analysis within five days. Additionally, EPA is requiring that samples

be analyzed and reported to EPA for both oxygen content and RVP, if

applicable, within 10 days of receipt at the laboratory. These changes

will reduce the costs of conducting the survey. However, EPA is not

changing ULSD and RFG survey requirements at this time since we did not

propose to make changes to those survey programs in the NPRM. EPA may

adjust the time allotted for shipment and analysis of fuel samples for

these programs in an upcoming rulemaking.

    EPA also received comments suggesting that surveys begin only after

E15 has achieved a certain level of market penetration considering data

from the previous year. One commenter specifically suggested that the

survey year begin on July 1 instead of January 1 of the year E15 is

introduced into commerce. EPA does not believe that it is appropriate

for surveys to begin only after E15 has been on the market. The purpose

of the survey is to help ensure that E15 is being properly blended and

labeled so that misfueling is minimized. That purpose needs to be

served from the time E15 first enters the market. Also, we do not

believe it is feasible to determine whether an area has exceeded any

level of market penetration without accurate survey data upon which to

base that determination. Additionally, the misfueling waiver conditions

require that a survey plan be approved by EPA and that implementation

of the plan begin before E15 may be introduced into commerce. EPA

believes that it is best to keep the final survey requirements

consistent with the misfueling conditions outlined in its partial

waiver decisions.

    EPA does not agree that changing the start date of the survey from

January 1 to July 1 would be beneficial since, if E15 actually enters

the market earlier in the year, the later start date would delay

delivery of information needed on a more real-time basis to minimize

labeling and other problems that could lead to misfueling. The survey

programs for the other fuel programs have been conducted with a January

1 start date and for a normal calendar year, and there is no reason to

believe that an E15 survey could not also be conducted on the same

schedule. Furthermore, the existing and proposed survey programs break

surveys down into four quarterly surveys that ensure that EPA is

receiving more real-time information on a regular basis that is not

tied to any particular start date. Therefore, EPA is finalizing the

survey timing requirements as proposed.

    EPA proposed that a nationwide ethanol content and E15 labeling

survey conducted under Survey Option 2 have a minimum of 7,500 samples

annually and that the next year's survey sample size be determined by

the equation found at 40 CFR 80.1502 based on the previous year's non-

compliance rates. EPA also sought comment on whether it should allow a

smaller number of samples in the first years of the nationwide survey

in order to reduce burden. EPA received comments that suggested that

EPA should require fewer or more samples than proposed. For example,

one commenter suggested that EPA sample 20 percent of the retail

stations nationwide. Another commenter suggested a reduction in the

number of samples in the first year since E15 will not likely be sold

at many retail stations the first year it is introduced into commerce.

    The sample size methodology and minimum sample size EPA proposed

were based on statistical principles and past survey experience with

similar programs. Reducing the sample size even in the first year would

compromise the statistical rigor, and therefore the effectiveness, of

the program. If, as expected, E15 is initially marketed and sold in a

limited geographic area, responsible parties that wish to market and

sell E15 could take advantage of Survey Option 1 to reduce the required

number of samples. On the other hand, increasing the minimum number of

samples does not provide much more information given the large number

of samples already required and the substantial increase in costs that

a larger number of samples would entail, which would pose an

unnecessary burden on responsible parties. However, as part of the

survey plan approval process, EPA will consider whether a higher

minimum sample size may be methodologically necessary under some

circumstances to maintain the rigor of a nationwide survey program. In

the regulations issued today, EPA is finalizing the sample size

methodology and minimum sample size of 7,500 samples per year as

proposed.

    One commenter questioned whether proof that a surveyor had been

paid must be sent to EPA by the proposed deadline since EPA could bring

an enforcement action under the Clean Air Act if the survey was not

conducted according to the approved plan. The Agency believes that the

requirements that the survey plan be contracted and paid for in advance

are important to ensuring that the required surveys will occur.\17\ EPA

has made this a requirement of both the RFG and ULSD survey programs,

and the cost of providing proof of payment to the Agency is minimal.

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

    \17\ Contracting and paying for a survey also mark commencement

of a survey for related regulatory purposes.

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

    EPA is making changes to the survey provision governing revoking

approval of a survey plan to more closely conform to the method

provided for in the ULSD regulations \18\ of ensuring that survey plans

serve their intended purpose and that this goal is fulfilled until the

expiration of the plan.\19\ Given the importance of a robust survey for

effective implementation of ethanol content, labeling and related

requirements, if experience with an approved survey plan proves that it

is inadequate in practice, EPA may revoke it. Before deciding whether

to revoke a plan, EPA will generally work with the submitter to make

changes necessary to remedy the plan's flaws. If satisfactory

amendments cannot be achieved, EPA may decide to revoke its approval of

the survey plan. In the event a survey plan is revoked, distribution of

the E15 authorized for introduction into commerce under the E15 partial

waivers based, in part, on the survey plan would have to cease until

such time as a replacement survey is approved.

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

    \18\ See 40 CFR 80.613(e)(10)(v) and 80.613(e)(12).

    \19\ These provisions apply to surveys approved under options 1

or 2.

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

    To ensure that the E15 survey provisions create incentives similar

to those created by the ULSD program for developing and implementing

effective survey plans, the regulations being promulgated today include

a provision for voiding a survey plan ab initio under appropriate

circumstances. If EPA determines that approval of a survey plan was

based on false, misleading or incomplete information, or if there is a

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

survey, EPA may void ab initio the approved survey plan. EPA's years of

experience in approving applications that authorize distribution of

motor vehicles, nonroad vehicles and engines, and fuels based on

compliance with applicable Agency regulations confirm the importance of

basing approval determinations on information that is true, clearly

stated and comprehensive, and on ensuring implementation of the terms

of the application. Given the importance of E15 surveys to effective

implementation of E15 misfueling mitigation measures, providing that

survey plans may be voided ab initio under appropriate circumstances

will help ensure that plans are properly developed, supported and

implemented. E15 distributed based on a plan whose approval was secured

with false, misleading or incomplete information, or a plan whose

requirements are not fulfilled, was not distributed in compliance with

the conditions of the waiver.

    In considering whether it is appropriate to void a survey plan ab

initio, EPA will review the information that was submitted in support

of the plan. EPA will regard information that is not true to be false

information; information that, while true, may lead a reasonable person

to an incorrect conclusion to be misleading information; \20\ and

information that is missing elements necessary for a full understanding

of the information that was presented to be incomplete information.

Survey plans with these kinds of information flaws are inherently

unreliable, and effectively prevent EPA from conducting a meaningful

review of the survey plan and from basing its decision to approve the

plan on complete and accurate information. Thus, when EPA discovers

that its approval of a survey plan was based on false, misleading or

incomplete information, EPA may decide to treat its approval as never

having been granted. In addition, as discussed above, EPA is requiring

proof of a valid contract for conducting the survey and payment for the

survey to be provided to EPA to help ensure that the survey is

implemented. If, despite the fact that EPA receives this proof, the

requirements of a survey plan are not fulfilled, EPA may treat the

survey plan as never having been granted by voiding it ab initio.

Distribution of E15 under any survey plan that is voided ab initio

would have to cease until such time as a replacement survey is

approved, and E15 that was distributed based on that plan will be

deemed to have been distributed in violation of 40 CFR 80.1504(a)(2).

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

    \20\ For example, a plan implemented by a survey association

that is misleadingly described in the plan as independent of and

free from obligation to ethanol blenders and producers, gasoline

refiners and ethanol and gasoline importers or their employees, but

which is in fact not independent of or free from such obligation,

yields survey results that are inherently unreliable. Such a plan

may be voided ab initio.

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2. Final Survey Requirements

    In today's rule, EPA is finalizing both survey options. After

carefully considering all of the comments received pertaining to the

survey requirements, EPA is finalizing Survey Option 1 as proposed. In

additional, EPA is finalizing most elements of Survey Option 2 as

proposed. However, Survey Option 2 as finalized does not require RVP

testing of fuel samples from pumps not labeled for E15, and provides

more time for the shipping and testing of samples. Finally, EPA is

revising provisions to permit both revoking and voiding ab initio

approval of survey plans in appropriate circumstances.

E. Program Outreach

    In the NPRM we pointed out that a public education and outreach

program for E15 will be important to help mitigate misfueling that

could result in increased emissions and vehicle or engine damage. We

also noted that the industry-lead outreach campaign for the ULSD

program helped successfully transition the nation to ULSD while

mitigating most misfueling.

    Almost all commenters agreed that an effective outreach program

would be essential to mitigate E15 misfueling, and some cited the ULSD

outreach effort as an example of how EPA and affected stakeholders

could work together to aid in the transition to E15 and minimize

misfueling. Recommendations included a dedicated Web site, use of EPA's

online Green Vehicle Guide, use of other media, pamphlets at retail

outlets, and consumer interaction via keypad entry at the pump. There

were also comments that EPA should establish and lead the outreach

program.

    EPA agrees that public outreach and consumer education are key to

effectively mitigating misfueling. However, we believe that industry

needs to take the lead in such efforts. Our recent experience with the

transition to ULSD shows that a stakeholder-led outreach campaign can

work synergistically with labeling requirements and provide another

means of providing important information to everyone involved in fuel

production, distribution and use. The ULSD outreach program also shows

that industry is better situated to coordinate with the parties

involved in the production, transport, and marketing of E15. More

importantly, businesses interact with consumers (via advertising, a Web

site, pamphlets, etc.) about the fuels they sell, and those that decide

to sell E15 will need to make decisions about how to promote E15 in a

manner that also minimizes misfueling. As noted previously, the

introduction of E15 into the market is likely to start in a limited

number of areas and grow over time. In these circumstances it is even

more appropriate that the parties who choose to market this product

take the lead in outreach and consumer education in the areas the

product is introduced.

    In light of these considerations, EPA believes that primary

responsibility for public outreach and education about E15

appropriately rests with the businesses that decide to make and sell

E15. As we did for the ULSD program, we intend to actively assist in

the development and implementation of an outreach and education

campaign for E15 when it enters the market. We are already in the

process of working with ethanol and other stakeholders to help

establish such a campaign. As that process moves forward, we will help

ensure that a broad range of stakeholders are kept informed so they may

become involved as they see fit.

F. Other Misfueling Mitigation Measures

    In the proposed rule, we explained our expectation that the

misfueling

mitigation provisions we were proposing would adequately address

misfueling mitigation concerns. We based our expectation on the

relatively recent transition to ULSD when similar measures were

employed to help minimize misfueling of new vehicles and engines that

were designed and built to achieve stringent emission standards when

operated on ULSD. However, we also recognized that there could be other

means for addressing misfueling, as suggested by API in its misfueling

mitigation measures scoping study.\21\ In the NPRM, we discussed

several suggestions covered in API's study and sought comment on those

and any other measures that industry or other stakeholders considered

necessary or helpful to mitigate misfueling with E15.

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

    \21\ ``Evaluation of Measures to Mitigate Misfueling of Mid- to

High-Ethanol Blend Fuels at Fuel Dispensing Facilities,'' American

Petroleum Institute, EPA Docket  EPA-HQ-OAR-2010-0448.

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

    We received many comments recommending that EPA implement or study

one or more mitigation measures in addition to those we proposed. This

section contains a brief summary of major comments and our responses to

those comments. It begins with a discussion of the general issue of

whether the proposed misfueling mitigation measures are sufficient to

mitigate misfueling, and then considers several specific measures

suggested by commenters for inclusion in today's final rule. Responses

to comments not addressed in this section can be found in the ``E15

Misfueling Mitigation Measures Response to Public Comments.''

1. Need for More Mitigation Measures

    Many commenters expressed strong concern that the proposed suite of

misfueling mitigation measures would not be sufficient to minimize

potential misfueling with E15. They took issue with EPA's comparison of

the potential for misfueling with E15 to the potential for misfueling

under EPA's ULSD program, and contended that the more instructive

comparison is to the transition to unleaded fuel, where EPA required

additional mitigation measures.

