BILL ANALYSIS                                                                                                                                                                                                    Ó






                                                                    AB 2127


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          Date of Hearing:  May 9, 2016


                     ASSEMBLY COMMITTEE ON REVENUE AND TAXATION


                           Sebastian Ridley-Thomas, Chair





          AB 2127  
          (O'Donnell) - As Introduced February 17, 2016


          Majority vote.  Tax levy.  Fiscal committee.  


          SUBJECT:  Motor vehicle fuel:  gasohol


          SUMMARY:  Increases the allowable percentage of gasoline that  
          may be included in E85, from 15% to 18%, and makes corresponding  
          changes to the definition of gasohol.  Specifically, this bill:   



          1)Redefines the term "gasohol", for purposes of the Motor  
            Vehicle Fuel Tax (MVFT) Law, as all blends of gasoline and  
            alcohol containing more than 18% gasoline (instead of 15% per  
            current law).


          2)Amends Revenue and Taxation Code (R&TC) Section 8651.8 to  
            provide that the excise tax imposed upon ethanol or methanol  
            containing no more than 18% gasoline or diesel fuels (instead  
            of 15% gasoline or diesel fuels per current law), shall be  
            one-half the rate prescribed by R&TC Section 8651 for each  











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            gallon of fuel used.  


          3)Takes immediate effect as a tax levy.  


          EXISTING LAW:  


          1)Imposes, under the MVFT Law, a tax upon the privilege of  
            distributing motor fuel.  


          2)Defines "gasohol", for purposes of the MVFT Law, to mean all  
            blends of gasoline, and alcohol containing more than 15%  
            gasoline.  (R&TC Section 7318.)  


          3)Imposes, under the Use Fuel Tax (UFT) Law, an excise tax of  
            $0.18 per gallon on use fuels.  (R&TC Section 8651.)


          4)Defines "fuel", for purposes of the UFT Law, to include any  
            combustible gas or liquid used in an internal combustion  
            engine for propulsion on the highway, except fuel subject to  
            taxation under the MVFT Law or the Diesel Fuel Tax Law.  (R&TC  
            Section 8604.)    


          5)Provides that the excise tax imposed upon ethanol or methanol  
            containing no more than 15% gasoline or diesel fuels shall be  
            one-half the rate prescribed by R&TC Section 8651 for each  
            gallon of fuel used (i.e., $0.09).  (R&TC Section 8651.8(a).) 


          6)Charges the State Air Resources Board (CARB) with adopting and  
            implementing motor vehicle emission standards, in-use  
            performance standards, and motor vehicle fuel specifications  
            for the control of air contaminants and sources of air  











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            pollution, as specified.  (Health and Safety Code (H&SC)  
            Section 43013(a).) 


          7)Charges CARB with endeavoring to achieve the maximum degree of  
            emission reduction possible from vehicular and other mobile  
            sources in order to accomplish the attainment of the state  
            standards at the earliest practicable date.  (H&SC Section  
            43018(a).)  


          FISCAL EFFECT:  The State Board of Equalization (BOE) notes  
          that, accounting for both the "foregone" gasoline tax revenue  
          and the increase in gasoline tax refunds, the total revenue loss  
          is estimated to be roughly $98,000 annually.  


          COMMENTS:  


          1)The author has provided the following statement in support of  
            this bill:


               In order to ensure effective policy, the Legislature  
               [should] ensure our laws and regulations remain consistent  
               in both language and intent.  Currently, the tax code and  
               air resource protection requirements have conflicting  
               specifications for blended ethanol fuels.  Specifically,  
               the tax code charges half the normal Use Fuel Tax rate on  
               ethanol fuels containing no more than 15 percent gasoline.   
               However, the Air Resources Board has set specifications for  
               E-85 (a common type of blended ethanol fuel) requiring the  
               total fuel volume to contain a minimum of 15% of  
               hydrocarbons (e.g., gasoline).  This means the minimum  
               gasoline content required by the ARB is the maximum content  
               allowable to qualify for the tax incentive.  Due to this  
               conflict, fuel marketers have difficulties recouping the  
               excise tax paid on E-85 blends to reflect the lower tax  











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               rate allowed for such alternative fuels.  AB 2127 resolves  
               this conflict and allows E-85 purchases to collect on past  
               owed tax refunds.  


          2)This bill is sponsored by the California Independent Oil  
            Marketers Association, which notes the following:


               Simply put, AB 2127 extends an existing 50 percent excise  
               tax discount for ethanol blended fuels to those blends that  
               contain no more than 18 percent gasoline.  This harmonizes  
               state tax law, giving incentives to high-ethanol blends of  
               fuel, with the stricter requirements imposed by the Air  
               Resources Board (CARB) to protect air quality emission  
               standards.  


               Several of our members have had difficulty in obtaining  
               already-paid road tax on gasoline after it has been blended  
               with high volumes of ethanol.  This allows fuel suppliers  
               who provide E-85 to fuel consumers a needed tax break,  
               thereby incentivizing sale of that product and removing a  
               business uncertainty from fuel blending.  


