National Petrochemical & Refiners Association 1667 K Street, NW

Suite 700

202.457.0480 voice 

202.457.0486 fax 

Charles T. Drevna 

President 

Washington, DC

20006

cdrevna@npra.org

VIA FEDERAL EXPRESS AND ELECTRONIC MAIL 

August 17, 2011 

Administrator Lisa P. Jackson 

U.S. Environmental Protection Agency 

Room 300, Ariel Rios Building 

1200 Pennsylvania Avenue, N.W. 

Washington, D.C. 20460 

(jackson.lisa@epa.gov) 

Assistant Administrator Gina McCarthy 

U.S. Environmental Protection Agency 

Office of Air and Radiation 

Ariel Rios Building, Mail Code 6101A 

1200 Pennsylvania Avenue, N.W. 

Washington, D.C. 20460 

(mccarthy.gina@epa.gov) 

RE: Request for Partial Reconsideration of Stay of EPA’s “Misfueling Rule” 76 Fed. 

Reg. 44,406 (July 25, 2011) 

Dear Administrator Jackson and Assistant Administrator McCarthy: 

The National Petrochemical & Refiners Association (“NPRA”) requests that the 

Environmental Protection Agency (“EPA”) reconsider certain provisions of the July 25, 2011 

final rule regarding the misfueling of vehicles and engines with gasoline-ethanol blends 

(“Final Misfueling Rule”)1

. NPRA requests that EPA reconsider regulatory requirements 

and implementation policies affecting 10 percent gasoline-ethanol blends (“E10”), including 

product transfer document requirements applicable to E10, and labeling, survey and product 

transfer requirements that apply to gasoline-ethanol blends that will be considered to contain 

greater than 10 and less than 15 volume percent ethanol (“E15”). These provisions of the 

Final Misfueling Rule were not subject to public notice and comment in violation of 

 

1

 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 Program, 76 Fed. Reg. 44,406 (July 25, 2011). 
Page 2 

requirements contained in the Clean Air Act (“CAA”) and the Administrative Procedure Act 

(“APA”). 

NPRA additionally requests that EPA stay and toll the effective date and compliance 

obligations for new labeling, survey and product transfer requirements contained in the Final 

Misfueling Rule. Since EPA determined that this rule was not a “major rule” as defined in 

the Congressional Review Act, the requirements of the rule will become effective on August 

25, 2011. EPA has authority under the CAA to stay the effectiveness of a rule for a period 

not to exceed three months.2

 Section 705 of the APA also authorizes the postponement of 

effective dates of a final rule pending judicial review and based on a finding that justice 

requires this result. EPA should use such available authorities to ensure that portions of the 

Final Misfueling Rule that were not subject to public notice and review not be implemented. 

A stay would also allow EPA the opportunity to reconsider and revise the Final Misfueling 

Rule. Given the impending compliance date, we ask for your prompt attention to this matter. 

I. EPA Failed to Provide Notice of Substantive Changes to Proposed Misfueling 

Regulations Affecting Labeling, Survey and Product Transfer Requirements. 

In the Final Misfueling Rule, EPA explained that it was exercising legal authority contained 

in CAA section 211(c)(1) “to establish a prohibition on the use of gasoline containing more 

than 10 vol% ethanol in vehicles, engines and equipment not covered by [partial waiver 

decisions to allow certain MY 2000 on-road vehicles].”3

 In other words, EPA intended that 

regulations prevent vehicles and engines which cannot use gasoline-ethanol blends greater 

than E10 from being fueled with gasoline-ethanol blends with an ethanol concentration 

higher than E10. EPA sought to prevent older light duty vehicles, heavy-duty vehicles, 

motorcycles and non-road vehicles and engines from using new ethanol blends that could 

contain more ethanol than E10 blends currently in use. 

