performed and our own engineering assessment, that these MY2007 and
newer Tier 2 light-duty motor vehicles are durable and will maintain
their emission performance when operated on E15.
    To evaluate the impacts of E15 on Tier 2 motor vehicles, DOE
performed a

catalyst durability test program \117\ on 19 Tier 2 motor vehicles from
high sales volume models produced by the various light-duty vehicle
manufacturers throughout 2009 and 2010. The specific purpose of the
test program was to evaluate the long term effects of E0, E10, E15, and
E20 on catalyst system durability. However, a number of the motor
vehicles were also torn down and evaluated for any other impacts E15
may have had, including material compatibility in the fuel and
evaporative emission control systems. As discussed in the waiver
decision document, program results indicate that the changes
manufacturers made (calibration, hardware, etc.) to their motor
vehicles to comply with the Tier 2 standards have enabled the motor
vehicles to operate satisfactorily on E15, including the ability of
their catalysts to withstand the additional enleanment caused by E15.
---------------------------------------------------------------------------

    \117\ Catalyst Durability Study, Department of Energy/
Coordinating Research Council Report: E-87-2, September 2010.
---------------------------------------------------------------------------

    The DOE test program was critical in supporting the waiver
decision. However, it also serves to confirm our engineering assessment
of the ability of light-duty motor vehicles to handle E15. The emission
standards that EPA has implemented over time affecting motor vehicles
have become more and more stringent (i.e., Tier 0 to Tier 1 to LEV1 and
NLEV to Tier 2 and LEV2). In addition, full useful life requirements
have increased and new test cycles have been added. To comply with the
stringent Tier 2 standards, manufacturers must minimize deterioration
of their vehicle emission control systems over a vehicle's full useful
life of 120,000 miles. By MY2004, new test procedures took effect to
better represent actual consumer driving habits and conditions. These
additional test cycles, coupled with the in-use testing required under
the Compliance Assurance Program (CAP2000), pushed manufacturers to
develop more robust emissions control systems (such as systems using
wide range oxygen sensors) capable of withstanding the higher
temperatures experienced during these more severe cycles without simply
relying on enriching of the A/F ratio, causing emissions to rise. With
each new program, manufacturers were required to improve the efficiency
and durability of emission control hardware and the methods and control
systems governing hardware performance causing newer motor vehicles to
be able to accommodate gasoline-ethanol blends more so than older motor
vehicles.
    Perhaps the most critical changes made over time were the changes
to the engine calibrations and catalyst systems to accommodate changes
in the A/F ratio such as those that occur when switching to operation
on gasoline-ethanol blends. Evolution in emission standards prompted
corresponding evolution in motor vehicle emission control systems. In
particular, catalyst deterioration must be minimized and catalyst
temperatures controlled during all vehicle operation modes for the
catalyst to work properly (i.e., for it to maintain the necessary high
efficiency demanded by the Tier 2 standards). Tier 2 motor vehicles,
especially the MY2007 and newer motor vehicles, have improved hardware
as well as more sophisticated emission control systems and strategies
to help maintain catalyst effectiveness, and an extended motor vehicle
operating range over which emissions performance must be maintained.
MY2007 and newer motor vehicles have the ability to precisely adjust
for changes in the A/F ratio and ultimately maintain peak catalyst
efficiency under almost any condition, such as exposure to oxygenated
fuels like those containing ethanol. To do so, some manufacturers
incorporated learned or adaptive fuel trim into their motor vehicle
designs to modulate the A/F ratio and alleviate catalyst temperature
increases even under open loop conditions. Others, through careful
hardware selection and certain calibration approaches, have motor
vehicle designs with higher thermal margins to accommodate the effects
of enleanment with gasoline-ethanol blends.
    Prior to completion of the DOE catalyst durability test program
some concern had been expressed that when operated on E15, vehicles,
even Tier 2 motor vehicles that did not apply learned fuel trim, may
experience catalyst degradation and higher emissions over time due to
the higher exhaust temperatures it may cause. Several screening studies
had measured exhaust and catalyst temperature and/or evaluated the
ability of vehicles to apply learned fuel trim to adjust for the
enleanment due to ethanol during open loop operation.\118,\ \119\ They
had found that those vehicles that did not apply learned fuel trim
tended to experience higher catalyst and exhaust temperatures when
operated on E15. However, as evidenced by the DOE catalyst durability
test program, at least for Tier 2 motor vehicles this does not appear
to be the case. Even those vehicles that do not apply learned fuel trim
appear to have sufficient thermal margins. Therefore, not only do all
manufacturers warrant their Tier 2 motor vehicles for operation on E10,
but as discussed in the waiver decision document, we believe that they
will also operate properly on gasoline-ethanol blends up to E15.
---------------------------------------------------------------------------

    \118\ Mid-level Ethanol Blends Catalyst Durability Study
Screening, Coordinating Research Council Report: E-87-1, June 2009.
    \119\ Effects of Intermediate Ethanol Blends on Legacy Vehicles
and Small Non-road Engines, Report 1--Updated, National Renewable
Energy Laboratory, February 2009.
---------------------------------------------------------------------------

    With respect to evaporative emissions control, evaporative systems
have had leak detection diagnostic requirements since at least MY2000
as a result of the Agency's Onboard Diagnostic (OBD) program. In
addition, CAP2000 which took effect with MY2001 motor vehicles placed
more emphasis on the ``in-use'' performance of motor vehicle emission
controls with motor vehicles operating nationwide on the different
available fuels. This emphasis on real world motor vehicle testing
prompted manufacturers to consider different available fuels, including
gasoline-ethanol blends, when developing and testing their emission
systems. However, even with the CAP2000 requirements, some materials
issues continued to arise during in-use emissions testing.
Consequently, as part of the new Tier 2 standards, EPA added the
requirement that the evaporative control system and all related
components (i.e. fuel tanks, fuel lines, etc.) demonstrate durability
over their full useful life while operating on E10. Due to this new
requirement, materials that would compromise evaporative emission
compliance over the full useful life with exposure at E10 levels were
eliminated as options for fuel system components. This requirement,
coupled with much more stringent evaporative emission standards (over a
50% reduction for passenger cars and light trucks), was phased-in with
the Tier 2 exhaust standards. Prior to Tier 2, materials are believed
to have also been selected for ethanol compatibility but perhaps not
for continuous exposure over the full useful life. Based on
conversations with original equipment manufacturer parts suppliers, it
is our understanding that in designing materials for continuous E10
exposure, they tested materials, components, and systems using ethanol
levels in excess of 20% to ensure compatibility with E10. Consequently,
Tier 2 motor vehicle designs should also be designed to be compatible
with E15, and the results of the DOE catalyst durability test program
served to confirm this belief.

H. Model Year 2001-2006 Motor Vehicles

    For MY2001-2006 motor vehicles, both our engineering assessment and
the available data make it less clear whether motor vehicles produced
during those model years could have emission increases from long-term
fueling with E15 like MY2000 and older motor vehicles or whether they
would continue to function properly like MY2007 and newer motor
vehicles. On the one hand, we believe that many of the same elements
for ethanol compatibility of MY2007 and newer motor vehicles also apply
to these motor vehicles (e.g., designing to enhanced evaporative
emission standards, SFTP, CAP2000). On the other hand, they were not
all required to demonstrate evaporative emission system durability on
E10 or to upgrade their catalyst and emission control systems to the
extent needed to comply with the Tier 2 standards. The NLEV standards
that began phasing in with MY2001 required improvements in closed loop
A/F ratio control and catalyst efficiency, but the Tier 2 standards
represented a considerable step change beyond NLEV. Furthermore, as
discussed below, while there are some ongoing test programs evaluating
the effects of E15, we do not yet have sufficient data that would serve
to confirm or deny any engineering analysis of the situation, and in
particular to address the potential concerns raised over those motor
vehicles that do not apply learned fuel trim during open loop
operation.
    Two studies that might help inform the situation are currently
still in process. The Rochester Institute of Technology is conducting a
study of 10 motor vehicles spanning MY1998-2004 on E20 and is operating
roughly 300 motor vehicles in-use on E20.\120\ While the results of
this study to date suggest vehicles may operate acceptably on E20--and
by interpolation E15--mileage accumulation is limited, so its ability
to assess emission impacts over the FUL of the vehicles is also
limited. In addition, since there are no control vehicles operating on
E0, comparisons of emission effects are restricted. The study is
ongoing until November 2010. In addition, DOE is in the process of
conducting catalyst durability testing on six motor vehicles certified
to NLEV standards and two motor vehicles certified to Tier 1 standards
which will also be completed by November. Since the motor vehicles are
older, they are starting the test program with a significant number of
miles already driven by consumers on E0. However, at least 50,000 miles
are being accumulated on each motor vehicle, and identical motor
vehicles of the same model are being tested on E0, E10, E15, and E20.
---------------------------------------------------------------------------

    \120\ The effect of E20 ethanol fuel on vehicle emissions, B
Hilton and B Duddy, Center for Integrated Manufacturing Studies,
Rochester Institute of Technology, June 26, 2009.
---------------------------------------------------------------------------

