Test Procedures and Labeling Standards for Recycled Oil, 48213-48216 [2018-20273]

Download as PDF Federal Register / Vol. 83, No. 185 / Monday, September 24, 2018 / Rules and Regulations responsible Flight Standards Office for a purpose listed in § 93.309(c), no person may operate an aircraft within 500 feet of any terrain or structure located between the north and south rims of the Grand Canyon. 7. In § 93.317, revise the introductory text to read as follows: ■ § 93.317 Commercial Special Flight Rules Area operation curfew. Unless otherwise authorized by the responsible Flight Standards Office, no person may conduct a commercial Special Flight Rules Area operation in the Dragon and Zuni Point corridors during the following flight-free periods: * * * * * 8. In § 93.321, revise paragraph (b)(4)(iii) to read as follows: ■ § 93.321 Transfer and termination of allocations. * * * * * (b) (4) (iii) A certificate holder must notify in writing the responsible Flight Standards Office within 10 calendar days of a transfer of allocations. This notification must identify the parties involved, the type of transfer (permanent or temporary) and the number of allocations transferred. Permanent transfers are not effective until the responsible Flight Standards Office reissues the operations specifications reflecting the transfer. Temporary transfers are effective upon notification. * * * * * § 93.323 ■ [Reserved] 9. Remove and reserve § 93.323. 10. In § 93.325, revise paragraph (a) to read as follows: ■ § 93.325 Quarterly reporting. daltland on DSKBBV9HB2PROD with RULES (a) Each certificate holder must submit in writing, within 30 days of the end of each calendar quarter, the total number of commercial SFRA operations conducted for that quarter. Quarterly reports must be filed with the responsible Flight Standards Office. * * * * * Issued under the authority provided by 49 U.S.C. 106(f) and (g), 44701(a)(5), and Public Law 100–91 in Washington, DC, on September 6, 2018. Carl Burleson, Acting Deputy Administrator. [FR Doc. 2018–20176 Filed 9–21–18; 8:45 am] BILLING CODE 4910–13–P VerDate Sep<11>2014 17:46 Sep 21, 2018 Jkt 244001 FEDERAL TRADE COMMISSION 16 CFR Part 311 RIN 3084–AB48 Test Procedures and Labeling Standards for Recycled Oil Federal Trade Commission. Final rule. AGENCY: ACTION: The Federal Trade Commission (‘‘FTC’’ or ‘‘Commission’’) has completed its regulatory review of the Test Procedures and Labeling Standards for Recycled Oil (‘‘Recycled Oil Rule’’ or ‘‘Rule’’), as part of the Commission’s systematic review of all current Commission regulations and guides. The Commission now updates the Rule’s reference to American Petroleum Institute Publication 1509 to reflect the most recent version of that document. Otherwise, the Commission retains the Rule in its current form. DATES: The amendments are effective October 24, 2018. The incorporation by reference of the publication listed in this rule is approved by the Director of the Federal Register as of October 24, 2018. ADDRESSES: Relevant portions of the record of this proceeding, including this document, are available at https:// www.ftc.gov. FOR FURTHER INFORMATION CONTACT: Hampton Newsome, (202) 326–2889, Attorney, Division of Enforcement, Bureau of Consumer Protection, Federal Trade Commission, Mailstop CC–9528, 600 Pennsylvania Avenue NW, Washington, DC 20580. SUPPLEMENTARY INFORMATION: SUMMARY: I. Background The Recycled Oil Rule, mandated by the Energy Policy and Conservation Act (‘‘EPCA’’) (42 U.S.C. 6363), contains testing and labeling requirements for recycled engine oil. As indicated in the statute, the Rule’s purpose is to encourage oil recycling, promote recycled oil use, reduce new oil consumption, and reduce environmental hazards and wasteful practices associated with used oil disposal.1 Initially promulgated in 1995 (60 FR 55414 (Oct. 31, 1995)), the Rule allows manufacturers to represent that processed used engine oil is substantially equivalent to new oil as long as they substantiate such claims using American Petroleum Institute (API) Publication 1509 (‘‘Engine Oil Licensing and Certification System’’).2 1 42 U.S.C. 6363(a). EPCA (42 U.S.C. 6363(c)), the National Institute of Standards and Technology (‘‘NIST’’) 2 Under PO 00000 Frm 00013 Fmt 4700 Sfmt 4700 48213 The Rule does not require manufacturers to explicitly state their engine oil is substantially equivalent to new oil, nor does it mandate other specific qualifiers or disclosures.3 II. Regulatory Review Program The Commission reviews its rules and guides periodically to seek information about their costs and benefits, regulatory and economic impact, and general effectiveness in protecting consumers and helping industry avoid deceptive claims. These reviews assist the Commission in identifying rules and guides warranting modification or rescission. When it last reviewed the Rule in 2007, the Commission updated the reference to API Publication 1509, Fifteenth Edition, and added an explanation of incorporation by reference in Section 311.4.4 In a December 20, 2017 proposed rule (82 FR 60334), the Commission initiated a new review and sought comments on, among other things, the need for the Rule, its economic impact, its benefits to consumers, and its burdens on industry members, including small businesses. The Commission also specifically asked whether it should update the Rule’s reference to API Publication 1509 to reflect the most recent version. In response to the proposed rule, the Commission received seven comments.5 III. Public Comment Analysis and Amendment After reviewing the comments, the Commission updates the Rule’s reference to API Publication 1509 and the Rule’s incorporation by reference language. Otherwise the Commission retains the Rule in its current form. A must develop (and report to the FTC) applicable standards for determining the substantial equivalence of processed used engine oil with new engine oil. NIST recommended API Publication 1509 when the Commission originally promulgated the Rule in 1995. 3 60 FR at 55418–19. As the Commission has previously explained, until NIST develops test procedures for end uses other than engine oil, the Recycled Oil Rule is limited to recycled oil used for that purpose. Moreover, because NIST’s test procedures and performance standards are the same as those adopted by API for engine oils, the Commission must limit the Rule’s scope to categories of engine oil that are covered by the API Engine Oil Licensing and Certification System, as prescribed in API Publication 1509. See 72 FR 14410, n.1 (Mar. 28, 2007). 4 72 FR 14410, 14413 (Mar. 28, 2007). 