E9-27943. Fuel Economy Regulations for Automobiles: Technical Amendments and Corrections

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Proposed rule.

SUMMARY:

EPA is proposing to amend and correct portions of its existing fuel economy regulations. There are three reasons for this action. First, some minor corrections and amendments are needed to EPA's December 27, 2006 final rule for fuel economy labeling requirements for cars and light trucks. Second, the Department of Transportation finalized new average fuel economy standards for 2008-2011 light trucks on April 6, 2006. Third, on March 30, 2009, NHTSA revised CAFE requirements for 2011 trucks and finalized new average fuel economy (CAFE) standards for 2011 passenger automobiles. In order for DOT to administer these new standards, EPA must make some conforming changes to its regulations. In addition, some minor conforming changes to EPA's regulations are needed for two other separate statutory and regulatory actions. None of the above amendments and corrections would have any direct impact on human health and the environment, but they would allow for the more effective administration of existing regulations. In the “Rules and Regulations” section of this Federal Register, we published the above actions as a direct final rule without a prior proposed rule. If we receive no adverse comment, we will not take further action on this proposed rule. If we receive adverse comment, we will withdraw the portions of the final rule receiving such comment and those portions will not take effect. We will address all public comments in a subsequent final rule based on this proposed rule. We will not institute a second comment period on this action. Any parties interested in commenting must do so at this time.

DATES:

Written comments must be received by December 28, 2009.

ADDRESSES:

Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2005-0169, by one of the following methods:

• http://www.regulations.gov: Follow the on-line instructions for submitting comments.
• Fax: [phone].
• Mail: Environmental Protection Agency, EPA Docket Center (EPA/DC), Air and Radiation Docket, Mail Code 6102T, 1200 Pennsylvania Avenue, NW., Washington, DC 20460, Attention Docket ID No. EPA-HQ-OAR-2005-0169. In addition, please mail a copy of your comments on the information collection provisions to the Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), Attn: Desk Officer for EPA, 725 17th St., NW., Washington, DC 20503.”
• Hand Delivery: Docket Center, (EPA/DC) EPA West, Room B102, 1301 Constitution Ave., NW., Washington, DC, Attention Docket ID No. OAR-2005-0169. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information.

Instructions: Direct your comments to Docket ID No. EPA-HQ-OAR-2005-0169. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at http://www.regulations.gov,, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through http://www.regulations.gov your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional information about EPA's public docket visit the EPA Docket Center homepage at http://www.epa.gov/​epahome/​dockets.htm. For additional instructions on submitting comments, go to Section VII of the SUPPLEMENTARY INFORMATION section of this document.

Docket: All documents in the docket are listed in the www.regulations.gov index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in www.regulations.gov or in hard copy at the EPA Docket Center, EPA/DC, EPA West, Room B102, 1301 Constitution Ave., NW., Washington, DC. This Docket Facility is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The EPA Docket Center telephone number is [phone]. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is [phone].

FOR FURTHER INFORMATION CONTACT:

Christine Mikolajczyk, Office of Transportation and Air Quality, Compliance and Innovative Strategies Division, Environmental Protection Agency, 2000 Traverwood Drive, Ann Arbor, MI 48105; telephone number: [phone]; fax number: [phone]; e-mail address: [e-mail].

SUPPLEMENTARY INFORMATION:

I. Why Is EPA Issuing This Proposed Rule?

This document proposes to take action on minor amendments and corrections to EPA's existing emission and fuel economy regulations, located at 40 CFR Part 86 and Part 600. This proposal clarifies that special test procedures, calculation methods and label formats may be used for fuel economy labels and CAFE calculations of advanced technology vehicles. Advanced technology vehicles include, but are not limited to electric vehicles, fuel cell vehicles, plug-in hybrid vehicles and vehicles equipped with hydrogen-fueled internal combustion engines. This proposal also includes technical amendments to the fuel economy label regulations, including changes to the minivan definition, van definition, interior volume measurements of passenger vehicles, and special purpose class of vehicles. Today's action also proposes to correct some typographical errors and make other minor modifications to ensure accurate interpretation of the regulations. The changes to the EPA CAFE regulations are being proposed to conform to the NHTSA regulations, and include adding new reporting provisions that would enable EPA to provide NHTSA with the data it needs to determine compliance with the 2008-2011 CAFE standards for passenger automobiles and trucks.

