[Federal Register Volume 75, Number 50 (Tuesday, March 16, 2010)]
[Proposed Rules]
[Pages 12470-12483]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-5647]



[[Page 12470]]

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FEDERAL TRADE COMMISSION

16 CFR Part 306


Automotive Fuel Ratings, Certification and Posting

AGENCY: Federal Trade Commission (``FTC'' or ``Commission'').

ACTION: Notice of proposed rulemaking, request for comments.

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SUMMARY: The FTC proposes to amend its Rule for Automotive Fuel 
Ratings, Certification and Posting (``Fuel Rating Rule'' or ``Rule'') 
by adopting rating, certification, and labeling requirements for 
certain ethanol fuels, revising the labeling requirements for fuels 
with at least 70 percent ethanol, allowing the use of an alternative 
octane rating method, and making certain other miscellaneous Rule 
revisions, based on comments received as part of its periodic 
regulatory review of the Rule. The proposed amendments are intended to 
further the Rule's goal of helping purchasers identify the correct fuel 
for their vehicles.

DATES: Comments on the proposed information requests must be received 
on or before May 21, 2010.

ADDRESSES: Interested parties are invited to submit written comments 
electronically or in paper form by following the instructions in the 
SUPPLEMENTARY INFORMATION section below. Comments in electronic form 
should be submitted by using the following weblink: (https://public.commentworks.com/ftc/fuelratingreview) (and following the 
instructions on the web-based form). Comments filed in paper form 
should be mailed or delivered to the following address: Federal Trade 
Commission, Office of the Secretary, Room H-135 (Annex M), 600 
Pennsylvania Avenue, N.W., Washington, D.C. 20580, in the manner 
detailed in the SUPPLEMENTARY INFORMATION section below.

FOR FURTHER INFORMATION CONTACT: Matthew Wilshire, (202) 326-2976, 
Attorney, Division of Enforcement, Bureau of Consumer Protection, 
Federal Trade Commission, 600 Pennsylvania Avenue, N.W., Washington, 
D.C. 20580.

SUPPLEMENTARY INFORMATION:

I. Introduction

    In March 2009, as part of a systematic review of the FTC's rules 
and guides, the Commission solicited comment on the Fuel Rating Rule, 
including comments on the economic impact of, and continuing need for, 
the Rule; the benefits of the Rule to purchasers of automotive fuels; 
the burdens the Rule places on firms subject to its requirements; and 
any modifications to increase the Rule's benefits or reduce its 
burdens. Commenters generally supported the Rule but recommended 
various amendments. Specifically, many comments supported amending the 
Rule to provide specific rating, certification, and labeling 
requirements for fuels with more than 10 percent and less than 70 
percent ethanol,\1\ and to allow octane rating through the On-Line 
Direct Comparison Technique (``On-Line Method'') specified in ASTM 
International (``ASTM'') Standard D2885. In addition, some commenters 
recommended altering the Rule's requirements for biodiesel, biomass-
based diesel, and blends thereof (collectively, ``biodiesel 
fuels'').\2\
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    \1\ The Fuel Rating Rule already provides requirements for 
ethanol fuels of at least 70 percent concentration, including E85. 
That fuel generally contains 85 percent ethanol mixed with 15 
percent gasoline. 16 CFR 306.0(i)(2)(ii). The U.S. Department of 
Energy (``DOE''), however, allows retailers to reduce the ethanol 
component of E85 to as little as 70 percent by volume to allow 
proper starting and performance in colder climates. See (http://www.afdc.energy.gov/afdc/ethanol/e85_specs.html). Other ethanol 
blends currently qualify as alternative fuels under the Rule. See 16 
CFR 306.0(i)(2) (providing that alternative fuels are ``not limited 
to'' those explicitly listed in the Rule). The Rule does not provide 
any specific requirements for those fuel blends. However, covered 
entities must generally rate alternative fuels by ``the commonly 
used name of the fuel . . . [and the] minimum percentage . . . of 
the principal component of the fuel.'' 16 CFR 306.0(j)(2). In 
addition, retailers must label these fuels ``consistent with'' that 
rating. 16 CFR 306.10(d).
    \2\ For further background on biodiesel fuels, see the 
Commission's announcement of amendments expanding the Fuel Rating 
Rule to cover those fuels. 73 FR 40154 (Jul. 11, 2008).
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    As explained below, the Commission agrees that the Rule should 
provide explicit requirements for ethanol fuels that contain more than 
10 percent ethanol and less than 70 percent ethanol (hereinafter, 
``Mid-Level Ethanol blends''). Furthermore, the Commission proposes 
amending the Rule to require that fuels with at least 70 percent 
ethanol have labels with disclosures more consistent with those in the 
proposed Mid-Level Ethanol blend labels. In addition, the Commission 
proposes allowing the On-Line Method because it produces the same fuel 
rating as methods currently prescribed in the Rule. However, the 
Commission does not propose amending the Rule's biodiesel fuel 
provisions because they already appropriately carry out the biodiesel 
labeling mandate of the Energy Independence and Security Act of 2007 
(``EISA'') while minimizing the burden to covered entities.
    This notice of proposed rulemaking responds to comments and 
announces proposed amendments to the Rule. Specifically, it provides 
background on the Fuel Rating Rule, a discussion of the comments 
submitted, and the Commission's response to those comments with a 
detailed description of the proposed amendments.

II. Background

    The Commission first promulgated the Fuel Rating Rule, 16 CFR Part 
306, (then titled the ``Octane Certification and Posting Rule'') in 
1979 in accordance with the Petroleum Marketing Practices Act 
(``PMPA''), 15 U.S.C. 2801 et seq.\3\ The Rule originally only applied 
to gasoline. In 1993, in response to amendments to PMPA, the Commission 
expanded the Rule to cover liquid alternative fuels.\4\ In 2008, the 
Commission again amended the Rule to incorporate the specific labeling 
requirements for biodiesel fuels required by Section 205 of EISA, 42 
U.S.C. 17021.\5\ Currently, the Rule's definition of ``alternative 
fuels'' does not specifically include either biodiesel fuels at 
concentrations of 5 percent or less or Mid-Level Ethanol blends.
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    \3\ 44 FR 19160 (Mar. 30, 1979).
    \4\ 58 FR 41356 (Aug. 3, 1993).
    \5\ 73 FR 40154 (Jul. 11, 2008).
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    The Fuel Rating Rule designates methods for rating and certifying 
fuels, as well as posting the ratings at the point of sale. The Rule 
also requires refiners, importers, and producers of any liquid 
automotive fuel to determine that fuel's ``automotive fuel rating'' 
before transferring it to a distributor or retailer. For gasoline, the 
fuel rating is the octane rating, which covered entities must determine 
by deriving research octane and motor octane numbers using the 
procedures in ASTM D2699 and D2700, respectively, and then averaging 
them. For alternative fuels, the rating is the minimum percentage of 
the principal component of the fuel, with the exception of biodiesel 
fuels, for which the rating is the percentage of biodiesel or biomass-
based diesel in the fuel. In addition, any covered entity, including a 
distributor, that transfers a fuel must provide a certification of the 
fuel's rating to the transferee either by including it in papers 
accompanying the transfer or by letter. Finally, the Rule requires 
retailers to post the fuel rating by adhering a label to the retail 
fuel pump and sets forth precise specifications regarding the content, 
size, color, and font of the labels.
    On March, 2, 2009, the Commission solicited comment on the Fuel 
Rating Rule as part of its periodic review of its rules and guides.\6\ 
The Commission sought comments on: the economic impact of, and the 
continuing need for,

[[Page 12471]]

the Rule; the benefits of the Rule to purchasers of automotive fuels; 
the burdens the Rule places on firms subject to its requirements; and 
the need for any modification to increase the Rule's benefits or reduce 
its burdens.
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    \6\ 74 FR 9054 (Mar. 2, 2009).
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III. The Record

    The Commission received twelve comments. Commenters explained that 
there is a continuing need for the Rule and that it benefits consumers 
and businesses. However, they supported three significant changes: 
providing rating, certification, and labeling requirements for Mid-
Level Ethanol blends; allowing octane rating through the On-Line 
Method; and altering the Rule's requirements for biodiesel fuels. In 
addition, comments supported miscellaneous changes to the Rule.

A. Continuing Need for Rule and Benefits to Consumers and Business

    Commenters agreed that there is a continuing need for the Fuel 
Rating Rule and that it benefits consumers and businesses. The Alliance 
of Automobile Manufacturers (``AAM'') stated that ``there is definitely 
a need to maintain the Rule'' and explained that consumers could suffer 
significant harm in the absence of the Rule's labeling requirements:

 The [rating] information is critical because the vehicle warranty is 
dependent on use of the proper fuel. Fuel dispenser labeling that 
conveys information about octane rating, ethanol content, biodiesel 
content and other fuel quality properties and limits is the only 
mechanism available to consumers to link fuel requirements in the 
owner's manual to what is actually being put into the vehicle.\7\
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    \7\ AAM Comment at 1. The comments are located at: (http://www.ftc.gov/os/comments/fuelratingreview/index.shtm).

