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(f) Compliance (k) Related Information I. Introduction Comply with this AD within the For more information about this AD, The Federal Trade Commission compliance times specified, unless already contact Paul Chapman, Aerospace Engineer, proposes amending its Fuel Rating Rule, done. Airframe Branch, ACE–118W, FAA, Wichita Aircraft Certification Office (ACO), 1801 16 CFR part 306, to provide: (1) Revised (g) Repetitive Inspections Airport Road, Room 100, Mid-Continent rating, certification, and labeling Before the accumulation of 7,400 total Airport, Wichita, Kansas 67209; telephone requirements for blends of gasoline and flight hours or within 6 months after the (316) 946–4152; fax (316) 946–4107. more than 10 percent ethanol (‘‘ethanol effective date of this AD, whichever occurs Issued in Renton, Washington, on March blends’’); and 2) an additional octane later, perform a radiographic (x-ray) 28, 2014. rating method for gasoline. The inspection or a borescope inspection for Jeffrey E. Duven, Commission previously proposed cracking of the horizontal stabilizer rib amendments governing ethanol blends Manager, Transport Airplane Directorate, assemblies, in accordance with a method in a 2010 Notice of Proposed approved by the Manager, Wichita Aircraft Aircraft Certification Service. Rulemaking (‘‘2010 NPRM’’).1 After Certification Office (ACO), FAA. Repeat the [FR Doc. 2014–07520 Filed 4–3–14; 8:45 am] reviewing the comments, the inspection thereafter at intervals not to BILLING CODE 4910–13–P exceed 2,400 flight hours. For an inspection Commission responded in April 2011 by method to be approved by the Manager, publishing final amendments Wichita ACO, as required by this paragraph, addressing other issues. Specifically, the the Manager’s approval letter must FEDERAL TRADE COMMISSION Commission approved a new octane specifically refer to this AD. 16 CFR Part 306 rating method and declined to amend (h) Replacement the biodiesel and biomass-based diesel 2 If any cracking is found during any Automotive Fuel Ratings, Certification provisions. The Commission deferred inspection required by paragraph (g) of this and Posting consideration of ethanol blend labeling AD: Before further flight, replace the to consider an Environmental Protection horizontal rib assemblies with new AGENCY: Federal Trade Commission Agency (‘‘EPA’’) decision permitting the horizontal rib assemblies, in accordance with (‘‘FTC’’ or ‘‘Commission’’). use of ethanol blends between 10 to 15 method to be approved by the Manager, ACTION: Notice of proposed rulemaking. percent concentration (‘‘E15’’) in 2001 Wichita ACO. For a replacement method to and newer conventional vehicles.3 The SUMMARY: The Commission proposes be approved by the Manager, Wichita ACO, Commission now proposes ethanol- amendments to its Rule for Automotive as required by this paragraph, the Manager’s labeling amendments in response to approval letter must specifically refer to this Fuel Ratings, Certification and Posting comments received on the 2010 NPRM AD. This replacement does not terminate the (‘‘Fuel Rating Rule’’ or ‘‘Rule’’) that proposals, EPA’s action, and changes in repetitive inspection requirements of would adopt and revise rating, an ASTM International specification paragraph (g) of this AD. certification, and labeling requirements regarding ethanol. (i) Special Flight Permit for ethanol-gasoline blends and would The amendments proposed today Special flight permits may be issued in allow an alternative octane rating retain the 2010 NPRM’s proposal that accordance with sections 21.197 and 21.199 method. The proposed amendments entities rate and certify all ethanol of the Federal Aviation Regulations (14 CFR further the Rule’s goal of helping blends, but alter the proposed ethanol 21.197 and 21.199) to operate the airplane to purchasers identify the correct fuel for label’s disclosures, to provide a location where the airplane can be repaired their vehicles. (if the operator elects to do so), provided the consumers with more precise DATES: Comments on the proposed concentration and suitability restrictions specified in paragraphs (i)(1) information requests must be received through (i)(4) of this AD are followed. information. The new proposed (1) Do not exceed 10 flight hours of on or before June 2, 2014. amendments also exempt EPA-approved operation. ADDRESSES: Interested parties may file a E15 from the Commission’s labeling (2) Only operations under daylight comment online or on paper, by requirements. conditions and under visual flight rules are following the instructions in the The Commission also proposes an allowed. Request for Comment part of the additional octane rating method that (3) Only operations with the minimum SUPPLEMENTARY INFORMATION section flightcrew and with no passengers are below. Write ‘‘Fuel Rating Rule Review, 1 Federal Trade Commission: Automotive Fuel allowed. 16 CFR Part 306, Project No. R811005’’ Ratings, Certification and Posting: Notice of (4) Do not exceed maneuver speed as on your comment, and file your Proposed Rulemaking (‘‘2010 NPRM’’), 75 FR 12470 specified in the applicable airplane flight (Mar. 16, 2010). manual. comment online at https:// 2 Federal Trade Commission: Automotive Fuel ftcpublic.commentworks.com/ftc/ Ratings, Certification and Posting: Final Rule (j) Alternative Methods of Compliance autofuelratingscertnprm by following Amendments (‘‘2011 Final Amendments’’), 76 FR (AMOCs) the instructions on the web-based form. 19684 (Apr. 8, 2011). (1) The Manager, Airframe Branch, ACE– If you prefer to file your comment on 3 EPA made this decision through a two-step process. First, the agency approved E15 for 2007 118W, FAA, has the authority to approve paper, mail or deliver your comment to AMOCs for this AD, if requested using the and newer vehicles. Environmental Protection the following address: Federal Trade Agency: Partial Grant and Partial Denial of Clean procedures found in 14 CFR 39.19. In Air Act Waiver Application Submitted by Growth accordance with 14 CFR 39.19, send your Commission, Office of the Secretary, Room H–113 (Annex N), 600 Energy to Increase the Allowable Ethanol Content request to your principal inspector or local of Gasoline to 15 Percent; Decision of the Flight Standards District Office, as Pennsylvania Avenue NW., Washington, Administrator (‘‘EPA Waiver Decision I’’), 75 FR appropriate. If sending information directly DC 20580. 68094 (Nov. 4, 2010). Then, it expanded its to the manager of the ACO, send it to the FOR FURTHER INFORMATION CONTACT: approval to 2001 and newer vehicles, based on attention of the person identified in the additional test data. Environmental Protection Miriam Lederer, (202) 326–2975, Agency, Partial Grant of Clean Air Act Waiver Related Information section of this AD. Division of Enforcement, Bureau of (2) Before using any approved AMOC, Application Submitted by Growth Energy to Increase the Allowable Ethanol Content of Gasoline notify your appropriate principal inspector, Consumer Protection, Federal Trade Commission, 600 Pennsylvania Avenue to 15 Percent; Decision of the Administrator (‘‘EPA or lacking a principal inspector, the manager Waiver Decision II’’), 76 FR 4662 (Jan. 26, 2011). For of the local flight standards district office/ NW., Washington, DC 20580. ease of discussion, this document refers to them certificate holding district office. SUPPLEMENTARY INFORMATION: together as the EPA ‘‘waiver decision.’’

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uses infrared sensor technology (the The Fuel Rating Rule designates specific percentage. For all ethanol ‘‘infrared method’’) to measure gasoline methods for rating and certifying fuels, blends, the proposed labels contained octane levels. Although the Commission as well as posting the ratings at the the additional disclosures ‘‘may harm did not propose this rating method in point of sale. The Rule also requires some vehicles’’ and ‘‘check owner’s the 2010 NPRM, several commenters, refiners, importers, and producers of manual.’’ The Commission explained including state regulatory agencies, any liquid automotive fuel to determine that the labels’ ‘‘additional information supported its use. a fuel’s ‘‘automotive fuel rating’’ before should assist consumers in identifying To accomplish these goals, this transferring it to a distributor or retailer. the proper fuel for their vehicles.’’ 16 document first provides background on Any covered entity, including a As described in detail below, the Fuel Rating Rule, ethanol blends, distributor, that transfers a fuel must commenters responding to the 2010 and this rulemaking’s procedural certify the fuel’s rating to the transferee NPRM objected to several aspects of the history. Then, it discusses the additions either by including it in papers proposed ethanol labeling requirements to the record since the 2010 NPRM.4 accompanying the transfer or by letter.10 and suggested various revisions. Finally, it responds to the new record The Rule also requires retailers to post Generally, they favored a more precise evidence and describes the new the fuel rating by adhering a label to the disclosure of the fuel’s ethanol proposed amendments in detail. retail fuel pump; the Rule provides concentration and a more specific disclosure concerning the fuel’s proper II. Background precise specifications regarding the content, size, color, and font of the use. They also encouraged the FTC to A. The Fuel Rating Rule labels.11 coordinate its labeling requirements with EPA’s developing labeling The Commission first promulgated B. Ethanol the Fuel Rating Rule, 16 CFR Part 306 requirements for E15. In addition, many Ethanol is a renewable fuel made from commenters urged the Commission to (then titled the ‘‘Octane Certification 12 and Posting Rule’’), in 1979, in corn or other plant materials. Fuel allow the infrared method as an 17 accordance with the Petroleum producers and retailers can blend additional octane rating method. Marketing Practices Act (‘‘PMPA’’), 15 ethanol with gasoline in various On April 8, 2011, in light of the U.S.C. 2801 et seq.5 The Rule originally concentrations. Almost all gasoline in commenters’ feedback and EPA’s applied only to gasoline. In 1993, the United States contains ethanol in a pending E15 rulemaking, the pursuant to PMPA amendments, the low-level blend composed of up to 10 Commission published final percent ethanol and 90 percent amendments addressing the 2010 Commission expanded the Rule to cover 13 all alternative liquid fuels.6 Currently, gasoline. EPA recently approved the NPRM’s non-ethanol provisions but the Rule identifies a non-exhaustive list use of E15 in conventional vehicles announced that it would consider of ‘‘alternative liquid automotive fuels.’’ model year (‘‘MY’’) 2001 and newer, issuing ethanol-labeling amendments 14 That list does not include ethanol subject to certain conditions. and the infrared method at a later date.18 blends below 70 percent concentration.7 C. Procedural History PMPA authorizes the Commission to This rulemaking began in 2009 when III. The Record require octane ratings, cetane ratings the Commission solicited general The Commission received 54 (for diesel fuel), or ‘‘another form of comments on the Fuel Rating Rule.15 comments in response to the 2010 rating’’ that it determines is more NPRM that addressed ethanol appropriate to carry out the Act’s After reviewing those comments, the labeling.19 In addition, EPA issued final purposes. For alternative fuels, the 1993 Commission published the 2010 NPRM rules governing use of E15 in amendments require a rating that is ‘‘the proposing, among other things, three conventional cars, including a pump commonly used name of the fuel with changes to the Fuel Rating Rule’s label for E15 dispensers. Furthermore, a disclosure of the amount, expressed as ethanol fuel provisions. First, the ASTM International (‘‘ASTM’’) a minimum percentage by volume, of proposed amendments required rating substantially revised its ethanol fuel the principal component of the fuel.’’ 8 ethanol-gasoline blends by the specification for ethanol percentages in In promulgating those amendments, the percentage of ethanol, rather than the higher concentration ethanol blends. Commission determined that this rating currently required ‘‘principal Finally, the Commission received many was appropriate because octane ratings component,’’ in order to accurately label comments, including from industry, might mislead consumers to believe that ethanol blends below 50 percent concentration. Second, the proposed state regulatory agencies, and a gasoline and alternative fuels are consumer advocacy group supporting interchangeable and that alternative amendments defined a new class of ethanol blends containing more than 10 the use of the infrared method in testing fuels’ high octane ratings ‘‘signif[y] octane. higher quality and better but less than 70 percent ethanol as performance.’’ 9 ‘‘mid-level ethanol blends.’’ Third, the A. Comments Received in Response to proposed amendments added new the 2010 NPRM’s Proposed Ethanol 4 For a discussion of comments regarding other labeling requirements for ethanol Labeling issues, see 2011 Final Amendments, 76 FR at blends. For mid-level ethanol blends, 19686–87. the labels would disclose the ethanol Commenters generally objected to the 5 Federal Trade Commission: Automotive Fuel content as a broad range of ‘‘10 to 70 2010 ethanol-labeling proposal, but Ratings, Certification and Posting: Final Rule, 44 FR percent ethanol,’’ a narrower range, or a 19160 (Mar. 30, 1979). 16 2010 NPRM, 75 FR at 12474. 6 Federal Trade Commission: Automotive Fuel 17 Commenters had not previously mentioned the 10 Ratings, Certification and Posting: Final Rule 16 CFR 306.6. infrared method, and the Commission did not (‘‘1993 Final Rule’’), 58 FR 41356 (Aug. 3, 1993). 11 16 CFR 306.10; 306.12. propose it in the 2010 NPM. Therefore, the 7 16 CFR 306.0(i)(2). 12 See www.afdc.energy.gov/fuels/ethanol.html. Commission declined to issue final amendments 8 16 CFR 306.0(j)(2). For blends with more than 13 See www.afdc.energy.gov/fuels/ethanol_ including the infrared method without providing 5 percent biodiesel or biomass-based diesel, the blends.html. notice and opportunity for comment on it. 2011 rating is a ‘‘disclosure of the biomass-based diesel 14 EPA Waiver Decision II, 76 FR 4662. Final Amendments, 76 FR at 19689. or biodiesel component, expressed as a percentage 15 Federal Trade Commission: Automotive Fuel 18 Id. by volume.’’ 16 CFR 306.0(j)(3). Ratings, Certification and Posting: Request for 19 These comments are located at: www.ftc.gov/ 9 58 FR at 41361. Public Comments, 74 FR 9054 (Mar. 2, 2009). os/comments/fuelratingnprm.