The Final Misfueling Rule, however, has a much broader effect. Due to changes to 

regulatory language that were not proposed or discussed in the preamble of the proposed 

misfueling rule4, the Final Misfueling Rule effectively lowers the acceptable level of ethanol 

in E10. It does this by redefining gasoline-ethanol blends that can be considered E10 for 

purposes of labeling, survey and product transfer documents, imposing a new requirement 

that such blends contain no more than 10.0 volume percent ethanol. This new regulatory 

definition not only conflicts with all previous regulatory definitions and practices regarding 

E10 – but is unnecessary to implement partial waiver decisions allowing the use of E15 

which formed the basis and rationale of the entire Final Misfueling Rule. 

 

2 See CAA section 307(d)(7)(B). 

3

 76 Fed. Reg. at 44,411. 

4

 75 Fed. Reg.68,044 (November 4, 2010) 
Page 3 

On its face, the Final Misfueling Rule does not align with either of the partial waivers that 

EPA has promulgated to increase the allowable ethanol content of gasoline to 15%. Both the 

partial waiver for MY 2007 and newer light duty vehicles5 and the partial waiver for MY 

2001 through MY 2006 light-duty motor vehicles6 explicitly reference 10 volume percent 

ethanol. EPA provides in both final actions that “the waiver applies to the blending of 

greater than 10 vol% and no more than 15 vol% anhyrdous ethanol into gasoline.”7

 As 

demonstrated below, this regulatory standard has been consistently defined and implemented 

to allow “rounding down” of gasoline-ethanol blends that are tested as containing slightly 

more ethanol that 10 percent by volume. 

Previous to both partial waivers for E15 and the Final Misfueling Rule, E10 has been 

considered to be a fuel “consisting of 90% unleaded gasoline and 10% ethyl alcohol.”8 This 

definition and EPA’s CAA section 211(f) waiver for E10 has been in effect for 32 years and 

broadly utilized in the fuel marketplace. EPA, moreover, has repeatedly indicated that the 

1978 waiver for gasoline-ethanol blends was based on an upper limit of 10%.9 Therefore, it 

was to be expected that EPA’s proposed misfueling rule retained previous regulatory 

definitions for E10, explicitly defining this fuel as “a gasoline-ethanol blend that contains 

between 9 and 10 volume percent ethanol.”10 

In the proposed rule, all requirements related to labeling, surveys and product transfer 

documents referenced a volume ethanol content of 10%. In specific, EPA proposed that: 

(1) Any retailer or wholesale purchaser-consumer who sells, dispenses, or offers for sale 

or dispensing “gasoline-ethanol blends that contain greater than 10 volume percent

ethanol” affix a specific label to the fuel dispenser.11 (Emphasis added). 

(2) Survey requirements applicable to E15 require sending notifications of test results 

within 24 hours after a laboratory receives a sample containing greater than 10

volume percent ethanol.12 

 

5

 75 Fed. Reg. 68,094 (November 4, 2010). 

6

 76 Fed. Reg. 4,662 (January 26, 2011). 

7

 75 Fed. Reg. at 68, 149 and 76 Fed. Reg. at 4,682. Both citations reference paragraph 2 of 

the partial and condition waiver granted for vehicles subject to the waiver. 

8

 68 Fed. Reg. 20,777 (April 6, 1979). 

9 See for example: Letter from Adam M. Kushner to Bob Greco regarding Gasoline Ethanol 

Blends, July 31, 2008, referring to gasoline blended with “more than 10% ethanol”. 

10 75 Fed. Reg. at 68,085. 

11 See 40 C.F.R. 80.1501(a) 75 Fed. Reg. at 68,086. 

12 See 40 C.F.R. 80.1502(b)(3)(iv) 75 Fed. Reg. at 68,087. 
Page 4 

(3) Survey requirements applicable to E15 specifically apply to retail outlets if a sample 

of gasoline collected contains greater than 10 volume percent ethanol.13

(4) Product transfer documents contain certain statements for gasoline containing 

between 9 and 10 volume percent ethanol.14

(5) Product transfer documents contain certain statements for gasoline containing greater 