In addition, AAM reported results from compliance surveys of retail 
gasoline pumps showing ``very good compliance'' with the Rule's octane 
provisions, and noted that ``pump labeling of E85 dispensers appears to 
have been successful as well, given that reports about unintentional 
misfueling of conventional vehicles have been virtually nonexistent to 
date.''\8\ The National Automobile Dealers Association seconded AAM's 
support of the Rule, explaining that consumers need accurate fuel 
rating information to comply with manufacturer recommendations and 
warranty requirements.\9\
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    \8\ Id. at 1-2. AAM also referenced a study showing some 
mislabeling of biodiesel blends. Id. at 2. However, that study 
tested fuel offered for sale no later than summer 2008, prior to the 
December 16, 2008 effective date for the Commission's biodiesel 
labeling requirements. See 73 FR 40154 (Jul. 11, 2008).
    \9\ See National Automobile Dealers Association Comment at 1.
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    In addition to benefitting consumers, commenters noted that the 
Rule benefits businesses. The Petroleum Marketers Association of 
America (``PMAA''), a fuel retailer industry group, stated that 
``labeling requirements under the automotive fuel rating rule are 
generally beneficial to small business petroleum retailers.''\10\ PMAA 
further explained:
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    \10\ PMAA Comment at 3.

 The labels [required by the Rule] direct consumers to the octane 
rating and/or alternative fuel blends that are best suited for their 
vehicle according to manufacturer specifications. . . . The labels help 
to prevent misfueling. Fewer misfuelings reduce the potential liability 
of small business retailers for damages to engines and exhaust 
systems.\11\
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    \11\ Id. at 1.

Similarly, the Renewable Fuels Association (``RFA'') stated that the 
Fuel Rating Rule ``provides producers, distributors, and retailers the 
needed . . . [information] to meet regulatory requirements and support 
marketplace needs and expectations.''\12\
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    \12\ RFA Comment at 3.
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B. Labels for Mid-Level Ethanol Blends

    Although generally supportive, many commenters suggested altering 
the Fuel Rating Rule to provide specific requirements for rating, 
certifying, and labeling Mid-Level Ethanol blends. Currently, the Rule 
provides requirements for mixtures of gasoline with 10 percent or less 
ethanol, defined as gasoline, and fuels with at least 70 percent 
ethanol, but does not specifically address blends with more than 10 but 
less than 70 percent ethanol. Significantly, no commenters opposed 
providing requirements for Mid-Level Ethanol blends.
    Several commenters noted that, though generally not available when 
the Commission first promulgated alternative fuel requirements, Mid-
Level Ethanol blends have subsequently entered the marketplace. For 
example, commenter Downstream Alternatives, Inc. (``Downstream''), a 
renewable fuel business, stated that:

 [When the Commission expanded the Rule to cover alternative fuels], it 
was envisioned that ethanol blends would be either El0 (gasohol) 
covered by the octane rating rule or E85 containing a minimum of 70% 
ethanol (to allow for denaturant and volatility adjustments) for use in 
the Flex Fuel Vehicles (FFV). . . . Today . . . some marketers are 
selling blends like E20, and E30 (20% and 30% ethanol respectively) for 
use in FFV's [sic]. These fuels . . . are typically blended on site 
through a blend pump . . . . Several organizations are promoting using 
blender pumps to sell alternate blend levels such as E20, E30, E40.\13\
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    \13\ Downstream Comment at 2-3.

Downstream's comment included a list of more than 100 retail 
establishments with the capacity to sell Mid-Level Ethanol blends. RFA 
also noted that mid-level blends ``are being developed and marketed to 
provide consumers with more fuel choices at the retail level.''\14\ 
Similarly, the Iowa Renewable Fuels Association (``IRFA'') reported 
that ``retailers are offering more fuel options for flex-fuel vehicle 
owners in the form of mid-level [ethanol] blends'' and that ``Iowa 
retailers are installing blend dispensers that offer blends such as 
E20, E30 or E50 and E85.''\15\
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    \14\ RFA Comment at 2.
    \15\ IRFA Comment at 1.
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    Moreover, commenters agreed that the market for ethanol blends of 
all types will grow as part of a general move toward renewable fuels. 
RFA noted that EISA's provisions included a mandate for increasing use 
of renewable fuels, which ``systematically advances the production and 
use of renewable fuels and ensures that ample amounts of renewable 
biofuels, like ethanol, will be required as an alternative to petroleum 
fuels.''\16\ In addition, a joint comment from SIGMA, a fuel-retailer 
association, and the National Association of Convenience Stores 
(``NACS'') included EISA's specific fuel mandates, showing an increase 
in minimum renewables from 11.1 billion gallons in 2009 to 36 billion 
in 2022.\17\ The comment concluded that ``EISA's mandates will clearly 
require retailers to increase their sales of biofuels (whether 
biodiesel or biomass) in the future.''\18\
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    \16\ RFA Comment at 1.
    \17\ SIGMA and NACS Comment at 2.
    \18\ Id. at 4.
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    However, commenters cautioned that ethanol blends above 10 percent 
concentration are not appropriate for conventional vehicles. AAM stated 
that ``virtually all conventional vehicles built to date have been 
validated for gasoline containing only up to 10% ethanol (E10).''\19\ 
AAM, therefore, warned that ``unlabeled dispensers [of ethanol blends] 
would cause consumers to unwittingly put their vehicle warranties

[[Page 12472]]

at risk.''\20\ RFA stated that ``[f]rom an automotive vehicle 
perspective, there are two spark ignition engine types available to 
U.S. consumers: [1] conventional engines designed to use E10 and 
unleaded gasoline and [2] flex-fuel engines designed to use alternative 
fuels such as E85''\21\ and Mid-Level Ethanol blends.\22\ Indeed, DOE 
has explained that ``[a]lthough nearly all gasoline-fueled passenger 
cars and light-duty trucks sold in the last 20 years have been designed 
to operate on E10, substantial modifications are made to [flex-fuel 
vehicles] so they can use higher concentrations of ethanol . . . 
without adverse effects on fuel system materials, components, on-board 
diagnostics (OBD) systems, or driveability.''\23\
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    \19\ AAM Comment at 2.
    \20\ Id.
    \21\ RFA Comment at 2.
    \22\ See RFA Comment at 2-3. Downstream further noted that Mid-
Level Ethanol blends ``are legal fuels for use in [Flex-Fuel 
Vehicles] only.'' Downstream Comment at 2.
    \23\ See DOE's ``Handbook for Handling, Storing, and Dispensing 
E85,'' p.17, available at: (http://www.afdc.energy.gov/afdc/pdfs/41853.pdf).
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    In light of the emergence of Mid-Level Ethanol blends as retail 
fuels and the risk of harm to consumers' vehicles from a failure to 
disclose ethanol content, commenters urged the Commission to amend the 
Fuel Rating Rule to provide specific labeling, rating, and 
certification requirements for those blends. IRFA urged amending the 
rule to provide ``uniformity in pump labeling, consistent consumer 
information and consumer protection'' and supported a rating regime 
that, like that for biodiesel fuels, rates ethanol blends according to 
the percentage of ethanol in the blend, regardless of whether ethanol 
is the principal component in the fuel.\24\ Downstream concurred, 
recommending that, for Mid-Level Ethanol blends,
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    \24\ IRFA Comment at 1.

 [T]he Commission should adopt a similar approach to that for labeling 
biodiesel. That is, a blend containing 30% denatured ethanol would be 
E30, 40% denatured ethanol, E40 etc. This would enable marketers [with] 
the ability to properly identify the fuel while providing consumers 
guidance on the approximate ethanol level of the blend.\25\
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    \25\ Downstream Comment at 5.

RFA also supported providing ``posting requirements . . . for all 
ethanol blended fuels . . . .''\26\
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    \26\ RFA Comment at 3.
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C. On-Line Direct Method for Determining Octane Rating

    PMPA defines ``octane rating'' as the average of gasoline's 
research octane number and motor octane number, as determined using 
ASTM D2699 and D2700, respectively.\27\ However, PMPA further provides 
that the Commission may prescribe alternate gasoline rating 
methods.\28\ Comments from gasoline refiners and distributors urged 
amending the Fuel Rating Rule to allow the On-Line Method.
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    \27\ 15 U.S.C. 2821(1) and (2).
    \28\ 15 U.S.C. 2821(1).
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    ConocoPhillips, a petroleum refiner, explained the development of 
the On-Line Method:

 ASTM D 2885 Standard Test Method for Determination of Octane Number of 
Spark-Ignition Engine Fuels by On-line Comparison Technique was adopted 
by ASTM after the promulgation of the Automotive Fuel Rating Rule in 
1979. It uses the same [test] engines but in an updated methodology 
that provides acquisition efficiencies and accuracies for the 
industry.\29\
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    \29\ ConocoPhillips Comment at 1.

