III, Class IV and Class V. The engines in the DOE Pilot Study were
in Class I, Class II and Class IV for the pilot study and in Classes
I and IV for the full life study.
---------------------------------------------------------------------------

    Commenters also noted that the DOE Pilot Study itself says that
``DOE's test program could focus only on a small subset of these engine
families.'' AllSAFE also argues that the DOE Pilot Study demonstrates
that every lawn and garden engine tested showed significant increases
in emissions and greater emissions control system deterioration with
increasing ethanol levels.

Furthermore, AllSAFE points out that the DOE Pilot Study demonstrated
higher exhaust temperatures with increasing ethanol levels, which may
adversely impact numerous emission-related components, including
pistons, crankshafts, gaskets, and catalysts (particularly under off-
nominal conditions).
    AllSAFE's submittal contained emission results on the testing of a
Briggs and Stratton 6.0 horsepower Quantum engine (Class I) on E20
(``Briggs and Stratton Study''). AllSAFE points out that the Briggs and
Stratton Study demonstrated that new engine emission testing of the
Quantum engine on E20 had an adverse effect on NOX
emissions. Exhaust emission testing results on the engine showed a
decrease of approximately 32% in HC emissions and an 133% increase in
NOX emissions using E20 when compared to E0, which resulted
in 10.5% increase in HC+NOX emissions. \103\
---------------------------------------------------------------------------

    \103\ HC reduction estimated from graph while NoX and
HC+NOX changes were stated in the report.
---------------------------------------------------------------------------

    Many commenters contend that use of E15 in nonroad products causes
material compatibility concerns and necessitates further investigation
into the impacts of the use of E15 in nonroad engines. Commenters point
to two additional studies not cited in Growth Energy's waiver
application: (1) An Orbital Study; and, (2) the Briggs and Stratton
Study. The Orbital Study is a separate nonroad product study (i.e.:
separate from the Orbital Study on Australian motor vehicles), that
conducted 2,000-hour bench testing with E20 on materials from the fuel
systems of a Mercury 15hp Marine Outboard engine and a Stihl F45R Line
Trimmer (``Orbital Nonroad Products Study''). The Orbital Nonroad
Product Study found that E20 caused severe corrosion, rusting and
pitting of metallic and brass components, such as the carburetor body
and throttle, piston rings, crankshaft seal housing, crankshaft
bearings and surfaces, connecting rod, cylinder liner, throttle blades.
The study also found that E20 caused swelling, distortion and
degradation of the fuel delivery hose, fuel primer bulbs, fuel line
connector, and crankshaft seal. The Orbital Nonroad Products Study
concluded that these problems would likely cause: (1) Oxides that may
dislodge and damage the engine; (2) the loss of intended fuel-air
metering and control, and (3) fuel leakage.
    The Briggs and Stratton Study submitted in Exhibit C of the AllSAFE
comments contains evaluations of the impacts of E20 on EPA-certified
engines through soaking fuel components \104\ and this report was cited
by other commenters. After six months of soaking, the study showed 5-
10% greater swelling and mass gained by gaskets and rubber parts for
parts soaked in E20 compared to E0. The epoxy for the Welsch plug, a
plug placed over the progression holes in the carburetor body,
dissolved in E20 and coated the plug. In a running engine, that could
result in the plug falling out and fuel leaking from the carburetor,
resulting in a potential increase in evaporative emissions. The inlet
needle seats and the fuel cap gaskets swelled, which could also lead to
increases in evaporative emissions. Garden tractor fuel tank caps and
seals ``exhibited extreme swelling'' in E20 versus E0.\105\ AllSAFE
argues that these conclusions corroborate the Orbital Nonroad Products
Study's findings and highlight the need for additional research into
E15's effects on the materials used in SNREs and other nonroad
products.
---------------------------------------------------------------------------

    \104\ The Briggs and Stratton Study stated ``A fuel soak test
was performed on all parts that come into direct contact with the
fuel. These parts include carburetor bodies of zinc and aluminum,
brass fuel metering jets, rubber and fiber gaskets, rubber primer
bulbs, floats, and fuel bowls.'' No engine was specifically
mentioned.
    \105\ It was not clear exactly what parts were used for the fuel
soaking tests. It was stated in the study that a 6.0 HP Quantum
engine was used, specifically ``engine 123K02 0239E1 04061458 was
used for all testing except exhaust emissions.'' However, it was
stated that ``parts'' were soaked, not an engine.
---------------------------------------------------------------------------

    AllSAFE and others note that the DOE Pilot Study found many issues
with SNREs that were not discussed in Growth Energy's waiver
application. For example, commenters noted the following problems from
the DOE Pilot Study: (1) Three Weed Eater blower engines failed, one on
E0 and two on E15; (2) one Weed Eater blower would not idle on E20 and
(3) another Weed Eater blower would not make full power on E20; (4) a
Stihl line trimmer had high idle with E15 and E20 that caused clutch
engagement at idle; and (5) a Briggs and Stratton 3500 kW generator
stalled and experienced loss of power and abrupt stopping of the engine
on E20.
    Commenters also point to the operability problems that arose in the
Briggs and Stratton Study. In the study, a 6.0 HP Quantum engine was
used for temperature, durability and performance, and evaporative
testing. AllSAFE and others note that higher operating temperatures
were observed with increasing ethanol content. The authors say that the
higher temperatures caused material compatibility issues, citing a head
gasket failure after 25 hours of ``very light duty testing.'' \106\ The
RPM stability was observed to decrease for both E10 and E20 over E0,
with the decrease for E20 close to three times larger than for E10. The
stability decrease can lead to harsh audible speed oscillations which
may be deemed unacceptable for many applications which require stable
engine speeds (e.g., generator, lawn equipment, etc.).\107\ Tests on
starting showed a decrease in acceleration using E20 in comparison to
E10 and E0.
---------------------------------------------------------------------------

    \106\ EPA Docket Number: EPA-HQ-OAR-2009-0211-2559.
    \107\ Generator sets need constant speed in order to provide
reliable power for tasks. Lawnmowers require consistent engine speed
in order to maintain constant blade tip speed whose top speed is
governed by a safety standard.
---------------------------------------------------------------------------

    Several commenters argue that Growth Energy does not provide data
concerning the performance of many categories, classes, and families of
nonroad engines on E15, and the test data from the DOE Pilot Study is
not adequate to cover all nonroad applications. Notable data gaps
include information regarding marine engines, snowmobiles, recreational
vehicles, motorcycles, and several classes of small nonroad engines
that were not tested in the DOE Pilot Study. In addition, several
commenters noted, some of the operability issues may pose a significant
safety hazard to operators of small nonroad engines due to higher idle
speeds and inadvertent clutch engagement.

D. EPA Analysis

1. Scope of Nonroad Data to Support a Waiver Decision
    Prior to assessing the technical merits of the information
submitted by Growth Energy to support their waiver application with
respect to nonroad products, it is necessary to first assess the
completeness of the application. Listed above are four major categories
of nonroad engines, and these categories are further broken down into
various classes based on the fundamental differences in engine and
vehicle design within these classes. EPA has promulgated exhaust and
evaporative emission standards for these different categories at
various times and these regulations have resulted in various approaches
to engine calibration and design.\108\ Therefore, to assess the
potential impacts of E15 on nonroad products requires data representing
the cross section of different nonroad engine categories. EPA
highlighted this necessity in discussions with Growth Energy, RFA, DOE,
and other

stakeholders even prior to the receipt of the E15 waiver
application.\109\
---------------------------------------------------------------------------

    \108\ See Tables in 73 FR 59034, 59036 (10/8/08).
    \109\ EPA Docket EPA-HQ-OAR-2009-0211-2559.2, API
Technology Committee Meeting, Chicago, 6/4/08.
---------------------------------------------------------------------------

    The following table summarizes the many potential breakouts of
nonroad engine technologies currently in the in-use fleet. Growth
Energy gave us data in four areas shown below. Even in areas in which
Growth Energy provided data, those data were very limited. Since Growth
Energy has not provided information to broadly assess the nonroad
engine and vehicle sector, since there are important differences in
design between the various classes and categories, and since the Agency
is not aware of other information that would allow us to do so, it is
not possible for the Agency to fully assess the potential impacts of
E15 on the emission performance of nonroad products. In addition, as
discussed below, there are reasons for concern with the use of E15 in
nonroad products, particularly with respect to long-term exhaust and
evaporative emissions durability, and materials compatibility, so the
need for data is all the more important.

                                                           Table V.D-1--Nonroad Engines and Engine Technologies Over the Past 14 Years
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                     Pre-reg: 2-       Pre-reg: 4-       Phase 1: 4-       Phase 1: 2-                         Phase 2: 2-       Phase 2: 4-
            SMALL SI                   stroke       stroke  (ohv/sv)  stroke  (ohv/sv)    stroke w/cat        Phase 2:        stroke w/cat         stroke           Phase 3:      Phase 3: w/cat
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Class I.........................  X...............  X ohv...........  X sv............  -...............  -...............  -...............  X sv **.........  X sv...........  X sv
                                  ................  X SV............  Xohv............  ................  ................  ................  X ohv **........  X ohv..........  ...............
Class II........................  -...............  X sv **.........  X sv............  -...............  -...............  -...............  X ohv...........  X ohv..........  -
                                  ................  X ohv **........  X ohv...........  ................  ................  ................  ................  ...............  ...............
Class III.......................  X...............  -...............  X...............  X...............  -...............  X...............  -...............  -..............  -
Class IV........................  X...............  -...............  X...............  X...............  -...............  X **............  X **............  -..............  -
Class V.........................  X...............  -...............  X...............  X...............  -...............  X...............  -...............  -..............  -
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

                                                                                Phase 2: 4-str
             MARINE                  Pre-reg: 2-      Pre-reg: 2-      Phase 1: 4-     Phase 1: 2 DI     Phase 1: 4-     Phase 1: 4-EFI    closed loop
                                       stroke          stroke IDI         stroke                         stroke Carb                         catalyst
--------------------------------------------------------------------------------------------------------------------------------------------------------
Outboard........................  X...............  X..............  X (few)........  X..............  X..............  X..............  -
PWC.............................  X...............  X..............  -..............  X..............  -..............  X..............  -
SD/I............................  -...............  -..............  X..............  -..............  X..............  X..............  X
--------------------------------------------------------------------------------------------------------------------------------------------------------

                                                                         Phase 1: 4-
          RECREATIONAL               Pre-reg: 2-       Pre-reg: 4-      stroke closed      Phase 1: 4-       Phase 1: 2-       Phase 2: 2-       Phase 3: 2-      Phase 3: 4-
                                       stroke            stroke           crankcase          stroke            stroke            stroke            stroke            stroke
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
NRMC............................  X...............  X...............  X...............  X...............  X*..............  N/A.............  N/A.............  N/A............  ...............
Snow Mobiles....................  X...............  X...............  X...............  X...............  X...............  X...............  X...............  X..............  ...............
ATV.............................  X...............  X...............  X...............  X...............  -...............  N/A.............  N/A.............  N/A............  ...............
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
*NRMC: allows 2-stroke competition bikes.
** Data Provided by Growth Energy on one/two engine families per group.