    The commenters generally argued that the transition to ULSD did not

provide the best or most appropriate point of reference for designing a

misfueling mitigation program for several reasons. First, EPA

regulations required that ULSD replace low sulfur diesel (LSD) fuel

over several years, whereas, according to the commenters, E0, E10, and

E15 will coexist in the marketplace for an indefinite period,

increasing the likelihood of misfueling. Second, the commenters noted

that the potential harm from LSD was to newer engines equipped with

advanced emissions control devices, while the potential harm from E15

is to older vehicles and engines. For ULSD, they noted there was

opportunity for vehicle manufacturers to educate new diesel vehicle

consumers at the time of purchase about the risks of misfueling, with

this information reinforced in the owner's manual and on the vehicles

themselves. For E15, the commenters explained, there is no similar

opportunity for consumer education. While the commenters acknowledged

that vehicle turnover will decrease the number of MY2000 and older

light-duty motor vehicles in the U.S. vehicle fleet, they stated that

the rate of vehicle turnover is decreasing as vehicle quality and

durability have improved and will take decades to complete.

Representatives of boat manufacturers and owners also noted that many

larger boats have longer useful lives than passenger vehicles. A third

reason for concern, according to commenters, is that E15 may be priced

less than E10 or E0, adding a cost incentive for misfueling.

    Many of these commenters contended that the transition to unleaded

gasoline was at least as relevant to the design of E15 misfueling

mitigation measures as the transition to USLD. (Similar to the

transition to ULSD, the transition to unleaded gasoline occurred as a

result of new emission standards that required new emission control

equipment that would be irreversibly damaged by lead in gasoline.) The

commenters noted that the measures established to reduce misfueling of

new motor vehicles with leaded gasoline included physical constraints--

specifically, vehicle fuel inlets and gasoline nozzles designed so that

new vehicles requiring unleaded gasoline could only accept nozzles

dispensing unleaded gasoline. The commenters pointed out that even

these constraints did not prevent all misfueling, particularly when

leaded gasoline was priced less than unleaded gasoline.

    After carefully considering these comments, EPA continues to

believe that the comparison to the ULSD program is valid and provides

an appropriate basis for designing the E15 misfueling mitigation

program. LSD and ULSD were available in the market at the same time for

several years, just as E15 is expected to be available along with E10

and/or E0 for a number of years. In the case of both USLD and E15, the

potential for engine damage and associated repair costs exists if

misfueling occurs. EPA believes that consumers have a strong interest

in avoiding repair and replacement costs, whether their vehicles or

gasoline-powered equipment are new or old. Owners may expect to get

less use from their older vehicles and equipment, but that does not

mean that they will put their possessions at risk, absent a strong

price incentive (discussed below). An essential element of a misfueling

mitigation program is alerting consumers to that risk. For ULSD, pump

labeling was important for notifying consumers of newer vehicles and

engines of the need to use ULSD and the consequences of misfueling. The

E15 label will serve the same purpose for owners of older motor

vehicles and other products for which E15 is not allowed. For ULSD,

industry established the Clean Diesel Fuel Alliance to educate diesel

product consumers about the importance of avoiding misfueling with LSD.

EPA is working with E15 stakeholders to help establish a similar public

education effort for E15. Overall, the transition to USLD posed

misfueling issues similar to those that will be raised by E15's entry

into the market, making the misfueling mitigation measures employed in

the ULSD program appropriate models for mitigating misfueling with E15.

    Commenters did not provide sufficient evidence or rationale to

persuade us that use of physical constraints to prevent misfueling with

leaded gasoline means that similar, physical measures are necessary for

E15. A key difference between E15 and leaded gasoline is that

misfueling with E15 could result in driveability and operability issues

with older motor vehicles and nonroad equipment, while unleaded

gasoline did not affect the driveability of vehicles designed to run on

leaded gasoline. The E15 label will inform consumers that misfueling

with E15 may cause damage, and a public education effort can reinforce

that message. Also, consumers today have more and easier access to more

information about how to maintain their vehicles for best performance

and durability.

    Another factor that contributed to misfueling with leaded gasoline

was the perception that the higher octane of leaded gasoline, typically

89 anti-knock index (AKI) versus 87 AKI for most unleaded gasoline,

made leaded gasoline a better fuel. An even stronger factor was price.

Leaded gasoline was typically five or more cents per gallon cheaper

than unleaded gasoline, at a time when gasoline was less than a dollar

per gallon. With the perception of

no harm from misfueling and the loss of higher octane, some consumers

saw no reason to spend the extra money on unleaded gasoline. Such is

not the case for E15. Depending on the availability of ethanol, which

can vary by season, E15 could be priced somewhat more or less than E0/

E10 with a comparable octane. Considering the extent that recent

gasoline prices have fluctuated, it does not seem likely that consumers

would risk damaging their vehicles or equipment for small incremental

savings. Public outreach can also help remind consumers of the cost

consequences of misfueling.

    At the same time, we agree that if E15 is priced less than E10 or

E0, the risk of misfueling may increase if consumers believe that they

can save more money by purchasing E15 and do not consider or believe

the savings are more than they would pay to repair or replace their

vehicles or equipment sooner than might otherwise occur. However, it is

too early to know how E15 will be marketed, including how it will be

priced. EPA will work with stakeholders to monitor the transition to

E15 and the effectiveness of the mitigation measures being required by

today's rule. In the meantime, it is worth noting that the prohibition

against misfueling with E15 is applicable to both fuel providers and

users. As discussed later in this notice, retailers can avoid liability

for consumer misfueling if they properly label E15 pumps and can show

that they did not encourage or otherwise cause misfueling. In general,

fuel providers are encouraged to consider whether their particular

circumstances would make it useful to take additional, tailored steps

to avoid consumer misfueling.

    In sum, as with the ULSD program, we believe that the misfueling

measures being finalized today for E15 will work together so that fuel

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

consumers have a strong incentive to avoid misfueling. An industry-led

public outreach campaign can reinforce how and why it is important to

avoid misfueling.

    In evaluating the need for additional mitigation measures, we also

considered the fact that there is currently significant uncertainty

about where, when and how E15 will enter the market. While the partial

waiver decisions removed one legal barrier to introducing E15 into

commerce, other steps must be taken to address additional Federal,

State and local requirements, including registering the fuel as

required by the Clean Air Act and determining the compatibility of fuel

storage and dispensing equipment under various Federal, State and local

regulations. Ultimately, businesses must decide whether and how to

introduce E15 into the market. We expect that the transition to E15,

like the transition to E10, will take time and begin in some parts of

the country before becoming broadly available. In the process, business

decisions will be made about how to market E15 (e.g., price of E15, its

use for a particular grade of gasoline, types of pumps used to dispense

it) that will bear on what, if any, additional measures may be useful

to mitigate misfueling, including the specific suggestions assessed

below. In light of these various considerations, we have concluded that

it is neither necessary nor appropriate to require additional

misfueling mitigation measures as part of today's final rule.

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

state, environmental and consumer stakeholders to track developments

and evaluate the effectiveness of the required misfueling mitigation

measures. As noted previously, we are working with ethanol and other

stakeholders to help establish a public education and outreach campaign

to assist fuel producers, distributors, retailers and consumers in

understanding how E15 may be made, distributed, sold and used. That

effort can also help identify and resolve misfueling issues that may

develop as E15 moves into the marketplace. In the meantime, if fuel

providers believe additional measures will further reduce the risk of

misfueling under their particular circumstances, they may take such

actions. For example, retailers that serve a significant population of

boat or small equipment owners may decide it is appropriate under their

specific circumstances to post signs that specifically address

misfueling of those products. By taking additional tailored steps,

retailers and other fuel providers can provide examples of other

measures that may prove effective in further reducing the risk of

misfueling.

2. Specific Suggestions for Additional Mitigation Measures

    We examined the feasibility and utility of several specific

misfueling mitigation measures suggested by public commenters for

adoption in the final rule. As described below, each of the suggestions

presents implementation, feasibility or cost issues. There is also

little empirical data about the relative effectiveness of these

measures. Given the uncertainties about the transition to E15 and the

need for and effectiveness of the suggested measures, we have concluded

that it is not appropriate to require them at this time, although fuel

providers are encouraged to develop and deploy these and other measures

as they deem appropriate for their circumstances.

a. Distinctive Hand Warmers for E15 Dispensers

    As discussed in the NPRM, the American Petroleum Institute (API)

study considered the use of different colored ``hand warmers'' or

``nozzle grips'' (the flexible plastic sheath that covers the part of

the pump nozzle that is gripped when dispensing gasoline) to

distinguish E15 fuel dispensers from other fuel dispensers. A number of

commenters recommended the adoption of such hand warmers, suggesting

that EPA require E15 hand warmers to be a uniform and unique color and/

or texture nationwide to indicate to consumers that E15 is different

than other gasoline and not appropriate for all motor vehicles. Some

commenters also suggested complementary signs to highlight the

distinctive hand warmer.

    We carefully considered the workability and utility of this

measure. Hand warmers are low cost and are replaced periodically, so

this option could be relatively inexpensive and easy to implement.

However, this option could be challenging to implement for a number of

other reasons. First, there is no industry standard color scheme for

hand warmers. An assigned color for E15 hand warmers could conflict

with, or be confusing in the context of, retail stations' existing

color schemes. To address this issue, we considered whether to require

E15 hand warmers with a noticeably different texture or bearing the

text ``E15.'' However, there is currently no available data for

determining whether or to what degree such differences would be

effective in drawing consumers' attention more than the required label

itself.

    We also identified another implementation challenge concerning

pumps that use a single nozzle to dispense multiple grades of gasoline.

Many existing pumps use a single nozzle to dispense multiple grades of

gasoline, such as regular grade (e.g., 87 octane), premium grade (e.g.,

92 octane), and a mid-grade (e.g., 89 octane). Consumers push a button

to select the grade of gasoline desired and then use the single nozzle

to dispense the fuel selected. It is likely that E15 may be marketed as

one, but not all, grades of gasoline, especially in the near term.

Requiring an E15 hand warmer on the nozzle of these pumps could be

misleading or confusing to consumers if the dispenser supplies not only

E15 but also E10 or E0.

    In light of these issues and the lack of information about the

effectiveness of uniquely colored or textured hand warmers, we have

concluded that it is not appropriate to require this measure in today's

final rule. At the same time, we think distinctive hand warmers might

prove useful in many circumstances, and we encourage retailers to

consider whether their use might provide customers with a useful visual

or textual cue given their stations' pump types, color schemes or other

relevant attributes.

b. Keypad/Touch Screen Information/Confirmation

    Some commenters stated that EPA should require all fuel pumps

dispensing E15 to require affirmative confirmation from consumers that

they wish to purchase E15. The commenters suggested this could be

accomplished through a mandatory electronic keypad approval (tied to

fuel grade selection), in which the consumer would need to confirm the

use of E15 prior to purchase. Some commenters argued that the sale of

E15 should be prohibited from pumps that do not have an electronic

keypad. Commenters favoring this measure did not provide specific

information about how affirmative confirmation using electronic keypads

or touch screens could be implemented.

    EPA agrees that requiring affirmative confirmation from consumers

before they fuel with E15 could help consumers avoid misfueling with

E15. However, based on the limited information provided by commenters,

it does not appear that this measure could be implemented using

available technology or software. The electronic keypad used for

credit/debit card transactions do not generally interface with the fuel

selector such that the pump can be locked if the consumer makes an

inappropriate selection. Providing an interactive process for selecting

E15 would likely require substantial upgrades to the point-of-sale

system of the dispensers. We have therefore decided that available

information does not support requiring this measure at this time.

However, retailers may develop and implement keypad-based methods for

providing consumers with further information or opportunities to make

appropriate fuel choices.

c. Radio Frequency Identification (RFID)

    Some commenters suggested the use of RFID technology as another

misfueling mitigation measure. RFID technology is already used in fuel

dispenser activation and purchasing systems. For example, one oil

company uses RFID technology in a tag or card that provides a

``contactless'' payment system that provides members with a quick way

to pay for purchases at participating stations. The tag has a built-in

chip and radio frequency antenna that allows it to communicate with

readers at gasoline dispensers.

    For this option to be useful in mitigating misfueling with E15,

MY2001 and newer motor vehicles would need to be retrofitted with an

RFID device that allows E15 to be dispensed into the motor vehicle.

Some commenters indicated that the device installation is relatively

simple (for example, a consumer could have a device installed during an

oil change). One commenter estimated the cost of an RFID ring tag to be

$50-75 and installation of the tag around the fuel inlet to be $12.50.

Retrofitting of fuel dispensers with a companion RFID device would

raise larger cost and implementation issues. One commenter indicated a

cost of $500 for installing an RFID reader per fuel dispenser nozzle

and $10,000 to $20,000 to install a central controller per facility per

dispenser to upgrade software for security purposes.

