[Federal Register Volume 72, Number 59 (Wednesday, March 28, 2007)]
[Rules and Regulations]
[Pages 14410-14413]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-5678]


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FEDERAL TRADE COMMISSION

16 CFR Part 311


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, with the exception of 
incorporating by reference American Petroleum Institute Publication 
1509, Fifteenth Edition, and updating incorporation by reference 
approval language, has determined to retain the Recycled Oil Rule in 
its current form.

DATES: This action is effective as of March 28, 2007. The incorporation 
by reference of the American Petroleum Institute Publication 1509, 
Fifteenth Edition, listed in this Rule, is approved by the Director of 
the Federal Register as of March 28, 2007.

ADDRESSES: Requests for copies of this notice should be sent to the 
Consumer Response Center, Room 130, Federal Trade Commission, 600 
Pennsylvania Ave., NW., Washington, DC 20580. The notice also is 
available on the Internet at the Commission's Web site, http://www.ftc.gov.

FOR FURTHER INFORMATION CONTACT: Janice Podoll Frankle, (202) 326-3022, 
Attorney, Division of Enforcement, Bureau of Consumer Protection, 
Federal Trade Commission, Washington, DC 20580. E-mail: 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Introduction

    The Commission has determined, as part of its oversight 
responsibilities, to review its rules and guides periodically to seek 
information about their costs and benefits, as well as their regulatory 
and economic impact. The information obtained assists the Commission in 
identifying rules and guides that warrant modification or rescission.

II. Background

    Section 383 of the Energy Policy and Conservation Act of 1975 
(``EPCA''), 42 U.S.C. 6363, mandated that the FTC promulgate a rule 
prescribing testing procedures and labeling standards for recycled oil. 
This section of EPCA is intended to encourage the recycling of used 
oil, promote the use of recycled oil, reduce consumption of new oil by 
promoting increased utilization of recycled oil, and reduce 
environmental hazards and wasteful practices associated with the 
disposal of used oil. 42 U.S.C. 6363(a).
    EPCA also mandated that the National Institute of Standards and 
Technology (``NIST'') develop (and report to the FTC) test procedures 
to determine whether processed used oil is substantially equivalent to 
new oil for a particular end use. 42 U.S.C. 6363(c). Within 90 days 
after receiving NIST's test procedures, EPCA required that the FTC 
prescribe, by rule, substantial equivalency test procedures, as well as 
labeling standards for recycled oil. 42 U.S.C. 6363(d)(1)(A). EPCA also 
required that the Commission's rule permit any container of recycled 
oil to bear a label indicating any particular end use (e.g., engine 
lubricating oil), for which a determination of ``substantial 
equivalency'' with new oil has been made in accordance with the NIST 
test procedures. 42 U.S.C. 6363(d)(1)(B).
    On July 27, 1995, NIST reported to the FTC test procedures for 
determining the substantial equivalence of processed used engine oil 
with new engine oil. The NIST test procedures and performance standards 
are the same as those adopted by the American Petroleum Institute 
(``API'') for engine lubricating oils generally, regardless of origin. 
The Rule, 16 CFR part 311, which was issued on October 31, 1995 (60 FR 
55421), implements EPCA's requirements by permitting a manufacturer or 
other seller to ``represent, * * * on a container of processed used 
oil, that such oil is substantially equivalent to new oil for use as 
engine oil only if the manufacturer has determined that the oil is 
substantially equivalent to new oil for use as engine oil'' in 
accordance with the test procedures entitled ``Engine Oil Licensing and 
Certification System,'' American Petroleum Institute Publication 1509, 
Thirteenth Edition, January 1995.\1\
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    \1\ The Commission's 1995 Federal Register notice explained that 
the Rule ``does not require manufacturers to * * * explicitly state 
that their engine oil is substantially equivalent to new oil'' and 
does not mandate any qualifiers or specific disclosures. (60 FR 
55418-55419). Until NIST develops test procedures for other end 
uses, the Recycled Oil Rule is limited to recycled oil used as 
engine oil. 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.