    Therefore, ConocoPhillips argued, the ``test method (suitable for 
determining Motor and Research Octane values) should be allowed to be 
used for octane determination.''\30\ Two industry groups also 
recommended allowing the On-Line Method. The American Petroleum 
Institute (``API'') described the method as ``reliable'' and, 
therefore, stated that it ``should be included'' as a rating method 
prescribed by the Rule.\31\ The National Petrochemical & Refiners 
Association (``NPRA'') agreed with ConocoPhillips that the industry has 
``extensive experience'' with the On-Line Method and stated that it 
``should be allowed in addition to ASTM D2699 and D2700.''\32\ No 
comments opposed allowing octane determination through the On-Line 
Method.
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    \30\ Id.
    \31\ API Comment at 3.
    \32\ NPRA Comment at 1.
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D. Biodiesel and Biomass-Based Diesel

    Commenters raised two areas of concern with respect to the Rule's 
biodiesel fuel provisions, which currently require certifying, rating, 
and labeling those fuels if they contain more than 5 percent biodiesel 
or biomass-based diesel. Some commenters argued for expansion of the 
Rule to include biodiesel fuels at or below 5 percent concentration, 
and one argued for exemption from the Rule for biomass-based diesel 
blends at any concentration.
1. Rating All Biodiesel Fuel Blends
    Commenters noted that because the Rule does not require rating of 
biodiesel fuels at concentrations of 5 percent or less, a distributor 
may transfer those fuels without disclosing the presence of biodiesel 
or biomass-based diesel. API noted that such a transfer places a 
potential burden on retailers and could lead to inaccurate labels:

 [A] company may receive diesel fuel containing 5% or less biodiesel 
and believe that the diesel fuel received contains no biodiesel. The 
company then may add additional biodiesel to achieve what they believe 
to be a blend of 5% or less, resulting in a fuel with over 5% 
biodiesel, but because the company was not made aware of the existing 
biodiesel concentration, they do not appropriately label the 
dispenser.\33\ ConocoPhillips,\34\ NPRA,\35\ PMCI,\36\ and SIGMA/
NACS\37\ also argued that the current lack of rating requirements for 
certain biodiesel blends could lead to retailers failing to post 
required labels and, as SIGMA noted, ``subject [retailers] to penalties 
under the FTC Act.''\38\
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    \33\ API Comment at 1.
    \34\ ConocoPhillips Comment at 2.
    \35\ NPRA Comment at 2.
    \36\ PMCI Comment at 2-3.
    \37\ SIGMA and NACS Comment at 4.
    \38\ Id.

    To obviate this risk, API,\39\ ConocoPhillips,\40\ and NPRA\41\ 
recommended subjecting 5 percent and less biodiesel blends - but not 
biomass-based diesel blends - to the Fuel Rating Rule's rating and 
certification requirements, thereby requiring producers and 
distributors to disclose the presence of any biodiesel in fuel they 
distribute. PMCI\42\ and SIGMA/NACS\43\ agreed that the Rule should 
require rating and certification of all biodiesel blends, but argued 
that those requirements should apply to biomass-based diesel blends as 
well.
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    \39\ API Comment at 1.
    \40\ ConocoPhillips Comment at 2.
    \41\ NPRA Comment at 2.
    \42\ PMCI Comment at 3.
    \43\ SIGMA and NACS Comment at 4.
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2. Applicability of Fuel Rating Rule to Biomass-Based Diesel
    In contrast, API argued that the Rule should not apply to biomass-
based diesel blends of any concentration. API gave four reasons in 
support of its argument. First, citing an Environmental Protection 
Agency (``EPA'') description

[[Page 12473]]

of a type of biomass-based diesel, API stated that the fuel ``is 
indistinguishable in terms of its hydrocarbon structure from 
conventional petroleum diesel'' and, therefore, ``no standard test 
method referenced by ASTM D975 will reveal renewable diesel 
content.''\44\ Second, the Rule's prescribed use of the term 
``biodiesel'' on biomass-based diesel labels may confuse consumers.\45\ 
Third, the costs of rating and labeling the fuel increases its 
cost.\46\ Finally, because no standard tests exist for concentration 
levels of biomass-based diesel blends, enforcement of the Rule with 
respect to those fuels will be difficult.\47\
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    \44\ API Comment at 2.
    \45\ Id.
    \46\ Id.
    \47\ Id.
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E. Miscellaneous Comments

    Commenters also raised several miscellaneous issues. Many explained 
that the Fuel Rating Rule references old versions of ASTM Standards and 
a no longer valid ASTM address.\48\ Downstream noted that ASTM may 
change its E85 standard to provide that the fuel may contain as little 
as 68 percent ethanol. To accommodate that potential change, it 
recommended that the Commission consider amending the Rule, which 
limits E85 to blends of at least 70 percent.\49\ Finally, PMAA urged 
allowing greater flexibility in terms of the size and shape of labels 
and stated that the Rule's provisions conflicted with unspecified state 
labeling requirements, while SIGMA/NACS similarly argued for a 
``heightened degree of flexibility'' in labeling to assist retailers 
blending alternative fuels and changing concentration levels on a daily 
basis.\50\
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    \48\ See, e.g., ConocoPhillips Comment at 1.
    \49\ Downstream Comment at 5.
    \50\ PMAA Comment at 2; SIGMA/NACS Comment at 4.
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IV. Analysis

    In light of the comments discussed above, the Commission proposes 
retaining most of the Fuel Rating Rule while amending it to include 
explicit rating, certification, and labeling provisions for Mid-Level 
Ethanol blends and to provide labeling requirements for ethanol fuels 
above 70 percent concentration consistent with those proposed for Mid-
Level Ethanol blends. Furthermore, the Commission proposes allowing 
octane rating using the On-Line Method. Finally, the Commission 
proposes minor amendments in response to miscellaneous comments. The 
Commission declines to propose amendments to the Rule's biodiesel 
provisions.

A. Retaining the Rule

    The Commission promulgated its Fuel Rating Rule pursuant to 
PMPA,\51\ which requires the FTC to provide rules for rating, 
certifying, and labeling liquid automotive fuels. Commenters noted that 
the Rule benefits consumers and businesses. As AAM reported, the Rule 
appears to successfully carry out PMPA's goal of alerting consumers to 
the type and grade of liquid fuel sold at retail fuel pumps. The 
Commission, therefore, retains the Rule.
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    \51\ The Commission promulgated the Rule's biodiesel fuel 
provisions pursuant to EISA.
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B. Ethanol Fuel Labeling

    As discussed above, several commenters noted a risk of misfueling 
conventional vehicles with ethanol blends and, therefore, urged the 
Commission to include specific requirements for rating, certifying, and 
labeling Mid-Level Ethanol blends.\52\ As explained below, to address 
this misfueling risk, the Commission proposes including such 
requirements. The Commission further proposes altering its labeling 
requirements for all ethanol fuels to disclose that blends with more 
than 10 percent ethanol may harm some conventional vehicles.
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    \52\ PMPA authorizes the Commission to designate methods for 
fuel rating, fuel certification, and labeling any alternative liquid 
fuel. See 15 U.S.C. 2823(c).
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    As reflected in the comments, retailers currently offer Mid-Level 
Ethanol blends and E85 at fuel pumps, and EISA's renewable fuel 
standard will likely lead to increased availability of both. 
Furthermore, commenters noted that consumers who use those fuels in 
conventional vehicles place their warranties at risk. Similarly, DOE 
confirmed that fuels containing more than 10 percent ethanol are only 
proper for flex-fuel vehicles.\53\ Therefore, providing specific 
labeling requirements for Mid-Level Ethanol blends will further PMPA's 
purpose of ``assisting purchasers in identifying the specific type(s) 
of fuel required for their vehicles.''\54\
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    \53\ AAM noted a petition to the EPA seeking approval of blends 
containing up to 15 percent ethanol for use in conventional 
vehicles. AAM Comment at 2; see also 74 FR 18228 (Apr. 21, 2009). If 
EPA grants this petition, the Commission will reconsider requiring 
the proposed Mid-Level Ethanol blend label for such fuels.
    \54\ 58 FR 41356, 41360 (Aug. 3, 1993).
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    The Commission also agrees that covered entities should rate Mid-
Level Ethanol blends according to their percentage of ethanol, 
regardless of whether ethanol is the predominant fuel in the blend. 
Currently, the Rule requires covered entities to rate blends of less 
than 50 percent ethanol according to their gasoline percentage;\55\ 
therefore, the labels for such blends would not reflect the presence of 
ethanol in all circumstances. However, as noted above, the significant 
information to the consumer is whether the blend contains more than 10 
percent ethanol because use of ethanol blends at such concentrations in 
conventional vehicles places warranties at risk. Therefore, as 
explained in detail below, the Commission proposes requiring covered 
entities to rate and certify Mid-Level Ethanol blends according to 
their ethanol content and to label them accordingly.\56\
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    \55\ Although the Rule currently does not provide specific 
requirements for Mid-Level Ethanol blends, that fuel qualifies as an 
alternative fuel under the Rule. 16 CFR 306.0(i)(2) (providing that 
alternative fuels are ``not limited to'' those explicitly listed in 
the Rule). Therefore, covered entities must rate the fuel according 
to its ``principal component.'' 16 CFR 306.5(b).
    \56\ The Rule already requires rating and certifying E85 
according to the percentage of ethanol in the blend.
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1. Definitions
    In order to provide requirements for rating, certifying, and 
labeling Mid-Level Ethanol blends, the Commission proposes adding 
``Mid-Level Ethanol blend'' as a new defined term in the Fuel Rating 
Rule. Specifically, the proposed new definition defines the term as ``a 
mixture of gasoline and ethanol containing more than 10 but less than 
70 percent ethanol.''
2. Rating and Certification
    Section 306.0(i)(2) of the Fuel Rating Rule currently lists 
examples of alternative fuels, but specifically states that alternative 
fuels are ``not limited to'' those listed. The proposed amendments 
expressly add Mid-Level Ethanol blends to this non-exhaustive list, 
thereby making clear that the rating and certification requirements of 
Sec.  306 of the Rule apply to Mid-Level Ethanol blends. Subjecting 
such blends to those requirements should ensure the accuracy of 
information on Mid-Level Ethanol blend labels.
    In addition, to ensure that Mid-Level Ethanol blend labels provide 
consumers with useful information, the proposed amendments include 
rating and certification provisions similar to those for biodiesel 
fuels. The proposed amendments modify language in the Rule's rating 
provision (Sec.  306.5(b)) to clarify that covered entities must rate 
Mid-Level Ethanol blends by ``the percentage of ethanol contained in 
the