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their reasons differed. The Renewable ‘‘representations as to the quality of the that these statements foreclosed Fuels Association (‘‘RFA’’) and Growth fuel or potential impacts on vehicle interpreting ‘‘automotive fuel rating’’ to Energy, an association of ethanol performance.’’ 23 They therefore argued include the proposed disclosures.32 producers, argued that the FTC lacks that the proposed disclosure ‘‘May harm 2. Objections to the Proposed Labels legal authority to promulgate the some vehicles/Check owner’s manual’’ proposed labeling requirements. In did not fall within the definition of Commenters disagreed about the form addition, these commenters, along with ‘‘automotive fuel rating.’’ 24 Moreover, and content of the proposed ethanol other individuals and businesses, RFA viewed the proposed disclosures as disclosures. Ethanol-industry asserted that the proposed labels’ denigrating to the ethanol blends’ commenters viewed the disclosures as suitability disclosures, ‘‘May harm some performance and quality and, therefore, excessive and urged what they vehicles’’ and ‘‘Check owner’s manual,’’ beyond PMPA’s authority.25 characterized as more neutral content. unfairly conveyed a negative message Growth Energy likewise focused on In contrast, consumer groups, petroleum about the fuel.20 In contrast, other the definition of ‘‘automotive fuel industry groups, auto and other engine commenters, including consumer rating,’’ arguing that the statute’s intent manufacturing groups, as well as groups, petroleum industry members was only to require octane, cetane, or individual commenters, criticized the and organizations, engine manufacturer similar ratings. The Act states: ‘‘The disclosures as inadequate given the risks organizations, and state regulators, term ‘automotive fuel rating’ means (A) of using ethanol blends in conventional argued that the risks from ethanol the octane rating of an automotive vehicles. misfueling necessitated stronger spark-ignition engine fuel; and (B) if a. Criticism of Proposed Labels as suitability language and a more precise provided for by the Federal Trade Unnecessary and Unfair disclosure regarding the percentage of Commission by rule, the cetane rating of ethanol in the fuel.21 diesel fuel oils; or (C) another form of Ethanol-industry commenters rating....’’26 Growth Energy argued presented several arguments that the 1. Objections to the Proposed Labeling that the use of ‘‘and’’ and ‘‘or’’ proposed ethanol labels were Requirements as Beyond the FTC’s evidences an intent that the FTC require unnecessary and unfair. As discussed Authority either octane and cetane ratings or below, three of these commenters RFA and Growth Energy argued that another, similar rating in their place.27 disputed evidence that ethanol blends PMPA did not authorize the FTC to Growth Energy further asserted that harm conventional engines, and all require the ethanol labels proposed in principles of statutory construction asserted that the proposed labels the 2010 NPRM. They asserted that require the Commission to read denigrated ethanol blends. In addition, PMPA permitted the FTC to require that ‘‘another form of rating’’ in light of the several argued that the amended Rule retailers display only ‘‘automotive fuel other listed ratings. Thus, according to would unfairly require the proposed rating[s].’’ 22 RFA asserted that, under Growth Energy, the statutory language disclosures only for ethanol blends PMPA, the term ‘‘automotive fuel ‘‘makes it unambiguous that Congress rather than all alternative fuels. To rating’’ does not include wanted to require any other rating forms address these issues, almost all of these that the FTC might attempt to commenters 33 suggested, among other 20 The following commenters specifically promulgate to be similar in purpose to things, replacing the proposed language supported Growth Energy’s comment: Bob Haskins octane or cetane ratings.’’ 28 with ‘‘flex-fuel vehicles only,’’ or Racing; ‘‘Eichstadt’’; Kurt Felker; Donna Funk; In further support of their reading of substantially similar language.34 ‘‘Gill’’; David Gloer; ‘‘Kelleher’’; Kelley Manning; As a threshold issue, three and Jonathan Overly. In addition to commenters PMPA, Growth Energy and RFA cited supporting Growth Energy, the following statements in the Congressional Record commenters disagreed that the evidence individuals and entities submitted brief comments regarding the 1992 amendments to the established that there is a significant voicing support for ethanol fuels and/or criticisms statute.29 In particular, Growth Energy risk to consumers’ vehicles from ethanol of the proposed labels as unfair to those fuels: Dale fuel use. RFA stated that earlier Calendine; James Foley; Michael Green; Kelly cited statements describing the Hansen; ‘‘Jarman’’; Steve Murphy; William amendments as extending the statute’s comments noting potential risks from Nankervis; Philbro; POET Biorefining; Patrick Reid; octane rating requirements to other ethanol ‘‘provide no evidence that mid- and Dan Sanders. Growth Energy, RFA, ICM, Inc., fuels, thereby allowing consumers to level ethanol blends or E85 will damage and the American Coalition for Ethanol (‘‘ACE’’), conventional vehicles,’’ explaining: along with the other commenters identified in this compare different fuels’ octane footnote are hereinafter referred to collectively as ratings.30 RFA noted that in its 1993 There are many ongoing projects ‘‘ethanol-industry commenters.’’ The Commission rulemaking, the Commission relied researching the effects of E15 and E20 on recognizes that some of these commenters may not upon legislative history describing an vehicle engine, catalysts, Powertrain systems, be ethanol industry members or employees, and is fuel system damper, level sensors, and using the term only as shorthand for the purposes intent to ensure that consumers ‘‘have a general material compatibility. This research of this document. right to know what they pay for, and 21 Specifically, these commenters were: The . . . dealers have a right to know that 32 Center for Auto Safety; the American Petroleum their competitors are not cheating.’’ 31 Id. at 3; Growth Energy Comment at 8. Growth Institute; Marathon Petroleum Company, LLC; the Energy made two additional arguments related to Alliance of Automobile Manufacturers; the Growth Energy and RFA maintained process. First, it argued that the Commission has Association of International Automobile not fulfilled its obligation under PMPA to consult Manufacturers; the Clean Vehicle Education 23 RFA comment at 3. with ASTM. Growth Energy comment at 13. Foundation; the Alliance for a Sane Alternative 24 Id. Second, it argued that the Commission must assess how the proposed disclosures further the Fuels Environment; the National Marine 25 RFA comment at 3. Manufacturers Association; the Tennessee, New ‘‘objectives of an octane rating’’ before requiring an 26 15 U.S.C. 2821(17) (emphasis added). York, and Missouri Departments of Agriculture; and alternative rating. Id. at 14. 27 the New York Department of Environmental Growth Energy comment at 11. 33 RFA opposed any narrative disclosure, arguing Conservation. 28 Id. at 11–12. that ‘‘[t]he ethanol content of the fuel is sufficient 22 PMPA’s definition of ‘‘automotive fuel ratings’’ 29 Growth Energy also cited the original PMPA’s to inform consumers’’ of misfueling risk. RFA includes: Octane ratings; cetane ratings; or ‘‘another legislative history as indicating intent to require comment at 8. form of rating determined by the Federal Trade retailers to post only octane ratings. Growth Energy 34 See, e.g., ACE comment at 2; ICM, Inc. Commission, after consultation with [ASTM], to be comment at 7. comment at 2. Growth Energy favored voluntary more appropriate to carry out the purposes of this 30 Growth Energy comment at 8. labeling guidelines that would include ‘‘Flex Fuel subchapter with respect to the automotive fuel 31 RFA comment at 2–3 (internal quotation marks Vehicles Only’’ on the labels. Growth Energy concerned. 15 U.S.C. 2821(17)(C). omitted). comment at 18–19.

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is not complete, and it is incorrect to state decisions.42 ACE asserted that ‘‘any fuel fuel vehicles only,’’ but favored confirmatively that blends above 10 percent ‘MAY HARM SOME VEHICLES,’ ’’ so retaining ‘‘Check owner’s manual.’’ 50 ethanol by volume are not appropriate for the proposed labels would unfairly The New York Department of certain vehicles . . . . [E]vidence to date . . . discourage use of ethanol blends by Environmental Conservation supported indicates that mid-level ethanol blends do suggesting to a consumer that ‘‘his/her not harm motor vehicles.35 an octane disclosure on ethanol labels, vehicle may be [one] that would be but only in conjunction with a Growth Energy concurred, asserting harmed.’’ 43 According to ACE, the disclosure of ethanol content and ‘‘any ‘‘[t]he statement that midlevel blends proposed labels would likely ‘‘lead a appropriate limitation on use of the fuel ‘MAY HARM SOME VEHICLES’ has no flex fuel vehicle owner to question in order to prevent misfueling.’’ 51 In apparent basis in the record, other than whether a mid-level blend or E85 is addition, Growth Energy and other two comment letters unaccompanied by suitable for the very type of vehicle that ethanol-industry commenters proposed any technical or market-research was designed to use that fuel.’’ 44 In changing the required background to analysis.’’ 36 ACE likewise argued that addition, many other individual and blue, asserting that a dark blue the need for ‘‘may harm some vehicles’’ business commenters described the background for ethanol blends would is ‘‘unsupported by any of the data’’ in labels as a ‘‘gross misrepresentation of ‘‘distinguish[ ] these fuels from the other the March 2009 record.37 the fuel,’’ 45 and argued that requiring alternative fuels.’’ 52 ACE and RFA asserted that the Rule’s suitability language only for ethanol current requirements already prevent blends treats like fuels inconsistently.46 b. Criticism of Proposed Labels as misfueling, relying on a 2009 comment Finally, Growth Energy, ACE, and all Insufficient To Warn Against Risks asserting that ethanol misfueling is other ethanol-industry commenters that In contrast, some commenters virtually nonexistent.38 Thus, RFA addressed the issue criticized the supported revising the proposed labels concluded, ‘‘using the commonly used proposed labels’ orange background. to include stronger misfueling name of alternative fuels with a Specifically, they argued that orange disclosures. In addition, some of these disclosure of the amount . . . of the was an inappropriate color because the commenters criticized the proposed principal component of the fuel transportation sector traditionally has labels’ failure to address non- provides sufficient information for used that color to signal caution.47 automotive devices, such as lawn consumers.’’ 39 To remedy the perceived content and equipment. Notably, all of these Growth Energy, ACE, RFA, and the format flaws, Growth Energy, ACE, and commenters proposed adding a ‘‘For other ethanol-industry commenters also other ethanol-industry commenters, as Flex-Fuel Vehicles Only’’ disclosure, argued that the proposed labels’ well as some state regulators, suggested and most supported additional ‘‘negative statements’’ would mislead a ‘‘For Flex-Fuel Vehicles Only’’ disclosure language. consumers by suggesting that they disclosure (or substantially similar Many commenters voiced concerns should not use ethanol blends in any language), and an octane disclosure.48 that the proposed labels would not type of vehicle.40 In particular, Growth Commenter ICM, Inc. explained: prevent misfueling. For example, Energy expressed concern that the term This clear warning statement will protect Marathon Petroleum Company, LLC ‘‘some’’ would confuse consumers, consumers against improper fueling of their (‘‘Marathon’’) stated that it ‘‘does not leaving them ‘‘wondering if [their] vehicles while not discouraging the market believe that [the] FTC’s current proposal vehicle fits within the ‘some’ category’’ access and use of alternative fuels containing to label mid-level ethanol blends . . . is and, thereby, deterring flex-fuel vehicle ethanol. . . . In addition, we strongly enough of a consumer warning to owners from purchasing ethanol recommend including an octane rating prevent mis-fueling and advise the 41 requirement for alternative fuels containing 53 blends. ICM, Inc., an agricultural and ethanol. The FTC’s proposed label for consumer of the potential dangers.’’ renewable energy company, concurred, alternative fuels does not have the critical The American Petroleum Institute stating that consumers could perceive octane rating which ensures that consumers (‘‘API’’) agreed, explaining: the labels as a warning, thereby can choose the appropriate octane level for [The proposed] language is inadequate 49 improperly influencing their purchasing their engine. because it fails to warn consumers that mid- The Tennessee Department of level ethanol blends may cause damage to, 35 RFA comment at 6–7. Agriculture supported replacing ‘‘May and may not be used in, any equipment other 36 Growth Energy comment at 15. harm some vehicles’’ with ‘‘For flexible than Flexible-Fuel Vehicles (‘‘FFVs’’). . . . 37 ACE comment at 2. [O]nly FFVs are currently permitted by EPA 38 Id. at 1; RFA comment at 3. The Alliance of to use blends containing greater than 10 42 ICM, Inc. comment at 1. Automobile Manufacturers (‘‘AAM’’) submitted the vol% ethanol. Use in non-FFVs is a violation 43 ACE comment at 2. referenced comment, which observed that ‘‘pump of federal law. . . . Therefore, strong 44 Id. labeling of E85 dispensers appears to have been language is necessary to clarify that only 45 See, e.g., David Gloer comment; Kurt Felker successful’’ because reports of misfueling have been specialty vehicles can use these fuels.54 ‘‘virtually nonexistent.’’ See 2010 NPRM, 75 FR at comment; Patrick Reid comment. 12471 for further discussion. As discussed below, 46 RFA comment at 6. AAM also acknowledged Similarly, the Association of evidence submitted in response to the NPRM the inconsistency of requiring suitability language International Automobile Manufacturers contradicts AAM’s comment. for some but not all fuels, but proposed addressing (‘‘AIAM’’) supported stronger language 39 RFA comment at 3. it by requiring the same advisory language for 40 See, e.g., id. at 5. Other commenters voiced blends of gasoline and methanol, an alcohol-based because EPA does not allow distribution similar concerns. The Petroleum Marketers fuel, as well as for biodiesel fuels. AAM comment of ethanol fuel for use in conventional Association of America (‘‘PMAA’’) asserted that the at 2. vehicles.55 proposed language would ‘‘confuse consumers and 47 See, e.g., ACE comment at 2; Growth Energy raise an unwarranted suspicion’’ that ethanol comment at 18; ICM, Inc. comment at 2. 50 Tennessee Department of Agriculture comment blends could damage cars regardless of 48 See, e.g., Growth Energy comment at 18–19; at 2. concentration. PMAA comment at 2. In addition, ACE comment at 2 (‘‘The simple addition of the 51 the Tennessee Department of Agriculture, while not phrase ‘For Flex-Fuel Vehicles Only’ would be a New York Department of Environmental characterizing the suitability language as distorting change that we would support.’’); ICM, Inc. Conservation comment at 2. or disparaging, expressed concern that the labels comment at 2; Patrick Reid comment; David Gloer 52 Growth Energy comment at 18; see also, e.g., would lead flex-fuel vehicle owners to avoid comment. Growth Energy, consistent with its Patrick Reid comment; David Gloer comment. ethanol fuel. Tennessee Department of Agriculture interpretation of PMPA, supported this type of 53 Marathon comment at 1. comment at 2. disclosure only on a voluntary basis. 54 API comment at 3. 41 Growth Energy comment at 15. 49 ICM, Inc. comment at 2. 55 AIAM comment at 2.