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[[Page 14411]]

    As part of the Commission's ongoing project to review periodically 
its rules and guides to determine their current effectiveness and 
impact, on July 6, 2006, the Commission published a Federal Register 
notice (``FRN'') seeking comment on the Recycled Oil Rule.\2\ The 
Commission sought comment on: (1) The continuing need for the Rule as 
currently promulgated; (2) the benefits the Rule has provided to 
purchasers; (3) whether the Rule has imposed costs on purchasers; (4) 
what changes, if any, should be made to the Rule to increase 
purchasers' benefits and how the changes would affect the costs to 
firms; (5) what significant burdens or costs the Rule has imposed on 
firms; (6) what changes, if any, should be made to the Rule to reduce 
burdens or costs to firms; (7) whether the Rule overlaps or conflicts 
with other federal, state, or local laws or regulations; (8) what 
effects, if any, have changes in relevant technology or economic 
conditions had on the Rule; and (9) whether the updated version of 
American Petroleum Institute Publication 1509 (Fifteenth Edition) 
should be incorporated by reference into the Rule.
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    \2\ 71 FR 38321 (July 6, 2006).
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III. Regulatory Review Comments

    The Commission received comments\3\ from four trade associations\4\ 
and three companies.\5\ These comments are discussed below.
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    \3\ The comments are cited in this notice by reference to the 
name of the commenter. The comments are on the public record and are 
available for public inspection in the Consumer Response Center, 
Room 130, Federal Trade Commission, 600 Pennsylvania Avenue, NW., 
Washington, DC, from 9 a.m. to 5 p.m., Monday through Friday, except 
Federal holidays. The comments also are available on the Internet at 
the Commission's Web site, http://www.ftc.gov.
    \4\ The trade associations are: American Petroleum Institute, 
Automotive Oil Change Association, National Automobile Dealers 
Association, and National Petrochemical & Refiners Association 
(comment received after comment period closed).
    \5\ The companies are: ExxonMobil Lubricants & Specialities 
Company, Safety-Kleen Systems, Inc., and Pennzoil-Quaker State 
Company.
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1. Is there a continuing need for the Rule as currently promulgated?

    All of the comments stated that the Recycled Oil Rule should remain 
in effect. The Automotive Oil Change Association (``AOCA''), which 
stated that it is the national representative for over 3,000 small 
business fast-lube facilities that both generate significant quantities 
of used oil and collect ``do-it-yourselfer'' used oil from the public, 
commented that the Rule furthers the success of the used oil recycling 
chain. AOCA also commented that consumers and the automotive service 
industry need uniformity in motor oil container labeling and that 
without the Rule some states might require recycled oil content 
labeling ``that differs from other states thereby causing confusion and 
placing a burden on commerce.''
    The National Automobile Dealers Association (``NADA''), which 
stated that it represents 20,000 franchised automobile and truck 
dealers who sell new and used vehicles and service, provide auto 
repair, and sell auto parts, commented that the Rule indirectly impacts 
car and truck dealerships that purchase motor oil for vehicle use and 
collect used oil from the vehicles they service. NADA commented that 
since car and truck dealerships use only API certified motor oils, 
``the Rule's requirement that used oil processors take appropriate 
steps when manufacturing `substantially equivalent' motor oils helps 
make those oils potentially marketable to dealerships.'' NADA further 
stated that by not requiring that ``substantially equivalent'' recycled 
oils be labeled ``recycled'' or ``re-refined,'' used oil processors are 
able to market their products effectively. NADA also advised that the 
Rule has facilitated the growth of consumer acceptance of recycled oil.
    Safety-Kleen Systems, Inc. (``Safety-Kleen''), which stated that it 
re-refines about 160 million gallons of used oil each year, commented 
that the Department of Energy, in conjunction with the Environmental 
Protection Agency, recently completed a study that, in part, concluded 
that re-refining used oil is beneficial to the environment and noted 
the need to encourage the use of recycled oil.\6\ Similarly, ExxonMobil 
Lubricants & Specialties Company (``ExxonMobil'') commented that the 
Rule ``contributes to the goal of encouraging responsible used oil 
management practices to protect the public and the environment.''
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    \6\ The study is entitle ``Used Oil Re-refining Study to Address 
Energy Policy Act of 2005 Section 1838.''
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2. What benefits has the Rule provided to purchasers of the products or 
services affected by the Rule?