I. Emissions Impact Summary and Conclusions

    As discussed above, the potential exists for E15 use to cause long-
term or permanent increases in exhaust emissions from MY2000 and older
light-duty motor vehicles, heavy-duty gasoline engines and vehicles,
motorcycles, and nonroad products, as a result of accelerated
deterioration of engine and emission control components. This
deterioration can be a result of changes in engine operation, such as
higher exhaust temperature, or damage to materials not compatible with
E15. Similarly, evaporative emission increases may occur immediately
due to increased permeation or over time due to repeated or on-going
exposure of the fuel and evaporative emission control systems to E15.
In some cases the potential emission impacts could be quite dramatic
(i.e., more than an order of magnitude) given the large differences
between controlled and uncontrolled emissions on today's light-duty
motor vehicles, heavy-duty gasoline engines and vehicles, motorcycles,
and nonroad products. Consequently, the in-use emissions increases and
air quality impact could be substantial for any of these products that
experience very significant deterioration.
    While it is not possible to quantify the frequency at which all of
these products might experience problems with the use of E15, the
degree of emissions increases associated with them, or the
effectiveness of the proposed misfueling mitigation measures, we
believe that the emission related problems would occur with enough
frequency that the resulting emission benefits from the avoided
misfueling would clearly outweigh the relatively low cost imposed by
the proposed regulations. The emission benefits are the emissions
increases from longer term use of E15 that would not occur because of
this misfueling mitigation program. This is particularly the case
considering the significant consumer savings for avoided repairs and
replacement that, as discussed in section III.F., would by themselves
be expected to exceed the costs of the misfueling mitigation measures.
    For these reasons, the Agency proposes to prohibit the use of
gasoline blended with greater than 10 vol% ethanol in (1) MY2000 and
older motor vehicles, (2) heavy-duty gasoline engines and vehicles, (3)
motorcycles, and (4) nonroad products. Today's prohibitions and other
requirements are intended to reduce emissions due to the use of E15 in
the group of vehicles or engines reasonably expected to have these
adverse effects. The term misfueling describes use of E15 in the
prohibited engines, vehicles and equipment listed above. We are
inviting comment on whether this prohibition should also apply for
MY2001-MY2006 motor vehicles.

VII. What is our legal authority for proposing these misfueling
mitigation measures?

    As explained above, we are proposing misfueling mitigation measures
pursuant to our authority under CAA section 211(c)(1). This section
gives EPA authority to ``control or prohibit the manufacture,
introduction into commerce, offering for sale, or sale'' of any fuel or
fuel additive (A) whose emission products, in the judgment of the
Administrator, cause or contribute to air pollution ``which may be
reasonably anticipated to endanger public health or welfare'' or (B)
whose emission products ``will impair to a significant degree the
performance of any emission control device or system which is in
general use, or which the Administrator finds has been developed to a
point where in a reasonable time it would be in general use'' were the
fuel control or prohibition adopted. Under section 211(c)(1), EPA may
adopt a fuel control if at least one of the two criteria above are met.
We are proposing the misfueling mitigation measures based on both of
these criteria. Under section 211(c)(1)(B), we believe that E15 would
significantly impair the emission control systems used in MY2000 and
older light-duty motor vehicles, heavy-duty gasoline engines and
vehicles, highway and off-highway motorcycles, and all nonroad
products. This leads us to conclude, under section 211(c)(1)(A), that
the likely result would be increased HC, CO and NOx
emissions when these particular engines, vehicles and nonroad products
use E15. The following sections summarize our analysis of each
criterion.

A. Health and Welfare Concerns of Air Pollution Caused by E15

    We believe that the emissions products of E15 contribute to air
pollution that can reasonably be anticipated to endanger public health
and welfare. As described in Section VI.B., the unique physical and
chemical

[[Page 68082 ]]

properties of ethanol may negatively impact certain engines, vehicles
and equipment when those products use gasoline-ethanol blends
containing increased amounts of ethanol, particularly if those engines,
vehicles and equipment are not designed for accommodating that
increase. The result is likely an increase in HC, CO and NOx emissions
from these engines, vehicles and equipment (see Sections VI.C.-F.).
This potential increase in emissions of these particular pollutants
contributes to air pollution levels that, for example, can violate the
NAAQS for ozone or PM.
    Section 211(c)(2)(A) requires that, prior to adopting fuel controls
based on a finding that the fuel's emission products contribute to air
pollution that can reasonably be anticipated to endanger public health
or welfare, EPA consider ``all relevant medical and scientific evidence
available, including consideration of other technologically or
economically feasible means of achieving emission standards under
[section 202 of the Act].'' EPA's analysis of the evidence relating to
the emissions impact of emissions from E15 is described in Section VI
above, while the evidence concerning the NAAQS is discussed in the
NAAQS rulemakings themselves.
    EPA has also satisfied the statutory requirement to consider
``other technologically or economically feasible means of achieving
emission standards under section [202 of the Act].'' This provision has
been interpreted as requiring consideration of establishing emissions
standards under section 202 prior to establishing controls or
prohibitions on fuels or fuel additives under section 211(c)(1)(A). See
Ethyl Corp. v. EPA, 541 F.2d 1, 31-32 (DC Cir. 1976). In Ethyl, the
Court stated that section 211(c)(2)(A) calls for good faith
consideration of the evidence and options, not for mandatory deference
to regulation under section 202 compared to fuel controls. Id. at 32,
n.66. For MY2000 and older motor vehicles, proposing emissions
standards under section 202 is not an option since emissions standards
promulgated under section 202 only apply to new motor vehicles. This is
also true for the other categories (heavy-duty gasoline engines and
vehicles, highway and off-highway motorcycles, and all nonroad
products) to the extent these products are already in the marketplace.
Thus, for all of these products, the proposed measures under section
211(c)(1) are appropriate for addressing misfueling. Additionally, EPA
has previously promulgated the most technologically and economically
feasible HC, CO and NOX emissions standards for all of these
engines, vehicles and equipment, so new emissions standards under
section 202 for any of these products would not achieve any additional
protection beyond those obtained through the misfueling mitigation
measures being proposed today under section 211(c)(1).
    It is therefore appropriate for EPA to exercise its authority under
section 211(c)(1)(A) and propose these misfueling mitigation measures
that will likely reduce or eliminate the emissions products from E15
that contribute to the air pollution that endangers our public health
or welfare.

B. Impact of E15 Emission Products on Emission Control Systems

    EPA believes that E15 can significantly impair the emissions
control technology in MY2000 and older light-duty motor vehicles,
heavy-duty gasoline engines and vehicles, highway and off-highway
motorcycles, and all nonroad products. As discussed in Section VI
above, ethanol enleans the A/F ratio; this may lead to emissions
products that can cause increased exhaust gas temperatures and, over
time, incremental deterioration of emission control hardware and
performance. Enleanment can also lead to catalyst failure.
Additionally, ethanol can cause material compatibility issues which may
lead to other component failure. Ultimately, all of these impacts would
likely significantly impair the emissions control systems or devices
and lead to exhaust and/or evaporative emission increases.
    Section 211(c)(2)(B) requires that, prior to adopting a fuel
control based on a significant impairment to emission control systems,
EPA consider available scientific and economic data, including a cost
benefit analysis comparing emission control devices or systems which
are or will be in general use that require the proposed fuel control
with such devices or systems which are or will be in general use that
do not require the proposed fuel control. This provision is not
applicable to the proposed misfueling mitigation measures since a
particular emission control device or system is not required for use
with the measures being proposed today. Instead, the misfueling
mitigation measures are being proposed to protect existing controls on
existing engines, vehicles and equipment already in the marketplace
from the detrimental impacts they may incur when using E15.
    Thus, EPA may exercise its authority under section 211(c)(1)(B) and
propose these misfueling mitigation measures since use of E15 would
significantly impair the emission control devices or systems in MY2000
and older light-duty motor vehicles, heavy-duty gasoline engines and
vehicles, highway and off-highway motorcycles, and all nonroad
products.

C. Effect of Misfueling Mitigation Measures on the Use of Other Fuels
or Fuel Additives

    Section 211(c)(2)(C) requires that, prior to prohibiting a fuel or
fuel additive, EPA establish that such prohibition will not cause the
use of another fuel or fuel additive ``which will produce emissions
which endanger the public health or welfare to the same or greater
degree'' as the prohibited fuel or fuel additive. Even assuming that
this proposal amounts to a prohibition, as compared to a control, EPA
does not believe that the proposed misfueling mitigation measures will
result in the use of any other fuel or fuel additive that will produce
emissions that will endanger public health or welfare to the same or
greater degree as the emissions produced by E15. In fact, the measures
being proposed today should lessen the overall public health or welfare
impacts from the emissions from these products. To the extent that EPA
is proposing a prohibition of using E15 in certain engines, vehicles
and equipment, such a prohibition should serve to prevent or reduce
misfueling in those products and avoid the increased detrimental
effects this provision seeks to protect against. These products would
instead use other gasoline or gasoline-ethanol blends currently
available in the marketplace and be able to meet their current
emissions standards. Thus, EPA may propose these misfueling mitigation
measures under 211(c)(1) without causing other public health or welfare
effects from the use of another fuel or fuel additive.

VIII. Public Participation

    We request comment on all aspects of this proposal. This section
describes how you can participate in this process.