2. Long-Term Exhaust Emissions (Durability)
    Ethanol contains oxygenates which result in a leaner operating A/F
ratio. Unlike light-duty vehicles, the overwhelming majority of nonroad
engines are ``open loop'' and do not automatically adjust for
oxygenated content of the fuel. Hence they are subject to direct and
continuous effects to changes in combustion characteristics (i.e.,
leaner mixture) of increased ethanol in the fuel which typically result
in hotter combustion and exhaust temperatures during operation. These
changes in combustion result in general increases in NOX
emissions and decreases in HC emissions. This increase in temperature
will vary between engines and engine operating conditions. In addition
to the NOX emission increases that are observed almost
immediately with increased ethanol levels, there is a concern that an
increase in temperature can compromise long-term durability of the
engines resulting in a significant deterioration of all emissions over
time.
    The potential for an increase in operating temperatures to cause
long-term durability issues for engines is shown in the accelerated
full life aging emission results in the DOE Pilot Study\110\. Four new
Class I B&S consumer and four new Class I Honda commercial engines were
aged on non-ethanol and ethanol blends (one engine each on E0, E10, E15
and E20). All engines were tested on non-ethanol fuels when new and at
the end of aging on their respective fuel. The change in emissions on
non-ethanol fuel gives a basis for comparison of the deterioration
effects of aging on various ethanol blend fuels.\111\ For the B&S Class
I engines, it was found that the non-ethanol aged engine leaned over
time with CO decreasing and NOX increasing. For the ethanol
aged engine, the increases in CO along with the increases in HC
illustrate the possibility of valve warpage and valve seat distortion,
or piston/piston ring/engine block distortion due to the increased
combustion temperatures. In these cases the combustion becomes less
efficient, and hence CO and HC emissions increase, due to the leak past

the valves or piston rings. The Honda Class I engine aged on non-
ethanol showed small increases in both HC and CO, however the trend was
clear in the ethanol engines that the HC and CO emissions increased and
NOX decreased in line with increasing amounts of ethanol.
Some of the variability in emission results are due to the fact that
these engines are mechanically governed, single cylinder (high
vibration), carbureted, open loop, air and fuel cooled and hence engine
aging is subject to a number of mechanical and quality factors.
---------------------------------------------------------------------------

    \110\ Effects of long term storage and seasonal use were not
captured in the accelerated aging.
    \111\ DOE Pilot Study contained data from which the following
changes in emissions were calculated. On the B&S consumer engines,
the engine aged on non-ethanol fuel had no change in HC, +76% in
NOX and -47% in CO. The engines aged on E10, E15 and E20
showed changes in HC of +44%, +149%, +99% and NOX changes
of -5%, 0% and 14%, and CO changes of +36%, +109% and +17%,
respectively. The Honda commercial engine showed that the engine
aged on non-ethanol fuel had emission changes of +25% HC,
0%NOX and 14%CO. The engines aged on E10, E15 and E20:
HC: 4%, 42% and 69%, NOX: 11%, -14%, -16% and CO:
+5%,+16%,+24%, respectively.
---------------------------------------------------------------------------

    The DOE Pilot Study cited by Growth Energy assessed the potential
long-term durability emission effects of several SNREs in the <19kW
category that were aged under conditions that were representative of
aging for emission standards (constant dynamometer aging). While the
study was limited and there was considerable variability in the results
across the engines tested, as AllSAFE highlights, the fact that two
Weed Eater blower engines failed on E15, a Stihl line trimmer had high
idle with E15, and other problems were experienced with testing on E20,
suggests the potential for serious durability concerns with E15 in
nonroad products. At a minimum, a comprehensive nonroad test program
would be needed to support Growth Energy's assertions. We know of no
such program underway.
    The engine failures in the DOE Pilot Study are also consistent with
our engineering assessment. The leaner operation and subsequently
hotter burning mixture and exhaust temperatures expose engine
components to operating temperatures which may be beyond design
expectations for a particular engine. Unlike light-duty vehicles which
implement liquid cooling systems (i.e., antifreeze) to control vital
engine component temperatures, most nonroad engines rely on air and
fuel cooling. Proper cooling on air cooled engines depends on
anticipated combustion and exhaust temperatures which are mainly
controlled by the A/F mixture. Depending on the engine category, engine
cooling may be critical to durability and therefore the ability to
continue to operate on E15. Some engines that run too lean for an
extended period of time may also result in engine seizure in which the
metal of the piston, piston rings and engine cylinder expand into each
other due to the increased temperatures and hence cannot function.
    While data on long-term durability on E15 of other nonroad
categories does not currently exist, we believe that many of the
concerns expressed regarding small SI engines may to varying degrees be
indicative of other nonroad categories as well. These concerns include
concerns of open loop carburetion or open loop fuel injection and
enleaned 4-stroke engine running on a fuel with oxygenates where there
used to be richer running 2-stroke or 4-stroke engines.
3. Immediate Exhaust Emission Effects
    In evaluating the emission impacts of a new fuel or fuel additive,
the Agency not only considers potential long-term durability impacts,
as discussed above, but also the existence and magnitude of any
immediate exhaust emission impacts that are evident immediately upon
switching to the new fuel or fuel additive. Growth Energy referred to
two studies for immediate tailpipe emission effects and they include
the DOE Pilot Study and a 1999 study on ``The Effect of High Ethanol
Blends on Emissions from Small Utility Engines''.
    The DOE Pilot Study contained emissions at new engine condition for
two sets of Phase 2 SNRE's. One set was used for the pilot study and
the second set was used for the useful life durability study. The
results showed that emission changes from the use of E15 resulted in
increased NOx emissions and decreased HC and CO emissions. For both
Class I engines the HC and CO emissions decreased and NOx emissions
increased in comparison to E0. The overall change of HC+NOx (the form
of the emissions standard for nonroad engines) for a particular engine
was dependent on whether the NOx increased more than the HC decreased,
but in general it appears that the two changes tended to balance each
other out for the engines and fuels tested.
    Class II engines were examined in a second study \112\ referred to
by Growth Energy. The study conducted emission testing on three MY1994
SNREs (12.5 hp) engines using SAE and EPA procedures and showed that
pre-regulation Class II engines experienced a similar trend with
respect to immediate exhaust emission impacts as Class I engines in the
DOE Pilot Study. In their comments, AllSAFE also pointed to recent
testing described in a Briggs and Stratton Study of exhaust emission
testing on a Quantum engine using E20. It showed a decrease in HC
emissions and a 133% increase in NOx emissions using E20 when compared
to E0, which resulted in 10.5% increase in HC + NOx emissions. While it
was on E20 instead of E15, this data is still helpful in showing that
despite a very large percentage impact on NOx emissions, the overall
immediate emission impact of E15 on the combined HC+NOx emission
standard is likely to be a relatively small one. Nevertheless, since
the available studies do not provide data for other nonroad engine
categories it is unclear how broadly these results can be extrapolated
across other nonroad products. Therefore the number of engines and
applications tested needs to be widened before any conclusions can be
made for all of nonroad products.
---------------------------------------------------------------------------

    \112\ Bresenham, D. and Reisel, J. ``The Effect of High Ethanol
Blends on Emissions from Small Utility Engines,'' SAE 1999-01-3345,
JSAE 9938100, 1999.
---------------------------------------------------------------------------

4. Evaporative Emissions
    Different evaporative emission standards have been established for
the different nonroad engine categories. As shown in Tables V.D.4-1 and
V.D.4-2 below, evaporative emissions standards for nonroad products are
focused on three aspects: (1) Fuel line and fuel tank permeation; (2)
vapor loss through diurnal or running loss conditions where the
volatility of the fuel will be important for compliance; and, (3) the
durability of the nonroad product in achieving these standards over its
full useful life. The test fuel for fuel tank permeation is E10 and the
test fuel for hose permeation is CE10. The test fuel for the diurnal
standards is certification fuel (E0) with a volatility of 9.0 RVP.
These standards came into effect in 2007 for Large SI engines, 2008 for
recreational vehicles and are being phased in from 2009-2015 for Small
SI engines and Marine SI engines. For each of these standards,
permeation requirements are based on the use of a test fuel containing
10 vol% ethanol.

[GRAPHIC] [TIFF OMITTED] TN04NO10.009

[GRAPHIC] [TIFF OMITTED] TN04NO10.010

    Growth Energy did not submit any data that evaluated how the use of
E15 would impact evaporative emissions and evaporative emissions
controls for nonroad products, and instead relied on light-duty motor
vehicle information. The Agency is not aware of any test data to
evaluate these impacts of E15 on nonroad products. However, from an
engineering standpoint, it would appear that the main concern with the
use of E15 in nonroad products for evaporative emissions would be
durability, and these concerns stem from materials compatibility
concerns in the fuel system, as discussed in the next section. For
diurnal emissions compliance, as for light-duty motor vehicles, our
belief is that as long as E15 meets the same volatility as E0
certification fuel (9.0 psi RVP), then its emissions performance should
be comparable. Testing on vehicles discussed in section IV.A.3. has
shown that diurnal emissions are primarily a function of the volatility
of the fuel, not the ethanol content, and there is no reason to suggest
otherwise for nonroad products. However, due to the rudimentary
evaporative emissions controls on most nonroad products, any higher
volatility would lead to higher evaporative emissions, potentially
causing the nonroad products to exceed their standards. In the case of
the permeation related evaporative emissions standards, it is likewise
possible that the designs certified for E10 use may also qualify with
E15. As discussed in section IV.A.3., permeation testing on light-duty
fuel tanks (CRC E77 studies) seems to suggest permeation with E15 may
be comparable to that with E10, assuming the RVP will not increase
between the two fuels. Since nonroad permeation standards already use
E10 as the test fuel, this would suggest that nonroad products would
continue to meet their permeation standards with E15. The only question
is whether the test results on light-duty motor vehicle fuel systems
would be applicable to tanks and hoses used in nonroad products.
---------------------------------------------------------------------------

    \113\ The complete table is available at http://www.epa.gov/
otaq/standards/nonroad/nonroadsi-evap.htm.
---------------------------------------------------------------------------

5. Materials Compatibility
    Materials compatibility is one of the key issues that the Agency
reviews due to the potential for very large exhaust or evaporative
emission impacts of a fuel or fuel additive, not only in the short

term, but especially over the life of the motor vehicle or nonroad
product. Growth Energy argues that the Minnesota Compatibility Study
demonstrates that SNREs should experience no significant problems with
E15. However, as highlighted by commenters, the focus of the Minnesota
Compatibility Study was on the materials used in motor vehicles' fuel
systems and that nonroad engine manufacturers use different elastomers,
polymers, and plastics not investigated in the Minnesota Compatibility
Study. Furthermore, a wide range of materials have been used over the
years by the many different nonroad products manufacturers for the many
different nonroad products currently in use. The study does not claim
to have tested all materials nor provide any means of quantifying the
degree to which the materials tested reflect those in the current
fleet. Growth Energy contends that the DOE Pilot Study showed no
material compatibility issues. However, several commenters note that
the DOE Pilot Study's authors point out that materials compatibility
issues ``were not specifically characterized as part of this study.''
\114\ The Agency's review of the DOE Pilot Study is that the main focus
was to measure emissions changes from the use of various fuels in SNREs
over a test procedure that lasted 125-500 hours (or 10-40 days at 12.5
hours/day). Materials compatibility issues are mostly seen over a
length of time of unused fuel sitting in the fuel tank and in the fuel
system, and this was not a focus of the study. For the Minnesota
Compatibility Study, there was minimal if any applicable information
for the vast range of nonroad products and no information to correlate
the materials tested with those in the in-use fleet of nonroad
products.
---------------------------------------------------------------------------

    \114\ EPA Docket EPA-HQ-OAR-2009-0211-0335: ``Effects
of Intermediate Ethanol blends on Legacy Vehicles and Small Non-Road
Engines, Report 1,'' October 2008, page 3-12, NREL/TP-540-43543 and
ORNL/TM-2008/117.
---------------------------------------------------------------------------

    Due to the unique chemical and physical characteristics of ethanol,
in comparison to gasoline, one must be careful in selecting materials
for use in motor vehicles and nonroad products to ensure long-term
materials compatibility. Otherwise, materials incompatibility can lead
to long-term exhaust and evaporative emission increases that may or may
not be detected in certification and compliance testing, as well as
product operability problems that could lead to product tampering and
premature engine failure.
    Two studies cited by commenters serve to highlight the importance
of materials compatibility with gasoline-ethanol blends: (1) The
Orbital Nonroad Products Study; and (2) the Briggs and Stratton Study.
The Orbital Nonroad Products Study conducted 2,000-hour bench testing
with E20 on materials from the fuel systems of a Mercury 15hp Marine
Outboard engine and a Stihl F45R Line Trimmer. The Orbital Nonroad
Products Study found that E20 caused severe corrosion, rusting and
pitting of metallic and brass components, such as the carburetor body
and throttle, piston rings, crankshaft seal housing, crankshaft
bearings and surfaces, connecting rod, cylinder liner, and throttle
blades. The study also found that E20 caused swelling, distortion and
degradation of the fuel delivery hose, fuel primer bulbs, fuel line
connector, and crankshaft seal. The Orbital Nonroad Products Study
concluded that these problems would likely cause: (1) Oxides that may
dislodge and damage the engine; (2) the loss of intended fuel-air
metering and control; and (3) fuel leakage.
    The Briggs and Stratton Study presented results of a completed
evaluation of the impacts of E20 on EPA-certified engines through
soaking fuel components. After six months of soaking, the study showed
5-10% greater swelling and mass gained by gaskets and rubber parts for
parts soaked in E20 compared to E0. The epoxy for the Welsch plug, a
plug placed over the progression holes in the carburetor body,
dissolved in E20 and coated the plug. In a running engine, that could
result in the plug falling out and fuel leaking from the carburetor,
resulting in a potential increase in evaporative emissions. The inlet
needle seats and the fuel cap gaskets swelled, which could also lead to
increases in evaporative emissions. Garden tractor fuel tank caps and
seals ``exhibited extreme swelling'' in E20 versus E0.\115\
---------------------------------------------------------------------------

