and could experience combustion and materials compatibility problems

leading to increased emissions if operated on E15.

    Based on these concerns, we proposed to prohibit the use of

gasoline-ethanol blends greater than 10 vol% in MY2000 and older motor

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

motorcycles, and nonroad products and invited comment on the

prohibition's applicability to those vehicles, engines, and products.

While some commenters stated that we should approve E15 for all motor

vehicles, those comments pertain to the waiver decisions. We received

no comments on our emissions-related technical justification for the

proposed misfueling mitigation measures under CAA section 211(c).

    It is worth noting that while the labeling requirements covered in

Section III apply to E15, the prohibitions discussed in this section

apply to all gasoline-ethanol blends greater than 10 vol% (e.g., 20

vol% ethanol). This is consistent with our engineering assessment

discussed in the NPRM which was based, in part, on enleanment of the

air-to-fuel ratio. Ethanol enleans the air-to-fuel ratio which leads to

increased exhaust gas temperatures and therefore potentially

incremental deterioration of emission control hardware and performance

over time. This enleanment stems from the fact that ethanol contains

oxygen and consequently requires a lower air-to-fuel ratio to achieve

the stoichiometric (ideal) mixture for combustion. Vehicles, engines,

and equipment designed to operate on gasoline will therefore run leaner

when operating on gasoline-ethanol blends. Older motor vehicles, heavy-

duty gasoline engines and vehicles, motorcycles, and especially nonroad

products cannot fully compensate for the change in the stoichiometric

air-to-fuel ratio as ethanol concentration increases. Over time, this

enleanment caused by ethanol may lead to thermal degradation of the

emissions control hardware and ultimately catalyst failure. Higher

ethanol concentration will exacerbate the enleanment effect in these

vehicles, engines, and equipment and therefore increase the potential

of thermal degradation and risk of catalyst failure. In addition to

enleanment, ethanol can cause materials compatibility issues which may

lead to other component failure and ultimately exhaust and/or

evaporative emission increases. Materials compatibility with ethanol is

time, condition (e.g., temperature, pressure), and concentration

dependent. Therefore, for older motor vehicles, heavy-duty gasoline

engines and vehicles, motorcycles, and nonroad products, the potential

for materials compatibility issues increases with higher ethanol

concentration. We received no comments that the misfueling prohibition

should be narrowed to E15.

    It is not possible to precisely quantify the frequency at which

these vehicles, engines, and products might experience problems with

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

could potentially occur with enough frequency that the resulting

emissions increases that would be avoided by avoiding misfueling would

outweigh the relatively low cost imposed by the required misfueling

mitigation regulations. The potential emission increases from

misfueling warrant today's action, even if a very low percentage of

vehicles, engines, and products experiences problems. As discussed

above, the savings that would be achieved by avoiding misfueling also

far outweigh the costs of this rule. Therefore, we are finalizing the

misfueling mitigation measures we proposed with some refinements to

make them more effective and/or less burdensome.

G. The Effect of the Rule on the Misfueling Mitigation Conditions of

the Partial Waivers

    In the NPRM, the Agency noted that some of the proposed misfueling

safeguards parallel the conditions of the partial waiver decisions, and

were expected to be a more efficient way to help ensure that the

conditions of the waiver were met.\34\ One commenter

suggested that if the proposed misfueling mitigation measures were

adopted, EPA should remove or alter the misfueling mitigation

conditions of the partial waivers to avoid placing requirements on

industry that would be duplicative and unnecessary. Specifically, the

commenter stated that fuel and fuel additive manufacturers should not

have to submit plans to EPA that explain how a fuel or fuel additive

manufacturer would meet the misfueling mitigation conditions of the

partial waivers.

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

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

decisions require that fuel and fuel additive manufacturers (i.e.

gasoline producers/importers, ethanol producers/importers, and

oxygenate blenders) submit to EPA a plan prior to introduction of

E15 into commerce that demonstrates how the fuel or fuel additive

manufacturer will implement reasonable measures to ensure that

misfueling does not occur in vehicles and engines not approved for

use of E15. Reasonable measures to ensure against misfueling

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

documentation of ethanol content on PTDs, and the implementation of

an ongoing survey program, in addition to any other reasonable

measures EPA determines are appropriate. See 75 FR 68149-68150.

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

    In response to the commenter's suggestion, it is important to

clarify that the purpose of this rule is to mitigate misfueling with

E15 that lawfully has been introduced into commerce under the terms of

the waiver. The waiver conditions, and implementation of the waiver

conditions, address a closely related but different issue--when, how

and by whom E15 can be introduced into commerce under the partial

waiver decisions. This rule only addresses the issue of mitigating

misfueling in the event E15 is lawfully introduced into commerce under

the partial waivers, and is issued under EPA's authority under section

211(c). In this rulemaking EPA did not propose and is not taking any

action under section 211(f) with respect to the partial waivers that

were previously issued. For example, in this rulemaking EPA is not

modifying any of the conditions of the waivers, or making any decisions

as to whether they have been met. Decisions related to compliance with

the conditions on the waivers will be made separate and apart from this

rulemaking.

    EPA recognizes that one result of today's rule is that it will

likely be easier for parties to show compliance with the misfueling

mitigation conditions of the partial waivers. However, today's rule

does not replace or supplant the waiver conditions themselves. The

partial waivers allow E15 to be lawfully introduced into commerce for

use in MY2001 and newer light-duty motor vehicles if certain conditions

are met. Fuel and fuel additive manufacturers that desire to make and

sell E15 must do so in compliance with the waivers' conditions, which

include submission of a misfueling mitigation plan that provides, among

other things, for E15 pump labels, PTDs indicating ethanol content and

an ongoing survey of implementation of E15 content and labeling

requirements. Today's rule will likely simplify compliance with many

aspects of the required plan. For example, a fuel or fuel additive

manufacturer may decide to reference the labeling and PTD requirements

of the rule as part of its plan to meet the counterpart conditions of

the waivers. EPA also expects that parties will be able to submit a

single survey plan that will meet both the waiver condition as well as

the separate regulatory requirements related to the survey adopted in

this rule. Since the partial waivers and the rule require that survey

plans be submitted to EPA for approval, EPA expects that compliance

with the survey requirements of the waiver conditions and the rule will

be accomplished with a single submission and approval process, covering

both this rule and the waiver condition.

    EPA believes that the misfueling mitigation plans submitted under

the partial waivers will be especially useful when E15 is first

introduced into the market. For instance, many downstream parties may

not be aware of the new requirements that apply to E15 (e.g., E15 pump

labeling) early in any transition to E15. The first plans under the

partial waivers may thus usefully address how the fuel or fuel additive

manufacturer will work with downstream parties to ensure that the

misfueling mitigations measures adopted today are properly implemented.

Similarly, it may be appropriate for an ethanol manufacturer registered

under 40 CFR Part 79 to sell ethanol for use in manufacturing E15 to

address in its plan how parties that might use its product to make E15

will be informed of the misfueling mitigation requirements to which

those parties would become subject under this rule (e.g., labeling,

PTDs) if they make E15. Such parties would include, for example,

businesses that blend ethanol into gasoline to produce E15.

H. E15 Emissions and Anti-Backsliding

    In the NPRM and in the partial waiver decisions, EPA discussed the

relationship between the ethanol content of a gasoline-ethanol blended

fuel and NOx emissions. EPA concluded that, in general, as

ethanol concentrations in gasoline increase, so do NOx

emissions. The Agency received several comments that argued that

potential NOx emission increases from E15 use would add to

the formation of ground-level ozone and potentially adversely affect

public health. Additionally, some commenters noted that such

NOx increases would add to the challenge some states and

cities face in meeting the current national air quality standards for

ozone and that EPA should take action to ameliorate potential adverse

emissions effects from E15 use. Although such action is outside of the

scope of today's rulemaking, the Agency has been performing analysis

needed to support the anti-backsliding analysis required under the

Energy Independence and Security Act of 2007. We are now in the process

of assessing possible control measures to offset the potential

increases in ozone and particulate matter that are expected to result

from the increased use of renewable fuels required by the Energy

Independence and Security Act of 2007 and in response to the May 21,

2010, Presidential Memorandum Regarding Fuel Efficiency Standards.

(NOx emissions contribute to the formation of both

pollutants.) We will incorporate the results of our analysis under this

assessment in a proposal on new motor vehicle and fuel control

measures.

V. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive

Order 13563: Improving Regulation and Regulatory Review

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this

action is a ``significant regulatory action.'' This action may raise

novel legal or policy issues. Accordingly, EPA submitted this action to

the Office of Management and Budget (OMB) for review under Executive

Orders 12866 and 13563 (76 FR 3821, January 21, 2011) and any changes

made in response to OMB recommendations have been documented in the

docket for this action.

B. Paperwork Reduction Act

    This rule contains new information requirements which will be

submitted for approval to the Office of Management and Budget (OMB)

under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. These

information collection requirements are not enforceable until OMB

approves them.

    This final rule contains information collection provisions that

permit a party to apply for approval of an alternative or additional

E15 label. We anticipate that this provision will be utilized by some

refiners for their branded retailers, as well as by some individual

retailers and wholesale purchaser-consumers.

    A party may elect to satisfy the survey requirements of this rule

individually

rather than through using a nationwide survey option (i.e., they may

elect ``Survey Option 1'' as described above in section III.C). In such

circumstances, the individual information collection requirements

associated with ``Survey Option 1'' will apply. Parties that may be

subject to survey information collection requirements include gasoline

refiners, gasoline and ethanol importers, gasoline and ethanol blenders

(including terminals and carriers), and ethanol producers.

    Under the terms of the E15 partial waiver, fuel and fuel additive

manufacturers must submit a written plan to EPA for approval.\35\ The

plan must include provisions designed to prevent misfueling. The plan

must be submitted by all fuel and fuel additive manufacturers,

regardless of whether a party elects ``Survey Option 1'' (individual)

or ``Survey Option 2'' (nationwide). Parties that may be subject to

this information collection item may include gasoline refiners,

gasoline and ethanol importers, gasoline and ethanol blenders

(including terminals and carriers), and ethanol producers.

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

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

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

    This rule contains provisions related to product transfer documents

(PTDs). Parties upstream of the retail station or wholesale purchaser-

consumer will be required to develop and program new codes and

statements for PTDs. These codes will reflect the ethanol content, as

well as the Reid Vapor pressure (RVP), as described in section III.B.

Parties subject to this one time burden include gasoline refiners,

gasoline and ethanol importers, and gasoline and ethanol blenders

(including terminals and carriers).

    In addition to the one time burden of establishing/programming

codes and statements for PTDs, parties will be required to apply the

new codes and statements to PTDs as part of the normal course of

business. Typically, refiners and wholesale purchaser-consumers who are

not acting as blenders merely accept PTDs given to them by upstream

parties. The following parties may have the burden of applying codes

and statements: gasoline refiners, gasoline and ethanol importers,

gasoline and ethanol blenders (including terminals and carriers).

    EPA estimates that there will be a total of 6,211 respondents,

submitting a total of 44,010,211 responses annually. We estimate an

annual total of 37,350 hours for all respondents and responses. The

total annual cost of this information collection request is estimated

at $4,102,524.

    We estimate that the average annual burden per respondent is six

(6) hours and that the average annual cost per respondent is $661. We

estimate an average of .000849 hours per response. (It should be noted

that the reason for this short average time per response is that nearly

all of the responses will take approximately one second and represent

the time it takes to apply an automated code or statement to a PTD.)

    Burden means the total time, effort, or financial resources

expended by persons to generate, maintain, retain, or disclose or

provide information to or for a Federal agency. This includes the time

needed to review instructions; develop, acquire, install, and utilize

technology and systems for the purposes of collecting, validating, and

verifying information, processing and maintaining information, and

disclosing and providing information; adjust the existing ways to

comply with any previously applicable instructions and requirements;

train personnel to be able to respond to a collection of information;

search data sources; complete and review the collection of information;

and transmit or otherwise disclose the information. An agency may not

conduct or sponsor, and a person is not required to respond to, a

collection of information unless it displays a currently valid OMB

control number. The OMB control numbers for EPA's regulations are

listed in 40 CFR part 9 and 48 CFR chapter 15.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency

to prepare a regulatory flexibility analysis of any rule subject to

notice and comment rulemaking requirements under the Administrative

Procedure Act or any other statute unless the agency certifies that the

rule will not have a significant economic impact on a substantial

number of small entities. Small entities include small businesses,

small organizations, and small governmental jurisdictions.

    For purposes of assessing the impacts of today's rule on small

entities, small entity is defined as: (1) A small business as defined

by the Small Business Administration's (SBA) regulations at 13 CFR

121.201; (2) a small governmental jurisdiction that is a government of

a city, county, town, school district or special district with a

population of less than 50,000; and (3) a small organization that is

any not-for-profit enterprise which is independently owned and operated

and is not dominant in its field.

    After considering the economic impacts of today's final rule on

small entities, I certify that this action will not have a significant

economic impact on a substantial number of small entities. The small

entities directly regulated by this final rule are petroleum refiners

and importers, ethanol producers, ethanol blenders, gasoline terminals,

gasoline stations with convenience stores, and other gasoline stations.

While there are small entities in each of these market sectors as

discussed in Section III.F., the cost impact on any particular entity

is expected to be a tiny fraction of annual revenues.

D. Unfunded Mandates Reform Act

    This rule does not contain a Federal mandate that may result in

expenditures of $100 million or more for State, local, and Tribal

governments, in the aggregate, or the private sector in any one year.

The total annual cost is expected to be $3.64 million. Thus, this rule

is not subject to the requirements of sections 202 or 205 of UMRA.

    This rule is also not subject to the requirements of section 203 of

UMRA because it contains no regulatory requirements that might

significantly or uniquely affect small governments. This action

primarily affects the private sector, specifically petroleum refiners

and importers, ethanol producers, ethanol blenders, gasoline terminals,

gasoline stations with convenience stores, and other gasoline stations.

E. Executive Order 13132 (Federalism)

    This action does not have federalism implications. It will not have

substantial direct effects on the States, on the relationship between

the national government and the States, or on the distribution of power

and responsibilities among the various levels of government, as

specified in Executive Order 13132. Any preemption of State or local

controls under section 211(c)(4)(A), based on issuance of this rule

under section 211(c)(1), would only apply to State or local controls

adopted for purposes of motor vehicle emissions control. This rule will

be implemented at the Federal level and impose compliance costs only on

petroleum refiners and importers, gasoline stations with convenience

stores, and other gasoline stations. Thus, Executive Order 13132 does

not apply to this action.

    In the spirit of Executive Order 13132, and consistent with EPA

policy to promote communications between EPA and State and local

governments, EPA specifically solicited comment on the proposed action

from State and local officials. The Agency did not receive any comments

from states or local governments that cited a concern over state

preemption or federalism.

F. Executive Order 13175

    This action does not have tribal implications, as specified in

Executive Order 13175 (65 FR 67249, November 9, 2000). This rule will

be implemented at the Federal level and impose compliance costs only on

petroleum refiners, importers, oxygenate blenders, gasoline stations

with convenience stores, and other gasoline stations. Thus, Executive

Order 13175 does not apply to this action.

G. Executive Order 13045: Protection of Children From Environmental

Health Risks and Safety Risks

    EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as applying

only to those regulatory actions that concern health or safety risks,

such that the analysis required under section 5-501 of the EO has the

potential to influence the regulation. This action is not subject to EO

13045 because it does not establish an environmental standard intended

to mitigate health or safety risks.

H. Executive Order 13211: Actions Concerning Regulations That

Significantly Affect Energy Supply, Distribution, or Use

    This action is not a ``significant energy action'' as defined in

Executive Order 13211 (66 FR 28355 (May 22, 2001)), because it is not

likely to have a significant adverse effect on the supply,

distribution, or use of energy. This final rule has a labeling

requirement, a prohibition against the use of gasoline containing more

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

the partial waiver decisions, a PTD requirement; and a survey

requirement.