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In addition, several commenters noted that ethanol blends can adversely Ethanol has a lower volumetric energy that misfueling can cause significant impact boat engines.63 density than gasoline. A blend of ethanol in gasoline will have a lower energy density engine damage. For example, the Center Despite disagreeing with ethanol- for Auto Safety (‘‘CAS’’), a nonprofit than the base gasoline by an amount industry commenters about the need to proportional to the volume -% ethanol in the consumer group, noted EPA’s alert consumers of misfueling risks, blended fuel. Ethanol . . . has an energy prohibition and explained: commenters favoring stronger labels density of approximately 76,000 BTU/ Depending upon the percentage of ethanol recommended a ‘‘For Flex-Fuel Vehicles gallon.... Gasoline . . . [has] an energy in the fuel blend and the number of Only’’ disclosure, albeit generally as density generally measured in the range of misfueling events, misfueling a non-FFV part of a longer advisory. For example, 109,000 to 119,000 BTU/gallon.... [Thus,] with mid-level or higher ethanol and gasoline commenters AllSAFE, NMMA, and API for every 1% addition of ethanol in gasoline, the energy density of the fuel blend will drop blends can cause: An increase in HC and supported adding a ‘‘Flex-Fuel Vehicles NOX emissions, malfunction of the engine, by about 0.33%. . . . As the volumetric degradation of the catalyst or engine, and Only’’ disclosure. AllSAFE and NMMA energy density of the fuel goes down, so does invalidation of the manufacturer warranty on supported this additional disclosure in the vehicle’s fuel economy.68 56 conjunction with an advisement that the the vehicle emissions control systems[.] Individual commenter James Hyde law prohibits use of ethanol blends in The Clean Vehicle Education submitted a similar analysis, and an exhaustive list of non-automotive Foundation (‘‘CVEF’’) similarly noted observed that the disparity in energy engines and equipment.64 API that misfueling potentially causes densities between gasoline and ethanol supported the disclosure along with ‘‘failure of the fuel system on the can affect consumers’ overall fuel costs: vehicle due to degradation of the legal prohibition language, an 57 advisement that the fuel ‘‘may damage’’ [S]ince ethanol contains considerably less elastomers and galvanic corrosion.’’ energy [than] does petroleum-derived PMAA likewise argued that the non flex-fuel vehicles, and the word ‘‘WARNING.’’ 65 Commenters CVEF, gasoline, the consumer must purchase more proposed labels are ‘‘not sufficient’’ gallons of mixtures to drive the same because ethanol misfueling ‘‘could void Marathon, AIAM, and PMCI also distance[,] . . . and so reducing the value to automobile warranties, damage catalytic favored ‘‘For Flex-Fuel Vehicles Only’’ a consumer while also reducing the converters, increase tailpipe emissions (or something very similar).66 Similarly, supplier’s cost .... The consumer who is and expose petroleum retailers to CAS supported a ‘‘Flexible-Fuel unaware of these differences may be [led] to increased risk of liability.’’ 58 Vehicles Only’’ labeling scheme, along believe that a fuel with a lower cost per Moreover, Petroleum Marketers and with requiring ‘‘conspicuous signs gallon and a higher posted octane is a better 69 Convenience Stores of Iowa (‘‘PMCI’’), indicating that [ethanol] fuels are for value. an Iowa fuel retailer group, reported that FFVs only’’ and pump nozzle labels In addition, AAM noted that vehicle ethanol misfueling occurs in the stating ‘‘For FFV use only.’’ 67 ethanol tolerances will likely vary in the 59 absence of labeling. Notably, this 3. Objections to Proposed Ethanol future, and consumers will need a more contradicts AAM’s comment in the Concentration Disclosures specific disclosure ‘‘to protect their March 2009 record that ethanol vehicles and related warranties when misfueling is virtually nonexistent. In the 2010 NPRM, the Commission selecting fuel.’’ 70 In addition, commenters AllSAFE, the proposed continuing to allow labels for Thus, CVEF and AAM, as well as the National Marine Manufacturers ethanol blends above 70 percent Tennessee, New York, and Missouri Association (‘‘NMMA’’), and several concentration to disclose the minimum Departments of Agriculture, and the individual commenters 60 criticized the amount in the blend, while requiring New York Department of Environmental proposed labels for inadequately ‘‘mid-level ethanol blend’’ labels to Conservation, supported more precise warning non-automotive engine owners disclose a range of 10 to 70 percent, a concentration disclosures.71 MDA of ethanol misfueling risks.61 AllSAFE narrower range, or the exact percentage supported a disclosure of the exact explained that use of ethanol blends in of ethanol in the blend. Of the fourteen ethanol percentage.72 Others suggested non-automotive engines can cause commenters that addressed this issue, allowing some flexibility. For example, ‘‘emissions control device failures, all but one favored a more specific fuel- operability issues, and equipment concentration disclosure. Several argued 68 CVEF comment at 2 (citations omitted). CVEF’s failures,’’ which can present safety risks that consumers needed more specificity comment cited two studies of ethanol fuel economy for those devices’ users.62 NMMA noted supporting its observations. No commenter because fuel economy decreases as presented data contradicting those studies. ethanol concentration increases, 69 James Hyde comment at 1. 56 CAS comment at 2 (citations omitted). affecting consumers’ overall fuel costs. 70 AAM comment at 1. AAM also suggested 57 CVEF comment at 1. CVEF explained: changing the disclosure thresholds from 10 and 70 58 PMAA comment at 1–2. See also The Alliance percent to 11 and 69 to further mitigate the risk of for a Safe Alternative Fuels Environment consumer confusion about selecting the proper fuel. (‘‘AllSAFE’’) comment at 4 (‘‘[Conventional 63 NMMA comment at 4. See also EPA Waiver Id. at 2. vehicles] may experience emissions control device Decision I, 75 FR at 68129–37 (discussing non- 71 CVEF comment at 1; AAM comment at 1; failures, operability issues, and equipment failures suitability of E15 for non-road engines, vehicles, Tennessee Department of Agriculture comment at 2; when operated on fuels greater than E–10.’’). and equipment). New York Department of Agriculture and Markets 59 Specifically, PMCI related that ‘‘[i]n Iowa 64 AllSAFE comment at 12; NMMA comment at comment at 1; MDA comment at 1; New York where Mid-Level Ethanol blends and E85 are 5. In addition, AllSAFE proposed going beyond Department of Environmental Conservation widely available and heavily promoted by labeling and requiring a ‘‘visible gap’’ between comment at 2; AllSAFE comment at 8–9. As an interested groups, instances of misfueling occur gasoline and ethanol fuel pumps. AllSAFE alternative means of addressing the problem, Hyde frequently enough to be a cause for concern among comment at 5. suggested adopting unit pricing based on gasoline- retailers.’’ PMCI comment at 1. See also PMAA 65 API comment at 4. gallon equivalents rather than an ethanol content comment at 1 (stating that ‘‘misfueling would 66 CVEF comment at 1; Marathon comment at 2; disclosure. James Hyde comment at 2. AllSAFE increase’’ in the absence of labeling). AIAM comment at 2; PMCI comment at 2. In similarly requested that the Commission use its 60 See, e.g., Louis Ehlers comment (supporting an addition, the Missouri Department of Agriculture authority under the FTC Act to require fuel labeling ethanol disclosure so consumers can select proper (‘‘MDA’’) noted that the National Conference on according to energy content (e.g., a label disclosing fuel for use in airplanes). Weights and Measures (‘‘NCWM’’) has adopted the BTU per gallon of fuel sold). AllSAFE comment 61 Several petroleum companies and associations model regulations requiring ethanol fuel labels at 10–11. agreed that ethanol fuels pose risks to non-road reading: ‘‘For Use in Flexible Fuels Vehicles (FFV) 72 MDA comment at 1. MDA favored an exact engines. See, e.g., Marathon comment at 1. Only.’’ MDA comment at 2. disclosure for only blends below 70 percent 62 AllSAFE comment at 4. 67 CAS comment at 2. concentration. Id.

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the Tennessee Department of commenters urged the FTC to increases the air-fuel ratio, causing the Agriculture supported rounding to the coordinate with EPA to avoid conflicts fuel to burn hotter.84 Hotter burning fuel nearest interval of 10 (e.g., disclose 62 in the labeling requirements.78 can damage catalytic converters over percent ethanol as 60 percent) because After the 2010 NPRM comment period time and lead to other component such rounding would ‘‘provide[ ] closed, EPA granted a waiver that failure.85 In motorcycles and nonroad reasonable flexibility, and also permitted light-duty 79 conventional products, EPA raised engine-failure provide[ ] sufficient information for the vehicles, MY2001 and later, to use EPA- concerns from overheating. Therefore, consumer to make an informed approved E15 blends. The waiver EPA declined to approve ethanol blends choice.’’ 73 requires that this fuel meet certain fuel above 10 percent for use in older Significantly, ethanol-industry quality standards.80 Moreover, EPA conventional vehicles, heavy-duty commenters also recommended a more soon thereafter promulgated gasoline engines and vehicles, precise content disclosure. Growth complementary regulations to help motorcycles, or nonroad products, Energy, for example, favored an exact prevent misfueling.81 The regulations unless it had reliable 86 test data percentage disclosure because ‘‘ethanol include: (1) A prohibition on misfueling showing a lack of harm.87 concentration has an impact on the by ‘‘gasoline and ethanol producers, As part of EPA’s waiver, the agency economics of the purchase, and the distributors, retailers, and consumers’’ promulgated complementary regulations consumer needs to know more precisely and (2) ‘‘labeling requirements for fuel that, among other things, prohibit the concentration of the ethanol in the pumps that dispense E15 to alert misfueling in older conventional cars, fuel to make an informed decision consumers to the appropriate and lawful 74 82 heavy-duty gasoline engines, regarding the purchase.’’ Comments use of the fuel.’’ 88 submitted by individual ethanol motorcycles, and non-road engines. 1. EPA’s Prohibition Against Misfueling supporters suggested a disclosure This prohibition ‘‘establishes a legal grouped in intervals of 10, allowing the Relying on its technical and barrier against production, distribution, actual fuel concentration to vary from as engineering expertise, EPA prohibited sale or use of gasoline containing more much as 10 percent more than the the use of E15 and higher blends in than 10 vol% ethanol in vehicles, disclosed amount to 10 percent less certain vehicles and engines because it engines and equipment not covered by than that amount (e.g., a blend disclosed found that ethanol has properties that the partial waiver decisions .... The can damage older conventional cars, prohibition is broadly applicable, as 20 percent could vary between 18 89 and 22 percent, while a blend disclosed heavy-duty gasoline engines and including to consumers.’’ In response as 30 percent could vary between 27 vehicles, motorcycles, and nonroad to a question regarding to whom the and 33 percent).75 products.83 Specifically, ethanol prohibition applied, EPA responded: One commenter, PMCI, did not [T]he proposed regulations would prohibit support a more precise disclosure. 78 For example, Growth Energy argued that if EPA consumer misfueling, whether intentional or Instead, it praised the Commission’s approved the waiver request, the FTC’s proposed not, and we are retaining that provision in Fuel Rating Rule amendments would require a label proposal as giving ‘‘retailers the for E15 advising consumers of potential vehicle today’s final rule. Thus, today’s final rule flexibility to account for relative harm, even though EPA had approved the fuel for prohibits any person from introducing or changes in the prices of gasoline and all vehicles. Growth Energy comment at 17. API and causing the introduction of gasoline ethanol.’’ 76 other commenters urged the Commission to containing greater than 10 vol% ethanol into ‘‘communicate and coordinate with [EPA] to vehicles, engines, and products not covered B. EPA E15 Waiver develop a common dispenser labeling scheme.’’ API comment at 1. See also AAM comment at 2; AIAM by the E15 partial waivers, and prohibits When the Commission issued the comment at 2; AllSAFE comment at 6–7; NMMA causing or allowing the introduction of 2010 NPRM, EPA was considering an comment at 2; National Petrochemical & Refiners gasoline containing greater than 10 vol% application to allow E15 in Association (‘‘NPRA’’) comment at 2; New York Department of Environmental Conservation conventional vehicles, pursuant to its comment at 1; New York State Department of emissions—immediate and long-term (known as authority under the Clean Air Act, Agriculture and Markets comment at 2–3. durability); (2) evaporative emissions—immediate Section 211(f)(4), to grant ‘‘waivers’’ to Marathon, PMAA, and Valero recommended and long-term; (3) the impact of materials non-gasoline fuels for use in delaying any rulemaking until EPA issued a compatibility on emissions; and (4) the impact of decision on the waiver petition. Marathon comment driveability and operability on emissions.’’ EPA 77 conventional cars. Several at 1–2; PMAA comment at 2; Valero comment at 1. Waiver Decision II, 76 FR at 4663. Later, in EPA’s 79 ‘‘Light-duty’’ vehicles include passenger cars, Final Rule to Mitigate Misfueling, EPA explained 73 Tennessee Department of Agriculture comment light-duty trucks, and medium-duty passenger that its ‘‘engineering assessment for these vehicles, at 2. vehicles. See EPA Waiver Decision I, 75 FR at engines, and products identifies a number of 74 Growth Energy comment at 17–18. 68095. emission-related concerns with the use of E15.’’ 76 FR at 44439. 75 See, e.g., ICM, Inc. comment at 2; David Gloer 80 EPA Waiver Decision I, 75 FR at 68149–50. 84 comment. 81 Regulation to Mitigate the Misfueling of EPA Waiver Decision I, 75 FR at 68103. 85 76 PMCI comment at 1. In addition to comments Vehicles and Engines With Gasoline Containing Id. regarding precise disclosure, API urged that the Greater Than Ten Volume Percent Ethanol and 86 EPA found that tests cited by Growth Energy Commission ensure consistency with EPA Modifications to the Reformulated and in its waiver application were not sufficient to show regulations by defining mid-level ethanol blends Conventional Gasoline Programs; Final Rule (‘‘Final a lack of potential harm to older vehicles. Id. at and E85 according to their percentages of pure, Rule to Mitigate Misfueling’’), 40 CFR Part 80, 76 68104. rather than denatured, ethanol. API comment at 1– FR 44406, 44407 (July 25, 2011). 87 Id. at 68095. Currently, it is illegal to distribute 2. As part of the ethanol production process, 82 Id. EPA promulgated these anti-misfueling ethanol blends above 15 percent concentration for manufacturers add a small amount of denaturant, measures under Section 211(c) of the Clean Air Act, use in conventional vehicles. 42 U.S.C. 7545(f). usually gasoline, to the ethanol before distributing which authorizes that agency to ‘‘control or prohibit 88 EPA did not address the emissions impacts of it. The proposed amendments define ethanol fuels the manufacture, introduction into commerce, blends above E15 for newer, light-duty according to their ethanol volume, exclusive of offering for sale, or sale’’ of a fuel if it determines conventional vehicles. See Final Rule to Mitigate denaturant, to remain consistent with EPA that use of the fuel will impair emission control Misfueling, 76 FR at 44417. However, it is currently regulations. systems or have other environmental impacts. 42 illegal to distribute those blends for use in 77 See EPA Waiver Decision I, 75 FR at 68099. U.S.C. 7545(c). conventional vehicles because EPA has not granted Section 211(f) of the Clean Air Act bans alternative 83 EPA prohibited the use of E15 in MY2000 and a waiver allowing ethanol blends in those vehicles. fuels, including ethanol blends, from being older vehicles, heavy-duty gasoline engines and See 42 U.S.C. 7545(f). introduced into commerce unless EPA affirmatively vehicles, motorcycles, and all nonroad products 89 Final Rule to Mitigate Misfueling, 76 FR at permits them for certain vehicles. See 42 U.S.C. (which includes marine applications), ‘‘based on 44411; see also 40 CFR 80.1504(a) (amendment as 7545(f). potential effects of E15 in four areas: (1) Exhaust codified).