    \115\ It was not clear exactly what parts were used for the fuel
soaking tests. It was stated in the study that a 6.0 HP Quantum
engine was used, specifically ``engine 123K02 0239E1 04061458 was
used for all testing except exhaust emissions.'' However, it was
stated that ``parts'' were soaked, not an engine.
---------------------------------------------------------------------------

    Given the available information to suggest a cause for materials
compatibility concerns that could lead to elevated exhaust and
evaporative emissions, we do not believe the information provided by
Growth Energy adequate addresses materials compatibility for E15 use in
nonroad products.
6. Driveability and Operability
    E15 will introduce a leaner A/F ratio to the engine compared to
motor vehicle gasoline in use today. The open-loop fuel systems on the
nonroad engines will not adjust for this and the engines will be
subject to potential immediate and long-term operability and
drivability issues, such as those described in the DOE Pilot
Study.\116\ The concern regarding operability and driveability is that
if the use of E15 resulted in poor operation of nonroad products,
causing such things as misfires, backfires or carburetor malfunctions,
then this would cause short-term and long-term emission increases. In
addition, it would encourage consumers to adjust and/or tamper with
their nonroad products to improve performance. Most nonroad products
that have been designed to our emission standards have been required to
be tamper resistant to protect the emissions performance of the
product. However, this also means that if the nonroad product operates
poorly on E15, it will continue to do so, which may increase emissions
and shorten its life.
---------------------------------------------------------------------------

    \116\ The DOE Study of February 2009 on Small SI engines
includes information in Table 3.5: A Class I consumer engine was
described to lose power at full load on E20 however did run well if
more fuel was put into the engine. A Class IV engine was found to
have 25% higher idle speed due to the fact that the extra oxygen in
the fuel improves combustion and hence speed increases (they do not
have speed governors). A Class IV 2-stroke handheld engine seized on
E20. A Class I commercial engine showed erratic operation at light
loads due to unstable governor.
---------------------------------------------------------------------------

E. Conclusion

    It is the burden of the applicant to demonstrate that any new fuel
or fuel additive that requires a waiver under CAA section 211(f)(4) of
the substantially similar prohibition in CAA section 211(f)(1) will not
cause or contribute to the failure of nonroad engines and nonroad
vehicles to meet their emissions standards over the engines' or
vehicles' full useful life. Growth Energy has not made this
demonstration as Growth Energy has not provided sufficient data and
information to broadly assess the performance of all nonroad products
while using E15. Additionally, based on our own engineering judgment
after review of all available data for nonroad products, we find that
there are emissions-related concerns with the use of E15 in nonroad
products, particularly regarding long-term exhaust and evaporative
emissions (durability) impacts and materials compatibility issues.
Therefore, the Agency has concluded that it cannot grant a waiver for
the use of E15 in nonroad products based on existing data.

VI. Heavy-Duty Gasoline Engines and Vehicles

    Given its limited market, heavy-duty gasoline engines and vehicles
have not been the focus of test programs and efforts to assess the
potential impacts of E15 on such engines and vehicles. From a
historical perspective, the introduction of heavy-duty gasoline engine
and vehicle technology has lagged behind the implementation of similar
technology for light-duty motor vehicles. Similarly, emissions
standards for this sector have lagged behind those of light-duty motor
vehicles, such that current heavy-duty gasoline engine standards remain
comparable, from a technology standpoint, to older light-duty motor
vehicle standards (for example Tier 1 emissions standards).
Consequently, we believe the concerns raised for MY2000 and older motor
vehicles are also applicable to the majority of the in-use fleet of
heavy-duty gasoline engines and vehicles. Additionally, Growth Energy
did not provide any data specifically addressing how heavy-duty
gasoline engines and vehicles' emissions and emissions control systems
would be affected by the use of E15 over the full useful life of these
vehicles and engines. Thus, a waiver is not being granted for these
engines and vehicles.

VII. Highway and Off-Highway Motorcycles

    Growth Energy did not provide any data addressing how motorcycle
emissions and emissions control systems would specifically be affected
by the use of E15 over their full useful life. Like heavy-duty gasoline
engines and vehicles, highway and off-highway motorcycles have not been
the focus of test programs to evaluate the effects on these motorcycles
while using E15. While some newer highway and off-highway motorcycles
incorporate some of the advanced fuel system and emissions control
technologies that are found in passenger cars and light-duty trucks,
such as electronic fuel injection and catalysts, many do not have the
advanced fuel trim control of today's motor vehicles that would allow
them to adjust to the higher oxygen content of E15. More importantly,
older highway and off-highway motorcycles do not have any of these
technologies (i.e., their engines are carbureted and/or they do not
have catalysts) and are therefore more on par with MY2000 and older
motor vehicles and light-duty trucks. Consequently, we believe the
discussion for MY2000 and older motor vehicles applies to highway and
off-highway motorcycles.

VIII. E12 Midlevel Gasoline-Ethanol Blends

    On June 7, 2010, EPA received a letter from Archer Daniels Midland
Company (ADM) to consider, within the context of Growth Energy's E15
waiver application, allowing 12 vol% ethanol in gasoline (E12) for the
introduction into commerce for all motor vehicles.\117\ ADM also
requested that EPA modify its ``substantially similar'' interpretive
rule under CAA section 211(f)(1) and allow higher oxygen content, thus
allowing for introduction of E12 into the marketplace without need for
a waiver. On July 20, 2010, ADM sent a Technical Support Document (TSD)
in support of these requests (``ADM TSD'').\118\ On September 3, 2010
API submitted its response to both ADM documents, arguing that ADM's
analysis contained several critical flaws and suggested that EPA not
approve E12 to be introduced into commerce for all motor vehicles.\119\
On September 17 and 24, 2010, the Alliance and AllSAFE submitted their
own responses with similar arguments.\120\ We are treating all of these
letters as late comments received on the Growth Energy waiver request
application. The following sections address ADM's request and
supporting rationale,\121\ the responses received, and our own analysis
regarding ADM's request.
---------------------------------------------------------------------------

    \117\ Woertz, P.A. Letter to Lisa P. Jackson. 7 June 2010. See
Docket ID EPA-HQ-OAR-2009-0211-13999.
    \118\ Technical Support Document For Archer Daniles Midland
Company's Request for Approval of Ethanol-Gasoline Blends of Up To
And Including 12 Percent Ethanol, July 20, 2010, EPA Docket
EPA-HQ-OAR-2009-0211-13995.
    \119\ CRC Project No. CM-136-09-1B, EPA Docket EPA-HQ-
OAR-2009-0211-14008.
    \120\ See Docket EPA-HQ-OAR-2009-0211-14005.1, p.7 and
Docket  EPA-HQ-OAR-2009-0211-14004.1, p.3.
    \121\ In the ADM TSD, ADM in many cases uses data and other
information either submitted as part of the Growth Energy
application or addressed by EPA above in Section IV for ADM's
assertions regarding E12. For example, ADM uses data and information
from the Growth Energy application to discuss materials
compatibility issues for E12. This data and information has already
been evaluated and addressed by EPA in the appropriate sections
above. This Section VIII will only address new data and information
submitted regarding E12 in the ADM, API, AllSAFE and Alliance
submissions that were not previously submitted elsewhere as part of
Growth Energy's waiver request application.
---------------------------------------------------------------------------

    In the ADM TSD, ADM made several arguments for its requests that
EPA grant a CAA section 211(f)(4) waiver for E12 and that EPA amend its
CAA section 211(f)(1) ``substantially similar'' interpretive rule and
consider E12 ``substantially similar'' to its certification fuels. For
example, in making its argument for granting an E12 waiver, ADM
presented some new data, such as evaluations of fuel survey data
regarding levels of ethanol in gasoline in the national market today.
ADM used their survey results to attempt to evaluate expected emissions
impacts and other related issues from using E12 and to conclude that
the E12 supposedly now in use in the national gasoline market was not
resulting in any motor vehicle problems that adversely affect
emissions. ADM also argued that EPA already effectively allows E12 in
the marketplace through previously issued letters and its models. In
making all of these arguments, it appears that ADM was essentially
attempting to address the four factors discussed in Section III that
EPA analyzes when reviewing a waiver request. In other words, ADM was
apparently making these arguments in an attempt to assert that E12
satisfies these four factors so EPA should grant a waiver for E12. EPA
generally disagrees with ADM's conclusions and addresses each of these
arguments, as well as the comments received on the ADM submission,
below.

A. First Argument: E12 Is Already Used in the Marketplace With No
Reported Problems

1. ADM Argument
    In its request, ADM argued that based on surveys and studies, E12
is already in significant use and there have not been any problems
reported in-use or in the studies. To support their argument, ADM
relied on fuel sample survey data from ``selected years and seasons''
from the seasonal Northrop Grumman motor gasoline surveys.\122\ ADM
suggested that these data provide ``significant and substantial
compelling data demonstrating that ethanol blends approaching E12 are
currently available and are being used in the United States without
incident''.\123\ Additionally, ADM argues that around 30% of samples
reported in select years and seasons from 1990 through 2009 have
denatured ethanol contents greater than 10.5 vol%. ADM specifically
cites the summer 2008 Northrop Grumman motor gasoline survey data as
showing that over 70% of samples had denatured ethanol contents of
higher than 10 vol% ethanol and approximately 30% of samples had 11
vol% or greater denatured ethanol contents.\124\
---------------------------------------------------------------------------

    \122\ See ADM TSD, 5-8.
    \123\ See ADM TSD, 5.
    \124\ See ADM TSD, 5-8.
---------------------------------------------------------------------------

2. API, AllSAFE, and Alliance Comments
    Commenters pointed out that ADM's data is based upon measurements
of

``denatured'' ethanol \125\ and that the Northrop Grumman data is
actually based upon tests which measure actual ethanol content.
Commenters also pointed out that one possible reason for the higher
ethanol contents in ADM's analysis may have been an attempt to take the
volume of the denaturant into account for each fuel sample. API stated
that this may mislead the reader since the pertinent data is actual
ethanol or neat ethanol content and inclusion of an assumed denaturant
was inappropriate in making the case that higher ethanol contents were
routinely in the marketplace.
---------------------------------------------------------------------------

    \125\ By regulation denaturant is required to be added to fuel-
grade ethanol in order that it not be sold for non-fuel purposes
such as the production of beverages.
---------------------------------------------------------------------------

    Commenters also argued that ADM failed to provide any peer-reviewed
test program or published test data that shows that the possible
prevalence of E12 in some areas did not result in substantial
mechanical failures. API and the Alliance also analyzed the Northrop
Grumman data and other datasets and concluded that ADM's conclusions
about the prevalence of E12 in the marketplace were not accurate. In
its submission, AllSAFE aligned itself with these comments.
3. EPA Analysis
    The Agency evaluated the Northrop Grumman data and found that the
actual number of samples that had measured ethanol contents greater
than 10 vol% ethanol and 11 vol% ethanol were very low. For example,
Figure VIII.A.3-1 below shows the distribution of all fuel samples
included in the summer 2008 Northrop Grumman motor gasoline survey that
had greater than 5 vol% ethanol.\126\
---------------------------------------------------------------------------

    \126\ We chose to look at only samples that contained greater
than 5 vol% ethanol because those appear to be the samples included
in ADM's analysis. See ADM TSD, page 8.
[GRAPHIC] [TIFF OMITTED] TN04NO10.011

    Figure VIII.A.3-1 shows that less than 0.5% of samples in the
summer of 2008 had measured ethanol concentrations greater than 11 vol%
and only approximately 2% of samples had measured ethanol
concentrations greater than 10.5 vol%. Due to inherent variability of
the ASTM test procedure used to measure the concentration of ethanol in
gasoline (both within the same testing laboratories and between
different laboratories), the observed distribution in measurements of
ethanol content is precisely what one would expect to see for fuel
samples that actually contained no more than 10 vol% ethanol. Since the
blending equipment used at terminals to blend ethanol and other
additives into gasoline is extremely precise, and our understanding and
experience is that the industry practice is to be as close to 10% as
possible, there is no reason to believe that ethanol levels greater
than 10 vol% have been experienced in-use except in the infrequent
circumstances of blending equipment failure. Recognizing the
variability in the ASTM test method results, the Northrop Grumman data
actually confirms this to be the case. Had ethanol concentrations
actually been at 11 vol% or even 12 vol% in practice, then the
variability associated with test measurements would have resulted in
some samples measuring as high as 13 vol% or 14 vol%. Such levels have
not been seen.
    These results are also similar to results using other data sources.
Figure VIII.A.3.-2 shows the distribution of ethanol content
measurements for the fuel samples containing greater than 5 vol%
ethanol collected by the Alliance from 2007 through 2009. Again, these
data show the expected distribution of measurements around 10 vol% that
one would expect for fuels actually containing 10 vol% ethanol using a
test method with significant variability.