5 The public comments are posted at: https:// www.ftc.gov/policy/public-comments/2018/01/ initiative-735. They include: Avista Oil Group (Avista) (#00006); American Petroleum Institute (API) (#00007); National Automobile Dealers Association (NADA) (#00008); Independent Lubricant Manufacturers Association (ILMA) (#00010); NORA, An Association of Responsible Recyclers (NORA) (#00011); Safety-Kleen (#00005); and Curtiss (#00003). E:\FR\FM\24SER1.SGM 24SER1 48214 Federal Register / Vol. 83, No. 185 / Monday, September 24, 2018 / Rules and Regulations discussion of the comments and the amendments follow.6 daltland on DSKBBV9HB2PROD with RULES A. Rule Need, Benefits, Costs, and Compliance As discussed below, commenters indicated the Commission should retain the Rule because it continues to serve its purpose, benefits both consumers and industry, imposes no unwarranted costs, and has high compliance rates.7 Several commenters indicated the Rule continues to serve EPCA’s purposes. For example, NORA explained that the Rule encourages used oil recycling, promotes recycled oil use, reduces consumption of new oil, and reduces hazards and waste associated with used oil disposal. In addition, in NORA’s view, the Rule’s substantiation requirements for recycled oil have helped remedy a general perception that recycled oil is inferior to new oil. NORA also indicated that the Rule’s provisions help encourage consumer demand for recycled oil, which creates environmental benefits through oil collection and reuse in place of costly disposal.8 ILMA added that, without the Rule, some states may impose their own labeling requirements, potentially creating inconsistencies, which could confuse consumers nationwide. It further explained that the Rule furnishes ‘‘an effective regulatory tool’’ to prevent the marketing of ‘‘junk’’ oil.9 Safety-Kleen concluded the Rule has ‘‘helped to increase acceptance of rerefined oil by creating an objective benchmark by which all oil can be measured.’’ In addition to serving the enumerated purposes of the statute, commenters indicated the Rule provides significant benefits to consumers and industry members. ILMA and API stated it helps consumers by providing an additional marketplace choice, backed by the API performance standards. NORA asserted that competition encouraged by the Rule keeps prices low. It also noted the Rule helps assure consumers that ‘‘substantially similar’’ claims for rerefined lubricants are accurate and supported by test data. Regarding 6 The Commission has not published an additional proposed rule in this proceeding because the December 2017 proposed rule provided interested persons an adequate opportunity to comment on the final amendments published here (i.e., the updated reference to API Publication 1509). 7 See, e.g., API, NADA, NORA, and Safety-Kleen. 8 Safety Kleen added that recycled oil, which is increasing in availability, ‘‘generates significant energy and environmental benefits’’ at a competitive price and helps create domestic jobs. 9 ILMA also discussed its efforts to address the sale of ‘‘obsolete oils’’, an issue outside the Rule’s scope. VerDate Sep<11>2014 17:46 Sep 21, 2018 Jkt 244001 industry benefits, API commented the Rule aids companies by allowing sellers to market re-refined base stocks without concern that consumers will view recycled oil as a lower quality product. Similarly, NADA contended the Rule aids sellers by encouraging growing market acceptance of recycled oil while affording processors marketing flexibility. According to Avista, the Rule has ‘‘incentivized domestic re-refiners to pioneer new technology.’’ NORA also indicated that recycled oil has a ‘‘reduced carbon dioxide footprint.’’ Finally, Safety-Kleen stated that a standardized testing and certification process decreases industry costs. No commenter identified any unwarranted costs associated with the Rule.10 No commenters identified significant compliance issues with the Rule. Safety Kleen explained that the Rule provides a standardized, objectively verifiable test that can be used to refute false claims. In addition, NORA and ILMA asserted that companies have little incentive to engage in deceptive conduct given the potential penalties involved. Furthermore, several commenters described ongoing industry efforts to monitor engine oil quality. For example, ILMA explained that it runs a program to randomly test engine oil marketed by its members and has found high compliance rates. Similarly, SafetyKleen noted that API conducts an After Market Audit Program that tests products ‘‘for compliance against the original fluid certification testing,’’ and API did not identify any significant compliance problems.11 B. Suggested Changes and Updates Comments: Commenters recommended several Rule amendments, including updating the reference to API Publication 1509, permitting automatic updates to the API publication, expanding the claims covered by the Rule, and changing several definitions. Commenters agreed the Commission should update the Rule’s reference to API Publication 1509 to reflect the seventeenth edition, as the Commission 10 Commenter Curtiss stated that oil recycling should be a ‘‘top priority’’ and urged ‘‘continued improvement of oil recycling.’’ Curtiss also recommended, without elaboration, that ‘‘this oil be labeled as such’’ and certified. As discussed in the original rulemaking, the Commission has not identified a need for any affirmative disclosure requirements related to used oil, as long as marketers meet the API Publication 1509. See 60 FR at 55418–55419. Curtiss also recommended a deposit system for oil. However, such a system falls outside the scope of the Commission’s authority. 11 Commenters did not identify any conflicts between the Rule and other requirements, nor did they identify any technological advances that would warrant changes to the Rule. PO 00000 Frm 00014 Fmt 4700 Sfmt 4700 proposed in its December 2017 proposed rule.12 For instance, SafetyKleen explained that this update will ‘‘ensure both virgin and re-refined quality levels meet the most current standard.’’ ILMA identified no significant costs to industry for this updated reference. No commenters opposed the conforming change. In addition, three commenters (API, NORA, and ILMA) recommended amending the Rule to allow for automatic updates to the ‘‘most recent version’’ of the API publication. In the commenters’ view, such a change would preclude the need for the Commission to publish future Rule updates. Similarly, API supported automatic Rule updates, noting Publication 1509 is generally updated every three to five years. Aside from updating the API Publication, several commenters urged the Commission to refrain from making any other changes.13 For instance, Safety Kleen stated that all the current provisions are ‘‘necessary and appropriate.’’ Similarly, no commenters identified technological changes that necessitate Rule amendments; nor did they note any conflicts between the Rule and other requirements. NADA advised that any proposed Rule changes should comport with the statute’s goals. Other commenters, however, recommended additional revisions. First, Avista suggested the Rule allow recycled oil marketers to label their products as ‘‘equal in quality’’ to new oil (i.e., oil manufactured from crude oil). In its view, technological improvements in the industry during the last decade have rendered recycled oil of equal or better quality than refined oil, and this fact ‘‘must be reflected in the new Rule.’’ Some commenters also recommended changing the Rule’s definitions to make them more consistent with existing industry usage and practice. NORA explained that, in the oil recycling industry, the term ‘‘recycled oil’’ generally refers not only to oil processed for use as an engine oil (i.e., lubricant) but also to used oil processed for fuel.14 However, in the Rule, ‘‘recycled oil’’ only means re-refined oil successfully tested pursuant to the API publication (which addresses engine oil, not fuel). NORA also noted overlap in the Rule’s definitions of ‘‘processed used oil,’’ ‘‘recycled oil,’’ and ‘‘re-refined oil.’’ Although NORA did not provide 12 See, e.g., API, NADA, NORA, and Safety-Kleen. ILMA and Safety-Kleen. 14 In addition, ‘‘processed used oil’’ as defined in the FTC Rule refers to re-refined used oil, while in EPA regulations (40 CFR part 279) the same term refers to used oil processed into a fuel. 13 See E:\FR\FM\24SER1.SGM 24SER1 daltland on DSKBBV9HB2PROD with RULES Federal Register / Vol. 83, No. 185 / Monday, September 24, 2018 / Rules and Regulations specific suggestions, its comments implied that the Commission should harmonize the Rule’s terms with common industry understanding and otherwise define the terms more precisely to avoid confusion. Similarly, API recommended amending the Rule to clearly distinguish base stock ‘‘manufacturers’’ from ‘‘oil marketers’’ (i.e., organizations ‘‘responsible for identifying the standard met by an engine oil’’).’’ 15 Specifically, it urged the Commission to use the term ‘‘oil marketer’’ in lieu of ‘‘manufacturer’’ wherever the Rule addresses entities responsible for oil branding. API also suggested the Commission amend the definition of ‘‘manufacturer’’ to exclude entities that blend processed used oil with new oil or additives by limiting the definition to entities that re-refine or otherwise process ‘‘used oil to remove physical or chemical impurities acquired through use.’’ API also urged the Commission to change the definition for ‘‘recycled oil’’ so that it refers to oil ‘‘deposited, collected, and managed in accordance with’’ EPA’s used oil management standards (40 CFR part 279), instead of oil determined to be ‘‘substantially equivalent to new oil for use as engine oil’’ under Publication 1509, as currently required by the Rule. API explained that this change would ‘‘clarify oil disposition once it has been introduced’’ into a vehicle engine. In clarifying the common industry understanding of various terms, API noted that the term ‘‘used oil’’ identifies the oil drained from a crankcase; ‘‘recycled oil’’ refers to the used oil once it has entered the used oil management stream; ‘‘re-refined oil’’ is one method used to repurpose used oil; and ‘‘processed used oil’’ is a broad term that covers all potential methods used to repurpose used oil. Discussion: The Commission amends the Rule to update the reference to API Publication 1509, including the regulatory language for incorporation by reference. With the exception of this minor update, the Commission retains the Rule in its current form. As discussed below, the Commission does not propose making other changes suggested by commenters, including providing for automatic updates to the test procedures incorporated by reference, addressing ‘‘equal in quality’’ claims for recycled oil in the Rule, or changing the Rule’s definitions. 15 API recommended the Commission adopt the ‘‘oil marketer’’ definition in the current version of API 1509. VerDate Sep<11>2014 17:46 Sep 21, 2018 Jkt 244001 The Commission does not amend the Rule to include automatic updates because such an approach is inconsistent with Office of Federal Register (OFR) requirements. Under OFR rules, incorporation by reference is ‘‘limited to the edition of the publication that is approved’’ and cannot include future amendments or revisions.16 While the Commission cannot include such a perpetual update mechanism, it will consider future updates to the test procedures in the Rule as part of its periodic reviews. In the interim, stakeholders may petition the Commission if there is a pressing need for a particular update. Likewise, the Commission declines to amend the Rule to address whether recycled oil marketers can label their products as ‘‘equal in quality’’ to new oil. The record does not clearly establish the basis and need for additional affirmative labeling provisions beyond the statutory requirement that representations of substantial equivalency be based on the NIST standards.17 Furthermore, the FTC Act (15 U.S.C. 45(a)) does not restrict the scope of truthful advertising claims sellers may make for recycled oil. Indeed, marketers may make recycled oil claims beyond those covered by the Rule, as long as such representations are supported by competent and reliable evidence and do not otherwise violate the FTC Act.18 Further, the Commission declines to amend the Rule’s definitions. Specifically, the proposed clarification to the definition of ‘‘processed used oil’’ does not appear necessary. Although industry members may understand the term as applying to oil processed for engine lubrication and fuel, the Rule’s principal provisions clearly involve oil recycled ‘‘for use as engine oil.’’ 19 Moreover, the record provides little evidence that the narrow application of this term in the Rule has caused significant problems in the regulated community or for consumers. Additionally, the Commission declines to alter the term ‘‘manufacturer’’ or add the term ‘‘oil marketer’’ as API recommended. The Rule’s definition for ‘‘manufacturer’’ is consistent with the statutory language for that term, which encompasses not 16 See 1 CFR 51.1(f). 60 FR 55414, 55419. 18 The Rule, however, preempts any law, regulation, or order of any State (or political subdivision thereof), if it has labeling requirements with respect to the comparative characteristics of recycled oil with new oil that are not identical to the labels permitted by the Rule. See 42 U.S.C. 6363(e)(1); 16 CFR 311.3. 19 See, e.g., 16 CFR 311.1(d), 311.5, and 311.6. 17 See PO 00000 Frm 00015 Fmt 4700 Sfmt 4700 48215 only entities that process used oil to remove impurities, but also entities that blend processed used oil with new oil. Although the statute’s definition may stretch beyond industry’s conventional use of the term, API did not detail any problems, for consumers or industry members, caused by the current language, nor did it delineate its proposal’s benefits. Likewise, there appears to be no need to add a definition of ‘‘oil marketer’’ or to change the scope of ‘‘manufacturer.’’ The Rule’s core provisions already apply broadly to ‘‘any manufacturer or other seller,’’ thus negating the need to expand the Rule’s existing terms.20 Finally, the Commission does not change the definition of ‘‘recycled oil’’ to tie the term to EPA’s used oil management regulations (instead of the substantial equivalency determination) as suggested by API. This change would be inconsistent with the statute, which specifically defines the term ‘‘recycled oil’’ as used oil the manufacturer has determined to be substantially equivalent to new oil under the procedures set out in the Rule. IV. Regulatory Flexibility Act The Regulatory Flexibility Act (‘‘RFA’’), 5 U.S.C. 601–612, requires an agency to provide a Final Regulatory Flexibility Analysis with the final rule, unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. See 5 U.S.C. 603–605. The amendment, which merely updates the Rule’s reference to the API publication, does not increase the Rule’s burdens.21 Accordingly, the Commission certifies that the amendment will not have a significant economic impact on a substantial number of small entities. This document serves as notice of that determination to the Small Business Administration. V. Paperwork Reduction Act Under the Paperwork Reduction Act (‘‘PRA’’), 44 U.S.C. 3501–3520, Federal agencies must obtain approval from the 20 See 16 CFR 311.5 and 311.6 (emphasis added). Under EPCA, ‘‘person’’ is defined to include ‘‘(A) any individual, (B) any corporation, company, association, firm, partnership, society, trust, joint venture, or joint stock company, and (C) the government and any agency of the United States or any State or political subdivision thereof.’’ 