    Safety-Kleen stated that because the Rule sets forth the criteria 
that re-refined oil must meet to be ``substantially equivalent'' to new 
oil, end users are assured that the oil will perform as intended in 
their vehicles. Pennzoil-Quaker State Company, a wholly owned 
subsidiary of Shell Oil Company (``Shell''), which is the manufacturer, 
marketer, and seller of a number of engine oils, including Pennzoil, 
Quaker State, Q, ROTELLA, and Formula Shell, and the owner of Jiffy 
Lube stores, commented that the Rule has eliminated the requirement 
that engine oils made with recycled base oils be labeled as such; thus, 
consumers can shop for engine oils with the assurance that engine oil 
that meets API's standards will be sufficient for their vehicles, 
whether the base oil used is virgin or recycled.

3. Has the Rule imposed costs on purchasers?

    Both Safety-Kleen and Shell stated that they were not aware of any 
additional costs to purchasers due to the Rule. No other comments 
addressed this question.

4. What changes, if any, should be made to the Rule to increase the 
benefits of the Rule to purchasers? How would these changes affect the 
costs the Rule imposes on firms subject to its requirements? How would 
these changes affect the benefits to purchasers?

    The National Petrochemical & Refiners Association (``NPRA''), 
Shell, and Safety-Kleen, while supporting the Rule, suggested certain 
modifications. NPRA, which stated that it is a national trade 
association with 450 members, including those who own or operate 
virtually all U.S. refining capacity, in addition to most of the 
nation's petrochemical manufacturers, commented that the Rule's 
definition of ``recycled oil'' \7\ ``is too broad and could result in 
sub-standard products in the marketplace.'' NPRA attached to its 
comment three proposed definitions for recycled oil (``re-refining,'' 
\8\ ``re-conditioning,'' \9\ and ``re-processing.'' \10\), which it 
said ``reflect

[[Page 14412]]

today's current manufacturing procedures and would help ensure uniform, 
reliable products.''
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    \7\ Section 311.1(d) of the Rule defines ``recycled oil'' as 
``processed used oil'' that the manufacturer has determined, 
pursuant to the Rule's required test procedures is ``substantially 
equivalent to new oil for use as engine oil.''
    \8\ NPRA stated that ``re-refined stock shall be substantially 
free from materials introduced through additization and use. Re-
refining produces a base oil comparable to virgin base oils. It is 
capable of meeting current guidelines required to produce most 
current engine oil categories and licensing requirements as defined 
by API. (API Base Oil Interchangeability Guidelines, E.1.2.1 and API 
1509 requirements.)''
    \9\ NPRA defined ``re-conditioning'' as ``[u]se of a filtration 
system to remove insoluble impurities, combines with replenishment 
of key additives, to extend the lubricant's life.''
    \10\ NPRA defined ``re-processing'' as ``chemical or physical 
operations designed to produce from used oil, or to make used oil 
more amenable for production of, fuel oils, lubricants, or other 
used oil-derived products. Processing includes, but is not limited 
to: blending used oil with virgin petroleum products, blending used 
oils to meet the fuel specification, filtration, simple 
distillation.''
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    NPRA, however, did not explain how the manufacturing processes 
underlying its proposed new definitions impact the performance 
characteristics of recycled oil. Significantly, Congress was primarily 
concerned with the performance characteristics of recycled oil, not the 
recycling process used to manufacture the oil.\11\ The current 
definition of recycled oil, requiring that the oil perform 
substantially equivalently to new oil, meets this goal. Furthermore, 
the Commission has not received any complaints or any other comments 
regarding the current definition of ``recycled oil.''
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    \11\ H.R. Rep. No. 96-1415, 96th Cong. 2d Sess. 6 (1980), 
reproduced at 1980 U.S. Code Cong. & Ad. News 4354, 4356. (``Oil 
should be labeled on the basis of performance characteristics and 
fitness for its intended use, and not on the basis of the origin of 
the oil.'')
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    Shell commented that the `` `substantially equivalent' criterion is 
solely performance-based and does not include a consideration of the 
possible health effects of engine oils and other products manufactured 
with recycled base oils, rather than virgin petroleum base oils.'' \12\ 
Thus, Shell recommended that the FTC ``require 'substantial 
equivalency' to include health-based criteria in addition to the 
performance-based criteria.'' \13\
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    \12\ Shell contends that recycled oils vary in how well the 
impurities are removed during their manufacture. Shell further 
asserts that these impurities ``present'' a skin cancer hazard. 
However, Shell did not present any studies that showed a link 
between recycled oil and any health ailments. Rather, Shell stated 
that limited health data on re-refined base oils is available as 
compared to studies of virgin base oils. Shell also did not propose 
a specific study protocol for evaluating the health effects of 
recycled oil.
    \13\ Attachment 1 to Shell's comment contains a detailed 
discussion of this matter and the basis for Shell's recommendation.
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    The Commission observes that Exxon Company, U.S.A., in connection 
with the 1995 Recycled Oil rulemaking, also proposed that the Recycled 
Oil Rule establish health-based ``substantial equivalency'' standards. 
In addressing Exxon's concerns, the Commission found that consideration 
of the potential health effect of recycled oil was beyond its statutory 
mandate and that ``it is clear from the legislative history of EPA that 
Congress was concerned only with the performance characteristics of 
recycled oil, not potential health consequences * * *. Although Exxon's 
concerns may be important, they cannot be addressed in this proceeding. 
The Commission has no factual or legal basis to address the health 
effects, or any other nonperformance qualities, of recycled oil in this 
rulemaking.'' \14\ Accordingly, the Commission reiterates that it is 
beyond the Commission's legislative mandate to amend the Rule to 
incorporate health-based criteria.
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    \14\ 60 FR 55418 (October 31, 1995).
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    Additionally, Safety-Kleen suggested that the Commission consider 
labeling changes that emphasize that ``re-refined motor oil is 
`recycled' and environmentally preferable to other end uses of used 
motor oil.'' \15\ As the Commission stated in the 1995 Recycled Oil 
rulemaking: ``Because the rule does not mandate the use of specific 
disclosures, recycled oil manufacturers or other sellers have 
flexibility to promote the performance of their products and their 
`substantial equivalency' with new oil * * *. Manufacturers can 
voluntarily label recycled oil with terms such as `recycled' to assist 
in the marketing of their products.'' \16\ In the present Rule review, 
the Commission continues to adhere to that position because the Rule 
already provides manufacturers and sellers the discretion to label and 
market their processed used engine oil as ``recycled.''
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    \15\ Specifically, Safety-Kleen commented that re-refined motor 
oil requires less energy to produce than motor oil derived from 
crude oil and results in fewer emissions.
    \16\ 60 FR 55419. The Commission, however, explained that 
manufacturers using such terms need to consider the Commission's 
Guides for the Use of Environmental Marketing Claims. See, e.g., 16 
CFR 260.7(e).
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5. What significant burdens or costs, including costs of compliance, 
has the Rule imposed on firms subject to its requirements? Has the Rule 
provided benefits to such firms? If so, what benefits?