[GRAPHIC] [TIFF OMITTED] TN04NO10.012

    Figure VIII.A.3-3 shows data for summer 2008 from the RFG Survey
Program. Although these data do not represent the nation as a whole,
they are obtained from a robust survey program designed to estimate RFG
fuel parameters. As can be seen, this data shows the same consistent
distribution around 10 vol% as the Northrop Grumman and Alliance data.
[GRAPHIC] [TIFF OMITTED] TN04NO10.013

    As highlighted by API, we believe one possible reason for the
slightly lower results from our analysis and ADM's analysis is that an
attempt may have been made to take the volume of the denaturant into
account for each fuel sample. Northrop Grumman reports ethanol content
as vol% measured with ASTM 5599; however, ADM describes their analysis
in terms of denatured ethanol. Adjusting the ethanol content of samples
to include denaturant would shift the distribution and show a higher
percentage of fuels containing greater than 10 vol% ethanol.\127\
However, the original waiver for E10 allowed for 10 vol% anhydrous
ethanol and testing of fuel samples as mentioned above indicate that
the full 10 vol% ethanol is actually utilized in making E10. We
therefore believe this would be an inappropriate adjustment of ethanol
content that may be misleading since denaturant is typically unleaded
gasoline and therefore would not be expected to have an adverse effect
on motor vehicles and nonroad products.
---------------------------------------------------------------------------

    \127\ Since most ethanol is denatured with hydrocarbon mixtures,
typically gasoline itself, EPA is unaware how the denaturant content
could have been determined if the samples tested were samples of
gasoline-ethanol blends.
---------------------------------------------------------------------------

    Additionally, ADM's analysis of the historical data was not
complete. The data selected from the Northrop Grumman surveys are
limited; for example, the 2005 survey uses only 173 fuel samples and
appeared to ignore other fuel samples in the same survey for the same
year and also used only selected seasons and years for their arguments.
When we look at all the data available, including all the Northrop
Grumman data, the Alliance data, and the RFG survey data, in the
context of the ASTM test method variability, we conclude that it
supports a conclusion that in-use ethanol levels have not exceeded 10
vol%. Otherwise measurements would have been considerably higher.
    Furthermore, even if one were to accept ADM's argument that there
have been isolated geographically or temporally oriented situations
where gasoline-ethanol blends up to and including E12 were in common
use for a period of time, ADM has not provided a method of determining
or measuring whether problems occurred.

B. Second Argument: EPA Effectively Allows Gasoline-Ethanol Blends
Greater Than E10

1. ADM Argument
    ADM also argued that EPA guidance at various times in the late
1980s and 1993 indicated EPA's allowance for gasoline-ethanol blends
containing greater than 10 vol% ethanol. ADM sites three letters from
EPA in support of their argument.\128\ For the first two letters, ADM's
argument was based on EPA-stated oxygen contents for average E10
gasoline-ethanol blends or maximum oxygen contents for E10 blends. With
respect to the third letter, ADM argued that by allowing contaminant
levels of MTBE in gasoline for ethanol blending, EPA was endorsing the
intentional ``stacking'' of 10 vol% ethanol on top of gasoline with up
to 2 vol% MTBE, thus allowing for higher oxygen levels equivalent or
nearly equivalent to E12. ADM then argues that the letters essentially
were an EPA allowance to utilize up to 11.7 vol% ethanol.
---------------------------------------------------------------------------

    \128\ See ADM TSD, 9.
---------------------------------------------------------------------------

2. EPA Analysis
    ADM inappropriately concludes that EPA was approving ethanol
content above 10 vol% in the first two letters. These two letters
merely stated various oxygen weight contents as estimates of the weight
percent of oxygen in a 10 vol% gasoline-ethanol blend, depending upon
the density of the gasoline into which the ethanol was added.\129\
Neither EPA letter states, nor was there any intention conveyed, that
it was legal to blend ethanol above 10 vol% into unleaded gasoline.
---------------------------------------------------------------------------

    \129\ Gasoline densities typically vary seasonally and
geographically to account for varying performance requirements such
as variations in requirements for cold and hot weather or high-
altitude regions. The oxygen content of 10 vol% ethanol in gasoline
varies as the density of the gasoline into which it is blended
varies. For example, when 10 vol% ethanol is added to a relatively
low-density winter gasoline, the oxygen content from the ethanol
will be relatively heavier than when the same ethanol is added to a
heavier or higher density summertime fuel.
---------------------------------------------------------------------------

    In the third letter, EPA had recognized how ubiquitous MTBE had
become in the fungible gasoline distribution system, including in
pipelines and terminals. The allowance for very small amounts of MTBE
in gasoline to be blended with ethanol (so-called ``stacking'') was
allowed to address the ubiquitous presence of MTBE in some fungible
systems at that time, making it a low-level contaminant for gasoline
used in E10. Typically the MTBE was in trace amounts in gasoline and
was not close to 2 vol%. The letter recognized this as a contaminant so
that it would not be unlawful to add up to 10 vol% ethanol into the
base gasoline. Refiners were not permitted to intentionally produce a
gasoline using 2 vol% MTBE and 10 vol% ethanol. EPA has not stated that
it is permissible to utilize over 10 vol% ethanol under the original
ethanol waiver and the data discussed above shows that, in practice, it
is only rarely (and impermissibly) used above 10 vol%.\130\
---------------------------------------------------------------------------

    \130\ Although very small amounts of oxygen were added when
trace contaminant amounts of MTBE were allowed when such gasoline
had been inadvertently added to 10 vol% ethanol, MTBE would, in any
event, have different effects on vehicles/engines in that it is a
less polar molecule resulting in different impacts regarding
materials compatibility.
---------------------------------------------------------------------------

C. Third Argument: EPA's Models Allow Greater Than 10 Vol% Ethanol

1. ADM Argument
    ADM further argued that E12 is implicitly allowed by virtue of the
oxygen limits allowed in the Complex Model. ADM argued that since the
Complex Model \131\ provides valid emissions results for a fuel with up
to 4% oxygen by weight (wt%), and E12 is ``close'' to this weight
percent limit since it represents 4.2 wt% to 4.4 wt% in gasoline, EPA,
through this model, has effectively already allowed use of E12.
---------------------------------------------------------------------------

    \131\ The ``Complex Model'' is a regulatory model used to
predict the emissions effects of various gasoline properties,
including oxygen content.
---------------------------------------------------------------------------

2. API and Alliance Comments
    API pointed out that the 4 wt% oxygen limit was meant as a range
limit, taking into account the variability of densities that exist in
gasoline across the nation. API states that ``ADM * * * twists the
logic stated by EPA in 1994 for increasing the high end of the valid
range for fuel oxygen content to 4.0 wt% in the RFG Complex Model. ADM
asserts that this action by EPA meant that it had `already authorized'
the use of E11.7 vol% gasoline-ethanol blends. This interpretation
confuses the issue of weight percent oxygen in the final gasoline-
ethanol blend versus the volume percentage of ethanol added to the
fuel. ADM acknowledges that the density of the base hydrocarbon blend
stock (BOB) is critically important in the weight percent calculation,
but then totally ignores it. To translate from 4.0 wt% oxygen to 11.7
vol%, ADM had to have made an assumption regarding the BOB density, but
it fails to provide any information as to the nature and/or basis for
it.'' \132\
---------------------------------------------------------------------------

    \132\ See API Comment, Docket EPA-HQ-OAR-2009-0211-
14000.1, 2.
---------------------------------------------------------------------------

    API goes on to state that ``EPA's 1994 ruling did not `authorize'
the use of E11.7, it simply recognized the range of BOB densities that
exist in commerce and allowed for the resulting wt% oxygen that might
be observed with E10. In fact, a careful reading of the 1994 regulatory
text reveals that there is not one shred of evidence that even hints at
the possible consideration (in 1994) of

gasoline-ethanol blends containing greater than 10 vol%.'' The Alliance
specifically aligned itself with the comments on this issue from API.
3. EPA Analysis
    We do not agree with ADM's argument. The 4 wt% oxygen limit in the
Complex Model was meant as a range limit on the weight of oxygen in the
gasoline-ethanol blend, taking into account the variability of
densities that exist in gasoline across the nation. It did not change
the 10 vol% limit for ethanol use in gasoline. It recognized that the
same volume percent of ethanol may lead to different weight percents of
oxygen in the gasoline-ethanol blend, based on the density of the
gasoline. The Complex Model is designed to allow a valid emissions
projection for purposes of the Reformulated Gasoline program for the
full range of ethanol and other blends of fuels that lawfully could be
produced. It did not change any of the requirements that fuels
otherwise had to meet to be a lawful fuel. Specifically, it did not
change the requirement that gasoline-ethanol blends could only be
lawfully produced at no higher than 10 vol% ethanol. The range of the
Complex Model would then potentially cover the range of wt% oxygen that
could occur for a finished gasoline-ethanol blend that had no more than
10 vol% ethanol.

D. Fourth Argument: ADM's Argument for an E12 Waiver

1. ADM Argument
    ADM reiterated its support of the Growth Energy request and argued
that E12 should be considered under the Growth Energy waiver
application and that a waiver should be granted for E12. The primary
basis of ADM's argument relied on studies and materials that had
already been submitted under the Growth Energy waiver request
application.
    ADM provided reference to a number of engineering papers which
noted the similarity in effects on elastomers and plastics for E12 when
compared to E10. ADM also made many arguments which were essentially
the same as the arguments made for the Growth Energy application
regarding exhaust and evaporative emissions effects, materials
compatibility and driveability/operability on motor vehicles and small
engines. These studies, and the arguments, essentially mirrored
arguments already considered in the context of the Growth Energy
application discussed above.
    ADM also utilized the survey data it had presented to attempt to
make conclusions regarding the emissions effects of E12. For example,
ADM tried using the Complex Model to predict emissions for E12 based
upon changes in properties if 12 vol% ethanol was added to gasoline.
2. API, AllSAFE and Alliance Comments
    API rejected the ADM arguments. API stated that ADM's arguments
were erroneous because the studies cited were misinterpreted, already
presented in the Growth Energy application, or based upon flawed survey
data. API also pointed out that the Complex Model, used for predicting
emissions, is based only upon 1990 technology motor vehicles and that
ADM's emissions predictions made assumptions about fuel composition
after the addition of 12 vol% ethanol that were not supported by any
analysis. AllSAFE also pointed out that the ADM TSD attempted to
extrapolate the effects of E12 based on the effects of lower levels of
ethanol content found in gasoline-ethanol blends, and argued that this
is not an adequate substitute for the actual testing of E12.
3. EPA response
    To address ADM's arguments, we refer to our discussion of immediate
and long-term (durability) exhaust and evaporative emissions impacts,
materials compatibility and driveability found in Section IV regarding
the Growth Energy waiver application. EPA's analysis above regarding
the Growth Energy waiver request application covers the range of
gasoline-ethanol blends that include blends above 10 vol% and no more
than 15 vol% ethanol. Additionally, we note that ADM's analysis of
survey data is flawed in that EPA's analysis indicates that there is no
evidence of E12 in the marketplace today. ADM also does not present any
process by which any effects of E12 in the marketplace could be
evaluated. EPA agrees with API's comments regarding the use of the
Complex Model to evaluate projected emissions changes; such use is
inappropriate for a waiver decision. ADM's arguments are based upon
flawed use of the survey data, inappropriately used models, issues and
data already discussed within the context of the Growth Energy
application, interpolation of data and effects from studies that did
not specifically investigate the effects of E12, or studies that
included insufficient data to make the conclusions ADM stated.
Furthermore, many of ADM's arguments involving interpolation or
comparison of data compared E12 to E10 where the appropriate comparison
for meeting the criteria of a waiver would be appropriately made
between E12 and E0. Most importantly, the data presented by ADM did not
present any data on which a conclusion regarding the long-term
emissions effects of E12 could be based. ADM provides no additional
information on E12 that would change our evaluation regarding a waiver
for gasoline-ethanol blends over 10 vol%.
    Thus, EPA concludes, after review of the information provided by
ADM, and based on the data received regarding the E15 waiver request,
that there is insufficient basis to support the introduction into
commerce of E12 for use in all motor vehicles and nonroad products.
Specifically, our analysis for gasoline-ethanol blends up to 15 vol%
ethanol has concluded that there is insufficient data or evidence to
grant a waiver beyond MY2007 and newer light-duty motor vehicles. ADM
did not provide any data regarding motor vehicle exhaust or evaporative
emissions using a 12 vol% gasoline-ethanol blended fuel. Also, EPA is
not aware of any test data using 12 vol% gasoline-ethanol blends that
would support this request beyond MY2007 and newer light-duty motor
vehicles. EPA has determined that there is an inadequate demonstration
for an E12 waiver application for MY2000 and older motor vehicles,
heavy-duty gasoline engines and vehicles, highway and off-highway
motorcycles and for all nonroad products. EPA is deferring a decision
for MY2001-2006 motor vehicles.