    There is no cost for the prohibition. The cost of the label is

estimated at $5 per year per service station. This is a tiny fraction

of the station's annual sales, and is not expected to significantly

affect energy distribution. The cost of the PTD requirement is

estimated at $0.45 million per year. This cost is a one-time cost to

reformat PTDs amortized over 15 years; any additional costs are

expected to be insignificant. The total cost of the survey requirements

is estimated to be $2.15 million per year. The projected total cost of

the final provisions is $3.64 million per year (see section IV for a

more detailed discussion of these estimated costs). These costs are not

expected to increase the cost of energy production or distribution in

excess of one percent. Therefore, this final action is not expected to

have a significant adverse energy effect.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement

Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272 note)

directs EPA to use voluntary consensus standards in its regulatory

activities unless to do so would be inconsistent with applicable law or

otherwise impractical. Voluntary consensus standards are technical

standards (e.g., materials specifications, test methods, sampling

procedures, and business practices) that are developed or adopted by

voluntary consensus standards bodies. NTTAA directs EPA to provide

Congress, through OMB, explanations when the Agency decides not to use

available and applicable voluntary consensus standards.

    This action does not involve technical standards. Therefore, EPA

did not consider the use of any voluntary consensus standards.

J. Executive Order 12898: Federal Actions To Address Environmental

Justice in Minority Populations and Low-Income Populations

    Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes

Federal executive policy on environmental justice. Its main provision

directs Federal agencies, to the greatest extent practicable and

permitted by law, to make environmental justice part of their mission

by identifying and addressing, as appropriate, disproportionately high

and adverse human health or environmental effects of their programs,

policies, and activities on minority populations and low-income

populations in the United States.

    EPA has determined that this final rule will not have

disproportionately high and adverse human health or environmental

effects on minority or low-income populations because it increases the

level of environmental protection for all affected populations without

having any disproportionately high and adverse human health or

environmental effects on any population, including any minority or low-

income population. This action would affect all gasoline stations that

choose to sell E15 and therefore will not affect any particular area

disproportionately.

K. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the

Small Business Regulatory Enforcement Fairness Act of 1996, generally

provides that before a rule may take effect, the agency promulgating

the rule must submit a rule report, which includes a copy of the rule,

to each House of the Congress and to the Comptroller General of the

United States. EPA will submit a report containing this rule and other

required information to the U.S. Senate, the U.S. House of

Representatives, and the Comptroller General of the United States prior

to publication of the rule in the Federal Register. A Major rule cannot

take effect until 60 days after it is published in the Federal

Register. This action is not a ``major rule'' as defined by 5 U.S.C.

804(2). This rule will be effective August 24, 2011.

VI. Legal Authority and Judicial Review

A. Legal Authority

    As explained above, we are finalizing the misfueling mitigation

measures pursuant to our authority under CAA section 211(c)(1). This

section gives EPA authority to ``control or prohibit the manufacture,

introduction into commerce, offering for sale, or sale'' of any fuel or

fuel additive (A) Whose emission products, in the judgment of the

Administrator, cause or contribute to air pollution ``which may be

reasonably anticipated to endanger public health or welfare'' or (B)

whose emission products ``will impair to a significant degree the

performance of any emission control device or system which is in

general use, or which the Administrator finds has been developed to a

point where in a reasonable time it would be in general use'' were the

fuel control or prohibition adopted. In Section VII \36\ of the

proposed rule, we explained how under section 211(c)(1), EPA may adopt

a fuel control if at least one of the two criteria above is met. We

also explained that we were proposing the misfueling mitigation

measures based on both of these criteria. We stated that under section

211(c)(1)(B), we believed that E15 would significantly impair the

emission control systems used in MY2000 and older light-duty motor

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

highway motorcycles, and all nonroad products. This led to our

conclusion that under section 211(c)(1)(A), the likely result would be

increased HC, CO and NOX emissions when these particular

engines, vehicles and nonroad products use E15.

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

    \36\ Section VII. ``What is our legal authority for proposing

these misfueling mitigation measures?'' 75 FR 68044, 68081 (November

4, 2010).

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

    EPA received no comments on our analysis in Section VII during the

public comment period. Therefore, EPA is finalizing these misfueling

mitigation measures under our authority in section

211(c)(1). We fully include by reference our analysis in Section VII of

the proposed rule as our basis for doing so since our rationale is the

same for this final action.

B. Judicial Review

    Under section 307(b)(1) of the Clean Air Act (CAA), judicial review

of these final rules is available only by filing a petition for review

in the United States Court of Appeals for the District of Columbia

Circuit by September 23, 2011. Under section 307(b)(2) of the CAA, the

requirements established by these final rules may not be challenged

separately in any civil or criminal proceedings brought by EPA to

enforce these requirements.

    Section 307(d)(7)(B) of the CAA further provides that ``[o]nly an

objection to a rule or procedure which was raised with reasonable

specificity during the period for public comment (including any public

hearing) may be raised during judicial review.'' This section also

provides a mechanism for us to convene a proceeding for

reconsideration, ``[i]f the person raising an objection can demonstrate

to the EPA that it was impracticable to raise such objection within

[the period for public comment] or if the grounds for such objection

arose after the period for public comment (but within the time

specified for judicial review) and if such objection is of central

relevance to the outcome of the rule.'' Any person seeking to make such

a demonstration to us should submit a Petition for Reconsideration to

the Office of the Administrator, U.S. EPA, Room 3000, Ariel Rios

Building, 1200 Pennsylvania Ave., NW., Washington, DC 20460, with a

copy to both the person(s) listed in the preceding FOR FURTHER

INFORMATION CONTACT section, and the Associate General Counsel for the

Air and Radiation Law Office, Office of General Counsel (Mail Code

2344A), U.S. EPA, 1200 Pennsylvania Ave., NW., Washington, DC 20460.

List of Subjects in 40 CFR Part 80

    Environmental protection, Air pollution control, Fuel additives,

Diesel, Gasoline, Imports, Labeling, Motor vehicle pollution,

Penalties, Reporting and recordkeeping requirements.

    Dated: June 23, 2011.

Lisa P. Jackson,

Administrator.

    For the reasons set forth in the preamble, 40 CFR part 80 is

amended as follows:

PART 80--REGULATION OF FUEL AND FUEL ADDITIVES

0

1. The authority citation for part 80 continues to read as follows:

    Authority:  42 U.S.C. 7414, 7542, 7545, and 7601(a).

0

2. Section 80.40(c)(1) is amended to read as follows:

Sec.  80.40  Fuel certification procedures.

* * * * *

    (c)(1) Adjusted VOC gasoline for purposes of the general

requirements in 80.65(d)(2)(ii), and the certification procedures in

this section is gasoline that contains 10 to 15 volume percent ethanol,

or RBOB intended for blending with 10 to 15 volume percent ethanol,

that is intended for use in the areas described at 80.70(f) and (i),

and is designated by the refiner as adjusted VOC gasoline subject to

less stringent VOC standards in 80.41(e) and (f). In order for adjusted

VOC gasoline to qualify for the regulatory treatment specified in

80.41(e) and (f), reformulated gasoline must contain denatured,

anhydrous ethanol. The concentration of the ethanol, excluding the

required denaturing agent, must be at least 9 percent and no more than

15 percent (by volume) of the gasoline. The ethanol content of the

gasoline shall be determined by use of one of the testing methodologies

specified in 80.46(g).

* * * * *

0

3. Section 80.45 is amended by adding a new paragraph (c)(1)(iii)(C)

and by revising paragraphs (f)(1)(i) and (f)(1)(ii) to read as follows:

Sec.  80.45  Complex emissions model.

* * * * *

    (c) * * *

    (1) * * *

    (iii) * * *

    (C) During Phase II, fuels with an oxygen concentration greater

than 4.0 weight percent and not more than 5.8 weight percent shall be

evaluated with the OXY fuel parameter set equal to 4.0 percent by

weight when calculating VOCE using the equations described in

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

* * * * *

    (f) * * *

    (1) * * *

    (i) For reformulated gasolines:

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

               Fuel property                      Acceptable range

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

Oxygen....................................  0.0-5.8 weight percent.

Sulfur....................................  0.0-500.0 parts per million

                                             by weight.

RVP.......................................  6.4-10.0 pounds per square

                                             inch.

E200......................................  30.0-70.0 percent

                                             evaporated.

E300......................................  70.0-100.0 percent

                                             evaporated.

Aromatics.................................  0.0-50.0 volume percent.

Olefins...................................  0.0-25.0 volume percent.

Benzene...................................  0.0-2.0 volume percent.

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

     (ii) For conventional gasoline:

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

               Fuel property                      Acceptable range

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

Oxygen....................................  0.0-5.8 weight percent.