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ethanol into such vehicles, engines, and 2. EPA’s Labeling Requirements final E15 label, shown below, ‘‘adopts products.90 FTC’s color scheme for alternative fuel EPA also promulgated labeling Section 80.1506 of the final rule labels and other aspects of the design of provides that any person who misfuels requirements to prevent misfueling of FTC’s proposed gasoline-ethanol blend ‘‘is subject to an administrative or civil E15 in non-approved engines. In labels, such as size, shape, and font . . . penalty, as specified in sections 205 and formulating its E15 label, EPA .’’ 93 In addition, EPA’s label included 211(d) of the Clean Air Act, for every ‘‘consulted with FTC consumer labeling the warning: ‘‘Don’t use in other day of each violation and the amount of experts and other staff about effective vehicles, boats, or gasoline-powered economic benefit or savings resulting label design and potential coordination equipment. It may cause damage and is from the violation.’’ 91 with FTC labels.’’ 92 As a result, EPA’s prohibited by federal law.’’ 94

EPA explained that this ‘‘damage C. ASTM Ethanol Specification concentration of all fuels’’ labeled as statement’’ was ‘‘necessary and such and, therefore, recommended a In proposing labeling requirements, 99 appropriate for the E15 label . . . the 2010 NPRM relied in part on ‘‘new name’’ for the fuel. because (1) [a]vailable data is ASTM’s specification for high After the comment period closed, insufficient to show that E15 would not concentration ethanol blends, ASTM ASTM further lowered D5798’s cause or contribute to a failure by these D5798. At that time, ASTM D5798 concentration threshold and ceased products to meet emission standards, characterized ethanol blends of at least using the term ‘‘E85.’’ The standard now and (2) [EPA’s] engineering judgment is 70 percent concentration as ‘‘E85.’’ applies to fuels of at least 51 percent that E15 may adversely affect the Therefore, the Commission proposed concentration and replaces the term emissions control performance of these amendments differentiating E85 and ‘‘E85’’ with ‘‘Ethanol Flex-Fuel.’’ 95 products, particularly over time.’’ lower concentration ethanol blends. D. Comments Supporting the Infrared EPA continued: Two commenters objected. Growth Method A statement that E15 use in those products Energy and API both noted that, ‘may cause damage’ is consistent with and subsequent to publication of the NPRM, Several commenters supported supported by EPA’s technical analysis for its ASTM had lowered the E85 blend amending the Fuel Rating Rule to allow decision to deny the waiver request for threshold, making the ‘‘85’’ number less use of the Infrared Method as an 97 introduction of E15 into commerce for use in useful to consumers. API noted that additional octane rating method. Tesoro, these products. Including the damage ASTM was considering lowering the a manufacturer and marketer of statement is also critical to the effectiveness blend threshold even further, and urged petroleum products, explained that the of the E15 label, since consumers are more the Commission to ‘‘draft the rule to Infrared Method provides more precise likely to comply with the label’s direction if allow for such changes.’’ 98 In addition, and accurate results, an ability to they understand that harm might otherwise Growth Energy noted that ‘‘E85 is sample gasoline more efficiently, and occur.96 problematic’’ because it ‘‘does not reduced costs to industry.100 represent[ ] the true ethanol Specifically, Tesoro reported:

90 Final Rule to Mitigate Misfueling, 76 FR at 93 Id. Level Ethanol blends’’ as ‘‘alternative fuels,’’ 44437 (emphasis in original). This misfueling 94 Id. at 44418. pointing to a definition of that term in the Energy prohibition does not extend to ethanol-blend use in 95 Id. at 44414. Policy Act of 1992 authorizing DOE to determine newer conventional vehicles. which fuels qualify as alternative fuels. RFA 96 Id. at 44415. 91 comment at 4. 40 CFR 80.1506 (amendment as codified); see 97 Growth Energy comment at 4–5; API comment 99 Growth Energy comment 4, 5. also 76 FR at 44449 . at 2. 92 Final Rule to Mitigate Misfueling, 76 FR at 98 API comment at 2. RFA argued that the FTC 100 Tesoro comment at 1–2. Tesoro also submitted 44408. lacked authority to define new fuels such as ‘‘Mid- additional material to Commission staff during the

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A recent interlaboratory study was conducted Method to determine if fuel dispensed than 70, percent ethanol and adding that to demonstrate the accuracy and precision of at a pump has the same octane rating as term to the Rule’s list of alternative infrared analyzers for octane. Based on the posted on the label.107 fuels. Although the 2010 NPRM did not results of that study involving six Significantly, the CAS supported the propose defining ethanol blends at laboratories, near infrared analyzers showed significantly better precision over ASTM method. CAS explained that allowing greater concentrations, it did propose a D2699 and D2700 octane [methods].101 the method would ease enforcement separate label for such fuels that would and, therefore, benefit consumers: describe the fuel as ‘‘E85.’’ Tesoro further reported that, due in part Many states now use infrared analyzers to Based on ASTM amendments, to greater reliability, ‘‘[o]ver 25 states providing different labels for ‘‘mid- use infrared analyzers for screening fuel determine octane because they are cheaper, more accurate and permit greater number[s] level’’ blends and ‘‘E85’’ is no longer samples [to test octane levels] in the of dispensing pump inspections per day than 102 appropriate. The revised D5798 does not field as well as in the laboratory.’’ using octane engines.... Approving use the term ‘‘E85,’’ and there is no Tesoro further suggested that the infrared analyzers calibrated to measure other basis in the record to distinguish Commission could ensure the accuracy octane would allow greater levels of between blends above and below that of infrared method ratings by providing enforcement and increased quality control by that, in the case of a discrepancy refiners at lower cost.108 concentration. Moreover, as Growth Energy noted, allowing labels to use between infrared results and results IV. Proposed Rule Amendments derived through the traditional ASTM ‘‘E85’’ to described fuels meeting the D2699 and D2700 methods, the D2699/ In light of the comments, EPA’s revised D5798’s concentration level of 2700 methods would be the ‘‘referee waiver decision, and the revision to 51 percent could mislead consumers. Thus, the Commission now proposes test.’’ 103 ASTM D5798, the Commission now Tesoro recommended amending the proposes: (1) New requirements for adding to the Fuel Rating Rule’s non- Rule to allow the method only insofar rating, certification, and labeling of exhaustive alternative fuel list a single, as the method conforms to ASTM ethanol blends; and (2) amendments new defined term, ‘‘ethanol blend,’’ that D6122, ‘‘Standard Practice for allowing use of the Infrared Method. covers all concentrations of ethanol blends above 10 percent.109 This will Validation of the Performance of A. Ethanol Fuel Amendments Multivariate Infrared facilitate uniform labeling requirements Spectrophotometers,’’ and as set out in The following proposed amendments for ethanol blends, which should assist that protocol to correlate with the require labels for ethanol blends, consumers in quickly identifying 110 ASTM D2699 and D2700 methods.104 In excluding EPA-approved E15, to state ethanol blends at pumps. ‘‘USE ONLY IN FLEX-FUEL VEHICLES/ addition, Tesoro submitted specific 2. Rating and Certification language to effect its proposed MAY HARM OTHER ENGINES’’ and to disclose the percentage ethanol content The Commission reaffirms its 1993 change.105 Several state regulators also supported rounded to the nearest interval of 10. determination that ‘‘another form of These amendments differ from those rating’’ is more appropriate for ethanol approving the infrared method. For 111 example, the Washington State proposed in the 2010 NPRM in four blends than an octane rating. Department of Agriculture reported that ways. First, the new amendments do not Requiring octane ratings for ethanol it ‘‘has used portable infrared octane distinguish between ‘‘mid-level ethanol blends might incorrectly suggest that analyzers successfully in the field to test blends’’ and ‘‘E85.’’ As noted by API those blends are interchangeable with octane levels on gasoline motor fuels for and Growth Energy, the term ‘‘E85’’ no gasoline. As discussed in the 1993 over 10 years’’ and that it has ‘‘found longer accurately describes higher rulemaking, not only would an octane portable infrared analyzers to be an concentration ethanol blends and, rating not provide useful information to accurate and low cost tool in therefore, could confuse consumers consumers, it might deceive them about determining octane level about such fuel’s ethanol concentration. the suitability of the fuel for their compliance.’’ 106 Additionally, the Second, the new proposed amendments vehicles. Ethanol blends have naturally National Conference on Weights and revise the disclosures in light of views occurring high octane levels. Measures (‘‘NCWM’’) provided a survey from both ethanol-industry commenters Conventional vehicle owners might showing that 17 of 24 regulatory and those arguing for a stronger label misinterpret those blends’ higher octane agencies surveyed use the Infrared using ‘‘flex-fuel vehicle only’’ and a content as signifying that they are better more precise concentration disclosure. for conventional gasoline engines.112 Consistent with this finding, the 2010 comment period, which is included in the record Third, the amendments address the and available on the same Web page as the request for additional language to NPRM proposed new rating and comments. prevent misfueling harm to non flex-fuel certification provisions to clarify that 101 Id. at 2. vehicles and engines. Finally, the 102 Id. at 4. amendments exempt fuel that meets 109 As explained below, the new proposed 103 Id. at 6. EPA’s E15 waiver. amendments would exempt EPA-approved E15 104 Id. at 7. The discussion below first describes from the Rule’s labeling requirements, provided 105 Id. at 8. Petroleum industry members and that retailers use EPA’s required label. representatives ConocoPhillips, Flint Hills the amendments and then explains the 110 The new term would be codified at Resources LP, Marathon, Suncor Energy USA, Commission’s legal authority to § 306.0(i)(2)(iii). RFA argued that this section NPRA, and Valero Energy Corporation (‘‘Valero’’) promulgate them. should not include ethanol blends as alternative also supported the Infrared Method. ConocoPhillips fuels because the Energy Policy Act of 1992 comment at 2; Flint Hills Resources comment; 1. Definitions specifies DOE as the agency that determines Marathon comment at 2; Suncor Energy USA whether fuels are ‘‘alternative’’ for certain purposes. comment; NPRA comment at 3; Valero comment at In order to establish requirements for RFA’s argument is inapposite because the 1. rating, certifying, and labeling ethanol Commission’s rulemaking is under PMPA, which 106 Washington State Department of Agriculture blends, the 2010 NPRM proposed using authorizes the FTC to provide labeling for all liquid comment; see also Massachusetts Division of the term ‘‘mid-level ethanol blend’’ to automotive fuels, regardless of whether they are also designated as alternative by DOE. See 15 U.S.C. Standards comment (supporting the Infrared describe blends of over 10, but not more Method); Nevada Department of Agriculture 2821(6). comment (same); North Carolina Department of 111 See 15 U.S.C. 2821(17); 1993 Final Rule, 58 FR Agriculture and Consumer Services comment 107 NCWM comment at 3–4. 41361. (same). 108 CAS comment at 2. 112 1993 Final Rule, 58 FR at 41361.