    Based on the information provided, this measure, while potentially

effective, raises a number of significant issues. First, it would

require the owners of MY2001 and newer light-duty motor vehicles, which

can lawfully use E15, to spend time and money to install devices so

that owners of vehicles and equipment that cannot lawfully use E15

cannot dispense E15 into those vehicles or equipment. Second, it is not

clear whether or how consumers could be persuaded or required to

install the RFID technology. Third, the cost to retail stations would

likely be considerable. Particularly given the uncertainties about the

transition to E15, it seems highly unlikely the benefits of this

measure would outweigh its costs. In light of these issues, we

determined that adoption of this measure would be inappropriate.

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

    Several commenters urged EPA to require the continued availability

of E10 and/or E0, arguing that EPA should adopt regulatory requirements

now to ensure that owners of older motor vehicles and other gasoline-

powered engines, vehicles, and nonroad equipment not covered by the E15

partial waiver decisions can find the fuel they need. In addition, on

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

EPA promulgate a rule under Clean Air Act section 211(c) to ensure the

continued availability of gasoline containing 10 vol% or less ethanol

(``<=E10'') at retail stations for use in vehicles, engines, and

nonroad equipment not covered by the E15 partial

waivers.22 23 Both the commenters and the petitioners noted

that E10 has, over time, largely displaced E0 in the marketplace, and

in some areas of the country, it is already difficult to locate E0.

They expressed concern that E15 could similarly displace E10,

particularly if economic factors and the Renewable Fuel Standard result

in broad adoption of E15. They argued that unless E10 remains

available, owners of vehicles and gasoline-powered engines, vehicles,

and nonroad equipment for which E15 is not allowed may have no choice

but to misfuel with E15. Petitioners also contend that EPA's proposed

misfueling mitigation measures will not be effective unless EPA ensures

that <=E10 remains available alongside E15. Petitioners point out that

EPA required availability of unleaded gasoline and USLD to protect

emission control systems, and they ask EPA to similarly require the

availability of E10 to protect the performance of emission control

systems of vehicles, engines, and nonroad equipment not covered by the

E15 partial waiver decisions.

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    \22\ ``Petition for Rulemaking Under the Clean Air Act to

Require the Continued Availability of Gasoline Blends of Less Than

or Equal to 10% Ethanol,'' Alexander David Menotti, Kelley Drye &

Warren LLP on behalf of American Motorcyclist Association (AMA), et

al., EPA Docket  EPA-HQ-OAR-2010-0448.

    \23\ On May 27, 2011, EPA received comments opposing the

petition from the National Association of Convenience Stores and the

Society of Independent Gasoline Marketers of America. These comments

are summarized in the Response to Comments document located in the

public docket.

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    For the reasons discussed below, the Agency is not requiring the

availability of E10 (or E0) in this rulemaking and is also denying the

rulemaking petition. Based on the information currently available to

the Agency, we find that it is neither necessary nor appropriate to

issue such regulations at this time or to initiate a rulemaking process

to adopt them. While EPA appreciates that the availability of

appropriate fuels is important to mitigating misfueling, it is

premature for EPA to try to forecast now how E15 will be distributed

and marketed over the next several years, and how this might impact the

availability of <=E10. In considering the future availability of <=E10,

it is important to remember that EPA's partial waiver decisions allow,

but do not require, E15 to be sold. Instead, the partial waivers remove

a statutory prohibition on introducing E15 into commerce, subject to

misfueling

mitigation and other conditions. It is now up to businesses to decide

whether and how to produce and sell E15 for MY2001 and newer light-duty

motor vehicles. Further, before E15 can be legally sold and made

broadly available for these vehicles, a number of additional steps must

be taken by fuel producers, distributers, and marketers as well as

Federal, state and local government agencies. These steps include

registering E15 as a motor vehicle fuel under the Clean Air Act,

addressing the compatibility of E15 with fuel storage and dispensing

equipment, and potential changes to state and/or local requirements. In

light of these additional steps, EPA expects that any significant

market shift to E15 will take several years or more, and that the

decisions fuel providers will make about the continued availability of

<=E10 will largely determine if any availability requirement is needed.

Since <=E10 is widely available now, the appropriate response to any

future <=E10 availability issues will best be determined by evaluating

the distribution and market circumstances of E15 and <=E10 fuels as E15

enters the market. EPA will work with stakeholders to monitor those

circumstances and timely address any <=E10 availability issues that are

based on those specific circumstances.

    Commenters and petitioners did not provide data that suggest that

<=E10 will be unavailable in either the short- or long-term, nor did

they provide quantitative analysis or evidence to support claims that

E15 will be less expensive than E10. This is significant since, as

explained above, it is not EPA that determines whether, how, or where

E15 will be distributed and sold, or how this will impact availability

of <=E10. It is the fuel industries involved that will determine the

role that E15 plays in the fuel distribution system and how this will

affect availability of <=E10. Without commenters and petitioners

providing data to support their assertions, EPA can only consider

available information, which shows that it is far from a foregone

conclusion that E15 will result in a scarcity of <=E10 in the next

several years or more. Under the E15 partial waivers and the misfueling

prohibition in today's rule, E15 may be used only in MY 2001 and newer

light-duty motor vehicles and FFVs. Gasoline containing no more than 10

vol% ethanol will continue to be needed for fueling MY2000 and older

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

engines, motorcycles and nonroad equipment. EPA estimates there are

over 240 million such vehicles, engines, and nonroad equipment in

existence today, and even as some products are retired, new heavy-duty

gasoline-powered vehicles and engines, motorcycles, and nonroad

equipment will be purchased. In view of the continuing demand for

<=E10, EPA expects that many retailers will continue to make <=E10

available. Also, as noted above, retail stations that decide to sell

E15 will need to address the compatibility of fuel dispensers and

underground storage tank systems with E15, which could affect the pace

of E15's entry into the marketplace. According to some commenters,

gasoline producers may need to change fuel formulations to accommodate

the use of E15, which could further impact the availability and cost of

E15 relative to <=E10. In short, many factors affect the timing and

extent of the availability of E15 and any impact on the continued

availability of <=E10. At this time, EPA cannot forecast how decisions

will be made by the various industries involved and is not in a

position to evaluate either the detailed scope of any future issues

concerning availability of <=E10 or the appropriate regulatory

response.

    Commenters and petitioners stated that EPA has the legal authority

under Clean Air Act section 211(c) to require the availability of

<=E10. Under section 211(c), EPA may control or prohibit fuels and fuel

additives that cause or contribute to air pollution that may endanger

public health or welfare or significantly impair emission control

devices or systems. Those controls may include, where justified,

requiring the availability of particular fuels needed to ensure the

continued effectiveness of emissions control systems. However, to

require <=E10 availability, EPA would need to conduct a number of

analyses, including of the costs, small business impacts, and

environmental and other benefits of such a requirement. CAA section

211(c), the Regulatory Flexibility Act, and various Executive Orders

pertaining to rulemaking call for analysis of various factors before

proposing and adopting regulations such as a fuel availability

requirement under section 211(c). Petitioners requested that EPA

require that <=E10 be made available at any retail gasoline station

that offers gasoline containing greater than 10 vol% ethanol. However,

petitioners provided no quantitative or qualitative data necessary to

analyze the important issues that are relevant for establishing this

kind of requirement. For example, petitioners did not show that the

requirement is necessary to avoid misfueling based on an analysis of a

reasonable projection of the future volumes and marketing patterns of

E15 and <=E10 fuels in the future. Petitioners also provided no

information on how the costs of such a requirement would compare to the

benefits, under the same volume and marketing projections. Without such

information, the Agency cannot justify placing potentially costly

requirements on small businesses (e.g., the thousands of independently

owned and operated gasoline retail stations) or require that the fuel

distribution system maintains storage capacity for <=E10 (e.g.,

potentially requiring that terminals provide additional tanks to store

more blendstocks). Indeed, given the many uncertainties that exist

concerning the future availability of E15, E10 and E0, it would be

difficult, if not impossible, to conduct the required analyses in a

meaningful way at this time.

    EPA raises these points not to discount the important issues raised

by the petitioners and commenters, but to indicate the kind of analysis

that would be needed to evaluate either the suggested regulatory

approach or other less comprehensive regulatory requirements, and to

highlight the premature nature of taking regulatory action at this

time.\24\ Until E15 enters the market and further developments take

place, much of the information needed to conduct those analyses will be

unavailable or difficult to obtain. Better, well-informed decisions can

be made by monitoring developments concerning the availability of E15

and <=E10 and formulating any EPA response in light of specific

developments as they occur over time.\25\

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    \24\ In addition, EPA notes that there would be serious notice

and comment concerns if EPA attempted to adopt any regulatory

requirement on availability in this final rule.

    \25\ Given EPA's many statutory responsibilities, we also

conclude that it does not make sense to use EPA's limited resources

to attempt to develop information or make projections now where much

more reliable information will become available over time, nor is it

appropriate to undertake a rulemaking now that imposes specific

requirements that could well be unnecessary in light of future

developments.

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

    Contrary to petitioners' assertions, the circumstances that led EPA

to ensure the availability of unleaded and USLD fuels are substantially

different from those of any transition from E10 to E15. In the case of

both the lead phase-down and the ULSD programs, a new fuel was needed

to protect the advanced emission controls of new vehicles and engines.

The predominant fuels on the market at the time (i.e., leaded gasoline

and 500 ppm sulfur diesel fuel) would have damaged those controls, so

it was important for EPA to ensure the availability of new fuels that

would allow the advanced emission controls to

work properly.\26\ Here, commenters and petitioners are asking for

regulatory assurance that the currently predominant fuel on the market

remains available. Because we expect, for the reasons discussed above,

that E10 will remain the predominant fuel for some time, and is likely

to remain available for a long period of time in response to market

demand for the fuel, we do not believe it is appropriate to require the

availability of <=E10 at this time.

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    \26\ For lead phase-down, EPA required the availability of

unleaded gasoline to replace leaded gasoline because use of unleaded

gasoline was necessary to the proper operation of the catalytic

converters equipped on new motor vehicles. With the ULSD program,

refiners were required to produce ULSD because it was needed for

proper operation of the advanced emission control technologies with

which MY2007 and newer diesel engines would be equipped. There was

no availability requirement for ULSD, but the rule was designed in

such a way to ensure an adequate supply and distribution of ULSD for

the new heavy-duty vehicles that would need it.

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

    The petitioners also incorrectly assert that the E15 misfueling

measures finalized in today's action will supersede the waiver

conditions. In fact, as discussed in section IV.G, today's requirements

are not a substitute for the waiver conditions, although they should

help responsible parties satisfy some of the conditions. Fuel and fuel

additive manufacturers must still satisfy all waiver conditions before

E15 may be introduced into commerce. This includes submitting plans

that detail how a fuel or fuel additive manufacturer will ensure that

misfueling does not occur. To the extent E10 becomes scarce and would

not be reasonably available to consumers, plans submitted under the

waiver may be an avenue for addressing the issue. In the future EPA

would evaluate that approach as well as any potential regulatory

approach under section 211(c).

    As discussed above (see section III.F.1), EPA believes that the

misfueling mitigation measures included in today's action will

appropriately and effectively reduce the potential for misfueling.

Those measures include a misfueling prohibition and an E15 label that

communicates that prohibition, along with the potential for damage to

vehicles and engines not covered by the partial waivers, to consumers.

With those measures in place, retailers, distributors, and consumers

are expected to obey the law and find fuel that is compatible with

their vehicles, engines, and equipment.

    For the reasons discussed above, EPA is denying the petition for

rulemaking to require that gasoline-ethanol blends containing 10 vol%

or less ethanol be made available in the marketplace. As the transition

to E15 occurs, we will work with fuel producers, distributors, and

marketers to monitor the availability of E15, E10, and E0 so that any

potential problems can be anticipated and addressed on a timely basis,

based on real world conditions as they develop.

G. Modification of the Complex Model Regulations and VOC Adjustment

Rule

    To measure compliance with the RFG and anti-dumping standards, the

emissions performance of gasoline is calculated using a model, called

the Complex Model, which predicts the emissions level of each regulated

pollutant based on the measured values of certain gasoline properties.