A. How do I submit comments?

    We are opening a formal comment period by publishing this document.
We will accept comments during the period indicated under DATES in the
first part of this proposal. If you have an interest in the proposed
program described in this document, we encourage you to comment on any
aspect of this rulemaking. We also request comment on specific topics
identified throughout this proposal.
    Your comments will be most useful if you include appropriate and
detailed supporting rationale, data, and analysis. Commenters are
especially encouraged

to provide specific suggestions for any changes to any aspect of the
regulations that they believe need to be modified or improved. You
should send all comments, except those containing proprietary
information, to our Air Docket (see ADDRESSES in the first part of this
proposal) before the end of the comment period.
    You may submit comments electronically, by mail, or through hand
delivery/courier. To ensure proper receipt by EPA, identify the
appropriate docket identification number in the subject line on the
first page of your comment. Please ensure that your comments are
submitted within the specified comment period. Comments received after
the close of the comment period will be marked ``late.'' EPA is not
required to consider these late comments. If you wish to submit
Confidential Business Information (CBI) or information that is
otherwise protected by statute, please follow the instructions in
Section XI.B.

B. How should I submit CBI to the agency?

    Do not submit information that you consider to be CBI
electronically through the electronic public docket, http://
www.regulations.gov, or by e-mail. Send or deliver information
identified as CBI only to the following address: U.S. Environmental
Protection Agency, Assessment and Standards Division, 2000 Traverwood
Drive, Ann Arbor, MI 48105, Attention Docket ID EPA-HQ-OAR-2010-0448.
You may claim information that you submit to EPA as CBI by marking any
part or all of that information as CBI (if you submit CBI on disk or CD
ROM, mark the outside of the disk or CD ROM as CBI and then identify
electronically within the disk or CD ROM the specific information that
is CBI). Information so marked will not be disclosed except in
accordance with procedures set forth in 40 CFR part 2.
    In addition to one complete version of the comments that include
any information claimed as CBI, a copy of the comments that does not
contain the information claimed as CBI must be submitted for inclusion
in the public docket. If you submit the copy that does not contain CBI
on disk or CD ROM, mark the outside of the disk or CD ROM clearly that
it does not contain CBI. Information not marked as CBI will be included
in the public docket without prior notice. If you have any questions
about CBI or the procedures for claiming CBI, please consult the person
identified in the FOR FURTHER INFORMATION CONTACT section.

C. Will there be a public hearing?

    We will hold a public hearing in Chicago, IL on November 16, 2010
at the location shown below. The hearing will start at 10 a.m. local
time and continue until everyone has had a chance to speak.

    Millennium Knickerbocker Hotel Chicago, 163 East Walton Place, @
North Michigan Avenue, Chicago, IL 60600, Phone<PHONE_NUMBER>.

    If you would like to present testimony at the public hearing, we
ask that you notify the contact person listed under FOR FURTHER
INFORMATION CONTACT in the first part of this proposal at least 8 days
before the hearing. You should estimate the time you will need for your
presentation and identify any needed audio/visual equipment. We suggest
that you bring copies of your statement or other material for the EPA
panel and the audience. It would also be helpful if you send us a copy
of your statement or other materials before the hearing.
    We will make a tentative schedule for the order of testimony based
on the notifications we receive. This schedule will be available on the
morning of the hearing. In addition, we will reserve a block of time
for anyone else in the audience who wants to give testimony.
    We will conduct the hearing informally, and technical rules of
evidence will not apply. We will arrange for a written transcript of
the hearing and keep the official record of the hearing open for 30
days to allow you to submit supplementary information. You may make
arrangements for copies of the transcript directly with the court
reporter.

D. Comment Period

    The comment period for this rule will end on January 3, 2011.

E. What should I consider as I prepare my comments for EPA?

    You may find the following suggestions helpful for preparing your
comments:
     Explain your views as clearly as possible.
     Describe any assumptions that you used.
     Provide any technical information and/or data you used
that support your views.
     If you estimate potential burden or costs, explain how you
arrived at your estimate.
     Provide specific examples to illustrate your concerns.
     Offer alternatives.
     Make sure to submit your comments by the comment period
deadline identified.
     To ensure proper receipt by EPA, identify the appropriate
docket identification number in the subject line on the first page of
your response. It would also be helpful if you provided the name, date,
and Federal Register citation related to your comments.

XI. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order (EO) 12866 (58 FR 51735, October 4, 1993),
this action is a ``significant regulatory action.'' This action may
raise novel legal or policy issues. Accordingly, EPA submitted this
action to the Office of Management and Budget (OMB) for review under EO
12866 and any changes made in response to OMB recommendations have been
documented in the docket for this action.

B. Paperwork Reduction Act

    The information collection requirements in this proposed rule have
been submitted for approval to the Office of Management and Budget
(OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. The
Information Collection Request (ICR) document prepared by EPA has been
assigned EPA ICR number 2408.01.
    This proposed rule imposes some new information collection burdens
regarding product transfer documentation. Product transfer documents,
or PTDs, are commonly used in the fuels distribution system and are
their use is a customary business practice. This proposed rule is
expected to add a one-time burden to program and implement new product
codes and statements, as well as a continuing, small burden associated
with affixing (using) products codes and statements. This proposed
regulation contains provisions requiring standard product labels, which
will not impose any information collection burden on regulated parties.
We have also estimated the burden associated with parties who elect to
use proposed ``Survey Option 1.''
    For the proposed information collection, we estimate that there
will be 9,608 annual respondents; 2,009,226 annual responses; and
71,809 annual hours. We estimate that annual cost of this information
collection to respondents will be $5,098,427. The average burden is
0.04 hours per response. Burden is defined at 5 CFR 1320.3(b).
    We estimate that the cost of adding the proposed survey of
compliance

(which requires sampling and testing) with the proposed labeling
requirements to the existing RFG survey at $50,000 per year. The cost
to implement all of the proposed survey provisions for conventional
gasoline is estimated at $2 million per year. Thus, the total cost of
the proposed survey requirements is estimated to be $2.05 million per
year
    An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations in 40 CFR are listed in 40 CFR part 9.
    To comment on the Agency's need for this information, the accuracy
of the provided burden estimates, and any suggested methods for
minimizing respondent burden, EPA has established a public docket for
this rule, which includes this ICR, under Docket ID number EPA-HQ-OAR-
2010-0448. Submit any comments related to the ICR to EPA and OMB. See
ADDRESSES section at the beginning of this notice for where to submit
comments to EPA. Send comments to OMB at the Office of Information and
Regulatory Affairs, Office of Management and Budget, 725 17th Street,
NW., Washington, DC 20503, Attention: Desk Office for EPA. Since OMB is
required to make a decision concerning the ICR between 30 and 60 days
after November 4, 2010 a comment to OMB is best assured of having its
full effect if OMB receives it by December 6, 2010. The final rule will
respond to any OMB or public comments on the information collection
requirements contained in this proposal.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency
to prepare a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements under the Administrative
Procedure Act or any other statute unless the agency certifies that the
rule will not have a significant economic impact on a substantial
number of small entities. Small entities include small businesses,
small organizations, and small governmental jurisdictions.
    For purposes of assessing the impacts of today's rule on small
entities, small entity is defined as: (1) A small business as defined
by the Small Business Administration's (SBA) regulations at 13 CFR
121.201; (2) a small governmental jurisdiction that is a government of
a city, county, town, school district or special district with a
population of less than 50,000; and (3) a small organization that is
any not-for-profit enterprise which is independently owned and operated
and is not dominant in its field.
    After considering the economic impacts of today's proposed rule on
small entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. The small
entities directly regulated by this proposed rule are petroleum
refiners and importers, ethanol producers, ethanol blenders, gasoline
terminals, gasoline stations with convenience stores, and other
gasoline stations. While there are small entities in each of these
market sectors as discussed in Section III.F., the cost impact on any
particular entity is expected to be a tiny fraction of annual revenues.
    We continue to be interested in the potential impacts of the
proposed rule on small entities and welcome comments on issues related
to such impacts.

D. Unfunded Mandates Reform Act

    This rule does not contain a Federal mandate that may result in
expenditures of $100 million or more for State, local, and Tribal
governments, in the aggregate, or the private sector in any one year.
The total annual cost is expected to be $6 million. Thus, this rule is
not subject to the requirements of sections 202 or 205 of UMRA.
    This rule is also not subject to the requirements of section 203 of
UMRA because it contains no regulatory requirements that might
significantly or uniquely affect small governments. This action
primarily affects the private sector, specifically petroleum refiners
and importers, ethanol producers, ethanol blenders, gasoline terminals,
gasoline stations with convenience stores, and other gasoline stations.

E. Executive Order 13132 (Federalism)

    EPA believes that this action does not have federalism
implications. This rule will not have substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government, as specified in Executive Order 13132.
Any preemption of State or local controls under section 211(c)(4)(A),
based on issuance of this rule under section 211(c)(1), would only
apply to State or local controls adopted for purposes of motor vehicle
emissions control.
    EPA consulted with State and local officials early in the process
of developing the proposed action to permit them to have meaningful and
timely input into its development. EPA met with members of the National
Association of Clean Air Agencies (NACAA) to discuss the nature of
today's proposed rule. Additionally, we provided State and local
governments an opportunity to provide comment on the implementation of
misfueling mitigation measures for a partial E15 waiver in both the
RFS2 NPRM (see 74 FR 25016) and the E15 waiver request notice (see 74
FR 18228). We received comments from only one State on this issue in
the RFS2 NPRM, and it supported efforts for properly labeling fuel
pumps containing gasoline-ethanol blends. Thus, Executive Order 13132
does not apply to this action. In the spirit of Executive Order 13132,
and consistent with EPA policy to promote communications between EPA
and State and local governments, EPA specifically solicits comment on
this proposed action from State and local officials.