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covered entities must rate ethanol a. Text fuel in their non-vehicular engines (e.g., blends by ‘‘the percentage of ethanol lawn mowers, motor boats).117 contained in the fuel,’’ and not by the Some commenters objected that the Ethanol-industry commenters’ percentage of the principal component 2010 NPRM advisory disclosure was criticism of the 2010 NPRM’s labels is of the fuel. This change is necessary to excessive, and others objected that it either inapplicable to the revised require ethanol-content labeling for was insufficient. Ethanol-industry disclosures or unpersuasive. The Energy blends below 50 percent concentration. commenters asserted that: (1) The Independence and Security Act’s Two commenters supported this record did not establish that ethanol renewable fuel mandate will likely change,113 and no commenters took blends would harm conventional ensure that ethanol blends are an issue with the proposal. Accordingly, vehicles; (2) the disclosure was increasing part of the fuel market, the amendments proposed today require unnecessary; (3) the disclosure would thereby exposing many more consumers rating ethanol blends by ethanol discourage proper use of ethanol blends; to pumps dispensing those blends.118 content. and (4) requiring the additional The record, however, shows a risk that disclosure would be unfair. Conversely, misfueling may harm conventional The 2010 NPRM also proposed an some commenters argued for stronger vehicles and non-road engines.119 As amendment providing that a and more precise language, noting the EPA explained, ‘‘[e]thanol impacts certification of ethanol content letter EPA prohibition on use in conventional motor vehicles in two primary ways. remains valid only as long as the fuel vehicles, risk of engine damage, damage First, . . . ethanol enleans the [air/fuel] transferred contains the same to the vehicle’s emissions system, and ratio (increases the proportion of oxygen percentage of ethanol as previous fuel other problems. 114 relative to hydrocarbons) which can transfers covered by the letter. For lead to increased exhaust gas most alternative fuels, a certification Nevertheless, all but one of the 115 temperatures and potentially increase letter remains valid if a transferred fuel comments supported a ‘‘use only in flex-fuel vehicles’’ disclosure. In incremental deterioration of emission has the same or a higher concentration control hardware and performance over than certified because an increase in addition, NCWM has adopted model state regulations requiring ethanol fuel time, possibly causing catalyst failure. concentration will not trigger different Second, ethanol can cause materials labeling requirements. An increase or labels that state ‘‘For Use in Flexible Fuel Vehicles (FFV) Only.’’ 116 Many compatibility issues, which may lead to decrease in concentration for ethanol 120 commenters also stressed the need for other component failures.’’ blends, however, may trigger different EPA ultimately held that these general concentration disclosures. For example, additional disclosures to prevent misfueling. concerns were allayed only with regard if a fuel’s ethanol concentration to the use of E15 in light-duty increases from 26 percent to 38 percent, In light of these comments, the new conventional vehicles MY2001 and the label, as discussed below, must proposed amendments replace the 2010 newer. However, that agency also found, disclose a higher concentration level. NPRM’s proposed disclosure with ‘‘USE based on its technical and engineering No commenter objected to the 2010 ONLY IN FLEX-FUEL VEHICLES/MAY experience, that ethanol potentially proposal; therefore, the Commission HARM OTHER ENGINES.’’ These two damages older conventional cars, heavy- proposes it again here. disclosures should explain the duty engines, motorcycles, and non- significance of the ethanol- 3. Labeling road engines, explaining: concentration rating without misleading Older motor vehicles, heavy-duty gasoline The 2010 NPRM proposed adding flex-fuel vehicle owners about the fuel’s engines and vehicles, motorcycles, and new labeling requirements for ethanol suitability for their cars. Specifically, especially nonroad products cannot fully blends. The proposed amendments ‘‘USE ONLY IN FLEX-FUEL VEHICLES’’ compensate for the change in the required labels disclosing the fuel’s provides a simple, unambiguous stoichiometric air-to-fuel ratio as ethanol suitability for different vehicles by direction to consumers that they can use concentration increases. Over time, this enleanment caused by ethanol may lead to stating: ethanol blends in their flex-fuel vehicles. This direction eliminates the thermal degradation of the emissions control hardware and ultimately catalyst failure. MAY HARM SOME VEHICLES need for consumers to consult their CHECK OWNER’S MANUAL Higher ethanol concentration will exacerbate owner’s manuals. And, ‘‘MAY HARM the enleanment effect in these vehicles, The proposed amendments also would OTHER ENGINES’’ alerts consumers engines, and equipment and therefore have required ethanol blends below 70 that use in other engines may have percent concentration to disclose that serious consequences. 117 The Commission declines to require additional language suggested by commenters. The the fuels contained between 10 to 70 Given consumers’ unfamiliarity with specificity of the proposed disclosure should percent ethanol, a narrower range, or the ethanol blends, a bare ethanol- sufficiently apprise owners of conventional vehicles precise amount of ethanol in the blend. concentration disclosure will not and non-automotive devices that ethanol fuels are provide sufficient information for many not appropriate for their engines. Furthermore, Commenters generally objected to additional language may dilute the disclosures’ both the disclosures and the 10–70 consumers to understand whether the message and lessen their effectiveness. content range. They also urged the fuel is appropriate for their engines. 118 See 2010 NPRM, 75 FR at 12471. On Accordingly, the proposed text conveys November 15th, EPA proposed reducing the 2014 Commission to coordinate with EPA to renewable mandate due to a limited market and prevent duplicative or inconsistent the significance of the ethanol concentration and the potential risk of production capacity for renewables. See Proposed labeling requirements. The new 2014 Standards for the Renewable Fuel Standard proposed amendments address both damage to consumers’ cars, which are Program, 40 CFR Part 80, 78 FR 71732 (Nov. 29, issues. often among their most expensive 2013). However, EPA indicated that it remained purchases. Additionally, this disclosure committed to increasing the amount of renewable should alert consumers not to use the fuel in the market. See id. at 71738 (‘‘[O]ur intent 113 PMAA comment at 1; Tennessee Department is to develop an approach that puts the [Renewable of Agriculture comment at 1. Fuel Standard] program on a manageable trajectory 114 Section 306.6(b) allows fuel transferors to 115 RFA comment at 8 (arguing that ethanol- while supporting continued growth in renewable provide certifications through a letter to the content disclosure is sufficient). fuels over time.’’). transferee rather than through a document 116 MDA comment at 2. NCWM’s comment did 119 See section III.A.2.b, supra. accompanying each fuel shipment. not address this issue. 120 EPA Waiver Decision I, 75 FR at 68103.

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increase the potential of thermal degradation rules to mitigate potential misfueling of less than expected fuel efficiency. Thus, and risk of catalyst failure. In addition to EPA-approved E15. The Commission the Commission invites comment on the enleanment, ethanol can cause materials has no evidence indicating that other costs and benefits of this approach for compatibility issues which may lead to other component failure and ultimately exhaust alternative fuels carry a similar risk. If retailers and consumers. the Commission obtains evidence and/or evaporative emission increases.... c. Label Specifications For older motor vehicles, heavy-duty demonstrating that another fuel poses gasoline engines and vehicles, motorcycles, similar misfueling and consumer The proposed amendments retain the and nonroad products, the potential for confusion risks, the Commission will size, font, and format requirements materials compatibility issues increases with consider similar suitability ratings for proposed in the 2010 NPRM.129 These 121 higher ethanol concentration. those fuels.125 In promulgating requirements are consistent with those The Commission seeks evidence regulations, agencies need not take an in place for most of the alternative regarding the harm or benefits of all-or-nothing approach but may liquid fuels covered by the Rule. The ethanol blends to non flex-fuel engines, proceed incrementally.126 new proposed amendments require including newer conventional Helvetica Black type, or equivalent type vehicles.122 b. Percentage Disclosure style, as the Rule requires for all other The lack of EPA approval for ethanol The 2010 NPRM proposed requiring labels. They also propose a sample blends, other than E15, in non flex-fuel that ethanol blends below 70 percent ethanol fuel label.130 engines further supports a label with the concentration have a label disclosing The proposed ethanol fuel label two-prong notice. Specifically, that the fuel contained between 10 and distribution of such blends to non flex- requires an orange background (PMS 70 percent ethanol. Retailers would 1495 or its equivalent). Orange is the fuel vehicles is prohibited by the Clean have had the option of disclosing a 123 color for all alternative fuels except Air Act. In addition, EPA regulations narrower range or an exact percentage. expose consumers and retailers to biodiesel and will enable retail Commenters generally favored requiring consumers to distinguish ethanol blends liability for misfueling MY 2000 and a more precise content disclosure older light-duty vehicles, as well as all from gasoline. Several ethanol-industry because fuels with higher commenters objected to orange, motorcycles, heavy-duty vehicles, and concentrations of ethanol have worse non-road engines.124 Therefore, asserting that it is associated with fuel economy. In addition, commenters caution and, thus, places the fuel at a consumers need clear guidance noted that future vehicle fleets might regarding the engines for which those competitive disadvantage. The have varying ethanol tolerances, which Commission disagrees. blends are appropriate, so that they can will require more precise content make an informed choice. disclosures. Significantly, both ethanol- First, because the Rule currently The commenters’ other concerns are industry and other commenters requires an orange label for almost all also not persuasive. The concern that supported such disclosures. alternative fuels (including ethanol the 2010 NPRM’s ‘‘MAY HARM SOME In light of these comments, the blends), excepting ethanol blends would VEHICLES’’ disclosure would lead flex- Commission proposes requiring ethanol result in inconsistent treatment. Second, fuel vehicle owners to wrongly percentage disclosures rounded to the orange, a bright color, will help ensure conclude that their vehicles fit into the nearest factor of 10 (e.g., retailers can that consumers notice the label and, ‘‘some’’ category does not apply to the label fuels at 26 and 34 percent therefore, prevent misfueling. Finally, revised disclosure. Although ‘‘MAY concentrations as 30% Ethanol).127 EPA’s E15 label uses the same orange HARM OTHER ENGINES’’ is similar, it Requiring this more precise disclosure background to coordinate with the FTC. does not raise the same concern because would help flex-fuel vehicle owners Therefore, using orange will promote a it emphasizes that the fuel potentially make informed choices about ethanol consistent labeling scheme for all harms only ‘‘other’’ (i.e., non flex-fuel) blends, while presenting consumers ethanol blends. engines. In addition, the new with numbers that are easy to use.128 A proposed sample label is at the end disclosures advise, more prominently Rounding also benefits retailers by of this document. The Commission and in larger text, that the fuel is indeed allowing them to alter their blends by invites comment on how consumers suitable for flex-fuel vehicles. This small percentages without the expense will perceive and understand the label’s disclosure would also appear of changing labels. However, the information about the rating, and appropriate even if, at this rulemaking’s Commission notes that consumers whether the label will prevent conclusion, the record is unsettled purchasing ethanol blends with misfueling. about whether ethanol blends are rounded-down disclosures may receive suitable for some newer model d. E15 Exemption conventional vehicles. The proposed 125 The proposed amendments do not adopt CAS’ To prevent consumer confusion and disclosure states only that the fuel proposal to require separate signs and pump nozzle avoid unnecessary burden on industry, ‘‘may’’ harm other engines, not that it disclosures or AllSAFE’s proposal to require a the new proposed amendments exempt would necessarily harm all such visible gap between ethanol pumps and other fuel pumps. There is no evidence that such additional fuel meeting EPA’s E15 waiver from engines. steps are necessary to prevent misfueling. labeling requirements. The Commission The Commission also disagrees with 126 Investment Co. Inst. v. CFTC, 891 F. Supp. 2d provides this exemption for two the claim that any disclosures are unfair 162, 187 (D.D.C. 2012) (‘‘[A]gencies, like reasons. First, EPA is better situated to because they apply only to ethanol legislatures, do not generally resolve massive tailor its labeling requirements to reflect blends. EPA has promulgated extensive problems in one fell regulatory swoop.’’) (quotation omitted); City of Las Vegas v. Lujan, 891 F.2d 927 (D.C. Cir. 1989) (‘‘[A]gencies have great discretion 129 The new amendments also propose deleting 121 Final Rule to Mitigate Misfueling, 40 CFR Part to treat a problem partially.’’). the Rule’s sample label for ‘‘E–100’’ (i.e., ethanol 80, 76 FR at 44439. 127 This approach will address concerns of not mixed with gasoline) because the record does 122 The Commission is aware of all studies cited commenters supporting energy-content labeling. not show any retail sales of such fuels. in EPA’s waiver decision. 128 The Commission proposes adopting the 130 The Rule’s recordkeeping provisions (16 CFR 123 42 U.S.C. 7545(f). Tennessee Department of Agriculture’s rounding 306.7, 306.9, and 306.11) without amendment will 124 Final Rule to Mitigate Misfueling, 76 FR at approach rather than the ethanol-industry require covered entities to maintain records 44437. See also 40 CFR 80.1504(a)(1) (codification commenters’ 10 percent tolerance approach because supporting the rating of any ethanol fuel they of misfueling prohibition). it is simpler. produce, transfer, or sell.