than 10 volume percent and not more than 15 volume percent ethanol.15

The Final Misfueling Rule, however, replaced “10” with “10.0” in each instance of the 

regulatory text cited above as well as replaced “9” with “9.0” and “15” with “15.0” in the 

same provisions. In each instance where EPA had proposed a whole number in the 

regulatory text of the misfueling rule, the Final Misfueling Rule added a decimal point and an 

additional digit, yielding a regulatory standard expressed to 1/10th of a volume percent. Thus, 

without any notice or discussion of this action, EPA changed regulatory standards and 

requirements in the Final Misfueling Rule that address major substantive portions of the 

rulemaking, i.e., labeling requirements, survey requirements and product transfer documents. 

This result was neither anticipated by NPRA or, to NPRA’s knowledge, by any other 

commenters to the proposed misfueling rule. It was therefore not only impracticable for 

NPRA to comment on this matter in accordance with CAA section 307(d)(7)(B), but 

impossible. The preamble of the proposed rule contained no discussion that EPA intended to 

change regulatory requirements applicable to the sale and transfer of E10 by imposing a 

“10.0” standard or by making similar changes to the proposed 9 and 15 volume percent 

values. The proposed regulatory language also contained no language or hint that EPA was 

considering changing part of its historic definition of E10. A search of the Response to 

Comments document also yields no discussion on this matter. 

Instead, the only rationale that is offered for the labeling, survey and product transfer 

requirements are that these requirements are necessary in order to avert misfueling that could 

occur under EPA’s decision to grant partial waivers for the sale and transfer of E1516 The 

 

13 See 40 C.F.R. 80.1502(b)(4)(iv)(B) Id. 

14 See 40 C.F.R. 80.1503(b)(1)(vi)(C) 75 Fed. Reg. 68,089. 

15 See 40 C.F.R. 80.1503(b)(1)(vi)(D) Id. 

16 The Final Misfueling Rule notes that “[t]hese 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 . . . The E15 partial waivers impose a number of conditions designed to 

help ensure that E15 is introduced into commerce for use only in MY 2001 and new lightduty motor vehicles and in flexible-fueled vehicles . . .[s]ome of the regulatory provisions in 

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

minimize in-use emission increases that might result from misfueling with E15.” 76 Fed. 

Reg. at 44, 407. 
Page 5 

technical basis for the final rule reiterates concerns regarding the potential for catalyst 

deterioration in older vehicles and equipment, elevated exhaust and evaporative emissions 

and engine failure from overheating.17 But all these matters and concerns relate to using a 

gasoline-ethanol blend other than the blend currently used – E10. EPA’s analysis of both 

partial waivers was with respect to 10% volume ethanol, not 10.0% volume ethanol. Thus, 

not only did EPA fail to provide any notice for changing the regulatory definition of E10, but 

the agency also did not provide any rationale, technical support or data that would support 

changing the standard from 10% to 10.0%. 

II. The Final Misfueling Rule Changes Previous EPA Regulatory Implementation and 

Guidance Without Required Rulemaking

Ethanol can be splash-blended into gasoline feedstock. While due care is taken in this 

practice and in the transport, handling and storage of E10, the actual ethanol content of E10 

can slightly vary. EPA has recognized that ethanol-gasoline blends are subject to small 

variances and has explicitly allowed such variances to occur. 

EPA has made clear that the 10 percent parameter in E10 is subject to “rounding down.” As 

indicated in 2006, “Each of EPA’s motor vehicle fuel standards indicates the number of 

significant digits which should be present in an observed measurement number to be 

compared to the standard for the purpose of demonstrating compliance. The appropriate 

number of significant digits to determine compliance with a fuel standard regulation or to 

report on a reporting form should be determined from the method outlined in section 3.1 of 

the ASTM standard practice E 29-02 . . . a test method used to measure certain fuel 

parameter may provide more significant digits in its output than specific in the standard. 