In addition, two conforming changes are being proposed to align the EPA CAFE regulations with a 2007 Energy Independence and Security Act (EISA) amendment extending the alternative fuel vehicle CAFE credits to 2019, and to align the EPA CAFE regulations with a previous NHTSA rulemaking which eliminated the requirement to report separate CAFE values for domestic and imported trucks.

We have published a direct final rule which amends the Fuel Economy and Emission Regulation requirements in the “Rules and Regulations” section of this Federal Register because we view this as a noncontroversial action and anticipate no adverse comment. We have explained our reasons for this action in the preamble to the direct final rule. This proposal incorporates by reference all of the reasoning, explanation, and regulatory text for this proposal. Please refer to the direct final rule that is located in the “Rules and Regulations” section of this Federal Register publication. The direct final rule will be effective on January 25, 2010 unless we receive adverse comment by December 28, 2009.

If we receive no adverse comment, we will not take further action on this proposed rule. If we receive adverse comment, we will withdraw the direct final rule and it will not take effect. We would address all public comments in any subsequent final rule based on this proposed rule. If we receive adverse comment on a distinct provision of this rulemaking, we will publish a withdrawal in the Federal Register indicating which provisions we are withdrawing. The provisions that are not withdrawn will become effective on the date set out above, notwithstanding adverse comment on any other provision.

We do not intend to institute a second comment period on this action. Any parties interested in commenting must do so at this time. For further information, please see the information provided in the ADDRESSES section of this document.

II. Does This Action Apply to Me?

This action applies to manufacturers of new passenger cars and light trucks, including medium-duty passenger vehicles.^[1] Regulated categories and entities include:

Category	NAICS codes a	Examples of potentially regulated entities
Industry	336111, 336112	Motor vehicle manufacturers.
Industry	811112, 811198, 541514	Commercial Importers of Vehicles and Vehicle Components.
a North American Industry Classification System (NAICS).

III. What Should I Consider as I Prepare My Comments for EPA?

A. Submitting CBI

Do not submit this information to EPA through http://www.regulations.gov or e-mail. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD ROM that you mail to EPA, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

B. Tips for Preparing Your Comments

When submitting comments, remember to:

• Identify the rulemaking by docket number and other identifying information (subject heading, Federal Register date and page number).
• Follow directions—The agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
• Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
• Describe any assumptions and provide any technical information and/or data that you used.
• If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
• Provide specific examples to illustrate your concerns, and suggest alternatives.
• Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
• Make sure to submit your comments by the comment period deadline identified.

C. Docket Copying Costs

You may be charged a reasonable fee for photocopying docket materials, as provided in 40 CFR Part 2.

IV. What Are the Administrative Requirements of This Proposed Rule?

A. Executive Order 12866: Regulatory Planning and Review

Under Executive Order (EO) 12866 (58 FR 51735, October 4, 1993), this action is a “significant regulatory action” because it has the potential to raise novel legal or policy issues. Accordingly, EPA submitted this action to the Office of Management and Budget (OMB) for review under EO 12866 and any changes made in response to OMB recommendations have been documented in the docket for this action.

B. Paperwork Reduction Act

This action does not impose any substantive new information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. for the changes to the minivan definition, the requirements to include medium-duty passenger vehicles (MDPVs) in CAFE calculations, the additional CAFE footprint reporting requirements, or any other certification, fuel economy labeling and CAFE changes contained in this direct final rule. Burden is defined at 5 CFR 1320.3(b). Note that the data submittal requirements to include MDPVs in 2011 and later CAFE data and to report footprint information for reformed CAFE have already been established by NHTSA in its final rules for new passenger automobile and truck CAFE standards,^[2] and the accompanying NHTSA ICR (OMB 2127-00019).