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the waiver’s evolving scope.131 Second, Accordingly, the Commission UNDER 13.’’ 141 Similarly, the FTC’s exempting EPA-approved E15 from the determined that PMPA authorizes it to statutory authorization to adopt, for FTC rule will avoid unduly burdening require fuel ratings that inform labeling purposes, ‘‘another form of industry with redundant labels. consumers about the content of rating’’ in lieu of octane measurements Moreover, the proposed exemption is alternative fuels to prevent misfueling. encompasses the authority to require narrowly tailored to ensure that only In evaluating options for rating labels alerting consumers to the E15 blends that obtain an EPA waiver, alternative fuels, the Commission suitability of particular fuel blends for and therefore are labeled according to concluded, ‘‘automotive fuel rating’’ particular engines. EPA rules, are exempt from the FTC’s encompasses text necessary to ‘‘assure Growth Energy and RFA made four labeling requirements. consumers that they are purchasing a arguments to support their position that product that satisfies automobile engine the disclosures the Commission 4. PMPA Authorizes the Ethanol proposed in 2010 are inconsistent with Amendments minimum content requirements, which may be specified in their owner’s the statute. The Commission is inclined Growth Energy and RFA argued that manuals.’’ 138 Thus, since 1993 the to reject these arguments. First, RFA argued that language about a fuel’s PMPA does not authorize the Commission has interpreted automotive suitability for certain engines cannot be Commission to propose labels with fuel ratings to include information a rating because it is a ‘‘representation[] disclosures about ethanol blends’ necessary to prevent misfueling, such as as to the quality of the fuel or potential suitability for consumers’ vehicles. The fuel descriptors.139 Commission disagrees. impacts on vehicle performance.’’ 142 PMPA authorizes the Commission to Consistent with its 1993 This is incorrect and inapposite. Neither require automotive fuel labels determination, the Commission finds the statute nor the plain meaning of the ‘‘displaying the automotive fuel rating that the proposed ethanol-content term ‘‘rating’’ excludes ratings based on of automotive fuel at the point of disclosure accompanied by explanatory fuel quality or performance; even an sale.’’ 132 PMPA further defines language regarding the suitability of the octane rating constitutes a ‘‘automotive fuel rating’’ to include fuel is more appropriate than an octane representation about the fuel’s ‘‘quality’’ octane ratings; cetane ratings; or rating for ethanol blends. The proposed and ‘‘performance’’ impact. In any ‘‘another form of rating determined by disclosures further PMPA’s purpose of event, the proposed disclosures do not the Federal Trade Commission, after helping consumers choose the correct include a generalized ‘‘quality’’ consultation with [ASTM],133 to be fuel and preventing engine damage. description of the fuel, but merely more appropriate to carry out the Thus, the proposed label appears to fall clarify the implication of the fuel’s purposes of this subchapter with respect squarely within the Commission’s ethanol percentage and its suitability for to the automotive fuel concerned.’’ 134 statutory authority to prescribe labels certain engines in order to prevent As the Commission explained in disclosing fuel ratings. misfueling and potential engine damage. 1993, one of PMPA’s purposes is to give This interpretation comports with the Second, Growth Energy noted PMPA’s ‘‘purchasers the information they need plain meaning of ‘‘rating,’’ which list of permissible ratings uses the to choose the correct type or grade of includes ‘‘[t]he value of a property or conjunctive ‘‘and’’ between octane and fuel for their vehicles.’’ 135 For example, condition that is claimed to be standard, cetane ratings, and the disjunctive ‘‘or’’ the legislative history reveals that optimal, or limiting for a device, engine, between those two ratings and ‘‘another form of rating.’’ Growth Energy argued Congress designed PMPA to ‘‘increase etc.; a rated value.’’ 140 Significantly, a that this language demonstrates consumer confidence in and ‘‘rating’’ does not encompass only Congress’ intent to authorize only information about motor fuels’’ and numeric rankings of superiority or octane and cetane ratings or, in their ensure that ‘‘motorists have a right to quality, but includes a ‘‘condition’’ that place, a rating that ‘‘would carry out the know what they are getting and what is standard or ‘‘limiting’’ for engines. 136 same purpose’’ as these ratings. This they are paying for.’’ And it Therefore, a rating can consist of a language, however, appears to have the expresses specific concern about engine content description and suitability opposite import. Specifically, the use of damage and stresses the need ‘‘to assist language communicating whether the the disjunctive ‘‘or’’ after the [motorists] in the purchase of suitable rated item is proper, or improper, for 137 conjunctive ‘‘and’’ signals that the gasoline for their motor vehicles.’’ certain devices, including engines. phrase ‘‘another form of rating’’ could 131 As noted above, the EPA waiver allows fuel One example is film ratings (G, PG, include types of rating distinct from with 15 percent ethanol in conventional vehicles. PG13, R, and NC17). Those ratings do those linked in the previous conjunctive If EPA later determines that conventional vehicles not identify any quantity or embody any list. Moreover, the statutory text can tolerate ethanol concentrations above 15 qualitative score. Instead, they provide authorizes the Commission to determine percent, the Commission can revise the Fuel Rating Rule to accommodate that determination. guidance on the suitability of particular that another form of rating is ‘‘more 132 15 U.S.C. 2823(c)(1)(B). films for particular audiences, and appropriate to carry out the purposes of 133 Growth Energy relied on this language to argue include explanatory text, e.g., ‘‘PG–13; this subchapter.’’ (Emphasis supplied). that the Commission cannot promulgate alternative PARENTS STRONGLY CAUTIONED; The reference to ‘‘the purposes of this fuel ratings without ASTM consultation that is SOME MATERIAL MAY BE subchapter’’ is a reference to PMPA as ‘‘subject to public review and comment.’’ Growth Energy comment at 13. Growth Energy did not cite INAPPROPRIATE FOR CHILDREN a whole, which broadly seeks to allow any authority for this interpretation. Nonetheless, consumers to make informed decisions Commission staff has consulted with ASTM 138 1993 Final Rule, 58 FR at 41364–65. for all types of fuel, including throughout this rulemaking, and, as discussed 139 The Rule’s current alternative fuel labels alternative fuel blends. The below, is relying in part on an ASTM standard to require a descriptor at the top of the label that Commission, therefore, provisionally justify abandoning a special label for ‘‘E85.’’ identifies the fuel. For example, retailers must label 134 15 U.S.C. 2821(17). PMPA also empowers the liquefied petroleum gas as ‘‘LPG.’’ 16 CFR concludes that the proposed label is no Commission to define relevant terms used in the 306.10(f)(5). statute. 15 U.S.C. 2823(a). 140 Oxford English Dictionary Online (2013), 141 See Motion Picture Association of America, 135 1993 Final Rule, 58 FR at 41356. http://www.oed.com/view/Entry/158481 How to Read a Rating, www.mpaa.org/ratings/how- 136 H. Rep. No. 102–474(I) (1992). ?rskey=MGAeBQ&result=1&isAdvanced=false#eid to-read-a-rating. 137 S. Rep. No. 95–731 (1978). (last visited March 18, 2014) (emphasis added). 142 RFA comment at 3.

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less appropriate or consistent with the ‘‘automotive fuel rating.’’ 145 Moreover, recommending that the Rule provide PMPA’s purposes than the ratings the to the extent this history could be read that a fuel’s rating derived through the Commission has required for the past 20 as requiring octane ratings for infrared method is invalid if it differs years. alternative fuels, it is directly from the rating derived through D2699 Third, Growth Energy argued that the contradicted by the statutory language, and D2700. However, the record does Commission must interpret ‘‘another which explicitly allows ratings other not show that D2699 and D2700 are form of rating’’ to be similar in purpose than octane ratings. Finally, the superior to the infrared method. Thus, to octane or cetane ratings under the statement cited by RFA declares an there is no reason to favor one approved principle of ejusdem generis, a canon of intent to ensure that fuel retailers rating method over another. provide consumers with the information statutory construction under which a V. Request for Comment general term following a specific one is they need to choose the correct fuel for 146 You can file a comment online or on often understood as a reference to their vehicles. paper. For the Commission to consider subjects akin to the one with the B. Infrared Method your comment, we must receive it on or specific enumeration. However, the All commenters that addressed before June 2, 2014. Write ‘‘Fuel Rating Supreme Court has held that ‘‘[t]his allowing automotive fuel rating through Rule Review, 16 CFR Part 306, Project canon does not control . . . when the infrared spectrophotometers supported No. 811005’’ on your comment. Your whole context dictates a different doing so. Significantly, these comment—including your name and conclusion.’’ 143 That is the case here. commenters included business, your state—will be placed on the public Again, when Congress initially enacted consumer groups, and state regulators. record of this proceeding, including, to PMPA, it pursued a general purpose of Their comments indicate that the the extent practicable, on the public ensuring informed consumer choice at infrared method is a more accurate and Commission Web site, at http:// the pump, and it specifically directed cost-effective means of measuring www.ftc.gov/os/publiccomments.shtm. the FTC to ensure accurate octane octane. Moreover, the record indicates As a matter of discretion, the metrics because those are the main widespread use of the method by state Commission tries to remove individuals’ consumer concerns that arise in regulatory agencies. home contact information from connection with the sale of ordinary In light of this strong support, the comments before placing them on the gasoline. But because Congress Commission proposes adding the Commission Web site. understood that consumer-protection infrared method to the Fuel Rating Because your comment will be made concerns will evolve with changes in Rule’s list of approved octane rating public, you are solely responsible for fuel technology, it deliberately built methods. Specifically, the amendment making sure that your comment doesn’t flexibility into this statutory scheme by would allow use of octane measurement include any sensitive personal allowing the FTC to prescribe ‘‘another by infrared spectrophotometers that are information, such as anyone’s Social form of rating’’ that is ‘‘more correlated with ASTM D2699 and Security number, date of birth, driver’s appropriate’’ to carry out the consumer- D2700, the octane rating methods license number or other state protection purposes of PMPA. It would specified in PMPA, and conform to identification number or foreign country appear to defeat, not serve, that ASTM D6122 (‘‘Standard Practice for equivalent, passport number, financial congressional policy choice to the Validation of the Performance of account number, or credit or debit card hamstring the FTC’s consumer- Multivariate Infrared number. You are also solely responsible protection authority as Growth Energy Spectrophotometers’’). For businesses, for making sure that your comment does proposes here. such an amendment should lower costs. not include any sensitive health Finally, both Growth Energy and RFA For consumers, it should reduce the risk information, such as medical records or argued that, notwithstanding the of inaccurate measurements. other individually identifiable health PMPA’s plain language authorizing The Commission does not propose information. In addition, don’t include alternative forms of rating, legislative adopting Tesoro’s suggestion to any ‘‘[t]rade secret or any commercial or history precludes the Commission’s designate D2699 and D2700 as ‘‘referee financial information which is . . . interpretation of the term ‘‘rating’’ under tests.’’ Tesoro appears to be privileged or confidential,’’ as discussed PMPA. Specifically, Growth Energy in Section 6(f) of the FTC Act, 15 U.S.C. cited statements describing the 1992 145 Significantly, the cited statements include the 46(f), and FTC Rule 4.10(a)(2), 16 CFR observation that one of the PMPA amendments’ 4.10(a)(2). In particular, do not include PMPA amendments as expanding the goals ‘‘is to improve the information available to statute’s octane rating requirements to consumers.’’ Growth Energy comment at 8. See also competitively sensitive information other fuels. RFA noted that in its 1993 H. Rep. No. 102–474(I) (1992) (explaining that ‘‘this such as costs, sales statistics, rulemaking, the Commission relied legislation attempts to increase confidence in and inventories, formulas, patterns, devices, information about motor fuels); S. Rep. No. 95–731 manufacturing processes, or customer upon statements in the legislative (1978) (expressing concern about engine damage history that consumers ‘‘have a right to and noting the need ‘‘to assist [motorists] in the names. If you want the Commission to know what they pay for.’’ 144 However, purchase of suitable gasoline for their motor give your comment confidential the history cited by Growth Energy does vehicles). treatment, you must file it in paper 146 Growth Energy and RFA made two ancillary form, with a request for confidential not preclude the Commission’s arguments for a narrow reading of ‘‘automotive fuel interpretation, and the history cited by rating.’’ First, RFA argued that the proposed treatment, and you have to follow the RFA supports the Commission’s language is misleading and, therefore, not a proper procedure explained in FTC Rule 4.9(c), interpretation. First, the statements rating. For reasons explained above, the 16 CFR 4.9(c).147 Your comment will be Commission does not agree that the proposed labels kept confidential only if the FTC cited by Growth Energy simply note the are misleading. Second, Growth Energy argued that expansion of the statute’s coverage to before requiring a rating other than an octane or General Counsel grants your request in alternative fuels and do not refer cetane rating, the Commission must consider how specifically to the meaning of the alternative rating furthers the objectives of an 147 In particular, the written request for octane rating. Growth Energy appears to base this confidential treatment that accompanies the argument on an assumption that PMPA’s objective comment must include the factual and legal basis 143 Norfolk & W. Ry. v. American Train is to require octane ratings for all fuels. As for the request, and must identify the specific Dispatchers Ass’n, 499 U.S. 117, 129 (1991). explained above, that view of PMPA’s purpose is portions of the comment to be withheld from the 144 RFA comment at 2. contrary to its text. public record. See FTC Rule 4.9(c), 16 CFR 4.9(c).