[[Page 12474]]

fuel,'' not by the percentage of the principal component of the 
fuel.\57\
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    \57\ For example, a 30 percent ethanol blend should be rated as 
30 percent ethanol, not 70 percent gasoline. However, as explained 
below, a retailer selling a 30 percent blend need only disclose that 
the fuel contains 10% - 70% ethanol.
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    The Commission also proposes amending Sec.  306.6(b), which allows 
transferors of alternative automotive fuels to certify fuel ratings 
with a letter of certification. That section provides that, generally, 
a certification by letter remains valid so long as the fuel transferred 
contains the same or greater rating of the principal component. The 
letter remains valid because an increase in concentration for most 
alternative fuels will not trigger different labeling requirements. An 
increase or decrease in concentration for ethanol blends or biodiesel 
fuels, however, may trigger different labeling requirements.\58\ 
Therefore, the proposed amendment to Sec.  306.6(b) states that if 
transferors of ethanol blends choose to use a letter of certification, 
that letter remains valid only as long as the fuel transferred contains 
the same percentage of ethanol as previous fuel transfers covered by 
the letter.
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    \58\ E.g., an increase from 60 percent ethanol to 85 percent 
ethanol would qualify the fuel as E85.
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3. Labeling
    The proposed amendments provide labeling requirements for Mid-Level 
Ethanol blends and amend the labeling requirements for E85.\59\ The 
proposed requirements provide retailers flexibility to comply with the 
law while giving consumers critical information to avoid placing their 
warranties at risk. Specifically, the proposed Mid-Level Ethanol blend 
requirements provide that retailers must post either: 1) the precise 
concentration of ethanol (e.g., ``20% ETHANOL''); or 2) a disclosure 
that the blend's concentration is between 10 and 70 percent (``10% - 
70% ETHANOL''), or within a narrower range (e.g., ``30% - 40% 
ETHANOL''). These content disclosures will alert consumers to the 
presence of more than 10 percent ethanol, thereby helping them avoid 
placing their warranties at risk.
---------------------------------------------------------------------------

    \59\ The proposed amendments at the end of this notice of 
proposed rulemaking include sample Mid-Level Ethanol blend and E85 
labels.
---------------------------------------------------------------------------

    The proposed amendments allow some flexibility by permitting Mid-
Level Ethanol blend sellers to provide a specific ethanol percentage or 
a range narrower than 10 - 70 percent, as long as the label is 
accurate. This increased flexibility will allow sellers to compete 
within the Mid-Level Ethanol blend market by disclosing a more specific 
ethanol content to consumers who value that information, while ensuring 
all consumers have the information necessary to avoid harming their 
vehicles or placing their warranties at risk. The proposed amendment 
does not, however, require labels to disclose an exact blend percentage 
or a range narrower than 10 - 70 percent. Requiring retailers to post 
such a disclosure would likely impose a significant burden because, as 
Downstream and IRFA noted, retailers currently create Mid-Level Ethanol 
blends through blender pumps. These pumps allow retailers to adjust the 
blend concentration frequently to account for relative changes in the 
prices of gasoline and ethanol. Requiring a specific disclosure, 
therefore, likely would force some sellers to either change pump labels 
frequently or alter their blend concentrations less frequently, 
potentially raising their costs.
    In addition, labels for all ethanol blends above 10 percent would 
state:

     MAY HARM SOME VEHICLES

     CHECK OWNER'S MANUAL

    This additional information should assist consumers in identifying 
the proper fuel for their vehicles.\60\ As noted above, AAM reported 
that consumers place their warranties at risk if they use Mid-Level 
Ethanol blends and E85 in conventional cars because ``virtually all 
conventional vehicles built to date have been validated for gasoline 
containing only up to 10% ethanol.''\61\ This comment raises a question 
concerning whether ethanol blends above 10 percent concentration will 
damage conventional vehicles, and the Commission invites comment on 
that question.
---------------------------------------------------------------------------

    \60\ PMPA authorizes the Commission to require labels displaying 
fuel ``ratings,'' which the statute defines as including information 
the Commission deems ``appropriate to carry out the [statute's] 
purposes . . . .'' 15 U.S.C. 2821(17)(C). The Commission has 
explained that, under this definition, a fuel's rating encompasses 
not only a numerical value but also text necessary to assure 
consumers that ``they are purchasing a product that satisfies 
automobile engine minimum content requirements, which may be 
specified in their owner's manuals.'' 58 FR 41356, 41364-65 (Aug. 3, 
1993). Thus, because the proposed additional language will assist 
consumers in determining whether they can use ethanol fuels, the 
language is part of the fuel's rating and the Commission may require 
it under PMPA.
    \61\ AAM Comment at 2.
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    Although the record contains no evidence regarding the incidence of 
ethanol misfueling, the increasing risk of such misfueling necessitates 
this additional disclosure. As discussed above, EISA's fuel mandate 
will require significant expansion of the alternative fuel market. 
Thus, in the coming years more retailers will likely offer Mid-Level 
Ethanol blends and E85, and consumers will encounter more fuel pumps 
dispensing those fuels near pumps dispensing conventional gasoline. 
Moreover, consumers' familiarity with gasoline containing up to 10 
percent ethanol may lead them to assume wrongly that their conventional 
vehicle can tolerate fuels with more than 10 percent ethanol. The 
proposed amendments require the additional disclosure for both E85 and 
Mid-Level Ethanol blends because requiring that disclosure for only one 
of those fuels could confuse consumers. For example, if the ``may harm 
some vehicles'' disclosure appeared on a Mid-Level Ethanol blend pump 
but not on an adjacent E85 pump, consumers might conclude wrongly that 
E85 cannot harm conventional vehicles.
    The proposed amendments specify the size, font, and format 
requirements for the new Mid-Level Ethanol blend labels and the revised 
labels for ethanol blends of at least 70 percent concentration.\62\ 
These requirements are similar to those in place for most other 
alternative liquid fuels in the Rule (see Sec.  306.12). The proposed 
labels for both fuels require an orange background (PMS 1495 or its 
equivalent),\63\ which is the typical color for alternative fuel labels 
and will allow retail consumers to distinguish Mid-Level Ethanol blends 
from gasoline. In addition, consistent with labeling for other 
alternative fuels, the proposed amendments require the text to be in 
Helvetica black type and centered on the label. The Commission proposes 
amending Sec.  306.12(f) to provide sample illustrations of Mid-Level 
Ethanol blend and E85 labels, which are included at the end of this 
notice of proposed rulemaking.\64\
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    \62\ The proposed amendments also delete the Rule's sample label 
for ``E-100'' (i.e., ethanol not mixed with gasoline) because the 
record does not show any retail sales of such fuels.
    \63\ 16 CFR 306.12(c)(2).
    \64\ The Rule's recordkeeping provisions (16 CFR 306.7, 306.9, 
and 306.11) without amendment will require covered entities to 
maintain records supporting the rating of any Mid-Level Ethanol 
blend they produce, transfer, or sell.
---------------------------------------------------------------------------

C. Octane Rating Using the On-Line Method

    The Commission also agrees with the commenters that the Fuel Rating 
Rule should allow octane rating through the On-Line Method, as 
specified in ASTM D2885. As noted above, PMPA authorizes the Commission 
to prescribe octane rating methods beyond those specified in ASTM D2699 
and D2700. The On-Line Method detailed in ASTM D2885 produces the exact 
same octane rating as the D2699 and D2700

[[Page 12475]]

methods.\65\ Accordingly, the Commission proposes amending the Rule to 
allow the On-Line Method.\66\
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    \65\ See ASTM D2885, Standard Test Method for Determination of 
Octane Number of Spark-Ignition Engine Fuels by On-Line Direct 
Comparison Technique, available for inspection at the FTC's public 
reference room. Notably, D2885 provides that the On-Line Method will 
produce ``octane numbers'' as that term is defined in D2699 and 
D2700. See id at Sec. 5.3.
    \66\ NPRA and ConocoPhillips recommended further loosening the 
Rule's octane rating provisions to allow non-ASTM approved 
procedures so long as they are ``correlated'' with ASTM D2699 and 
D2700. However, without specific rating procedures, the Commission 
would have difficulty determining whether a supposedly 
``correlated'' procedure accurately rates octane, and the commenters 
did not provide any criteria for showing correlation. Thus, allowing 
any ``correlated'' procedure would impede Rule enforcement and, 
therefore, the Commission declines to allow such procedures. See 15 
U.S.C. 2823(c)(3)(A)(i) (Commission must consider ``ease of 
administration and enforcement'' before approving alternative octane 
rating procedures).
---------------------------------------------------------------------------