    Safety-Kleen commented that by referencing the API certification, 
the Rule has minimized duplication of costs in obtaining engine oil 
approval. Safety-Kleen commented that it would oppose any requirements 
beyond those specified by the API because any additional testing or 
requirements would be a burden.\17\ Shell commented that it did not 
have any data regarding the compliance costs for manufacturers of 
refined oil.
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    \17\ Safety-Kleen also noted that any requirements that only 
apply to recycled oil, and not to new oil, would be counter to the 
Rule's purpose.
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6. What changes, if any, should be made to the Rule to reduce the 
burdens or costs imposed on firms subject to its requirements? How 
would these changes affect the benefits provided by the Rule? \18\
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    \18\ Safety-Kleen's response to this question referred back to 
its response to question 4.
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    Shell recommended that the Commission make no changes to the 
performance-based criteria but reiterated its recommendation that the 
Commission include health-based criteria.

7. Does the Rule overlap or conflict with other federal, state, or 
local laws or regulations?

    Safety-Kleen commented that the Rule is consistent with federal 
efforts to encourage re-refining used oil and that there is no 
significant overlap between the Rule and other government 
initiatives.\19\ Shell commented that it is not aware of any conflict 
or overlap with other federal, state, or local laws or regulations.
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    \19\ Safety-Kleen responded that the Rule is consistent with 
Executive Orders 13101 (1998) and 13149 (2000) that direct the 
federal government to buy re-refined oil when it is available at the 
same quality and price as new oil.
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8. Since the Rule was issued, what effects, if any, have changes in 
relevant technology or economic conditions had on the Rule?

    Safety-Kleen commented that ``[t]he rising price of crude oil and 
the political instability in many crude-producing regions has made re-
refining more attractive both economically and strategically.'' Safety-
Kleen observed that advances in re-refining have ``led re-refined oil 
to be warranty approved by all major U.S. manufacturers as long as the 
oil is API approved.''