42 U.S.C. 6202(2). 21 The Rule itself permits rather than requires any container of recycled oil to bear a label indicating that it is substantially equivalent to new engine oil, if such a determination has been made in accordance with the prescribed test procedures. The Rule imposes no reporting or recordkeeping requirements, and it permits recycled oil to be labeled with information that is basic and easily ascertainable. E:\FR\FM\24SER1.SGM 24SER1 48216 Federal Register / Vol. 83, No. 185 / Monday, September 24, 2018 / Rules and Regulations Office of Management and Budget (‘‘OMB’’) for each collection of information they conduct or sponsor. ‘‘Collection of information’’ means agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. 44 U.S.C. 3502(3); 5 CFR 1320.3(c). The amended Rule does not involve the ‘‘collection of information’’ under the PRA and, therefore, OMB approval is not required. VI. Incorporation by Reference Consistent with 5 U.S.C. 552(a) and 1 CFR part 51, the Commission incorporates the specifications of the following document published by the American Petroleum Institute: API 1509, ‘‘Engine Oil Licensing and Certification System,’’ Seventeenth Edition, September 2012 (Addendum 1, October 2014, Errata, March 2015). According to API, this publication ‘‘describes the API Engine Oil Licensing and Certification System (EOLCS), a voluntary licensing and certification program designed to define, certify, and monitor engine oil performance deemed necessary for satisfactory equipment life and performance by vehicle and engine manufacturers.’’ API 1509 is reasonably available to interested parties. Members of the public can obtain copies of API Publication 1509 from API, 1220 L Street NW, Washington, DC 20005; telephone: (202) 682–8000; internet address: https://www.api.org. These standards are also available for inspection at the FTC Library, (202) 326–2395, Federal Trade Commission, Room H–630, 600 Pennsylvania Avenue NW, Washington, DC 20580. List of Subjects in 16 CFR Part 311 Energy conservation, Incorporation by reference, Labeling, Recycled oil, Trade practices. For the reason set forth in the preamble, 16 CFR part 311 is amended as follows: PART 311—TEST PROCEDURES AND LABELING STANDARDS FOR RECYCLED OIL 1. The authority citation for part 311 continues to read as follows: ■ Authority: 42 U.S.C. 6363(d). ■ 2. Revise § 311.4 to read as follows: daltland on DSKBBV9HB2PROD with RULES § 311.4 Testing. To determine the substantial equivalency of processed used oil with new oil for use as engine oil, manufacturers or their designees must use the test procedures in API 1509, Engine Oil Licensing and Certification System, Seventeenth Edition, September VerDate Sep<11>2014 17:46 Sep 21, 2018 Jkt 244001 2012 (Addendum 1, October 2014, Errata, March 2015). The Director of the Federal Register approves this incorporation by reference in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. You may obtain a copy from API, 1220 L Street NW, Washington, DC 20005; telephone: 202– 682–8000; internet address: https:// www.api.org. You may inspect a copy at the FTC Library, 202–326–2395, Federal Trade Commission, Room H–630, 600 Pennsylvania Avenue NW, Washington, DC 20580. It is also available for inspection at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202–741–6030 or go to www.archives.gov/federal-register/ cfr/ibr-locations.html. By direction of the Commission. Donald S. Clark, Secretary. [FR Doc. 2018–20273 Filed 9–21–18; 8:45 am] BILLING CODE 6750–01–P CONSUMER PRODUCT SAFETY COMMISSION [Docket No. CPSC–2015–0016] 16 CFR Part 1233 Revisions to Safety Standard for Portable Hook-On Chairs Consumer Product Safety Commission. ACTION: Direct final rule. AGENCY: In March 2016, the U.S. Consumer Product Safety Commission (CPSC) published a consumer product safety standard for portable hook-on chairs based on the ASTM voluntary standard for portable hook-on chairs. ASTM has since published a revised voluntary standard for portable hook-on chairs. We are publishing this direct final rule, revising the CPSC’s mandatory standard for portable hookon chairs to incorporate by reference the more recent version of the applicable ASTM standard. DATES: The rule is effective on January 15, 2019, unless we receive significant adverse comment by October 24, 2018. If we receive timely significant adverse comments, we will publish notification in the Federal Register, withdrawing this direct final rule before its effective date. The incorporation by reference of the publication listed in this rule is approved by the Director of the Federal Register as of January 15, 2019. ADDRESSES: You may submit comments, identified by Docket No. CPSC–2015– 0016, by any of the following methods: SUMMARY: PO 00000 Frm 00016 Fmt 4700 Sfmt 4700 Submit electronic comments in the following way: Federal eRulemaking Portal: https:// www.regulations.gov. Follow the instructions for submitting comments. To ensure timely processing of comments, the Commission is no longer accepting comments submitted by electronic mail (email), except through www.regulations.gov. Submit written submissions as follows: Mail/Hand delivery/Courier (for paper, disk, or CD–ROM submissions), preferably in five copies, to: Division of the Secretariat, Consumer Product Safety Commission, Room 820, 4330 East West Highway, Bethesda, MD 20814; telephone (301) 504–7923. Instructions: All submissions received must include the agency name and docket number for this notice. All comments received may be posted without change, including any personal identifiers, contact information, or other personal information provided, to https://www.regulations.gov. Do not submit confidential business information, trade secret information, or other sensitive or protected information electronically. Such information should be submitted in writing. FOR FURTHER INFORMATION CONTACT: Keysha Walker, Compliance Officer, U.S. Consumer Product Safety Commission, 4330 East-West Highway, Bethesda, MD 20814; telephone: 301– 504–6820; email: kwalker@cpsc.gov. SUPPLEMENTARY INFORMATION: A. Background 1. The Danny Keysar Child Product Safety Notification Act Section 104(b)(1)(B) of the CPSIA, also known as the Danny Keysar Child Product Safety Notification Act, requires the Commission to promulgate consumer product safety standards for durable infant or toddler products. The law requires that these standards are to be ‘‘substantially the same as’’ applicable voluntary standards or more stringent than the voluntary standards if the Commission concludes that more stringent requirements would further reduce the risk of injury associated with the product. The CPSIA also sets forth a process for updating CPSC’s durable infant or toddler standards when the voluntary standard upon which the CPSC standard was based is changed. Section 104(b)(4)(B) of the CPSIA provides that if an organization revises a standard that has been adopted, in whole or in part, as a consumer product safety standard under this subsection, it shall notify the Commission. In addition, the revised E:\FR\FM\24SER1.SGM 24SER1