F. Executive Order 13175

    This action does not have Tribal implications, as specified in
Executive Order 13175 (65 FR 67249, November 9, 2000). This rule will
be implemented at the Federal level and impose compliance costs only on
petroleum refiners and importers, gasoline stations with convenience
stores, and other gasoline stations. Thus, Executive Order 13175 does
not apply to this action.

G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks

    EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as applying
only to those regulatory actions that concern health or safety risks,
such that the analysis required under section 5-501 of the EO has the
potential to influence the regulation. This action is not subject to EO
13045 because it does not establish an environmental standard intended
to mitigate health or safety risks.

H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use

    This action is not a ``significant energy action'' as defined in
Executive Order 13211 (66 FR 28355 (May 22, 2001)), because it is not
likely to have a significant adverse effect on the supply,
distribution, or use of energy. This proposed rule would require a
label to be placed on E15 fuel dispensers, for those stations that
elect to sell E15. The cost of the labels would average $6.45 per year
per gasoline station. This is a tiny fraction of the station's annual
profit, and is not expected to significantly affect energy
distribution.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272 note)
directs EPA to use voluntary consensus standards in its regulatory
activities unless to do so would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., materials specifications, test methods, sampling
procedures, and business practices) that are developed or adopted by
voluntary consensus standards bodies. NTTAA directs EPA to provide
Congress, through OMB, explanations when the Agency decides not to use
available and applicable voluntary consensus standards.
    This proposed rulemaking does not involve technical standards.
Therefore, EPA is not considering the use of any voluntary consensus
standards.

J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations

    Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes
Federal executive policy on environmental justice. Its main provision
directs Federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.
    EPA has determined that this proposed rule will not have
disproportionately high and adverse human health or environmental
effects on minority or low-income populations because it increases the
level of environmental protection for all affected populations without
having any disproportionately high and adverse human health or
environmental effects on any population, including any minority or low-
income population. This action would affect all gasoline stations that
choose to sell E15 and therefore will not affect any particular area
disproportionately.

List of Subjects in 40 CFR Part 80

    Environmental protection, Air pollution control, Fuel additives,
Diesel, Gasoline, Imports, Incorporation by reference, Labeling, Motor
vehicle pollution, Penalties, Reporting and recordkeeping requirements.

    Dated: October 13, 2010.
Lisa P. Jackson,
Administrator.
    For the reasons set forth in the preamble, 40 CFR part 80 is
proposed to be amended as follows:

PART 80-REGULATION OF FUEL AND FUEL ADDITIVES

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

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

    2. Section 80.45 is amended by adding a new paragraph
(c)(1)(iii)(C) to read as follows:

Sec.  80.45  Complex emissions model.

* * * * *
    (c) * * *
    (1) * * *
    (iii) * * *
    (C) During Phase II, fuels with an ethanol concentration greater
than 10 volume percent and not more than 15 volume percent shall be
evaluated with the OXY fuel parameter set equal to 4.0 percent by
weight when calculating VOCE using the equations described in
paragraphs (c)(1)(i) and (c)(1)(ii) of this section.
* * * * *
    3. A new subpart N is added to read as follows:
Subpart N--Additional Requirements for Gasoline-Ethanol Blends
Sec.
80.1500 Definitions.
80.1501 What are the labeling requirements that apply to retailers
and wholesale purchaser-consumers of gasoline-ethanol blends that
contain greater than 10 volume percent ethanol and not more than 15
volume percent ethanol?
80.1502 What are the survey requirements for gasoline-ethanol
blends?
80.1503 What are the product transfer document requirements for
gasoline-ethanol blends, base gasolines, and conventional
blendstocks for oxygenate blending subject to this subpart?
80.1504 What acts are prohibited under this subpart?
80.1505 Who is liable for violations of this subpart?
80.1506 What penalties apply under this subpart?
80.1507 What are the defenses for acts prohibited under this
subpart?
80.1508 What evidence may be used to determine compliance with the
requirements of this subpart and liability for violations of this
subpart?

Subpart N--Additional Provisions for Gasoline-Ethanol Blends

Sec.  80.1500  Definitions.

    All of the definitions in Sec.  80.2 apply to this subpart. As used
in this subpart:
    (a) Blendstock for oxygenate blending means gasoline blendstock
which could become gasoline solely upon the addition of an oxygenate.
    (b) Conventional blendstock for oxygenate blending means gasoline
blendstock which could become conventional gasoline solely upon the
addition of an oxygenate.
    (c) Carrier has the same meaning as defined in Sec.  80.2(t).
    (d) Conventional gasoline has the same meaning as defined in Sec.
80.2(ff)
    (e) E0 means a gasoline that contains no ethanol.
    (f) E10 means a gasoline-ethanol blend that contains between 9 and
10 volume percent ethanol.
    (g) E15 means a gasoline-ethanol blend that contains greater than
10 volume percent ethanol and not more than 15 volume percent ethanol.
    (h) EX means a gasoline-ethanol blend that contains less than 9
volume percent ethanol where X equals the maximum volume percent
ethanol in the gasoline-ethanol blend.
    (i) EXX means a gasoline-ethanol blend above E15 where XX equals
the maximum volume percent ethanol in the gasoline-ethanol blend.
    (j) Ethanol blender has the same meaning as defined in Sec.
80.2(v).
    (k) Ethanol importer means a person who brings ethanol into the
United States (including from the Commonwealth of Puerto Rico, the
Virgin Islands, Guam, American Samoa, and the Northern Mariana Islands)
for use in motor vehicles and nonroad engines.
    (l) Ethanol producer means any person who owns, leases, operates,
controls, or supervises a facility that produces ethanol for use in
motor vehicles and nonroad engines.
    (m) Flex-fuel vehicle has the same meaning as flexible-fuel vehicle
as defined in Sec.  86.1803-01.
    (n) Fuel dispenser means the apparatus used to dispense fuel into
the fuel tank that is used to power a motor vehicle or a nonroad
engine, and that is attached to a motor vehicle or nonroad engine.
    (o) Gasoline has the same meaning as defined in Sec.  80.2(c).
    (p) Gasoline importer means an importer as defined in Sec.  80.2(r)
that imports gasoline or gasoline blending stocks that could become
gasoline solely upon the addition of oxygenates.
    (q) Gasoline refiner means a refiner as defined as in Sec.  80.2(i)
that produces gasoline or gasoline blending stocks that could become
gasoline solely upon the addition of oxygenates.
    (r) Oxygenate blender has the same meaning as defined in Sec.
80.2(mm).

    (s) Oxygenate blending facility has the same meaning as defined in
Sec.  80.2(ll).
    (t) Regulatory control periods has the same meaning as defined in
Sec.  80.27(a)(1). Regulatory control periods is defined in Sec.
80.27(a)(1) to mean June 1 to September 15 for retail outlets and
wholesale purchaser-consumers and May 1 to September 15 for all other
facilities.
    (u) Retail outlet has the same meaning as defined Sec.  80.2(j).
    (v) Retailer has the same meaning as defined in Sec.  80.2(k).
    (w) Survey series means the four quarterly surveys that comprise a
survey program.
    (x) Sampling strata means the three types of areas sampled during a
survey which include the following:
    (1) Densely populated areas;
    (2) Transportation corridors; and
    (3) Rural areas.
    (y) Wholesale purchaser-consumer has the same meaning as defined in
Sec.  80.2(o).

Sec.  80.1501  What are the labeling requirements that apply to
retailers and wholesale purchaser-consumers of gasoline-ethanol blends
that contain greater than 10 volume percent ethanol and not more than
15 volume percent ethanol?

    (a) Any retailer or wholesale purchaser-consumer who sells,
dispenses, or offers for sale or dispensing, gasoline-ethanol blends
that contain greater than 10 volume percent ethanol and not more than
15 volume percent ethanol shall affix the following conspicuous and
legible label to the fuel dispenser:

CAUTION!
    This fuel contains 15% ethanol maximum
    Use only in:
    2007 and newer gasoline cars
    2007 and newer light-duty trucks
    Flex-fuel vehicles
    This fuel might damage other vehicles and engines. Federal law
prohibits its use in all other vehicles and engines

    (b) Labels shall meet the following requirements for appearance and
placement:
    (1) Dimensions. The label shall measure 3 and \5/8\ inches wide by
3 and \1/8\ inches high.
    (2) Placement. The label shall be placed on the upper two-thirds of
each fuel dispenser in a location that is clearly visible to the
consumer.
    (3) Text. The text shall be centered and the appropriate font and
background shall be used as described in paragraphs (b)(3)(i) through
(iii) and (b)(4)(i) through (iv).
    (i) The word ``CAUTION!'' shall be in 24-point, dark red, bold,
Arial font.
    (ii) The ethanol content ``This fuel contains 15% ethanol maximum''
shall be in 14 point, white, Arial font.
    (iii) All other text on the label shall appear in 14-point, black,
Arial font, except that the word ``prohibits'' shall appear in 14-
point, black, bold, italic, Arial font.
    (4) Color. (i) The background for the area which includes the word
``CAUTION!'', and the ethanol content ``This fuel contains 15% ethanol
maximum'' shall be 1-inch wide and neon-orange in color, except that a
rectangular white background large enough to encompass the word
``CAUTION!'' shall be superimposed on this neon-orange background.
    (ii) The background for all other text on the label shall be white.
    (iii) The label shall have a \1/16\-inch neon-orange three-sided
border to the left, right, and bottom of the area which includes the
text described in paragraph (b)(3)(iii) of this section. This border
shall be attached to the neon-orange background area described in
paragraph (b)(4)(i) of this section.
    (iv) The label shall have a \1/16\-inch white border, located to
the outside of the neon-orange border described in paragraph
(b)(4)(iii) of this section and neon-orange background area described
in paragraph (b)(4)(i) of this section.