D. Miscellaneous Comments

    Commenters raised three miscellaneous issues. First, several noted 
outdated ASTM references. Therefore, the Commission proposes updating 
those references.\67\ Second, Downstream argued that the Commission 
consider allowing E85 to contain 68 percent ethanol in light of a 
potential change to the relevant ASTM standard. The Commission declines 
to make this change because there is no current ASTM or DOE standard 
allowing E85 to contain 68 percent ethanol.\68\ Third, some retail fuel 
industry commenters requested more flexibility in labeling 
specifications and noted possible state and FTC labeling conflicts. 
However, none of the comments demonstrated that the labeling 
specifications impose a substantial burden or identified a specific 
conflict. Therefore, the Commission does not propose any amendments in 
response to those comments.
---------------------------------------------------------------------------

    \67\ E.g., the Commission proposes amending Sec.  306.0(b) to 
provide ASTM's current street address.
    \68\ See 1 CFR Part 51.
---------------------------------------------------------------------------

    Finally, in addition to the commenters' suggested changes, the 
Commission on its own initiative proposes amending the Rule's labeling 
specifications to address an inconsistency. Section 306.12(b)(2) 
requires all uppercase type for labels for all alternative fuels. 
Sections 306.12(a)(4) through (9), however, require some lowercase type 
on biodiesel fuel labels. The Commission, therefore, proposes amending 
Sec.  306.12(b)(2) to make clear that its all-caps requirement does not 
apply to labeling requirements for biodiesel fuels.\69\
---------------------------------------------------------------------------

    \69\ The Commission also proposes amending Sec. Sec.  306.0(b), 
306.0(j)(1), 306.0(j)(2), and 306.0(j)(3) to correct typographical 
errors, and proposes amending Sec.  306.0(i) for clarification by 
eliminating the subsection number (3) and replacing that with 
``provided, however.''
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E. Biodiesel Fuel Provisions

1. Rating Biodiesel Fuel Blends of 5 Percent or Less
    As discussed above, several commenters argued that, unless the 
Commission expanded the Fuel Rating Rule to require rating of biodiesel 
fuel blends at or below 5 percent in concentration, retailers who blend 
biodiesel might not know the blend's concentration and, therefore, fail 
to label the fuel appropriately. As an initial matter, the record does 
not show that retailers who blend cannot properly label their fuel in 
the absence of the suggested change. Indeed, none of the commenters 
presented evidence of such mislabeling.
    Retailers can comply with the Rule in one of two ways. First, they 
can test their blends and label them accordingly. Alternatively, they 
can add enough pure biodiesel to uncertified diesel stock to ensure 
that the resulting blend will contain more than 5, but not more than 
20, percent biodiesel. For example, if a retailer receives uncertified 
diesel from a refiner, the retailer knows that the fuel contains up to 
5 percent biodiesel. The retailer can then add at least six, but not 
more than fifteen, percent pure biodiesel into this uncertified stock. 
The final product would thus contain more than 5, but less than 20, 
percent biodiesel. Therefore, the retailer could comply with the Rule 
by labeling the fuel as a ``Biodiesel Blend'' without a specific blend 
percentage.\70\
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    \70\ The Rule does not require a specific percentage disclosure 
for biodiesel blends with more than 5 and no more than 20 percent 
biodiesel. Thus, sellers may label the fuel: ``Biodiesel Blend.'' 16 
CFR 306.12(a)(4).
---------------------------------------------------------------------------

    Although the Rule's biodiesel provisions require retailers who 
blend such fuels to take some affirmative steps, the Commission 
believes that this burden is reasonable. Indeed, the Commission knew of 
this burden when it first promulgated biodiesel fuel requirements, and 
in announcing those requirements stated:

 [A]n entity blending biodiesel fuels is responsible for determining 
the amount of biodiesel and/or biomass-based diesel in the fuel it 
sells. This includes the need to account for biodiesel and/or biomass-
based diesel in any diesel fuel (e.g., diesel fuel containing biodiesel 
at five percent or less) it uses to create blends that must be rated, 
certified, or labeled under the Rule.\71\
---------------------------------------------------------------------------

    \71\ 73 FR 40154, 40159 n.20 (Jul. 11, 2008).

    Moreover, there is no evidence that requiring producers and 
distributors of biodiesel fuels to rate blends of 5 percent or less 
would decrease the Rule's overall burden on businesses. Amending the 
Rule as proposed would require producers and distributors to rate 5 
percent or less biodiesel blends regardless of whether those fuels 
would eventually require a label after blending. Thus, the proposed 
amendment might reduce a burden on some retailers while increasing the 
burden on many producers and distributors. The Commission, therefore, 
declines to adopt the change.
2. Exempting Biomass-Based Diesel from the Rule
    Commenter API argued that the Commission should not require rating, 
certification, or labeling of biomass-based diesel blends because those 
blends are indistinguishable from conventional diesel. It also argued 
that the required label is confusing because it contains both the terms 
``biodiesel'' and ``biomass-based diesel.'' Even assuming that API is 
correct, however, the Commission cannot exempt biomass-based diesel 
blends or provide for different labels because Section 205 of EISA 
specifically provides that ``[e]ach retail diesel fuel pump shall be 
labeled in a manner that informs consumers of the percent of biomass-
based diesel or biodiesel that is contained in the biomass-based diesel 
blend or biodiesel blend that is offered for sale'' (emphasis added) 
and that all blends over 5 percent ``shall be labeled,''\72\ depending 
on concentration levels, either ``contains biomass-based diesel or 
biodiesel in quantities between 5 percent and 20 percent'' or 
``contains more than 20 percent biomass-based diesel or 
biodiesel.''\73\ (Emphasis added.) Thus, the Commission has no 
discretion to exempt biomass-based diesel or exclude the term 
``biodiesel'' from biomass-based diesel blend labels.
---------------------------------------------------------------------------

    \72\ 42 U.S.C. 17021(a) and (b).
    \73\ 42 U.S.C. 17021(b).
---------------------------------------------------------------------------

V. Request for Comment

    Interested parties are invited to submit written comments 
electronically or in paper form. Comments should refer to ``Fuel Rating 
Rule Review, R811005'' to facilitate the organization of comments. 
Please note that your comment - including your name and your state - 
will be placed on the public record of this proceeding, including on

[[Page 12476]]

the publicly accessible FTC website, at (http://www.ftc.gov/os/publiccomments.shtm).
    Because comments will be made public, they should not include any 
sensitive personal information, such as any individual's Social 
Security Number; date of birth; driver's license number or other state 
identification number, or foreign country equivalent; passport number; 
financial account number; or credit or debit card number. Comments also 
should not include any sensitive health information, such as medical 
records or other individually identifiable health information. In 
addition, comments should not include ``trade secret or any commercial 
or financial information which is obtained from any person and which is 
privileged or confidential'' as provided in Section 6(f) of the Federal 
Trade Commission Act (``FTC Act''), 15 U.S.C. 46(f), and FTC Rule 
4.10(a)(2), 16 CFR 4.10(a)(2). Comments containing matter for which 
confidential treatment is requested must be filed in paper form, must 
be clearly labeled ``Confidential,'' and must comply with FTC Rule 
4.9(c).\74\
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    \74\ The comment must be accompanied by an explicit request for 
confidential treatment, including the factual and legal basis for 
the request, and must identify the specific portions of the comment 
to be withheld from the public record. The request will be granted 
or denied by the Commission's General Counsel, consistent with 
applicable law and the public interest. See FTC Rule 4.9(c), 16 CFR 
4.9(c).
---------------------------------------------------------------------------

