[Federal Register Volume 87, Number 206 (Wednesday, October 26, 2022)]
[Notices]
[Pages 64789-64791]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-23288]


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FEDERAL TRADE COMMISSION

[File No. R811005]


Partial Rule Exemption for Gilbarco, Inc.

AGENCY: Federal Trade Commission.

ACTION: Grant of partial exemption from the Fuel Rating Rule.

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SUMMARY: The Federal Trade Commission (``FTC'' or ``Commission'') 
grants a partial exemption to Gilbarco, Inc. (``Gilbarco'') from 
requirements of the Fuel Rating Rule related to label size, shape, font 
size, and letterspace specifications.

DATES: This partial exemption is effective October 26, 2022.

FOR FURTHER INFORMATION CONTACT: Hampton Newsome (202-326-2889), 
Attorney, Division of Enforcement, Bureau of Consumer Protection, 
Federal Trade Commission, 600 Pennsylvania Avenue NW, Washington, DC 
20580.

SUPPLEMENTARY INFORMATION: The Commission grants a partial exemption 
for Gilbarco to reduce the footprint and type size of fuel labels 
required under 16 CFR part 306.\1\
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    \1\ The petition is available online at https://www.regulations.gov/document/FTC-2022-0041-0002.
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I. Background

    The Commission promulgated the Fuel Rating Rule (the ``Rule'') (16 
CFR part 306) in accordance with the Petroleum Marketing Practices Act 
(``PMPA''), 15 U.S.C. 2821 et seq., which requires the Commission to 
establish uniform automotive fuel rating and labeling standards.\2\ The 
ratings and labels provide consumers information they need to choose 
the correct type or grade of fuel for their vehicles. As originally 
published in 1979, the Rule only required an octane rating for 
automotive gasoline.\3\ Subsequently, the Commission added labeling 
requirements for liquid alternative fuels, biodiesel, and ethanol flex 
fuel.\4\ Section 306.12 of the Rule details the label color scheme, 
shape, size, textual content, and font type/point size. For example, 
the octane label must display the fuel's octane number in 96-point 
font. In addition, ethanol labels must state ``Use Only In Flex-Fuel 
Vehicles/May Harm Other Engines'' in capital letters and black font, 
with the phrase ``Flex-Fuel Vehicles'' in 16-point font.
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    \2\ See 15 U.S.C. 2823(c)(1).
    \3\ See Octane Posting and Certification Rule, 44 FR 19160 
(1979).
    \4\ See 58 FR 41356 (Aug. 3, 1993) (alternative fuels); 73 FR 
40154 (July 11, 2008) (biodiesel); and 81 FR 2054 (Jan. 14, 2016) 
(ethanol flex fuel).
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    In the past, the Commission granted partial exemptions to allow 
Gilbarco to (1) post octane button labels with smaller label dimensions 
than allowed by the Rule (these changes did not alter font size), and 
(2) add the word ``Press'' on the label. In addition, the Commission 
allowed Gilbarco to make

[[Page 64790]]

the font size ``slightly smaller'' for the prominent octane (96-point 
font) number on the octane label.\5\
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    \5\ See Gilbarco exemptions at 60 FR 57584 (Nov. 16, 1995); 53 
FR 29277 (Aug. 3, 1988); 81 FR 86914 (Dec. 2, 2016); see also 
similar exemptions granted to other companies including Sunoco, 44 
FR 33740 (June 12, 1979) and 55 FR 1871 (Jan. 19, 1990); Dresser 
Industries, Inc., 56 FR 26821 (June 11, 1991); Exxon Corp., 54 FR 
14072 (Apr. 7, 1989).
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II. Gilbarco's Requested Partial Exemption and Requests for Comments