9. Since the Rule was issued, the API has published the Fifteenth 
Edition of Publication 1509.\20\ Should this updated version of 
Publication 1509 be incorporated by reference into the Rule?
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    \20\ The current Rule references the Thirteenth Edition.
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    All of the comments recommended that the Commission incorporate by 
reference the Fifteenth Edition of Publication 1509 into the Rule and 
that the Commission amend the Rule's reference to Publication 1509 to 
accommodate edition updates. API observed that the Sixteenth Edition of 
API 1509 is ``expected to be issued shortly'' and thus recommended that 
the reference to API Publication 1509 in Section 311.4 of the Rule be 
amended to read ``latest edition.'' API stated that adopting the 
``latest edition'' language

[[Page 14413]]

will prevent confusion as new editions are issued.
    Although this suggestion has considerable merit, each statement of 
incorporation by reference in regulatory text must specifically 
identify the material to be incorporated, including the title, date, 
edition, author, publisher, and identification number of the 
publication.\21\ Therefore, the Commission does not have discretion to 
refer generally to the ``latest'' or ``current'' edition of API 
Publication 1509 in the Rule.\22\ Because Publication 1509 is in its 
Fifteenth Edition, the Commission is incorporating it by reference by 
publishing an amendment to the Code of Federal Regulations in the 
current rulemaking.
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    \21\ See, National Archives and Records Administration, Office 
of the Federal Register, ``Federal Register Document Drafting 
Handbook,'' ch. 6 (1998). This handbook contains the rules federal 
agencies must follow to incorporate materials by reference into 
regulatory text. This handbook is issued under the Federal Register 
Act (44 U.S.C. 1501-1511) and the regulations of the Administrative 
Committee of the Federal Register (1 CFR 15.10).
    \22\ Comments made in connection with the Recycled Oil 
rulemaking in 1995 similarly suggested that the final rule require 
use of test procedures found in the ``latest'' or ``current'' 
version of API Publication 1509. In addressing comments made in 
connection with the 1995 rulemaking, the Commission's Federal 
Register notice detailed why such proposals were not feasible. (60 
FRN 55417-55418).
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IV. Conclusion

    The comments provide evidence that the Rule serves a useful 
purpose, while imposing minimal costs on the industry; and the 
Commission has no evidence to the contrary. Accordingly, with the 
exception of incorporating by reference API Publication 1509, Fifteenth 
Edition, and adding an updated explanation of incorporation by 
reference in Section 311.4, the Commission has determined to retain the 
Recycled Oil Rule in its current form.

V. 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 Rule 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 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. In addition, the Rule does not require recycled oil 
manufacturers to conduct substantial equivalency tests themselves and 
maintain their own testing equipment. Rather, they may use third 
parties to minimize testing costs. In any event, the Commission 
believes the Rule, as amended, does not affect a substantial number of 
small entities because relatively few companies currently manufacture 
and sell recycled oil as engine oil, and that most would not be ``small 
entities'' under applicable regulations, 13 CFR part 121. Although 
there may be some ``small entities'' among private-label retail sellers 
or distributors of recycled engine oil, the Rule's labeling standards 
should continue to have only a minimal impact on such entities, because 
the Rule is limited to voluntary labeling disclosures beyond the 
labeling costs that such entities already incur. Accordingly, for the 
reasons above, the Commission certifies that the Rule, as amended, 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.

VI. Paperwork Reduction Act

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

List of Subjects in 16 CFR Part 311

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

Text of Amendments

0
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 that were reported to the Commission by the 
National Institutes of Standards and Technology (``NIST'') on July 27, 
1995, entitled ``Engine Oil Licensing and Certification System,'' 
American Petroleum Institute (``API''), Publication 1509, Thirteenth 
Edition, January 1995. API Publication 1509, Thirteenth Edition has 
been updated to API Publication 1509, Fifteenth Edition, April 2002. 
API Publication 1509, Fifteenth Edition, April 2002, is incorporated by 
reference. This incorporation by reference is approved by the Director 
of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR 
part 51. Copies of the materials incorporated by reference may be 
obtained from: API, 1220 L Street, NW., Washington, DC 20005. Copies 
may be inspected at the Federal Trade Commission, Consumer Response 
Center, Room 130, 600 Pennsylvania Avenue, NW., Washington, DC 20580, 
or 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: http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.

    By direction of the Commission.
Donald S. Clark,
Secretary.
[FR Doc. E7-5678 Filed 3-27-07; 8:45 am]
BILLING CODE 6750-01-P