Sulfur....................................  0.0-1000.0 parts per million

                                             by weight.

RVP.......................................  6.4-11.0 pounds per square

                                             inch.

E200......................................  30.0-70.0 evaporated

                                             percent.

E300......................................  70.0-100.0 evaporated

                                             percent.

Aromatics.................................  0.0-55.0 volume percent.

Olefins...................................  0.0-30.0 volume percent.

Benzene...................................  0.0-4.9 volume percent.

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

* * * * *

0

4. A new subpart N is added to read as follows:

Subpart N--Additional Requirements for Gasoline-Ethanol Blends

Sec.

80.1500 Definitions.

80.1501 What are the labeling requirements that apply to retailers

and wholesale purchaser-consumers of gasoline-ethanol blends that

contain greater than 10.0 volume percent ethanol and not more than

15.0 volume percent ethanol?

80.1502 What are the survey requirements for gasoline-ethanol

blends?

80.1503 What are the product transfer document requirements for

gasoline-ethanol blends, gasolines, and conventional blendstocks for

oxygenate blending subject to this subpart?

80.1504 What acts are prohibited under this subpart?

80.1505 Who is liable for violations of this subpart?

80.1506 What penalties apply under this subpart?

80.1507 What are the defenses for acts prohibited under this

subpart?

80.1508 What evidence may be used to determine compliance with the

requirements of this subpart and liability for violations of this

subpart?

Subpart N--Additional Provisions for Gasoline-Ethanol Blends

Sec.  80.1500  Definitions.

    The definitions in Sec.  80.2 apply to this subpart. For purposes

of this subpart only:

    Blendstock for oxygenate blending means gasoline blendstock which

could become gasoline solely upon the addition of an oxygenate.

    Conventional blendstock for oxygenate blending means gasoline

blendstock which could become conventional gasoline solely upon the

addition of an oxygenate.

    Carrier has the same meaning as defined in Sec.  80.2(t).

    Conventional gasoline has the same meaning as defined in Sec.

80.2(ff).

    E0 means a gasoline that contains no ethanol.

    E10 means a gasoline-ethanol blend that contains at least 9.0 and

no more than 10.0 volume percent ethanol.

    E15 means a gasoline-ethanol blend that contains greater than 10.0

volume percent ethanol and not more than 15.0 volume percent ethanol.

    EX means a gasoline-ethanol blend that contains less than 9 volume

percent ethanol where X equals the maximum volume percent ethanol in

the gasoline-ethanol blend.

    EXX means a gasoline-ethanol blend above E15 where XX equals the

maximum volume percent ethanol in the gasoline-ethanol blend.

    Ethanol blender has the same meaning as defined in Sec.  80.2(v).

    Ethanol importer means a person who brings ethanol into the United

States (including from the Commonwealth of Puerto Rico, the Virgin

Islands, Guam, American Samoa, and the Northern Mariana Islands) for

use in motor vehicles and nonroad engines.

    Ethanol producer means any person who owns, leases, operates,

controls, or supervises a facility that produces ethanol for use in

motor vehicles or nonroad engines.

    Flex-fuel vehicle has the same meaning as flexible-fuel vehicle as

defined in Sec.  86.1803-01.

    Fuel dispenser means the apparatus used to dispense fuel into motor

vehicles or nonroad vehicles, engines or equipment, or into a portable

fuel container as defined at Sec.  59.680.

    Gasoline has the same meaning as defined in Sec.  80.2(c).

    Gasoline importer means an importer as defined in Sec.  80.2(r)

that imports gasoline or gasoline blending stocks that could become

gasoline solely upon the addition of oxygenates.

    Gasoline refiner means a refiner as defined as in Sec.  80.2(i)

that produces gasoline or gasoline blending stocks that could become

gasoline solely upon the addition of oxygenates.

    Oxygenate blender has the same meaning as defined in Sec.

80.2(mm).

    Oxygenate blending facility has the same meaning as defined in

Sec.  80.2(ll).

    Regulatory control periods has the same meaning as defined in Sec.

80.27(a)(2)(ii) or in any State Implementation Plan (SIP) approved or

promulgated under Sec. Sec.  110 or 172 of the Clean Air Act.

    Retail outlet has the same meaning as defined Sec.  80.2(j).

    Retailer has the same meaning as defined in Sec.  80.2(k).

    Survey series means the four quarterly surveys that comprise a

survey program.

    Sampling strata means the three types of areas sampled during a

survey which include the following:

    (1) Densely populated areas;

    (2) Transportation corridors; and

    (3) Rural areas.

    Wholesale purchaser-consumer has the same meaning as defined in

Sec.  80.2(o).

Sec.  80.1501  What are the labeling requirements that apply to

retailers and wholesale purchaser-consumers of gasoline-ethanol blends

that contain greater than 10.0 volume percent ethanol and not more than

15.0 volume percent ethanol?

    (a) Any retailer or wholesale purchaser-consumer who sells,

dispenses, or offers for sale or dispensing, gasoline-ethanol blends

that contain greater than 10.0 volume percent ethanol and not more than

15.0 volume percent ethanol shall affix the following conspicuous and

legible label to the fuel dispenser:

Attention

E15

Up to 15% ethanol

Use only in

 2001 and newer passenger vehicles

 Flex-fuel vehicles

    Don't use in other vehicles, boats, or gasoline-powered equipment.

It may cause damage and is prohibited by Federal law.

    (b) Labels under this section shall meet the following requirements

for appearance and placement:

    (1) Dimensions. The label shall measure 3 and \5/8\ inches wide by

3 and \1/8\ inches high.

    (2) Placement. The label shall be placed on the upper two-thirds of

each fuel dispenser where the consumer will see the label when

selecting a fuel to purchase. For dispensers with one nozzle, the label

shall be placed above the button or other control used for selecting

E15, or in any other manner which clearly indicates which control is

used to select E15. For dispensers with multiple nozzles, the label

shall be placed in the location that is most likely to be seen by the

consumer at the time of selection of E15.

    (3) Text. The text shall be justified and the fonts and backgrounds

shall be as described in paragraphs (b)(3)(i) through (vi) and

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

    (i) The word ``Attention'' shall be in 20-point, orange, Helvetica

Neue LT 77 Bold Condensed font, and shall be placed in the top 1.25

inches of the label as further described in (b)(4)(iii) of this

section.

    (ii) The word ``E15'' shall be in 42-point, orange, Helvetica Black

font, and shall be placed in the top 1.25 inches of the label.

    (iii) The ethanol content: ``Up to 15% ethanol'' shall be in 14-

point, center-justified, orange, Helvetica Black font in the top 1.25

inches of the label, below the word E15.

    (iv) The words ``Use only in'' shall be in 20-point, left-

justified, black, Helvetica Bold font in the top 1.25 inches of the

label.

    (v) The words, and symbols `` 2001 and newer passenger

vehicles  Flex-fuel vehicles'' shall be in 14-point, left-

justified, black, Helvetica Bold font.

    (vi) The remaining two sentences shall be in 12-point, left-

justified, Helvetica Bold font, except that the word ``prohibited'' in

the second sentence shall be in 12-point, black, Helvetica Black

Italics font.

    (4) Color. (i) The background of the top 1.25 inches of the label

shall be black.

    (ii) The background of the bottom 1.75 inches of the label shall be

orange.

    (iii) The label shall have on the upper left side of the label a

diagonal orange stripe that is .3125 inches tall. The stripe shall be

placed as far down and across the label as is necessary so as to as to

create a black triangle of the upper left corner of the label whose

vertical side is contiguous to the vertical edge of the label and

is.4375 inches long, and whose horizontal side is contiguous to the

horizontal edge of the label and is 1.0 inches long. The word

``Attention'' shall be centered to the upper edge of this stripe.

    (5) Alternative labels to those specified in this section may be

used if approved by EPA in advance. Such labels must contain all of the

informational elements specified in paragraph (a) of this section, and

must use colors and other design elements similar in substance and

appearance to the label required by this section. Such labels may

differ in size and shape from

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.<PHONE_NUMBER>.

Sec.  80.1502  What are the survey requirements related to gasoline-

ethanol blends?