Agencies

FEDERAL TRADE COMMISSION

[Federal Register Volume 83, Number 185 (Monday, September 24, 2018)]
[Rules and Regulations]
[Pages 48213-48216]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-20273]

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FEDERAL TRADE COMMISSION

16 CFR Part 311

RIN 3084-AB48

Test Procedures and Labeling Standards for Recycled Oil

AGENCY: Federal Trade Commission.

ACTION: Final rule.

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SUMMARY: The Federal Trade Commission (``FTC'' or ``Commission'') has
completed its regulatory review of the Test Procedures and Labeling
Standards for Recycled Oil (``Recycled Oil Rule'' or ``Rule''), as part
of the Commission's systematic review of all current Commission
regulations and guides. The Commission now updates the Rule's reference
to American Petroleum Institute Publication 1509 to reflect the most
recent version of that document. Otherwise, the Commission retains the
Rule in its current form.

DATES: The amendments are effective October 24, 2018. The incorporation
by reference of the publication listed in this rule is approved by the
Director of the Federal Register as of October 24, 2018.

ADDRESSES: Relevant portions of the record of this proceeding,
including this document, are available at https://www.ftc.gov.

FOR FURTHER INFORMATION CONTACT: Hampton Newsome, (202) 326-2889,
Attorney, Division of Enforcement, Bureau of Consumer Protection,
Federal Trade Commission, Mailstop CC-9528, 600 Pennsylvania Avenue NW,
Washington, DC 20580.

SUPPLEMENTARY INFORMATION:

I. Background

The Recycled Oil Rule, mandated by the Energy Policy and
Conservation Act (``EPCA'') (42 U.S.C. 6363), contains testing and
labeling requirements for recycled engine oil. As indicated in the
statute, the Rule's purpose is to encourage oil recycling, promote
recycled oil use, reduce new oil consumption, and reduce environmental
hazards and wasteful practices associated with used oil disposal.\1\
Initially promulgated in 1995 (60 FR 55414 (Oct. 31, 1995)), the Rule
allows manufacturers to represent that processed used engine oil is
substantially equivalent to new oil as long as they substantiate such
claims using American Petroleum Institute (API) Publication 1509
(``Engine Oil Licensing and Certification System'').\2\ The Rule does
not require manufacturers to explicitly state their engine oil is
substantially equivalent to new oil, nor does it mandate other specific
qualifiers or disclosures.\3\
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\1\ 42 U.S.C. 6363(a).
\2\ Under EPCA (42 U.S.C. 6363(c)), the National Institute of
Standards and Technology (``NIST'') must develop (and report to the
FTC) applicable standards for determining the substantial
equivalence of processed used engine oil with new engine oil. NIST
recommended API Publication 1509 when the Commission originally
promulgated the Rule in 1995.
\3\ 60 FR at 55418-19. As the Commission has previously
explained, until NIST develops test procedures for end uses other
than engine oil, the Recycled Oil Rule is limited to recycled oil
used for that purpose. Moreover, because NIST's test procedures and
performance standards are the same as those adopted by API for
engine oils, the Commission must limit the Rule's scope to
categories of engine oil that are covered by the API Engine Oil
Licensing and Certification System, as prescribed in API Publication
1509. See 72 FR 14410, n.1 (Mar. 28, 2007).
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II. Regulatory Review Program