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

    No responsible party identified in paragraphs (a) and (b) of this
section shall introduce E15 into commerce until the survey program
requirements in either paragraph (a) or paragraph (b) in this section
are satisfied.
    (a) Survey option 1. In order to satisfy the survey program
requirements, any gasoline refiner, gasoline importer, ethanol blender,
ethanol producer, or ethanol importer shall properly conduct a program
of compliance surveys in accordance with a survey program plan which
has been approved by EPA in all areas which may be supplied with their
gasoline, blendstock for oxygenate blending, ethanol, or gasoline-
ethanol blend if these may be used to manufacture E15 or as E15. Such
approval shall be based upon the survey program plan meeting the
following criteria:
    (1) The survey program shall consist of at least four quarterly
surveys which shall occur during the following time periods:
    (i) One survey during the period January 1 through March 31;
    (ii) One survey during the period April 1 through June 30;
    (iii) One survey during the period July 1 through September 30; and
    (iv) One survey during the period October 1 through December 31.
    (2) The survey program plan shall meet the general requirements of
paragraph (b)(4) of this section.
    (b) Survey option 2.
    (1) To comply with the requirements under this paragraph (b),
ethanol blenders, ethanol producers, ethanol importers, gasoline
refiners, and gasoline importers must participate in the funding of a
consortium which arranges to have an independent survey association
conduct a statistically valid program of compliance surveys pursuant to
a survey program plan which has been approved by EPA, in accordance
with the requirements of paragraphs (b)(2) through (b)(4) and (b)(6) of
this section.
    (2) General requirements. The consortium survey program under this
paragraph (b) must be:
    (i) Planned and conducted by a survey association that is
independent of the ethanol blenders, ethanol producers, ethanol
importers, gasoline refiners, and/or gasoline importers that arrange to
have the survey conducted. In order to be considered independent:
    (A) Representatives of the survey association shall not be an
employee of any ethanol blender, ethanol producer, ethanol importer,
gasoline refiner, or gasoline importer;
    (B) The survey association shall be free from any obligation to or
interest in any ethanol blender, ethanol producer, ethanol importer,
gasoline refiner, or gasoline importer; and
    (C) The ethanol blenders, ethanol producers, ethanol importers,
gasoline refiners, and/or gasoline importers that arrange to have the
survey conducted shall be free from any obligation to or interest in
the survey association.
    (ii) Conducted at retail outlets that sell gasoline; and
    (iii) Represent all gasoline dispensed nationwide.
    (3) Independent Survey Association Requirements. The consortium
described in paragraph (b)(1) of this section shall require the
independent survey association conducting the surveys to:
    (i) Submit to EPA for approval each calendar year a proposed survey
program plan in accordance with the requirements of paragraph (b)(4) of
this section.
    (ii) Obtain samples of gasoline offered for sale at gasoline retail
outlets in accordance with the survey program plan approved under this
paragraph (b), or immediately notify EPA of any refusal of retail
outlets to allow samples to be taken.

    (iii) Test, or arrange to be tested, the samples required under
paragraph (b)(3)(ii) of this section for oxygenate content as follows:
    (A) Samples collected at retail outlets shall be shipped the same
day the samples are collected via overnight service to the laboratory
and analyzed for oxygenate content within 24 hours after receipt of the
sample in the laboratory.
    (B) Any laboratory to be used by the independent survey association
for oxygenate testing shall be approved by EPA and its test method for
determining oxygenate content shall be a method permitted under Sec.
80.46(g).
    (iv) In the case of any test that yields a result that does not
match the label affixed to the product (e.g., a sample greater than 15
volume percent ethanol dispensed from a fuel dispenser labeled as
``E15'' or a sample containing greater than 10 volume percent ethanol
and not more than 15 volume percent ethanol dispensed from a fuel
dispenser not labeled as ``E15''), the independent survey association
shall, within 24 hours after the laboratory receives the sample, send
notification of the test result as follows:
    (A) In the case of a sample collected at a retail outlet at which
the brand name of a gasoline refiner or gasoline importer is displayed,
to the gasoline refiner or gasoline importer, and EPA. This initial
notification to a gasoline refiner or gasoline importer shall include
specific information concerning the name and address of the retail
outlet, contact information, the brand, and the ethanol content of the
sample.
    (B) In the case of a sample collected at other retail outlets, to
the retailer and EPA.
    (C) The independent survey association shall provide notice to the
identified contact person or persons for each party in writing (which
includes e-mail or facsimile) and, if requested by the identified
contact person, by telephone.
    (v) Confirm that each fuel dispenser sampled is labeled as required
in Sec.  80.1501 by confirming that:
    (A) The label meets the appearance and content requirements of
Sec.  80.1501.
    (B) The label is located on the fuel dispenser according to the
requirements in Sec.  80.1501.
    (vi) In the case of a fuel dispenser that is improperly labeled,
the survey association shall provide notice as provided in paragraphs
(b)(2)(iv)(A) through (C) of this section.
    (vii) Provide to EPA quarterly and annual summary survey reports
which include the information specified in paragraph (b)(5) of this
section.
    (viii) Maintain all records relating to the surveys conducted under
this paragraph (b) for a period of at least five (5) years.
    (ix) Permit any representative of EPA to monitor at any time the
conducting of the surveys, including sample collection, transportation,
storage, and analysis.
    (4) Survey Plan Design Requirements. The proposed survey program
plan required under paragraph (b)(3)(i) of this section shall, at a
minimum, include the following:
    (i) Number of Surveys. The survey program plan shall include four
quarterly surveys each calendar year. The four quarterly surveys
collectively are called the survey series as defined in Sec.  80.1500.
    (ii) Sampling Areas. The survey program plan shall include sampling
in all sampling strata, as defined in Sec.  80.1500, during each
survey. These sampling strata shall be further divided into discrete
sampling areas or clusters. Each survey shall include sampling in at
least 40 sampling areas in each stratum which are randomly selected.
    (iii) No advance notice of surveys. The survey plan shall include
procedures to keep the identification of the sampling areas that are
included in any survey plan confidential from any regulated party prior
to the beginning of a survey in an area. However, this information
should not be kept confidential from EPA.
    (iv) Retail outlet selection.
    (A) The retail outlets to be sampled in a sampling area shall be
selected from among all retail outlets in the sampling area that sell
gasoline, with the probability of selection proportionate to the volume
of gasoline sold at the retail outlets; the sample should also include
retail outlets with different brand names as well as those retail
outlets that are unbranded.
    (B) In the case of any retail outlet from which a sample of
gasoline was collected during a survey and determined to have an
ethanol content that does not match the fuel dispenser label (e.g. a
sample greater than 15 volume percent ethanol dispensed from a fuel
dispenser labeled as ``E15'' or a sample with greater than 10 volume
percent ethanol and not more than 15 volume percent ethanol dispensed
from a fuel dispenser not labeled as ``E15''), that retail outlet shall
be included in the subsequent survey.
    (C) One sample of each product dispensed as gasoline shall be
collected at each retail outlet, and separate samples shall be taken
that represent the gasoline contained in each gasoline storage tank
unless collection of separate samples is not practicable.
    (v) Number of samples.
    (A) The minimum number of samples to be included in the survey plan
for each calendar year shall be calculated as follows:

[GRAPHIC] [TIFF OMITTED] TP04NO10.006

Where:

n = minimum number of samples in a year-long survey series. However,
in no case shall n be smaller than 7,500.
Z[alpha] = upper percentile point from the normal distribution to
achieve a one-tailed 95% confidence level (5% [alpha]-level). Thus,
Z[alpha] equals 1.645.
Z[beta] = upper percentile point to achieve 95% power. Thus, Z[beta]
equals 1.645.
[phis]1 = the maximum proportion of non-compliant
stations for a region to be deemed compliant. In this test, the
parameter needs to be 5% or greater, i.e., 5% or more of the
stations, within a stratum such that the region is considered non-
compliant. For this survey, [phis]1 will be 5%.
[phis]0 = the underlying proportion of non-compliant
stations in a sample. For the first survey plan, [phis]0
will be 2.3%. For subsequent survey plans [phis]0, will
be the average of the proportion of stations found to be non-
compliant over the previous four surveys.
Stn = number of sampling strata. For purposes of this
survey program, Stn equals 3.
Fa = adjustment factor for the number of extra samples
required to compensate for collected samples that cannot be included
in the survey, based on the number of additional samples required
during the previous four surveys. However, in no case shall the
value of Fa be smaller than 1.1.
Fb = adjustment factor for the number of samples required
to resample each retail outlet with test results exceeding the
labeled amount (e.g. a sample greater than 15 volume percent ethanol
dispensed from a fuel dispenser labeled

as ``E15'' or a sample with greater than 10 volume percent ethanol
and not more than 15 volume percent ethanol dispensed from a fuel
dispenser not labeled as ``E15''), based on the rate of resampling
required during the previous four surveys. However, in no case shall
the value of Fb be smaller than 1.1.
Sun = number of surveys per year. For purposes of this
survey program, Sun equals 4.