Currently, the amount of oxygen that can be used as input to the

Complex Model is limited to no more than 4.0 percent by weight (wt%) in

gasoline in which the oxygenate is ethanol. This level is equivalent to

the maximum amount of oxygen in gasoline containing 10 percent by

volume (vol%) ethanol, or E10.\27\

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    \27\ Because the percent by weight of oxygen in the fuel varies

depending on the density of the fuel, the limit in the Complex Model

is currently 4.0 wt% to reflect the maximum amount of oxygen

associated with E10. In most fuels, however, this quantity is

equivalent to 3.5 to 3.7 wt% oxygen.

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

    The emissions level as computed by the Complex Model is compared to

the baseline emissions for each pollutant, and the percent reduction is

then calculated. The RFG standards for VOC, NOx, and toxics are stated

in terms of percent reductions from the baseline, whereas the

antidumping regulations applicable to conventional gasoline generally

require no greater emissions than baseline levels. Under the Clean Air

Act, baseline emissions must be based on 1990 vehicle technology, not

current fleets, nor off-road equipment. For gasoline to be sold in the

U.S., it must comply with either the RFG or antidumping standards, as

appropriate. Refiners are required to certify that their fuel meets the

standards by using the Complex Model. For the RFG areas of Chicago and

Milwaukee, RFG that contains 10 vol% ethanol is given an adjustment of

the VOC performance standard, resulting in a slightly less stringent

requirement.

1. Proposed Approach and Consideration of Comments

    Because the Act specifies that the emissions performance for RFG is

to be measured against a baseline that represents 1990 vehicle

technology, we were not able to use current emissions test data on

motor vehicles using E15 gasoline as a basis for evaluating appropriate

changes to the oxygen input parameter of the Complex Model VOC

equation. Instead, we relied on a study conducted in 1994 by Guerrieri

et al. (Guerrieri/Caffrey study) that examined the exhaust emissions

from 1990 vehicles using gasoline with ethanol levels varying from 0 to

40 vol%.\28\ Based on the study findings, we are reasonably confident

that the average VOC emissions for ethanol blends greater than E10 up

to and including E15 will be no worse than for E10, for 1990 technology

motor vehicles.

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

    \28\ Guerrieri, D., Caffrey, P., and Rao, V., ``Investigation

into the Vehicle Exhaust Emissions of High Percentage Ethanol

Blends,'' SAE Technical Paper 950777, 1995, doi:10.4271/950777.

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

    This outcome is consistent with our engineering judgment. The

study's data showed that on average exhaust hydrocarbon emissions

increased from E10 to E12, but then decreased beyond E12. While the

study does not provide sufficient data to determine the precise VOC

emission effect between E10 and E15, the linear regression results

presented in the study indicate a decreasing trend in hydrocarbon

emissions with increased ethanol in gasoline. In the NPRM, we therefore

proposed to modify the regulations to allow gasoline fuels containing

greater than 4.0 wt% oxygen and up to 5.8 wt% oxygen to be certified

with the VOC emissions effects modeled the same as if the fuel

contained 4.0 wt% oxygen.\29\

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    \29\ The level of 5.8 wt% oxygen is the potential maximum oxygen

level associated with E15 due to lighter than average gasoline

components. The typical weight of oxygen in E15 is around 5.2%.

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

    Most comments received supported the proposed change to the Complex

Model regulations. Some commenters were concerned permeation effects,

the representation of NOX and toxic emissions by the Complex

Model, and whether the Complex Model should be modified to allow

increased oxygen levels from all renewable fuels. Two comments also

suggested that the VOC adjustment that applies in Chicago and Milwaukee

for RFG containing nine to ten percent ethanol should be modified to

allow RFG that contains up to 15% ethanol to have the same VOC standard

as E10. We discuss these comments in further detail below.

a. VOC Emissions From Permeation

    One commenter pointed out that with respect to the effect of

increased ethanol levels on VOC emissions, the Guerrieri/Caffrey study

examined only exhaust VOC emissions. Evaporative VOC emissions were not

investigated. The commenter pointed out that permeation emissions are a

concern with ethanol, and that the Complex Model should

reflect such emissions. The commenter stated, ``At a minimum, EPA must

conduct permeation testing on relevant fuel system materials to

determine how permeation rates vary with ethanol content (i.e., does

the rate change between E10 and E15). EPA should then modify the

Complex Model to reflect the change in permeation related evaporative

emissions from the zero percent ethanol baseline.''

    We acknowledge that the referenced study did not address

evaporative emissions due to permeation. However, evaporative

permeation was not tested during development of the Complex Model.

Thus, the model never reflected permeation emissions for any level of

ethanol (E0, E10, E15 or any values in between). Recent data from CRC

show that although permeation emissions increase with higher levels of

ethanol, the effects of E15 are likely to be comparable to E10.\30\

Since the permeation rates of E15 are comparable to those of E10, it

would be inappropriate to modify the model to account for E15

permeation emissions and not for E10. Major changes to the Complex

Model such as would be needed to reflect permeation emissions for

different levels of ethanol are beyond the scope of this rulemaking.

Since evaporative permeation from E15 is comparable to that from E10,

we believe today's regulatory change to treat E15 like E10 under the

Complex Model is appropriate.

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

    \30\ Enhanced Evaporative Emission Vehicles (CRC Report: E-77-

2), March 2010, and Evaporative Emissions From In-Use Vehicles: Test

Fleet Expansion (CRC Report: E-77-2b), June 2010.

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

b. Representation of NOX and Toxic Emissions in the Complex

Model

    One commenter expressed concern that the Guerrieri/Caffrey study

showed that NOX emissions on the six vehicles tested

increased with increasing levels of ethanol. The commenter suggested

that we therefore should modify the equations of the Complex Model to

account for such increases in NOX.

    The NOX emission performance requirements for RFG and

conventional gasoline (CG) have not been applicable to most refiners

since January 1, 2007, when the Tier 2 gasoline average sulfur standard

of 30 ppm took effect (see 40 CFR 80.41(e)(2)(i) for RFG; and 40 CFR

80.101(c)(3)(i) for CG). This is the case for all refiners as of

January 1, 2011 (see 40 CFR 80.41(e)(2)(ii) for RFG; and 40 CFR

80.101(c)(3)(ii)). The applicability of the Complex Model to gasoline

certification has thus become limited as EPA's more recent clean

gasoline standards take effect and require even greater emission

reductions than those required by the RFG and antidumping programs. As

a result, there is no current NOX performance standard for

RFG or conventional gasoline under the RFG or antidumping regulations,

and the Complex Model is no longer used for modeling NOX

performance. Therefore, there would be no point in modifying the

Complex Model regulations to account for additional NOX

emissions that may be associated with E15.

    The same commenter also raised concern over our approach to air

toxics. Specifically, in the NPRM, we stated that we would not need to

modify the air toxics standard of the Complex Model because beginning

January 1, 2011, the air toxics emission standards no longer apply for

gasoline subject to the new mobile source air toxic (MSAT2) nationwide

benzene standard for gasoline (see 40 CFR 80.41(e)(3) for RFG; and 40

CFR 80.101(c)(4) for CG). We noted, though, that small refiners can

take advantage of the option for delayed compliance with the MSAT2

benzene standard until January 1, 2015. We stated that since small

refiners typically certify CG as E0, with oxygenate blended downstream,

their compliance with the toxics performance standard should be

unaffected by the increase in ethanol content from E10 to E15. In

addition, no small refiners currently produce RFG or are expected to

produce RFG. Thus, there is no need to revise the toxics performance

standard of the Complex Model.

    The commenter recommended that EPA revise the toxics standards of

the Complex Model to account for E15, and maintained that even if there

are currently no small refiners producing RFG, EPA cannot preclude the

possibility that they may do so in the future. However, to make the

relevant change to the Complex Model would be a major undertaking and

EPA continues to believe that such an undertaking is unnecessary and

unwarranted in light of current and expected practices by small

refiners. Furthermore, even if we were to make the suggested change,

any possibility of relevance would disappear effective January 1, 2015.

In light of these considerations, EPA has not modified its Complex

Model regulations to account for air toxics emissions related to E15.

c. Adequacy of the Guerrieri/Caffrey Study To Justify Modification of

the Complex Model Regulations

    One commenter stated that the Guerrieri/Caffrey study that we used

to document the effects of increased levels of ethanol on exhaust VOC

emissions is inadequate. The commenter contended that the Guerrieri/

Caffrey study used six vehicles, whereas the original study used to

develop the Complex Model was based on 19 vehicles. In addition, the

commenter points out that the gasoline for the Guerrieri/Caffrey study

is not representative of the gasoline that is now sold, since neither

the low sulfur gasoline rule nor the MSAT2 rule was in effect at that

time.

    With regards to the gasoline used in the Guerrieri/Caffrey study

not being representative, the gasoline used for the study to develop

the Complex Model was also different than today's. In fact, the

gasolines used for both the original Complex Model study and the

Guerrieri/Caffrey study were the same, providing some level of

consistency between them. Both were designed to reflect the statutory

baseline fuel for these standards--1990 fuel, not today's fuel.

Notwithstanding the relatively few vehicles tested, the Guerrieri/

Caffrey study provides data that allows EPA to estimate with reasonable

confidence what would be the likely effect on exhaust emissions of

blends of E15 in RFG as represented by the Complex Model. As stated in

the preamble of the NPRM, the outcome of that study was consistent with

our engineering judgment. That is, the general trend across vehicles of

all ages is that the addition of ethanol to gasoline tends to lower VOC

emissions due to its enleanment effect during open loop operation.

d. Representation of Other Renewable Fuels and Fuel Additives in the

Complex Model

    We proposed modifying the Complex Model only for the increased

level of oxygen associated with E15. Two commenters suggested that the

modification not be limited only to ethanol but to all renewable fuels

and fuel additives that supply oxygen up to the new 5.8 wt% level. We

believe that this comment has merit, since the Complex Model treats the

parameter of oxygen independently of the oxygenate which supplies it.

In other words, the model was developed using fuel oxygen level as an

input independent of which oxygenate contributed the oxygen. In

addition, we believe that the increased use of any oxygenate in the

range of 4.0 wt% to 5.8 wt% would have effects on VOC emissions that

are similar directionally to those of increased ethanol use in that

range. Thus, we agree with the commenters that it is not necessary to

limit the higher levels of oxygen in fuel (i.e., above 4.0 up to 5.8

wt%) only to ethanol for purposes of modifications to the Complex Model

regulations. We will therefore modify the regulations to allow the

Complex Model to be run for fuels containing oxygen levels up to 5.8

wt% from any oxygenate. However, it should be noted that this change to

the Complex Model regulations has no effect on any other restrictions

applicable to such fuels. For example, this modification to the Complex

Model regulations does not relieve any party from the substantially

similar prohibition in section 211(f)(4) of the Clean Air Act or the

need, in appropriate circumstances, to receive a waiver of this

prohibition.

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

    Two commenters pointed out that the regulations for RFG (40 CFR

80.41) currently allow for an adjustment of the VOC performance

standard for RFG containing between nine and 10 vol% ethanol in the

Chicago and Milwaukee RFG areas. For RFG sold in these areas, the

adjustment allows for a slightly lower emission reduction of VOCs as

computed by the Complex Model. The amount of this adjustment is

equivalent to a decrease in the RVP by approximately 0.3 psi. Since we

proposed to allow the Complex Model to accommodate ethanol in RFG up to

15 vol%, one commenter argued that we should also allow such blends to

be eligible for the VOC adjustment. The other commenter stated that

unlike the 1.0 psi waiver for conventional gasoline, the VOC adjustment

for RFG is not a statutory requirement and that ``the policy rationale

behind the adjusted standard for E-10 applies equally to E-15.'' The

commenter also stated that not extending the VOC adjustment in Chicago

and Milwaukee to E15 would present additional logistical and financial

challenges including the creation and storage of a lower RVP blendstock

for splash-blending E15.

    The VOC adjustment rule was promulgated in 2001 when RFG had an

oxygen content requirement. E10 was typically used in the Chicago and

Milwaukee RFG areas, generally resulting in a higher oxygen content in

these areas than in other RFG areas. EPA's reasons for adopting the VOC

adjustment rule can be found at 66 FR 37164 (July 17, 2001). In

essence, at that time, EPA determined that, for purposes of ozone, the

higher oxygen levels in E10 led to greater reductions in CO which

offset to some extent VOC emissions. EPA reduced the VOC performance

standard for E10 consistent with this offset.