    Any gasoline refiner, gasoline importer, ethanol blender, ethanol

producer, or ethanol importer who manufactures, introduces into

commerce, sells or offers for sale E15, gasoline, blendstock for

oxygenate blending, ethanol, or gasoline-ethanol blend that is intended

for use in or as E15 shall comply with the survey program requirements

in either paragraph (a) or paragraph (b) of this section. These same

parties are also subject to paragraphs (c), (d) and (e) of this section

regardless of whether they choose the survey program requirements in

paragraph (a) or paragraph (b) of this section. In the case of ethanol

producers and ethanol importers, the ethanol that is produced or

imported shall be deemed as intended for use in E15 unless an ethanol

producer or an ethanol importer demonstrates that it was not intended

for such use.

    (a) Survey option 1. In order to satisfy the survey program

requirements, any gasoline refiner, gasoline importer, ethanol blender,

ethanol producer, or ethanol importer who manufactures, introduces into

commerce, sells or offers for sale E15, gasoline, blendstock for

oxygenate blending, ethanol, or gasoline-ethanol blend intended for use

in or as E15 shall properly conduct a program of compliance surveys in

accordance with a survey program plan which has been approved by EPA in

all areas which may be reasonably expected to be supplied with their

gasoline, blendstock for oxygenate blending, ethanol, or gasoline-

ethanol blend if these may be used to manufacture E15 or as E15 at any

time during the year. Such approval shall be based upon the survey

program plan meeting the following criteria:

    (1) The survey program shall consist of at least quarterly surveys

which shall occur during the following time periods in every year

during which the gasoline refiner, gasoline importer, ethanol blender,

ethanol producer, or ethanol importer introduces E15 into commerce:

    (i) One survey during the period January 1 through March 31;

    (ii) One survey during the period April 1 through June 30;

    (iii) One survey during the period July 1 through September 30; and

    (iv) One survey during the period October 1 through December 31.

    (2) The survey program plan shall meet all of the requirements of

paragraph (b), except paragraphs (b)(4)(ii) and (b)(4)(v) of this

section. The survey program plan shall specify the sampling strata,

clusters and area, and number of samples to be included.

Notwithstanding paragraph (b)(2) of this section, in order to comply

with this paragraph the survey plan need not be conducted by a

consortium.

    (b) Survey option 2.

    (1) To comply with the requirements under this paragraph (b), any

gasoline refiner, gasoline importer, ethanol blender, ethanol producer,

or ethanol importer who manufactures, introduces into commerce, sells

or offers for sale E15, gasoline, blendstock for oxygenate blending,

ethanol, or gasoline-ethanol blend intended for use in or as E15 must

participate in a consortium which arranges to have an independent

survey association conduct a statistically valid program of compliance

surveys pursuant to a survey program plan which has been approved by

EPA, in accordance with the requirements of paragraphs (b)(2) through

(b)(4) and (b)(6) of this section.

    (2) The consortium survey program under this paragraph (b) must be:

    (i) Planned and conducted by a survey association that is

independent of the ethanol blenders, ethanol producers, ethanol

importers, gasoline refiners, and/or gasoline importers that arrange to

have the survey conducted. In order to be considered independent:

    (A) Representatives of the survey association shall not be an

employee of any ethanol blender, ethanol producer, ethanol importer,

gasoline refiner, or gasoline importer;

    (B) The survey association shall be free from any obligation to or

interest in any ethanol blender, ethanol producer, ethanol importer,

gasoline refiner, or gasoline importer; and

    (C) The ethanol blenders, ethanol producers, ethanol importers,

gasoline refiners, and/or gasoline importers that arrange to have the

survey conducted shall be free from any obligation to or interest in

the survey association.

    (ii) Conducted at retail outlets that sell gasoline; and

    (iii) Represent all gasoline dispensed nationwide.

    (3) Independent Survey Association Requirements. The consortium

described in paragraph (b)(1) of this section shall require the

independent survey association conducting the surveys to:

    (i) Submit to EPA for approval each calendar year a proposed survey

program plan in accordance with the requirements of paragraph (b)(4) of

this section.

    (ii) Obtain samples of gasoline offered for sale at gasoline retail

outlets in accordance with the survey program plan approved under this

paragraph (b), or immediately notify EPA of any refusal of retail

outlets to allow samples to be taken.

    (iii) Test, or arrange to be tested, the samples required under

paragraph (b)(3)(ii) of this section for Reid vapor pressure (RVP), and

oxygenate content as follows:

    (A) Samples collected at retail outlets shall be shipped the same

day the samples are collected via ground service to the laboratory and

analyzed for oxygenate content. Samples collected at a dispenser

labeled E15 in any manner, or at a tank serving such a dispenser, shall

also be analyzed for RVP. Such analysis shall be completed within 10

days after receipt of the sample in the laboratory. Nothing in this

section shall be interpreted to require RVP testing of a sample from

any dispenser or tank serving it unless the dispenser is labeled E15 in

any manner.

    (B) Any laboratory to be used by the independent survey association

for oxygenate or RVP testing shall be approved by EPA and its test

method for determining oxygenate content shall be a method permitted

under Sec.  80.46(g), and its test method for determining RVP shall be

the method permitted under Sec.  80.46(b).

    (iv) In the case of any test that yields a result that does not

match the label affixed to the product (e.g., a sample greater than

15.0 volume percent ethanol dispensed from a fuel dispenser labeled as

``E15'' or a sample containing greater than 10.0 volume percent ethanol

and not more than 15.0 volume percent ethanol dispensed from a fuel

dispenser not labeled as ``E15''), or the RVP standard of Sec.

80.27(a)(2), the independent survey association shall, within 24 hours

after the laboratory receives the sample, send notification of the test

result as follows:

    (A) In the case of a sample collected at a retail outlet at which

the brand name of a gasoline refiner or gasoline importer is displayed,

to the gasoline refiner or gasoline importer, and EPA.

This initial notification to a gasoline refiner or gasoline importer

shall include specific information concerning the name and address of

the retail outlet, contact information, the brand, and the ethanol

content, and the RVP if required, of the sample.

    (B) In the case of a sample collected at other retail outlets, to

the retailer and EPA, and such notice shall contain the same

information as in paragraph (b)(3)(iv)(A) of this section.

    (C) The independent survey association shall provide notice to the

identified contact person or persons for each party in writing (which

includes e-mail or facsimile) and, if requested by the identified

contact person, by telephone.

    (v) Confirm that each fuel dispenser sampled is labeled as required

in Sec.  80.1501 by confirming that:

    (A) The label meets the appearance and content requirements of

Sec.  80.1501.

    (B) The label is located on the fuel dispenser according to the

requirements in Sec.  80.1501.

    (vi) In the case of a fuel dispenser that is improperly labeled, or

whose fuel does not meet the RVP standards of Sec.  80.27(a)(2) the

survey association shall provide notice as provided in paragraphs

(b)(2)(iv)(A) through (C) of this section.

    (vii) Provide to EPA quarterly and annual summary survey reports

which include the information specified in paragraph (b)(5) of this

section.

    (viii) Maintain all records relating to the surveys conducted under

this paragraph (b) for a period of at least five (5) years.

    (ix) Permit any representative of EPA to monitor at any time the

conducting of the surveys, including sample collection, transportation,

storage, and analysis.

    (4) Survey Plan Design Requirements. The proposed survey program

plan required under paragraph (b)(3)(i) of this section shall, at a

minimum, include the following:

    (i) Number of Surveys. The survey program plan shall include four

quarterly surveys each calendar year. The four quarterly surveys

collectively are called the survey series as defined in Sec.  80.1500.

    (ii) Sampling Areas. The survey program plan shall include sampling

in all sampling strata, as defined in Sec.  80.1500, during each

survey. These sampling strata shall be further divided into discrete

sampling areas or clusters. Each survey shall include sampling in at

least 40 sampling areas in each stratum which are randomly selected.

    (iii) No advance notice of surveys. The survey plan shall include

procedures to keep the identification of the sampling areas that are

included in any survey plan confidential from any regulated party prior

to the beginning of a survey in an area. However, this information

shall not be kept confidential from EPA.

    (iv) Retail outlet selection.

    (A) The retail outlets to be sampled in a sampling area shall be

selected from among all retail outlets in the sampling area that sell

gasoline, with the probability of selection proportionate to the volume

of gasoline sold at the retail outlets; the sample should also include

retail outlets with different brand names as well as those retail

outlets that are unbranded.