The Commission reviews its rules and guides periodically to seek
information about their costs and benefits, regulatory and economic
impact, and general effectiveness in protecting consumers and helping
industry avoid deceptive claims. These reviews assist the Commission in
identifying rules and guides warranting modification or rescission.
When it last reviewed the Rule in 2007, the Commission updated the
reference to API Publication 1509, Fifteenth Edition, and added an
explanation of incorporation by reference in Section 311.4.\4\
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\4\ 72 FR 14410, 14413 (Mar. 28, 2007).
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In a December 20, 2017 proposed rule (82 FR 60334), the Commission
initiated a new review and sought comments on, among other things, the
need for the Rule, its economic impact, its benefits to consumers, and
its burdens on industry members, including small businesses. The
Commission also specifically asked whether it should update the Rule's
reference to API Publication 1509 to reflect the most recent version.
In response to the proposed rule, the Commission received seven
comments.\5\
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\5\ The public comments are posted at: https://www.ftc.gov/policy/public-comments/2018/01/initiative-735. They include: Avista
Oil Group (Avista) (#00006); American Petroleum Institute (API)
(#00007); National Automobile Dealers Association (NADA) (#00008);
Independent Lubricant Manufacturers Association (ILMA) (#00010);
NORA, An Association of Responsible Recyclers (NORA) (#00011);
Safety-Kleen (#00005); and Curtiss (#00003).
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III. Public Comment Analysis and Amendment

After reviewing the comments, the Commission updates the Rule's
reference to API Publication 1509 and the Rule's incorporation by
reference language. Otherwise the Commission retains the Rule in its
current form. A

[[Page 48214]]

discussion of the comments and the amendments follow.\6\
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\6\ The Commission has not published an additional proposed rule
in this proceeding because the December 2017 proposed rule provided
interested persons an adequate opportunity to comment on the final
amendments published here (i.e., the updated reference to API
Publication 1509).
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A. Rule Need, Benefits, Costs, and Compliance

As discussed below, commenters indicated the Commission should
retain the Rule because it continues to serve its purpose, benefits
both consumers and industry, imposes no unwarranted costs, and has high
compliance rates.\7\
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\7\ See, e.g., API, NADA, NORA, and Safety-Kleen.
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Several commenters indicated the Rule continues to serve EPCA's
purposes. For example, NORA explained that the Rule encourages used oil
recycling, promotes recycled oil use, reduces consumption of new oil,
and reduces hazards and waste associated with used oil disposal. In
addition, in NORA's view, the Rule's substantiation requirements for
recycled oil have helped remedy a general perception that recycled oil
is inferior to new oil. NORA also indicated that the Rule's provisions
help encourage consumer demand for recycled oil, which creates
environmental benefits through oil collection and reuse in place of
costly disposal.\8\ ILMA added that, without the Rule, some states may
impose their own labeling requirements, potentially creating
inconsistencies, which could confuse consumers nationwide. It further
explained that the Rule furnishes ``an effective regulatory tool'' to
prevent the marketing of ``junk'' oil.\9\ Safety-Kleen concluded the
Rule has ``helped to increase acceptance of re-refined oil by creating
an objective benchmark by which all oil can be measured.''
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\8\ Safety Kleen added that recycled oil, which is increasing in
availability, ``generates significant energy and environmental
benefits'' at a competitive price and helps create domestic jobs.
\9\ ILMA also discussed its efforts to address the sale of
``obsolete oils'', an issue outside the Rule's scope.
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In addition to serving the enumerated purposes of the statute,
commenters indicated the Rule provides significant benefits to
consumers and industry members. ILMA and API stated it helps consumers
by providing an additional marketplace choice, backed by the API
performance standards. NORA asserted that competition encouraged by the
Rule keeps prices low. It also noted the Rule helps assure consumers
that ``substantially similar'' claims for re-refined lubricants are
accurate and supported by test data. Regarding industry benefits, API
commented the Rule aids companies by allowing sellers to market re-
refined base stocks without concern that consumers will view recycled
oil as a lower quality product. Similarly, NADA contended the Rule aids
sellers by encouraging growing market acceptance of recycled oil while
affording processors marketing flexibility. According to Avista, the
Rule has ``incentivized domestic re-refiners to pioneer new
technology.'' NORA also indicated that recycled oil has a ``reduced
carbon dioxide footprint.'' Finally, Safety-Kleen stated that a
standardized testing and certification process decreases industry
costs. No commenter identified any unwarranted costs associated with
the Rule.\10\
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\10\ Commenter Curtiss stated that oil recycling should be a
``top priority'' and urged ``continued improvement of oil
recycling.'' Curtiss also recommended, without elaboration, that
``this oil be labeled as such'' and certified. As discussed in the
original rulemaking, the Commission has not identified a need for
any affirmative disclosure requirements related to used oil, as long
as marketers meet the API Publication 1509. See 60 FR at 55418-
55419. Curtiss also recommended a deposit system for oil. However,
such a system falls outside the scope of the Commission's authority.
---------------------------------------------------------------------------

No commenters identified significant compliance issues with the
Rule. Safety Kleen explained that the Rule provides a standardized,
objectively verifiable test that can be used to refute false claims. In
addition, NORA and ILMA asserted that companies have little incentive
to engage in deceptive conduct given the potential penalties involved.
Furthermore, several commenters described ongoing industry efforts to
monitor engine oil quality. For example, ILMA explained that it runs a
program to randomly test engine oil marketed by its members and has
found high compliance rates. Similarly, Safety-Kleen noted that API
conducts an After Market Audit Program that tests products ``for
compliance against the original fluid certification testing,'' and API
did not identify any significant compliance problems.\11\
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\11\ Commenters did not identify any conflicts between the Rule
and other requirements, nor did they identify any technological
advances that would warrant changes to the Rule.
---------------------------------------------------------------------------

B. Suggested Changes and Updates

Comments: Commenters recommended several Rule amendments, including
updating the reference to API Publication 1509, permitting automatic
updates to the API publication, expanding the claims covered by the
Rule, and changing several definitions.
Commenters agreed the Commission should update the Rule's reference
to API Publication 1509 to reflect the seventeenth edition, as the
Commission proposed in its December 2017 proposed rule.\12\ For
instance, Safety-Kleen explained that this update will ``ensure both
virgin and re-refined quality levels meet the most current standard.''
ILMA identified no significant costs to industry for this updated
reference. No commenters opposed the conforming change.
---------------------------------------------------------------------------