    Today's rulemaking is limited to consideration of issues associated

with the entry of E15 into commerce. EPA is not in a position to

reevaluate, and is not reevaluating, whether the VOC adjustment

provision for E10 continues to be appropriate. The only issue before

EPA in this rulemaking is whether the existing adjusted VOC performance

standard for the Chicago and Milwaukee RFG areas should be extended to

E15. In addition, it should be noted that section 1504 of the Energy

Policy Act of 2005 (EPAct) requires that EPA remove the VOC performance

standards for VOC-Control Region 2 that are currently in 40 CFR 80.41,

and instead apply the standards in 40 CFR 80.41 for VOC-Control Region

1 for all RFG areas. When EPA implements this EPAct provision, it will

consolidate the northern and southern VOC performance standards for

RFG, adopting the southern VOC performance standards for all RFG areas.

At that point the adjusted VOC performance standard would no longer

apply in the Chicago and Milwaukee RFG areas. EPA intends to address

this EPAct provision in a future rulemaking. However, EPA is not in a

position to make these broad changes to the VOC performance standards

in this rulemaking, and is limiting this action to issues associated

with the introduction of E15 into commerce.

    In that context, EPA believes it is appropriate to extend the

current adjusted VOC performance standard to E15. If the adjusted VOC

standard is extended and E15 is introduced into these RFG areas, it

will likely replace E10. EPA expects that the base blend of gasoline

would not change whether it is used to produce E10 or E15 RFG. By

replacing E10, E15 RFG would directionally lead to greater reductions

in VOC emissions in-use, as E15 produces a slightly lower increase in

RVP than E10. In addition, E15 would likely lead to greater reductions

in CO compared to E10, because of the increased oxygen content.

Extending the adjusted VOC performance standard to E15 would therefore

likely lead to somewhat greater reductions in VOCs and CO than would

occur if the adjusted VOC standard is not extended to E15. This

increase in emissions reductions is consistent with the provisions of

Clean Air Act Sec.  211(k)(1)(A), and starts to move at least

directionally in a manner consistent with the EPAct provision. As such,

it is appropriate at this time to make the narrow revision of extending

the adjusted VOC standard to E15.

2. Final Approach Concerning the Complex Model and the VOC Adjustment

Rule

    For the reasons discussed above, EPA is revising the Complex Model

regulations generally as proposed. The equations in the Complex Model

relating to NOX and toxics will not be changed. The Complex

Model regulations will be modified to specify use in the model

equations of a 4.0 wt% oxygen content for fuels with actual oxygen

content greater than 4.0 wt% and up to 5.8 wt%. Thus, the VOC emissions

performance for these fuels shall be evaluated as if the oxygen content

were 4.0 wt% oxygen. Today's rule also modifies 40 CFR 80.41 so that

the VOC adjustment in effect for Chicago and Milwaukee will apply to

RFG with ethanol content between nine and 15 vol%.

H. Federalism Issues

    In the NPRM, we discussed the potential federalism issues that the

proposed rule might raise. We noted that the proposed mitigation

measures were based on the authority in CAA section 211(c) as well as

the recordkeeping and information collection authorities of the Act. In

that context, we specifically discussed section 211(c)(4)(A), which

prohibits states and political subdivisions from prescribing or

attempting to enforce for purposes of motor vehicle emission control

any control or prohibition ``respecting any characteristic or component

of a fuel or fuel additive in a motor vehicle or motor vehicle engine''

if EPA has prescribed a control or prohibition applicable to such

characteristic or component of the fuel or fuel additive under section

211(c)(1). We explained that this prohibition does not apply to

controls that are identical to prohibitions or controls adopted by EPA

(section 211(c)(4)(A)(ii)) or to California (section 211(c)(4)(B)). We

also noted that a state may adopt non-identical fuel control measures

upon a showing of necessity under section 211(c)(4)(C).

    In light of these CAA provisions, we indicated that we were not

aware of any state rules or laws that would be preempted by the

proposed rule if adopted. We explained that, to our knowledge, states

have not controlled ethanol volumes in gasoline for purposes of motor

vehicle emissions control. We also stated that the proposed rule, if

adopted, would not require states to change their existing labels.

    We received a comment from a state agency agreeing with our

explanation of the scope and effect of the Federal preemption

provisions of CAA section 211(c) and noting the importance of state

regulation of fuel as allowed under the Act. Several commenters,

however, expressed concern about the potential

for state fuel regulations to create a patchwork of requirements, and

urged EPA to clarify that state laws cannot conflict with or undermine

any of EPA's control measures. In particular, these commenters stated

that EPA should specifically prohibit states from undermining the

effectiveness of the EPA warning label through requiring conflicting or

distracting ethanol labels.

    Today's action is based on the authority in section 211(c)(1), as

well as under sections 208 and 114 of the Act. As such, today's action

leads to the express preemption of certain state actions that prescribe

or enforce controls or prohibitions respecting ethanol content in

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

211(c)(4)(A) applies only to controls or prohibitions respecting any

characteristics or components of fuels or fuel additives for use in

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

vehicles, a state control or prohibition respecting ethanol content in

fuel or fuel additives would be preempted only if it is ``for purposes

of motor vehicle emission control.'' Further, states, other than

California, may prescribe and enforce non-identical measures if they

seek and obtain EPA approval of State Implementation Plan revisions

containing such control measures, under section 211(c)(4)(C).

    Additionally, aside from the express preemption in section

211(c)(4)(A), a state control for fuels or fuel additives may be

implicitly preempted under the supremacy clause of the U.S.

Constitution where the state requirement actually conflicts with

Federal law by preventing compliance with the Federal requirement, or

by standing as an obstacle to accomplishment of the Federal objectives.

A state standard respecting ethanol content that is not subject to the

express exemption provisions of section 211(c)(4)(A) nevertheless may

be preempted because it meets the criteria for conflict preemption.

    In light of the relevant statutory and constitutional provisions,

EPA believes that questions regarding preemption of specific state fuel

regulations should be addressed on a case-specific basis. Generally

speaking, state requirements related to ethanol can co-exist with the

misfueling mitigation provisions of today's rule, including, for

example, the requirement for the specified E15 pump label, where the

state requirements are not ``for purposes of motor vehicle emission

control'' and do not conflict or undermine the effectiveness of the

Federal misfueling mitigation measures.

IV. Other Issues Addressed by Commenters

A. Cost of Compliance

    We calculated the proposed cost of compliance based on the periodic

capital costs of labeling fuel dispensers, the onetime costs of the PTD

requirements, and the annual cost of the survey requirements. The cost

of the proposed labeling requirements was estimated at $1.04 million

per year on an annualized basis. This estimate was conservative (tends

to overestimate costs) as it was based on a label being placed on all

pumps at all stations. Since we are requiring only labels at E15 pumps

and we did not receive information indicating that our cost estimate

for labeling was low, we are using the same estimate for the cost of

the labeling requirement for the final rule.

    Our estimate for the cost of the proposed PTD requirements in the

NPRM was $0.56 million per year. We did not receive comments to the

contrary. We have revised this estimate to $0.45 million per year. The

revised estimate is based on a one-time cost of $4.1 million to

regulated parties to modify the formatting of their existing PTDs to

accommodate the new information which will be required as a result of

the rule. After the one-time modification of PTD formatting is

complete, we believe that there would be no significant additional

costs associated with communicating the additional information required

by today's rule to downstream parties in the distribution system

(either in electronic or paper form). By amortizing the one-time

reformatting costs over a period of 15 years at a 7% cost of capital,

we arrive at an annualized cost of $450,000 for the PTD requirements.

    We estimated the cost to implement the proposed survey provisions

for conventional gasoline at $2 million per year and the cost of adding

the proposed survey requirements to the existing RFG survey at $50,000

per year. We also estimated that the cost of RVP testing of the samples

would be $200,000 per year. One commenter stated that EPA

underestimated survey costs because the proposed requirement for same-

day shipping would increase costs by as much as $1 million per year.

For the final rule, we have removed the requirement for expedited

shipping, so the basis for the commenter's concern is no longer

applicable. Since in the final rule we are requiring RVP testing only

of samples labeled as E15, we estimate that no more than $100,000 will

be necessary to complete such testing. Thus, the total cost of the

final survey requirements is estimated to be $2.15 million per year.

    The total estimated cost of all the requirements is $3.64 million

per year, slightly lower than the $3.75 million we estimated in the

NPRM. We stated in the NPRM that the misfueling mitigation measures

would reduce the potential for misfueling and consequent emission

increases and repairs to nonroad products and MY2000 and older motor

vehicles. We also stated that while there are no data to estimate the

frequency at which emission increases and repairs or other potential

complications might occur with misfueling in the absence of today's

rule, even if these consequences were avoided for only a tiny fraction

of vehicles and equipment not covered by the partial waivers (as

opposed to actions taken independently by industry in response to

conditions on the partial waiver), the savings would still far exceed

the costs of compliance. In reaching this view, we considered the

avoided costs of repairing or replacing catalysts, although the costs

of other repairs and emission increases might also be avoided. We

expected that emissions-related consequences would occur with enough

frequency that the benefits of the proposed rule's requirements would

clearly outweigh the relatively low costs. See 75 FR 68044, 68058, 081

(Nov. 4, 2010). During the public comment period for the proposed rule,

additional information that might be useful to estimating costs or

benefits was not submitted and did not otherwise become available. As a

result, we continue to expect that the benefits of today's final rule

will significantly outweigh the rule's low costs.

    One commenter stated that our analysis failed to consider the cost

for controlling the additional emissions from E15 at service stations,

as well as the potential impacts to ground water and the associated

costs of upgrading underground storage tank systems and the dispensers

that deliver the fuel to the motor vehicle. The commenter argued that

EPA must consider and include the costs associated with installing

equipment to protect ground water and the air from releases and

emissions due to any incompatibility of USTs and Stage I vapor recovery

equipment with E15. Specifically, the commenter stated that dispensing

E15 using Stage I and Stage II vapor recovery equipment at retail

gasoline stations could result in increased emissions, and noted that

currently no Stage I or Stage II equipment are listed as approved for

fuels beyond E10. Also, the commenter stated that EPA had not

considered the potential impacts to ground water

presumably from leakage of underground storage tanks in the event of

E15 incompatibility. The commenter, citing the results of the DOE's

National Renewable Energy Laboratory (NREL) report of November 12,

2010, stated that there are significant operational or material

incompatibilities between legacy equipment and E15. The commenter

asserted that the cost to replace a dispenser or an underground storage

tank that may leak and release product to the ground water should also

be included.

    It is important to recognize that the cost impacts we are

evaluating for the final rule are the costs associated with

implementing the regulatory requirements established by the rule. These

regulatory requirements will apply only to the extent fuel providers

decide to make and sell E15. Neither the partial waivers nor today's

rule require that E15 be made or sold. Therefore, while some retail

stations may need to make upgrades in order to sell E15, the cost of

making any upgrades is not attributable to any regulatory requirement

adopted in this rule. If equipment upgrades are made as needed to

dispense E15, it will be because retailers decide to sell E15, not

because of a requirement to do so. We have therefore estimated the

costs of implementing the requirements adopted by this rule for

labeling, PTDs and surveys. While the commenter provided no information

on costs of potential equipment upgrades, we recognize that there may

be additional costs like those noted by the commenter associated with

distributing and selling E15. However, those costs are not relevant to

an evaluation of the costs of the requirements adopted in this

rulemaking.

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

    EPA proposed that CAA section 211(h)(4) should be interpreted ``as

limiting the 1.0 psi waiver [that the section provides] to gasoline-

ethanol blends that contain 10 vol% ethanol, including limiting the

provision concerning `deemed to be in full compliance' to the same 10

vol% gasoline-ethanol blends.'' 75 FR 68061. We explained that EPA

implements CAA section 211(h)(4) through 40 CFR 80.27(d), which

provides that gasoline-ethanol blends that contain at least 9 vol%

ethanol and not more than 10 vol% ethanol qualify for the 1.0 psi

waiver of the applicable RVP standard. We requested comment on whether

section 211(h) could be interpreted such that E15 would also be

eligible for the RVP provisions in section 211(h)(4). 75 FR 68081.