The revision to the minivan definition in today's action has a de minimis impact; however, if anything, the revision is expected to reduce manufacturers' information collection burden. For example, manufacturers were previously required to calculate and report to EPA the total interior volume of each style of minivan and full-sized van to determine whether the van was at or below 180 cubic feet in interior volume. Today's action eliminates the 180 cubic feet interior volume specification from the minivan definition, thus slightly reducing manufacturers' reporting and recordkeeping burden.

Regarding the MDPV requirements for 2011 and later CAFE, the following statement was made in EPA's Information Collection Request (ICR) for the 2008 Fuel Economy Labeling rule (71 FR 77872, December 27, 2006):

Also beginning with model year 2011, medium-duty passenger vehicles (MDPVs) will be included in the labeling program. MDPVs essentially include SUVs and passenger vans that are between 8,500 and 10,000 lbs. “GVWR” (gross vehicle weight ratings). This change is congruent with the National Highway Traffic Safety Administration's (NHTSA's) expansion of the Corporate Average Fuel Economy (CAFE) program to include MDPVs beginning the same model year (71 FR 17565; April 6, 2006). Because more vehicle testing is required under CAFE than under labeling, the impacts of increased testing for MDPVs will be in the ICR for the rule to implement EPA's role in the CAFE program, which will be finalized in a separate action, in time for model year 2011, or in the appropriate fuel economy program information collection renewal.^[3] (Emphasis added.)

Thus, in the 2008 FE Label rulemaking EPA indicated we would either include the MDPV information collection requirements in an ICR for today's rulemaking or include it in the EPA's emission and fuel economy ICR renewal request to OMB (which occurs every three years). EPA elected the latter approach, and has included the additional MDPV testing, reporting and recordkeeping burden for fuel economy labeling and CAFE purposes in ICR 0783.54 (OMB 2060-0320), the renewal of the Motor Vehicle Emissions and Fuel Economy Compliance ICR which was submitted to OMB for review on October 23, 2008. Since EPA MDPV ICR requirements have been previously submitted to OMB and because they were also included in NHTSA's ICR (OMB 2127-00019), they are not included in today's action.

Regarding footprint information, the reporting requirements for footprint information and related data were not specifically addressed in the ICR for EPA's Fuel Economy Labeling Rule (ICR 0783.51, OMB 2060-0104) because any change in burden was considered to be negligible and within the margin of error for the information technology estimate in that ICR; and because the information collection burden was partially included in the NHTSA ICR (OMB 2127-00019). The information collection burden for footprint information is currently included in EPA's ICR 0783.54 (OMB 2060-0320), the renewal of the Motor Vehicle Emissions and Fuel Economy Compliance ICR, which was submitted to OMB for review on October 23, 2008.

Additionally, the footprint information reported to EPA for final CAFE reports (wheelbase, track width and sales information) is essentially the same information which will have been previously reported to NHTSA when manufacturers submitted their preliminary CAFE (PCAFE) and mid-model year CAFE reports to NHTSA. [Note that manufacturers are not required to submit PCAFE or mid-model year reports to EPA.] Reporting footprint information to EPA with final sales data is expected to be a minimal burden because manufacturers will have already established company business practices to track footprint and sales information for NHTSA and because manufacturers have been reporting CAFE final sales information to EPA since 1978.

C. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.

For purposes of assessing the impacts of this proposed rule on small entities, a small entity is defined as: (1) A small business as defined by the Small Business Administration (SBA) regulations at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.