               The language in this measure has been thoroughly vetted  
               with the appropriate enforcement and policy entities and  
               there is no objection to this proposal from them.  


               By giving ethanol blenders a 3% range for gasoline content  
               (between 15-18%), they can plan their business operations  
               more reliably and continue providing this alternative fuel.  
                This will ensure alignment between our tax incentives and  
               regulations that both fundamentally reduce GHG emissions  
               and protect our air quality.  













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          3)The BOE notes the following in its staff analysis of this  
            bill:


              a)   Effect of the bill  :  "By increasing the allowable  
               percentage of gasoline blended into E85, from 15% to 18%,  
               the resulting blend would be taxed at a lower rate than is  
               currently imposed on the gasoline portion."  


              b)   No administrative concerns with the increase of gasoline  
               blended into E85 from 15% to 18%  :  "BOE's UFTL duties  
               include registration, returns, collection, audits, and  
               refunds.  The proposed change in the specified blending  
               percentage of E85 and gasohol fuels does not complicate  
               administration."


              c)   The SCO administers the specific gasoline tax refund  
               provisions  :  "The SCO administers gasoline tax refunds if  
               the gasoline is used for purposes other than operating a  
               vehicle on the state's public highways and other exempt  
               uses."


              d)   Below-the-rack blenders sell the E85 with tax-paid  
               gasoline and are authorized to obtain a refund  :   
               "Below-the-rack blenders already are authorized to obtain a  
               refund of the tax- paid gasoline component of the E85, as  
               provided by law and authorized by the SCO."     


          4)Committee Staff Comments


              a)   The UFT Law  :  The UFT Law sets the excise tax rate for  
               ethanol and methanol containing no more than 15% gasoline  
               or diesel at one-half the normal rate specified by R&TC  
               Section 8651 (i.e., $0.09 per gallon instead of $0.18 per  











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               gallon).  Ethanol and methanol containing more than 15%  
               gasoline is defined as "gasohol" under the MVFT Law.  While  
               the use fuel tax is technically imposed on the use of fuel,  
               the vendor who sells or delivers such fuel into a fuel tank  
               must, at the time of sale, collect the tax from the user  
               and provide a receipt.  (R&TC Section 8732.)  


               Vendors are required to have permits with the BOE and file  
               returns.  Use fuel vendor responsibilities include  
               reporting and paying the use fuel tax on alcohol fuels,  
               including E85<1>, delivered into motor vehicle fuel tanks.   
               Specifically, the vendor is required to collect and remit  
               to the BOE the $0.09 per gallon use fuel tax on the full  
               volume of E85 sold or dispensed from a retail pump.


              b)   The MVFT Law  :  The state imposes an excise tax under the  
               MVFT Law of $0.30<2> per gallon on the removal of gasoline  
               (except for aviation gasoline) at the refinery or terminal  
               rack, upon entry into California, and upon sale to an  
               unlicensed person.  Refunds of the excise tax paid on  
               gasoline are allowed under certain circumstances to certain  
               persons.  (R&TC Section 8101.)  For example, a refund is  
               allowed to any person who buys gasoline to produce a  
               blended fuel used to operate a motor vehicle on the state's  
               highways when that blended fuel is taxed as a use fuel.   
               (R&TC Section 8101(h).)  


               The BOE is responsible for various gasoline tax  
               administrative functions including registration, licensing,  
               return processing, auditing, and appeals.  The State  
               Controller's Office, in turn, is responsible for the  
               collection of delinquent gasoline taxes and the issuance of  
               -------------------------


          <1> The BOE notes that E85, an ethanol and gasoline blend, is  
          the most common blended fuel under the UFT Law.  
          <2> This rate is comprised of an $0.18 excise tax and a $0.12  
          surtax.








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               excise tax refunds for gasoline not used on the highway.   
               The gasoline tax collection point differs from that  
               applicable to use fuels.  Specifically, the gasoline tax is  
               generally collected high up the distribution chain at the  
               "terminal rack" level.   


              c)   Alcohol fuel blends  :  Alcohol fuel blends are the result  
               of blending two components - ethanol or methanol fuel and  
               gasoline or diesel fuel.  E85, for example, is produced by  
               blending ethanol fuel and gasoline.  The preferential  
               excise tax rate for alcohol blends was originally  
               established in 1981.  According to the sponsor, the  
               proponents of this lower rate were primarily interested in  
               stimulating alcohol fuel production and sale.   
               Specifically, the proponents argued that increased alcohol  
               fuel production would reduce dependence on imported oil,  
               create market parity by matching tax rates to alcohol  
               fuel's lower BTU output, and promote Californian  
               agricultural products used in creating alcohol fuels.  


              d)   CARB regulations  :  The author notes that "[i]n  
               furtherance of its mission to reduce vehicle emissions,  
               CARB has set specifications for E-85 requiring that the  
               total fuel volume contain a minimum of 79% ethanol and  
               15-21% of hydrocarbons."<3>  The UFT Law, however, only  
               provides the lower $0.09 per gallon tax rate to E85  
               containing no more than 15% gasoline.  According to the  
               author's office, the tension between these standards has  
               made it difficult for some blenders to obtain gas tax  
               refunds on their fuel blends.  Specifically, the author's  
               office notes:


                 While those purchasing pre-blended fuels can self-certify  
                 the content of their fuel with the Board of Equalization,  


                 ------------------------


          <3> The sponsor notes that these regulations were filed on  
          December 9, 1992, and became operative on January 1, 1993.