    (B) The number of samples determined pursuant to paragraph
(b)(4)(v)(A) of this section, after being incremented as necessary to
allocate whole numbers of samples to each cluster, shall be distributed
approximately equally for the quarterly surveys conducted during the
calendar year.
    (5) Summary survey reports. The quarterly and annual summary survey
reports required under paragraph (b)(3)(vii) of this section shall
include the following information:
    (i) An identification of the parties that are participating in the
survey.
    (ii) The identification of each sampling area included in a survey
and the dates that the samples were collected in that area.
    (iii) For each retail outlet sampled:
    (A) The identification of the retail outlet;
    (B) The gasoline refiner or gasoline importer brand name displayed,
if any;
    (C) The fuel dispenser labeling (e.g., ``E15'');
    (D) The sample test result for oxygenate content; and
    (E) The test method used to determine oxygenate content under Sec.
80.46(g).
    (iv) Ethanol level summary statistics by brand and unbranded for
each sampling area, strata, and survey series. These summary statistics
shall:
    (A) Include the number of samples, the average, median and range of
ethanol content, expressed in volume percent.
    (B) [Reserved]
    (v) The quarterly reports required under this paragraph (b)(5) are
due 60 days following the end of the quarter. The annual reports
required under this paragraph (b)(5) are due 60 days following the end
of the calendar year.
    (vi) The reports required under this paragraph (b)(5) shall be
submitted to EPA in an electronic spreadsheet.
    (6) Procedures for obtaining approval of survey plan. The first
year in which a survey program is conducted may consist of only a
portion of a calendar year ending on December 31 (i.e. in the initial
year, a survey program may begin on a date after January 1, but would
still end on December 31). Subsequent survey programs shall be
conducted on a calendar year basis. The procedure for obtaining EPA
approval of a survey program plan under this paragraph (b), and for
revocation of such approval, is as follows:
    (i) For the first year in which a survey will be conducted, a
survey program plan that complies with the requirements of this
paragraph (b) must be submitted to EPA no later than 60 days prior to
the date on which the survey program is to begin.
    (ii) For subsequent years in which a survey will be conducted, a
survey program plan that complies with the requirements of this
paragraph (b) must be submitted to EPA no later than November 1 of the
year preceding the calendar year in which the survey will be conducted.
    (iii) The survey program plan must be signed by a responsible
officer of the consortium which arranges to have an independent
surveyor conduct the survey program.
    (iv) The survey program plan must be sent to the following address:
Director, Compliance and Innovative Strategies Division, U.S.
Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Mail Code
6506J, Washington, DC 20460.
    (v) EPA will send a letter to the party submitting the survey
program plan that indicates whether EPA approves or disapproves the
survey plan.
    (vi) EPA may revoke its approval of a survey plan if EPA determines
that the requirements in this section have not been complied with, or
that the provisions of the survey plan approved by EPA pursuant to
paragraph (b)(6)(v) of this section have not been diligently
implemented.
    (vii) The approving official for a survey plan under this section
is the Director of the Compliance and Innovative Strategies Division,
Office of Transportation and Air Quality.
    (viii) Any notifications or reports required to be submitted to EPA
under this paragraph (b) must be directed to the official designated in
paragraph (b)(6)(iv) of this section.
    (7) Independent surveyor contract.
    (i) For the first year in which a survey program will be conducted,
no later than 30 days preceding the start of the survey, the contract
with the independent surveyor shall be in effect, and an amount of
money necessary to carry out the entire survey plan shall be paid to
the independent surveyor or placed into an escrow account with
instructions to the escrow agent to pay the money to the independent
surveyor during the course of the conduct of the survey plan.
    (ii) For subsequent years in which a survey program will be
conducted, no later than December 1 of the year preceding the year in
which the survey will be conducted, the contract with the independent
surveyor shall be in effect, and an amount of money necessary to carry
out the entire survey plan shall be paid to the independent surveyor or
placed into an escrow account with instructions to the escrow agent to
pay the money to the independent surveyor during the course of the
conduct of the survey plan.
    (iii) For the first year in which a survey program will be
conducted, no later than 15 days preceding the start of the survey EPA
must receive a copy of the contract with the independent surveyor and
proof that the money necessary to carry out the survey plan has either
been paid to the independent surveyor or placed into an escrow account;
if the money has been placed into an escrow account, a copy of the
escrow agreement must to be sent to the official designated in
paragraph (b)(6)(iv) of this section.
    (iv) For subsequent years in which a survey program will be
conducted, no later than December 15 of the year preceding the year in
which the survey will be conducted, EPA must receive a copy of the
contract with the independent surveyor and proof that the money
necessary to carry out the survey plan has either been paid to the
independent surveyor or placed into an escrow account; if placed into
an escrow account, a copy of the escrow agreement must be sent to the
official designated in paragraph (b)(6)(iv) of this section.
    (8) Failure to fulfill requirements. A failure to fulfill or cause
to be fulfilled any of the requirements of this paragraph (b) is a
prohibited act under Clean Air Act section 211(c) and Sec.  80.1504.

Sec.  80.1503  What are the product transfer document requirements for
gasoline-ethanol blends, base gasolines, and conventional blendstocks
for oxygenate blending subject to this subpart?

    (a) Product transfer documentation for conventional blendstock for
oxygenate blending, or base gasoline transferred upstream of an ethanol
blending facility.
    (1) In addition to any other product transfer document requirements
under 40 CFR part 80, on each occasion when any person transfers
custody or title to any conventional blendstock for oxygenate blending
which could become conventional gasoline solely upon the addition of
ethanol, or base gasoline upstream of an oxygenate blending facility,
as defined in Sec.  80.2(ll),

the transferor shall provide to the transferee product transfer
documents which include the following information:
    (i) The name and address of the transferor;
    (ii) The name and address of the transferee;
    (iii) The volume of conventional blendstock for oxygenate blending
or gasoline being transferred;
    (iv) The location of the conventional blendstock for oxygenate
blending or gasoline at the time of the transfer;
    (v) The date of the transfer;
    (vi) For gasoline during the regulatory control periods defined in
Sec.  80.27(a)(1):
    (A) The maximum Reid Vapor Pressure (RVP), as determined by a
method permitted under Sec.  80.46(c), stated in the following format:
``The RVP of this base gasoline does not exceed [fill in appropriate
value]''; and
    (B) For base gasoline designed for the special provisions for
gasoline-ethanol blends in Sec.  80.27(d)(2), information about the
suitable ethanol content stated in the following format: ``Designed for
the special RVP provisions for ethanol blends that contain between 9
and 10 volume % ethanol.''
    (C) For base gasoline not described in paragraph (a)(vi)(B) of this
section, information regarding the suitable ethanol content, stated in
the following format: ``Suitable for blending with ethanol at a
concentration of no more than 15 volume percent ethanol.''
    (2) The requirements in paragraph (a)(1) do not apply to
reformulated gasoline blendstock for oxygenate blending, as defined in
Sec.  80.2(kk), which are subject to the product transfer document
requirements of Sec.  80.69 and Sec.  80.77.
    (b) Product transfer documentation for gasoline transferred
downstream of an oxygenate blending facility.
    (1) In addition to any other product transfer document requirements
under 40 CFR part 80, on each occasion when any person transfers
custody or title to any gasoline-ethanol blend downstream of an
oxygenate blending facility, as defined in Sec.  80.2(ll), except for
transfers to the ultimate consumer, the transferor shall provide to the
transferee product transfer documents which include the following
information:
    (i) The name and address of the transferor;
    (ii) The name and address of the transferee;
    (iii) The volume of gasoline being transferred;
    (iv) The location of the gasoline at the time of the transfer;
    (v) The date of the transfer; and
    (vi) One of the statements detailed in paragraph (b)(1)(vi)(A)
though (E) which accurately describes the gasoline-ethanol blend. The
information regarding the ethanol content of the fuel is required year-
round. The information regarding the RVP of the fuel is only required
for gasoline during the regulatory control periods defined in Sec.
80.27(a)(1).
    (A) For gasoline containing no ethanol (E0), the following
statement: ``E0: Contains no ethanol. The RVP does not exceed [fill in
appropriate value] psi.''
    (B) For gasoline containing less than 9 volume percent ethanol, the
following statement: ``EX--Contains up to X% ethanol. The RVP does not
exceed [fill in appropriate value] psi.'' The term X refers to the
maximum volume percent ethanol present in the gasoline.
    (C) For gasoline containing between 9 and 10 volume percent ethanol
(E10), the following statement: ``E10: Contains between 9 and 10 volume
percent ethanol. The RVP does not exceed [fill in appropriate value]
psi.''
    (D) For gasoline containing greater than 10 volume percent and not
more than 15 volume percent ethanol (E15), the following statement:
``E15: Contains up to 15 volume percent ethanol. The RVP does not
exceed [fill in appropriate value] psi;'' or
    (E) For all other gasoline that contains ethanol, the following
statement: ``EXX--Contains no more than XX% ethanol,'' where XX equals
the volume % ethanol.
    (2) Except for transfers to truck carriers, retailers, or wholesale
purchaser-consumers, product codes may be used to convey the
information required under paragraph (b)(1) of this section if such
codes are clearly understood by each transferee.
    (c) The records required by this section must be kept by the
transferor and transferee for five (5) years from the date they were
created or received by each party in the distribution system.
    (d) On request by EPA, the records required by this section must be
made available to the Administrator or the Administrator's authorized
representative. For records that are electronically generated or
maintained, the equipment or software necessary to read the records
shall be made available, or, if requested by EPA, electronic records
shall be converted to paper documents.