\12\ See, e.g., API, NADA, NORA, and Safety-Kleen.
---------------------------------------------------------------------------

In addition, three commenters (API, NORA, and ILMA) recommended
amending the Rule to allow for automatic updates to the ``most recent
version'' of the API publication. In the commenters' view, such a
change would preclude the need for the Commission to publish future
Rule updates. Similarly, API supported automatic Rule updates, noting
Publication 1509 is generally updated every three to five years.
Aside from updating the API Publication, several commenters urged
the Commission to refrain from making any other changes.\13\ For
instance, Safety Kleen stated that all the current provisions are
``necessary and appropriate.'' Similarly, no commenters identified
technological changes that necessitate Rule amendments; nor did they
note any conflicts between the Rule and other requirements. NADA
advised that any proposed Rule changes should comport with the
statute's goals.
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\13\ See ILMA and Safety-Kleen.
---------------------------------------------------------------------------

Other commenters, however, recommended additional revisions. First,
Avista suggested the Rule allow recycled oil marketers to label their
products as ``equal in quality'' to new oil (i.e., oil manufactured
from crude oil). In its view, technological improvements in the
industry during the last decade have rendered recycled oil of equal or
better quality than refined oil, and this fact ``must be reflected in
the new Rule.''
Some commenters also recommended changing the Rule's definitions to
make them more consistent with existing industry usage and practice.
NORA explained that, in the oil recycling industry, the term ``recycled
oil'' generally refers not only to oil processed for use as an engine
oil (i.e., lubricant) but also to used oil processed for fuel.\14\
However, in the Rule, ``recycled oil'' only means re-refined oil
successfully tested pursuant to the API publication (which addresses
engine oil, not fuel). NORA also noted overlap in the Rule's
definitions of ``processed used oil,'' ``recycled oil,'' and ``re-
refined oil.'' Although NORA did not provide

[[Page 48215]]

specific suggestions, its comments implied that the Commission should
harmonize the Rule's terms with common industry understanding and
otherwise define the terms more precisely to avoid confusion.
---------------------------------------------------------------------------

\14\ In addition, ``processed used oil'' as defined in the FTC
Rule refers to re-refined used oil, while in EPA regulations (40 CFR
part 279) the same term refers to used oil processed into a fuel.
---------------------------------------------------------------------------

Similarly, API recommended amending the Rule to clearly distinguish
base stock ``manufacturers'' from ``oil marketers'' (i.e.,
organizations ``responsible for identifying the standard met by an
engine oil'').'' \15\ Specifically, it urged the Commission to use the
term ``oil marketer'' in lieu of ``manufacturer'' wherever the Rule
addresses entities responsible for oil branding. API also suggested the
Commission amend the definition of ``manufacturer'' to exclude entities
that blend processed used oil with new oil or additives by limiting the
definition to entities that re-refine or otherwise process ``used oil
to remove physical or chemical impurities acquired through use.''
---------------------------------------------------------------------------

\15\ API recommended the Commission adopt the ``oil marketer''
definition in the current version of API 1509.
---------------------------------------------------------------------------

API also urged the Commission to change the definition for
``recycled oil'' so that it refers to oil ``deposited, collected, and
managed in accordance with'' EPA's used oil management standards (40
CFR part 279), instead of oil determined to be ``substantially
equivalent to new oil for use as engine oil'' under Publication 1509,
as currently required by the Rule. API explained that this change would
``clarify oil disposition once it has been introduced'' into a vehicle
engine. In clarifying the common industry understanding of various
terms, API noted that the term ``used oil'' identifies the oil drained
from a crankcase; ``recycled oil'' refers to the used oil once it has
entered the used oil management stream; ``re-refined oil'' is one
method used to repurpose used oil; and ``processed used oil'' is a
broad term that covers all potential methods used to repurpose used
oil.
Discussion: The Commission amends the Rule to update the reference
to API Publication 1509, including the regulatory language for
incorporation by reference. With the exception of this minor update,
the Commission retains the Rule in its current form. As discussed
below, the Commission does not propose making other changes suggested
by commenters, including providing for automatic updates to the test
procedures incorporated by reference, addressing ``equal in quality''
claims for recycled oil in the Rule, or changing the Rule's
definitions.
The Commission does not amend the Rule to include automatic updates
because such an approach is inconsistent with Office of Federal
Register (OFR) requirements. Under OFR rules, incorporation by
reference is ``limited to the edition of the publication that is
approved'' and cannot include future amendments or revisions.\16\ While
the Commission cannot include such a perpetual update mechanism, it
will consider future updates to the test procedures in the Rule as part
of its periodic reviews. In the interim, stakeholders may petition the
Commission if there is a pressing need for a particular update.
---------------------------------------------------------------------------

\16\ See 1 CFR 51.1(f).
---------------------------------------------------------------------------

Likewise, the Commission declines to amend the Rule to address
whether recycled oil marketers can label their products as ``equal in
quality'' to new oil. The record does not clearly establish the basis
and need for additional affirmative labeling provisions beyond the
statutory requirement that representations of substantial equivalency
be based on the NIST standards.\17\ Furthermore, the FTC Act (15 U.S.C.
45(a)) does not restrict the scope of truthful advertising claims
sellers may make for recycled oil. Indeed, marketers may make recycled
oil claims beyond those covered by the Rule, as long as such
representations are supported by competent and reliable evidence and do
not otherwise violate the FTC Act.\18\
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\17\ See 60 FR 55414, 55419.
\18\ The Rule, however, preempts any law, regulation, or order
of any State (or political subdivision thereof), if it has labeling
requirements with respect to the comparative characteristics of
recycled oil with new oil that are not identical to the labels
permitted by the Rule. See 42 U.S.C. 6363(e)(1); 16 CFR 311.3.
---------------------------------------------------------------------------