    Because paper mail addressed to the FTC is subject to delay due to 
heightened security screening, please consider submitting your comments 
in electronic form. Comments filed in electronic form should be 
submitted using the following weblink: (https://public.commentworks.com/ftc/fuelratingreview) (and following the 
instructions on the web-based form). To ensure that the Commission 
considers an electronic comment, you must file it on the web-based form 
at the weblink (https://public.commentworks.com/ftc/fuelratingreview). 
If this notice of proposed rulemaking appears at (http://www.regulations.gov/search/Regs/home.html#home), you may also file an 
electronic comment through that website. The Commission will consider 
all comments that regulations.gov forwards to it. You may also visit 
the FTC Website at (http://www.ftc.gov) to read the notice of proposed 
rulemaking and the news release describing it.
    A comment filed in paper form should include the ``Fuel Rating Rule 
Review, R811005'' reference both in the text and on the envelope, and 
should be mailed or delivered to the following address: Federal Trade 
Commission, Office of the Secretary, Room H-135 (Annex M), 600 
Pennsylvania Avenue, N.W., Washington, D.C. 20580. The FTC is 
requesting that any comment filed in paper form be sent by courier or 
overnight service, if possible, because U.S. postal mail in the 
Washington area and at the Commission is subject to delay due to 
heightened security precautions.
    Comments on any proposed filing, recordkeeping, or disclosure 
requirements that are subject to the paperwork burden review under the 
Paperwork Reduction Act should additionally be submitted to: Office of 
Information and Regulatory Affairs, Office of Management and Budget 
(``OMB''), Attention: Desk Officer for Federal Trade Commission. 
Comments should be submitted via facsimile to (202) 395-5167 because 
U.S. postal mail at the OMB is subject to delays due to heightened 
security precautions.
    The FTC Act and other laws that the Commission administers permit 
the collection of public comments to consider and use in this 
proceeding as appropriate. The Commission will consider all timely and 
responsive public comments that it receives, whether filed in paper or 
electronic form. Comments received will be available to the public on 
the FTC website, to the extent practicable, at (http://www.ftc.gov/os/publiccomments.shtm). As a matter of discretion, the FTC makes every 
effort to remove home contact information for individuals from the 
public comments it receives before placing those comments on the FTC 
website. More information, including routine uses permitted by the 
Privacy Act, may be found in the FTC's privacy policy, at (http://www.ftc.gov/ftc/privacy.htm).
    Because written comments appear adequate to present the views of 
all interested parties, the Commission has not scheduled an oral 
hearing for these proposed amendments. Interested parties may request 
an opportunity to present views orally. If such a request is made, the 
Commission will publish a document in the Federal Register stating the 
time and place for such oral presentation(s) and describing the 
procedures that will be followed. Interested parties who wish to 
present oral views must submit a hearing request, on or before April 5, 
2010, in the form of a written comment that describes the issues on 
which the party wishes to speak. If there is no oral hearing, the 
Commission will base its decision on the written rulemaking record.

VI. Paperwork Reduction Act

    The proposed certification and labeling requirements for Mid-Level 
Ethanol blends constitute a ``collection of information'' under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521) (``PRA''). The 
additional required disclosures for fuels containing at least 70 
percent ethanol, however, do not invoke the PRA because they comprise a 
disclosure supplied by the Federal Government.\75\
---------------------------------------------------------------------------

    \75\ According to OMB, ``[t]he public disclosure of information 
originally supplied by the Federal Government to the recipient for 
the purpose of disclosure to the public is not included'' within in 
the definition of a PRA ``collection of information.'' 5 CFR 
1320.3(c)(2).
---------------------------------------------------------------------------

    Consistent with the Fuel Rating Rule's requirements for other 
alternative fuels, under the proposed amendments refiners, producers, 
importers, distributors, and retailers of Mid-Level Ethanol blends must 
retain, for one year, records of any delivery tickets, letters of 
certification, or tests upon which they based the automotive fuel 
ratings that they certify or post.\76\ The covered parties also must 
make these records available for inspection by staff of the Commission 
and Environmental Protection Agency or by persons authorized by those 
agencies. Finally, retailers must produce, distribute, and post fuel 
rating labels on fuel pumps. Therefore, the Commission will submit the 
proposed requirements to OMB for review under the PRA before issuing a 
final rule.
---------------------------------------------------------------------------

    \76\ See the Fuel Rating Rule's recordkeeping requirements, 16 
CFR 306.7; 306.9; and 306.11.
---------------------------------------------------------------------------

    The Commission has previously estimated the burden associated with 
the Rule's recordkeeping requirements for the sale of automotive fuels 
to be no more than 5 minutes per year (or 1/12th of an hour) per 
industry member, and no more than 1/8th of an hour per year per 
industry member for the Rule's disclosure requirements.\77\ Consistent 
with OMB regulations that implement the PRA, these estimates reflect 
solely the burden incremental to the usual and customary recordkeeping 
and disclosure activities performed by affected entities in the 
ordinary course of business. See 5 CFR 1320.3(b)(2).
---------------------------------------------------------------------------

    \77\ See, e.g., 73 FR 12916, 12920 (Mar. 11, 2008); 73 FR 40154, 
40160-40161 (Jul. 11, 2008). Staff has previously estimated that 
retailers of automotive fuels incur an average burden of 
approximately one hour to produce, distribute, and post fuel rating 
labels. Because the labels are durable, staff has concluded that 
only about one of every eight retailers incur this burden each year, 
hence, 1/8th of an hour, on average, per retailer.
---------------------------------------------------------------------------

    Because the procedures for distributing and selling Mid-Level 
Ethanol blends are no different from those for other automotive fuels, 
the

[[Page 12477]]

Commission expects that, consistent with practices in the fuel industry 
generally, the covered parties will record the fuel rating 
certification on documents (e.g., shipping receipts) already in use, or 
will use a letter of certification. Furthermore, the Commission expects 
that labeling of Mid-Level Ethanol blend pumps will be consistent, 
generally, with practices in the fuel industry. Accordingly, the PRA 
burden will be the same as that for other automotive fuels: 1/12th of 
an hour per year for recordkeeping and 1/8th of an hour per year for 
disclosure.
    Based on information submitted by commenter Downstream, the 
Commission estimates that there are approximately 130 retailers of Mid-
Level Ethanol blends. Furthermore, the Commission understands from the 
comments that Mid-Level Ethanol blends are created through blender 
pumps and, therefore, there are no producers or distributors of such 
blends. Thus, assuming that each retailer of Mid-Level Ethanol blends 
will spend 1/12th of an hour per year complying with the proposed 
recordkeeping requirements and 1/8th of an hour per year complying with 
the proposed disclosure requirements, the Commission estimates the 
incremental annual burden for Mid-Level Ethanol blend retailers to be 
10.83 hours for recordkeeping (1/12th of an hour per year x 130 
entities) and 16.25 hours for disclosure (1/8th of an hour per year x 
130), combined, 27.08 hours.
    Labor costs are derived by applying appropriate hourly cost figures 
to the burden hours described above. Staff estimates the mean hourly 
wage for retailer employees to be $15.04.\78\ Applied to the estimated 
affected population, this would total $407.28 ($15.04 x 27.08) for 
recordkeeping and disclosure, industry-wide.
---------------------------------------------------------------------------

    \78\ Bureau of Labor Statistics, May 2008 Occupational 
Employment Statistics Survey, ``Correspondence Clerks,'' Table 1, at 
(http://www.bls.gov/news.release/pdf/ocwage.pdf).
---------------------------------------------------------------------------

    The Commission invites comment on the above burden analysis and 
estimates to help ensure its accuracy and completeness.

VII. Regulatory Flexibility Act

    The Regulatory Flexibility Act, 5 U.S.C. 601-612, requires an 
agency to provide an Initial Regulatory Flexibility Analysis with a 
proposed rule and a Final Regulatory Flexibility Analysis with the 
final rule, if any, 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 FTC does not expect that the proposed amendments will have a 
significant economic impact on a substantial number of small entities. 
The amendment allowing alternative octane measurements does not impose 
any new costs on covered entities because, under the amendment, those 
entities would have the option of using the octane rating method 
currently required by the Rule. As explained in Section V above, the 
Commission expects that Mid-Level Ethanol blend retailers will spend, 
at most, 5 minutes per year complying with the proposed recordkeeping 
requirements and 1/8th of an hour per year complying with the 
disclosure requirements. As also explained in Section V, staff 
estimates the mean hourly wage for employees of ethanol retailers to be 
$15.04. Even assuming that all ethanol retailers are small entities, 
compliance with the recordkeeping requirements will cost retailers 
$1.25 ($15.04 x 1/12th of an hour). In addition, under the same 
conservative assumptions, compliance with the proposed disclosure 
requirements will cost retailers $1.88 ($15.04 x 1/8th of an hour).
    In addition, retailers will incur the cost of procuring and 
replacing fuel dispenser labels to comply with the disclosure 
requirements of the Rule. Staff has previously estimated that the price 
per automotive fuel label is approximately fifty cents and that the 
average automotive fuel retailer has six dispensers. However, commenter 
PMAA stated that the cost of labels ranges from one to two dollars. 
Conservatively applying the upper range from PMAA's estimate results in 
an initial cost to retailers of $12.00 (6 pumps x $2). In addition, 
staff has previously estimated the useful life of dispenser labels to 
range from 6 to 10 years. Assuming a useful life of 8 years, the mean 
of that range, and distributing the costs on a per-year basis, staff 
estimates the total annual replacement labeling cost to be $0.25 (1/8 x 
$2).
    This document serves as notice to the Small Business Administration 
of the agency's certification of no effect. Nonetheless, the Commission 
has determined that it is appropriate to publish an Initial Regulatory 
Flexibility Analysis in order to inquire into the impact of the 
proposed ethanol amendments on small entities. Therefore, the 
Commission has prepared the following analysis.

A. Description of the reasons that action by the agency is being 
considered.

    The emergence of Mid-Level Ethanol blends as a retail fuel and the 
likely increased availability of both Mid-Level Ethanol blends and E85 
as retail fuels.

B. Statement of the objectives of, and legal basis for, the proposed 
rule.

    The Commission proposes these amendments to provide requirements 
for rating and certifying Mid-Level Ethanol blends and to amend its 
requirements for labeling blends of gasoline and more than 10 percent 
ethanol pursuant to PMPA, 15 U.S.C. 2801 et seq.