E. Fifth Argument: E12 is ``Substantially Similar'' to Certification
Fuel

1. ADM Argument
    ADM's final argument is that since E10 is used as an aging fuel for
evaporative emissions service accumulation purposes in EPA's emissions
certification regulations, E10 is a ``certification fuel'' for purposes
of the CAA section 211(f)(1) ``substantially similar'' determination.
ADM further asserts that E12 is ``substantially similar'' to E10 based
on its chemical and physical properties, so EPA should revise its
``substantially similar'' interpretive rule and increase the
``substantially similar'' oxygen limit from 2.7% by weight to 4.25% by
weight.
2. API, AllSAFE and Alliance Comments
    The Alliance commented that E10 is only used for certification
purposes

regarding the aging of motor vehicles for evaporative emissions
certification; E10 is not used in any of the actual emissions
certification tests. The Alliance points out that ``ADM bases this
argument on the fact that EPA requires manufacturers to use the highest
gasoline-ethanol blend for evaporative system durability aging in the
certification process. Unfortunately, ADM either misunderstands or has
misrepresented the vehicle certification process. Importantly, this
particular requirement applies only to evaporative emissions system
aging; it has no connection to exhaust emission testing.'' The Alliance
concludes that ``ADM's assertion that this fuel qualifies as a
certification fuel for the entire fleet is simply untrue.'' \133\
AllSAFE's comments essentially agree with this interpretation, noting
that ``consistent with the focus of [section] 211(f)(4) on emissions
control devices, Congress must necessarily have intended certification
fuels to refer to emissions certification fuels, not mileage
accumulation fuels.'' API also agreed that the ADM submission did not
support a conclusion that E12 is substantially similar to certification
fuel and pointed out that ADM presents no emissions data on E12.
---------------------------------------------------------------------------

    \133\ See Alliance Comments Docket EPA-HQ-OAR-2009-
0211-14004.1, 9-10.
---------------------------------------------------------------------------

3. EPA Response
    In evaluating ADM's request to revise the definition of
``substantially similar,'' EPA considered all certification fuels used
for the broad range of motor vehicle model years, not just the current
model years, and considered both the exhaust and the evaporative
emissions certification procedures. This is because the ``substantially
similar'' definition affects roughly 300 million motor vehicles which
represent thousands of different designs by a wide range of
manufacturers from around the world. These motor vehicles are in a
transportation system and marketplace that affects the entire country.
Based on these considerations, EPA does not believe that E10 qualifies
as a ``certification fuel'' in the manner asserted by ADM such that it
would be appropriate to compare E12 to E10 in determining whether E12
is ``substantially similar'' for a CAA section 211(f)(1) determination.
E10 is only used in one part of the certification process for certain
newer motor vehicles. Specifically, E10 is only used in the mileage-
accumulation or aging portion of certification for evaporative
emissions for Tier 2 vehicles. However, all exhaust and evaporative
emissions testing for certification purposes is conducted using an E0
fuel. Thus, E10 plays a limited role in the certification process for a
limited subset of motor vehicles. In contrast, E0 has been and remains
the primary fuel used in certification since it is the actual test fuel
for all of the actual emissions standards testing required for
certification. Thus, it would be inappropriate to consider E10 a
``certification fuel'' for comparison with E12 in making a
``substantially similar'' determination as requested by ADM. The proper
comparison is between E12 and E0.
    In making a ``substantially similar'' determination, EPA generally
evaluates the physical and chemical composition of the new fuel or fuel
additive against our certification fuels to determine the emissions
effects of that new fuel or fuel additive. Here, we find that E12 is
not ``substantially similar'' physically or chemically to E0. As is
noted in today's Decision, E12 has a substantially higher oxygen
content than E0, and the polarity of the ethanol molecule results in
various properties different from those of E0, such as differences in
polarity and volatility. Such differences may affect emissions and the
durability of motor vehicle components. Consistent with our prior
revisions to the ``substantially similar'' definition, and prior
``substantially similar'' determinations, we would also consider test
data on the emissions effects of E12, as with a waiver request, in
making this determination.\134\ For E12, we would evaluate whether the
higher oxygen content would produce similar emission results as E0
under the certification process. ADM provided no such data and we are
not aware of any test data using 12 vol% ethanol blends. Based on the
physical and chemical differences between E12 and E0, and the absence
of a showing of the emissions impacts when using E12 versus using E0,
EPA finds no basis for revising the ``substantially similar''
definition to include E12.
---------------------------------------------------------------------------

    \134\ For example, when EPA revised its substantially similar
definition in 1991 under which the allowable oxygen content was
raised to 2.7% by weight for certain alcohol and ether oxygenates
(56 FR 5352, February 11, 1991), there was a long history of use and
a large database to draw from regarding the use of oxygenates at
these levels. As discussed above, EPA does not believe the data
shows that E12 has, in fact, been routinely used in the marketplace
and independent testing on E12 is not available.
---------------------------------------------------------------------------

F. EPA Conclusion

    For MY2007 and newer light-duty motor vehicles, EPA has concluded
that there is an adequate demonstration for an E12 partial and
conditional waiver, within the context of the Growth Energy E15 waiver
request application, as discussed above in Section IV. For MY2000 and
older motor vehicles, heavy-duty gasoline engines and vehicles, highway
and off-highway motorcycles, and all nonroad products, EPA has
concluded that there is insufficient evidence to grant a waiver. EPA is
deferring a decision for MY2001-2006 light-duty motor vehicles.
    EPA has also concluded that ADM has not made a demonstration that
E12 is ``substantially similar'' to certification fuels, and EPA
declines to amend its ``substantially similar'' interpretive rule to
include E12.

IX. Legal Issues Arising in This Partial Waiver Decision

A. Partial Waiver and Conditions of E15 Use

    As stated in EPA's notice for comment on the E15 waiver request, a
possible outcome after the Agency reviewed the record of scientific and
technical information may be an indication that a fuel up to E15 could
meet the criteria for a waiver for some vehicles and engines but not
for others. In this context, the Agency noted that one interpretation
of section 211(f)(4) is that the waiver request could only be approved
for that subset of vehicles or engines for which testing supports its
use. We also stated that such a partial waiver for use of E15 may be
appropriate if adequate measures or conditions could be implemented to
ensure its proper use. EPA invited comment on the legal aspects
regarding a waiver that restricted the use of E15 to a subset of
vehicles or engines, and the potential ability to impose conditions on
such a waiver.
    We received a number of comments expressing opposition to a partial
waiver based on a lack of legal authority under section 211(f)(4). Some
of those same commenters, as well as others, also stated that EPA
should first conduct and finalize a rulemaking under section 211(c) to
mitigate the potential for misfueling and limit the types of mobile
sources for which E15 may be used.
    Many commenters pointed to the language in section 211(f)(4) and
argued that the use of the word ``any'' in the phrase ``will not cause
or contribute to a failure of any emission control device or system
(over the useful life of the motor vehicle, motor vehicle engine,
nonroad engine or nonroad vehicle in which such device or system is
used) to achieve compliance by the vehicle or engine,'' means that if
the waiver applicant has not established that the

use of E15 meets the waiver criteria for any type of motor vehicle or
nonroad product, then the waiver must be denied. Noting the statutory
provision's use of the word ``any,'' commenters asserted that should
E15 cause or contribute to a failure of any emission control device to
achieve compliance under any single circumstance, then the waiver
applicant has not met the waiver criteria and the waiver must be denied
in its entirety. Another commenter suggested that the word ``any''
modifies ``emission control device'' and that if an emission control
device for any of the types of vehicles in the parenthetical language
in section 211(f)(4) is implicated, then the waiver must be denied.
Still another commenter suggested that ``In amending section 211(f)(4)
in 2007 with enactment of the Energy Independence and Security Act,
Congress expanded the types of devices for which an applicant must
establish that a fuel or fuel additive will not cause or contribute to
a failure while retaining the prohibition of causing or contributing to
the failure of `any' device. With the expansion of section 211(f)(4),
EPA is directed to only approve a waiver if all nonroad and on-road
vehicles and engines would not be adversely affected.'' Commenters
asserted that the provision effectively required that there should be a
``general purpose'' fuel. The commenters noted that EPA would
contradict this direction if it failed to address impacts on any
portion of the vehicles or engines. Essentially, the implication of all
of these assertions is that EPA can only grant a waiver if all emission
control devices in all types of mobile sources listed in the statute
will not be adversely impacted by E15.
    We also received several comments suggesting that if EPA desires to
grant a partial waiver, it must first proceed under section 211(c) with
a separate and full rulemaking to analyze the costs, benefits,
necessary lead time, and the technological feasibility of a partial
waiver. The commenters stated that this rulemaking should also include
an analysis of the partial prohibition and controls on the use of E15
and include detailed regulatory requirements to ensure adequate control
measures and to mitigate misfueling with E15. Commenters stated that
the inclusion in section 211(f)(4) of 270 days by which EPA must act
does not allow enough time to address all the necessary marketing and
other issues and thus Congress could not have envisioned a partial
waiver.
    Growth Energy and ACE stated that the Agency has the authority to
grant a partial waiver or that EPA's authority for a partial waiver is
a permissible interpretation of CAA authority, but that the evidence
suggests a waiver for all vehicles and engines on the road today is
appropriate.
    We also received comment noting that the prohibition in section
211(f)(1) only applies to the use of any fuel or fuel additive in
light-duty motor vehicles, indicating that the grant of the waiver of
this prohibition under section 211(f)(4) is not dependent on findings
with respect to nonroad products. The commenter further noted that
although EPA has the authority and discretion to look at the effect of
a fuel or fuel additive on nonroad products (in the context of
examining impacts on motor vehicles), nothing in the statute or
legislative history indicates that the amendment to section 211(f)(4)
sought to limit EPA's discretion for issuing a waiver for motor
vehicles. In light of Congress' decision in the Energy Independence and
Security Act of 2007 to substantially increase the Renewable Fuel
Standard Program's volume mandates, this commenter suggests that
reading the word ``any'' in section 211(f)(4) as amended by the 2007
Energy Act to apply to anything more than any emission control systems
on the subset of motor vehicles would be at odds with congressional
intent.
    Regarding EPA's authority to impose conditions on a waiver, we
received comment stating that EPA has the authority to grant waivers
subject to a broad range of conditions that ensure that the fuel or
fuel additive will not cause or contribute to the failure of any
emission control device or system. One commenter pointed to four of the
eleven waivers EPA has issued since 1977 that have placed conditions on
a waiver.\135\ In EPA's first waiver decision in 1978, the Agency
discussed its authority to grant conditional waivers, noting that it
may grant a waiver ``conditioned on time or other limitations,'' so
long as ``the requirements of section 211(f)(4) are met.'' \136\ This
commenter also points to the legislative history of section 211(f)(4)
which makes clear that EPA has authority to grant conditional waivers.
The 1977 Senate Report regarding section 211(f)(4) states: ``The
Administrator's waiver may be under such conditions, or in regard to
such concentrations, as he deems appropriate consistent with the intent
of this section.'' Senate Report No. 95-125, 95th Congress, 1st Session
91 (1977), pg 91.
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    \135\ See Sun Petroleum Products Co.; Conditional Grant of
Application for Fuel Waiver for 0-5.5% methanol/TBA, 44 FR 37,074
(June 25, 1979); E.I.DuPont de Nemours & Co.; Conditional Grant of
Application for Fuel Waiver for 5% methanol/2% cosolvent alcohols,
specified corrosion inhibitor, Decision Document, 51 FR 39,800 (Oct.
31, 1986); Texas Methanol Corp.; Conditional Grant of Application
for Fuel Waiver for Octamix (5% methanol, 2.5% cosolvent alcohols,
specified corrosion inhibitor), Decision Document, 53 FR 33,846
(Sept. 1, 1988); Sun Refining and Marketing Co.; Conditional Grant
of Application for Fuel Waiver for 15% MTBE, Decision Document, 53
FR 33,846 (Sept. 1, 1988). These conditions have taken various
forms, from restrictions on the chemical composition and additive
concentration of the waiver fuel and requirements to meet ASTM and
seasonal volatility standards, to specific testing protocols and
mandates that a fuel manufacturer take ``all reasonable
precautions'' to guard against unauthorized uses of the waiver fuel.
    \136\ See Ethyl Corp., Denial of Application for Fuel Waiver for
MMT (1/16 and 1/32 gpg Mn), 43 FR 41,424 (Sept. 18, 1978).
---------------------------------------------------------------------------