When this situation occurs, the regulated party should round their test result to determine if 

they are in compliance with the standard.”18 EPA has also made clear that “[r]eferencing the 

[ASTM] rounding method . . . provides consistent guidance for the regulated community 

when determining whether a test result is in conformance with our motor vehicle 

standards.”19

ASTM methods20 provide that where specification limits indicate a particular value, the 

limits “are taken to imply that, for purpose of determining conformance with specifications, 

an observed value or a calculated value should be rounded to the nearest [value that conforms 

 

17 See Section IV.F of the Final Misfueling Rule. 76 Fed. Reg. at 44,439. 

18 71 Fed. Reg. 16,492, 16,496 (April 3, 2006). 

19 71 Fed. Reg. at 16,497. 

20Standard Practice for Using Significant Digits in Test Data to Determine Conformance 

with Specifications, ASTM International, Designation E29-06b, 07/24/2007. 
Page 6 

to the limit].”21 ASTM further indicates that rounding procedure is to “round down” all 

values of 4 or below where this value is the “beyond the last place to be retained.”22 Thus, 

under ASTM methods, E10 volume percentage measurements at least 10.4 and below should 

be considered to constitute E10. 

Without notice either as to the agency’s intent to take this specific action – or to amend 

existing regulations, guidance and determinations respecting E1023 – EPA has redefined E10 

in the Final Misfueling Rule and applied various regulatory requirements on the basis of this 

redefinition. The net result of this action is to change a regulatory definition and agency 

interpretation that allowed gasoline-ethanol blends of 10.4 and below to constitute E10 to a 

regulatory definition and agency interpretation that E10 can contain no more than 10.0 

volume percent ethanol. 

While measures of 1/10th of 1 percent may appear nominally small, the effect of the Final 

Misfueling Rule is to substantially change current practices regarding the sale, transfer and 

marketing of E10 throughout the United States. With no allowance for “rounding down,” 

EPA has tightened requirements for E10 which will effectively ensure that less ethanol is 

used in this fuel. As the agency well knows, those subject to regulatory requirements will 

often impose a margin of safety to ensure that their products meet EPA specifications. 

Therefore a 10.0 standard has the potentially to significant reduce the amount of ethanol used 

to produce E10. In order to meet a 10.0 standard, it is likely that ethanol blenders and others 

in the supply chain will use a gasoline-ethanol level that is significantly below 10.0. Such a 

result would appear contrary to EPA’s efforts to implement an E15 standard that is designed 

to result in the use of more ethanol in the United States. 

An unintended consequence is that a gasoline blend with 10.3 vol% ethanol qualifies for the 

one psi RVP waiver and is deemed by the Agency to be E15. EPA did not intend for any 

E15 to qualify for the one psi RVP waiver if the area is subject to a maximum 9.0 psi RVP 

standard during the summer months. 

EPA should also consider the very real ramifications of making such a substantial change in 

the fuel distribution system within 30 days of final rule publication in the Federal Register. 

As noted above, NPRA could uncover no comments in the docket which referenced this 

issue. Yet the regulated community now has a matter of days to comply with the final rule. 

Such a situation is demanding both of the Agency’s immediate attention and action to stay 

the final rule provisions that produce this result. 

 

21 Id. at 4.1.3 Rounding Methods. 

22 Id. at 6.4.1. 

23 As noted earlier, the 1978 “Gasohol” waiver and both partial waivers for E15 reference 

E10 as previously defined and express the standard in terms of 10% not 10.0%. 
Page 7 

III. Conclusion 

EPA should take prompt action on this petition and stay the effective date of all portions of 

the Final Misfueling Rule that utilize the new standard of 10.0 ethanol volume percentage. 

Since these provisions take effect on August 24, time is of the essence. NPRA stands ready 

to work with EPA to resolve this matter in an expeditious fashion. 

If you have any questions, please contact Tim Hogan at 202-552-8462. 

Sincerely, 

Charles T. Drevna 

President, NPRA 

cc Margo Oge 

 Chet France 

 Paul Argyropoulos 

 Jeff Kodish 

 Paul Machiele 

 Karl Simon 

 Tim Hogan