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                 those blending ethanol and gas themselves must apply to  
                 the State Controller's office to receive a refund of the  
                 tax they paid to purchase their fuel components.  To  
                 receive this refund, blenders must submit receipts for  
                 their fuel purchases that show an exact 15% ratio of gas  
                 to ethanol was purchased.  While some blenders have  
                 successfully claimed their tax credit, others have had  
                 confusion over what elements of their blend, such as  
                 denaturant, count as gasoline for tax purposes.  As a  
                 result, some blenders have been denied their tax credit  
                 after making purchases and setting prices over the past  
                 year with the expectation of receiving it.  This  
                 undermines the goals of the tax credit and CARB's mission  
                 by removing an incentive to use ethanol blends over  
                 gasoline.      


              e)   Why not blend E85 with exactly 15% gasoline  ?  If a  
               blender were to create an ethanol blend with exactly 15%  
               gasoline and 85% ethanol, this blend would seemingly meet  
               both CARB's blend requirements and the 15% cap imposed by  
               R&TC Section 8651.8.  Thus, the blend would be eligible for  
               the preferential tax rate of $0.09 per gallon, and the  
               blender would be eligible for a refund of road taxes paid.   
               CARB staff notes, however, that such a blend would likely  
               not meet standards in place for the fuel's minimum Reid  
               Vapor Pressure (RVP).  RVP is a measure of fuel volatility,  
               which must be managed to avoid smog formation in the  
               summer.  CARB staff notes that ethanol blends containing  
               more than 15% gasoline would be more likely to meet the  
               minimum RVP requirement.  While CARB has apparently not  
               instructed blenders to alter the gasoline content of their  
               blends, it has informed blenders of this fact.   


               Despite all this, CARB data suggest that many, if not most,  
               blenders are still producing E85 with only 15% gasoline.   
               All E85 sold in California is sold under "test program  
               exemptions".  As a result, fuel blenders must provide fuel  











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               quality test results.  CARB notes that this fuel quality  
               data from 2014 and the first three months of 2015 indicate  
               an average ethanol content of 82.75%, and an average  
               gasoline content of 15%, with the remaining 2.25% comprised  
               of denaturants.  Fuel industry representatives, however,  
               note that "denaturants" are gasoline-based, thereby  
               threatening to increase the overall blend's gasoline  
               content above 15%.  If this is the source of potential  
               conflict, perhaps it would be preferable to amend the R&TC  
               to clarify that gasoline-based denaturants shall not be  
               counted toward the 15% cap on gasoline for E85.  BOE staff,  
               however, notes that as a matter of administrative practice,  
               denaturants are not counted currently toward the 15%  
               gasoline cap.  Proponents, however, contend that increasing  
               the allowable percentage of gasoline to 18% would provide  
               blenders a much-needed margin for error when attempting to  
               satisfy both CARB's regulations and the provisions of the  
               R&TC.     


              f)   Should a sunset date be included  ?  In general, higher  
               gasoline contents result in better fuel economy.  At the  
               same time, however, the preferential tax rates were  
               established to incentivize the use of renewable fuels and  
               not gasoline.<4>  CARB notes that further research is still  
               needed to determine the specific emissions benefits and  
               downsides of various E85 blends.  In addition, CARB notes  
               that the E85 specifications are likely to be revised in the  
               next two to three years, but no official timeline has yet  
               been set.  In light of this fact, the Committee may wish to  
               consider adding a five-year sunset date to allow the  
               Legislature to revisit this issue following the adoption of  
               new E85 specifications.    

              g)   Related legislation  :  AB 1442 (O'Donnell) would have  
             --------------------------
          <4> According to the legislative history, the differential tax  
          rate was also imposed to reflect the lower energy content (i.e.,  
          BTUs) of ethanol.  It would appear that the energy content of  
          ethanol has increased significantly in recent years, however.  










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               increased the allowable percentage of gasoline that may be  
               included in E85, from 15% to 21%, and would have made  
               corresponding changes to the definition of gasohol.  AB  
               1442 died on this Committee's Suspense File.    



          REGISTERED SUPPORT / OPPOSITION:


          Support


          California Independent Oil Marketers Association (sponsor)




          Opposition


          None on file




          Analysis Prepared by:M. David Ruff / REV. & TAX. / (916)  
          319-2098