After considering the economic impacts of this action on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. Based on Small Business Administration size standards, small businesses in the automobile manufacturing industry are defined as those having less than 1000 employees per firm. Additionally, they are identified using the North America Industrial Classification System (NAICS) by NAICS code 336111. Out of a total of approximately 80 automotive manufacturers subject to this action, EPA estimates that approximately 10 of these could be classified as small entities based on SBA size standards. No new burden for fuel economy labeling is being imposed by this action. The new reporting requirement for the reform CAFE footprint data has already been established by NHTSA in its final rule for new truck CAFE standards,^[4] and thus this action imposes no additional burden.

D. Unfunded Mandates Reform Act

This rule does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and tribal governments, in the aggregate, or the private sector in any one year. This action simply makes minor amendments, clarifications, and corrections that will allow for the more effective administration of existing regulations. Thus, this rule is not subject to the requirements of sections 202 or 205 of the Unfunded Mandates Reform Act. This rule is also not subject to the requirements of section 203 of the Unfunded Mandates Reform Act because it contains no regulatory requirements that might significantly or uniquely affect small governments. This action imposes no enforceable duty on any State, local or tribal governments.

E. Executive Order 13132: Federalism

Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”

This proposed rule does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. Thus, Executive Order 13132 does not apply to this rule.

F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments

This action does not have tribal implications, as specified in Executive Order 13175 (65 FR 67249, November 9, 2000). The impacts of this proposed rule are limited to the regulated entities: the automotive manufacturing industry. Thus, Executive Order 13175 does not apply to this action. EPA specifically solicits additional comment on this proposed action from tribal officials.

G. EO 13045 “Protection of Children From Environmental Health Risks and Safety Risks”

Executive Order 13045: “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997) applies to any rule that: (1) Is determined to be “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.

EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern health or safety risks, such that the analysis required under section 5-501 of the EO has the potential to influence the regulation. This action is not subject to EO 13045 because it does not establish an environmental standard intended to mitigate health or safety risks.

H. Executive Order 13211 (Energy Effects)

This rule is not a “significant energy action” as defined in Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Further, we have concluded that this rule is not likely to have any adverse energy effects.

I. National Technology Transfer Advancement Act

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law 104-113, 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards.

This action does not involve technical standards. Therefore, EPA did not consider the use of any voluntary consensus standards.

J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations

Executive Order (EO) 12898 (59 FR 7629, Feb. 16, 1994) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States.

EPA has determined that this proposed rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the level of protection provided to human health or the environment. This action simply makes minor amendments, clarifications, and corrections that will allow for the more effective administration of existing regulations without impacting the current fuel economy and emission control measures.

V. Statutory Provisions and Legal Authority

Statutory authority for the fuel economy labeling program and for corporate average fuel economy can be found in the Clean Air Act, 42 U.S.C. 7401-7671q, 49 U.S.C. 32901-32919, and Public Law 109-58. Statutory authority for vehicle emission control program is found in the Clean Air Act, as amended 42 U.S.C. 7401 et seq., in particular sections 202 and 206 of the Act, 42 U.S.C. 7521 and 7525.

List of Subjects

40 CFR Part 86

• Administrative practice and procedure
• Confidential business

40 CFR Part 600

• Administrative practice and procedure
• Electric power
• Fuel economy
• Incorporation by reference
• Labeling
• Reporting and recordkeeping

Dated: November 9, 2009.

Lisa P. Jackson,

Administrator.

Footnotes

1.  “Passenger car,” “light truck,” and “medium-duty passenger vehicle” are defined in 40 CFR 600.002-08. Generally, the term “light truck” means a pick-up truck, sport-utility vehicle, or minivan of up to 8,500 lbs gross vehicle weight rating, and “medium-duty passenger vehicle” means a sport-utility vehicle or passenger van from 8,500 to 10,000 lbs gross vehicle weight rating. Medium-duty passenger vehicles do not include pick-up trucks.

2.  See 49 CFR 537.7(c)(4), as amended by 71 FR 17678, April 6, 2006 and 74 FR 14196, March 30, 2009.

3.  See 71 FR 77872, December 27, 2006.

4.  See 49 CFR 537.7(c)(4), as amended by 71 FR 17678, Apr. 6, 2006.