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accordance with the law and the public particular geographical region or with refiners, producers, importers, interest. fuel containing any particular ethanol distributors, and retailers of ethanol Postal mail addressed to the concentration? Do ethanol blend pumps blends must retain, for one year, records Commission is subject to delay due to currently contain any disclosures? If so, of any delivery tickets, letters of heightened security screening. As a what do those disclosures say? Are they certification, or tests upon which they result, we encourage you to submit your voluntary or required by state law? Do based the automotive fuel ratings that comments online. To make sure that the they effectively prevent misfueling? they certify or post.148 The covered Commission considers your online 3. How would consumers understand parties also must make these records comment, you must file it at https:// the disclosures on the proposed label? available for inspection by staff of the ftcpublic.commentworks.com/ftc/ Would the ‘‘MAY HARM OTHER Commission and EPA or by persons autofuelratingscertnprm, by following ENGINES’’ deter any lawful use of authorized by those agencies. Finally, the instruction on the web-based form. ethanol blends? Would ‘‘USE ONLY IN retailers must produce, distribute, and If this Notice appears at http:// FLEX-FUEL VEHICLES’’ alone be post fuel-rating labels on pumps. www.regulations.gov, you also may file sufficient to advise consumers not to In the 2010 NPRM, the Commission a comment through that Web site. use ethanol blends in other engines? provided estimated recordkeeping and If you file your comment on paper, Provide all evidence, including disclosure burdens for entities covered write ‘‘Fuel Rating Rule Review, 16 CFR consumer surveys or copy tests, under the Rule and sought comment on Part 306, Project No. R811005’’ on your supporting your response. the accuracy of those estimates. The comment and on the envelope, and mail 4. What costs on businesses and Commission believes that the changes or deliver it to the following address: consumers would the proposed made since the 2010 NPRM do not affect Federal Trade Commission, Office of the requirement to disclose ethanol content the previous burden estimates. Below, Secretary, Room H–113 (Annex N), 600 rounded to the nearest tenth impose? Pennsylvania Avenue NW., Washington, What benefits to businesses and the Commission discusses those DC 20580. If possible, submit your consumers would the proposed estimates. paper comment to the Commission by requirement provide? Provide all The Commission estimated the courier or overnight service. evidence supporting your response. burden associated with the Rule’s Visit the Commission Web site at For purposes of the Paperwork recordkeeping requirements for the sale http://www.ftc.gov to read this NPRM Reduction Act, 44 U.S.C. 3501–3521 of automotive fuels to be no more than and the news release describing it. The (‘‘PRA’’), the Commission also invites 5 minutes per year (or 1/12th of an FTC Act and other laws that the comments on (1) whether the proposed hour) per industry member, and no Commission administers permit the modifications to the current rating, more than 1/8th of an hour per year per collection of public comments to certification, and labeling requirements industry member for the Rule’s consider and use in this proceeding as are necessary and/or will be practically disclosure requirements.149 Consistent appropriate. The Commission will useful; (2) the accuracy of the associated with OMB regulations that implement consider all timely and responsive burden estimates; (3) how to improve the PRA, these estimates reflect solely public comments that it receives on or the quality, utility, and clarity of the the burden incremental to the usual and before June 2, 2014. You can find more labels; and (4) how to minimize further customary recordkeeping and disclosure information, including routine uses the burden of the collections of activities performed by affected entities permitted by the Privacy Act, in the information. in the ordinary course of business. See Commission’s privacy policy, at http:// Your responses to the points 5 CFR 1320.3(b)(2). www.ftc.gov/ftc/privacy.htm. immediately above additionally should Because the procedures for The Commission invites members of be sent to the Office of Management and distributing and selling ethanol blends the public to comment on any issues or Budget. If sent by U.S. mail, they should are not substantially different from concerns they believe are relevant or be addressed to Office of Information those for other fuels, the Commission appropriate to the Commission’s and Regulatory Affairs, Office of expects that, consistent with practices consideration of proposed amendments. Management and Budget, Attention: in the fuel industry generally, the The Commission requests that Desk Officer for the Federal Trade covered parties will record the fuel comments provide factual data upon Commission, New Executive Office rating certification on documents (e.g., which they are based. In addition to the Building, Docket Library, Room 10102, shipping receipts) already in use, or will issues raised above, the Commission 725 17th Street NW., Washington, DC use a letter of certification. Furthermore, solicits public comment on the 20503. Comments sent to OMB by U.S. the Commission expects that labeling of following questions and the costs and postal mail, however, are subject to ethanol-fuel pumps will be consistent, benefits to industry members and delays due to heightened security generally, with practices in the fuel consumers of each of the proposals. precautions. Thus, comments should industry. Accordingly, the PRA burden These questions are designed to assist instead be sent by facsimile to (202) will be the same as that for other the public and should not be construed 395–5167. automotive fuels: 1/12th of an hour per as a limitation on the issues on which VI. Paperwork Reduction Act public comment may be submitted. 148 See the Fuel Rating Rule’s recordkeeping 1. What evidence exists regarding The proposed amendments allowing requirements, 16 CFR 306.7; 306.9; and 306.11. whether ethanol blends can harm the infrared method do not impose any 149 See, e.g., Federal Trade Commission: engines, including newer conventional burdens because they merely provide an Automotive Fuel Ratings, Certification and Posting: vehicle engines? Is there evidence alternative means of compliance. Final Rule on Biodiesel Labeling, 73 FR at 40161. Staff has previously estimated that retailers of showing that harm is more likely at However, the proposed certification and automotive fuels incur an average burden of higher ethanol-concentration levels, labeling requirements for ethanol blends approximately one hour to produce, distribute, and and, if so, what levels? constitute a ‘‘collection of information’’ post fuel-rating labels. Because the labels are 2. What evidence exists regarding under the PRA. durable, staff has concluded that only about one of every eight retailers incur this burden each year. consumers misfueling with ethanol Consistent with the Fuel Rating Rule’s Hence, the Rule’s disclosure requirement will blends? If misfueling is occurring, is it requirements for other alternative fuels, impose an annual burden of 1/8th of an hour, on happening with greater frequency in any under the proposed amendments, average, per retailer.

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year for recordkeeping and 1/8th of an annualized labeling cost per retailer will emergence of ethanol blends as a retail hour per year for disclosure. be $4. Cumulative labeling cost would fuel and the likely increased availability The U.S. Department of Energy thus be $10,668 (2,667 retailers × $4 of such blends. As discussed above, the (‘‘DOE’’) indicates 2,667 ethanol each, annualized).152 proposed amendments will further retailers nationwide, and the U.S Energy PMPA’s objective of giving consumers VII. Regulatory Flexibility Act Information Administration indicates information necessary to choose the 193 ethanol fuel production plants.150 The Regulatory Flexibility Act, 5 correct fuel for their vehicles. Thus, assuming that each ethanol U.S.C. 601–612, requires an agency to retailer and producer will spend 1/12th provide an Initial Regulatory Flexibility B. Statement of the Objectives and Legal of an hour per year complying with the Analysis with a proposed rule unless Basis of the Amendments proposed recordkeeping requirements, the agency certifies that the rule will not These amendments provide and each ethanol retailer will spend have a significant economic impact on requirements for rating and certifying 1/8th of an hour per year complying a substantial number of small entities. ethanol blends and requirements for with the proposed disclosure See 5 U.S.C. 603–605. labeling blends of more than 10 percent requirements, the Commission estimates The FTC finds that the proposed ethanol, with an exemption for EPA- the incremental annual burden to be 238 amendments will not have a significant approved E15. Thus, they provide a hours, rounded, for recordkeeping economic impact on a substantial mechanism for fuel pumps dispensing (1/12th of an hour × 2,860 entities) and number of small entities. The ethanol blends to post a rating that will 333 hours, rounded, for disclosure (1/ amendment allowing alternative octane alert consumers to the fuel’s ethanol 8th of an hour × 2,667), combined, 571 measurements does not impose any new content and the suitability of that fuel hours. costs on covered entities because it for their vehicles, pursuant to PMPA, 15 Labor costs are derived by applying merely gives those entities the option of U.S.C. 2801 et seq. appropriate hourly cost figures to the using a different octane rating method C. Estimate of the Number of Small burden hours described above. than what the Rule currently requires. Entities to Which the Proposed Applying an average hourly wage for As explained in Section VI above, the Amendments Will Apply producers of $30.56, and an average Commission expects each ethanol hourly wage for retailers of $10.54 to the retailer and producer to spend, at most, Retailers of ethanol blends will be estimated affected population, labor 5 minutes per year complying with the classified as small businesses if they costs total $6,338.66 (($30.56 × 16 recordkeeping requirements, and each satisfy the Small Business hours) + ($10.54 × 555 hours)) for ethanol retailer to spend 1/8th of an Administration’s relevant size recordkeeping and disclosure burden.151 hour per year complying with the new standards, as determined by the Small The Rule does not impose any capital ethanol disclosure requirements.153 As Business Size Standards component of costs for producers, importers, or also explained in Section VI, staff the North American Industry distributors of ethanol blends. Retailers, estimates an average hourly wage for Classification System (‘‘NAICS’’). The however, do incur the cost of procuring producers of $30.56, and for retailers of closest NAICS size standard relevant to and replacing fuel dispenser labels to $10.54. Even assuming that all ethanol this rulemaking is for ‘‘Gasoline Stations comply with the Rule. Staff has producers and retailers are small with Convenience Stores.’’ That previously estimated that the price per entities, compliance with the standard classifies retailers with a automotive fuel label is fifty cents and recordkeeping requirements will cost maximum $27 million in annual that the average automotive fuel retailer producers an estimated $2.55 ($30.56 × receipts as small businesses.154 As has six dispensers. PMAA, however, 1/12th of an hour) and cost retailers an discussed above, DOE reports 2,667 stated that the cost of labels ranges from estimated $0.88 ($10.54 × 1/12th of an ethanol fueling stations.155 DOE does one to two dollars. Conservatively hour). In addition, under the same not provide information on those applying the upper end from PMAA’s conservative assumptions, compliance retailers’ revenue. Therefore, the estimate results in an initial cost to with the disclosure requirements will Commission seeks comment on how retailers of $12 (6 pumps × $2). cost retailers an estimated $1.32 ($10.54. many of those retailers qualify as small Regarding label replacement, staff has × 1/8th of an hour). Finally, as businesses. previously estimated a dispenser useful discussed in Section VI, the life range of 6 to 10 years. Assuming a D. Projected Reporting, Recordkeeping, Commission estimates annualized and Other Compliance Requirements useful life of 8 years, the mean of that capital costs as $4. range, replacement labeling will not be This document serves as notice to the The proposed amendments make necessary for well beyond the relevant Small Business Administration of the clear that the Fuel Rating Rule’s time frame, i.e., the immediate 3-year agency’s certification of no effect. recordkeeping, certification, and PRA clearance sought. Accordingly, Nonetheless, the Commission has labeling requirements apply to ethanol averaging solely the $12 labeling cost at prepared the following analysis. blends. Small entities potentially inception per retailer over that period, affected are producers, importers, A. Reasons why the Commission is distributors, and retailers of those 150 See http://www.afdc.energy.gov/fuels/ethanol_ Proposing the Amendments blends. The Commission expects that locations.html (last visited Feb. 26, 2014); http:// The Commission proposes these the recordkeeping, certification, and www.eia.gov/petroleum/ethanolcapacity/ (last visited Feb. 26, 2014). amendments in response to the labeling tasks are done by industry 151 See http://www.bls.gov/iag/tgs/ members in the normal course of their iag211.htm#earnings (Bureau of Labor Statistics, 152 This reflects strictly the incremental (and business. Accordingly, we do not expect December 2013 Current Employment Statistics, annualized) PRA costs of the ethanol amendments. the proposed amendments to require Average Hourly Earnings for Oil and Gas Extraction Cumulative capital/non-labor costs for the current any professional skills beyond those Production and Nonsupervisory Employees); Rule under existing OMB clearance (Control No. http://www.bls.gov/iag/tgs/iag447.htm (Bureau of 3084–0068) is $88,600. Labor Statistics, December 2013 Current 153 The Commission assumes that ethanol-blend 154 See http://www.sba.gov/content/small- Employment Statistics, Average Hourly Earnings for producers and distributors would determine the business-size-standards. (last visited Dec. 31, 2013). Gasoline Station Production and Nonsupervisory ethanol percentage in their blends and include it 155 See www.afdc.energy.gov/afdc/fuels/stations_ Employees). with the blends’ transfer documents. counts.html (last visited Dec. 31, 2013).