    In its new petition, Gilbarco requested a partial exemption to 
permit retailers to post narrower label dimensions for button labels, 
as well as to allow the use of smaller font size for certain text to 
accommodate such narrower labels. These changes would allow Gilbarco to 
fit more fuel labels on a single dispenser. Gilbarco explained the 
exemption is needed ``so that retailers may adapt to the needs of 
consumers while continuing to ensure the clear and conspicuous 
disclosure of all information required by the Rule.'' Given increases 
in fuel choices at retail pumps, Gilbarco proposed new button label 
specifications that would allow its dispensers to accommodate one 
additional fuel grade button, for a total of six buttons for selecting 
fuel on dispensers.
    Specifically, Gilbarco requested the following changes to the fuel 
rating labels:
    1. Permission to post fuel rating labels that deviate from the 
Rule's requirements concerning the external dimensions of labels for 
gasoline, alternative liquid automotive fuels, ethanol flex fuels, 
biodiesel, biodiesel blends, and biomass-based diesel to allow for 
labels that are 2.20 inches wide (and the same length as previously 
permitted by the Commission in previous exemption requests).\6\
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    \6\ The Rule (16 CFR 306.12) requires labels that are 3 inches 
wide by 2.5 inches long.
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    2. Permission for fuel retailers to post fuel rating labels that 
deviate from font size and letterspace specifications contained in the 
Rule in the following manner:
    a. 22-point font size for ``XX% ETHANOL'' instead of 24-point font 
as currently required on the ethanol label;
    b. 10-point font size and 10.5-point letterspace for ``MINIMUM 
OCTANE RATING'' instead of 12-point font and 12.5 point spacing as 
currently required on the octane label; and
    c. 14-point font size for ``FLEX-FUEL VEHICLES'' instead of 16-
point currently required on the ethanol label.
    As part of the request, Gilbarco proposed that the overall length 
of the labels remain as previously approved by the Commission, and 
their background and text insertions otherwise comply with the Rule's 
color scheme, content, and font type and point size requirements.

III. Request for Comments

    In a June 29, 2022, publication, the Commission proposed granting 
the requested exemption and sought comments on Gilbarco's proposal.\7\ 
In response, the Commission received three brief comments, none of 
which addressed the proposal's merits.\8\
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    \7\ 87 FR 38692.
    \8\ The comments are available at https://www.regulations.gov/docket/FTC-2022-0041/comments. The comments either did not address 
the proposal or addressed issues that fell outside the purview of 
the Rule.
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IV. Discussion

    The Commission concludes that Gilbarco's proposed label 
modifications provide clear and conspicuous notice of the required 
information and are consistent with the objectives of the Rule's color 
scheme, content, and font requirements. Additionally, the Commission's 
experience with similar exemptions suggests the slight reductions in 
font size to several label disclosures are unlikely to materially 
affect consumers' understanding of the labels at the pump. Accordingly, 
the Commission grants the requested partial exemption.

V. Paperwork Reduction Act

    The Fuel Rating Rule contains recordkeeping, disclosure, testing, 
and reporting requirements that constitute information collection 
requirements as defined by 5 CFR 1320.3(c), the definitional provision 
within the Office of Management and Budget (OMB) regulations that 
implement the Paperwork Reduction Act (PRA). OMB has approved the 
Rule's existing information collection requirements through September 
30, 2023 (OMB Control No. 3084-0068). The partial exemption does not 
amend the Rule or change the substance or frequency of the Rule's 
disclosure requirements and, therefore, does not require OMB clearance.

VI. Regulatory Flexibility Act

    The Regulatory Flexibility Act (``RFA''), 5 U.S.C. 601-612, 
requires that the Commission conduct an analysis of the anticipated 
economic impact of the partial exemption on small entities. The RFA 
requires that the Commission provide an Initial Regulatory Flexibility 
Analysis (``IRFA'') with a rule unless the Commission certifies that 
the rule will not have a significant economic impact on a substantial 
number of small entities. 5 U.S.C. 605. The exemption does not amend 
the Rule or alter the substance or frequency of the Rule's disclosure 
requirements. Thus, the Commission has concluded that a regulatory 
flexibility analysis is not necessary and certifies, under Section 605 
of the Regulatory Flexibility Act (5 U.S.C. 605(b)), that the exemption 
will not have a significant economic impact on a substantial number of 
small entities.
    Authority: 16 CFR 1.31(g); 16 CFR 306.12(a).

    By direction of the Commission.
April J. Tabor,
Secretary.