C. Description of and, where feasible, estimate of the number of small 
entities to which the proposed rule will apply.

    Retailers of fuels containing more than 10 percent ethanol will be 
classified as small businesses if they satisfy the Small Business 
Administration's relevant size standards, as determined by the Small 
Business Size Standards component of the North American Industry 
Classification System (``NAICS''). The closest NAICS size standard 
relevant to this rulemaking is for ``Gas Stations with Convenience 
Stores.'' That standard classifies retailers with a maximum $27 million 
in annual receipts as small businesses.\79\ As discussed above, the 
only evidence in the comments regarding ethanol retailers is a list of 
Mid-Level Ethanol blend retailers provided by Downstream. DOE reports 
1,944 E85 fueling stations.\80\ Neither list contains any information 
on these retailers' revenue. Therefore, the Commission is unable to 
determine how many of these retailers qualify as small businesses. The 
Commission invites comments providing revenue data for retailers 
selling ethanol blends containing more than 10 percent ethanol.
---------------------------------------------------------------------------

    \79\ See (http://www.sba.gov/idc/groups/public/documents/sba_homepage/serv_sstd_tablepdf.pdf).
    \80\ See (http://www.afdc.energy.gov/afdc/fuels/stations_counts.html).
---------------------------------------------------------------------------

D. Projected reporting, recordkeeping, and other compliance 
requirements.

    The proposed amendments make clear that the Fuel Rating Rule's 
recordkeeping, certification, and labeling requirements apply to Mid-
Level Ethanol blends. Small entities potentially affected are 
producers, distributors, and retailers of those blends. The Commission 
expects that the recordkeeping, certification, and labeling tasks are 
done by industry members in the normal course of their business. 
Accordingly, we do not expect the proposed amendments to require any 
professional skills beyond those already employed by industry members.

[[Page 12478]]

The Commission invites comments on this issue.

E. Other duplicative, overlapping, or conflicting federal rules.

    The FTC has identified no other federal statutes, rules, or 
policies that would duplicate, overlap, or conflict with the proposed 
amendments. The Commission invites comment on this issue.

F. Alternatives considered.

    As explained above, PMPA requires retailers of liquid automotive 
fuels to post labels at the point of sale displaying those fuels' 
ratings. The posting requirements in the proposed amendments are 
minimal and, as noted above, do not require creating any separate 
documents because covered parties may use documents already in use to 
certify a fuel's rating. Furthermore, the amendments minimize what, if 
any, economic impact there is from the labeling requirements. 
Therefore, the Commission concludes that there are no alternative 
measures that would accomplish the purposes of PMPA and lessen the 
burden on small entities. The Commission invites comment on this issue.

VIII. Public Hearings

    Persons desiring a public hearing should notify the Commission no 
later than April 5, 2010. If there is interest in a public hearing, it 
will take place at a time and date to be announced in a subsequent 
notice. If a hearing is held, persons desiring an appointment to 
testify must submit to the Commission a complete statement in advance, 
which will be entered into the record in full. As a general rule, oral 
statements should not exceed 10 minutes. The Commission will provide 
further instructions in the notice announcing the hearing.

IX. Communications by Outside Parties to the Commissioners or Their 
Advisors

    Written communications and summaries or transcripts of oral 
communications respecting the merits of this proceeding from any 
outside party to any Commissioner or Commissioner's advisor will be 
placed on the public record. See 16 CFR 1.26(b)(5).

List of Subjects in 16 CFR Part 306

    Fuel ratings, Trade practices.
    For the reasons discussed in the preamble, the Federal Trade 
Commission proposes to amend title 16, Chapter I, Subchapter C, of the 
Code of Federal Regulations, part 306, as follows:
    1. Revise the authority citation for part 306 to read as follows:

    Authority: 15 U.S.C. 2801 et seq; 42 U.S.C. 17021.
    2. Amend Sec.  306.0 by revising paragraphs (b), (i), and (j), and 
adding new paragraph (o), to read as follows:


Sec.  306.0  Definitions.

* * * * *
    (b) Research octane number and motor octane number. (1) These terms 
have the meanings given such terms in the specifications of the 
American Society for Testing and Materials (``ASTM'') entitled 
``Standard Specification for Automotive Spark-Ignition Engine Fuel'' 
designated D4814-09b and, with respect to any grade or type of 
gasoline, are determined in accordance with test methods set forth in 
either:
    (i) ASTM D2699-08, ``Standard Test Method for Knock Characteristics 
of Motor Fuels by the Research Method'' and ASTM D2700-08, ``Standard 
Test Method for Knock Characteristics of Motor and Aviation Fuels by 
the Motor Method''; or
    (ii) ASTM D2885-08, ``Standard Test Method for Determination of 
Octane Number of Spark-Ignition Engine Fuels by On-Line Direct 
Comparison Technique.''
    (2)These incorporations by reference were approved by the Director 
of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR 
part 51. Copies of ASTM D4814-09b, ASTM D2699-08, ASTM D2700-08, and 
ASTM 2885-08, may be obtained from ASTM International, 100 Barr Harbor 
Drive, West Conshohocken, PA 19428, or may be inspected at the Federal 
Trade Commission, Public Reference Room, Room 130, 600 Pennsylvania 
Avenue, N.W., Washington, D.C., 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/cfr/ibr-locations.html).
* * * * *
    (i) Automotive fuel. (1) This term means liquid fuel of a type 
distributed for use as a fuel in any motor vehicle, and the term 
includes, but is not limited to:
    (i) Gasoline, an automotive spark-ignition engine fuel, which 
includes, but is not limited to, gasohol (generally a mixture of 
approximately 90% unleaded gasoline and 10% denatured ethanol) and 
fuels developed to comply with the Clean Air Act, 42 U.S.C. 7401 et 
seq., such as reformulated gasoline and oxygenated gasoline; and
    (ii) Alternative liquid automotive fuels, including, but not 
limited to:
    (A) Methanol, denatured ethanol, and other alcohols;
    (B) Mixtures containing 85 percent or more by volume of methanol, 
denatured ethanol, and/or other alcohols (or such other percentage, but 
not less than 70 percent, as determined by the Secretary of the United 
States Department of Energy, by rule, to provide for requirements 
relating to cold start, safety, or vehicle functions), with gasoline or 
other fuels;
    (C) Mid-level ethanol blends;
    (D) Liquefied natural gas;
    (E) Liquefied petroleum gas;
    (F) Coal-derived liquid fuels;
    (G) Biodiesel;
    (H) Biomass-based diesel;
    (I) Biodiesel blends containing more than 5 percent biodiesel by 
volume; and
    (J) Biomass-based diesel blends containing more than 5 percent 
biomass-based diesel by volume.
    (2) Provided, however, that biodiesel blends and biomass-based 
diesel blends that contain less than or equal to 5 percent biodiesel by 
volume and less than or equal to 5 percent biomass-based diesel by 
volume, and that meet American Society for Testing and Materials 
(``ASTM'') standard D975-09b (``Standard Specification for Diesel Fuel 
Oils''), are not automotive fuels covered by the requirements of this 
Part. The incorporation of ASTM D975-09b by reference was approved by 
the Director of the Federal Register in accordance with 5 U.S.C. 552(a) 
and 1 CFR part 51. Copies of ASTM D975-09b may be obtained from ASTM 
International, 100 Barr Harbor Drive, West Conshohocken, PA 19428, or 
may be inspected at the Federal Trade Commission, Public Reference 
Room, Room 130, 600 Pennsylvania Avenue, N.W., Washington, D.C., or at 
NARA. For information on the availability of this material at NARA, 
call 202-741-6030, or go to: (http://www.archives.gov/federal-register/cfr/ibr-locations.html).
    (j) Automotive fuel rating means--
    (1) For gasoline, the octane rating.
    (2) For an alternative liquid automotive fuel other than biodiesel, 
biomass-based diesel, biodiesel blends, biomass-based diesel blends, 
and mixtures of gasoline and more than 10 percent ethanol, the commonly 
used name of the fuel with a disclosure of the amount, expressed as a 
minimum percentage by volume, of the principal component of the fuel. A 
disclosure of other components, expressed as a minimum percentage by 
volume, may be included, if desired.
    (3) For biomass-based diesel, biodiesel, biomass-based diesel 
blends

[[Page 12479]]

with more than 5 percent biomass-based diesel, biodiesel blends with 
more than 5 percent biodiesel, a disclosure of the biomass-based diesel 
or biodiesel component, expressed as the percentage by volume.
    (4) For mixtures of gasoline and more than 10 percent ethanol, 
including mid-level ethanol blends, a disclosure of the ethanol 
component, expressed as a percentage by volume.
* * * * *
    (o) Mid-level ethanol blend means a mixture of gasoline and ethanol 
containing more than 10 but less than 70 percent ethanol.
    3. Revise Sec.  306.5 to read as follows:


Sec.  306.5  Automotive fuel rating.