Sec.  80.1504  What acts are prohibited under this subpart?

    No person shall--
    (a)(1) Sell, introduce, or cause or allow the sale or introduction
of gasoline containing greater than 10 volume % ethanol (i.e., greater
than E10) into any model year 2000 or older light duty gasoline motor
vehicle, any heavy-duty gasoline motor vehicle or engine, any highway
or off-highway motorcycle, or any gasoline-powered nonroad engines,
vehicles or equipment;
    (2) Notwithstanding Sec.  80.1504(a)(1), no person shall be
prohibited from selling, introducing, or causing or allowing the sale
or introduction of gasoline containing greater than 10 volume % ethanol
into any flex-fuel vehicle.
    (b) Sell, offer for sale, dispense, or otherwise make available at
a retail or wholesale purchaser-consumer facility a gasoline-ethanol
blend that is not correctly labeled as to its ethanol content in
accordance with Sec.  80.1501;
    (c) Fail to fulfill, or cause a failure of the fulfillment of, any
survey required under Sec.  80.1502;
    (d) Fail to generate, use, transfer and maintain product transfer
documents that accurately reflect the type of product, ethanol content,
maximum Reid Vapor pressure (RVP), and other information required under
Sec.  80.1503;
    (e) Improperly blend, or cause the improper blending of, ethanol
into conventional blendstock for oxygenate blending, base gasoline or
gasoline already containing ethanol, in a manner inconsistent with the
information on the product transfer document under Sec.
80.1503(a)(1)(vi) or Sec.  80.1503(b)(1)(vi);
    (f) For gasoline during the regulatory control periods defined in
Sec.  80.27(a)(1), combine any base gasoline or conventional blendstock
for oxygenate blending intended for blending with E10 that took
advantage of the 1 psi waiver applicable for 9-10 volume percent
gasoline-ethanol blends with any gasoline or conventional blendstock
for oxygenate blending intended for blending with E15, unless the
resultant combination is designated, in its entirety, as an E10
blendstock for oxygenate blending.
    (g) For gasoline during the regulatory control periods defined in
Sec.  80.27(a)(1), combine any gasoline-ethanol blend containing E10
that took advantage of the 1 psi waiver applicable to 9-10 volume
percent gasoline-ethanol blends, with any gasoline containing E0 or any
gasoline blend containing E15.
    (h) Fail to meet any other requirement of this subpart.
    (i) Cause another person to commit an act in violation of
paragraphs (a) through (h) of this section.

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

    (a) Persons liable. Any person who violates Sec.  80.1504(a)
through (i) is liable for the violation. In addition, when the gasoline
contained in any storage tank at

any facility owned, leased, operated, controlled or supervised by any
gasoline refiner, gasoline importer, oxygenate blender, carrier,
distributor, reseller, retailer, or wholesale purchaser-consumer is
found in violation of the prohibitions described in Sec.  80.1504(a),
and (c) through (i), the following persons shall be deemed in
violation:
    (1) Each gasoline refiner, gasoline importer, oxygenate blender,
carrier, distributor, reseller, retailer, or wholesale purchaser-
consumer who owns, leases, operates, controls or supervises the
facility where the violation is found.
    (2) Each gasoline refiner or gasoline importer whose corporate,
trade, or brand name, or whose marketing subsidiary's corporate, trade,
or brand name, appears at the facility where the violation is found.
    (3) Each gasoline refiner, gasoline importer, oxygenate blender,
distributor, and reseller who manufactured, imported, sold, offered for
sale, dispensed, supplied, offered for supply, stored, transported, or
caused the transportation of any gasoline which is in the storage tank
containing gasoline found to be in violation.
    (4) Each carrier who dispensed, supplied, stored, or transported
any gasoline which is in the storage tank containing gasoline found to
be in violation, provided that EPA demonstrates, by reasonably specific
showings using direct or circumstantial evidence, that the carrier
caused the violation.
    (b) For label violations under Sec.  80.1504(b), only the wholesale
purchaser-consumer or retailer and the branded gasoline refiner or
branded gasoline importer, if any, shall be liable.
    (c) Each partner to a joint venture, or each owner of a facility
owned by two or more owners, is jointly and severally liable for any
violation of this subpart that occurs at the joint venture facility or
a facility that is owned by the joint owners, or a facility that is
committed by the joint venture operation or any of the joint owners of
the facility.
    (d) Any parent corporation is liable for any violations of this
subpart that are committed by any of its solely-owned subsidiaries.

Sec.  80.1506  What penalties apply under this subpart?

    (a) Any person under Sec.  80.1505 who is liable for a violation
under Sec.  80.1504 is subject to an administrative or civil penalty,
as specified in sections 205 and 211(d) of the Clean Air Act, for every
day of each such violation and the amount of economic benefit or
savings resulting from the violation.
    (b)(1) Any violation of any requirement that pertains to the
ethanol content of gasoline shall constitute a separate day of
violation for each and every day such gasoline giving rise to such
violations remains any place in the gasoline distribution system,
beginning on the day that the gasoline that violates such requirement
is produced or imported and distributed and/or offered for sale, and
ending on the last day that any such gasoline is offered for sale or is
dispensed to any ultimate consumer for use in any motor vehicle, unless
the violation is corrected by altering the properties and
characteristics of the gasoline giving rise to the violations and any
mixture of gasolines that contains any of the gasoline giving rise to
the violations such that the gasoline or mixture of gasolines has the
properties and characteristics that would have existed if the gasoline
giving rise to the violations had been produced or imported in
compliance with all requirements that pertain to the ethanol content of
gasoline.
    (2) For the purposes of this paragraph (b), the length of time the
gasoline in question remained in the gasoline distribution system shall
be deemed to be twenty-five days; unless the respective party or EPA
demonstrates by reasonably specific showings, using direct or
circumstantial evidence, that the gasoline giving rise to the
violations remained any place in the gasoline distribution system for
fewer than or more than twenty-five days.
    (c) Any violation of any affirmative requirement or prohibition not
included in paragraph (b) of this section shall constitute a separate
day of violation for each and every day such affirmative requirement is
not properly accomplished, and/or for each and every day the prohibited
activity continues. For those violations that may be ongoing each and
every day the prohibited activity continues shall constitute a separate
day of violation.

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

    (a) Defenses for prohibited activities.
    (1) In any case in which a gasoline refiner, gasoline importer,
oxygenate blender, carrier, distributor, reseller, retailer, or
wholesale purchaser-consumer would be in violation under Sec.
80.1504(a), and (c) through (i) it shall be deemed not in violation if
it can demonstrate:
    (i) That the violation was not committed or caused by the regulated
party or its employee or agent;
    (ii) That product transfer documents account for all of the
gasoline in the storage tank found in violation and indicate that the
gasoline met relevant requirements; and
    (iii)(A) That it has conducted a quality assurance program,
including a sampling and testing program, as described in paragraph (b)
of this section;
    (B) A carrier may rely on the sampling and testing program carried
out by another party, including the party that owns the gasoline in
question, provided that the sampling and testing program is carried out
properly.
    (2)(i) Where a violation is found at a facility which is operating
under the corporate, trade or brand name of a refiner, that refiner
must show, in addition to the defense elements required by paragraph
(a)(1) of this section, that the violation was caused by:
    (A) An act in violation of law (other than the Act or this part),
or an act of sabotage or vandalism;
    (B) The action of any reseller, distributor, oxygenate blender,
carrier, or a retailer or wholesale purchaser-consumer supplied by any
of these persons, in violation of a contractual undertaking imposed by
the gasoline refiner designed to prevent such action, and despite
periodic sampling and testing by the gasoline refiner to ensure
compliance with such contractual obligation; or
    (C) The action of any carrier or other distributor not subject to a
contract with the gasoline refiner but engaged by the gasoline refiner
for transportation of gasoline, despite specification or inspection of
procedures and equipment by the gasoline refiner which are reasonably
calculated to prevent such action.
    (ii) In this paragraph (a), to show that the violation ``was
caused'' by any of the specified actions the party must demonstrate by
reasonably specific showings using direct or circumstantial evidence,
that the violation was caused or must have been caused by another.
    (3) For label violations under Sec.  80.1504(b), the branded
gasoline refiner or branded gasoline importer shall not be deemed
liable if the requirements of paragraph (b)(4) of this section are met.
    (b) Quality assurance program. In order to demonstrate an
acceptable quality assurance program for gasoline at all points in the
gasoline distribution network, other than at retail outlets and
wholesale purchaser-consumer facilities, a party must present evidence
of the following in addition to other regular appropriate quality
assurance procedures and practices.
    (1) A periodic sampling and testing program to determine if the
gasoline