    (B) In the case of any retail outlet from which a sample of

gasoline was collected during a survey and determined to have an

ethanol content that does not match the fuel dispenser label (e.g. a

sample greater than 15.0 volume percent ethanol dispensed from a fuel

dispenser labeled as ``E15'' or a sample with greater than 10.0 volume

percent ethanol and not more than 15.0 volume percent ethanol dispensed

from a fuel dispenser not labeled as ``E15'') or determined to have a

dispenser containing fuel whose RVP does not comply with Sec.

80.27(a)(2), that retail outlet shall be included in the subsequent

survey.

    (C) One sample of each product dispensed as gasoline shall be

collected at each retail outlet, and separate samples shall be taken

that represent the gasoline contained in each gasoline storage tank

unless collection of separate samples is not practicable.

    (v) Number of samples.

    (A) The minimum number of samples to be included in the survey plan

for each calendar year shall be calculated as follows:

[GRAPHIC] [TIFF OMITTED] TR25JY11.003

Where:

n = minimum number of samples in a year-long survey series. However,

in no case shall n be smaller than 7,500.

Z[alpha] = upper percentile point from the normal distribution to

achieve a one-tailed 95% confidence level (5% [alpha]-level). Thus,

Z[alpha] equals 1.645.

Z[beta] = upper percentile point to achieve 95% power. Thus, Z[beta]

equals 1.645.

[oslash]l = the maximum proportion of non-compliant

stations for a region to be deemed compliant. In this test, the

parameter needs to be 5% or greater, i.e., 5% or more of the

stations, within a stratum such that the region is considered non-

compliant. For this survey, [oslash]1 will be 5%.

[oslash]o= the underlying proportion of non-compliant stations in a

sample. For the first survey plan, [oslash]o = will be 2.3%. For

subsequent survey plans, [oslash]o = will be the average of the

proportion of stations found to be non-compliant over the previous

four surveys.

Stn = number of sampling strata. For purposes of this

survey program, Stn equals 3.

Fa = adjustment factor for the number of extra samples

required to compensate for collected samples that cannot be included

in the survey, based on the number of additional samples required

during the previous four surveys. However, in no case shall the

value of Fa be smaller than 1.1.

Fb = adjustment factor for the number of samples required

to resample each retail outlet with test results exceeding the

labeled amount (e.g., a sample greater than 15.0 volume percent

ethanol dispensed from a fuel dispenser labeled as ``E15'', a sample

with greater than 10.0 volume percent ethanol and not more than 15.0

volume percent ethanol dispensed from a fuel dispenser not labeled

as ``E15''), or a sample dispensed from a fuel dispenser labeled as

``E15'' with greater than the applicable seasonal and geographic RVP

pursuant to Sec.  80.27, based on the rate of resampling required

during the previous four surveys. However, in no case shall the

value of Fb be smaller than 1.1.

Sun = number of surveys per year. For purposes of this

survey program, Sun equals 4.

    (B) The number of samples determined pursuant to paragraph

(b)(4)(v)(A) of this section, after being incremented as necessary to

allocate whole numbers of samples to each cluster, shall be distributed

approximately equally for the quarterly surveys conducted during the

calendar year.

    (5) Summary survey reports. The quarterly and annual summary survey

reports required under paragraph (b)(3)(vii) of this section shall

include the following information:

    (i) An identification of the parties that are participating in the

survey.

    (ii) The identification of each sampling area included in a survey

and

the dates that the samples were collected in that area.

    (iii) For each retail outlet sampled:

    (A) The identification of the retail outlet;

    (B) The gasoline refiner or gasoline importer brand name displayed,

if any;

    (C) The fuel dispenser labeling (e.g., ``E15'');

    (D) The sample test result for oxygenate content, and RVP result,

if any;

    (E) The test method used to determine oxygenate content under Sec.

80.46(g); and

    (F) The test method used to determine RVP under Sec.  80.46(b).

    (iv) Ethanol level summary statistics by brand and unbranded for

each sampling area, strata, and survey series. These summary statistics

shall:

    (A) Include the number of samples, the average, median and range of

ethanolcontent, expressed in volume percent.

    (B) [Reserved].

    (v) The quarterly reports required under this paragraph (b)(5) are

due 60 days following the end of the quarter. The annual reports

required under this paragraph (b)(5) are due 60 days following the end

of the calendar year.

    (vi) The reports required under this paragraph (b)(5) shall be

submitted to EPA in an electronic spreadsheet.

    (c) Procedures for obtaining approval of survey plan and providing

required notices. The first year in which a survey program is conducted

may consist of only a portion of a calendar year ending on December 31

(i.e., in the initial year, a survey program may begin on a date after

January 1, but would still end on December 31). Subsequent survey

programs shall be conducted on a calendar year basis. The procedure for

obtaining EPA approval of a survey program plan under paragraph (b) or

paragraph (c) of this section is as follows:

    (1) For the first year in which a survey will be conducted, a

survey program plan that complies with the requirements of paragraph

(a) or paragraph (b) of this section must be submitted to EPA no later

than 60 days prior to the date on which the survey program is to begin.

    (2) For subsequent years in which a survey will be conducted, a

survey program plan that complies with the requirements of paragraph

(a) or paragraph (b) of this section must be submitted to EPA no later

than November 1 of the year preceding the calendar year in which the

survey will be conducted.

    (3) The survey program plan must be signed by a responsible officer

of the consortium which arranges to have an independent surveyor

conduct the survey program.

    (4) The survey program plan must be sent to the following address:

Director, Compliance and Innovative Strategies Division, U.S.

Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Mail Code

6506J, Washington, DC 20460.

    (5) EPA will send a letter to the party submitting the survey

program plan that indicates whether EPA approves or disapproves the

survey plan.

    (6) The approving official for a survey plan under this section is

the Director of the Compliance and Innovative Strategies Division,

Office of Transportation and Air Quality.

    (7) Any notifications or reports required to be submitted to EPA

under this section must be directed to the official designated in

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

    (d) Independent surveyor contract.

    (1) For the first year in which a survey program will be conducted,

no later than 30 days preceding the start of the survey, the contract

with the independent surveyor shall be in effect, and an amount of

money necessary to carry out the entire survey plan shall be paid to

the independent surveyor or placed into an escrow account with

instructions to the escrow agent to pay the money to the independent

surveyor during the course of the conduct of the survey plan.

    (2) For subsequent years in which a survey program will be

conducted, no later than December 1 of the year preceding the year in

which the survey will be conducted, the contract with the independent

surveyor shall be in effect, and an amount of money necessary to carry

out the entire survey plan shall be paid to the independent surveyor or

placed into an escrow account with instructions to the escrow agent to

pay the money to the independent surveyor during the course of the

conduct of the survey plan.

    (3) For the first year in which a survey program will be conducted,

no later than 15 days preceding the start of the survey EPA must

receive a copy of the contract with the independent surveyor and proof

that the money necessary to carry out the survey plan has either been

paid to the independent surveyor or placed into an escrow account; if

the money has been placed into an escrow account, a copy of the escrow

agreement must to be sent to the official designated in paragraph

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

    (4) For subsequent years in which a survey program will be

conducted, no later than December 15 of the year preceding the year in

which the survey will be conducted, EPA must receive a copy of the

contract with the independent surveyor and proof that the money

necessary to carry out the survey plan has either been paid to the

independent surveyor or placed into an escrow account; if placed into

an escrow account, a copy of the escrow agreement must be sent to the

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

    (e) Consequences of failure to fulfill requirements. A failure to

fulfill or cause to be fulfilled any of the requirements of this

section is a prohibited act under Clean Air Act section 211(c) and

Sec.  80.1504.

    (1) EPA may revoke its approval of a survey plan under this section

for cause, including, but not limited to, an EPA determination that the

approved survey plan has proved to be inadequate in practice.

    (2) EPA may void ab initio its approval of a survey plan if EPA's

approval was based on false information, misleading information, or

incomplete information, or if there was a failure to fulfill, or cause

to be fulfilled, any of the requirements of the survey plan.

Sec.  80.1503  What are the product transfer document requirements for

gasoline-ethanol blends, gasolines, and conventional blendstocks for

oxygenate blending subject to this subpart?

    (a) Product transfer documentation for conventional blendstock for

oxygenate blending, or gasoline transferred upstream of an ethanol

blending facility.