    If you are a refiner, importer, or producer, you must determine the 
automotive fuel rating of all automotive fuel before you transfer it. 
You can do that yourself or through a testing lab.
    (a) To determine the automotive fuel rating of gasoline, add the 
research octane number and the motor octane number and divide by two, 
as explained by the American Society for Testing and Materials 
(``ASTM'') in ASTM D4814-09b, entitled ``Standard Specifications for 
Automotive Spark-Ignition Engine Fuel.'' To determine the research 
octane and motor octane numbers you may either:
    (1) Use ASTM standard test method D2699-08 to determine the 
research octane number, and ASTM standard test method D2700-08 to 
determine the motor octane number; or
    (2) Use the test method set forth in ASTM D2885-08, ``Standard Test 
Method for Determination of Octane Number of Spark-Ignition Engine 
Fuels by On-Line Direct Comparison Technique.''
    (b) To determine automotive fuel ratings for alternative liquid 
automotive fuels other than mid-level ethanol blends, biodiesel blends 
and biomass-based diesel blends, you must possess a reasonable basis, 
consisting of competent and reliable evidence, for the percentage by 
volume of the principal component of the alternative liquid automotive 
fuel that you must disclose. In the case of biodiesel blends, you must 
possess a reasonable basis, consisting of competent and reliable 
evidence, for the percentage of biodiesel contained in the fuel. In the 
case of biomass-based diesel blends, you must possess a reasonable 
basis, consisting of competent and reliable evidence, for the 
percentage of biomass-based diesel contained in the fuel. In the case 
of mid-level ethanol blends, you must possess a reasonable basis, 
consisting of competent and reliable evidence, for the percentage of 
ethanol contained in the fuel. You also must have a reasonable basis, 
consisting of competent and reliable evidence, for the minimum 
percentages by volume of other components that you choose to disclose.
    4. Revise Sec.  306.6(b) to read as follows:


Sec.  306.6  Certification.

* * * * *
    (b) Give the person a letter or other written statement. This 
letter must include the date, your name, the other person's name, and 
the automotive fuel rating of any automotive fuel you will transfer to 
that person from the date of the letter onwards. Octane rating numbers 
may be rounded to a whole or half number equal to or less than the 
number determined by you. This letter of certification will be good 
until you transfer automotive fuel with a lower automotive fuel rating, 
except that a letter certifying the fuel rating of biomass-based 
diesel, biodiesel, biomass-based diesel blend, biodiesel blend, or mid-
level ethanol blend will be good only until you transfer those fuels 
with a different automotive fuel rating, whether the rating is higher 
or lower. When this happens, you must certify the automotive fuel 
rating of the new automotive fuel either with a delivery ticket or by 
sending a new letter of certification.
* * * * *
    5. Revise Sec.  306.10(f) to read as follows:


Sec.  306.10  Automotive fuel rating posting.

* * * * *
    (f) The following examples of automotive fuel rating disclosures 
for some presently available alternative liquid automotive fuels are 
meant to serve as illustrations of compliance with this part, but do 
not limit the Rule's coverage to only the mentioned fuels:
    (1) ``Methanol/Minimum ------% Methanol''
    (2) ``20% Ethanol/May harm some vehicles. Check owner's manual''
    (3) ``M-85/Minimum ------% Methanol''
    (4) ``E-85/Minimum ------% Ethanol/May harm some vehicles. Check 
owner's manual''
    (5) ``LPG/Minimum ------% Propane'' or
    ``LPG/Minimum ------% Propane and ------% Butane''
    (6) ``LNG/Minimum ------% Methane''
    (7) ``B-20 Biodiesel Blend/contains biomass-based diesel or 
biodiesel in quantities between 5 percent and 20 percent''
    (8) ``20% Biomass-Based Diesel Blend/contains biomass-based diesel 
or biodiesel in quantities between 5 percent and 20 percent''
    (9) ``B-100 Biodiesel/contains 100 percent biodiesel''
    (10) ``100% Biomass-Based Diesel/contains 100 percent biomass-based 
diesel''
* * * * *
    6. Amend Sec.  306.12 by revising paragraph (a)(2), by 
redesignating existing paragraphs (a)(4) through (a)(9) as paragraphs 
(a)(6) through (a)(11), respectively, by adding new paragraphs (a)(4) 
and (a)(5), by revising paragraph (b)(2), by removing the fifth 
illustration in paragraph (f), and by adding new illustrations after 
the existing illustrations in paragraph (f), to read as follows:


Sec.  306.12  Labels.

    (a) Layout -
* * * * *
    (2) For alternative liquid automotive fuel labels (one principal 
component) other than, biodiesel, biomass-based diesel, biodiesel 
blends, and biomass-based diesel blends, and mixtures of gasoline and 
more than 10 percent ethanol. The label is 3 inches (7.62 cm) wide x 2 
1/2 inches (6.35 cm) long. ``Helvetica black'' type is used throughout. 
All type is centered. The band at the top of the label contains the 
name of the fuel. This band should measure 1 inch (2.54 cm) deep. 
Spacing of the fuel name is 1/4 inch (.64 cm) from the top of the label 
and 3/16 inch (.48 cm) from the bottom of the black band, centered 
horizontally within the black band. The first line of type beneath the 
black band is 1/8 inch (.32 cm) from the bottom of the black band. All 
type below the black band is centered horizontally, with 1/8 inch (.32 
cm) between each line. The bottom line of type is 3/16 inch (.48 cm) 
from the bottom of the label. All type should fall no closer than 3/16 
inch (.48 cm) from the side edges of the label. If you wish to change 
the dimensions of this single component label to accommodate a fuel 
descriptor that is longer than shown in the sample labels, you must 
petition the Federal Trade Commission. You can do this by writing to 
the Secretary of the Federal Trade Commission, Washington, D.C. 20580. 
You must state the size and contents of the label that you wish to use, 
and the reasons that you want to use it.
* * * * *
    (4)  For mid-level ethanol blends. (i) The label is 3 inches (7.62 
cm) wide x 2 1/2 inches (6.35 cm) long. ``Helvetica black'' type is 
used throughout. The type in the band is centered both horizontally and 
vertically. The band at the top of the label contains one of the 
following:
    (A) The numerical value representing the volume percentage of 
ethanol in the

[[Page 12480]]

fuel followed by the percentage sign and then by the term ``ETHANOL'';
    (B) ``X% - Y%,'' where X represents the numerical value of the 
minimum, at least 10, and Y represents the numerical value of the 
maximum, no more than 70, amount of ethanol in the fuel, followed by a 
line break and then the term ``ETHANOL''; or
    (C) ``10% - 70%'' followed by a line break and then the term 
``ETHANOL.''
    (ii) The band should measure 1 inch (2.54 cm) deep. The word 
``ETHANOL'' is in 24 point font. The exact percentage disclosure in 
subsection (i) is in 24 point font. The range disclosures in 
subsections (ii) and (iii) are in 18 point font. The type below the 
black band is centered vertically and inset 3/16 inch (.48 cm) from the 
left edge of the box. The first line begins with a round bullet point 
in 16 point font and is followed by the text ``MAY HARM SOME VEHICLES'' 
in 20 point font. Below that text, a new line begins with a bullet 
point in 16 point font and is followed by the text ``CHECK OWNER'S 
MANUAL'' in 20 point font.
    (5) For mixtures of gasoline and at least 70 percent ethanol. (i) 
The label is 3 inches (7.62 cm) wide x 2 1/2 inches (6.35 cm) long. 
``Helvetica black'' type is used throughout. The band should measure 1 
inch (2.54 cm) deep. The type in the band is in 50 point font and is 
centered both horizontally and vertically.
    (A) If the fuel is E85, the type in the band reads ``E-85.''
    (B) If the common name of the fuel is something other than E85, the 
type in the black band should be the common name of the fuel.
    (ii) The type below the black band is centered vertically. The 
first line of text below the band, in 20 point font and centered 
horizontally, is the text: ``MINIMUM X% ETHANOL,'' where X represents 
the numerical value of the minimum percentage of ethanol in the fuel. 
Below that text, a new line is left justified and inset 1/4 inch (.64 
cm) from the left border of the label. The line begins with a round 
bullet point and is followed by the text ``MAY HARM SOME VEHICLES'' in 
11 point font. Below that text, a new line is left justified and inset 
1/4 inch (.64 cm) from the left border of the label. The line begins 
with a bullet point and is followed by the text ``CHECK OWNER'S 
MANUAL'' in 11 point font.
* * * * *
    (b) * * *
    (2)  For alternative liquid automotive fuel labels (one principal 
component). Except as provided above, all type should be set in upper 
case (all caps) ``Helvetica Black'' throughout. Helvetica Black is 
available in a variety of computer desk-top and phototype setting 
systems. Its name may vary, but the type must conform in style and 
thickness to the sample provided here. The spacing between letters and 
words should be set as ``normal.'' The type for the fuel name is 50 
point (1/2 inch; (1.27 cm) cap height) ``Helvetica Black,'' knocked out 
of a 1 inch; (2.54 cm) deep band. The type for the words ``MINIMUM'' 
and the principal component is 24 pt. (1/4 inch; (.64 cm) cap height.) 
The type for percentage is 36 pt. (3/8 inch; (.96 cm) cap height).
* * * * *
    (f) Illustrations of labels.
    * * *
BILLING CODE 6750-01-S

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    By direction of the Commission.
Donald S. Clark,
Secretary.
[FR Doc. 2010-5647 Filed 3-15-10: 8:45 am]
Billing Code: 6750-01-S