contains applicable maximum and/or minimum volume percent of ethanol.
    (2) That on each occasion when gasoline is found in noncompliance
with one of the requirements referred to in paragraph (b)(1) of this
section:
    (i) The party immediately ceases selling, offering for sale,
dispensing, supplying, offering for supply, storing, transporting, or
causing the transportation of the violating product; and
    (ii) The party promptly remedies the violation (such as by removing
the violating product or adding more complying product until the
applicable requirements are achieved).
    (3) An oversight program conducted by a carrier under paragraph
(b)(1) of this section need not include periodic sampling and testing
of gasoline in a tank truck operated by a common carrier, but in lieu
of such tank truck sampling and testing the common carrier shall
demonstrate evidence of an oversight program for monitoring compliance
with the requirements of Sec.  80.1504 relating to the transport or
storage of gasoline by tank truck, such as appropriate guidance to
drivers on compliance with applicable requirements and the periodic
review of records normally received in the ordinary course of business
concerning gasoline quality and delivery.
    (4) The periodic sampling and testing program specified in
paragraph (b)(1) of this section shall be deemed to have been in effect
during the relevant time period for any party, including branded
gasoline refiners and branded gasoline importers, if:
    (i) An EPA approved survey program under Sec.  80.1502 was in
effect and was executed fully and properly;
    (ii) Any retailer at which a violation was discovered allowed
survey inspectors to take samples and inspect labels; and
    (iii) For truck loading terminals and truck distributors that
perform oxygenate blending, additional quality assurance procedures and
practices were in place, such as regular checks to reconcile volumes of
ethanol in inventory and regular checks of equipment for proper ethanol
blend rates.

Sec.  80.1508  What evidence may be used to determine compliance with
the requirements of this subpart and liability for violations of this
subpart?

    (a) Compliance with the requirements of this subpart pertaining to
the ethanol content of gasoline shall be determined based on the
ethanol level of the gasoline, measured using the methodologies
specified in Sec.  80.46(g). Any evidence or information, including the
exclusive use of such evidence or information, may be used to establish
the ethanol content of gasoline if the evidence or information is
relevant to whether the ethanol content of gasoline would have been in
compliance with the requirements of this subpart if the appropriate
sampling and testing methodology had been correctly performed. Such
evidence may be obtained from any source or location and may include,
but is not limited to, test results using methods other than those
specified in Sec.  80.46(g), business records, and commercial
documents.
    (b) Determinations of compliance with the requirements of this
subpart other than those pertaining to the ethanol content of gasoline,
and determinations of liability for any violation of this subpart, may
be based on information obtained from any source or location. Such
information may include, but is not limited to, business records and
commercial documents.

[FR Doc. 2010-27446 Filed 11-3-10; 8:45 am]
BILLING CODE 6560-50-P


[Federal Register: September 2, 2009 (Volume 74, Number 169)]
[Notices]
[Page 45502-45504]
[DOCID:fr02se09-96]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-60571; File No. SR-BX-2009-051]

Self-Regulatory Organizations; NASDAQ OMX BX, Inc.; Notice of
Filing and Immediate Effectiveness of Proposed Rule Change To Eliminate
Flash and Cancel Orders

August 26, 2009.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that
on August 21, 2009, NASDAQ OMX BX, Inc. (the ``Exchange'') filed with
the Securities and Exchange Commission (``Commission'') the proposed
rule change as described in Items I and II below, which Items have been
prepared by the Exchange. The Exchange has designated the proposed rule
change as constituting a non-controversial rule change under Section
19(b)(3)(A) of the Act \3\ and Rule 19b-4(f)(6) thereunder,\4\ which
renders the proposal effective upon filing with the Commission. The
Commission is publishing this notice to solicit comments on the
proposed rule change from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ 15 U.S.C. 78s(b)(3)(A).
    \4\ 17 CFR 240.19b-4(f)(6).
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    The Exchange proposes to eliminate Flash and Cancel Orders. The
Exchange has filed this proposal under Exchange Act Rule 19b-4(f)(6)
\5\ and, as such, the proposal is immediately effective. The

Exchange will implement the proposed rule change on September 1, 2009.
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    \5\ 17 CFR 240.19b-4(f)(6).
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    The text of the proposed rule change is available from the
principal office of the Exchange, at the Commission's Public Reference
Room and also on the Exchange's Internet Web site at http://
nasdaqtrader.com/Trader.aspx?id=Boston_Stock_Exchange.

II. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, the Exchange included statements
concerning the purpose of and basis for the proposed rule change and
discussed any comments it received on the proposed rule change. The
text of these statements may be examined at the places specified in
Item IV below. The Exchange has prepared summaries, set forth in
Sections A, B, and C below, of the most significant aspects of such
statements.

A. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change

1. Purpose
    Nasdaq OMX BX implemented Flash and Cancel Orders on July 20,
2009.\6\ Upon further review, Nasdaq OMX BX proposes to eliminate Flash
and Cancel Orders effective September 1, 2009.
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    \6\ See SR-BX-2009-029.
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2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent
with the provisions of Section 6 of the Act,\7\ in general, and with
Section 6(b)(5) of the Act,\8\ in particular, in that the proposal is
designed to prevent fraudulent and manipulative acts and practices, to
promote just and equitable principles of trade, to foster cooperation
and coordination with persons engaged in regulating, clearing,
settling, processing information with respect to, and facilitating
transactions in securities, to remove impediments to and perfect the
mechanism of a free and open market and a national market system, and,
in general, to protect investors and the public interest.
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    \7\ 15 U.S.C. 78f.
    \8\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange does not believe that the proposed rule change will
result in any burden on competition that is not necessary or
appropriate in furtherance of the purposes of the Act, as amended.

C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants or Others

    Written comments on the proposed rule change were neither solicited
nor received.

III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action

    Because the foregoing rule change does not: (1) Significantly
affect the protection of investors or the public interest; (2) impose
any significant burden on competition; and (3) become operative for 30
days after the date of this filing, or such shorter time as the
Commission may designate, it has become effective pursuant to Section
19(b)(3)(A) of the Act \9\ and Rule 19b-4(f)(6) thereunder.\10\
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    \9\ 15 U.S.C. 78s(b)(3)(A).
    \10\ 17 CFR 240.19b-4(f)(6).
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    A proposed rule change filed under Rule 19b-4(f)(6) normally may
not become operative prior to 30 days after the date of filing.\11\
However, Rule 19b-4(f)(6)(iii) \12\ permits the Commission to designate
a shorter time if such action is consistent with the protection of
investors and the public interest. The Exchange has requested that the
Commission waive the 30-day operative delay. The Exchange requests this
waiver so as to allow it to eliminate Flash and Cancel Orders on
September 1, 2009.\13\ Based on the foregoing, the Commission believes
that waiving the 30-day operative delay is consistent with the
protection of investors and the public interest and hereby designates
the proposal operative on September 1, 2009.\14\
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    \11\ 17 CFR 240.19b-4(f)(6)(iii). In addition, Rule 19b-
4(f)(6)(iii) requires that a self-regulatory organization submit to
the Commission written notice of its intent to file the proposed
rule change, along with a brief description and text of the proposed
rule change, at least five business days prior to the date of filing
of the proposed rule change, or such shorter time as designated by
the Commission. The Exchange has satisfied this requirement.
    \12\ Id.
    \13\ See SR-BX-2009-051, Item 7.
    \14\ For the purposes only of waiving the 30-day operative
delay, the Commission has considered the proposed rule's impact on
efficiency, competition, and capital formation. See 15 U.S.C.
78c(f).
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    At any time within 60 days of the filing of such proposed rule
change the Commission may summarily abrogate such rule change if it
appears to the Commission that such action is necessary or appropriate
in the public interest, for the protection of investors or otherwise in
furtherance of the purposes of the Act.

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views and
arguments concerning the foregoing, including whether the proposed rule
change is consistent with the Act. Comments may be submitted by any of
the following methods:

Electronic Comments

     Use the Commission's Internet comment form (http://
www.sec.gov/rules/sro.shtml); or
     Send an e-mail to<EMAIL_ADDRESS>Please include
File No. SR-BX-2009-051 on the subject line.

Paper Comments

     Send paper comments in triplicate to Elizabeth M. Murphy,
Secretary, Securities and Exchange Commission, 100 F Street, NE.,
Washington, DC 20549-1090.
All submissions should refer to File No. SR-BX-2009-051. This file
number should be included on the subject line if e-mail is used. To
help the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's Internet Web site (http://www.sec.gov/rules/
sro.shtml). Copies of the submission, all subsequent amendments, all
written statements with respect to the proposed rule change that are
filed with the Commission, and all written communications relating to
the proposed rule change between the Commission and any person, other
than those that may be withheld from the public in accordance with the
provisions of 5 U.S.C. 552, will be available for inspection and
copying in the Commission's Public Reference Room, 100 F Street, NE.,
Washington, DC 20549, on official business days between the hours of 10
a.m. and 3 p.m. Copies of such filing also will be available for
inspection and copying at the principal office of the Exchange. All
comments received will be posted without change; the Commission does
not edit personal identifying information from submissions. You should
submit only information that you wish to make available publicly. All
submissions should refer to File No. SR-BX-2009-051 and should be
submitted on or before September 23, 2009.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\15\
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    \15\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Deputy Secretary.
[FR Doc. E9-21165 Filed 9-1-09; 8:45 am]

BILLING CODE 8010-01-P