    (1) In addition to any other product transfer document requirements

under 40 CFR part 80, on each occasion after October 31, 2011, when any

person transfers custody or title to any conventional blendstock for

oxygenate blending which could become conventional gasoline solely upon

the addition of ethanol, or gasoline upstream of an oxygenate blending

facility, as defined in Sec.  80.2(ll), the transferor shall provide to

the transferee product transfer documents which include the following

information:

    (i) The name and address of the transferor;

    (ii) The name and address of the transferee;

    (iii) The volume of conventional blendstock for oxygenate blending

or gasoline being transferred;

    (iv) The location of the conventional blendstock for oxygenate

blending or gasoline at the time of the transfer;

    (v) The date of the transfer;

    (vi) For gasoline during the regulatory control periods defined in

Sec.  80.27(a)(2)(ii) or any SIP approved or promulgated under

Sec. Sec.  110 or 172 of the Clean Air Act:

    (A) The maximum RVP, as determined by a method permitted under

Sec.  80.46(c), stated in the following format: ``The RVP of this

gasoline does not exceed [fill in appropriate value]''; and

    (B) For gasoline designed for the special provisions for gasoline-

ethanol blends in Sec.  80.27(d)(2), information about the ethanol

content and RVP in paragraphs (a)(1) through (a)(3) of this section,

with insertions as indicated:

    (1) ``Suitable for the special RVP provisions for ethanol blends

that contain between 9 and 10 vol % ethanol.''

    (2) ``The RVP of this blendstock/gasoline for oxygenate blending

does not exceed [Fill in appropriate value] psi.

    (3) The use of this gasoline to manufacture a gasoline-ethanol

blend containing anything other than between 9 and 10 volume percent

ethanol may cause a summertime RVP violation.

    (C) For gasoline not described in paragraph (a)(vi)(B) of this

section, information regarding the suitable ethanol content, stated in

the following format: ``Suitable for blending with ethanol at a

concentration of no more than 15 vol % ethanol.''

    (2) The requirements in paragraph (a)(1) do not apply to

reformulated gasoline blendstock for oxygenate blending, as defined in

Sec.  80.2(kk), which are subject to the product transfer document

requirements of Sec.  80.69 and Sec.  80.77.

    (b) Product transfer documentation for gasoline transferred

downstream of an oxygenate blending facility.

    (1) In addition to any other product transfer document requirements

under 40 CFR part 80, on each occasion after October 31, 2011, when any

person transfers custody or title to any gasoline-ethanol blend

downstream of an oxygenate blending facility, as defined in Sec.

80.2(ll), except for transfers to the ultimate consumer, the transferor

shall provide to the transferee product transfer documents which

include the following information:

    (i) The name and address of the transferor;

    (ii) The name and address of the transferee;

    (iii) The volume of gasoline being transferred;

    (iv) The location of the gasoline at the time of the transfer;

    (v) The date of the transfer; and

    (vi) One of the statements detailed in paragraph (b)(1)(vi)(A)

though (E) which accurately describes the gasoline-ethanol blend. The

information regarding the ethanol content of the fuel is required year-

round. The information regarding the RVP of the fuel is only required

for gasoline during the regulatory control periods.

    (A) For gasoline containing no ethanol (E0), the following

statement; ``E0: Contains no ethanol. The RVP does not exceed [fill in

appropriate value] psi.''

    (B) For gasoline containing less than 9.0 volume percent ethanol,

the following statement: ``EX--Contains up to X% ethanol. The RVP does

not exceed [fill in appropriate value] psi.'' The term X refers to the

maximum volume percent ethanol present in the gasoline.

    (C) For gasoline containing between 9.0 and 10.0 volume percent

ethanol (E10), the following statement: ``E10: Contains between 9 and

10 vol % ethanol. The RVP does not exceed [fill in appropriate value]

psi. The 1.0 psi RVP waiver applies to this gasoline. Do not mix with

gasoline containing anything other than between 9 and 10 vol %

ethanol.''

    (D) For gasoline containing greater than 10.0 volume percent and

not more than 15.0 volume percent ethanol (E15), the following

statement: ``E15: Contains up to 15 vol % ethanol. The RVP does not

exceed [fill in appropriate value] psi;'' or

    (E) For all other gasoline that contains ethanol, the following

statement: ``EXX--Contains no more than XX% ethanol,'' where XX equals

the volume % ethanol.

    (2) Except for transfers to truck carriers, retailers, or wholesale

purchaser-consumers, product codes may be used to convey the

information required under paragraph (b)(1) of this section if such

codes are clearly understood by each transferee.

    (c) The records required by this section must be kept by the

transferor and transferee for five (5) years from the date they were

created or received by each party in the distribution system.

    (d) On request by EPA, the records required by this section must be

made available to the Administrator or the Administrator's authorized

representative. For records that are electronically generated or

maintained, the equipment or software necessary to read the records

shall be made available, or, if requested by EPA, electronic records

shall be converted to paper documents.

Sec.  80.1504  What acts are prohibited under this subpart?

    No person shall--

    (a)(1) Sell, introduce, cause or permit the sale or introduction of

gasoline containing greater than 10.0 volume percent ethanol (i.e.,

greater than E10) into any model year 2000 or older light-duty gasoline

motor vehicle, any heavy-duty gasoline motor vehicle or engine, any

highway or off-highway motorcycle, or any gasoline-powered nonroad

engines, vehicles or equipment.

    (2) Manufacture or introduce into commerce E15 in any calendar year

for use in an area prior to commencement of a survey approved under

80.1502 for that area.

    (3) Notwithstanding paragraphs (a)(1) and (a)(2) of this section,

no person shall be prohibited from manufacturing, selling, introducing,

or causing or allowing the sale or introduction of gasoline containing

greater than 10.0 volume percent ethanol into any flex-fuel vehicle.

    (b) Sell, offer for sale, dispense, or otherwise make available at

a retail or wholesale purchaser-consumer facility E15 that is not

correctly labeled in accordance with Sec.  80.1501;

    (c) Fail to fully or timely implement, or cause a failure to fully

or timely implement, an approved survey required under Sec.  80.1502;

    (d) Fail to generate, use, transfer and maintain product transfer

documents that accurately reflect the type of product, ethanol content,

maximum RVP, and other information required under Sec.  80.1503;

    (e) Improperly blend, or cause the improper blending of, ethanol

into conventional blendstock for oxygenate blending, gasoline or

gasoline already containing ethanol, in a manner inconsistent with the

information on the product transfer document under Sec.

80.1503(a)(1)(vi) or Sec.  80.1503(b)(1)(vi);

    (f) For gasoline during the regulatory control periods, combine any

gasoline or conventional blendstock for oxygenate blending intended for

blending with E10 that qualifies for the 1 psi allowance under the

special regulatory treatment as provided by Sec.  80.27(d) applicable

to 9-10 volume percent gasoline-ethanol blends with any gasoline or

conventional blendstock for oxygenate blending intended for blending

with E15, unless the resultant combination is designated, in its

entirety, as an E10 blendstock for oxygenate blending.

    (g) For gasoline during the regulatory control periods, combine any

gasoline-ethanol blend containing E10 that qualifies for the 1 psi

allowance under the special regulatory treatment as provided by Sec.

80.27(d) applicable to 9-10 volume percent gasoline-ethanol blends,

with any gasoline containing E0 or any gasoline blend containing E15.

    (h) Fail to meet any other requirement of this subpart.

    (i) Cause another person to commit an act in violation of

paragraphs (a) through (h) of this section.

Sec.  80.1505  Who is liable for violations of this subpart?

    (a) Persons liable. Any person who violates Sec.  80.1504(a)

through (i) is liable for the violation. In addition, when the gasoline

contained in any storage tank at any facility owned, leased, operated,

controlled or supervised by any gasoline refiner, gasoline importer,

oxygenate blender, carrier, distributor, reseller, retailer, or

wholesale purchaser-consumer is found in violation of the prohibitions

described in Sec.  80.1504(a), and (c) through (i), the following

persons shall be deemed in violation:

    (1) Each gasoline refiner, gasoline importer, oxygenate blender,

carrier, distributor, reseller, retailer, or wholesale purchaser-

consumer who owns, leases, operates, controls or supervises the

facility where the violation is found.