    The issue before EPA is whether it is reasonable to interpret
section 211(f)(4) as authorizing EPA to grant a partial waiver under
appropriate conditions, as in today's decision. If Congress spoke
directly to the issue and clearly intended to not allow such a partial
waiver, then EPA could not do so. However, if Congress did not indicate
a precise intention on this issue, and we believe that section
211(f)(4) is ambiguous in this regard, then a partial waiver with
appropriate conditions would be authorized if it is a reasonable
interpretation. EPA has considered the text and structure of this
provision, as well as the companion prohibition in section 211(f)(1),
and believes it is a reasonable to interpret section 211(f)(4) as
providing EPA with discretion to issue this partial waiver with
appropriate conditions.
    It is important to put section 211(f)(4) in its statutory context.
The prohibition in section 211(f)(1) and the waiver provision in
section 211(f)(4) should be seen as parallel and complementary
provisions. Together they provide two alternative paths for entry into
commerce of fuels and fuels additives. The section 211(f)(1)
prohibition allows fuels or fuel additives to be introduced into
commerce as long as they are substantially similar to fuel used to
certify compliance with emissions standards, and the section 211(f)(4)
waiver provision allows fuels or additives to be introduced into
commerce if they will not cause or contribute to motor vehicles and
nonroad products to fail to meet their applicable emissions standards.
EPA's authority to issue a waiver is coextensive with the scope of the
prohibition--whatever is prohibited can also be the subject of a waiver
if the criteria for granting a waiver are met. In addition, the
criteria for each provision have similar goals. They are aimed at
providing flexibility to the fuel and fuel additive industry by
allowing a variety

of fuels and fuel additives into commerce, without limiting fuels and
additives to those products that are identical to those used in the
emissions certification process. This flexibility is balanced by the
goal of limiting the potential reduction in emissions benefits from the
emissions standards, even if some may occur because a fuel or fuel
additive is not identical to certification fuel or it leads to some
emissions increase but not a violation of the standards. Together,
these are indications that these provisions are intended to be parallel
and complementary provisions.
    The section 211(f)(1) prohibition has evolved over time. Initially
it was adopted in the 1977 amendments of the Act, and was much more
limited in nature. It applied only to fuels or fuel additives for
general use, and was also limited to fuels or fuel additives for use in
light-duty motor vehicles. EPA interpreted this as applying to bulk
fuels or fuel additives for use in unleaded gasoline. The prohibition
did not apply to other gasoline, or to diesel fuels or alternative
fuels, or to fuel additives that were not for bulk use. It was thus
relevant only to the subset of motor vehicles designed to be operated
on unleaded gasoline.
    In 1990 Congress amended the prohibition and broadened it. It now
applies to ``any fuel or fuel additive for use by any person in motor
vehicles manufactured after model year 1974 which is not substantially
similar to any fuel or fuel additive utilized in the certification of
any model year 1975, or subsequent model year, vehicle or engine.''
This extended the scope of the prohibition to apply to all gasoline, to
diesel fuel, and to other fuels such as E85. However, the concept of
applying this prohibition based on the relevant subset of vehicles
continues. For example, a diesel fuel that is introduced into commerce
for diesel vehicles does not need to be substantially similar to
gasoline fuel or other fuels intended for non-diesel vehicles. This is
so even though Congress used the phrase ``substantially similar to any
fuel or fuel additive utilized in the certification of any * * *
vehicles or engine'' (emphasis supplied). Clearly Congress did not
intend the use of the term ``any'' in the prohibition to always mean
all motor vehicles or 100% of the motor vehicle fleet. Diesel fuel does
not need to be substantially similar to the fuel used in the
certification of gasoline vehicles, and E85 does not need to be
substantially similar to fuel used in the certification of diesel
vehicles. For example, manufacturers who want to introduce E85 fuel or
fuel additives for E85 look to the certification fuel that was used for
the subset of vehicles that were certified for use on E85.
    In some limited cases, EPA has approved a fuel additive as
substantially similar even when it is introduced into commerce for use
in just one part of a single vehicle manufacturer's product line. For
example, where a fuel additive is considered part of the emissions
control system for a vehicle model, and is certified that way by the
vehicle manufacturer, then it is not a violation of the substantially
similar prohibition for manufacturers of the fuel additive to introduce
it into commerce for use in just that very small subset of vehicles as
long as it is substantially similar to the fuel additive used in the
certification of that vehicle model.\137\ In all of these cases, broad
to narrow subsets of motor vehicles can be considered when deciding
whether the introduction of a fuel or fuel additive for use by that
subset of motor vehicles is in compliance with the prohibition.
---------------------------------------------------------------------------

    \137\ See 54 FR 4834 (November 22, 1989).
---------------------------------------------------------------------------

    EPA has in fact applied this construct of this provision in all of
its past waiver decisions. EPA has previously said that it is virtually
impossible for an applicant to demonstrate that a new fuel or fuel
additive does not cause or contribute to any vehicle or engine failing
to meet its emissions standards. Instead, EPA and the courts allow
applicants to satisfy this statutory provision through technical
conclusions based on appropriately designed test programs and properly
reasoned engineering judgment.\138\ For example, the sample size in
these test programs does not include all motor vehicles in the current
fleet; the sample size is comprised of a statistically significant
sample of motor vehicles that, once tested, will enable the applicant
to extrapolate its findings and make its demonstration. EPA believes
that this practice of focusing on a relatively small but representative
subset of motor vehicles does not violate the statutory use of the word
``any'' in this provision.
---------------------------------------------------------------------------

    \138\ See 44 FR 10530 (February 21, 1979); Motor Vehicle Mfrs.
Ass'n. et. al. v. EPA, 768 F.2d 385 (DC Cir. 1985).
---------------------------------------------------------------------------

    Since the waiver and the substantially similar provisions are
parallel and complementary provisions, this clearly raises the question
of whether a waiver can also be based on a subset of motor vehicles
meeting the criteria for a waiver. EPA believes the text and
construction of section 211(f)(4) supports this interpretation.
    First, the term ``waive'' as used in section 211(f)(4) is not
modified in any way. Normally one would read this provision as a
general grant of waiver authority, encompassing both partial and total
waivers, as long as the waiver criteria are met. Second, the waiver
criteria, like section 211(f)(1), have evolved over time. In 1977, the
criteria were phrased as providing for a waiver when the fuel or fuel
additive ``will not cause or contribute to a failure of any emission
control device or system (over the useful life of any vehicle in which
such device or system is used) to achieve compliance by the vehicle
with the emission standards to which it has been certified.'' This was
not modified in the 1990 amendments. In EISA 2007, Congress amended the
waiver criteria, providing for a waiver when the fuel or fuel additive
will not ``cause or contribute to a failure of any emission control
device or system (over the useful life of the motor vehicle, motor
vehicle engine, nonroad engine or nonroad vehicle in which such device
or system is used) to achieve compliance by the vehicle or engine with
the emission standards to which it has been certified.'' Congress uses
the term ``any'' in section 211(f)(4), as it does in several places in
section 211(f)(1). One use of the term ``any'' was deleted in the 2007
amendments, when the parenthetical was broadened to include
consideration of nonroad engines and nonroad vehicles as well as motor
vehicles. The term ``any,'' however, has always been paired with the
consistent use of the singular when referring to vehicles and emissions
control systems--``the vehicle'' and the emissions standards to which
``it'' is certified, and the ``vehicle in which such device or system
is used.'' Certainly Congress did not state that the applicant has to
demonstrate that the fuel or fuel additive would not cause any devices
or control systems, over the useful lives of the motor vehicles or
nonroad products in which they are used, to fail to achieve the
emissions standards to which they are certified. If Congress had stated
that, then it would be clear, as one commenter suggests, that EPA
should only grant a waiver if all emission control devices in all the
types of mobile sources listed would not be impacted by the fuel. But
Congress did not state that.\139\
---------------------------------------------------------------------------

    \139\ New York v. EPA, 443 F.3d 880, (DC Cir. 2006) concerned
the use of the word ``any'' in a different provision in the Clean
Air Act and does not lead to any different conclusion here. The
Court found that the statutory language, context, and legislative
intent of that provision required an expansive meaning of the phrase
``any physical change'' in the definition of ``modification'' in CAA
section 111(a)(4). EPA is also applying the term ``any'' in an
expansive manner, but in the context of a subset of motor vehicles.
This takes into account the context, text, and purposes of both
section 211(f)(1) and (f)(4), which, as discussed above, envisions
use of such subsets of vehicles.

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

    Several aspects of section 211(f) thus support the reasonableness
of EPA's interpretation. The prohibition and the waiver provisions are
properly seen as parallel and complementary, and the prohibition
properly can be evaluated in terms of appropriate subsets of motor
vehicles, notwithstanding the use of the term ``any'' to modify several
parts of the prohibition. This clearly raises the concept of also
applying the waiver criteria to appropriate subsets of motor vehicles.
``Waive'' is reasonably seen as a broad term that generally encompasses
a total and a partial waiver, as well as the discretion to impose
appropriate conditions. The criteria for a waiver also refer to ``any''
but the entire provision does not provide a clear indication that
Congress intended to preclude consideration of subsets of motor
vehicles when considering an application for a waiver. Finally, a
partial waiver gives full meaning to all of the provisions at issue.
    For example, in this case, granting a partial waiver means that E15
can be introduced into commerce for use in a subset of motor vehicles,
MY2007 and newer light-duty motor vehicles, and only for use in those
motor vehicles. For those motor vehicles, EPA is not making a finding
of it being substantially similar, but E15 has been demonstrated to not
cause or contribute to these motor vehicles exceeding their applicable
emissions standards. It will also not cause any other motor vehicles or
any other on or off-road vehicles or engines to exceed their emissions
standards since it may not be introduced into commerce for use in any
other motor vehicles or any other vehicles or engines. Thus, under a
partial waiver, as the commenter suggested, all emission control
devices in all the types of mobile sources listed will not be adversely
impacted by the fuel. It can only be introduced into commerce for those
vehicles and engines where it has been shown not to cause emissions
problems; for other types of mobile sources, it cannot be introduced
into commerce for use in such vehicles and engines. In concept,
therefore, the combination of this partial waiver, with appropriate
conditions, and partial retention of the substantially similar
prohibition, has the same effect as when the criteria for a total
waiver has been met--the fuel or fuel additive will only be introduced
into commerce for use in a manner that will not cause violations across
the fleet of motor vehicles and nonroad products. It can only be
introduced into commerce for use in vehicles and engines where it has
been shown not to cause violations of the emissions standards, and may
not be introduced into commerce for use in other vehicles or engines.
    EPA recognizes that a partial waiver raises implementation issues
regarding how to ensure that a fuel or fuel additive is only introduced
into commerce for use in the specified subset of motor vehicles. The
discretion to grant a partial waiver includes the authority and
responsibility for determining and imposing reasonable conditions that
will allow for effective implementation of a partial waiver. In this
case, EPA has conditioned the waiver on various actions that the fuel
or fuel additive manufacturer must take. The actions are all designed
to help ensure that E15 is only used by the MY2007 and later motor
vehicles specified by the waiver. If a fuel or fuel additive
manufacturer does not comply with the conditions, then EPA will
consider their fuel or fuel additive as having been introduced into
commerce for use by a broader group of vehicles and engines than is
allowed under the waiver, constituting a violation of the section
211(f)(1) prohibition.
    EPA recognizes, as several commenters have suggested, that EPA can
impose waiver conditions only on those parties who are subject to the
section 211(f)(1) prohibition and the waiver of that prohibition. These
parties are the fuel and fuel additive manufacturers. Waiver conditions
can apply to them, but cannot apply directly to various downstream
parties, such as a retailer who is not also a fuel or fuel additive
manufacturer. This is one reason EPA is also proposing specific
misfueling mitigation measures in a separate rulemaking under section
211(c), to minimize any risk of misfueling. This will also facilitate
compliance with certain of the waiver conditions.
    Many commenters suggested that before EPA can grant a waiver of any
type under section 211(f)(4), the Agency must first issue a rule under
section 211(c) that addresses the proper prohibition and control of a
new fuel or fuel additive to the extent necessary before such fuel or
fuel additive is permitted under section 211(f)(4). However, there is
no mention of timing in these two statutory provisions and EPA believes
it appropriate to consider the merits of a section 211(f)(4) waiver
request on its face.