    Note: The following statement will not be included in the Code 
of Federal Regulations:

Concurring Statement of Commissioner Christine S. Wilson

    The Commission has approved an exemption to the Fuel Rating 
Rule.\1\ As I explained in my statement when the Commission sought 
comment on this proposed exemption,\2\ the Commission promulgated this 
Rule pursuant to the Petroleum Marketing Practices Act (``PMPA''), 
which requires the Commission to establish ``a uniform method of 
displaying the automotive fuel rating of automotive fuel at the point 
of sale to ultimate purchasers.'' \3\ The Commission's Rule details the 
label color scheme, shape, size, textual content, and font type/point 
size.\4\ Gilbarco, Inc., a manufacturer of fuel dispensers, requested a 
partial exemption to the Rule to permit retailers to post narrower 
label dimensions for button labels, as well as to allow the use of 
smaller font size for certain text to accommodate the narrower labels.
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    \1\ 16 CFR part 306.
    \2\ Christine S. Wilson, Concurring Statement of Commissioner 
Christine S. Wilson, Notice of Proposed Exemption to the Fuel Rating 
Rule (June 14, 2022), https://www.ftc.gov/system/files/ftc_gov/pdf/R811005FuelRatingWilsonConcurringStatement.pdf.
    \3\ 15 U.S.C 2823(c)(1)(B).
    \4\ See 16 CFR 306.12. As explained in the partial exemption 
document, for example, the octane label must display the fuel's 
octane number in 96-point font. In addition, ethanol labels must 
state ``Use Only In Flex-Fuel Vehicles/May Harm Other Engines'' in 
capital letters and black font, with the phrase ``Flex-Fuel 
Vehicles'' in 16-point font.
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    The partial exemption document indicates that the Commission has 
granted at least seven other exemptions to the Rule since 1979.\5\ I 
support the

[[Page 64791]]

Commission's flexibility in granting exemptions that allow 
manufacturers to adapt the labels and, in several instances, to provide 
additional information to consumers. I also support the granting of 
this exemption. I continue to question, however, whether the highly 
prescriptive requirements in this Rule are needed to satisfy the PMPA's 
mandate to establish a uniform method of displaying fuel ratings. As I 
noted in my prior Concurring Statement, relaxation of the prescriptive 
requirements in the Commission's Rule potentially could obviate the 
need for repeated exemption petitions, which call to mind the familiar 
children's game of ``Mother May I.'' Much has been said about 
permissionless innovation in the context of high-tech companies,\6\ but 
its benefits apply in this context, as well. For example, companies may 
have additional ideas about how to make labels more user-friendly but 
may choose to forgo acting on those initiatives due to the time and 
expense required to seek government approval, chilling beneficial 
innovation.
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    \5\ See partial exemption document above at n.5. Notably the 
companies seeking these exemptions have been large companies, 
including Exxon and Sunoco. The document states that Gilbarco is one 
of the largest manufactures of fuel dispensers in the U.S.
    \6\ See e.g., Adam D. Thierer, ``Embracing a Culture of 
Permissionless Innovation'' CATO Institute (Nov. 17, 2012) 
(explaining that ``permissionless innovation refers to the notion 
that experimentation with new technologies and business models 
should generally be permitted by default'' and that [p]ermissionless 
innovation is not an absolutist position that rejects any role for 
government. Rather, it is an aspirational goal that stresses the 
benefit of `innovation allowed' as the default position to begin 
policy debates.'').
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    I again encourage the Commission to consider ways to streamline the 
Rule's prescriptive requirements, facilitating the conveyance of 
information to consumers uniformly while giving greater flexibility to 
manufacturers.\7\
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    \7\ I have repeatedly suggested a similar review of the Energy 
Labeling Rule's even more highly prescriptive requirements. See 
Dissenting Statement of Commissioner Christine S. Wilson, Notice of 
Proposed Rulemaking to Energy Labeling Rule (May 11, 2022), https://www.ftc.gov/system/files/ftc_gov/pdf/Commission%20Wilson%20Dissenting%20Statement%20Energy%20Labeling%20Rule%205.11.22%20FINAL.pdf.

[FR Doc. 2022-23288 Filed 10-25-22; 8:45 am]
BILLING CODE 6750-01-P