, including a 

sampling and testing program, as 

described in paragraph (b) of this 

section; 

(B) A carrier may rely on the sampling 

and testing program carried out by 

another party, including the party that 

owns the gasoline in question, provided 

that the sampling and testing program is 

carried out properly. 

(2)(i) Where a violation is found at a 

facility which is operating under the 

corporate, trade or brand name of a 

refiner, that refiner must show, in 

addition to the defense elements 

required by paragraph (a)(1) of this 

section, that the violation was caused 

by: 

(A) An act in violation of law (other 

than the Act or this part), or an act of 

sabotage or vandalism; 

(B) The action of any reseller, 

distributor, oxygenate blender, carrier, 

or a retailer or wholesale 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) of this 

section, to show that the violation ‘‘was 

caused’’ by any of the specified actions 

the party must demonstrate by 

reasonably specific showings using 

direct or circumstantial evidence, that 

the violation was caused or must have 

been caused by another. 

(3) For label violations under 

§ 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. 


jlentini on DSK4TPTVN1PROD with RULES2
44450 Federal Register / Vol. 76, No. 142 / Monday, July 25, 2011 / Rules and Regulations 

(b) Quality assurance program. In 

order to demonstrate an acceptable 

quality assurance program for gasoline 

at all points in the gasoline distribution 

network, other than at retail outlets and 

wholesale purchaser-consumer 

facilities, a party must present evidence 

of the following in addition to other 

regular appropriate quality assurance 

procedures and practices. 

(1) A periodic sampling and testing 

program to determine if the gasoline 

contains applicable maximum and/or 

minimum volume percent of ethanol. 

(2) That on each occasion when 

gasoline is found in noncompliance 

with one of the requirements referred to 

in paragraph (b)(1) of this section: 

(i) The party immediately ceases 

selling, offering for sale, dispensing, 

supplying, offering for supply, storing, 

transporting, or causing the 

transportation of the violating product; 

and 

(ii) The party promptly remedies the 

violation (such as by removing the 

violating product or adding more 

complying product until the applicable 

requirements are achieved). 

(3) An oversight program conducted 

by a carrier under paragraph (b)(1) of 

this section need not include periodic 

sampling and testing of gasoline in a 

tank truck operated by a common 

carrier, but in lieu of such tank truck 

sampling and testing the common 

carrier shall demonstrate evidence of an 

oversight program for monitoring 

compliance with the requirements of 

§ 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 

implemented fully and properly; 

(ii) Any retailer at which a violation 

was discovered allowed survey 

inspectors to take samples and inspect 

labels; and 

(iii) For truck loading terminals and 

truck distributors that perform 

oxygenate blending, additional quality 

assurance procedures and practices 

were in place, such as regular checks to 

reconcile volumes of ethanol in 

inventory and regular checks of 

equipment for proper ethanol blend 

rates. 

§ 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. 2011–16459 Filed 7–22–11; 8:45 am] 

BILLING CODE 6560–50–P 


jlentini on DSK4TPTVN1PROD with RULES2