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already employed by industry members, X. Proposed Rule Drive, West Conshohocken, PA 19428, namely, administrative. or may be inspected at the Federal List of Subjects in 16 CFR Part 306 Trade Commission, Public Reference E. Identification of Overlapping Federal Fuel ratings, Trade practices, Room, Room 130, 600 Pennsylvania Rules Incorporation by reference. Avenue NW, Washington, DC, or at the The Commission is not aware of any For the reasons discussed in the National Archives and Records relevant Federal Rules that would preamble, the Federal Trade Administration (‘‘NARA’’). For duplicate, overlap, or conflict with the Commission proposes to amend title 16, information on the availability of this proposed amendments. The chapter I, subchapter C, of the Code of material at NARA, call 202–741–6030, amendments specifically exempt EPA- Federal Regulations, part 306, as or go to: http://www.archives.gov/ approved E15 blends, which must be follows: federal-register/cfr/ibr-locations.html. * * * * * labeled under EPA rules. PART 306—AUTOMOTIVE FUEL (i) Automotive fuel. This term means RATINGS, CERTIFICATION AND F. Alternatives Considered liquid fuel of a type distributed for use POSTING As explained above, PMPA requires as a fuel in any motor vehicle, and the retailers of liquid automotive fuels to ■ 1. The authority citation for part 306 term includes, but is not limited to: post labels at the point of sale continues to read as follows: (1) Gasoline, an automotive spark- displaying those fuels’ ratings. The ignition engine fuel, which includes, Authority: 15 U.S.C. 2801 et seq.; 42 U.S.C. but is not limited to, gasohol (generally posting requirements in the proposed 17021. a mixture of approximately 90 percent amendments are minimal and, as noted ■ 2. Amend § 306.0 by revising above, do not require creating any unleaded gasoline and 10 percent paragraphs (b), (i), and (j), and adding ethanol) and fuels developed to comply separate documents because covered paragraph (o), to read as follows: parties may use documents already in with the Clean Air Act, 42 U.S.C. 7401 use, such as invoices, to certify a fuel’s § 306.0 Definitions. et seq., such as reformulated gasoline rating. Moreover, the Commission * * * * * and oxygenated gasoline; and (2) Alternative liquid automotive cannot exempt small businesses from (b) Research octane number and fuels, including, but not limited to: the Rule and still communicate fuel motor octane number. (1) These terms (i) Methanol, denatured ethanol, and rating information to consumers. have the meanings given such terms in other alcohols; Furthermore, the amendments minimize the specifications of ASTM (ii) Mixtures containing 85 percent or what, if any, economic impact there is International (‘‘ASTM’’) entitled more by volume of methanol and/or from the labeling requirements. Finally, ‘‘Standard Specification for Automotive other alcohols, excluding ethanol (or because PMPA requires point-of-sale Spark-Ignition Engine Fuel (published such other percentage, as provided by labels, the Rule must require retailers to November 2010)’’ designated D4814– either the Secretary of the United States incur the costs of posting those labels. 10b and, with respect to any grade or Department of Energy, by rule), with Therefore, the Commission concludes type of gasoline, are determined in gasoline or other fuels; that there are no significant alternative accordance with one of the following (iii) Ethanol blends; measures that would accomplish the test methods or protocols: (iv) Liquefied natural gas; objectives of PMPA and further (i) ASTM D2699–09, ’’Standard Test (v) Liquefied petroleum gas; minimize the burden on small entities. Method for Research Octane Number of Spark-Ignition Engine Fuel (published (vi) Coal-derived liquid fuels; VIII. Public Hearings November 2009)’’ and ASTM D2700–09, (vii) Biodiesel; ‘‘Standard Test Method for Motor (viii) Biomass-based diesel; Persons desiring a public hearing Octane Number of Spark-Ignition (ix) Biodiesel blends containing more should notify the Commission no later Engine Fuel (published November than 5 percent biodiesel by volume; and than May 5, 2014. If there is interest in 2009)’’; (x) Biomass-based diesel blends a public hearing, it will take place at a (ii) ASTM D2885–10, ‘‘Standard Test containing more than 5 percent time and date to be announced in a Method for Determination of Octane biomass-based diesel by volume. subsequent notice. If a hearing is held, Number of Spark-Ignition Engine Fuels * * * * * persons desiring an appointment to by On-Line Direct Comparison (j) Automotive fuel rating means. (1) testify must submit to the Commission Technique (published March 2010);’’ or For gasoline, the octane rating. a complete statement in advance, which (iii) ASTM D6122–10, ‘‘Standard (2) For an alternative liquid will be entered into the record in full. Practice for Validation of the automotive fuel other than biodiesel, As a general rule, oral statements should Performance of Multivariate Infrared biomass-based diesel, biodiesel blends, not exceed 10 minutes. If there is a Spectrophotometers,’’ which is biomass-based diesel blends, and hearing, the Commission will provide correlated with ASTM D2699–09 and ethanol blends, the commonly used further instructions in a notice ASTM D2700–09. name of the fuel with a disclosure of the announcing the hearing. (2) The incorporations by reference of amount, expressed as the minimum IX. Communications by Outside Parties ASTM D4814–10b, ASTM D6122–10, percentage by volume, of the principal to the Commissioners or Their Advisors ASTM D2699–09, ASTM D2700–09, and component of the fuel. A disclosure of ASTM D2885–10 in paragraph (b)(1) of other components, expressed as the Written communications and this Section, and in § 306.5(a), were minimum percentage by volume, may summaries or transcripts of oral approved by the Director of the Federal be included, if desired. communications respecting the merits Register in accordance with 5 U.S.C. (3) For biomass-based diesel, of this proceeding from any outside 552(a) and 1 CFR part 51. Copies of biodiesel, biomass-based diesel blends party to any Commissioner or ASTM D4814–10b, ASTM D6122–10, with more than 5 percent biomass-based Commissioner’s advisor will be placed ASTM D2699–09, ASTM D2700–09, and diesel, and biodiesel blends with more on the public record. See 16 CFR ASTM D2885–10, may be obtained from than 5 percent biodiesel, a disclosure of 1.26(b)(5). ASTM International, 100 Barr Harbor the biomass-based diesel or biodiesel

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component, expressed as the percentage reasonable basis, consisting of face of the dispenser. Provided, by volume. competent and reliable evidence, for the however, that you do not need to post (4) For ethanol blends, a disclosure of percentage by volume of the principal the automotive fuel rating of a mixture the ethanol component, expressed as the component of the alternative liquid of gasoline and ethanol containing more percentage by volume and the text ‘‘USE automotive fuel that you must disclose. than 10 but not more than 15 percent ONLY IN FLEX-FUEL VEHICLES/MAY In the case of biodiesel blends, you must ethanol if the face of the dispenser is HARM OTHER ENGINES.’’ possess a reasonable basis, consisting of labelled in accordance with 40 CFR * * * * * competent and reliable evidence, for the 80.1501. (o) Ethanol blend means a mixture of percentage of biodiesel contained in the * * * * * gasoline and ethanol containing more fuel. In the case of biomass-based diesel (f) The following examples of than 10 percent ethanol; blends, you must possess a reasonable automotive fuel rating disclosures for ■ 3. Revise § 306.5 to read as follows: basis, consisting of competent and some presently available alternative reliable evidence, for the percentage of liquid automotive fuels are meant to § 306.5 Automotive fuel rating. biomass-based diesel contained in the serve as illustrations of compliance with If you are a refiner, importer, or fuel. In the case of ethanol blends, you this part, but do not limit the Rule’s producer, you must determine the must possess a reasonable basis, coverage to only the mentioned fuels: automotive fuel rating of all automotive consisting of competent and reliable (1) ‘‘Methanol/Minimum __ % fuel before you transfer it. You can do evidence, for the percentage of ethanol Methanol’’ that yourself or through a testing lab. contained in the fuel. You also must __ (a) To determine the automotive fuel (2) ‘‘ % Ethanol/Use only in Flex-Fuel have a reasonable basis, consisting of Vehicles/May harm other engines’’ rating of gasoline, add the research competent and reliable evidence, for the __ octane number and the motor octane (3) ‘‘M85/Minimum % Methanol’’ minimum percentages by volume of (4) ‘‘LPG/Minimum __ % Propane’’ or number and divide by two, as explained other components that you choose to ‘‘LPG/Minimum __ % Propane and by ASTM D4814–10b, ‘‘Standard disclose. __ % Butane’’ Specifications for Automotive Spark- ■ 4. Revise § 306.6(b) to read as follows: (5) ‘‘LNG/Minimum __ % Methane’’ Ignition Engine Fuel,’’ (incorporated by § 306.6 Certification. (6) ‘‘B20 Biodiesel Blend/contains reference, see § 306.0(b)(2)). To biomass-based diesel or biodiesel in determine the research octane and * * * * * quantities between 5 percent and 20 (b) Give the person a letter or other motor octane numbers you may do one percent’’ of the following: written statement. This letter must (7) ‘‘20% Biomass-Based Diesel Blend/ (1) Use ASTM standard test method include the date, your name, the other contains biomass-based diesel or ASTM D2699–09, ‘‘Standard Test person’s name, and the automotive fuel biodiesel in quantities between 5 Method for Research Octane Number of rating of any automotive fuel you will percent and 20 percent’’ Spark-Ignition Engine Fuel’’ transfer to that person from the date of (8) ‘‘B100 Biodiesel/contains 100 (incorporated by reference, see the letter onwards. Octane rating percent biodiesel’’ § 306.0(b)(2)), to determine the research numbers may be rounded to a whole or (9) ‘‘100% Biomass-Based Diesel/ octane number, and ASTM standard test half number equal to or less than the contains 100 percent biomass-based method ASTM D2700–09, ‘‘Standard number determined by you. This letter diesel’’ Test Method for Motor Octane Number of certification will be good until you * * * * * of Spark-Ignition Engine Fuel’’ transfer automotive fuel with a lower ■ 6. Amend § 306.12 by re-designating (incorporated by reference, see automotive fuel rating, except that a existing paragraphs (a)(4) through (9) as § 306.0(b)(2)), to determine the motor letter certifying the fuel rating of paragraphs (a)(5) through (10), octane number; biomass-based diesel, biodiesel, a respectively; by adding new paragraph (2) Use the test method set forth in biomass-based diesel blend, a biodiesel (a)(4); by removing the illustration of the ASTM D2885–10, ‘‘Standard Test blend, or an ethanol blend will be good ‘‘E–100’’ label in paragraph (f); and by Method for Determination of Octane only until you transfer those fuels with adding a new illustration after the Number of Spark-Ignition Engine Fuels a different automotive fuel rating, existing illustrations in paragraph (f), to by On-Line Direct Comparison whether the rating is higher or lower. read as follows: Technique’’ (incorporated by reference, When this happens, you must certify the see § 306.0(b)(2)); or automotive fuel rating of the new § 306.12 Labels. (3) Use a multivariate infrared automotive fuel either with a delivery * * * * * spectrophotometer, as described in ticket or by sending a new letter of (a) * * * Section 6.1.1 of ASTM D6122–10, certification. (4) For ethanol blends. (i) The label is ‘‘Standard Practice for Validation of the * * * * * 3 inches (7.62 cm) wide h 2 1/2 inches Performance of Multivariate Infrared ■ 5. Revise § 306.10(a) and (f) to read as (6.35 cm) long. ‘‘Helvetica Black’’ or Spectrophotometers,’’ to determine the follows: equivalent type is used throughout. The research octane number and the motor type in the band is centered both octane number following the procedures § 306.10 Automotive fuel rating posting. horizontally and vertically. The band at set forth in ASTM D6122–10 to correlate (a) If you are a retailer, you must post the top of the label contains one of the the measured research and motor octane the automotive fuel rating of all following: numbers with the results of test automotive fuel you sell to consumers. (A) The numerical value representing methods ASTM D2699–09 and ASTM You must do this by putting at least one the volume percentage of ethanol in the D2700–09 (incorporated by reference, label on each face of each dispenser fuel followed by the percentage sign and see § 306.0(b)(2)). through which you sell automotive fuel. then by the term ‘‘ETHANOL’’; or (b) To determine automotive fuel If you are selling two or more kinds of (B) The numerical value representing ratings for alternative liquid automotive automotive fuel with different the volume percentage of ethanol in the fuels other than ethanol blends, automotive fuel ratings from a single fuel, rounded to the nearest factor of 10, biodiesel blends, and biomass-based dispenser, you must put separate labels followed by the percentage sign and diesel blends, you must possess a for each kind of automotive fuel on each then the term ‘‘ETHANOL.’’

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(ii) The band should measure 1 inch except for the word ‘‘ONLY,’’ which is line is in 10 point font, at least 1/8 inch (2.54 cm) deep. The percentage in 26 point font. The word ‘‘ONLY’’ is (.32 cm) below the first line, and is the disclosure and the word ‘‘ETHANOL’’ underlined with a 2 point (or thick) text ‘‘MAY HARM OTHER ENGINES.’’ are in 24 point font. The type below the underline. The second line is in 16 * * * * * black band is centered vertically and point font, at least 1/8 inch (.32 cm) horizontally. The first line is the text: below the first line, and is the text: (f) * * * ‘‘USE ONLY IN.’’ It is in 16 point font, ‘‘FLEX-FUEL VEHICLES.’’ The third

By direction of the Commission. and Response Act of 2002; Final (21 CFR 10.115). The guidance Donald S. Clark, Guidance.’’ represents our current thinking on this Secretary. DATES: Submit either electronic or topic. It does not create or confer any [FR Doc. 2014–07423 Filed 4–3–14; 8:45 am] written comments on FDA guidances at rights for or on any person and does not BILLING CODE 6750–01–P any time. operate to bind FDA or the public. An alternative approach may be used if ADDRESSES: Submit written requests for such approach satisfies the single copies of the guidance to the requirements of the applicable statutes Outreach and Information Center, DEPARTMENT OF HEALTH AND and regulations. HUMAN SERVICES Center for Food Safety and Applied In the Federal Register of February Nutrition (HFS–317), Food and Drug 23, 2012 (77 FR 10753), we made Food and Drug Administration Administration, 5100 Paint Branch available a draft guidance for industry Pkwy., College Park, MD 20740. Send entitled ‘‘FDA Records Access Authority 21 CFR Part 1 two self-addressed adhesive labels to Under Sections 414 and 704 of the assist that office in processing your [Docket No. FDA–2011–D–0674] Federal Food, Drug, and Cosmetic Act’’ request. See the SUPPLEMENTARY and gave interested parties an Guidance for Industry: Food and Drug INFORMATION section for electronic opportunity to submit comments by Administration Records Access access to the guidance. May 23, 2012, for us to consider before Submit electronic comments on the Authority Under the Federal Food, beginning work on the final version of guidance to http://www.regulations.gov. Drug, and Cosmetic Act; Availability the guidance. We received several Submit written comments to the comments on the draft guidance. Other AGENCY: Food and Drug Administration, Division of Dockets Management (HFA– than providing further information on HHS. 305), Food and Drug Administration, where to find guidance on the ACTION: Notice of availability. 5630 Fishers Lane, rm. 1061, Rockville, procedural steps for FDA staff to follow MD 20852. when accessing records under sections SUMMARY: The Food and Drug FOR FURTHER INFORMATION CONTACT: 414 and 704 of the Federal Food, Drug, Administration (FDA or we) is William A. Correll, Jr., Center for Food and Cosmetic Act (21 U.S.C. 350c and announcing the availability of a Safety and Applied Nutrition (HFS– 21 U.S.C. 374, respectively), we are guidance for industry entitled ‘‘FDA 607), Food and Drug Administration, issuing the guidance with a few minor Records Access Authority Under 5100 Paint Branch Pkwy., College Park, changes. The guidance announced in Sections 414 and 704 of the Federal MD 20740, 240–402–1611. this notice finalizes the draft guidance Food, Drug, and Cosmetic Act.’’ The SUPPLEMENTARY INFORMATION: dated February 2012. guidance provides updated information pertaining to FDA’s authority to access I. Background II. Paperwork Reduction Act of 1995 and copy records relating to food. It is We are announcing the availability of This guidance refers to information a revision of FDA’s November 2005 a guidance for industry entitled ‘‘FDA collection provisions found in FDA guidance entitled ‘‘Guidance for Records Access Authority Under regulations. These collections of Industry and FDA Staff: Guidance for Sections 414 and 704 of the Federal information are subject to review by the Records Access Authority Provided in Food, Drug, and Cosmetic Act.’’ This Office of Management and Budget Title III, Subtitle A, of the Public Health guidance is being issued consistent with (OMB) under the Paperwork Reduction Security and Bioterrorism Preparedness our good guidance practices regulation Act of 1995 (44 U.S.C. 3501–3520). We

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