    We received several comments arguing that section 211(h)(4) should

be read to apply to E15 and urging the Agency to amend the relevant

regulations to reflect this reading. Commenters argued that reading

section 211(h)(4) to extend the 1 psi waiver to E15 is consistent with

EPA's fuel volatility rulemakings and the provision's legislative

history and intent. Commenters pointed to the Agency's 1987 RVP

rulemaking for support, noting that the Agency allowed blends

containing gasoline and a minimum of 10% ethanol to exceed the RVP

limits by 1 psi (see 52 FR 31305 (August 19, 1987)) and that Congress

codified this approach in section 211(h)(4). The commenters argued that

a later EPA rulemaking allowing a range of gasoline-ethanol blends

(i.e., gasoline ethanol blends that contain at least 9 vol% and no more

than 10 vol% ethanol) instead of simply requiring exactly 10 vol%

ethanol was an indication of EPA's discretion in interpreting section

211(h)(4). They also argued that EPA could reasonably interpret section

211(h)(4) as applying to E15. One commenter further argued that E15

meets the terms of the 1 psi waiver for 10 vol% blends because it

contains gasoline and the minimum 10 vol% ethanol. Another commenter

contended that section 211(h)(4) could be interpreted to provide

authority for extending the 1 psi waiver to low to mid-level gasoline-

ethanol blends that have received a waiver under section 211(f)(4).

Finally, commenters mentioned that E15 would have a similar (if not

slightly lower) RVP to E10 and would not exceed applicable RVP limits

if the 1 psi waiver is applied. One commenter suggested further that

the deemed to comply provision found in section 211(h)(4) of the Act

does not tie the compliance of gasoline-ethanol blends directly to

ethanol content. The commenter argued that the primary limitation on

applying the 1 psi waiver would likely be actions that increase RVP not

hard percentage limits on ethanol content, and since E15 would have

similar if not lower RVP than E10, then E15 should receive the 1 psi

waiver.

    We also received several comments supporting our proposed

interpretation. In today's rule, we are confirming our view that

section 211(h)(4) limits the 1 psi waiver to fuel blends containing

gasoline and 9-10 vol% ethanol, including limiting the provision

concerning ``deemed to be in full compliance'' to the same 9-10 vol%

gasoline-ethanol blends.

    Evaporative emissions from motor vehicles and off-highway equipment

are a major source of volatile organic compounds (VOCs) that contribute

to ozone. The amount of evaporative emissions from a gasoline blend is

closely related to its volatility, which generally increases when

ethanol is blended with gasoline. RVP is the most common measure of

gasoline volatility under ambient conditions. In 1989, EPA began

reducing gasoline volatility by limiting its RVP. We provided an

interim RVP level that was 1 psi higher ``for gasoline-ethanol blends

commonly known as gasohol.'' 54 FR 11868, 11879 (March 22, 1989). In

1990, we promulgated additional RVP regulations that continued to

provide a 1.0 psi RVP allowance for E10 so as not to require a special

low-RVP blending gasoline. 55 FR 23658, 23660 (June 11, 1990).

    Subsequently, in the 1990 CAA amendments, Congress largely codified

our RVP regulations by adding a new section 211(h). That provision

established 9.0 psi as the maximum RVP during the high ozone season,

with authority for EPA to set a more stringent RVP level under certain

circumstances. In section 211(h)(4), Congress also established that the

RVP limit for fuel blends containing gasoline and 10 percent denatured

anhydrous ethanol would be 1 psi higher than the RVP standard otherwise

established in section 211(h). This is referred to as the 1 psi waiver.

``For fuel blends containing gasoline and 10 percent denatured

anhydrous ethanol, the Reid vapor pressure limitation under this

subsection shall be one pound per square inch (psi) greater than the

applicable Reid vapor pressure limitations established under paragraph

(1).'' Section 211(h)(4). Congress also enacted a conditional defense

against liability for violations of the RVP level allowed under the 1

psi waiver by stating that ``[p]rovided; however, That a distributor,

blender, marketer, reseller, carrier, retailer, or wholesale purchaser-

consumer shall be deemed to be in full compliance with the provisions

of this subsection and the regulations promulgated thereunder if it can

demonstrate that--(A) The gasoline portion of the blend complies with

the Reid vapor pressure limitations promulgated pursuant to this

subsection; (B) the ethanol portion of the blend does not exceed its

waiver condition under subsection (f)(4) of this section; and (C) no

additional alcohol or other additive has been added to increase the

Reid Vapor Pressure of the ethanol portion of this blend.'' Section

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

``deemed to be in full compliance'' or the ``deemed to comply''

provision.

    Following the 1990 amendments, EPA modified its RVP regulations to

conform to the new provisions. In that rulemaking EPA ``did not

propos[e] any change to the current requirement that the blend contain

between 9 and 10 percent ethanol (by volume) to obtain the one psi

allowance.'' 56 FR 64704, 64708 (December 12, 1991). We explained that

``this is consistent with Congressional intent [because] the nature of

the blending process * * * further complicates a requirement that the

ethanol portion of the blend be exactly 10 percent ethanol.'' 56 FR

24245. We also explained that the deemed to be in full compliance

provision was ``a new defense against liability for violation of the

ethanol blend RVP requirement [and that] EPA believes that this

statutorily mandated defense is in addition to and does not supersede

any of the defenses currently contained in the regulations.'' 56 FR

64708. Additionally, EPA explained that this provision would allow ``a

party to demonstrate the elements of the new defense by production of a

certification from the facility from which the gasoline is received

[and that] this defense is limited to ethanol blends which meet the

minimum 9 percent requirement in the regulations and the maximum 10

percent requirement.'' 56 FR 64708.

    In the Energy Policy Act of 2005 (EPAct), Congress removed the

requirement that reformulated gasoline contain oxygenate additives, and

mandated that increasing volumes of renewable fuel be used in gasoline.

In recognition of the expected increase in ethanol use resulting from

these provisions, Congress added section 211(h)(5) to allow States to

obtain an exclusion from the less stringent RVP limit under section

211(h)(4) for air quality reasons. ``Upon notification, accompanied by

supporting documentation, from the Governor of a State that the RVP

limitation established by paragraph (4) will increase emissions that

contribute to air pollution in any area in the State, the Administrator

shall, by regulation, apply, in lieu of the RVP limitation established

by paragraph (4), the RVP limitation established by paragraph (1) to

all fuel blends containing gasoline and 10 percent denatured anhydrous

ethanol [sold] in the area during the high ozone season.'' Section

211(h)(5).

    The legislative history of the 1 psi waiver provision shows that it

is for fuel blends containing gasoline and 10 percent ethanol. The

purpose of the 1 psi waiver provision was to facilitate the

participation of ethanol in the transportation fuel industry while also

limiting gasoline volatility resulting from ethanol blending. Congress

also intended for this provision to remove the possibility that ethanol

blends would be used to circumvent the gasoline volatility

restrictions. In 1987, prior to adoption of the 1990 Amendments,

Congress considered a legislative provision that was identical in

relevant part to section 211(h)(4). The legislative history of this

provision shows that Congress based the 1 psi waiver on technical data

indicating that blending gasoline with ethanol so that it contains 9-10

vol% ethanol results in an approximate 1 psi RVP increase. In sum, the

text of section 211(h)(4) and this legislative history supports EPA's

interpretation, adopted in the 1991 rulemaking, that the 1 psi waiver

only applies to gasoline blends containing 9-10 vol% ethanol.

    In the 1991 rulemaking EPA also interpreted the deemed to comply

provision in section 211(h)(4) as establishing an alternative

compliance mechanism closely tied to the 1 psi waiver. It was

interpreted as a conditional defense against liability for those

parties who blend ethanol into gasoline to achieve 9-10% ethanol by

volume. EPA continues to interpret the deemed to comply provision in

this manner, such that it does not apply to ethanol blends greater than

10% by volume. This is consistent with the text and legislative history

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

    As noted above, in 1987 Congress considered a bill containing

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

provisions in that 1987 Senate bill were in response to EPA's 1987

proposed RVP rule, in which EPA proposed a 1 psi waiver for ethanol

blends, but conditioned this waiver on the final blend being tested for

RVP. The deemed to comply provision was Congress' response to concerns

that this was an impractical and overly burdensome way to implement a 1

psi waiver for 10% gasohol. The Senate bill describes the deemed to

comply provision as an alternative enforcement arrangement that

simplified compliance with the 1 psi waiver. Thus, the deemed to comply

provision is tied to the 1 psi waiver, and is designed to provide

blenders the practical benefits of the 1 psi RVP waiver. It is not

intended as a separate authorization for a relaxed RVP limit

independent of the provision for a 1 psi waiver for 9-10% blends.

    The text of the deemed to comply provision supports this

interpretation. The provision is an addition after the 1 psi waiver

that modifies the 1 psi waiver for 9-10% blends. It is not written as a

free standing RVP limit that acts separate and apart from the 1 psi

waiver for 9-10% blends of ethanol. Its reference to section 211(f)(4)

is an indication that Congress was well aware of the existing section

211(f)(4) waiver conditions for 10% ethanol by volume. It refers to the

ethanol blend not exceeding its section 211(f)(4) waiver conditions,

and does not explicitly refer to 10% ethanol, but the condition of

``not exceed[ing]'' the section 211(f)(4) waiver limit cannot be read

literally. A literal reading of this phrase would mean that blends

containing 1%, or 2%, or 5% ethanol would all be blends that are deemed

to comply, as they do not exceed the section 211(f)(4) waiver limit.

Such a broad reading would make the 1 psi waiver for 9-10% blends

meaningless. Moreover, had Congress intended that the deemed to comply

provision would establish a different ethanol content for ethanol

blends that would be eligible for a relaxed RVP limit, whether higher

or lower content, it could have expressly employed terms to that

effect.

    The deemed to comply provision and the 1 psi waiver provision are

each given consistent meaning by limiting the deemed to comply

provision to a subset of lawful ethanol blends. The text of these

provisions and their legislative history indicate that the deemed to

comply provision was designed to address the same subset of ethanol

blends that receive the 1 psi waver--blends of 9-10% ethanol. It was

not a separate and free standing RVP provision aimed at another, larger

subset of lawful ethanol blends, whether above or below 9-10% blends.

Instead it was tied closely to the 1 psi waiver provision and limits

the range of ethanol blends that can take advantage of the deemed to

comply provision to blends of 9-10% ethanol.

    Further support for this view is provided in the action Congress

took in 2005 when it adopted section 211(h)(5). This provision treats

the RVP limitation of section 211(h)(4) as a whole--it refers to the

RVP ``limitation established by paragraph (4)'' and provides that when

a State notifies EPA that such limitation increases emissions that

contribute to air pollution in the State, then EPA is to apply the RVP

limits of paragraph (1) ``in lieu of the [RVP] limitation established

by paragraph (4)'' for blends of 10% ethanol. It draws no distinction

between the 1 psi waiver provision and the deemed to comply provision

when referring to the RVP limitation in section 211(h)(4). Section

211(h)(5) recognizes the potential that the relaxed RVP limit in

section 211(h)(4) could

increase emissions that contribute to air pollution, and provides

States with an appropriate solution. When a State notifies EPA that the

RVP limit under section 211(h)(4) is contributing to an air pollution

problem, EPA is to apply the more stringent RVP limit under paragraph

(1) in lieu of the relaxed limit allowed under section 211(h)(4). These

more stringent RVP limits are applied to blends of 9-10% ethanol. A

straightforward reading of this provision is that Congress intended to

provide States a meaningful and complete solution to emissions

increases stemming from the relaxed RVP provisions in section

211(h)(4), not a partial solution. If the deemed to comply provision is

read as applying to ethanol blends above or below 9-10% ethanol,

however, this provision would provide no relief for emissions from

various ethanol blends different from 9-10% ethanol, including E15.

There is no indication Congress intended such a partial and

inconsistent solution. Both the text and legislative history of this

provision indicate Congress viewed section 211(h)(5) as addressing the

potential for air pollution problems from the relaxed RVP limit in

section 211(h)(4), which applies to blends of 9-10% ethanol.