Further, the Commission declines to amend the Rule's definitions.
Specifically, the proposed clarification to the definition of
``processed used oil'' does not appear necessary. Although industry
members may understand the term as applying to oil processed for engine
lubrication and fuel, the Rule's principal provisions clearly involve
oil recycled ``for use as engine oil.'' \19\ Moreover, the record
provides little evidence that the narrow application of this term in
the Rule has caused significant problems in the regulated community or
for consumers.
---------------------------------------------------------------------------

\19\ See, e.g., 16 CFR 311.1(d), 311.5, and 311.6.
---------------------------------------------------------------------------

Additionally, the Commission declines to alter the term
``manufacturer'' or add the term ``oil marketer'' as API recommended.
The Rule's definition for ``manufacturer'' is consistent with the
statutory language for that term, which encompasses not only entities
that process used oil to remove impurities, but also entities that
blend processed used oil with new oil. Although the statute's
definition may stretch beyond industry's conventional use of the term,
API did not detail any problems, for consumers or industry members,
caused by the current language, nor did it delineate its proposal's
benefits. Likewise, there appears to be no need to add a definition of
``oil marketer'' or to change the scope of ``manufacturer.'' The Rule's
core provisions already apply broadly to ``any manufacturer or other
seller,'' thus negating the need to expand the Rule's existing
terms.\20\
---------------------------------------------------------------------------

\20\ See 16 CFR 311.5 and 311.6 (emphasis added). Under EPCA,
``person'' is defined to include ``(A) any individual, (B) any
corporation, company, association, firm, partnership, society,
trust, joint venture, or joint stock company, and (C) the government
and any agency of the United States or any State or political
subdivision thereof.'' 42 U.S.C. 6202(2).
---------------------------------------------------------------------------

Finally, the Commission does not change the definition of
``recycled oil'' to tie the term to EPA's used oil management
regulations (instead of the substantial equivalency determination) as
suggested by API. This change would be inconsistent with the statute,
which specifically defines the term ``recycled oil'' as used oil the
manufacturer has determined to be substantially equivalent to new oil
under the procedures set out in the Rule.

IV. Regulatory Flexibility Act

The Regulatory Flexibility Act (``RFA''), 5 U.S.C. 601-612,
requires an agency to provide a Final Regulatory Flexibility Analysis
with the final rule, unless the agency certifies that the rule will not
have a significant economic impact on a substantial number of small
entities. See 5 U.S.C. 603-605. The amendment, which merely updates the
Rule's reference to the API publication, does not increase the Rule's
burdens.\21\ Accordingly, the Commission certifies that the amendment
will not have a significant economic impact on a substantial number of
small entities. This document serves as notice of that determination to
the Small Business Administration.
---------------------------------------------------------------------------

\21\ The Rule itself permits rather than requires any container
of recycled oil to bear a label indicating that it is substantially
equivalent to new engine oil, if such a determination has been made
in accordance with the prescribed test procedures. The Rule imposes
no reporting or recordkeeping requirements, and it permits recycled
oil to be labeled with information that is basic and easily
ascertainable.
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V. Paperwork Reduction Act

Under the Paperwork Reduction Act (``PRA''), 44 U.S.C. 3501-3520,
Federal agencies must obtain approval from the

[[Page 48216]]

Office of Management and Budget (``OMB'') for each collection of
information they conduct or sponsor. ``Collection of information''
means agency requests or requirements that members of the public submit
reports, keep records, or provide information to a third party. 44
U.S.C. 3502(3); 5 CFR 1320.3(c). The amended Rule does not involve the
``collection of information'' under the PRA and, therefore, OMB
approval is not required.

VI. Incorporation by Reference

Consistent with 5 U.S.C. 552(a) and 1 CFR part 51, the Commission
incorporates the specifications of the following document published by
the American Petroleum Institute: API 1509, ``Engine Oil Licensing and
Certification System,'' Seventeenth Edition, September 2012 (Addendum
1, October 2014, Errata, March 2015). According to API, this
publication ``describes the API Engine Oil Licensing and Certification
System (EOLCS), a voluntary licensing and certification program
designed to define, certify, and monitor engine oil performance deemed
necessary for satisfactory equipment life and performance by vehicle
and engine manufacturers.'' API 1509 is reasonably available to
interested parties. Members of the public can obtain copies of API
Publication 1509 from API, 1220 L Street NW, Washington, DC 20005;
telephone: (202) 682-8000; internet address: https://www.api.org.
These standards are also available for inspection at the FTC
Library, (202) 326-2395, Federal Trade Commission, Room H-630, 600
Pennsylvania Avenue NW, Washington, DC 20580.

List of Subjects in 16 CFR Part 311

Energy conservation, Incorporation by reference, Labeling, Recycled
oil, Trade practices.

For the reason set forth in the preamble, 16 CFR part 311 is
amended as follows:

PART 311--TEST PROCEDURES AND LABELING STANDARDS FOR RECYCLED OIL

0
1. The authority citation for part 311 continues to read as follows:

Authority: 42 U.S.C. 6363(d).

0
2. Revise Sec. 311.4 to read as follows:

Sec. 311.4 Testing.

To determine the substantial equivalency of processed used oil with
new oil for use as engine oil, manufacturers or their designees must
use the test procedures in API 1509, Engine Oil Licensing and
Certification System, Seventeenth Edition, September 2012 (Addendum 1,
October 2014, Errata, March 2015). The Director of the Federal Register
approves this incorporation by reference in accordance with 5 U.S.C.
552(a) and 1 CFR part 51. You may obtain a copy from API, 1220 L Street
NW, Washington, DC 20005; telephone: 202-682-8000; internet address:
https://www.api.org. You may inspect a copy at the FTC Library, 202-
326-2395, Federal Trade Commission, Room H-630, 600 Pennsylvania Avenue
NW, Washington, DC 20580. It is also available for inspection at the
National Archives and Records Administration (NARA). For information on
the availability of this material at NARA, call 202-741-6030 or go to
www.archives.gov/federal-register/cfr/ibr-locations.html.

By direction of the Commission.
Donald S. Clark,
Secretary.
[FR Doc. 2018-20273 Filed 9-21-18; 8:45 am]
BILLING CODE 6750-01-P

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