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Partial Rule Exemption for Gilbarco, Inc. Publication: Federal Register Signing Official: April J. Tabor Agency: Federal Trade Commission Date: 26 October 2022 Topic: Gilbarco 
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[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