B. Notice and Comment Procedures

    Section 211(f)(4) requires that EPA grant or deny an application
for a waiver ``after public notice and comment.'' As discussed in
detail in Section II.B., EPA published notice of receipt of the waiver
application on April 21, 2009 and provided the public with an extended
public comment period of 90 days to submit comments on the waiver
application. EPA received approximately 78,000 comments during the
public comment period.
    Commenters have asked the Agency for a second public comment period
so that they may review and comment on the testing data generated by
the DOE Catalyst Study. An additional comment period is neither
necessary nor required by law. EPA has continued to accept comments on
the waiver application even after closure of the formal comment period,
and has considered comments received even as late as early October. All
of these comments have been included in the public docket and thus made
available to all members of the public for review and comment. Many
commenters have taken the opportunity to submit additional comments in
light of other comments and information included in the docket.
    Data from ongoing vehicle testing programs, including DOE's data,
have been included in the public docket shortly after EPA has received
the information, making it available for the public's review and
comment as soon as practicable. Many commenters providing substantive
feedback on the waiver application have been involved in one or more of
the various testing programs, including DOE's, and consequently have
had immediate access to the data. Comments submitted to the docket
reflect that commenters have had access to and an opportunity to
consider the various testing information cited by EPA in the waiver
decision.
    EPA has also held numerous meetings with stakeholders in which
stakeholders have shared their comments, concerns and additional data
regarding the waiver request. Information received at these meetings
has been made available in the public docket.
    In view of the access that has been made available to the relevant
information in the public docket, EPA believes no need exists for a
second public comment period. Moreover, EPA has already satisfied its
notice and comment requirements for this Decision and has no legal
obligation to provide an additional notice and comment period. EPA
satisfied its procedural requirements through the public notice and
comment period EPA already provided (see Section II.B) and nothing

in section 211(f)(4) mandates a second comment period.\140\
---------------------------------------------------------------------------

    \140\ This Decision is distinguishable from the outcome in Air
Transport Ass'n of America v. FAA, 169 F.3d 1 (DC Cir. 1999). In ATA
v. FAA, the DC Circuit found that the FAA's reliance on ex parte
information submitted after closure of the public comment period
violated the applicable notice and comment period requirements. The
Court's holding was primarily based on the private nature of the
information. ATA, 169 F.3d at 8 (``The important point is that
because the transmission of this information * * * was never public,
petitioner did not have a fair opportunity to comment on it.''). In
contrast, the data relied upon by the Agency in this waiver decision
were included in the pubic docket for the decision prior to its
issuance.
---------------------------------------------------------------------------

C. ``Useful Life'' Language in Section 211(f)(4)

    In making any waiver decision, section 211(f)(4) indicates that EPA
should ensure that any new fuel or fuel additive will not cause or
contribute to a vehicle or engine failing to meet its emissions
standards over its useful life. The Clean Air Act authorizes EPA to
define ``useful life'' for the vehicles and engines EPA regulates, see
CAA sections 202(d) and 213(d), and EPA includes those definitions in
the same regulations that contain the emission standards for those
vehicles and engines.
    As discussed above, the construction of section 211(f) indicates
that the meaning of section 211(f)(4) is best determined by reading it
in context with the substantially similar prohibition in section
211(f)(1). Section 211(f)(1) contains the general prohibition against
introducing fuels and fuel additives that are not ``substantially
similar'' to the certification fuels used for certifying 1975 and
subsequent model year motor vehicles with EPA's emissions standards.
The prohibition is expansive, effectively protecting MY1975 and newer
motor vehicles from using fuels or fuel additives that could
detrimentally impact their ability to meet their emissions standards.
In enacting this provision, Congress stated that ``the intention of
this new subsection [(f)] is to prevent the use of any new or recently
introduced additive in those unleaded grades of gasoline required to be
used in 1975 and subsequent model year automobiles which may impair
emission performance of vehicles * * *.'' Senate Report (Environment
and Public Works Committee) No. 95-127 (To accompany S. 252), May 10,
1977, pg 90. This general prohibition equally protects all MY1975 and
newer motor vehicles from the use of new fuels and fuel additives that
the motor vehicles may not have been designed to use and could degrade
their emissions control systems.
    The section 211(f)(1) prohibition is designed to protect the
emissions control systems for the breadth of motor vehicles in the
fleet, whether they are within or outside the regulatory useful life of
an applicable emissions standard. This broad scope recognizes that the
emissions control system of a motor vehicle continues to operate and
provide important emissions benefits throughout the actual life of the
motor vehicle, including the many miles or years that it may be
operated past its regulatory useful life. Thus, it is important that
the motor vehicle continue to use fuels that do not interfere with the
continued normal operation of the emissions control system after its
regulatory useful life. That normal operation may not ensure that the
motor vehicle stills meets the applicable emissions standards, but it
is typically such that it provides significant emissions control
benefits for the country. Congress recognized this and prohibited entry
into commence of fuels or fuel additives that could interfere with this
result, no matter how old the motor vehicle. Congress also recognized
this goal by prohibiting tampering anytime during the actual life of
the motor vehicle, not just during its regulatory useful life. See CAA
section 203(a)(3).\141\
---------------------------------------------------------------------------

    \141\ Additionally, Congress authorized EPA to set separate in-
use standards (section 202(g)) and to order recall of motor vehicles
not meeting those standards (section 207(c)(1)), further
illustrating its intent that emissions reductions continue at all
times during the actual life of motor vehicles. Also see General
Motors Corp. v. Ruckelshaus, 742 F.2d 1561 (DC Cir. 1984) (finding
that section 207(c)(1) enables EPA to order a recall of all motor
vehicles in a class--even those beyond their statutory useful life--
as long as EPA can demonstrate that those motor vehicles were not
meeting their emissions standards while within their useful life.)
---------------------------------------------------------------------------

    In promulgating CAA section 211(f)(4), Congress provided EPA with
the authority to waive the prohibition for particular fuels or fuel
additives, but only when the fuel or fuel additive manufacturer
demonstrated that motor vehicles could still meet their emissions
standards while using the particular fuel or fuel additive. See Senate
Report (Environment and Public Works Committee) No. 95-127, May 10,
1977, pg 91 (``The waiver process * * * was established * * * so that
the prohibition could be waived, or conditionally waived, rapidly if
the manufacturer of the additive or the fuel establishes to the
satisfaction of the Administrator that the additive, whether in certain
amounts or under certain conditions, will not be harmful to the
performance of emission control devices or systems.''). While section
211(f)(4) refers to the ``useful life'' of the motor vehicle, that is
part of the reference to causing or contributing to the noncompliance
of the motor vehicle with its emission standards, as the emissions
standards are defined in part by the useful life provision. See House
Conference Report No. 95-564 (To accompany H.R. 6161), Aug. 3, 1977, pp
160-162 (``The conferees also intend that the words 'cause or
contribute to the failure of an emission control device or system to
meet emission standards over its useful life to which it has been
certified pursuant to section 206' mean the noncompliance of an engine
or device with emission levels to which it was certified, taking into
account the deterioration factors employed in certifying the engine.'')
This indicates that Congress was not trying to limit the scope of the
waiver provision, but instead was using language normally used when
referring to the emission standards. Congress wanted to ensure that new
fuels or fuel additives allowed into the marketplace through a waiver
would be the kinds of fuels or fuel additives that are consistent with
motor vehicles meeting their applicable emissions standards.
    In that context, EPA looks at whether the fuel or fuel additive
would lead to an exceedance of the emissions standards if it was used
during the motor vehicle's regulatory useful life. If that is the case,
then the fuel should not be entered into commerce for use by that motor
vehicle anytime during its actual life--just as the section 211(f)(1)
prohibition ensures that motor vehicles will not use fuel or fuel
additives anytime during their actual lives that are not substantially
similar to the fuel or fuel additives used to certify their compliance
with the emissions standards over their regulatory useful lives. This
gives a reasonable meaning to the waiver provision and keeps it
parallel and complementary to the section 211(f)(1) provision to which
it is tied. EPA believes this reflects Congress' intention and avoids
an unintended consequence that would be far at odds with the apparent
purpose of sections 211(f)(1) and (4). If EPA were limited to only
considering motor vehicles within their regulatory useful lives, this
could require the Agency to approve waiver requests for new fuels and
fuel additives even if they were clearly known to seriously degrade
emission control devices or systems and cause large emissions increases
in older motor vehicles, which comprise a significant percentage of the
entire fleet. Allowing such a detrimental fuel or fuel additive into
the marketplace is clearly contrary to the purposes of section 211(f)
which is designed as a whole to protect the benefits of the emissions
control

standards over the actual life of the motor vehicles.

X. Waiver Conditions

    The conditions placed upon the partial waiver EPA is granting today
fall into two categories. The first category concerns properties of the
ethanol used to manufacture E15 and the properties of the final E15
blend. The second category of conditions concerns mitigation of
potential misfueling with E15. Any party wishing to utilize this
partial waiver for E15 must satisfy all of these conditions to be able
to lawfully register and introduce E15, or ethanol used to make E15,
into commerce.

A. Fuel Quality Conditions

    As requested by Growth Energy in their waiver request application,
and as is industry practice, the partial waiver for E15 contains a
condition that requires use of ethanol which meets industry
specifications as outlined in ASTM International D4806.\142\
Additionally, as discussed above in our evaluation of the potential
effect of E15 on evaporative emissions, the partial waiver for E15
contains a condition that E15 must meet a maximum RVP of 9.0 psi during
the summertime volatility season, May 1 through September 15.
---------------------------------------------------------------------------

    \142\ ASTM International D4806-10, Standard Specification for
Denatured Fuel Ethanol for Blending with Gasolines for Use as
Automotive Spark-Ignition Engine Fuel.
---------------------------------------------------------------------------