    In sum, EPA views these three provisions--the 1 psi waiver and the

deemed to comply provision in section 211(h)(4), and the State relief

provision in section 211(h)(5)--as related provisions that should be

interpreted together in a way that harmonizes them and provides

significance and a balanced meaning to each of them. EPA believes that

this is reasonably done by viewing the 1 psi waiver provision in

section 211(h)(4) as applying to blends of 9-10% ethanol; by viewing

the deemed to comply provision as applying to the same subset of 9-10%

ethanol blends, and not applying to blends above or below the range of

9-10%; and by viewing the provision for relief to States in section

211(h)(5) as applying to the same subset of 9-10% ethanol blends. This

is consistent with the text and legislative history of the three

provisions, which indicate that the RVP provisions in section 211(h)(4)

are intended to work together to facilitate the use of ethanol blends

of 9-10%, that the deemed to comply provision is not a free standing or

separate provision that addresses fuels different from those covered by

the 1 psi waiver, and that the provision for States in section

211(h)(5) is intended to provide relief co-extensive with the RVP

limits in section 211(h)(4). This interpretation harmonizes all three

provisions, gives each of them significant meaning, avoids making any

of the provisions meaningless, and reasonably balances the various

interests Congress was addressing in these provisions--controlling the

RVP of gasoline and ethanol blends in a way that facilitates the

practical downstream blending of ethanol while also preserving the

ability of States to address the increased emissions associated with a

relaxed RVP limit for ethanol blends.

    Some commenters argued that section 211(h) should be interpreted

such that E15 is eligible for the 1 psi waiver in section 211(h)(4),

and that under section 211(h)(4) the 1 psi waiver applies to fuels that

contain a minimum of 10% ethanol, while section 211(f)(4) sets the

maximum ethanol content under the deemed to comply provision. None of

the commenters discussed section 211(h)(5) or explained how their

respective interpretations would interact with section 211(h)(5). For

the reasons discussed above, EPA does not agree with the commenters'

arguments. For a full discussion of the comments and EPA's response,

see the Response to Comments document, which is in the docket for this

rulemaking.

C. RVP and E15 Underground Storage Tank Transition

    In the NPRM, we pointed out the potential problems that could occur

if a higher RVP E10 fuel (i.e., E10 fuel that took advantage of the

statutory 1.0 psi RVP waiver) is commingled in underground storage

tanks with a lower RVP E15 fuel (i.e., E15 fuel that met the summertime

conventional gasoline RVP standard without the 1.0 psi RVP increase,

since the statutory 1.0 psi RVP waiver is not applicable to E15, and

that also complied with the condition of the partial waivers limiting

the summertime volatility of E15 to 9 psi). Commingling of these fuels

would typically be an issue when a retail station decides to transition

from selling E10 to E15, or E15 to E10, during the summertime ozone

season. In these circumstances, if the retail station does not

completely remove all E10 from a tank before E15 is added to the tank

(or E15 before E10 is added), the gasoline fuel remaining in the

dispensing station tank would likely violate the applicable RVP

standards as well as the 9 psi RVP condition of the E15 partial

waivers. For example, if a quantity of E10 at 10.0 psi RVP is blended

with a quantity of E15 at 9.0 psi RVP, the resulting blend would have

an ethanol content somewhere above 10 vol% (but below 15 vol%). The

resulting blend would also have an RVP above 9.0 psi. Since the blend

is above 10 vol% ethanol, it would not qualify for the 1.0 psi waiver.

It would also be subject to the 9 psi RVP condition of the partial

waivers, since the waivers cover any gasoline-ethanol blend above 10

vol% ethanol up to 15 vol% ethanol. In this way, commingling would

likely result in fuel that does not comply with applicable RVP limits

or the RVP condition of the partial waivers.

    As mentioned in the NPRM, section 211(t) of the Clean Air Act,

adopted in the Energy Policy Act of 2005, allows retail stations to

blend compliant reformulated gasoline batches of non-ethanol blended

and ethanol-blended gasoline in storage tanks twice a year as long as

the duration of the blending period is no longer than 10 consecutive

calendar days. However, the authority granted to the Agency for the

transition of fuels in underground storage tanks was specifically

limited to the case of reformulated gasoline, and this provision does

not authorize a change in the RVP standards for blending down of E10

and E15 over time in non-reformulated gasoline areas. We sought comment

on the issue of tank transition between E10 and E15 fuels and ways that

the Agency could address this issue so that tank transition might be

more easily accomplished.

    A related issue is whether to specifically disallow the commingling

of E10 and E15 or of blendstocks produced specifically for blending E10

and E15. In the NPRM we proposed a specific regulation that would

prohibit combining ``any base gasoline or conventional blendstock for

oxygenate blending intended for blending with E10 that took advantage

of the 1 psi waiver applicable for 9-10 volume percent gasoline-ethanol

blends with any gasoline or conventional blendstock for oxygenate

blending intended for blending with E15, unless the resultant

combination is designated, in its entirety, as an E10 blendstock for

oxygenate blending''. Additionally, we proposed to prohibit combining

``any gasoline-ethanol blend containing E10 that took advantage of the

1 psi waiver applicable to 9-10 volume percent gasoline-ethanol blends,

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

(75 FR 68089, November 4, 2010). Such a prohibition would aid in

preventing mixing that would result in gasoline in dispensing tanks

that does not comply with the RVP standards due to tank transitions as

described above.

    Regarding tank transition in reformulated gasoline areas and a

possible commingling prohibition, one commenter stated that it opposed

a specific commingling prohibition because existing rules already

prohibit

application of the 1 psi RVP waiver to other than E10 and any tank

transition from E10 to E15 would likely happen only once. The commenter

further stated that if such a prohibition is necessary, it should apply

only in summer months. Other commenters also opposed a commingling

prohibition and generally stated that such a prohibition would create

unnecessary difficulties in introducing E15 into commerce.

    As explained above, the 1.0 psi RVP waiver for conventional

gasoline applies only to E10 blends, and it is already a violation of

RVP standards to have an RVP higher than the standards for fuels not

qualifying for the 1.0 psi RVP exemption, such as E15. Furthermore, it

is correct that any prohibition against commingling, like the current

RVP limitations, would apply only during the summertime ozone season.

We also recognize that current regulatory requirements make it a

violation to have higher RVP than allowed when commingling E10 and E15

in retail tanks. However, we believe that specific commingling

regulations can provide additional, useful directions and incentive not

to blend E10 and E15 in a way that would produce summertime

conventional gasoline that violates the applicable RVP standard (and

the 9 psi RVP limitation of the partial waivers). The prohibition

against combining gasoline or blendstocks for E10 and E15 production

prior to blending makes it clear that such blending will result in a

blendstock that will in turn result in an unlawful gasoline (unless it

is only used to make E10). In addition, the prohibition against

commingling of E15 with E10 blends, which would likely occur in a

dispensing tank, will help prevent unintended commingling of the two

blends in dispensing tanks. Regarding summertime transitions, the

additional prohibition makes it clear that commingling these types of

fuel without one or the other fuel being completely drawn down in the

tank is, in fact, prohibited. We are therefore adopting the commingling

prohibitions as proposed. The PTDs described elsewhere in today's final

rule will help ensure that parties in the distribution chain are

adequately aware of the fuel they are distributing and loading into

underground dispensing tanks and will clearly aid parties in avoiding

violations.

    Comments were received supporting the idea that relief should be

granted to retail stations transitioning between E10 and E15. However,

the only specific suggestion received was to apply the statutory 1 psi

RVP waiver to E15. As discussed above, EPA interprets the relevant

provisions of the Clean Air Act as authorizing the 1 psi RVP waiver

only for gasoline-ethanol blends containing 9-10 vol% ethanol. In

addition, we note that over the past several years most dispensing

facilities with underground tanks have transitioned from E0 to E10

without significant difficulties. Transitioning tanks between E0 and

E10 presents the same practical challenges as transitioning between E10

and E15 in terms of RVP compliance issues. Transitions between E0 and

E10 have typically been accomplished by making the transition during

the wintertime when the RVP compliance issue is not relevant, or during

the summertime by drawing down the tank to effectively empty the tank

prior to introducing the new fuel. These strategies should also be

effective for transitioning to E15. For all of these reasons, we are

not adopting any specific regulatory program for providing relief to

retail stations in transitioning from E10 to E15.

D. Credit for RFG Downstream Oxygenate Blending

    As stated in the NPRM, refiners (or importers) of reformulated

blendstock for oxygenate blending (RBOB) are permitted to take credit

for downstream oxygenate blending when complying with RFG standards if

certain conditions are met. 40 CFR 80.69. To do so, the refiner's or

importer's RBOB must be accompanied by a PTD that specifies the type

and amount of oxygenate that must be added. In addition, the refiner or

importer must have direct oversight of the addition of the oxygenate

or, in the alternative, a survey of all RFG areas supplied by the

refiner(s) or importer(s) must be performed to show that the requisite

amount of oxygenate is added as specified by the PTD. In either case,

EPA requested comment regarding how credit for RFG downstream oxygenate

blending should be dealt with in light of the potential introduction of

E15 into the RFG marketplace.

    One commenter noted that PTDs and surveys should be sufficient to

ensure that the requisite amount of oxygenate is added downstream so

that the refiner can claim credit for the oxygenate addition when

producing RBOB for RFG production.

    As pointed out above, the regulations at 40 CFR 80.69 already allow

credit for RFG downstream oxygenate blending through either direct

oversight or an oxygenate survey for RFG areas utilizing a specific

amount and type of oxygenate for blending purposes. Both of these

approaches can accommodate blending of E15 if such blending were to be

utilized in adding oxygenate downstream to produce RFG. Importantly,

when utilizing either of these approaches, the refiner or importer must

specify in the PTD for the RBOB the type and amount of oxygenate that

must be added, such that the oxygenate addition will produce RFG that

meets applicable standards (such as benzene and VOC) that ``formed the

basis for the refiner's or importer's compliance determination for

these parameters.'' \31\ This would mean, for example, that if a

refiner or importer wants to take credit for downstream blending of

E15, they must either directly supervise the addition of E15 to their

RBOB or conduct an appropriate survey to show that E15 has been added

as directed in the PTD. Therefore, considering existing requirements

such as direct oversight, surveys, and PTDs, we conclude that no

regulatory change is needed regarding credit for RFG downstream

oxygenate blending.

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    \31\ 40 CFR 80.69(a)(10).

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E. Compliance, Enforcement and Warranty

    We proposed liability and penalty provisions for the proposed

misfueling mitigation measures similar to the liability and penalty

provisions found in other EPA fuels regulations. Many commenters raised

issues concerning liability for violations of the proposed misfueling

mitigation measures and other potential consequences of the use of, or

transition to, E15. According to a number of commenters, fuel providers

are unlikely to sell E15 until a variety of different liability issues

are resolved. Although EPA is not in a position to address all of the

liability issues raised by commenters, in this section we address those

within our jurisdiction and clarify the responsibilities of various

parties, including fuel producers, distributors, retailers, product

manufacturers and consumers, for compliance with Agency misfueling

prohibitions and CAA vehicle and engine warranty and other requirements

under the Act.

    In general, we believe the long-standing approach of EPA's fuels

programs and vehicle, engine, and equipment emissions warranty

regulations to assigning respective responsibilities for compliance

with our regulations is also appropriate for E15. We expect the

required label and other misfueling mitigation measures, as reinforced

by a public outreach campaign, will minimize consumer use of E15 in

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

decisions. The misfueling mitigation program should in turn minimize

any liability that might arise

under the CAA or our regulations regarding misfueling with E15.

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

we are continuing to make progress in developing guidance for

determining whether existing underground storage tank systems are

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

monitor and facilitate efforts to address other transition issues

involving state, local and other requirements.

1. Proposed Approach

    In the NPRM, we proposed specific prohibited acts for general

misfueling mitigation purposes related to the distribution, sale, and

use of gasoline containing greater than 10 vol% ethanol. We also

proposed related liability and penalty provisions for noncompliance

with the proposed prohibited acts. These proposed liability and penalty

provisions included presumptive liability for parties in the fuel

distribution system (consistent with presumptive liability provisions

of other EPA fuels programs), affirmative defenses for liable parties,

and penalties for violations.

    With respect to prohibited acts, we proposed that all fuel

providers (producers, manufacturers, distributors, wholesale purchaser-

consumers, and retailers) would be prohibited from selling, introducing

into commerce, or causing or allowing the sale or introduction into

commerce of gasoline containing greater than 10 vol% ethanol into

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

vehicle, any motorcycle and all types of nonroad equipment. In

addition, we proposed that fuel distributors who transport or store

gasoline-ethanol blends, gasoline or blendstock for ethanol blending

would be prohibited from increasing the ethanol content to exceed the

value noted on the PTD. We also proposed that retailers and wholesale

purchaser-consumers would be prohibited from dispensing E15 unless they

comply with the dispenser labeling requirements. The final labeling and

other misfueling mitigation requirements are discussed in section

III.A. of this notice.