    (2) Each gasoline refiner or gasoline importer whose corporate,

trade, or brand name, or whose marketing subsidiary's corporate, trade,

or brand name, appears at the facility where the violation is found.

    (3) Each gasoline refiner, gasoline importer, oxygenate blender,

distributor, and reseller who manufactured, imported, sold, offered for

sale, dispensed, supplied, offered for supply, stored, transported, or

caused the transportation of any gasoline which is in the storage tank

containing gasoline found to be in violation.

    (4) Each carrier who dispensed, supplied, stored, or transported

any gasoline which is in the storage tank containing gasoline found to

be in violation, provided that EPA demonstrates, by reasonably specific

showings using direct or circumstantial evidence, that the carrier

caused the violation.

    (b) For label violations under Sec.  80.1504(b), only the wholesale

purchaser-consumer or retailer and the branded gasoline refiner or

branded gasoline importer, if any, shall be liable.

    (c) Each partner to a joint venture, or each owner of a facility

owned by two or more owners, is jointly and severally liable for any

violation of this subpart that occurs at the joint venture facility or

a facility that is owned by the joint owners, or a facility that is

committed by the joint venture operation or any of the joint owners of

the facility.

    (d) Any parent corporation is liable for any violations of this

subpart that are committed by any of its solely-owned subsidiaries.

Sec.  80.1506  What penalties apply under this subpart?

    (a) Any person under Sec.  80.1505 who is liable for a violation

under Sec.  80.1504 is subject to an administrative or civil penalty,

as specified in sections 205 and 211(d) of the Clean Air Act, for every

day of each such violation and the amount of economic benefit or

savings resulting from the violation.

    (b)(1) Any violation of any requirement that pertains to the

ethanol content of gasoline shall constitute a separate day of

violation for each and every day such gasoline giving rise to such

violations remains any place in the gasoline distribution system,

beginning on the day that the gasoline that violates such requirement

is produced or imported and distributed and/or offered for sale, and

ending on the last day that any such gasoline is offered for sale or is

dispensed to any ultimate consumer for use in any motor vehicle, unless

the violation is corrected by altering the properties and

characteristics of the gasoline giving rise to the violations and any

mixture of gasolines that contains any of the gasoline giving rise to

the violations such that the gasoline or mixture of gasolines has the

properties and characteristics that would have existed if the gasoline

giving rise to the violations had been produced or imported in

compliance with all requirements that pertain to the ethanol content of

gasoline.

    (2) For the purposes of this paragraph (b), the length of time the

gasoline in question remained in the gasoline distribution system shall

be deemed to be 25 days; unless the respective party or EPA

demonstrates by reasonably specific showings, using direct or

circumstantial evidence, that the gasoline giving rise to the

violations remained any place in the gasoline distribution system for

fewer than or more than 25 days.

    (c) Any violation of any affirmative requirement or prohibition not

included in paragraph (b) of this section shall constitute a separate

day of violation for each and every day such affirmative requirement is

not properly accomplished, and/or for each and every day the prohibited

activity continues. For those violations that may be ongoing each and

every day the prohibited activity continues shall constitute a separate

day of violation.

Sec.  80.1507  What are the defenses for acts prohibited under this

subpart?

    (a) Defenses for prohibited activities.

    (1) In any case in which a gasoline refiner, gasoline importer,

oxygenate blender, carrier, distributor, reseller, retailer, or

wholesale purchaser-consumer would be in violation under Sec.

80.1504(a), and (c) through (i) it shall be deemed not in violation if

it can demonstrate:

    (i) That the regulated party or its employee or agent did not

commit, cause, or contribute to another person's causing the violation;

    (ii) That product transfer documents account for all of the

gasoline in the storage tank found in violation and indicate that the

gasoline met relevant requirements; and

    (iii)(A) That it has conducted a quality assurance program,

including a sampling and testing program, as described in paragraph (b)

of this section;

    (B) A carrier may rely on the sampling and testing program carried

out by another party, including the party that owns the gasoline in

question, provided that the sampling and testing program is carried out

properly.

    (2)(i) Where a violation is found at a facility which is operating

under the corporate, trade or brand name of a refiner, that refiner

must show, in addition to the defense elements required by paragraph

(a)(1) of this section, that the violation was caused by:

    (A) An act in violation of law (other than the Act or this part),

or an act of sabotage or vandalism;

    (B) The action of any reseller, distributor, oxygenate blender,

carrier, or a retailer or wholesale purchaser-consumer supplied by any

of these persons, in violation of a contractual undertaking imposed by

the gasoline refiner designed to prevent such action, and despite

periodic sampling and testing by the gasoline refiner to ensure

compliance with such contractual obligation; or

    (C) The action of any carrier or other distributor not subject to a

contract with the gasoline refiner but engaged by the gasoline refiner

for transportation of gasoline, despite specification or inspection of

procedures and equipment by the gasoline refiner which are reasonably

calculated to prevent such action.

    (ii) In this paragraph (a) of this section, to show that the

violation ``was caused'' by any of the specified actions the party must

demonstrate by reasonably specific showings using direct or

circumstantial evidence, that the violation was caused or must have

been caused by another.

    (3) For label violations under Sec.  80.1504(b), the branded

gasoline refiner or branded gasoline importer shall not be deemed

liable if the requirements of paragraph (b)(4) of this section are met.

    (b) Quality assurance program. In order to demonstrate an

acceptable quality assurance program for gasoline at all points in the

gasoline distribution network, other than at retail outlets and

wholesale purchaser-consumer facilities, a party must present evidence

of the following in addition to other regular appropriate quality

assurance procedures and practices.

    (1) A periodic sampling and testing program to determine if the

gasoline contains applicable maximum and/or minimum volume percent of

ethanol.

    (2) That on each occasion when gasoline is found in noncompliance

with one of the requirements referred to in paragraph (b)(1) of this

section:

    (i) The party immediately ceases selling, offering for sale,

dispensing, supplying, offering for supply, storing, transporting, or

causing the transportation of the violating product; and

    (ii) The party promptly remedies the violation (such as by removing

the violating product or adding more complying product until the

applicable requirements are achieved).

    (3) An oversight program conducted by a carrier under paragraph

(b)(1) of this section need not include periodic sampling and testing

of gasoline in a tank truck operated by a common carrier, but in lieu

of such tank truck sampling and testing the common carrier shall

demonstrate evidence of an oversight program for monitoring compliance

with the requirements of Sec.  80.1504 relating to the transport or

storage of gasoline by tank truck, such as appropriate guidance to

drivers on compliance with applicable requirements and the periodic

review of records normally received in the ordinary course of business

concerning gasoline quality and delivery.

    (4) The periodic sampling and testing program specified in

paragraph (b)(1) of this section shall be deemed to have been in effect

during the relevant time period for any party, including branded

gasoline refiners and branded gasoline importers, if:

    (i) An EPA approved survey program under Sec.  80.1502 was in

effect and was implemented fully and properly;

    (ii) Any retailer at which a violation was discovered allowed

survey inspectors to take samples and inspect labels; and

    (iii) For truck loading terminals and truck distributors that

perform oxygenate blending, additional quality assurance procedures and

practices were in place, such as regular checks to reconcile volumes of

ethanol in inventory and regular checks of equipment for proper ethanol

blend rates.

Sec.  80.1508  What evidence may be used to determine compliance with

the requirements of this subpart and liability for violations of this

subpart?

    (a) Compliance with the requirements of this subpart pertaining to

the ethanol content of gasoline shall be determined based on the

ethanol level of the gasoline, measured using the methodologies

specified in Sec.  80.46(g). Any evidence or information, including the

exclusive use of such evidence or information, may be used to establish

the ethanol content of gasoline if the evidence or information is

relevant to whether the ethanol content of gasoline would have been in

compliance with the requirements of this subpart if the appropriate

sampling and testing methodology had been correctly performed. Such

evidence may be obtained from any source or location and may include,

but is not limited to, test results using methods other than those

specified in Sec.  80.46(g), business records, and commercial

documents.

    (b) Determinations of compliance with the requirements of this

subpart other than those pertaining to the ethanol content of gasoline,

and determinations of liability for any violation of this subpart, may

be based on information obtained from any source or location. Such

information may include, but is not limited to, business records and

commercial documents.

[FR Doc. 2011-16459 Filed 7-22-11; 8:45 am]

BILLING CODE 6560-50-P