B. Misfueling Mitigation Conditions and Strategies

    EPA believes that minimizing the possibility of misfueling of E15
into vehicles or engines for which it is not approved would best be
achieved through implementation of misfueling mitigation requirements
as proposed by EPA today in a separate action. Nevertheless, EPA is
allowing the use of the partial waiver prior to the finalization of
such requirements provided the fuel or fuel additive manufacturer using
the partial waiver can implement the conditions described below prior
to introducing E15 into commerce. Any fuel or fuel manufacturer wishing
to utilize this partial waiver must submit a plan for EPA approval for
implementing these misfueling mitigation conditions. EPA will determine
if the plan is sufficient to address these conditions.
    We believe that there are four important components to an effective
misfueling mitigation strategy for reducing the potential for
misfueling with E15. First, effective labeling is a key factor.
Labeling is needed to inform consumers of the potential impacts of
using E15 in vehicles and engines not approved for its use, to mitigate
the potential for intentional and unintentional misfueling of these
vehicles and engines. Labeling is also done at the point of sale where
the consumer most likely will be choosing which fuel to use. Second,
retail stations and wholesale purchaser-consumers need assurance
regarding the ethanol content of the fuel that they purchase so they
can direct the fuel to the appropriate storage tank and properly label
their fuel pumps. The use of proper documentation in the form of PTDs
has proven to be an effective means of both ensuring that retail
stations know what fuel they are purchasing and as a possible defense
for retail stations in cases of liability in the event of a violation
of EPA standards. Third, labeling and fuel sampling surveys are
necessary to ensure that retail stations are complying with labeling
requirements, ethanol blenders are not blending more than the stated
amount of ethanol on PTDs, and assuring downstream compliance for fuel
refiners. The Agency has used this general strategy to implement
several fuel programs over the past thirty years, including the
unleaded gasoline program, the RFG program, and the diesel sulfur
program. These strategies are conditions of use associated with today's
waiver decision and are described below.
    While not a condition of today's waiver decision, the fourth
component of an effective misfueling mitigation strategy is effective
public outreach and consumer education. Outreach to consumers and
stakeholders is critical to mitigate misfueling incidents that can
result in increased emissions and vehicle damage. Consumers need to be
engaged through a variety of media to ensure that accurate information
is conveyed to the owners and operators of vehicles and engines.
    EPA recognizes that it may be difficult to fully implement all of
these misfueling mitigation strategies prior to finalization of today's
proposed rule. However, any fuel or fuel additive manufacturer wishing
to introduce E15 into commerce before EPA finalizes its misfueling
mitigation measures rule will need to demonstrate to EPA its ability to
meet the following misfueling mitigation conditions of the partial
waiver:
1. Fuel Pump Dispenser Labeling
    Any fuel or fuel additive manufacturer using this partial waiver
must ensure the labeling of any dispensers of this gasoline-ethanol
blend. The label would have to indicate that the fuel contains up to 15
vol% ethanol--that is, the fuel is gasoline containing greater than 10
vol% ethanol and up to 15 vol% ethanol.
    Based on the Agency's experience with fuel pump labeling for Ultra-
Low Sulfur Diesel (ULSD) and Low Sulfur Diesel (LSD) (see 40 CFR
80.570), there are four important elements to an effective label for
misfueling. The language of the E15 label must contain four components:
(1) An information component; (2) a legal approval component; (3) a
technical warning component; and (4) a legal warning component.
Together, these four components highlight the critical information
necessary to inform consumers about the impacts of using E15.
    The labeling requirements EPA is proposing today in a separate
proposed rule concurrent with today's partial waiver decision would
place labeling requirements on retail stations that dispense E15.
Compliance with these labeling requirements, when finalized, will
satisfy this fuel pump dispenser labeling condition. If a fuel or fuel
additive manufacturer chooses to utilize this partial waiver prior to
finalization of today's proposed rule, a label designed to meet the
components described in today's proposed rule and approved by EPA can
satisfy this fuel pump dispenser labeling condition of this partial
waiver decision.
2. Fuel Pump Labeling and Fuel Sample Survey
    Any fuel or fuel additive manufacturer using this partial waiver
must participate in a survey, approved by EPA, of compliance at fuel
retail facilities conducted by an independent surveyor. An EPA-approved
survey plan is to be in place prior to introduction of E15 into the
marketplace and the results of the survey must be provided to EPA for
use in its enforcement and compliance assurance activities.
    One of two options may be utilized to meet this condition of this
partial waiver decision:
    For Survey Option 1, a fuel or fuel additive manufacturer may
individually survey labels and ethanol content at retail stations
wherever its gasoline, ethanol, or ethanol blend may be distributed if
it may be blended as E15. EPA must approve this survey plan before it
is conducted by the fuel or fuel additive manufacturer.
    For Survey Option 2, a fuel or fuel additive manufacturer may
choose to conduct the survey through a nationwide program of sampling
and testing designed to provide oversight of all retail stations that
sell gasoline. Details of the survey requirements are

similar to those included in the ULSD and RFG programs. A fuel or fuel
additive manufacturer may conduct this survey as part of a consortium,
as discussed in the proposed rule.
    EPA is proposing more formal requirements for a national E15
labeling and ethanol content survey in today's notice of proposed
rulemaking. If a fuel or fuel additive manufacturer chooses to utilize
this partial waiver prior to finalization of today's proposed rule, a
survey designed to satisfy the components described in today's proposed
rule and approved by EPA will be deemed to be sufficient to satisfy
this fuel pump labeling and fuel sample survey condition of this
partial waiver decision.
3. Proper Documentation of Ethanol Content on Product Transfer
Documents
    Today's proposed rule would require that parties that transfer
blendstocks, base gasoline for oxygenate blending, and/or finished
gasoline that contains ethanol content greater than 10 vol% and no more
than 15 vol% include the ethanol concentration of the fuel in volume
percent. Product transfer documents (PTDs) are customarily generated
and used in the course of business and are familiar to parties who
transfer or receive blendstocks or base gasoline for oxygenate blending
and oxygenated gasoline. Since we are approving a partial waiver for
the introduction into commerce of E15 for use in only MY2007 and newer
motor vehicles, the PTDs that accompany the transfer of base gasoline/
gasoline blendstocks used for oxygenate blending and for oxygenated
gasoline must include the ethanol content of the fuel to help avoid
misfueling. Downstream of the terminal where ethanol blending takes
place, information on the maximum ethanol concentration in the ethanol
blend is needed to help ensure that fuel shipments are delivered into
the appropriate storage tanks at retail and fleet gasoline dispensing
facilities.\143\ A gasoline retail station and fleet dispensing
facility must know the ethanol content of a fuel shipment so that fuel
pumps may be correctly labeled.
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    \143\ Evaluations are underway which may facilitate the shipment
of gasoline-ethanol blends by pipeline to terminals. Hence, parties
upstream of the terminal may need to include information on maximum
ethanol concentration on product PTDs in the future.
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    In the event that there is a period of time when this partial
waiver is utilized prior to finalization of today's proposal, a PTD
program designed to satisfy the elements of today's proposed rule will
be sufficient to satisfy the PTD condition of this partial waiver
decision.
4. Public Outreach
    While not a formal condition of this partial waiver, EPA recognizes
the importance of outreach to consumers and stakeholders to misfueling
mitigation. The potential for E15 misfueling incidents may exist for
several reasons. For example, consumers may be inclined to misfuel when
E15 costs less than E10 or E0. Additionally, in some situations, it may
be more difficult to find fuels other than E15. EPA thus encourages
fuel and fuel additive manufacturers to conduct a public outreach and
education program prior to any introduction of E15 into commerce.
    A recent example of outreach to consumers and stakeholders that may
be applicable is coordinated work done in support of the ULSD program.
ULSD was a new fuel with the possibility of consumer misfueling that
could result in engine damage. With ULSD, the fuel industry trade
association API took the lead in working with stakeholders to establish
the Clean Diesel Fuel Alliance (CDFA), a collaboration of public and
private organizations designed to ensure a smooth program transition by
providing comprehensive information and technical coordination. The
organizations represented in the CDFA include engine manufacturers,
fuel retailers, trucking fleets, DOE and EPA. CDFA efforts to educate
ULSD users include developing technical guidance and educational
information, including a Web site (http://www.clean-diesel.org), as
well as serving as a central point of contact to address ULSD-related
questions.
    The CDFA outreach model could prove beneficial in this case. EPA
anticipates that all parties involved in bringing higher gasoline-
ethanol blends to market will participate in a coordinated industry-led
consumer education and outreach effort. In the context of this program,
potential key participants include ethanol producers, fuel and fuel
additive manufacturers, automobile, engine and equipment manufacturers,
States, non-governmental organizations, parties in the fuel
distribution system, EPA, DOE, and USDA. Potential education and
outreach activities a public/private group could undertake include
serving as a central clearinghouse for technical questions about E15
and its use, promoting best practices to educate consumers or mitigate
misfueling instances, and developing education materials and making
them available to the public.

XI. Reid Vapor Pressure

    Commenters questioned whether E15 would qualify for the 1.0 psi RVP
waiver permitted for E10 under CAA section 211(h). As explained in the
misfueling mitigation measures proposed rule, EPA interprets the 1.0
psi waiver in CAA section 211(h) as being limited to gasoline-ethanol
blends that contain 10 vol% ethanol. Please see the preamble of that
proposed rule for more discussion of this issue and for an opportunity
to submit comments on this issue.

XII. Partial Waiver Decision and Conditions

    Based on all the data and information described above, EPA has
determined that, subject to compliance with all of the conditions
below, a gasoline produced with greater than 10 vol% and no more than
15 vol% ethanol (E15) will not cause or contribute to a failure of
certain motor vehicles to achieve compliance with their emission
standards to which they have been certified over their useful lives.
    Therefore, the waiver request application submitted by Growth
Energy for its gasoline-ethanol blend with up to 15 vol% ethanol is
partially and conditionally granted as follows:
    (1) The partial waiver applies only to fuels or fuel additives
introduced into commerce for use in MY2007 and newer light-duty motor
vehicles, light-duty trucks, and medium duty passenger vehicles
(hereafter ``MY2007 and newer light-duty motor vehicles'') as certified
under Section 206 of the Act. The waiver does not apply to fuels or
fuel additives introduced into commerce for use in pre-MY2007 motor
vehicles, heavy-duty gasoline engines or vehicles, or motorcycles
certified under section 206 of the Act, or any nonroad engines, nonroad
vehicles, or motorcycles certified under section 213(a) of the Act.
    (2) The waiver applies to the blending of greater than 10 vol% and
no more than 15 vol% anhydrous ethanol into gasoline,\144\ and the
ethanol must meet the specifications for fuel ethanol found in the ASTM
International specification D4806-10.\145\
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    \144\ Gasoline in this case may be gasoline blendstocks that
produce gasoline upon the addition of the specified amount of
ethanol covered by the waiver.
    \145\ ASTM D4806-10, Standard Specification for Denatured Fuel
Ethanol for Blending with Gasolines for Use as Automotive Spark-
Ignition Engine Fuel.
---------------------------------------------------------------------------

    (3) The final fuel must have a Reid Vapor Pressure not in excess of
9.0 psi during the time period from May 1 to September 15.

    (4) Fuel and fuel additive manufacturers subject to this partial
waiver must submit to EPA a plan, for EPA's approval, and must fully
implement that EPA-approved plan, prior to introduction of the fuel or
fuel additive into commerce as appropriate. The plan must include
provisions that will implement all reasonable precautions for ensuring
that the fuel or fuel additive (i.e., gasoline intended for use in E15,
ethanol intended for use in E15, or final E15 blend) is only introduced
into commerce for use in MY2007 and newer motor vehicles. The plan must
be sent to the following address: Director, Compliance and Innovative
Strategies Division, U.S. Environmental Protection Agency, 1200
Pennsylvania Ave., NW. Mail Code 6405J, Washington, DC 20460.
Reasonable precautions in a plan must include, but are not limited to,
the following conditions on this partial waiver:
    (a)(i) Reasonable measures for ensuring that any retail fuel pump
dispensers that are dispensing a gasoline produced with greater than 10
vol% ethanol and no more than 15 vol% ethanol are clearly labeled for
ensuring that consumers do not misfuel the waivered gasoline-ethanol
blend into vehicles or engines not covered by the waiver. The label
shall convey the following information:
    (A) The fuel being dispensed contains 15% ethanol maximum;
    (B) The fuel is for use in only MY2007 and newer gasoline cars,
MY2007 and newer light-duty trucks and all flex-fuel vehicles;
    (C) Federal law prohibits the use of the fuel in other vehicles and
engines; and
    (D) Using E15 in vehicles and engines not approved for use might
damage those vehicles and engines.
    (ii) The fuel or fuel additive manufacturer must submit the label
it intends to use for EPA approval prior to its use on any fuel pump
dispenser.
    (b) Reasonable measures for ensuring that product transfer
documents accompanying the shipment of a gasoline produced with greater
than 10 vol% ethanol and no more than 15 vol% ethanol properly document
the volume of ethanol.
    (c)(i) Participation in a survey of compliance at fuel retail
dispensing facilities. The fuel or fuel additive manufacturer must
submit a statistically sound survey plan to EPA for its approval and
begin implementing the survey plan prior to the introduction of E15
into the marketplace. The results of the survey must be provided to
EPA.\146\ The fuel or fuel additive manufacturer conducting a survey
may choose from either of the following two options:
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    \146\ In a Notice of Proposed Rulemaking published in today's
Federal Register, EPA is proposing a more detailed labeling, product
transfer documents, and survey plan.
---------------------------------------------------------------------------

    (ii) Individual survey option: Conduct a survey of labels and
ethanol content at retail stations wherever your gasoline, ethanol, or
ethanol blend may be distributed if it may be blended as E15. The
survey plan must be approved by EPA prior to conducting the survey
plan.
    (iii) Nationwide survey option: Contract with an individual survey
organization to perform a nationwide survey program of sampling and
testing designed to provide oversight of all retail stations that sell
gasoline. The survey plan must be approved by EPA prior to conducting
the survey plan.
    (d) Any other reasonable measures EPA determines are appropriate.
    (5) Failure to fully implement any condition of this partial waiver
means the fuel or fuel additive introduced into commerce is not covered
by this partial waiver.
    This partial waiver decision is final agency action of national
applicability for purposes of section 307(b)(1) of the Act. Pursuant to
CAA section 307(b)(1), judicial review of this final agency action may
be sought only in the United States Court of Appeals for the District
of Columbia Circuit. Petitions for review must be filed by January 3,
2011. Judicial review of this final agency action may not be obtained
in subsequent proceedings, pursuant to CAA section 307(b)(2). This
action is not a rulemaking and is not subject to the various statutory
and other provisions applicable to a rulemaking.

    Dated: October 13, 2010.
Lisa P. Jackson,
Administrator.
[FR Doc. 2010-27432 Filed 11-3-10; 8:45 am]
BILLING CODE 6560-50-P