    The liability and penalty provisions discussed in the proposal are

similar to the liability and penalty provisions found in other EPA fuel

regulations. Specifically, EPA fuels programs generally include a

liability scheme for violations of prohibited acts that involves a

rebuttable presumption of liability in specified circumstances. Under

this approach, liability is imposed on the party in the fuel

distribution system that controls the facility where the violation

occurred and those parties, typically upstream in the fuel distribution

system from the initially listed party, whose prohibited activities

could have caused the nonconformity to exist.\32\ We emphasized in the

proposal that any person who commits a prohibited act, or causes

another person to commit a prohibited act, would also be liable for a

violation, so most parties in the chain of distribution would be

subject to the rebuttable presumption of liability for committing

prohibited actions or causing violations by other parties.\33\

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    \32\ As noted in the preamble to the proposed rule, an

additional type of liability, vicarious liability, is imposed on

branded refiners under EPA's fuels programs.

    \33\ As noted previously in this preamble, consumers are among

the parties subject to the prohibition on misfueling with E15.

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    The presumptive liability approach for violations of prohibited

acts in our fuels programs also includes affirmative defenses to

prohibited acts. Generally, affirmative defenses require a

demonstration of all of the following: (1) The fuel provider did not

commit or cause the violation; (2) the fuel provider has PTDs

indicating the fuel was in compliance at its facility; and (3) except

for retailers and wholesale purchaser-consumers, the fuel provider

conducted a quality assurance program. In the proposal, we stated that

if a consumer was liable for introducing gasoline with an ethanol

content greater than 10 vol% into a vehicle, engine, or product not

covered by the E15 partial waivers, then a self-service retailer would

typically not be held liable for the consumer misfueling if the

retailer's dispensers were labeled appropriately and did not condone or

facilitate the misfueling.

    While the NPRM proposed general misfueling mitigation provisions,

it did not specifically address emissions warranties for vehicles,

engines, and equipment or the effect of E15 use on the warranties.

However, warranties are addressed by other EPA regulations and the

effect of E15 use on the warranties is no different than the effect of

other legal fuels on the warranties. EPA regulations require emission-

related parts to be warranted that they are free from defects in

materials and workmanship which cause failure to meet emissions

standards and that at the time of sale the vehicles are designed,

built, and equipped in compliance with EPA's regulations. (See CAA

section 207(a).) There is also a performance warranty that applies in

certain cases for the short testing conducted by state inspection and

maintenance programs. (See CAA section 207(b).) The emissions warranty

for light-duty motor vehicles is typically two years or 24,000 miles,

except for the warranty for emission control computers and catalytic

converters, which is eight years or 80,000 miles. Other vehicles and

equipment may have warranties of a different duration, or warranties

measured in hours of operation. Warranties may be made conditional on

the use of a specified fuel as long as it is available, and the

condition is appropriately noted in the owner's manual. (See e.g. 40

CFR. 85.2104, 1068.115). Despite the condition, however, manufacturers

may not deny a warranty based on the use of a different fuel if that

fuel did not cause the problem for which the warranty claim is made.

2. Consideration of Comments

a. Prohibited Acts and Liability Provisions

    Commenters suggested that the proposed regulations do not, but

should, prohibit intentional misfueling of vehicles with E15. We

believe that the proposed regulations did include this prohibition.

Specifically, the proposed regulations would prohibit consumer

misfueling, whether intentional or not, and we are retaining that

provision in today's final rule. Thus, today's final rule prohibits any

person from introducing or causing the introduction of gasoline

containing greater than 10 vol% ethanol into vehicles, engines, and

products not covered by the E15 partial waivers, and prohibits causing

or allowing the introduction of gasoline containing greater than 10

vol% ethanol into such vehicles, engines, and products.

    Concerning retailers' liability, some commenters suggested that

where a retailer complies with the E15 labeling requirements, the

retailer should be completely immune from liability in the event that

misfueling by consumers occurs. Other commenters suggested that proper

labeling should shield retailers from liability absent evidence that

the retailer encouraged or facilitated the misfueling. In contrast,

still other commenters suggested that retailers be required to actively

assess if misfueling is in fact occurring at self-serve pumps. We do

not believe that retailers should be provided with blanket immunity

based on labeling alone. The obligation of a retailer is to not misfuel

and to not cause misfueling. Misfueling may occur in or as a result of

varied circumstances, making a bright line provision--such as the

suggested blanket immunity if dispensers are properly labeled--

problematic. For

example, proper labeling by a retailer that is located at a marina and

that sells fuel almost exclusively for use in boats may not be enough

to avoid liability for misfueling of boats with E15. The variety of

circumstances in which fueling occurs also do not warrant a blanket

requirement of some specific degree of active oversight by the

retailer. We therefore believe that it is appropriate to continue to

apply the liability provisions of the misfueling mitigation regulations

generally as proposed. The provisions finalized today are substantially

the same as the liability provisions of other regulations governing the

sale and use of fuels governed by the Act, and we believe that those

provisions are effective. Like those regulations, today's final

regulations specify which regulated parties can be held liable for

infractions of the requirements, and allows assertion of defenses to

such liability if a party meets specified conditions. For retailers, as

well as other regulated parties, one of those conditions is that the

prohibited act was not committed or caused by the party.

    Commenters suggested that EPA specify in the regulations that a

retailer did not ``cause'' misfueling at properly labeled pumps if the

retailer did not condone or facilitate the misfueling. EPA does not

believe that adding such a specification to the regulation is merited,

for the reasons discussed above. If a misfueling violation does occur,

we will assess all of the circumstances pertaining to the violation to

assess whether a defense of lack of causation is valid, and if not, the

severity of the violation. EPA will take into consideration all actions

taken by the retailer to avoid misfueling. For the reasons discussed in

Section III of this notice, today's rule requires that several specific

misfueling mitigation measures be implemented and does not require that

additional measures be employed at this time. However, retailers may

choose to employ a variety of other measures, such as obtaining

confirmation that the consumer desires to dispense E15 or equipping

pumps that dispense only E15 with a distinctly colored nozzle hand

warmer, as they consider appropriate for their circumstances. A party

does not need to employ such measures in order to establish an

affirmative defense to a presumption of liability, but EPA will

consider any additional measures that a party has taken in assessing

all of the circumstances that pertain to a violation.

    Similarly, commenters also suggested that where a branded supplier

of E15 complies with the labeling and other provisions, and has

implemented a program notifying its retailers of the requirements of

the law, it should be immune from liability if misfueling does occur.

Based on EPA's experience with other fuels programs, EPA does not

believe that merely notifying retailers about the requirements should

immunize branded suppliers from liability for violations at retailers.

As a result, EPA is not changing those defenses in the rule promulgated

today. However, for a misfueling violation by a consumer at a branded

retailer, EPA will consider all of the circumstances pertaining to the

violation to assess whether a branded refiner's defense of lack of

causation is valid, and if not, the severity of the violation.

b. Emissions Warranty Issues for Vehicles, Engines, and Equipment

    Commenters expressed concern that motor vehicle manufacturers might

void the emissions warranty of motor vehicles based on use of E15 and/

or that warranty claims will increase in number as a result of E15 use.

Based on the test data and analysis on which the E15 partial waivers

were based, EPA believes that voiding a warranty claim will occur

infrequently if at all for MY2001 and newer light-duty vehicles (i.e.,

those for which the E15 partial waivers allow E15 to be sold for use)

fueled with E15. For light-duty and other motor vehicles not covered by

the partial waivers, EPA notes that to avoid honoring an emissions

warranty, a manufacturer must not only condition the warranty on use of

a fuel other than E15, it must also must show that use of E15 was

relevant to the reason that the motor vehicle failed emissions testing.

EPA regulations for nonroad equipment impose similar conditions on

voiding warranties for nonroad equipment. In light of the misfueling

prohibition and labeling requirements adopted in today's rule, we

expect that consumers will have both the information and incentive they

need to avoid misfueling with E15 and any damage to emission controls

that misfueling could cause.

    Commenters also stated that imposing a burden on manufacturers to

show that E15 was the cause of a failure is unfair, and that

manufacturers will be required to report more defects to EPA.

Manufacturers currently make such determinations under the warranty

provisions, as well as the defect reporting provisions (see 40 CFR

85.1901 et seq., 1068.501). As with other emissions warranty related

circumstances, manufacturers are in the best position to investigate

and determine the cause of defects and emissions failures of their

vehicles or equipment, and they are best equipped to make

determinations regarding whether a warranty should be honored. We are

interested in learning about any defects, or investigations of defects

that are required to be reported, including those involving defects

that may be related to use of E15, including misfueling with E15.

However, we note that EPA will only order a recall based on a

determination that a substantial number of vehicles would fail to meet

their emissions standards when the motor vehicle is properly maintained

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

c. Other Issues Outside of CAA Jurisdiction

    Commenters expressed concern that consumers will make monetary

claims against E15 retailers for damage to their vehicles or equipment

related to E15 use. They asked that EPA indemnify retailers against

such claims. As noted above, EPA does not believe that such damage will

occur when E15 is properly used. In addition, the provisions adopted

today provide a strong incentive for all parties, including consumers,

to avoid misfueling. We also plan to work with stakeholders on an

outreach effort, which should further limit misfueling incidences.

However, we have no authority to, and do not intend to, address issues

of liability that might be raised in litigation between private

parties. EPA is only addressing issues relevant to its exercise of

authority under the Clean Air Act. It is also worth noting that fuel

providers are not required to make or offer E15 and do so of their own

choosing.

    Commenters expressed concern that E15 misfueling could result in

personal injury to consumers, leading to safety recalls by other

Federal agencies, among other things. They also suggested that EPA

should address materials compatibility and safety issues regarding E15

and dispensing equipment and storage tanks. Other agencies act under

their own authorities, and EPA is not in a position to address in this

rule actions that may or may not be taken by other agencies in the

future. As noted previously, EPA is developing final guidance for

determining the compatibility of existing underground storage tanks

with E15. The issues of materials compatibility and safety issues

regarding dispensing equipment are addressed by state and/or local

requirements.

3. Final Requirements

    With respect to compliance and enforcement associated with

prohibited acts to mitigate misfueling, today's final

rule includes liability requirements that are consistent with the

liability requirements of other EPA fuels programs--retailers and other

parties are presumptively liable for consumer misfueling and other

violations, but parties are not liable if they can show they did not

cause the misfueling. Consumers are also liable for misfueling their

own vehicles, engines or products.

    Regarding vehicle, engine, and equipment emissions warranties,

under EPA warranty regulations, manufacturers may condition an

emissions warranty on the use of a specific fuel but they may not deny

a warranty on the use of a different fuel if that fuel did not cause

problems.

F. Technical Basis for the Rule

    These misfueling mitigation regulations are issued under CAA

section 211(c) in order to prevent or minimize the emission increases

that would occur if E15 is used in vehicles, engines, and products for

which the waiver has been denied, specifically, MY2000 and older motor

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

and nonroad products. As described in the NPRM and E15 partial waiver

decisions, our assessment of the potential emission consequences of E15

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

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

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

Catalyst Study and other relevant test programs, as well as the

Agency's engineering assessment of advances in motor vehicle technology

(primarily control of the air-to-fuel ratio matched with advancements

in catalyst formulations) and materials that have taken place in

response to a series of important exhaust and evaporative emission

requirements since MY2000 and in-use experience with E10. These

requirements include the National Low Emission Vehicle and Tier 2 motor

vehicle emission standards, Supplemental Federal Test Procedure

compliance requirements, in-use durability requirements (required by

the Compliance Assurance Program of 2000), enhanced evaporative

emission standards, and E10 evaporative durability requirements.

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

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

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

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

engineering assessment for these vehicles, engines, and products

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

For motor vehicles and heavy-duty gasoline engines and vehicles, these

concerns include the potential for catalyst deterioration or catalyst

failure, as well as materials compatibility issues that could lead to

extremely elevated exhaust and evaporative emissions. For motorcycles

and nonroad products, the misfueling concerns include the potential for

elevated exhaust and evaporative emissions, as well as the potential

for emissions impacts related to engine failure from overheating. As

motorcycles and nonroad products have not been regulated as long as

motor vehicles, and have much more diverse applications, they have not

benefitted from the same advancements in technology as motor vehicles